Support the Timberjay by making a donation.

Serving Northern St. Louis County, Minnesota

Appeals court issues mixed decision on PolyMet mine permit

Marshall Helmberger
Posted 1/26/22

REGIONAL— The Minnesota Court of Appeals delivered another mixed verdict on PolyMet Mining’s water discharge permit on Monday, guaranteeing months of additional agency analysis and …

This item is available in full to subscribers.

Please log in to continue

Log in

Appeals court issues mixed decision on PolyMet mine permit

Posted

REGIONAL— The Minnesota Court of Appeals delivered another mixed verdict on PolyMet Mining’s water discharge permit on Monday, guaranteeing months of additional agency analysis and potential future litigation over the controversial project.
In a complex case involving several environmental and tribal litigants, the three-judge panel sided with the Minnesota Pollution Control Agency (PCA) on a host of issues, while sending the permit back to the agency to determine if potential discharges to groundwater should have been regulated under the federal Clean Water Act. The net effect of that order, which suspends the permit until further notice, is also the subject of dispute.
Litigants cite language in the court ruling that indicates the permit is “reversed,” essentially throwing it out until the PCA can address the issue of groundwater contamination. But PCA officials described the order as merely procedural, and claim the permit remains in place while it addresses the groundwater question. PolyMet officials took a similar position on the ruling. “This will mean a little more process, but it gives us a clear road map to the reactivation of this permit,” said Jon Cherry, president and CEO of PolyMet.
Paula Maccabee, attorney for Duluth-based Water Legacy, called that position “stunning.”
“When a permit is reversed, it’s reversed. That means the PCA has to reissue a new permit, and that will need to include a public comment period.”
PCA spokesperson Darin Broton agreed that a public comment period might be required, but only if the agency decides to issue new permit conditions to address potential groundwater contamination. “But the entire permit is not reopened,” Broton said. “The rest of the permit stands.”
The PCA had determined at the time it issued the permit, that contamination of groundwater was not subject to the Clean Water Act, believing the law only applied to surface water discharges. That view had been upheld by Minnesota courts in the past.
But the U.S. Supreme Court, in its consequential 2019 decision in County of Maui v. Hawaii Wildlife Fund, determined that discharges to groundwater are subject to Clean Water Act regulation if they are “the functional equivalent” of a discharge to surface water.
The court is now asking the PCA to decide whether potential discharges to groundwater from the PolyMet operation meet that test.
PolyMet argued that such an analysis isn’t necessary. The company contends it won’t make discharges to groundwater because its facilities are designed to prevent them. But the court found evidence that some underground seepage, “even if minimal” is expected to occur as a result of the project, hence the need for the analysis.
Attorneys for the PCA had argued that the court had enough information to decide the functional equivalence question itself, but the court indicated it preferred to rely on the agency’s expertise for making that determination.
Court sides with PCA on other issues
The court sided with the PCA, even though it, too, faulted the agency’s handling of the comment process involving the Environmental Protection Agency. Environmental plaintiffs in the case had wanted the appellate court to reverse a determination from a district court judge, who found that while the PCA had engaged in “procedural irregularities” when top agency officials prevailed on EPA staff to withhold issuing written comments on the PolyMet permit, the agency did not engage in an unlawful process. But the Court of Appeals sided with the district court and thanked the Ramsey County judge who heard the case for a thorough analysis of the issues.
The Court of Appeals also deferred to the PCA on whether the PolyMet permit requires water quality-based effluent limits, or WQBELS, as described in the Clean Water Act. The court found that the plaintiffs in the case had failed to explain why the federal law required WQBELS in the case of PolyMet, rather than another type of regulation, known as technology-based effluent limits, or TBELs, which were incorporated into the PolyMet permit.
“In the absence of clear guidance, the supreme court and this court repeatedly have recognized that the federal regulations at issue are ambiguous in their application and that courts must defer to the PCA’s reasonable interpretations of the ambiguous regulations,” wrote the court in their decision.
The court also deferred to the PCA’s decision not to hold a contested case hearing on PolyMet’s water discharge permit, known as an NPDES permit. Plaintiffs argued that the Department of Natural Resources is already in the process of conducting a contested case hearing over PolyMet’s proposal to use bentonite clay as a tailings basin liner, and that a similar hearing should be conducted for the NPDES permit. But the court found there was little connection between the two issues, and that the plaintiffs had failed to make the case for such a hearing over the water discharge permit, by itself.
Finally, the court sided with the MPCA’s conclusion that discharges from PolyMet would not violate water quality standards set by the Fond du Lac band, whose reservation lies downstream of the proposed mine.
Reaction varies
Both the PCA and PolyMet expressed considerable satisfaction with the court’s decision.
“We are pleased that we have prevailed on the majority of the issues and the court has narrowed the case to just this single issue regarding Maui, where considerable scientific date already exists,” Cherry said. “MPCA has already determined there is not a permittable discharge to groundwater and we are optimistic the agency will reach the same conclusion from the Maui test.”
PCA spokesperson Darin Broton agreed. “For a second time, a Minnesota court has firmly decided that the MPCA’s permitting processes for the PolyMet project were rigorous and prudent. 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.”
Meanwhile, environmental plaintiffs hailed the decision as a key win in their efforts to derail the proposed mining project. “This is a huge victory,” said Paula Maccabee, attorney for Duluth-based Water Legacy. “As of today, PolyMet’s water pollution permit has been thrown out by the court. PolyMet no longer has a permit to mine, and they no longer have a water pollution permit. It is long past time for Minnesota to pull the plug on PolyMet and its parent mega-corporation Glencore.”
“Once again the courts have rejected a PolyMet permit,” said Kathryn Hoffman, CEO of the Minnesota Center for Environmental Advocacy. “It’s time for Governor Walz to move on from PolyMet’s failed proposal and create a better and safer job creation plan for northeastern Minnesota.”
Plaintiffs in the original cases included Water Legacy, the Minnesota Center for Environmental Advocacy, Friends of the Boundary Waters, the Center for Biological Diversity, and the Fond du Lac Band of Ojibwe.