Judge rules Minnesota Pollution Control Agency broke no laws in PolyMet mine case

September 8, 2020

A Minnesota judge ruled that the Minnesota Pollution Control Agency (MPCA) did not violate its own policy or break the law when it requested U.S. Environmental Protection Agency (EPA) regulators refrain from commenting on an essential water permit for the PolyMet’s proposed NorthMet copper and nickel mine.

The Duluth News Tribune reported that a coalition of environmental groups and the Fond du Lac Band of Lake Superior Chippewa argued the MPCA urged the EPA to wait on commenting on a PolyMet draft permit until the public comment period ended and to read comments over the phone instead of putting them in writing (and the public record). The coalition argued that these amounted to “procedural irregularities” and an effort by the MPCA to suppress EPA concerns on PolyMet’s National Pollutant Discharge Elimination System (NPDES), permit.

But Judge John H. Guthmann filed a 104-page findings of fact, conclusions of law and order in State District Court in St. Paul that countered those claims and sent the case back to the Minnesota Court of Appeals.

“The MPCA effort to convince the EPA to delay issuing written comments about the NorthMet NPDES draft permit was not an irregularity in procedure,” Guthmann wrote. “There is no statute, rule, regulation, or other formally adopted policy or procedure that prohibits the MPCA from asking the EPA to delay an optional course of action.”

But Guthmann acknowledged the MPCA kept EPA comments from the public view to deter bad press, even if no law or rule barred the agency from it.

“The MPCA knew it was required to respond to all written EPA comments, its responses would be public, and the public would find out what the EPA’s specific concerns about the permit were from the comments and responses” Guthmann wrote. “The MPCA had other legitimate reasons for seeking an EPA delay in submitting comments. However, the MPCA’s primary motivation was its belief that there would be less negative press about the NorthMet Project if EPA comments were delayed until after public comments and verbally expressed EPA concerns were incorporated into the draft permit.”

In an emailed statement, MPCA spokesperson Darin Broton said the decision meant "the court renewed its confidence in the MPCA’s permitting process for PolyMet."

“While the MPCA always strives to do better, the court overwhelmingly said the agency’s permitting procedures were not irregular," Broton said. “The MPCA remains committed to ensuring that its permit processes and decision-making are transparent and provide a robust opportunity for public participation.”

PolyMet is trying to build a copper-nickel mine, processing plant and tailings dam near Hoyt Lakes and Babbitt. In a news release, characterized the judge's order as a win.

“We are pleased with the district court’s ruling and look forward to defending the challenge to the water permit currently pending in the court of appeals,” said Jon Cherry, chairman, president and CEO of PolyMet. “We remain confident the water quality permit meets all applicable standards and will ultimately be upheld by the courts.”

The district court decision comes on the heels of the Minnesota Supreme Court this spring granting the company’s and regulators’ petitions to review court of appeals’ rulings on its Permit to Mine, dam safety and air quality permits. The Minnesota Supreme Court recently scheduled oral argument in the Permit to Mine appeal for Oct. 13, 2020.
 

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