Latest PolyMet court decision again highlights the MPCA’s failure to do its job

The Minnesota Pollution Control Agency’s (MPCA’s) mission is to protect and improve the environment and human health. It’s supposed to be the state’s leading environmental watchdog. But it’s been the kind of watchdog that, when a robber enters the room, it rolls over on its back in hopes of getting a belly rub.

The courts are doing more to protect our environment than the MPCA. That’s backwards. The MPCA should be in court pushing for more environmental protection.

The latest MPCA embarrassment came in the form of a Minnesota Court of Appeals ruling Monday that rejected the air quality permit the agency approved for PolyMet’s proposed copper-sulfide mine.

Screen grab from MCEA’s website, with permission.

The Star Tribune’s coverage frames the Court’s decision as “the latest reversal for PolyMet,” when it also should be reporting it as “the latest reversal of the MPCA on its failure to protect our environment.”

“Both PolyMet and the MPCA on Monday downplayed the significance of the Appeals Court decision,” the Star Tribune wrote.

In other words, the MPCA and PolyMet are on the same side.

The Fond du Lac Band of Lake Superior Chippewa and environmental groups such as the Minnesota Center for Environmental Advocacy (MCEA) filed suit to trigger the review of Polymet’s air quality permit. They see the decision as a significant win and are celebrating it.

The fact that the Court of Appeals required the MPCA to go back and do more work on the PolyMet air quality permit is significant but not surprising. The MPCA has failed the public repeatedly. For decades, it’s failed to prevent the MinnTac Mine near Mountain Iron from releasing wild rice-damaging pollution into nearby rivers and lakes. It failed to act promptly to protect North Minneapolis from Northern Metal Recycling’s asthma-inducing air pollution. It approved Enbridge Line 3, which violates treaties, damages the environment, and will add to climate damage.

The court gives state agencies’ expertise a lot of deference. It takes a significant error for the court to push back on an agency decision such as the PolyMet permit. This time it pushed back.

The court found that the agency failed to consider evidence submitted by MCEA and others “about PolyMet’s intent to quadruple the size and speed of its mining operation,” MCEA said in an email.

Screen grab from MCEA’s website, with permission.

According to the Court ruling:

PolyMet applied for what’s called a “synthetic minor source” air quality permit. It’s for smaller operations. PolyMet proposed to process up to 32,000 tons of ore per day, and release up to 250 tons of air pollution per year.

If PolyMet had applied for a slightly larger operation, it would have needed what’s called a “major stationary source of pollution” permit, and that would have triggered more rigorous permit conditions.

The MPCA held a public comment period on PolyMet’s application, which closed in March 2018.

Ten days later, PolyMet’s parent company filed a report with Canadian securities which raised questions about PolyMet’s real intent.

PolyMet would make a 10.3% internal rate of return for the project as proposed, the report said. It also discussed two other scenarios: Increasing ore production to 59,000 tons daily to get an 18.5 percent rate of return and increasing production to 118,000 tons per day to get a 23.6 percent rate of return.

The MCEA brought PolyMet’s filing to the MPCA’s attention on three separate occasions, along with its own analysis.

According to one of MCEA’s experts, PolyMet’s projected 10.3 percent rate of return wouldn’t be attractive to investors, suggesting the project “is not financially feasible.” New major mining projects typically require rates of return between 30 and 40 percent, the expert said.

The MCEA asked the MPCA to investigate whether PolyMet was engaged in “sham permitting,” a Clean Air Act violation. (Sham permitting is when a company seeks a permit with which it doesn’t intend to comply. In this case, was PolyMet applying for the least restrictive air quality permit to get its foot in the door, with the intent to scale up its operations as soon as possible?)

The MPCA declined to investigate. The MPCA commissioner (John Linc Stine at the time) called the report’s proposed production increases “speculative at best.” His letter concluded that neither the Canadian report, nor PolyMet’s air permit application, “indicate any intent by PolyMet to circumvent major source permitting.”

The MPCA granted PolyMet’s air quality permit the next day.

Significantly, the permit didn’t address the issues raised by MCEA.

The Court of Appeals said the MPCA still could choose to approve PolyMet’s air quality permit, but it had an obligation to review the materials MCEA submitted and explain its reasoning behind its decision. The MPCA failed “to consider pertinent documents and make reflective findings,” the Court said.

Only after getting the MPCA’s reasoned argument could the court determine whether the record supports its decision, the Court wrote. Further, having such clarity in the record “drives public trust and understanding, particularly with regard to technical, controversial judgment calls.”

Public trust. That’s the kicker. In order to have the public trust, the MPCA can’t just ignore legitimate questions. It needs to explain to the public why it’s not a major red flag when PolyMet is already thinking about a major expansion before it even starts construction on its smaller project. It has to explain why this isn’t an example of sham permitting.

And better yet, deny the permit.

This echos the MPCA’s 2018 shinanigans with PolyMet’s water quality permit. Recall the MPCA asked the U.S. Environmental Protection Agency’s (EPA’s) Region 5 office not to submit critical comments in writing during the public comment period. The MPCA asked the EPA to call instead and read its comments over the phone. (That would keep them out of the public record.)

The EPA inspector general issued a report this year saying the Region 5 Office violated agency procedures by not submitting written comment. Speaking about the inspector general’s report, MCEA attorney Elise Larson told the Star Tribune it “confirms that the PolyMet water permit was rushed and the public was kept in the dark by its own [Minnesota Pollution Control Agency] about EPA staff concerns, resulting in a weak permit that endangers people downstream.”

PolyMet still has several permits in limbo. As the Star Tribune reported: “PolyMet can’t start construction on the $1 billion mine near Hoyt Lakes and Babbitt until all its permits are cleared. Four of about 20 permits issued to the company have been revoked, suspended or require additional review: the air pollution permit, the water pollution permit, the permit to destroy wetlands and the company’s main permit to mine.”

The larger question remains: When do we get a real watchdog?

Thank you to Fond du Lac, MCEA and the other organizations bringing lawsuits for protecting our environment when the state won’t.

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