In re Issuance of Air Emissions Permit No. 13700345-101 for Polymet Mining, Inc., A19-0115
| Decision Date | 23 March 2020 |
| Docket Number | A19-0115,A19-0134 |
| Citation | 943 N.W.2d 399 |
| Parties | In the MATTER OF Issuance of AIR EMISSIONS PERMIT NO. 13700345-101 FOR POLYMET MINING, INC., City of Hoyt Lakes, St. Louis County, Minnesota. |
| Court | Minnesota Court of Appeals |
Evan J. Mulholland, Ann E. Cohen, Minnesota Center for Environmental Advocacy, St. Paul, Minnesota (for relators Minnesota Center for Environmental Advocacy, Friends of the Boundary Waters Wilderness, Center for Biological Diversity, and Sierra Club)
Sean Copeland, Fond du Lac Band of Lake Superior Chippewa, Cloquet, Minnesota; and Vanessa L. Ray-Hodge (pro hac vice), Sonosky, Chambers, Sachse, Mielke & Brownell, LLP, Albuquerque, New Mexico (for relator Fond du Lac Band of Lake Superior Chippewa)
Monte A. Mills, Caitlinrose H. Fisher, Green Espel PLLP, Minneapolis, Minnesota; and Jay C. Johnson (pro hac vice), Venable LLP, Washington, District of Columbia (for respondent PolyMet Mining, Inc.)
Keith Ellison, Attorney General, St. Paul, Minnesota; and Emily C. Schilling (pro hac vice), Holland & Hart LLP, Salt Lake City, Utah; and Sarah Koniewicz, Holland & Hart LLP, Boulder, Colorado; and Adonis A. Neblett, General Counsel, Minnesota Pollution Control Agency, St. Paul, Minnesota (for respondent Minnesota Pollution Control Agency)
Considered and decided by Rodenberg, Presiding Judge; Cleary, Chief Judge; and Jesson, Judge.
These two consolidated certiorari appeals are brought by relators Minnesota Center for Environmental Advocacy, et al.1 (MCEA) and Fond du Lac Band of Lake Superior Chippewa (the band) to challenge a decision by respondent Minnesota Pollution Control Agency (MPCA) granting an air-emissions permit to respondent PolyMet Mining, Inc., (PolyMet) for its NorthMet project. Relators assert that the MPCA failed to adequately consider whether PolyMet intends to operate within the limits of the permit for which it applied, or if, instead, it was seeking a "sham" permit. In support of their argument, relators rely on citations and documents that are not part of the administrative record that was submitted by the MPCA. We conclude that we may consider those documents in evaluating whether the MPCA failed to consider an important aspect of the permitting decision, and we therefore grant relators’ motion to supplement the record and deny the MPCA’s motion to strike portions of relators’ brief and addendum. We further conclude that the MPCA’s findings are insufficient to facilitate judicial review of the permitting decision. Accordingly, we remand to the MPCA for additional findings.
If built, PolyMet’s NorthMet project would be the first copper-nickel-PGE (platinum group elements) mine in Minnesota. We have extensively discussed the nature of the proposed project in several recent decisions in related matters. See In re NorthMet Project Permit to Mine Application Dated Dec. 2017 , No. A18-1952, 940 N.W.2d 216, 222–23, (Minn. App. Jan. 13, 2020) ( PTM Appeals ); Minn. Ctr. for Envtl. Advocacy v. Minn. Dep't of Nat. Res. , No. A18-1956, 2019 WL 3545839, at *1 (Minn. App. Aug. 5, 2019), review denied (Minn. Oct. 29, 2019); In re Applications for a Supplemental Envtl. Impact Statement for Proposed NorthMet Project , No. A18-1312, 2019 WL 2262780, at *1 (Minn. App. May 28, 2019) ( SEIS Appeals ), review denied (Minn. Aug. 20, 2019). The NorthMet project requires multiple permits from state and federal authorities and also triggered joint federal-state environmental review, resulting in a final environmental-impact statement (FEIS) that the Minnesota Department of Natural Resources (DNR) determined adequate in March 2016.
Among the permits required for the NorthMet project is an air-emissions permit from the MPCA. PolyMet submitted an application for an air-emissions permit in August 2016 and a revised application in January 2018. PolyMet applied for what is known as a "synthetic minor permit" based on its requests for permit limitations on ore-processing, or "throughput," volumes. Specifically, PolyMet proposed to limit ore throughput to 32,000 tons per day (tpd) (11,680,000 tons per year (tpy)). As we explain further herein, requesting this throughput limit allowed PolyMet to avoid the requirements for "major source" permitting under the federal Clean Air Act.
The MPCA commenced a public notice and participation process on the air-emissions-permit application in January 2018. On January 5, 2018, the MPCA issued a public notice of two public meetings that were held on February 7 and 8, 2018, in Aurora and Duluth. And on January 31, 2018, the MPCA issued a public notice of its commissioner’s preliminary determination and intent to issue the draft air-emissions permit. That public notice commenced a 45-day public-comment period that ran through March 16, 2018. During the public-comment period, the MPCA received 88 comments from government agencies, tribal parties (including the band), environmental groups (including MCEA), and individuals.
Ten days after the close of the public-comment period, on March 26, 2018, PolyMet filed with Canadian securities regulators a Form NI 43-101F1 Technical Report (the Canadian technical report or Canadian report).2 The 273-page report, which was prepared to provide expert study on the NorthMet project, included detailed discussion on many topics, including two topics that caused relators concern. First, the Canadian report identified a 10.3% internal rate of return (IRR)3 for the NorthMet project at the planned ore throughput of 32,000 tpd. Second, the Canadian report discussed and provided preliminary economic assessments (PEAs) of two scenarios with higher ore throughputs of 59,000 and 118,000 tpd. For these increased throughputs, the Canadian report identified potential IRRs of 18.5% and 23.6%, respectively.
In June 2018, MCEA submitted to the DNR, with a copy to the MPCA commissioner, a petition for a supplemental environmental-impact statement (SEIS). MCEA argued that the Canadian technical report evidenced PolyMet’s intent to build a larger project than that for which it was seeking permits, and that the report "makes plain that the PolyMet project is financially feasible only if the current proposal is the first phase of an expanded and/or accelerated project." MCEA argued that the Canadian technical report thus included "substantial new information" that required preparation of an SEIS. See Minn. R. 4410.3000, subp. 3(A) (2019). The DNR rejected this argument, reasoning that "the lower IRR in the technical report still supported the existence of a profitable project, and thus there was no basis to conclude that the Project will be financially unable to cover the costs of reclamation and closure." SEIS Appeals , at *6.4
In October 2018, after making changes to the draft permit based on public comments, the MPCA provided a copy of the air-emissions-permit application, proposed permit, and technical support document to the United States Environmental Protection Agency (EPA). The EPA’s review period ended on December 10, 2018, and the EPA did not submit any written comments or object to the proposed final permit.
Meanwhile, on November 1, 2018, the DNR had issued a permit to mine, dam-safety permits, and other permits for the NorthMet project.5 On November 8, 2018, MCEA submitted a letter to the DNR and the MPCA requesting that they stay all permits for the NorthMet project pending resolution of the appeal from the DNR decision denying an SEIS. The MPCA denied the stay request as prematurely made before it had issued any permits.
On Thursday, December 13, 2018, MCEA submitted a letter to the MPCA commissioner, asserting that the MPCA had a duty to investigate whether "PolyMet is about to be issued an Air Permit with a throughput limit that is significantly lower than the level at which PolyMet intends to operate its mine." MCEA asserted that the Canadian technical report evidenced PolyMet’s intent to run the mine at a higher throughput in the near future, which would result in what the EPA has termed "sham permitting." MCEA therefore requested that the "MPCA withhold issuance of the final Air Permit until it has fully evaluated whether issuing a synthetic minor permit for this project is defensible."
Six calendar days later, on Wednesday, December 19, 2018, the MPCA commissioner sent a letter of reply to MCEA. The reply cited cautionary language from the Canadian technical report, and stated that the increased-throughput scenarios examined in the report were "speculative at best." The MPCA commissioner concluded:
The next day, December 20, 2018, the MPCA issued the air-emissions permit to PolyMet for the NorthMet project.
MCEA and the band filed separate certiorari appeals, which this court consolidated. During the processing of the appeals, the parties have filed motions raising issues as to the appropriate scope of the record for this court’s review.
I. Should the motions related to the record be granted?
II. Have relators established a basis for relief under Minn. Stat. § 14.69 ?
The air-emissions permit in this case is governed by the federal Clean Air Act, 42 U.S.C. §§ 7401 - 7671q (2012) (CAA). Under the CAA, the EPA promulgates national ambient air quality standards (NAAQS). 40 C.F.R. Pt. 50 (2019). Each state is responsible for developing its own state implementation plan to enforce the NAAQS within state borders. 42 U.S.C. § 7407(a) ; 40 C.F.R. § 52.1223 (2019). In Minnesota, the MPCA enforces the CAA, in part by issuing air-emissions permits. See 40 C.F.R. Pt. 70, App. A (2019) ; see also Minn. Stat. § 116.07, subds. 2(a), 4a(a) (2018) ().
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