Something's Rotten in the State of Minnesota

 

Updated June 26, 2019

Earlier this year, PolyMet became the first, fully permitted sulfide mine in Minnesota’s history. For various reasons, many elected officials and organizations consider this a done deal and want to put the years of controversy that have plagued PolyMet from its inception, behind us.

But the shady, secretive process through which this mine was permitted is now coming to light.

This is why we have not given up the fight.

Proponents of the PolyMet mine argue that after 15 years, the project has undergone the most exhaustive environmental review in the state’s history. This is proof that it will meet exceedingly high standards and that copper-sulfide mining and a pristine environment can exist side by side.

As any parent knows, just because your kid spends four hours cleaning up their room, doesn’t mean they actually cleaned anything. Check under the bed, and you’ll probably find a mess.

That’s what’s been happening.

People are starting to look under the bed. And there’s a mess.

The beginnings of a scandal  

Before PolyMet can operate, they needed to clear multiple permits. One of these was a water-quality permit issued by the Minnesota Pollution Control Agency (MPCA).  

Among other things, this permit is in place to ensure wastewater discharged by the mine will meet the federal standards put forth by the Clean Water Act. Because this pertains to federal law, the Environmental Protection Agency (EPA) had oversight of the MPCA during the permitting process.

As with other permits, both agencies conducted studies and reviews. There was a public comment period, revisions and finally, in December 2018, MPCA issued the clean-water permit for PolyMet.

But not everyone was happy with how this played out.

Soon after the permit was issued, Jeffry Fowley, a former attorney for the EPA, started to receive complaints from confidential sources inside the EPA. They told him that higher ups suppressed comments and concerns staff had regarding the permit.

Scientist were instructed to send no written comments on the permit, but rather relay any concerns by telephone.

No written comments means no paper trail.

Nothing for the public to see or review.

As these details emerged, both EPA and MPCA would defend themselves by saying it was common practice to discuss technical issues in the permits by phone and based on these conversations, make changes to the permits.

Let that sink it: Rather than send comments, via fax, email, snail mail, they are saying that it’s common practice to discuss matters over the phone and take notes. Keep in mind, they are discussing terse, technical information.

Remember playing the game of “Telephone” when you were young?

Needless to say, this account conflicts with the experience others had at the EPA.

“In all my years of experience, I have never heard of a situation where EPA personnel have read written comments on a permit to state personnel over the phone,” Fowley said in a declaration to the Minnesota Court of Appeals.

There was reason to believe that there were indeed written objections to the permit, but someone in the EPA did not want these to be made public.

They wanted the permit to be issued and for these objections to fade away in silence.

The documents surface

Indeed, someone within the EPA did write down these comments and a few weeks ago, these long-suppressed comments finally came to light.

It was the first time the EPA’s official comments on the water permit were available to the public.

Among the areas of concern was that the permit would “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.”

The permit also lacked water quality-based effluent limits (WQBELs), which are numeric limits on how much of pollutants can be released by the mines. WQBELs are essential to determining whether a mine is meeting environmental standards. 

These are not minor details. These comments point to major problems with the permit and cast serious doubt over whether or not the permit could comply with the Clean Water Act. As such, they should have been part of the public, administrative record.

At this point, a few layers of the onion have been peeled back, and it’s impossible not to notice a stench.

Soon after these documents were released, the EPA’s inspector general announced they would begin an investigation and audit the water permit.

Then another bomb dropped.  

A leaked email

Shortly after the inspector general announced the investigation, a whistleblower released an email from the then-MPCA Assistant Commissioner Shannon Lotthammer. In the email, Lotthammer asks the EPA to postpone making any comments on the permit until the public comment period had passed. 

Here’s the crucial line (the full text of the email can be read below):

“We have asked that EPA Region 5 not send a written comment letter during the public comment period and instead follow the steps outlined in the MOA, and wait until we have reviewed and responded to public comments and made associated changes before sending comments from EPA.”

As requested, the EPA didn’t submit one comment during the public comment period, and no comments are in the public record, or part of the permit.

The oversight scientists at the EPA were to provide was muzzled.

It's not unreasonable to expect agencies like the Minnesota Pollution Control Agency to work in the interest of clean water and the people of the state. Instead, the MPCA colluded to subvert the clean water standards they were tasked to protect.  

And it gets worse: They were willing to compromise their integrity to do this.

According to the American Federation of Government Employees (AFGE) Local 704, the union that released the leaked email, the MPCA may have made a false statement when, in a filing before the Minnesota Court of Appeals, MPCA said that it “did not receive written comments from EPA, did not take efforts to keep EPA’s written comments out of the administrative record, or fail to disclose the existence of EPA comments.” 

Obviously, MPCA has a lot of questions to answer.

Right now, this scandal has eroded the agency’s integrity and done serious damage to its reputation.

Updates

June 24, 2019: State Representative Rick Hansen called for Minnesota’s state's legislative auditor to open an investigation into MPCA's handling of the PolyMet permitting process. Things are starting to happen, but it’s imperative that we hold these agencies accountable.

June 25, 2019: Based on "substantial evidence of procedural irregularities," Minnesota Court of Appeals ordered a hearing on how Minnesota Pollution Control Agency handled criticism of PolyMet’s clean water permit.

This is a huge victory, as it will allow Friends and our partners to question key witnesses and request documents, both of which could provide much needed answers.

Take action

What can we do when an agency that is supposed to protect our resources and protect the people from the harmful effects of pollution, actively ignores clean water standards and does a huge favor to a toxic industry? 

Minnesota Governor Tim Walz has the power to stay these permits. Call him, and tell him to stand up for clean water.

  • Demand the legislature investigate the improper conduct of the Minnesota Pollution Control Agency.

  • Stay the PolyMet permits

This is his administration, and he needs to make sure state agencies are following the correct process, that they are transparent in their practices and are working for the people, not a foreign mining giant.

Call Tim Walz (651) 201-3400 


Below is the full email, sent on March 13, 2018: 

Dear Kurt:

Thank you and Cathy for the opportunity to connect with you on this matter. By way of introduction, as John notes below I’m assistant commissioner for Water at MPCA, and prior to that I led a division here at MPCA that included both our water quality standards efforts and support for our permitting programs.

The agreement John references is the Memorandum of Agreement (MOA) that exists between MPCA and Region 5 EPA regarding the NPDES program delegation to MPCA. That agreement is attached. The question at issue is the timing of EPA written comments on draft/proposed NPDES permits. 

As you’ll note in the highlighted portions of page 27-28 of the attached .pdf (which are pages 10-11 of the actual MOA) the established process is for MPCA to place the draft permit on public notice, consider and respond to public comments and make any resulting changes that are necessary, and then to submit the proposed permit to EPA for review and comment (which could include objection) prior to final issuance.

The concern we have expressed to Region 5 staff/mgrs is the timing of EPA comments, not the ability for EPA to comment. The draft permit that is the subject of this discussion is on public notice until March 16. We know that we will be making some changes to the draft permit in response to public comments, and also questions raised by EPA. We have asked that EPA Region 5 not send a written comment letter during the public comment period and instead follow the steps outlined in the MOA, and wait until we have reviewed and responded to public comments and made associated changes before sending comments from EPA.

We have been meeting regularly with Region 5 permitting folks to identify and work through questions, and we would be happy to continue to do so as we review and respond to public comments and continue to refine the draft permit. I also understand that some EPA staff are concerned that the 15-day timeline laid out in the MOA for EPA review and comment/response/objection is not sufficient time given the complexity of this draft permit. We are certainly sympathetic to the need for adequate review time, and we’d be happy to talk about and memorialize via a letter or a meeting a longer time frame for EPA review prior to permit issuance.  

Again, I wish to stress, as I have with Chris Korleski and Kevin Pierard, that the concern here is not about EPA’s authority for review. We recognize and respect that authority. The question is about the timing of that review, and the importance of maintaining the approach laid out in the MOA for the sake of clarity and efficiency, among other goals. 

I would be happy to talk with you more about this matter, or to provide any additional information that would be helpful. Thank you again for the opportunity to connect. The MPCA and Region 5 EPA have a strong working relationship, and I wish to do all I can to reinforce our partnership and continue to strive towards our shared goals of water quality protection and excellence and public service.

Kind regards,

Shannon Lotthammer
Assistant Commissioner
Minnesota Pollution Control Agency