PolyMet Litigation

Despite more than 114,000 public comments, most of which opposed the PolyMet copper-nickel mine and land exchange, state and federal agencies granted permits to PolyMet and approved the federal land exchange. WaterLegacy and our allies have been required to litigate to protect Minnesota’s natural resources, communities, and taxpayers.
Minnesota Judicial Center. Photo from MN.gov.

PolyMet Water Pollution Permit Appeal

The Minnesota Pollution Control Agency (MPCA) issued a combined National Pollutant Discharge Elimination System/State Disposal System (NPDES/SDS) permit to PolyMet on December 20, 2018 and denied petitions for contested case hearings on the permit.

WaterLegacy and our allies appealed MPCA’s decisions to the Minnesota Court of Appeals. Our appeal emphasized that the direct discharge of pollution from the PolyMet plant violated the Clean Water Act because there were no enforceable water quality-based limits on sulfate and toxic metals, including mercury. Untreated seepage from unlined PolyMet waste facilities, including tailings storage, was virtually unregulated by the permit.

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PolyMet Water Pollution Permit Scandal

One of the challenges in appeals from permit decisions is that courts tend to accord a great deal of deference to state agencies. In the case of the PolyMet water pollution permit, an MPCA permitting scandal may have changed this equation.

In March 2018, WaterLegacy heard that comments from the U.S. Environmental Protection Agency (EPA), usually a key part of the permit record, were not provided to MPCA. As WaterLegacy investigated through state Data Practices Act requests and Freedom of Information Act litigation, we learned something shocking. EPA had written comments that were harshly critical of the weak MPCA draft PolyMet water pollution permit. But those comments were suppressed at the request of the MPCA commissioner and assistant commissioner. Then, when EPA program staff read the comments over the phone to MPCA staff, the agency either destroyed or failed to disclose meeting notes documenting EPA’s harsh criticism.

On WaterLegacy’s motion, the Court of Appeals made an extraordinary ruling to send the PolyMet water pollution permit to district court to determine whether MPCA engaged in procedural “irregularities” in issuing the permit.

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PolyMet Permit to Mine and Dam Safety Permits Appeal

On November 1, 2018, the Minnesota Department of Natural Resources (DNR) approved the PolyMet permit to mine along with dam safety permits for tailings waste and hydrometallurgical waste. At the same time, DNR denied all requests for a contested case hearing on all issues.

On December 3, 2019, WaterLegacy appealed from DNR’s issuance of permits to PolyMet and from the denial of contested case hearings. Critical issues included DNR’s approval of an unsafe tailings dam, unproven methods to capture reactive waste drainage, and rejection of best available technology for tailings storage in favor of cheaper methods. WaterLegacy emphasized the need for a contested case hearing on these important factual issues and the need to hold multinational corporation Glencore responsible on the permit to mine.

On January 13, 2020, the Minnesota Court of Appeals reversed the DNR PolyMet permits, requiring contested case hearings and that the DNR impose a limited term of years on the permit to mine. PolyMet and DNR petitioned, and the Minnesota Supreme Court agreed to review the case.

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Federal Land Exchange Lawsuit

WaterLegacy’s first litigation regarding the PolyMet mine began in January 2017, when WaterLegacy filed a lawsuit in U.S. District Court in the District of Minnesota opposing the transfer of 6,650 acres of Superior National Forest land to PolyMet for its copper-nickel mine. One of the few hard limits in land exchange law pertains to the public receiving an equal exchange when land is transferred, and WaterLegacy’s lawsuit argued that the PolyMet Land Exchange gave PolyMet a “sweetheart deal” at the expense of taxpayers and users of public forest lands. After more than two years of motions and delays, the federal judge dismissed WaterLegacy’s claims, along with those of other plaintiffs, without prejudice. This means our cases can be filed again to challenge the Land Exchange.
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