MINING LITIGATION

Posted Wednesday, June 12, 2019 5:36 pm

REGIONAL- 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 on Thursday, arguing that the agency undertook 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.”