Friday, December 9, 2022 | Back issues
Courthouse News Service Courthouse News Service

Minnesota appeals court hears mine-permit dispute

A collection of cases fighting water protection permits for the PolyMet mine project invoked new precedent for the Clean Water Act.

ST. PAUL, Minn. (CN) — The Minnesota Court of Appeals heard arguments Wednesday morning in a complicated collection of cases regarding a controversial proposed mine in the state’s northern reaches. 

In a Zoom hearing, attorneys for the Minnesota Pollution Control Agency and mining company PolyMet defended the permitting process for the proposed NorthMet copper-nickel mine from charges that the regulator had glossed over important details when it approved water-protection permits for the mine. 

The mine, proposed as Minnesota’s first copper-nickel mine and an economic shot in the arm for a region whose flagging iron mining industry was once the center of local commerce, has drawn scrutiny from environmentalists, Native American tribes and others concerned about its impact on local waters, particularly the state’s famous Boundary Waters wilderness area. 

Attorneys for environmental groups Water Legacy, the Friends of the Boundary Waters Wilderness, the Minnesota Center for Environmental Advocacy and the Center for Biological Diversity and for the Fond du Lac Band of Lake Superior Chippewa argued that the pollution regulator erred in denying a contested-case hearing, failing to evaluate groundwater discharges or include effluent limits, and kept unflattering comments from the Environmental Protection Agency out of the record. 

Judges Matthew Johnson, Lucinda Jesson and Randall Slieter peppered each side with questions as they sussed out the key issues in the case, which was consolidated from six separate appeals. 

One of those issues was a question posed by the U.S. Supreme Court’s 2020 decision in County of Maui v. Hawaii Wildlife Fund, a Clean Water Act case that found that projects whose pollutants reach navigable waters require permits when they are the “functional equivalent of a direct discharge.” 

In 2018, the MPCA issued a draft of a twin permit under the Clean Water Act: a combined National Pollution Discharge Elimination System (NPDES) permit, which regulates surface-water pollution, and State Disposal System (SDS) permit, part of a Minnesota program seeking to protect groundwater. The relators moved for a contested case hearing before the permit was issued, and the agency denied it. Their appeal was delayed by a parallel case against the Minnesota Department of Natural Resources, which was resolved in a mixed decision in April. 

The Maui case and state Supreme Court decision, attorney Elise Larson of the MCEA said, represented a fundamental change to the landscape in which the permits had been issued.

“MPCA’s rules are substantially similar to DNR’s when it comes to determining whether this project is going to comply with the law,” she said at the hearing.

Whether or not the state Supreme Court’s decision was precedential, she said, was less important than the cases’ substantially overlapping facts. 

Assistant Attorney General Bryson Smith, arguing for the MPCA, said the relators were catastrophizing the impacts of the project and improperly invoking Maui.

“It’s not sufficient just to have a discharge to groundwater; in order to implicate the Maui analysis, you have to have that discharge to groundwater reach surface water,” he said. 

He critiqued relators’ attacks on the worst-case-scenarios, saying that discharges would take decades to reach surface water and that the agency has safeguards in place to detect and ameliorate discharges.

“The idea that there are discharges to groundwater that would reach surface water is entirely speculative,” Smith said. 

Paula Maccabee argued for WaterLegacy, of which she is also the advocacy director. She said the MPCA hadn’t made its analysis to the standards of Maui, and that the agency had worked to conceal the EPA’s criticism by asking the federal regulator to submit its comments orally rather than in writing.

ADVERTISEMENT

“The MPCA can’t pat itself on the back that we now have a complete record, because we had to file 9 FOIA requests, two FOIA lawsuits,” she said. “I don’t know if this is typical for the MPCA. I certainly hope not."

Matthew Murdock, representing the Fond du Lac Band, took a similar tack.

“It is a pretty long track record of MPCA not wanting these very serious concerns from the ultimate oversight agency to be put out,” he said. 

“Why weren’t they just up front about this from the beginning?” he continued. “They acted like people with something to hide because they had something to hide. If this was all above board, why didn’t they just do that from the beginning?”

Attorneys for MPCA argued in their briefs that the request for oral, rather than written, comments from the EPA was not a procedural irregularity, nor was a failure to preserve two emails between the agencies’ staff.

“Relators’ definition of procedural irregularities as any actions deviating from an unwritten custom,” they wrote, “would… undermine legislative intent by making it unlawful for agencies to be innovative in unique circumstances.”

The MPCA had adopted “several novel procedures” for NPDES permitting in response to high public interest in the case, the brief said, and a district court had dismissed “any notion of a scheme to suppress EPA’s concerns.” 

For the relators, the EPA’s input also raised questions of whether the permits should include water quality-based effluent limits, or WQBELs. WQBELs are imposed in cases where lesser controls, known as technology-based effluent limitations or TBELs, are found to be insufficient. 

“Going back to the EPA’s draft letter…. It seems like the views expressed there do not directly attack or undermine the reasonable potential analysis,” Johnson said to Maccabee, citing a criteria for the implication of WQBELs. “But… suggest WQBELs nonetheless.” 

Maccabee and her colleagues broadly agreed. Smith and PolyMet attorney Jay Johnson saw it differently.

“If there’s no reasonable potential, there doesn’t have to be a WQBEL. That’s the end of the game on the WQBELs argument,” he said. 

Jay Johnson argued that the relators were unfairly critiquing PolyMet and the MPCA for acknowledging and accommodating for the inherent risks of mining.

“These are potential non-point-source discharges,” he said. “They’re taking this table out of the final EIS, and the final EIS made extraordinarily conservative projections about what might happen.” 

“It’s not an admission that these discharges are going to happen, it’s accounting for the possibility that these unpermitted discharges might happen,” he added. 

Speaking after the hearing, Maccabee said the permit was too permissive of potential discharges. “The whole point of the Clean Water Act is to prevent the pollution,” she said. “Not to create a new superfund site so maybe we can go in and clean it up.” 

“The PolyMet permit would be a permit shield that would allow discharge directly to surface water and… to groundwater,” she added. “And the risks to Minnesota would be very high if this permit is not reversed and remanded.” 

Johnson promised an order within ninety days. The relators have varied on their requests for relief, Larson said Wednesday afternoon, but all agree that the permit should be reversed and remanded back to the MPCA for fixes to what they call legal errors and to further develop a factual record. 

A representative for the MPCA declined to comment on the proceedings. Representatives for PolyMet did not respond to a request for comment.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.

Loading
Loading...