About the battle
PolyMet is the first copper-nickel mine to be given permits to operate by the Minnesota Pollution Control Agency (MPCA). One of the most important permits that the PolyMet proposal needs is a water pollution permit issued under the Clean Water Act (also known as a National Pollutant Discharge Elimination System or “NPDES” permit). A strong permit would provide clear, enforceable limits on pollution and provide clear authority to respond to pollution if it occurs. The water pollution permit issued to PolyMet is not a strong permit.
Throughout the environmental review and permitting process, staff at the U.S. Environmental Protection Agency (EPA) raised concerns about the water pollution from the PolyMet proposal. Evidence that the MPCA sought to suppress the EPA scientists’ concerns about PolyMet’s Clean Water Act permit -- by preventing EPA employees from entering their concerns about the water permit into the public record -- has led to unprecedented investigations into the MPCA’s conduct. .
At the state level, multiple courts have confirmed that the MPCA specifically asked EPA to withhold their comments from the public record and instead, incredibly, had EPA read the comments over the phone. In January of 2020, the Ramsey County District Court held an unprecedented hearing into the matter. From this hearing we learned that e-mails about MPCA’s request and notes from the meeting with EPA were later deleted by MPCA and computers wiped. An EPA leak brought the concerns to the public’s attention. At the federal level, the EPA Office of Inspector General investigated the situation and found that EPA management “botched” its oversight responsibilities in this case. EPA has signaled that, in the event of a renewed public comment period on this matter, it would submit its concerns in writing.
On January 24, 2022, the Minnesota Court of Appeals issued a mixed ruling in the matter, finding for MCEA and our partners on a key Clean Water Act issue (remanding to the agency) but declining to require formal legal consequences for MPCA’s suppression of EPA’s concerns about the enforceability of water quality standards in the PolyMet water permit. Because of the importance of this issue, MCEA, WaterLegacy, and the Fond du Lac Band filed Petitions for Review to the Minnesota Supreme Court on February 23, 2022.
Key Timeline Events
MCEA Petitions for Review in the Minnesota Supreme Court
MCEA filed a petition for review in the Minnesota Supreme Court on the issues regarding MPCA’s conduct with EPA, illegal groundwater discharges, and the failure to ensure the PolyMet project would not violate water-quality standards. A federal union, local administrative law professors, government integrity groups, and an organization representing Minnesota well owners filed briefs asking to serve as “friends of the court” and encouraging the Minnesota Supreme Court to grant review.
Minnesota Court of Appeals issues a mixed ruling
The Minnesota Court of Appeals reversed and remanded the PolyMet permit because MPCA failed to properly evaluate whether groundwater discharges would impact surface waters. But in doing so, declined to impose any formal legal consequences for MPCA’s suppression of EPA’s concerns about the enforceability of water quality standards in the PolyMet water permit.
Stay lifted on PolyMet water permit case
The Minnesota Court of Appeals dissolves the stay after the Minnesota Supreme Court remanded PolyMet’s Permit to Mine back to DNR for a contested-case hearing.
EPA’s oversight authority finds EPA acted improperly during the PolyMet water permit process
The EPA’s Office of the Inspector General (OIG) issues a report finding EPA Region 5 did not address all Clean Water Act regulations during its review of the PolyMet permit. Despite its concerns with the permit, Region 5 did not provide written comments, contrary to standard operating. In addition, OIG found Region 5 repeatedly declined to make a formal determination under CWA § 401(a)(2) regarding whether PolyMet’s discharges would impact the quality of waters within the jurisdiction of the Fond du Lac Band of Lake Superior Chippewa.
PolyMet water permit case stayed
The Minnesota Court of Appeals stays case pending the Supreme Court’s resolution of the PolyMet Permit to Mine Case.
District Court finds MPCA engaged in “procedural irregularities”
Judge John Guthmann issues an order, finding MPCA engaged in irregularities in procedure not found in the record. The case is returned to the Minnesota Court of Appeals.
Hearing held about “procedural irregularities” in the water permit held in Ramsey County
Judge John Guthmann presides over a week and half long hearing where former MPCA Commissioner John Linc Stine, former EPA Region 5 water permitting chief Kevin Pierard, and other MPCA employees testified regarding the permitting process.
EPA staff memorandum detailing problems with permit leaked to press by EPA employee union
After MPCA claimed that EPA agreed with the permit as issued, a 29-page memorandum from EPA permitting staff was leaked to the Star Tribune by the union representing EPA employees at the Region 5 office. The memo shows that days before the permit was issued, staff raised numerous concerns about the permit that MPCA never addressed.
Minnesota Court of Appeals grants motion to transfer case to Ramsey County District Court
For the second time ever, the Minnesota Court of Appeals approved a motion to send the case to the District Court to determine if “procedural irregularities” occurred in the permitting process. The hearing will also determine whether documents or other information were improperly excluded from the public record on the permit decision. The Minnesota Court of Appeals particularly asked the District Court to investigate whether MPCA’s suppression of EPA concerns was irregular and resulted in information being improperly left out of the public record.
Minnesota Legislative Auditor and U.S. EPA Inspector General began separate investigations into the suppression of EPA concerns
MCEA supports motion to transfer case to District Court to investigate suppression of EPA concerns
After evidence that the EPA had raised concerns about the water permit comes to light, MCEA and other appellants ask the Court of Appeals to transfer the case to a lower court to investigate.
MCEA and our clients, Fond du Lac Band of Lake Superior Chippewa, and WaterLegacy appealed MPCA’s decision to give PolyMet a water pollution permit to the Minnesota Court of Appeals
PolyMet Water Pollution (NPDES) permit issued by MPCA
The Minnesota Pollution Control Agency issues the water pollution permit. EPA staff write a memo just days before issuing the permit outlining how the permit failed to resolve 23 concerns raised by staff about the permit. However, EPA Region 5 does not object to the permit and the memo is added to the EPA file.
MPCA and EPA staff hold a series of phone calls about EPA concerns about water pollution permit
The detailed written comment that would have been sent during the comment period is read over the phone to four MPCA employees, who either fail to take notes or discard the notes after the meeting. A series of phone calls about EPA concerns about the permit are held between April and September 2018.
MPCA asks EPA regional leaders to not file written comments on the draft water permit
MPCA Commissioner Stine calls EPA Region 5 Administrator Cathy Stepp to request that EPA not file written comments on the draft water pollution permit during the public comment period. Instead, MPCA and EPA negotiate an agreement to read EPA staff concerns to MPCA over the phone, after the public comment period is over. This maneuver prevented the public from having access to the written comments.