REGIONAL— The state’s Court of Appeals has remanded PolyMet Mining’s air permit back to the Minnesota Pollution Control Agency (MPCA) for further proceedings. That decision, issued Monday, was just the latest setback for the company, which hopes to eventually open its NorthMet copper-nickel mine near Hoyt Lakes. Four of PolyMet’s major permits have been reversed, remanded, or suspended over the past two and a half years.
The decision comes five months after the state’s Supreme Court handed PolyMet and the MPCA a partial victory in the same case, when it determined that the state regulatory agency had no obligation to investigate whether PolyMet was engaging in so-called “sham permitting,” by seeking an air permit for a substantially smaller facility than the company intended to build.
But the high court had sent the case back to the appellate level for further proceedings on other outstanding questions. Among them was whether the MPCA erred by refusing to consider a Canadian-produced technical report, issued by PolyMet just days after the close of public comments on its air permit, which indicated the company would achieve substantially greater profitability by pursuing a much larger project than the 32,000 ton-per-day operation it had proposed for permitting. As it was, the company was able to apply for what’s known as a “synthetic minor source permit,” although the larger projects the company was then exploring would have required a major source permit, which requires a considerably more involved process.
The Minnesota Center for Environmental Advocacy, one of several plaintiffs in the case, had petitioned the MPCA after release of the technical report urging a supplemental environmental impact statement be completed before any air permit was granted. But the MPCA, with little comment, dismissed the environmental group’s plea and failed to include its primary explanation, provided in a letter to the MCEA rejecting their request, in the administrative record that courts rely on when reviewing agency decisions.
In issuing the permit, the MPCA concluded that PolyMet would likely comply with the permit as written. “But the agency did not explain why this was so,” wrote Judge Lucinda Jesson for a three-judge panel. “And the agency had before it documents that called into question whether PolyMet could be expected to comply with the throughput limits of the synthetic minor source permit,” wrote the court. “The Canadian report suggested that the profitability of the project would be limited with the throughput limitations and that PolyMet was evaluating the profitability of the project with higher throughput. And the [MCEA’s] expert opined that it was unlikely that PolyMet would have included the increased-throughput analyses in the Canadian report if it did not intend to expand the NorthMet mine.”
While the court ruled that the Canadian report didn’t create a “hard-and-fast” duty for the MPCA to investigate whether PolyMet was seeking a sham permit, the judges found that the MPCA was required to provide substantial evidence and a clear explanation of its decision-making process when it issues permits— but failed to do so for the PolyMet air permit.
The court also determined that the MPCA had failed to provide evidence to show that PolyMet had been forthcoming in providing information as part of the permitting process. “Nothing in the technical support document or the responses to comments addresses whether PolyMet complied with its disclosure obligations and refrained from knowingly making false or misleading statements,” wrote the court. “This silence stands in contrast to the documents before the agency suggesting that PolyMet was exploring expansions of the NorthMet mine that would not comply with the terms of the synthetic minor source permit.”
While highly critical of the agency, the appellate court declined to simply reverse the permit, opting instead to give the MPCA a chance to get it right. “We have 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. Accordingly, we deem remand the appropriate disposition.”
Plaintiffs claim another victory
“Monday’s decision is yet more confirmation that PolyMet is a failed proposal,” said Kathryn Hoffman, CEO of the MCEA, in response. “It comes on the heels of a Minnesota Supreme Court decision that rejected the permit to mine and the U.S. Environmental Protection Agency stepping in to put the brakes on the proposal over downstream water pollution. It’s time to move on from PolyMet and find better alternatives for northeastern Minnesota.”
Chris Knopf, Executive Director of the Friends of the Boundary Waters Wilderness, accused the company of misleading the public. “PolyMet has been speaking out of both sides of its mouth trying to keep its plans for a bigger, dirtier mine hidden from the people of Minnesota,” he said. “Now, Governor Walz and his administration have an opportunity to look at all the facts and science behind this toxic and dangerous proposal.”
Meanwhile, PolyMet officials remained confident that the concerns expressed by the court will eventually be resolved. “While disappointed in the court’s decision, 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,” stated the company in comments issued in the wake of the ruling. “The facts and science that prove the project can meet air quality standards are not in doubt.”
The company noted, as well, that the metals they hope to produce, such as copper, nickel, palladium and cobalt are in high demand for infrastructure projects and the production of electric vehicles and renewable and clean energy technologies including solar panels, wind turbines and batteries. “These mineral resources need to be mined to support future clean energy and electric mobility technologies consistent with the priorities of the Biden Administration and as outlined in a June 2021 White House report on vulnerabilities within essential supply chains,” the statement added.