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Minnesota Supreme Court to take up PolyMet water permit case

A judge had previously said the Minnesota Pollution Control Agency broke no laws or procedures by asking the U.S. Environmental Protect Agency to keep comments on the permit private.

PolyMet
Plans for PolyMet include building dams to increase the storage capacity of tailings basins. One would be built in the distance to raise the basin on the right to the level of the area on the left.
Steve Kuchera / 2017 file / Duluth News Tribune
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DULUTH — The Minnesota Supreme Court will take up a PolyMet case challenging the proposed copper-nickel mine's water permit.

The court granted petitions Tuesday from the Fond du Lac Band of Lake Superior Chippewa, WaterLegacy and the Minnesota Center for Environmental Advocacy asking it to reconsider a January decision by the Minnesota Court of Appeals affirming a 2020 decision by a state district court judge who said the Minnesota Pollution Control Agency broke no laws or procedures by asking the Environmental Protection Agency to keep comments on the permit private. The judge in that case said keeping the comments from the public was made to avoid “bad press.”

The affected permit, PolyMet’s national pollutant discharge elimination system, or NPDES, permit, regulates water discharged from industrial activities.

Paula Maccabee, counsel and advocacy director of WaterLegacy, said the Supreme Court taking up the case was “good news” and said her organization would argue that the permit should have used effluent limits, which apply at the point where dilution may occur, instead of operating limits, which are measured prior to discharge and don’t require dilution, on mercury and other pollutants. A leaked EPA memo from 2018 expressed concern that operating limits were less enforceable than effluent limits.

“In addition, we will argue that the MPCA’s illegal destruction of official records and irregular circumvention of federal and state law in order to keep U.S. Environmental Protection Agency comments on the PolyMet permit hidden from the public require reversal of the PolyMet water pollution permit,” Maccabee said in a statement.

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PolyMet believes the court will reaffirm the earlier decision.

“We believe that on review the Supreme Court will affirm the Court of Appeals’ carefully reasoned decision,” spokesperson Bruce Richardson said in an emailed statement.

The MPCA did not respond to the News Tribune’s requests for comment.

PolyMet is hoping to open Minnesota's first copper-nickel mine near Babbitt and Hoyt Lakes. Supporters say the project would bring much-needed jobs to the region and can be done in an environmentally safe way, but environmental groups fear it could pollute waterways.

The Supreme Court on Tuesday also granted requests from the American Federation of Government Employees Local 704 , Public Employees for Environmental Responsibility, Public Records Media, Minnesota Coalition on Government Information, Minnesota Well Owners Organization and two administrative law professors to file amicus curiae, or “friends of the court,” briefs in the case.

“An amicus curiae brief that brings to the attention of the court relevant matter not already brought to its attention by the parties may be of considerable help to the court,” the court said in Tuesday’s order.

In 2019, AFGE Local 704, which represents many of the Midwest employees of the EPA, said it learned from a whistleblower that comments by the EPA Region 5 office made on the draft NPDES permit were left out of the public record.

A separate EPA’s Office of Inspector General in April 2021 said the federal agency failed to follow its own procedures by reading the comments over the phone to the MPCA instead of in writing, which kept the comments, including concerns, private.

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The Court of Appeals' January decision on the NPDES permit also sent it back to the MPCA to determine whether any releases to groundwater should be federally regulated.

Jimmy Lovrien covers energy, mining and the 8th Congressional District for the Duluth News Tribune. He can be reached at jlovrien@duluthnews.com or 218-723-5332.
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