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. 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

EPA Office of Inspector General Opens PolyMet Oversight Investigation.
In an interview Friday, Fowley, the former EPA attorney, accused both the EPA and the MPCA of a “coverup.” He said confidential sources told him that the EPA’s Region 5 staff were so frustrated about their unheeded concerns that they filed a memo Dec. 18 — just before the permit was issued — documenting the issues that had not been resolved. Fowley said the memo contained sufficient information to justify an EPA objection to the permit. Fowley characterized PolyMet’s permit as weak, and “an end run around the . . . requirements of the Clean Water Act.”

June 18, 2019

Union Representing EPA Region 5 employees in Minnesota, AFGE Local 704 Leaks Key Asst. Commissioner Lotthammer Email, explaining:
An email from then-Minnesota Pollution Control Agency Assistant Commissioner Shannon Lotthammer to EPA Region 5 Chief of Staff Kurt Thiede shows that MPCA pressured EPA to delay the submission of comments on the PolyMet permit, even though those comments, if submitted, were legally required to be published during the public comment period. The email was provided to AFGE 704 anonymously by an apparent whistleblower.

“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.

“This e-mail communication appears to represent an absolutely intolerable breach of the public trust by two regulatory agencies. The public has every right to question whether the PolyMet permitting process was rigged against the legitimate environmental and public health interests of Minnesotans.”

June 21, 2019

Timberjay editorial:

Let’s make no bones about it— this appears to be a significant state agency scandal suggesting intentional malfeasance by top officials in the MPCA. Failure to investigate how this happened would seriously undermine the public’s confidence in state environmental regulators . . . If critical comments from fellow agencies with considerable expertise are simply deep-sixed in order to keep the courts from getting a look at them, judicial review loses all meaning and purpose. “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.”

Star Tribune editorial:

Copper mining brings both economic opportunity and environmental risks, especially from acid runoff. Minnesotans must have confidence in the state’s ability to regulate this new industry. The questions about PolyMet sow doubts not just about this mining proposal but about others to come. A hearing will be crucial to shoring up public trust.

Steve Sack Star Tribune Editorial Cartoon (June 23, 2019)

June 24, 2019

State Representative Rick Hansen, the chair of the Minnesota Legislative Audit Commission and the House’s Environment and Natural Resources Finance Division, called for an investigation by the Legislative Auditor, and an assessment to determine the need and scope of a full audit was initiated on 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:

We conclude that [WaterLegacy] has provided substantial evidence of procedural irregularities not shown in the administrative record, and thus that it is appropriate to transfer this matter to district court for a hearing and determination of the alleged irregularities.

WaterLegacy Explains the Implications of the Court of Appeals Order:

“What this means is the courts are making sure that the permitting process has integrity,” Maccabee said. “And there will be an opportunity for the district court to find out the truth, and make sure the public knows the truth, and make sure that Minnesota doesn’t issue PolyMet a weak permit that fails to protect the environment and human health.”