In re Contested Case Hearing Requests & Issuance of Nat'l Pollutant Discharge Elimination Sys.
| Docket Number | A19-0112,A19-0118,A19-0124,A20-1271,A20-1380,A20-1385 |
| Decision Date | 02 August 2023 |
| 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 Supreme Court |
Office of Appellate Courts
Joy R Anderson, Ann E. Cohen, Minnesota Center for Environmental Advocacy, Saint Paul, Minnesota; and
William Z. Pentelovitch, Margo S. Brownell, Evan A. Nelson Maslon LLP, Minneapolis, Minnesota, for appellants Minnesota Center for Environmental Advocacy, Center for Biological Diversity, and Friends of the Boundary Waters Wilderness.
Paula Goodman Maccabee, Just Change Law Offices, Saint Paul Minnesota, for appellant WaterLegacy. Sean Copeland, Tribal Attorney, Fond du Lac Band of Lake Superior Chippewa, Cloquet, Minnesota; and
Matthew L. Murdock, Sonosky, Chambers, Sachse, Endreson &Perry, LLP, Washington, D.C., for appellant Fond du Lac Band of Lake Superior Chippewa.
Richard E. Schwartz, Bryson C. Smith, Sarah M. Koniewicz, Holland &Hart LLP, Washington, D.C.; Adonis A. Neblett, Minnesota Pollution Control Agency, Saint Paul, Minnesota; and
Kenya C. Bodden, Thompson Coe, Saint Paul, Minnesota, for respondent Minnesota Pollution Control Agency.
Monte A. Mills, Aaron P. Knoll, Greene Espel PLLP, Minneapolis, Minnesota; and
Kathryn Kusske Floyd, Jay C. Johnson, Venable LLP, Washington, D.C., for respondent Poly Met Mining, Inc.
David Schultz, Mehmet K. Konar-Steenberg, Saint Paul, Minnesota, for amici curiae Administrative Law Professors.
Adam W. Hansen, Apollo Law LLC, Minneapolis, Minnesota, for amicus curiae The American Federation of Government Employees Local 704.
Byron E. Starns, Claire M. Williams, Joshua K. Poertner, Stinson LLP, Minneapolis, Minnesota, for amici curiae MiningMinnesota and Minnesota State Building and Construction Trades Council.
Karuna Ojanen, Ojanen Law Office, Rochester, Minnesota, for amicus curiae Minnesota Well Owners Organization.
Hudson B. Kingston, Kevin H. Bell, Silver Spring, Maryland, for amicus curiae Public Employees for Environmental Responsibility.
Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis, Minnesota, for amici curiae Public Record Media and The Minnesota Coalition on Government Information.
1. Because the decision of the Minnesota Pollution Control Agency (MPCA) to issue a National Pollutant Discharge Elimination System/State Disposal System permit was arbitrary and capricious due to the presence of several danger signals suggesting the agency did not adequately consider whether the NorthMet project has the reasonable potential to cause or contribute to an exceedance of water quality standards within the Lake Superior watershed, and because appellants may have been prejudiced by the arbitrary and capricious permitting process, we remand to the MPCA to remedy the procedural irregularities and resulting deficiencies in the administrative record.
2. Because the National Pollutant Discharge Elimination System/State Disposal System permit does not comply with Minn. R. 7060.0600, subp. 2 (2021), which prohibits the discharge of industrial waste to the groundwater "unsaturated zone," we remand the permit to the MPCA for consideration of whether a variance under Minn. R. 7060.0900 (2021) is appropriate for the pollution of unsaturated groundwater within a containment system for the NorthMet project; we affirm, however, that the prohibition in Minn. R. 7060.0600, subp. 1 (2021), on injecting polluted water directly to the groundwater saturated zone for long-term storage, does not apply.
Affirmed in part, reversed in part, and remanded to the Minnesota Pollution Control Agency.
Respondent Poly Met Mining, Inc. (PolyMet)[1] proposes to develop a mine and processing plant to extract copper, nickel, and precious metals from the NorthMet Deposit in northeastern Minnesota. These consolidated appeals arise from the decision of respondent Minnesota Pollution Control Agency (MPCA) to issue a water quality permit for the NorthMet project-a combined National Pollutant Discharge Elimination System/State Disposal System permit (NPDES/SDS). The permit would regulate the point source discharges of wastewater within the Lake Superior watershed. The court of appeals has already reversed and remanded to the MPCA for it to do further analysis on one issue-a remand order for which neither PolyMet nor the MPCA sought further review and is therefore not before our court. Instead, what is before us is the appeal from environmental groups and a tribal band challenging those parts of the permit that the court of appeals affirmed, in which they argue that the court of appeals' reversal and remand order should have gone farther in scope.
Appellants are environmental groups and a tribal band that filed three separate certiorari appeals in the court of appeals opposing the permit: (1) Minnesota Center for Environmental Advocacy, Center for Biological Diversity, and Friends of the Boundary Waters Wilderness (collectively, MCEA); (2) WaterLegacy; and (3) Fond du Lac Band of Lake Superior Chippewa (the Band).
Appellants challenged the decision of the MPCA to issue the permit as well as various decisions related to the permit, including decisions to not impose more restrictive conditions on the NorthMet project. While the certiorari petitions were pending, the court of appeals granted the motion of WaterLegacy to transfer this matter to Ramsey County District Court to conduct an evidentiary hearing regarding "alleged irregularities in procedure" under the Minnesota Administrative Procedure Act, Minn. Stat. § 14.68 (2022). Specifically, WaterLegacy alleged in its motion for transfer that the MPCA and the federal Environmental Protection Agency (EPA) had "developed a plan to keep EPA criticism of the NorthMet permit out of the public record." After authorizing limited discovery, the district court conducted an evidentiary hearing and issued findings of fact and conclusions of law. The appellants here filed three separate appeals of the district court order, and the MPCA filed a notice of related appeal.
After consolidating all six appeals, the court of appeals affirmed in part and reversed in part the decision of the MPCA. In re Denial of Contested Case Hearing Requests &Issuance of NPDES/SDS Permit No. MN0071013, Nos. A19-0112, A19-0118, A19-0124, A20-1271, A20-1380, A20-1385, 2022 WL 200338, at *1 (Minn.App. Jan. 24, 2022), rev. granted (Minn. Apr. 19, 2022). The court of appeals concluded that the MPCA "erred by not properly considering whether the federal Clean Water Act applies to any future discharges from Poly Met's facility to groundwater." Id. But the court of appeals concluded that "there is no reversible error" with respect to the other issues that appellants raised. Id. The court of appeals remanded to the MPCA "for a determination as to whether any discharges by Poly Met to groundwater are governed by the Clean Water Act." Id.
Neither PolyMet nor the MPCA petitioned our court for review of the court of appeals' remand order; only the MCEA, WaterLegacy, and the Band petitioned this court for review on other issues. We granted their petitions for further review, which raise three primary issues: (1) whether the permit must be reversed or remanded because the permitting process was arbitrary or capricious or otherwise procedurally improper; (2) whether the MPCA erred by issuing a permit that did not include water quality-based effluent limitations (WQBELs); and (3) whether the permit complies with a Minnesota rule addressing wastewater discharges to groundwater, Minn. R. 7060.0600 (2021), as required by law under certain circumstances. On the issue of the permitting process, we conclude there are danger signals suggesting that the MPCA did not take a hard look at whether the permit complies with the Clean Water Act (CWA) and that the MPCA did not genuinely engage in reasoned decision-making in dealing with concerns that were raised by the EPA. We therefore conclude that the action taken by the MPCA in issuing the permit was arbitrary and capricious and remand to the MPCA for further proceedings. Because of our remand on the first issue, we address only in passing the WQBELs requirement, for which the MPCA must create an adequate record of its analysis on remand. Finally, on the groundwater issue, we conclude that part of the groundwater rules prohibits the pollution of groundwater in the unsaturated zone within a containment system. We therefore remand to the MPCA for consideration of whether a variance is available to allow the planned discharge to the unsaturated zone within the containment system. For a different part of the rule, we conclude that the prohibition on injecting polluted water directly to the groundwater saturated zone for long-term storage does not apply here.
The NorthMet Project.
These appeals involve the water quality permits needed for PolyMet's NorthMet project-the first copper-nickel mine in Minnesota. The proposed project includes a mine site, a plant site, and transportation and utility corridors. The mine site is located 6 miles south of Babbitt, at the former site of a taconite processing facility. The mine site will be connected by transportation and utility corridors to the plant site, which is located 6 miles north of Hoyt Lakes. Mining will be conducted in three open pits, and ore will be transported to the plant site by rail for processing.
These appeals involve the plans of PolyMet for the collection and treatment of...
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