Court sends PolyMet permit back to state environmental regulators
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A state court on Monday sent a key air emissions permit for the planned PolyMet copper-nickel mine back to the Minnesota Pollution Control Agency (MPCA) for further consideration and additional findings.
The Minnesota Court of Appeals ruled that the MPCA did not adequately explain its reasons for granting the permit, after several environmental groups and a northern Minnesota tribe alleged that PolyMet was engaging in so-called “sham permitting” by planning a much larger mine than what it applied for in its air permit.
It’s a setback for what would be the state’s first copper-nickel mine, planned near the towns of Babbitt and Hoyt Lakes in northeastern Minnesota.
But the court’s decision does not reverse the permit, a step the court said it could have taken. Rather, Judge Lucinda Jesson wrote in her opinion that the court has “not concluded that the record could not support a reasoned decision by the Agency to issue a permit. We have simply determined that the Agency did not make such a reasoned decision.”
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PolyMet received several permits from federal and state regulators in late 2018 to move forward to build the mine and process 32,000 tons of ore every day. One of those permits is to allow a certain level of air pollution that the project would emit from ore crushers, conveyors and other sources.
Several environmental groups — the Minnesota Center for Environmental Advocacy, Center for Biological Diversity, Friends of the Boundary Waters and the Sierra Club — in addition to the Fond du Lac Band of Lake Superior Chippewa, challenged the permit.
They pointed out that PolyMet submitted a report to Canadian securities regulators after the public comment period on the permit had closed — but before the MPCA had issued the permit — suggesting that a much larger mine than what PolyMet had applied for in its permit would be much more profitable. They said state regulators failed to address that report in its decision to grant the permit.
Environmental groups say that the MPCA allowed PolyMet to avoid having to meet more stringent air pollution requirements by approving a permit based on the smaller mine plan.
The Court of Appeals originally ruled in favor of the plaintiffs last March, but that decision was overturned by the Minnesota Supreme Court, which then remanded it back to the appellate court.
“Today’s decision is yet more confirmation that PolyMet is a failed proposal,” Minnesota Center for Environmental Advocacy CEO Kathryn Hoffman said. “It’s time to move on from PolyMet and find better alternatives for northeastern Minnesota.”
In a statement, PolyMet said it was disappointed in the decision, but said the project can meet air quality standards.
“We stand firmly in our belief that the Minnesota Pollution Control Agency appropriately accounted for the potential effects of the NorthMet Project and will expeditiously provide the supporting explanation requested by the court,” PolyMet said.
The state Pollution Control Agency said it’s still reviewing the decision and determining its next steps. But, in a statement the agency said it remains “confident in its scrutiny of PolyMet’s emissions calculations and the strong and enforceable air permit issued to the facility.”
Several other permits have been tied up in legal and regulatory proceedings.
PolyMet’s permit to mine is on hold while the Minnesota Department of Natural Resources conducts what's known as a "contested case hearing” before a state administrative law judge on a key aspect of its waste management plan.
A state water quality permit is still pending before the Minnesota Court of Appeals.
And the U.S. Army Corps of Engineers has suspended a federal wetlands permit for PolyMet while it investigates whether the mine would adversely impact the Fond du Lac Band’s reservation downstream.