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EPA releases long-sought comments on PolyMet permit

File photo courtesy of the Timberjay
New questions are being raised about the adequacy of the water discharge permit for PolyMet following the release of comments from EPA staff that raised doubts about the compliance of the permit with federal law. The case is currently in litigation.

This article was published in The Timberjay on Wednesday and is republished with permission. The Timberjay newspapers (Ely, Tower-Soudan and Cook-Orr), serve northern St. Louis County.

After months of stonewalling, the federal Environmental Protection Agency has released staff comments that the agency had prepared for the state-issued water quality permit for PolyMet Mining. The release came on the same day that the agency was required to respond to a lawsuit over access to the comments, filed by Water Legacy and other environmental organizations.

The comments are potentially devastating to efforts by the Minnesota Pollution Control Agency to defend the water quality permit they issued to PolyMet late last year. That permit has been the subject of ongoing litigation by tribal governments and environmental groups.

They also raise serious questions about statements made by the MPCA in its own legal responses to the case and about allegations from a retired EPA lawyer, Jeffry Fowley, who filed a declaration with the court last week alleging that top officials with the MPCA had urged the Trump-appointed director of the EPA’s Great Lakes regional office to suppress comments generated by the agency’s own staff. Rather than submit the written comments, EPA officials, in April 2018, read some of their concerns over the phone to MPCA staff, but the MPCA never responded to those comments, as is required, prior to issuing the permit. Nor does it appear that the agency made changes in the permit to address concerns raised by the EPA.

The Timberjay has previously reported on some of Fowley’s allegations, which he submitted earlier this year to the EPA’s Office of Inspector General. Fowley, who spent more than 35 years with the EPA overseeing national water discharge and hazardous waste permitting before retiring in 2017, put his concerns in a sworn declaration to the court as part of Water Legacy’s latest filing.

Apparent push to suppress

MPCA officials, based on previous communication with the EPA, were almost certainly aware that the federal agency staff harbored serious reservations about the PolyMet water discharge permit, including a belief that it failed to comply with federal law and was likely unenforceable. And MPCA officials were apparently hoping that suppressing those concerns would help the state agency defend the permit against a likely legal challenge.

The detailed EPA comments, encompassed in a seven-page, single-spaced letter, which the EPA released late on Wednesday, June 12, are technical in nature, but the meaning is clear — and they will almost certainly pose a major legal and political complication for the MPCA.

“The draft permit does not include water quality-based effluent limitations (WQBEL)s for pH or any other conditions that are as stringent as necessary to ensure compliance with the applicable water quality requirements of Minnesota, or of all affected States,” states the EPA letter, prepared and submitted by Kevin Pierard, chief of the EPA’s water quality permitting branch. “Furthermore, the permit includes technology based effluent limitations (TBELs) that are up to a thousand times greater than applicable water quality standards.”

The EPA also found that the draft permit does not include “all the requirements” of federal laws “that apply to this project, including a restriction on discharge volume that is in conformance with [federal law].”

The EPA also raised concerns about the enforceability of the permit issued by the MPCA. “For example, the permit as written may preclude enforcement per [the Clean Water Act] for pollutants disclosed during the application process but for which there are no limitations, or for water quality standards excursions where the limitation provided in the permit appears to be greater than the applicable state water quality criterion. Additionally, the permit contains ‘operating limits’ on an internal outfall that may not be enforceable by EPA, citizens, and potentially MPCA and, thus, may be ineffective at protecting water quality under the Clean Water Act.”

Water Legacy’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.”

Last week, Maccabee had petitioned the state Court of Appeals to remand the appeal of the PolyMet permit back to district court to allow for additional fact-finding in the case, including obtaining the EPA comments. Courts at the appellate level are typically limited to issuing rulings on agency decisions based on what’s known as the “administrative record,” which would typically include things like environmental impact statements, public comments, or agency comments, such as those that EPA staff had prepared but never sent to the MPCA. District courts, meanwhile, allow for the kind of fact-finding, including the calling of witnesses, that Maccabee insists is needed in this case to fully develop the administrative record and give the court a better understanding of what took place. While the EPA comment letter answers some questions, Maccabee said it raises many others. “What role did MPCA play in making sure that neither the public nor the court would have access to this information?” she asked. “If our agency thinks all they have to do is quietly collude with a federal agency to make a permit look bullet-proof, then Minnesota has a problem. We need to know who at MPCA requested this information be withheld.” While the EPA opted for release of the information, Maccabee said the MPCA has still failed to respond to requests for written notes that agency officials acknowledged they took during the April 2018 phone call with EPA staff. In their own court filings, the MPCA has stated that agency staff destroyed the notes.

Maccabee said the situation all but demands remand to a district court to examine what now appears to be a potentially significant state agency scandal.

The MPCA did offer a response Thursday, arguing that the agency had a rigorous permitting process for PolyMet’s water quality permit. “Similar to other complex projects, the MPCA and EPA had frequent conversations during the entire permitting process to discuss technical items,” said Darin Broton, director of communications for the MPCA. “Based on those conversations, as well as other comments received from the public during the official comment period, the MPCA made substantive changes to the draft permit, including additional operating limits for arsenic, cobalt, lead, nickel, and mercury, and new language was added that clearly states that the discharge must not violate water quality standards. That’s why the EPA did not object to the MPCA’s final permit.”

Comments (23)

  1. Submitted by William Duncan on 06/14/2019 - 08:51 am.

    Confirmation of my general belief that Global Trade Policy plus generally accepted neoliberal economics has undermined government such that the rights of a foreign corporation are protected before the rights of the citizens of Minnesota or the waters.

    That is why I have called these new mining plans a classic third world plunder, pollute and run operation. Most of the money made plus the resources will leave Minnesota and even America, Minnesota will be left with the mess, this government that has been so complicit will not be there to clean it up, and even that money they say they are putting aside won’t be there either, likely plundered by this government or private equity.

    I hope this means some accountability at the MPCA. However, it was the Dayton admin that let this happen, I don’t anticipate Walz to change that, and of course Republicans generally seem fine with letting a foreign corporation plunder and pollute Minnesota. So I don’t know who in power is protecting this State anymore.

    So much for American ingenuity, our can-do spirit, the land of the free and the brave. Jobs jobs jobs in this context sounds servile to me – please foreign corporation, give me a job, I will pay your taxes and clean up your mess. Trumpian MAGA fanatics plus neoliberal corporatists conspiring to make a mess of Minnesota, and Minnesotans powerless.

  2. Submitted by Joe Smith on 06/15/2019 - 08:04 am.

    I am not shocked a Government run agency can’t get its act together. Non elected officials running these agencies went rogue with “legislation through litigation “ and the EPA became a political arm of the Democratic Party. Once that happened the EPA became HUD, another worthless bloated Government agency with the sole purpose of surviving and growing itself.

  3. Submitted by Richard Owens on 06/15/2019 - 08:18 am.

    Somebody at the MPCA hid the EPA comments that showed an incomplete environmental assessment.

    Who was it and what did they get for doing it?

    Mr. Duncan sure hits the nail on the head.

    Meanwhile, Enbridge is still drooling over their lucrative tar sands dilbit pipes. We need a MPCA that works and we need it NOW.

    (Governor Walz?)

    • Submitted by Cyd DeVallera on 06/15/2019 - 05:49 pm.

      I retired from the agency a few years ago. The answer to your question is this: It was the past Mining Sector Director and current Industrial Division Director of the MPCA. They were not lone, rogue actors in this drama. The process goes back nearly a decade when the Mining Sector was created. Morally flexible staff were hired and promoted at light speed. Their careers continued to grow, with one of them currently an Assistant Commissioner at the DNR in charge of mining and another a major player in the Chamber of Commerce. This arrangement made moving the project forward on a less scrutinized trajectory much easier. These relationships are still active to this day.

      The mining sector ethic was “never take notes” and “don’t send emails.” As a practice, the Mining Sector would ask the company “how they would like to proceed“ on regulatory issues. The practices were clearly different from the rest of the agency. It was common to hear things like “C-level work is all we need.” For those staff on the Mining Sector team that asked questions, particularly of the various consultants – they were summarily replaced. The Mining Sector Director did take detailed notes using a personal diary so as to allegedly keep these decisions out of the administrative record. All of these actions occurred under the full knowledge and support of the Industrial Division Director (Boss of the Mining Sector) and the MPCA Commissioner. MPCA staff that have worked or still work on the project cringe when they hear that this permit has had substantial scientific and engineering review. A lot of work was invested to make sure that the project was not well-reviewed.

      Now, it would be simple to say this is a fabrication. Each and every claim is well-documented. Emails, letters, and testimony from past and existing staff were provided, along with a letter outlining these issues (along with a laundry list of many other major problems) to the incoming Governor Walz and Lt. Governor Flanagan back in November. Attempts were made to follow up, but nothing materialized. Instead, the administration appointed a Commissioner with ties to Hillary Clinton (stated as a fact not a criticism) and no environmental regulatory background, and an Assistant Commissioner with no administrative or environmental experience but “was a big help” in his election campaigns. To make matters worse, PolyMet was a client of the now MPCA Communications Director prior to his appointment. While this fact should not invalidate his professional efforts with the agency, he should have been asked to recuse himself from commenting on this project.

      The MPCA needs an overhaul. DNR probably does too. It won’t happen under this administration. For our little group, we have given all of our documentation to the EPA independent investigation team. Who knows what will happen next.

      • Submitted by Paula Maccabee on 06/16/2019 - 03:05 pm.

        I would greatly appreciate if you would contact me at 651-646-8890 or 651-775-7128.

      • Submitted by Alan Muller on 06/17/2019 - 09:24 am.

        As my small contribution to his I submit this post from 2112:

        In general, people tend to not appreciate that the integrity of regulatory agencies is a fragile thing, easily lost and recovered with difficulty once the good people have been driven out and the bureaucracy populated with hacks.

        In my opinion failure to preserve the integrity of state agencies was a key failing of Mark Dayton, and I don’t see much indication that Walz will be better.

      • Submitted by Jennifer Bjorhus on 06/17/2019 - 09:44 am.

        My name is Jennifer Bjorhus. Please contact me at 612-673-4683. Thank you.

      • Submitted by Marshall Helmberger on 06/17/2019 - 10:57 am.

        To “Cyd Devallera”… I would be interested in reporting on your experience at the MPCA if you would be willing to discuss it and provide some background material. You can contact me at 218-753-2950 or 218-750-2510.
        Thank you.

      • Submitted by David Lundeen on 06/17/2019 - 03:03 pm.

        I really hope a fine journalist at Minnpost follows up with this extraordinary lead, and publishes a full expose on the self-dealing, and how industry has thoroughly co-opted legitimate government oversight. This is so disgusting how industry can buy off government, and then act as if the public has no business when it’s interests are at stake.

      • Submitted by Scott Beauchamp on 06/21/2019 - 01:10 pm.

        Hi Cyd,

        I work for the Friends of the Boundary Waters and would love to speak with you further about this issue. Please contact me at 612-210-4605 when you get a chance.


  4. Submitted by Mike martin on 06/15/2019 - 11:56 pm.

    It seems some people are hell bent on killing wind energy by making the 4 tons of copper needed for each wind turban either too expensive or not available in the US

    • Submitted by Richard Owens on 06/16/2019 - 08:05 am.

      “Are we going to run out of copper? It is highly improbable. Historically (USGS data), there has always been, on average, 40 years of reserves and 200 years of resources left since 1950. In addition, recycling, innovation and mining exploration continue to contribute to the long-term availability of copper.”

      Sulfide ores and overburden will pollute the surrounding area and downstream watershed, as well as groundwater. This has happened everywhere sulfide mining has been attempted in a lake/wetlands environment.

      Fresh water is much more precious than the copper-nickel mining DAMAGES that will ensure. Containment ponds leak. Effluent seeps and runs.

      Do your own research, don’t take it from me.

    • Submitted by William Duncan on 06/16/2019 - 10:22 am.

      Well, if that is true Mike, all that mining in sulfates in northern Minnesota will make like, 100 wind turbines, which will power like, maybe 10,000 homes…polluting northern Minnesota for like, 10 generations.

  5. Submitted by Dan Handke on 06/16/2019 - 02:20 pm.

    Thank you Water Legacy and Paula Maccabee for using my donations effectively and responsibly. Unlike my tax dollars that fund the MPCA and DNR organizations that oversee sulfide mining permitting.

  6. Submitted by amber manthey on 06/17/2019 - 04:24 am.

    My name is Amber Dawn, I was born in mn an still a resident.
    Ok, you’re going to have a great time with me, you all seem like you know each other well enough by reading your thoughts. Here is a thought for tomorrow.
    that you can wrap your heads together on, an have fun comments to,
    What if I had a better way forward for humanity and not a ear to listen to me, because I am not anybody special just me, a person who loves earth an all it’s inhabitants.
    My better way is a plant, yes a green plant you grow, what if I said the plant has tremendous powerful positive aspects.
    When growing this plant in one grow season can pull up to 10x the co2 a full grown tree can in its entire life an put out 10x the oxygen. An if grown in mn you have if grown correctly 2 crops b4 the snows come,
    Not just this but as it grows it’s pulls toxins out of the soil and leaves the nutrients we need to grow our foods, when grown by the water it can help stop rain water runoff from reaching the river or lakes, it’s roots grow deep an can also help stop erosion from occurring,
    That’s just to starting point,
    This plant when used in construction, is stronger than steel,
    If used in the walls of a home or building even processed it still pulls in co2 an puts out oxygen being a wall so no need for the air purifiers, your house is already cleaning its air, as it ages it strength increases.
    So if homes by the cost had hurricane winds it have a better safety, an can sustain it.
    If you’re not sure,
    What if I said that this plant can be used for fuel in your cars, an it’s process isn’t that bad as oil or tar sands are, even more important thing it’s better for your engine cleaner improving your performance. One acre is capable of producing like ?10000ish? Gallons of fuel. We can talk about the amazing things this plant is capable of, but. We can’t even grow it in most places, if we did it can help stop global warming and even reverse it, but it have to grow in large amounts all over the world, we could have dune this but in 1920’s it’s cousin plant had it outlawed and banned in the USA, this plant is called HEMP. CHECK IT OUT SEE 4 your selfs than comment ok.

  7. Submitted by Paul Udstrand on 06/18/2019 - 09:09 am.

    I think the lesson here is that Democrats are no more environmentally responsible than Republicans, we’re looking at a Dayton era MPCA let’s not forget. Even if some of this happened under Pawlenty, Dayton and Democrats should have cleaned it up and made sure the MPCA was doing it’s job. And if THIS is screwed up how can we possible trust the processes regarding pipelines and sulfate mining?

    • Submitted by William Duncan on 06/19/2019 - 08:37 am.

      Indeed, the waters of Minnesota have become ever more polluted the last 40 years, no matter which party is in power. Our politicians talk about taking care of farmers, as example, but all they are really taking care of is the right of corporations to profit, while not paying for polluting. They care little to nothing for the many farmers forced out by ever greater consolidation of agribusiness; it is the same with pipelines or mining in sulfates, the only difference is, they are now letting FOREIGN corporations plunder and pollute Minnesota, like we are some third world banana republic.

      It is a truly toxic legacy, truly destructive to the land, waters, pollinators, and even the sovereignty of America and Minnesotans. But we Americans are perhaps the most manipulated people in the history of the world, and despite increasing toxicity, 70%+ of Minnesotan’s think the waters are getting cleaner every year.

  8. Submitted by Paul Udstrand on 06/20/2019 - 08:34 am.

    Mr. Devalerra’s comment above illustrates the classic and pernicious example of a regulatory agency captured by the industry it’s supposed to regulate. You find this story again and again throughout the regulatory regime on every level, the name change, but the basic mechanism are the same. How do you think so many American’s ended up with so much lead in their drinking water? And it doesn’t matter which Party “wins” elections because they both staff agencies the same way.

    Then you have this bizarre corporate model that assumes anyone in a suit will do because they don’t have to know anything beyond their “executive” skills. Between the incompetent corporate model, the political appointment process, and beholden status of both Parties to their elite benefactors, regulatory regimes can be very very difficult to enforce. This is why conservative claim that “regulations” are strangling the economy are always so absurd.

    But here’s the thing to think about: Despite the fact that is obviously a systemic problem, why do you suppose the “mainstream” media (local tv news, major networks, and major newspapers, and news magazines) always treat these occasional expose’s as isolated incidents tied to “bad” actors? Ask yourself: “Who does THAT narrative serve?”

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