Minn. appeals court kicks back another PolyMet permit
E&E News  |  MINING

Published: Monday, March 23, 2020

The Minnesota Court of Appeals sent an air emissions permit for the PolyMet copper-nickel mine back to state regulators for further review today, giving another victory to environmental groups that oppose the project.

The appeals court found that the Minnesota Pollution Control Agency did not adequately evaluate whether the air permit requested by PolyMet was a "sham permit" — meaning one that didn't accurately reflect the size and scope of PolyMet's proposed mine.

This is the fourth permit the Court of Appeals has rejected this year. In January, the court overturned three permits issued to PolyMet by the Minnesota Department of Natural Resources — a permit to mine and two dam safety permits.

PolyMet officials said today they are disappointed by the court's ruling and are evaluating their legal options.

"We demonstrated through the extensive environmental review and permitting process that we can meet or exceed Minnesota's strict standards for nonferrous mines," the company said in a statement.

A spokesman for the MPCA said the agency was still reviewing the opinion.

"The Court of Appeals decision today makes it even more clear: the process that granted permits for the PolyMet mine proposal is broken," Kathryn Hoffman, CEO of the Minnesota Center for Environmental Advocacy, said in a statement. "It's clear that the permits that were

issued to PolyMet did not protect human health and the environment, and it's time for our agencies to acknowledge and address that."

Hoffman's group and a Minnesota tribe argued that the MPCA's decision to issue the permit was arbitrary and not supported by substantial evidence. They alleged the MPCA failed to take a "hard look" at whether PolyMet was engaged in sham permitting, saying the MPCA didn't adequately review information available to it before awarding the permit in late 2018.

They argued that the MPCA issued its findings after questions were raised about PolyMet's intent to abide by terms of the permit. Among the concerns, the Minnesota Center for Environmental Advocacy noted that crusher lines at the plant have more capacity than PolyMet claimed it intended to use.

The appeals court said that all parties agree if PolyMet decides to expand production, more permits will need to be issued, but if expansion is the current intent, then now is the time to comply with requirements under a stronger permit.

"Of course, once a project is operating, expansion proposals may be viewed more favorably by regulators," the court said. "If that is the true course being charged by PolyMet, then there is merit to relators' argument that the synthetic-minor permit is a sham."

The appeals court said it doesn't have all the documents the MPCA considered, so it can't determine whether the MPCA's decision to grant the permit was arbitrary and capricious or unsupported by substantial evidence.

"For this reason, we conclude that a remand to the MPCA for additional findings is warranted," the court found.

The Minnesota Center for Environmental Advocacy says the proposed mine cannot operate until it has a valid permit. — Amy Forliti, Associated Press