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Minnesota regulators must reconsider part of PolyMet's water discharge permit following a decision from the Minnesota Court of Appeals. 

The 39-page mixed opinion released Monday pertains to the water quality permit the Minnesota Pollution Control Agency (MPCA) granted PolyMet. The permit would allow the company to discharge water from the mine's facilities near Babbit and Hoyt Lakes in northeastern Minnesota. 

Environmental groups and the Fond du Lac Band of Lake Superior Chippewa had challenged the MPCA's decision to issue the water quality permit, as well as various decisions related to it. The appeals court concluded the MPCA "erred" when it did not properly consider whether the federal Clean Water Act applies to any future discharges from PolyMet's facility to groundwater. 

With Monday's opinion, the appeals court reversed the permit and sent it back to the MPCA to determine if potential discharges to groundwater should be regulated under the federal Clean Water Act.

A 2019 U.S. Supreme Court decision determined discharges to groundwater are subject to the act if they are "the functional equivalent" of a discharge to surface water (the precedent for this was set more than a year after PolyMet's permit was issued).

Monday's news is a win for environmentalists and the Fond du Lac Band, who went to court to challenge the water discharge permit PolyMet needs to build its proposed copper-nickel mine, called the NorthMet Project. The Minnesota Center for Environmental Advocacy (MCEA), which is among the groups fighting the project, tweeted Monday: "Every case appealing a PolyMet permit they've [the Minnesota Court of Appeals] heard has resulted in a rejected permit."

“This decision confirms that PolyMet can’t ignore its pollution by pumping it into the groundwater,” Marc Fink, a senior attorney at the Center for Biological Diversity, said in a statement. “Allowing perpetual toxic mining pollution in the headwaters of Lake Superior will never make sense. ... Now Minnesota regulators have a chance to fix their decision and stop permitting more pollution.”

But the court's latest opinion is not wholly on the side of these environmental groups.

Court rejects opponents' other issues

The appeals court rejected the groups' six other issues with the project, including their demands for stricter limits on wastewater discharged from the mine; the MPCA denying their petition for a contested case hearing to look more closely at some aspects of the permit; and allegations that the permit isn't in compliance with the Fond du Lac Band's water quality standards. 

The groups also alleged unlawful procedures because the MPCA didn't disclose the federal Environmental Protection Agency's (EPA) concerns via written comment with the NorthMet project. 

Related [April 22, 2021]: Investigation finds EPA mishandled oversight for PolyMet mine permits

The court said doing this did not prejudice opponents' substantial rights, so it did not reverse the MPCA's stance on this issue. 

However, the three-judge panel said their decision "should not be misconstrued as an endorsement" of how the MPCA handled this, reiterating what the district court previously said: The MPCA didn't want the EPA's remarks submitted during the public comment period, because the state agency hoped to minimize public criticism of the proposed permit. The MPCA also wanted to avoid the need to publicly respond in writing to the EPA's comments, the judges wrote

The court says it doesn't need to determine whether these actions were unlawful because "it is sufficient to determine that the challenged procedures did not prejudice relators' substantial rights."

"It wasn't a total win as the court ruled it is legal for the [MPCA] to suppress scientific data from the public to avoid bad press for a project it wants to permit, simply because there is no specific law against that," Scott Beauchamp, the policy director at Friends of the Boundary Waters Wilderness, tweeted. "The fact that data suppression by agencies is legal is exactly why we need a prove it first law to protect Minnesota's clean water ASAP!"

PolyMet CEO, chairman and president Jon Cherry said they're "pleased" to have "prevailed on the majority of issues and the court has narrowed the case to just this single issue," noting they're optimistic the MPCA will conclude there is not a permittable discharge to groundwater.

"This will mean a little more process, but it gives us a clear roadmap to the reactivation of this permit,” Cherry said.

What does this mean?

The court's decision isn't the end of PolyMet's contentious project but it will lead to the project being delayed further.

PolyMet, which has been working for years to build its $1 billion open-pit mine project, has gotten all the major permits it needs to dig in, but the project has stalled because several of the permits are tied up in court or have been sent back to the issuing agencies for further work.

Among them: 

  • The permit to mine is the subject of a contested case hearing 
  • The air permit is under appeal again
  • The wetlands permit had been stayed to address the impact on the Fond du Lac Band

The groups that appealed MPCA's permit — MCEA, Friends of the Boundary Waters, Center for Biological Diversity, the Fond Du Lac Band of Lake Superior Chippewa, and Water Legacy — are considering whether to appeal the Minnesota Court of Appeal's decision to the Minnesota Supreme Court. 

They also plan to deliver a petition to Gov. Tim Walz on Tuesday at 3 p.m., which calls on him to "move on from PolyMet" due to the problems that have been identified with the proposed mine. More than 5,000 people have signed the petition

Supporters of the mine say it's safe, it'll create jobs and boost the economy in northeastern Minnesota.

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