Important issues before the Court of Appeals on PolyMet

Most readers will be familiar with the efforts of leadership of the Minnesota Pollution Control Agency to hide U.S. Environmental Protection Agency staff comments that identified substantial deficiencies in the water discharge permit that the MPCA proposed and ultimately issued to PolyMet Mining. The water discharge permit was issued in the closing days of the Dayton administration when John Linc Stine was the commissioner and Shannon Lotthammer was the assistant commissioner for water.

What many people don’t know, or don’t remember, is that this deceitful maneuver was actually the second act by the MPCA and its leadership.

Mercury levels in fish in the St. Louis River had been high, and higher than surrounding waters and watersheds, for a long time; it was an “area of concern,” an impaired watershed. The MPCA ostensibly wanted to find out why. (A person such as myself might be inclined to say that it is obvious because of all the mining that drains into the St. Louis, contributing both mercury and sulfates, as well as the mercury from coal-fired power plants which power the mines.) It is actually quite well known that microbes in aquatic systems can cause a chemical reaction between inorganic mercury and sulfates to form methylmercury, MeHg.

Back in 2004, the MPCA notified interested parties about a public meeting concerning the conduct of a Total Maximum Daily Load (TMDL) study for several pollutants in the St. Louis, the largest single tributary to Lake Superior. The meeting was canceled just before it was to occur.

According to later reporting in the Star Tribune, mining interests (and undoubtedly the Range legislators who love them) were given a private look at the MPCA’s TMDL study plans; environmentalists and the Fond du Lac Band — the St. Louis runs through its reservation — were not invited. Perhaps unsurprisingly, the plan languished for years.

As an aside, a TMDL is an attempt to calculate all of the sources, both point source and non-point source, of pollution with a view toward figuring out how to reduce the aggregate pollution of, say, mercury or sulfates, in a watershed. If you are a miner in the St. Louis watershed who wants to expand operations, or hopes to open a new mine, this is obviously bad news in an already impaired watershed. Under the Clean Water Act, existing pollution is supposed to be considered in any new permitting request. It is perhaps unnecessary to say that existing sulfate and mercury pollution were not considered in the MPCA’s water discharge permit to PolyMet.

In 2010, Barr Engineering – where Brad Moore, PolyMet’s VP for governmental affairs, worked for a time after leaving his post as the MPCA commissioner in early 2009, and before becoming an executive at PolyMet – sent a report on behalf of PolyMet to the DNR and the MPCA claiming that sulfates (from mining) do not contribute to the methylization of mercury. Methylmercury is the compound taken up in the flesh of fish. It is perhaps also unnecessary to say that Barr’s opinion was not universally accepted. But obviously, PolyMet could see where this was headed.

The scientists who work for the Fond du Lac Band objected strongly to the Barr study.

Later, the U.S. Environmental Protection Agency Region 5, back when it was actually interested in protecting the environment, offered assistance and some funding for a TMDL study for the St. Louis River watershed. In December of 2012, a contractor submitted a TMDL study proposal to collect data and develop a model for pollutants in the St. Louis River watershed and submitted it to Region 5 of the EPA. Collecting data is another term for gathering evidence. One of the parties who would be actually collecting the data was the MPCA.

This all collided with an initiative from the Minnesota DNR, largely funded by mining interests, trying to show that mercury and sulfates from mining had nothing to do with the fact that you could make thermometers out of the fish from the St. Louis River, and nothing to do with elevated mercury levels in infants along the North Shore, or the fact that wild rice beds were dying.

Well, there was lots of inter-agency backing and forthing, but the result was predictable, so the third unnecessary thing to tell you is that the MPCA, headed by Commissioner Stine, pulled out of the TMDL study in the spring of 2013. “The modeling is inadequate,” he said. I think what he was really worried about, though, was the data collection. You can subject data to a variety of models, but the underlying data are evidence. The data are data, not inference.

After that, there were some employees at the MPCA who wanted to continue to collect data about mercury and sulfate levels in the St. Louis River, but there was no money in the agency budget to do it. They applied for and got some Legacy money, about a quarter of what they requested, but it was spread over multiple streams, not just the St. Louis. It clearly wasn’t a priority of leadership at the MPCA. And the EPA’s grant was for a TMDL study, not “collecting data.” So the study was effectively shivved. And Stine and Lotthammer didn’t have to worry about a TMDL when they issued the water discharge permit to PolyMet.

This might remind you of the Interior Department’s cancellation of a mineral extraction study in the Superior National Forest just before it was completed, or even the NRA’s unalterable opposition to any research on gun violence. In each case, the opponents know and are afraid of what we’ll find.

On Oct. 23, the Minnesota Court of Appeals will have a hearing on important issues regarding the issued PolyMet permits. Does Glencore stand for the environmental liabilities for the mayhem that a copper sulfide mine will inevitably produce? (Glencore isn’t even a party to the actions before the court, since it currently is not a permittee, so there may not be anybody to speak on behalf of Glencore; don’t look to PolyMet to do it.) What about the proposed tailings dam, the type of which has failed multiple times in the last few years?

The Court of Appeals has already directed the Ramsey County District Court to make a record of the “permitting irregularities” by the MPCA on the water discharge permit. The discovery order by the district court is sadly inadequate. Among other things, it doesn’t provide for material discovery of documents or the depositions of persons whose names that have appeared here: John Linc Stine, Shannon Lotthammer, Brad Moore, representatives of Barr Engineering, and other leadership in the MPCA, and the DNR. Asking a few written questions of a couple of agency factotums isn’t going to get us anywhere.

The Court of Appeals must have cast about for a while to come up with the genteel term “permitting irregularities” to describe what happened in issuing the water discharge permit. These cases are not mere squabbling about agency decisions; they are about the basic honesty of the agencies and their fidelity to the public interest.

I think the Court of Appeals must send these cases back to the agencies with the direction to open contested cases, or alternatively, and probably better, direct the Ramsey County District Court to allow meaningful and plenary discovery on the permitting issue, tailings dam safety, and Glencore’s financial responsibility for the mine, now and decades and decades into the future.

Steve Timmer is retired after practicing law in the Twin Cities for over 40 years. His Twitter handle is @stevetimmer.

WANT TO ADD YOUR VOICE?

If you’re interested in joining the discussion, add your voice to the Comment section below — or consider writing a letter or a longer-form Community Voices commentary. (For more information about Community Voices, see our Submission Guidelines.)