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.
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. The PolyMet permit scandal includes the following:
- EPA’s highly-critical comments on the draft PolyMet permit were withheld and hidden from the public and the courts because the MPCA repeatedly lobbied EPA political appointees to suppress EPA’s comments.
- MPCA deleted emails showing its repeated requests to EPA political appointees to suppress EPA’s comments on the draft PolyMet permit.
- MPCA destroyed or withheld all of the notes its staff had taken when EPA’s NPDES program chief read EPA’s comments on the draft PolyMet permit aloud to MPCA staff.
- MPCA then covered up its role in preventing EPA from sending its comments, along with the substance of EPA’s comments.
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. The odor of the MPCA’s PolyMet permit scandal taints Minnesota’s PolyMet permit decisions.
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.
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: