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 has led to unprecedented investigations into the MPCA’s conduct. Currently, there are three separate investigations into the MPCA’s efforts to prevent EPA employees from entering their concerns about the water permit into the public record. At the federal level, the EPA’s independent Office of the Inspector General is investigating the PolyMet water permit as part of a nationwide review of EPA comments on water permits. At the state level, the independent Office of the Legislative Auditor is investigating, and the Ramsey County District Court held an unprecedented hearing into the matter in January and February 2020. A ruling and order from the District Court is expected in Summer 2020. After the District Court rules on the suppression of the EPA’s concerns, the case will go back to the Minnesota Court of Appeals.
Key Timeline Events
Ruling and order expected from Ramsey County District Court regarding irregularities in MPCA’s conduct and the permit record
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.