REGIONAL— The proposed NorthMet copper-nickel mine has suffered another legal setback, this time over its air quality permit originally issued by the Minnesota Pollution Control Agency back in 2018.
The state’s Supreme Court ruled late last week that a legal challenge to the company’s air emissions permit led by the Minnesota Center for Environmental Advocacy, or MCEA, should be reinstated after the state Court of Appeals dismissed the matter on procedural grounds.
The case was not the first involving the original permit issued by the MPCA. An initial case filed by MCEA and other environmental appellants prompted the Court of Appeals to remand the permit back to the MPCA after the court determined that the agency’s findings were inadequate to allow for judicial review. After making additional findings, the MPCA issued a revised air permit and it’s that permit that is the subject of the latest lawsuit.
But PolyMet, now New Range Copper Nickel, had objected, claiming that the lawsuit was served on its legal counsel 31 days after the permit was issued, a day late under the state’s Administrative Procedures Act and civil appellate rules. The Court of Appeals agreed and threw out the case.
Yet the high court found that that the case had been properly served, since the statute only required service on the parties involved and because the suit had also been served on PolyMet officials directly.
The decision reinstates the environmentalists’ appeal, which will now head back to the Court of Appeals for a decision on its merits.
MCEA, Friends of the Boundary Waters Wilderness, and Sierra Club challenged MPCA’s failure to investigate PolyMet’s claims that it intends to limit its production to 32,000 tons per day even though financial projections produced by an independent consultant under Canadian disclosure rules, concluded that the company could achieve much higher profit margins by increasing its rate of production. The litigants contend that PolyMet is using the smaller production figure to avoid stricter air pollution limits designed for larger emitters, which require companies use the “best available control technology, or BACT. By limiting its production to 32,000 tpd, PolyMet is able to be permitted as a “minor” emitter, thereby avoiding the BACT requirement.
The environmental groups contend that PolyMet intends to seek an expansion once all of its permits are in place, and that the company is actually engaged in “sham permitting.”
PolyMet denies that claim, and MPCA officials note that the company would still be required to seek a revised permit if it plans to increase its rate of production at a later point. But courts have suggested that it is easier for companies already in operation to receive a permit for an expansion than for the original permit.
This latest legal setback comes on the heels of the June 6 decision by the Army Corps of Engineers to revoke its Section 404 wetland impact permit for its NorthMet mine after the Fond du Lac successfully argued that the proposal could not guarantee it would meet its own water quality standards in downstream waters.