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Monday, April 15, 2024 | Back issues
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Minnesota appeals court rejects discharge permit for proposed mine

A state agency overseeing permits for the controversial mine project now must conduct further analysis required by U.S. Supreme Court precedent to see if the Clean Water Act applies to discharges to groundwater.

ST. PAUL, Minn. (CN) — The Minnesota Court of Appeals on Monday put the brakes on a key permit for a controversial copper-nickel mine in the northeastern part of the state, a project that has been entangled for years in a complex web of litigation from opponents.

The proposed NorthMet mining project, spearheaded by Minnesota-based mining corporation PolyMet, would feature Minnesota’s first copper-nickel mine and an accompanying processing plant located near the small towns of Babbit and Hoyt Lakes, respectively. Its proponents pitch the project as a much-needed boon for a region affected by its flagging iron mining industry.

Environmentalists, Native American tribes and other critics have slammed the mine’s impacts on local waters, particularly the state’s famous Boundary Waters wilderness area, and have called out, among others, PolyMet and the Minnesota Pollution Control Agency, or PCA, for a lack of due diligence in issuing permits for the mine and conducting robust reviews of potential environmental damages.

At a hearing before the state appeals court in October, attorneys for nonprofit environmental groups including the Minnesota Center for Environmental Advocacy (MCEA) and the Center for Biological Diversity, and for the Fond du Lac Band of Lake Superior Chippewa argued, in part, that the PCA improperly denied a contested-case hearing over water-protection permits for the mine and failed to fully evaluate discharges from the facility to groundwater.

The latter aspect was central to the court’s ruling on Monday. The mine opponents argued the PCA’s combined National Pollution Discharge Elimination System permit—which regulates surface-water pollution—and State Disposal System permit—part of a Minnesota program seeking to protect groundwater—must be subjected to further groundwater-impact analysis under the Clean Water Act because of the U.S. Supreme Court’s 2020 decision in County of Maui v. Hawaii Wildlife Fund.

The PCA issued a draft of the twin permit in January 2018, and it was the subject of hundreds of public comments and four petitions for a contested-case hearing, which the PCA denied. Relators’ appeals over the twin permit were delayed by a parallel case against the Minnesota Department of Natural Resources that yielded a mixed decision in April.

Lawyers for the MCEA said the Maui case and the state supreme court decision altered the legal landscape in which the permits were issued in December 2018, partially because the U.S. Supreme Court finding in Maui applies to pollutants discharged to groundwater in addition to navigable waters if the discharge to groundwater is “the functional equivalent of a direct discharge” to navigable waters.

As to this last point, Minnesota Court of Appeals Judge Matthew Johnson agreed on behalf of the three-judge panel that heard the case, writing that “the PCA erred by not considering whether any discharges to groundwater from the NorthMet project will be the functional equivalent of a discharge to navigable waters and, thus, whether the CWA applies to those discharges.”

The appeals court’s decision remanded the issue back to the PCA with instructions to conduct the required functional-equivalence analysis mandated by Maui.

Though the court found it could not reverse on any of the other issues relators raised in their six consolidated appeals, Johnson echoed district court scrutiny of PCA maneuvers to keep criticism from the Environmental Protection Agency of the NorthMet permits out of the public record, including by asking the EPA to submit its comments orally rather than in writing. Environmentalists and tribal representatives condemned these acts as illegal procedural irregularities.

“Our conclusion on this issue should not be misconstrued as an endorsement of the challenged procedures,” Johnson said. The judge, paraphrasing the district court’s finding, said “the PCA’s efforts to discourage the EPA from providing written comments during the public-comment period had the purpose and effect of avoiding or minimizing public criticism of the proposed permit and, in addition, avoiding the need for the PCA to publicly respond in writing to the EPA’s comments.”

“But we need not determine whether the challenged procedures are unlawful because it is sufficient to determine that the challenged procedures did not prejudice relators’ substantial rights,” Johnson ultimately concluded.

Clean water advocacy groups fighting the mine applauded the court’s ruling on Monday.

“Once again the courts have rejected a PolyMet permit,” said Kathryn Hoffman, CEO of the MCEA. “The agency obviously has more work to do to protect Minnesota’s waters and communities from the serious risks of sulfide mining. It’s time for Governor [Tim] Walz to move on from PolyMet’s failed proposal and create a better and safer job creation plan for northeastern Minnesota.”

“This decision confirms that PolyMet can’t ignore its pollution by pumping it into the groundwater,” said Marc Fink, a senior attorney at the Center for Biological Diversity. “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.”

For its part, the MPCA felt the appeals court's decision vindicated the soundness of its permits and how they are issued.

"For a second time, a Minnesota court has firmly decided that the MPCA's permitting processes for the PolyMet project were rigorous and prudent," said MPCA's senior adviser and director of communications Darin Broton. "While the agency reviews the court's directive to complete additional analysis that wasn't required prior to the permit's issuance, the MPCA appreciates the court's strong decision that the extensive 479-page water permit for PolyMet is protective of Minnesota's waters."

PolyMet did not immediately respond to a request for comment on the appeals court’s decision.

The appeals panel found in favor of the PCA and PolyMet on all the relators’ other claims, including those concerning compliance with the Fond du Lac Band’s tribal water-quality standards, a lack of water-quality-based effluent limits in the contested twin permit and the PCA’s denial of a contested-case hearing.

The panel was rounded out by Judges Lucinda Jesson and Randall Slieter.

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