Court of Appeals Orders Investigation of Minnesota Pollution Control Agency Irregular Procedures in PolyMet Permitting!
On June 25, 2019, the Minnesota Court of Appeals ordered the Minnesota Pollution Control Agency PolyMet permitting case be sent to district court to investigate irregularities in the permitting process that kept documents out of the record and may have affected the decision. The Court held,
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.
The transfer was based on a motion made by WaterLegacy with the support of the Fond du Lac Band of Lake Superior Chippewa. Retired EPA counsel, Jeffry Fowley, provided a critical expert declaration explaining the significance of the improper and bizarre process used to hide information criticizing the weak PolyMet permit from the public.
The AP story was picked up nationwide, including the Washington Post, stating:
WaterLegacy attorney Paula Maccabee pointed out that the district court has the power to issue subpoenas, place people under oath and allow lawyers to question witnesses.
“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.”
The Star Tribune explained,
The ruling is a huge win for conservation groups who challenged the water permit.
Pressure Intensifies for Investigation of Minnesota Pollution Control Agency Cover-up of PolyMet Permitting Criticism
As more and more information leaked out about U.S. Environmental Protection Agency (EPA) and Minnesota Pollution Control Agency (MPCA) efforts to keep criticism of the weak PolyMet permit hidden from the public and the Courts, first the Timberjay and then the Star Tribune called for an investigation.
On June 19, the Timberjay wrote:
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.
On June 21, the Star Tribune wrote:
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.
State Representative Rick Hansen, the chairs of the Legislative Audit Commission as well as 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.
EPA Union Blows the Whistle on Minnesota Pollution Control Pressure to Block EPA Comments on PolyMet
On June 18, 2019, union representing Environmental Protection Agency Region 5 employees in Minnesota, the American Federation of Government Employees (AFGE) Local 704 released a leaked email showing apparent malfeasance in the PolyMet mine permit process.
The union media release explained:
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.”
Congresswoman Betty McCollum condemned the cover-up of PolyMet permit information:
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.
U.S. EPA Reveals Long-Suppressed Comments On Minnesota’s PolyMet Mine Water Pollution Permit
On June 12, 2019, the U.S. Environmental Protection Agency (EPA) finally released EPA comments highly critical of the water pollution permit prepared and issued by the Minnesota Pollution Control Agency (MPCA) for the controversial PolyMet project. WaterLegacy had sought these comments for more than a year, and had sued EPA under the Freedom of Information Act (FOIA) to secure these comments. These comments were released by EPA on the day that EPA briefs were due to respond to WaterLegacy’s legal complaint.
A Coordinated Cover-Up
In a press release issued by WaterLegacy, Advocacy Director and Legal Counsel Paula Maccabee explains the cover-up and the importance of the comments being made public:
“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.”
“Minnesotans concerned about preventing sulfide mining’s toxic pollution have achieved a huge victory. EPA’s devastating criticism of the PolyMet water pollution permit has finally seen the light of day, and EPA has now released comments on the PolyMet permit that had long been kept secret from the public. These comments reveal that EPA was highly critical of the draft PolyMet permit. In fact, EPA had concluded that the permit would violate the Clean Water Act since it had had no water quality-based limits on pollution. This major deficiency was never fixed by MPCA. The PolyMet water pollution permit was and still is weak and inadequate to protect Minnesota wetlands, rivers and lakes in the Lake Superior Basin.”
WaterLegacy’s chief legal counsel Paula Maccabee said the EPA comments present a portrait of top officials of two agencies charged with protecting the environment, apparently colluding to undermine efforts to enforce water quality protections. “You can see why they were holding them back,” said Maccabee. “EPA staff were clearly horrified that you would have a project this big without water quality-based effluent limits. These are not mild recommendations. They’re telling the MPCA they need to fix this. But they didn’t fix it. Instead, they hid it.”
But in a brief filed Wednesday in the appeals court case, the MPCA acknowledged it had come to an agreement with the EPA “that EPA would provide oral [rather than written] comments to MPCA.” The documents EPA released Thursday show that EPA staff had significant concerns about the permit. EPA scientists were especially concerned that it failed to include specific limits on the amount of pollutants the mine can discharge, — known as “water quality-based effluent limits” — which are put in place to ensure that projects can meet federal environmental standards.
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.”
Shortly after the public comment period for the MPCA’s PolyMet water pollution permit closed on March 16, 2018, WaterLegacy learned second-hand that something irregular had happened during the process of EPA regulatory oversight. WaterLegacy learned that EPA hadn’t submitted its written comments, even though EPA professionals were very concerned that the PolyMet permit would fail to protect Minnesota waters.
Since March 2018, WaterLegacy submitted five Data Practices Act requests for these hidden comments and any notes taken by MPCA about these comments and also filed two Freedom of Information Act (FOIA) requests to the EPA.
WaterLegacy was not alone in efforts to protect the integrity of the regulatory process from EPA and MPCA irregularities. Jeffry Fowley, a retired lawyer with the EPA conducted an investigation and learned what had happened behind the scene. Both Mr. Fowley and the Fond du Lac Band of Lake Superior Chippewa asked for an EPA Office of Inspector General investigation of the irregular procedures in suppressing EPA’s comments on the PolyMet permit.
On Tuesday, January 15, 2019, WaterLegacy and Fond du Lac urged Cong. Betty McCollum and other House Committee Chairs to investigate new evidence that the U.S. Environmental Protection Agency (EPA) suppressed staff comments and failed to fulfill its oversight duties related to Minnesota’s controversial PolyMet NorthMet copper-‐nickel mine.
Citing documents recently obtained by WaterLegacy under Minnesota’s Data Practices Act, WaterLegacy Advocacy Director and Counsel, Paula Maccabee stated, “It seems that EPA regional staff prepared written comments on the draft PolyMet water pollution permit and wanted to share them with Minnesota regulators, but were directed to suppress their comments. We’re now asking that Congressional leaders get to the bottom of this mess and protect Minnesota’s clean water and public health.”
“EPA scrutiny is essential to make sure that large industrial projects control their toxic water pollution,” added Maccabee. “In the case of Minnesota’s controversial PolyMet sulfide mine, there has been a complete breakdown of EPA’s vital oversight role.”
February 25, 2019: Cong. McCollum Formally Requests Release of EPA Comments on PolyMet
“Sulfide-ore mining has the potential to significantly impact water quality, which is why such an extensive and public permitting process exists. 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.”
Finally, WaterLegacy engaged a non-profit law firm to file suit in the District of Columbia under the FOIA. WaterLegacy also filed a motion with the Minnesota Court of Appeals to find out what role MPCA had played in the cover-up of EPA criticism of the PolyMet permit.
During this process, EPA confidential sources disclosed that MPCA had taken notes when EPA comments about the PolyMet mine were read aloud, and that MPCA had asked EPA not to send its written comments to the agency. MPCA has admitted that staff took notes when the EPA comments were read aloud to them, but then destroyed their own notes.