In re Contested Case Hearing Requests
| Decision Date | 24 January 2022 |
| Docket Number | A19-0112,A20-1385,A20-1271,A20-1380,A19-0124,A19-0118 |
| Parties | In the Matter of the Denial of Contested Case Hearing Requests and Issuance of National Pollutant Discharge Elimination System / State Disposal System Permit No. MN0071013 for the Proposed NorthMet Project St Louis County Hoyt Lakes and Babbitt Minnesota. |
| Court | Minnesota Court of Appeals |
This opinion is nonprecedential except as provided by Minn. R Civ. App. P. 136.01, subd. 1(c).
Minnesota Pollution Control Agency
Paula G. Maccabee, Just Change Law Offices, St. Paul, Minnesota (for relator WaterLegacy)
Elise L. Larson, Ann E. Cohen, Jay Eidsness, Minnesota Center for Environmental Advocacy, St. Paul, Minnesota; and
Evan A. Nelson, Margo S. Brownell, William Z. Pentelovitch, Maslon L.L.P., Minneapolis, Minnesota (for relators Minnesota Center for Environmental Advocacy, Center for Biological Diversity and Friends of the Boundary Waters Wilderness)
Sean Copeland, Fond du Lac Band of Lake Superior Chippewa Cloquet, Minnesota; and
Matthew L. Murdock (pro hac vice), Sonosky, Chambers, Sachse, Endreson & Perry, L.L.P., Washington, D.C. (for relator Fond du Lac Band of Lake Superior Chippewa)
Monte A. Mills, Aaron P. Knoll, Davida S. McGhee, Greene Espel P.L.L.P., Minneapolis, Minnesota; and
Jay C. Johnson (pro hac vice), Venable L.L.P., Washington, D.C. (for respondent Poly Met Mining, Inc.)
Richard E. Schwartz (pro hac vice), Holland & Hart L.L.P., Washington, D.C.; and
Bryson C. Smith (pro hac vice), Holland & Hart L.L.P., Jackson, Wyoming; and
Sarah M. Koniewicz, Holland & Hart L.L.P., Boulder, Colorado; and
Kenya C. Bodden, Thompson Coe, Cousins & Irons, L.L.P., St. Paul, Minnesota; and
Adonis A. Neblett, Minnesota Pollution Control Agency, St. Paul, Minnesota (for respondent Minnesota Pollution Control Agency)
Byron E. Starns, Joshua K. Poertner, Stinson L.L.P., Minneapolis, Minnesota (for amicus curiae MiningMinnesota)
Considered and decided by Johnson, Presiding Judge; Jesson, Judge; and Slieter, Judge.
Poly Met Mining, Inc., intends to build and operate a new mine in St. Louis County for the purpose of extracting nickel, copper, and platinum-group elements. Poly Met applied to the Minnesota Pollution Control Agency (PCA) for a permit that would allow it to discharge water from the mine's facilities. The PCA granted the permit, subject to numerous conditions.
In this matter, several non-profit organizations and one tribal band challenge the PCA's decision to issue the permit as well as various decisions related to the permit, such as decisions to not impose more restrictive conditions on Poly Met and to deny a contested-case hearing. We conclude that the PCA erred by not properly considering whether the federal Clean Water Act applies to any future discharges from Poly Met's facility to groundwater. But we conclude that there is no reversible error with respect to all other issues that have been raised by the parties. Therefore, we affirm in part, reverse in part, and remand to the PCA for a determination as to whether any discharges by Poly Met to groundwater are governed by the Clean Water Act.
Poly Met is in the process of planning a new mine known as the NorthMet project. The project includes a mine site, which now is a relatively undisturbed parcel of land approximately six miles south of the city of Babbitt. The project also includes a former taconite-processing plant, where mined ore will be processed, which is approximately six miles north of the city of Hoyt Lakes. And the project includes infrastructure updates to a transportation corridor that will connect the mine site and the plant site.
The NorthMet project is designed such that wastewater from mining and processing operations will be collected and treated by a wastewater-treatment system at the plant site and then routed to a flotation-tailings basin, which will be built on top of a former taconite-tailings basin. Water that seeps from the tailings basin will be captured, treated, and discharged to the headwater wetlands of three creeks: Unnamed Creek, Trimble Creek, and Second Creek. Those three creeks flow to the Embarrass River and the Partridge River, both of which flow to the St. Louis River, which flows into Lake Superior.
Because it will require numerous federal and state permits, the NorthMet project was the subject of environmental review by the federal and state governments. A final environmental-impact statement (FEIS) for the project was jointly prepared by the United States Army Corps of Engineers, the United States Forest Service, and the Minnesota Department of Natural Resources (DNR), with assistance from the PCA. The United States Environmental Protection Agency (EPA) participated as a cooperating agency and submitted comments on a draft of the FEIS. In March 2016, the DNR determined that the FEIS was adequate. No appeal was taken from that decision. Poly Met thereafter proceeded to seek the permits necessary to complete the NorthMet project.
In July 2016, Poly Met submitted an application to the PCA for a National Pollutant Discharge Elimination System and State Disposal System (NPDES/SDS) permit for the NorthMet project. Poly Met submitted updates to its application in November 2016 and October 2017. In mid-January 2018, the PCA provided a pre-public-notice version of a draft permit to the EPA and to interested Indian tribes. Two weeks later, the PCA provided public notice of a draft permit and allowed members of the public to submit comments until March 16, 2018. During the public-comment period, the PCA received 686 submissions and four petitions for a contested-case hearing. On December 20, 2018, the PCA issued a written decision in which it denied the petitions for a contested-case hearing and authorized issuance of an NPDES/SDS permit for the NorthMet project.
In January 2019, three petitions for writs of certiorari were filed with this court to challenge the PCA's issuance of the NPDES/SDS permit. In case number A19-0112, the petition was jointly filed by the Minnesota Center for Environmental Advocacy, the Center for Biological Diversity, and the Friends of the Boundary Waters Wilderness (whom we shall collectively identify hereinafter as MCEA). In case number A19-0118, the petition was filed by WaterLegacy. And in case number A19-0124, the petition was filed by the Fond du Lac Band of Lake Superior Chippewa. In January 2019, this court consolidated the three certiorari appeals.
In May 2019, WaterLegacy filed a motion in this court for a transfer to district court for an inquiry into certain alleged procedural irregularities. In June 2019, this court granted the motion and transferred the matter, for limited purposes, to the Ramsey County District Court. The district court issued an order in September 2020. All of the relators filed notices of appeal to challenge the district court's order, and the PCA filed a notice of related appeal.
In November 2020, this court consolidated the three direct appeals with the three certiorari appeals. The parties thereafter filed their respective appellate briefs, and the court heard oral arguments in October 2021.
We begin by identifying the laws that provide the basic framework of our analysis.
The federal Clean Water Act (CWA) prohibits the discharge of any pollutant without a permit. See 33 U.S.C §§ 1311, 1342 (2018). The discharge of a pollutant occurs if there is "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12) (2018). A point source is defined by statute to mean "any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged." Id., § 1362(14). The CWA has long been understood to apply to "virtually all surface waters in the country." International Paper Co. v. Ouellette, 479 U.S. 481, 486 (1987). The United States Supreme Court recently clarified that the CWA also applies to discharges of pollutants from a point source to groundwater, if the discharge "is the functional equivalent of a direct discharge" to navigable waters. County of Maui v. Hawaii Wildlife Fund, 140 S.Ct. 1462, 1476 (2020).
An NPDES permit is one type of permit that may be issued under the CWA. See 33 U.S.C. § 1342. The CWA authorizes the issuance of NPDES permits by states with approved NPDES permit programs. 33 U.S.C. § 1342(b). Minnesota is such a state. See 39 Fed.Reg. 26061 (July 16, 1974). But the EPA retains an oversight role. See 33 U.S.C. § 1342(b). Unless the EPA has waived the requirement, a state must transmit to the EPA copies of all NPDES permit applications and must provide the EPA with notice of actions relating to such applications, including notice of proposed final permits. Id., § 1342(d)(1). The EPA may object to a proposed permit. Id., § 1342(d)(2). If the reasons for the objection are not resolved, the EPA may assume responsibility for issuing the permit. Id., § 1342(d)(4). The EPA also retains authority to enforce state-issued NPDES permits. Id., § 1342(i).
The PCA is the state agency charged with administering the state's NPDES permitting program in Minnesota. Minn. Stat. § 115.03, subd. 5 (2020). The PCA's administration of the program is governed by the CWA; the state Water Pollution Control Act, Minn. Stat. §§ 115.01-.09 (2020); applicable federal and state regulations; and a Memorandum of Agreement (MOA) with the EPA. The EPA and the PCA entered into the MOA in 1974, when the EPA approved Minnesota's NPDES permitting program. The MOA has subsequently been amended, most recently in 2000.
The PCA also is charged with administering the state disposal system (SDS) permitting program under state law. See Minn Stat. §§ 115.03, subd. 1(e), .07, subd....
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