PolyMet project put on hold while court considers permitting ‘irregularities’

Minnesota Judicial Center, home of the Court of Appeals (Photo by Jonathunder via Wikipedia)

The PolyMet copper-nickel mine project in northeastern Minnesota hit a hurdle this week with the state’s Court of Appeals ordering a stay on a key permit. The ruling sets the stage for further judicial review of the permitting process.

The three-judge panel cited “alleged procedural irregularities” by the Minnesota Pollution Control Agency and the U.S. Environmental Protection Agency in its decision. The MPCA issued a National Pollution Discharge Elimination System (NPDES) permit for PolyMet in December 2018, which seeks to protect downstream waters from mine pollution. The EPA typically comments on such permits, but in this case, no written comments were submitted.

In June, Quetico Superior Wilderness News and others reported how the two government agencies took unusual steps to keep concerns from the federal agency from being made public. EPA staff read comments to MPCA staff over the phone, rather than submitting written documentation. Bowing to pressure from environmental groups and politicians, the EPA finally released the comments, well after the permit had been issued.

The Minnesota Court of Appeals ruled on June 25 that a district court should hold new hearings to consider the EPA issue. Now it has said that the permit is not in effect until the judicial process plays out.

“On the unique facts of this appeal, we conclude that staying the permit is warranted,” the court wrote in its ruling. “A substantial issue has been raised as to the regularity of the MPCA’s proceedings in granting the permit, and this court has ordered the exceptional remedy of transfer to district court to hear and determine those irregularities.”

Ramsey County District Court was to hold a hearing today on the irregularities, seeking to move the cases forward efficiently. The EPA inspector general is also investigating the agency’s actions.

Mixed response

The MPCA remained resolute in its defense of the pollution discharge permit and its process.

“The MPCA gave the EPA extensive opportunities to provide feedback and comments on the permit, including 60 days for a formal review,” the agency said in a statement. “MPCA is prepared to show the court that it addressed EPA’s comments throughout the permitting process, and the EPA ultimately concluded that the permit was legally enforceable.”

The agency is under new leadership since issuing the permit and Governor Tim Walz appointed a new commissioner after he took office in January.

Environmental groups cheered the decision, saying it will protect Minnesota’s waters while litigation proceeds.

“This is an extremely important ruling in light of all the problems with this key permit and the process,” said Kathryn Hoffman, CEO of the Minnesota Center for Environmental Advocacy. “The court has recognized the substantial evidence that PCA actively worked to conceal significant concerns by EPA scientists, who highlighted critical questions about PolyMet’s potential to pollute Minnesota’s waters.”

There are several other legal challenges to the PolyMet project in the court system. Earlier this week, the Court of Appeals gave PolyMet good news, in rejecting an appeal of the state’s mining regulations. Critics said the decision points out the need for the legislature to strengthen the standards.

More Information:
EPA releases PolyMet water quality comments, begins internal investigation of possible cover-up

MN DNR: PolyMet’s NorthMet Mining Project

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