On June 12, the Timberjay's Marshall Helmberger broke the story, EPA releases long-sought comments on PolyMet permit:
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 news--and subsequent developments--rocketed across the country. On Wednesday, the Timberjay posted an EDITORIAL: Investigate the MPCA:
The Minnesota Pollution Control Agency has tough questions to answer as more information is being revealed about apparent efforts by the state environmental agency to keep critical comments regarding PolyMet Mining’s water discharge permits from the public and the courts.
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.
As we reported last week, the Environmental Protection Agency, under legal challenge from Minnesota tribes and environmental groups, finally released comments prepared by professional staff in the Great Lakes regional office that expressed serious concerns about a water discharge permit for PolyMet. Those comments included concerns that the permit appeared to violate the federal Clean Water Act as well as water quality standards for the state of Minnesota in multiple ways.
For groups fighting the permit in court, it was a game-changing document. It is no longer just environmentalists and tribal officials alleging that the permit that the MPCA issued late last year is flawed. Their arguments are now backed up by professional staff at the EPA. It’s no wonder that top officials at MPCA may have attempted to keep those views under wraps.
The revelations should bolster the arguments of tribes and environmentalists to move the case to district court for additional fact-finding. The courts have an interest in getting to the bottom of this. If, as it appears, top state officials at the MPCA colluded with the Trump-appointed director of the EPA’s Great Lakes regional office, in an effort to suppress these critical comments, the implications are staggering. Judicial review of executive agency decisions is fundamental to our system of governance, yet it can only work if the agencies involved can be trusted to operate in good faith, by ensuring that the full and complete record of their decision-making process is made available. 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.
Finally, questions need to be answered on why it is that the MPCA issued a water discharge permit to PolyMet Mining that includes no water quality-based effluent limits. We have reported more than once on the lax nature of far too many of the water discharge permits issued to mining companies in our region.
Minnesota may have sound environmental laws, but enforcement of those laws has been a major issue for decades. If the MPCA has fallen victim to what’s known as “industry capture” then it’s time to clean house at the agency and hire people who are willing to enforce Minnesota law, not play bureaucratic games to avoid doing so.
While the apparent wrongdoing here dates back to the Dayton administration, it is up to Gov. Tim Walz to make sure that this kind of thing doesn’t happen again. The EPA’s Office of Inspector General has already opened a federal investigation into what happened surrounding the PolyMet water discharge permit. The governor should follow suit by referring the matter to the Office of the Legislative Auditor for a special state investigation.
What is alleged in this case is public malfeasance and such actions, if true, are grounds for dismissal. If anyone at the MPCA was, in fact, involved in this apparent subterfuge they should be out the door. This is a serious matter. If necessary, heads should roll.
Today? Helmberger reports in EPA’s OIG to investigate handling of PolyMet permit:
The handling of the PolyMet water discharge permit is now the subject of a federal investigation. The Environmental Protection Agency’s Office of Inspector General announced June 12 that it will conduct a full audit of allegations by EPA whistleblowers that officials with the Minnesota Pollution Control Agency and Cathy Stepp, the Trump-appointed administrator of the EPA’s Great Lakes regional office, may have conspired to suppress concerns within the federal agency that the PolyMet permit did not comply with the Clean Water Act.
Meanwhile, calls for a state investigation have also been appearing since the EPA, under the pressure of a federal lawsuit, agreed to release the agency’s written comments last week. Those comments appeared to confirm the claims of EPA whistleblowers that the MPCA sought to keep EPA comments from appearing in the official record that was likely going to face judicial review.
For now, Gov. Mark Walz isn’t committing himself to a state investigation into the matter.
“The Governor believes that mining projects should be subject to a rigorous environmental review and permitting process before they go forward,” stated spokesperson Teddy Tschann. “ His office is currently reviewing the recently released EPA document and MPCA’s process to ensure it meets the standards he expects for sound environmental decision making and public transparency.”
The Pioneer Press reports in Minnesota’s first acting female governorship ends. (Walz’s surgery was ‘successful’:
A spokesman for Walz and Flanagan said that on Thursday, while she held the authority to act, nothing required her to exercise any of the actual powers of the governorship.
Bluestem regrets that Flanagan didn't take advantage of her fleeting power to order an investigation of the MPCA's past actions.
Photo: The closed LTV Steel taconite plant near Hoyt Lakes, Minn that will be transformed to PolyMet.
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