State environmental regulators stand by PolyMet air permit

PolyMet Mine
Eric Olson, right, gathers his tools on May 29, 2019, as contractor Robert Radotich uses a backhoe to dig areas so the soil stratification can be observed, which will help them engineer and design the infiltration pods for the PolyMet copper-nickel mine in Hoyt Lakes, Minn.
Anthony Souffle | Star Tribune via AP 2019

Three years to the day after state regulators first issued an air quality permit for the proposed PolyMet copper-nickel mine in northeastern Minnesota, the Minnesota Pollution Control Agency reaffirmed its decision, pushing back against accusations of so-called “sham permitting.” 

Several environmental groups and the Fond du Lac Band of Lake Superior Chippewa had argued that the MPCA failed to consider information suggesting that PolyMet planned to build a much larger mine that would emit more pollution than what was covered under the air permit.

The Minnesota Supreme Court ruled in February that the MPCA was not required to investigate those claims and sent the case back to the Minnesota Court of Appeals to determine two smaller issues. In a July ruling, the appeals court asked the MPCA for more explanation as to how it arrived at its decision, and to clarify whether PolyMet had provided any false or misleading information about its plans. 

In a 21-page report released Monday, the agency said that the "potential that PolyMet will decide to expand its operations … does not change MPCA’s conclusion” that the mining company can comply with the air permit.

Further, the MPCA said that if PolyMet does decide to expand, it would need to go through a new permitting process, which would include public notice and comment. 

The decision by state regulators to stand by the project’s air quality permit is a victory for PolyMet, which is seeking to build the state’s first copper, nickel and precious metals mine near the towns of Hoyt Lakes and Babbitt. The air permit is one of several key permits PolyMet needs to build the mine that have been delayed by litigation. 

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It’s a setback for the Fond du Lac Band, and several environmental groups that challenged the permit — the Minnesota Center for Environmental Advocacy, Center for Biological Diversity, Friends of the Boundary Waters Wilderness and the Sierra Club. 

A key part of their case was a report PolyMet submitted to Canadian securities regulators after the public comment period on the air 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. 

PolyMet is permitted to mine and process 32,000 tons of ore per day. The securities report analyzed the potential for PolyMet to expand the mine to nearly four times that size, a move that would also likely extend the life of the mine beyond the current plan of 20 years. 

The MPCA said it “retains robust enforcement authority” if PolyMet exceeded the operation limits established by the permit. 

The agency also said it reviewed the potential expansion scenarios and economic outlook for PolyMet. “Disagreements around project economics do not demonstrate that PolyMet knowingly submitted false and misleading information,” the MPCA concluded. 

In a statement, PolyMet CEO Jon Cherry said the action on the air permit “moves us one big step closer” to building the estimated $1 billion mine, “a project that will provide numerous economic benefits to northeast Minnesota along with a U.S.-based supply of metals crucial for the transition to a greener economy.”

But PolyMet still faces several additional hurdles before it can begin work on the project. Other major permits — including the project’s main “permit to mine” issued by the Minnesota Department of Natural Resources, a water quality permit also issued by the MPCA, and a wetlands permit from the federal Environmental Protection Agency — all remain in limbo because of ongoing court cases or administrative work. 

“We are disappointed that the Minnesota Pollution Control Agency has once again failed to conduct a rigorous investigation into the facts surrounding the size and scale of PolyMet’s true mining plans as shared with investors and securities regulators,” JT Haines, northeastern Minnesota program director for the Minnesota Center for Environmental Advocacy, said in a statement. 

“PolyMet is still playing bait-and-switch with its mine project. Our state agencies need to probe these issues, not side-step them,” Haines said, adding that his group is still reviewing MPCA’s findings and hasn’t decided yet whether to appeal.

Cherry said all remaining lawsuits are scheduled to be heard during 2022, and that PolyMet has prevailed in all of them that have reached a final decision. 

The Minnesota Department of Natural Resources has also begun to plan a contested case hearing for one of the contested permits, which is expected to take place before a state administrative law judge early next year.