DULUTH — PolyMet and the Minnesota Pollution Control Agency are appealing last month’s Minnesota Court of Appeals decision that sent air permits for PolyMet back to the MPCA for review after the court said the agency should have considered a report that said the company, which is trying to open Minnesota's first copper-nickel mine, is eyeing a much larger operation.
In separate news releases Tuesday, April 21, PolyMet and the MPCA said they would file petitions for review requesting the Minnesota Supreme Court consider overturning the lower court's decision.
The Court of Appeals in March sided with environmental groups arguing a report released by PolyMet in March 2018 outlines the company's plans to recover 118,000 tons of ore per day instead of 32,000 tons per day, the amount listed by the company in permit applications. The air permits, issued in December 2018, allow the company to release 250 tons of regulated pollutants per year, but opponents say the company would exceed that limit if it were to recover more ore.
MPCA spokesman Darin Broton said the Court of Appeals did not assess the agency’s written findings appropriately and was wrong to use material outside of the administrative record for its decision.
"The MPCA’s air permit was issued based on science and facts, not speculation and rumors," Broton said. "Throughout its extensive permitting process, the MPCA scrutinized PolyMet’s emissions calculations and used public comments to require the facility to have substantial new recordkeeping and monitoring requirements in the final permit. The MPCA is asking the Supreme Court to uphold the agency’s permit and its process that was developed and reinforced with science and facts."
PolyMet said the Supreme Court should clarify when the Court of Appeals can require an agency to make additional findings and if the court "can presume without evidence that an agency will not enforce its permits."
"The Court of Appeals’ decision creates regulatory uncertainty that could have far-reaching, negative implications for businesses seeking permits in the state,” Jon Cherry, PolyMet president and CEO, said in a release.
Aaron Klemz, spokesman for the Minnesota Center for Environmental Advocacy, one of the groups opposed to PolyMet, said he's confident the Court of Appeals decision will stand.
"It’s ironic that the Minnesota Pollution Control Agency is joining PolyMet the day before Earth Day in an attempt to reinstate PolyMet’s air pollution permit," Klemz said in an email to the News Tribune. "The Court of Appeals remanded this permit to the MPCA to ensure that PolyMet isn’t avoiding stronger air pollution standards by misrepresenting its true plans. MPCA should investigate this issue and tell the truth."
PolyMet, which is looking to build an open-pit mine, tailings basin and processing facility near Hoyt Lakes and Babbitt, faces numerous legal challenges.
The Supreme Court has already said it will hear challenges to a January decision that sent PolyMet's dam-safety permits and permit to mine back to the Minnesota Department of Natural Resources and ordered a contested-case hearing on the permits.
Separately, the company's national pollutant discharge elimination system, or NPDES, permit, which regulates water discharged from industrial activities, remains on hold after an August order by the Minnesota Court of Appeals after it was revealed the MPCA requested the Environmental Protection Agency refrain from commenting on a PolyMet draft water permit until the public comment period ended.
In March, Glencore, PolyMet's majority shareholder, issued PolyMet up to $30 million in unsecured convertible debentures (long-term debt issued by a company that can be converted into stock after a period) to help fund PolyMet's legal battles.
On Tuesday, Cherry said PolyMet "remains determined and confident that it will advance its copper-nickel-precious metal mine on the Iron Range."