PolyMet Permit Scandal
What is the PolyMet permit scandal?
When the comment period for the draft PolyMet NPDES/SDS water pollution permit issued by the Minnesota Pollution Control Agency (MPCA) came to a close on March 16, 2018, WaterLegacy and tribal staff heard from confidential sources that there was something unusual about this permitting process. For some reason, even though the U.S. Environmental Protection Agency (EPA) had been critical of the PolyMet mine for more than eight years, EPA had submitted no comments on the draft PolyMet permit.
By early 2019, notes received by WaterLegacy from MPCA files and confidential source information indicated that EPA had prepared written comments on the draft PolyMet water pollution permit, but had suppressed them at MPCA’s request. The comments had been read aloud to MPCA, but notes reflecting that fact were hidden or destroyed. Since EPA is the agency responsible for oversight of NPDES permits under the federal Clean Water Act, EPA’s comments are important in permitting as well as for the appeals WaterLegacy and our allies had filed.
By May 2019, briefing deadlines were approaching, and neither Congresswoman Betty McCollum’s requests nor a Freedom of Information Act (FOIA) lawsuit in Washington, D.C. district court had produced EPA’s comments. On May 17, 2019, WaterLegacy asked the Minnesota Court of Appeals either to delay the case until EPA’s comments were produced or to transfer the case to district court (a procedure that had only been used one other time in Minnesota’s history) to investigate whether irregular procedures had affected MPCA’s PolyMet water pollution permit decision.
The Minnesota Court of Appeals transferred the PolyMet water pollution permit cases to the district court on June 25, 2019. A hearing was held in district court in January 2020.
On September 3, 2020, District Court Judge John Guthmann issued his Findings, Conclusions and Order. He adopted as findings many facts proposed by WaterLegacy, including:
- MPCA knew EPA intended to send written comments on the deficiencies of the draft PolyMet permit (Comments).
- MPCA asked the EPA to withhold its Comments.
- When EPA professional staff did not agree to withhold their comments, MPCA Commissioner John Linc Stine and Assistant Commissioner Shannon Lotthammer lobbied Region 5 political appointees who blocked EPA’s Comments.
- MPCA’s request to EPA was completely unprecedented.
- Although EPA read its Comments to MPCA on the phone, neither MPCA’s records from this phone conference nor any MPCA responses to EPA’s Comments were included in the public record.
Judge Guthmann also found – for the first time in Minnesota history – that MPCA’s actions in issuing the PolyMet water pollution permit included “irregularities in procedure” in destroying notes and official records.
“The judge found that the MPCA’s action in “destroying exhibits 58 and 333 was an irregularity in procedure not shown in the record.” These destroyed exhibits were e-mails from Commissioner Stine and Assistant Commissioner Lotthammer. They are the “smoking guns” that prove the MPCA asked EPA political appointees to withhold EPA’s written comments on the draft PolyMet permit.
READ perspectives on the District Court’s decision in WaterLegacy’s Star Tribune Commentary “PolyMet permit: Secrecy, manipulation and a low bar for Minnesota agencies.”
Not only did the District Court find irregularities in the MPCA’s permitting procedure, but on April 21, 2021, the EPA Office of Inspector General (OIG) issued a report concluding that EPA’s failure to provide written comments to Minnesota on the PolyMet permit “contrary to the region’s standard operating procedures and per common EPA practice.
Why do MPCA’s procedural irregularities matter?
The revelation of MPCA’s PolyMet permit scandal has changed everything. An NPDES permit issued by Minnesota must comply with the Clean Water Act. EPA’s strong criticism of the PolyMet water pollution permit is vital evidence that this PolyMet permit violates federal law.
When a permit decision is appealed, courts evaluate whether an agency acted reasonably and relied on evidence or whether a decision was affected by bias or political will. In the PolyMet permit case, MPCA not only campaigned to get EPA not to send its comments, but then deleted its emails and destroyed evidence. Several “smoking guns” were only obtained from EPA under the FOIA. MPCA’s PolyMet permit scandal tainted MPCA’s PolyMet permit decisions and resulted in a final permit that did not resolve EPA’s criticism, violated the Clean Water Act and failed to protect clean water or downstream communities..
How did the permit scandal come to light?
Starting on March 26, 2018, WaterLegacy submitted seven Minnesota Government Data Practices Act (DPA) requests to get documents from the MPCA and nine federal Freedom of Information Act (FOIA) requests to get EPA documents; we also filed two FOIA lawsuits in Washington, D.C. federal court. In addition, whistleblowers at EPA spoke with investigators and former colleagues, the EPA union leaked documents, and both the Fond du Lac Band and a retired EPA attorney publicly called for a federal investigation.
Aug. 6, 2019
Court of Appeals suspends PolyMet (NPDES/SDS) Water Pollution Permit.
Jan. 21-29, 2020
Ramsey County District Court holds investigatory hearing on allegations that PolyMet water pollution permit was issued with irregular procedures.
Sept. 3, 2020
District Court concludes that MPCA actions were procedural irregularities not shown in the administrative record and makes findings that MPCA asked EPA to withhold EPA’s comments on the draft PolyMet permit.
Apr. 21, 2021
The EPA Office of Inspector General (OIG) released a report that EPA Region 5 did not follow standard procedures for the PolyMet permitting process.
Critical Events that Created Pressure to Investigate:
Jan. 15, 2019
WaterLegacy urges Congresswoman Betty McCollum and other House Committee Chairs to Investigate, citing evidence that EPA suppressed comments on Minnesota’s controversial PolyMet NorthMet copper-‐nickel mine.
Feb. 25, 2019
Congresswoman Betty McCollum Requests Release of EPA Comments, saying,
If the qualified, expert EPA scientists and professional staff prepared comments outlining any concerns regarding these permits, then the American people have the right to know. In the interests of transparency and maintaining the public’s trust, I’m requesting that EPA immediately make available to the public the written comments prepared on the PolyMet mining project’s permit.
June 12, 2019
EPA Reveals Long-Suppressed Comments to WaterLegacy.
On June 12, 2019, to settle the FOIA lawsuit brought by WaterLegacy, on the day its briefs were due, EPA finally released its written comments criticizing the draft PolyMet permit. EPA’s comments said:
[T]he permit does not include WQBELs [water quality-based effluent limitations] for key parameters and appears to authorize discharges that would exceed Minnesota’s federally-approved human health and/or aquatic life water quality standards for mercury, copper, arsenic, cadmium, and zinc.
June 13, 2019
Media Coverage of Newly-Released EPA Comments on PolyMet Permit.
From what we have learned, it is clear that both EPA and MPCA engaged in highly irregular procedures to keep EPA’s criticism of a weak PolyMet permit hidden and benefit PolyMet at the expense of the Minnesota public. Only through the combined efforts of WaterLegacy, the Fond du Lac Band, Congresswoman McCollum, a retired EPA lawyer, and professional EPA staff who confidentially shared information, was EPA’s devastating assessment of failure to control PolyMet pollution brought to light.
June 14, 2019
June 18, 2019
“By asking EPA to submit its comments after the public comment period, in whatever form, MPCA was attempting to suppress those comments from public review,” said Cantello. “This suppression is completely inappropriate and allowed those comments to remain secret.”
June 20, 2019
StarTribune Reports Congresswoman Betty McCollum’s Condemnation of the PolyMet Permit Cover-up.
June 21, 2019
Star Tribune editorial:
Steve Sack Star Tribune Editorial Cartoon (June 23, 2019)
June 24, 2019
June 25, 2019
Court of Appeals Orders Transfer to District Court to Determine MPCA Irregular Procedures in PolyMet Permitting!
On June 25, 2019, the Minnesota Court of Appeals transferred appeals from the MPCA’s issuance of the PolyMet water pollution permit to district court to investigate irregularities in the permitting process:
WaterLegacy Explains the Implications of the Court of Appeals Order: