Press Release: EPA OIG finds PolyMet pollution permit issued in violation of process and policy
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PRESS RELEASE: 4/21/21
CONTACT: Aaron Klemz, MCEA, aklemz@mncenter.org, 763-788-0282
St. Paul and Duluth, Minnesota -- The U.S. Environmental Protection Agency (EPA) Office of the Inspector General (OIG) released the results of its investigation into EPA’s PolyMet water permit review process this morning. The EPA OIG report identifies a series of failures by EPA and the Minnesota Pollution Control Agency (MPCA) to follow the Clean Water Act, Minnesota’s memorandum of understanding about the state’s enforcement of the Clean Water Act, and EPA’s policies on tribal consultation and environmental justice during the issuance of the PolyMet water permit. Because of these failures, the OIG report calls for a review of the permit when it comes back in front of the agency, but stronger and more immediate action should be taken by the State of Minnesota.
The EPA OIG is an independent, investigative arm of the federal government and does not have the authority to revoke the PolyMet water permit. The State of Minnesota and MPCA do have that authority. In July 2019, Rep. Betty McCollum said the suppression of EPA staff concerns “appears to represent an absolutely intolerable breach of the public trust by two regulatory agencies.” This report confirms that it was such a breach.
Based on the facts outlined in this report, including the failure “to address downstream effects” on the Fond du Lac Band, the MPCA should revoke the suspended water permit immediately.
Senior Staff Attorney Elise Larson at the Minnesota Center for Environmental Advocacy issued this statement: “This report confirms that the PolyMet water permit was rushed and the public was kept in the dark by its own PCA about EPA staff concerns, resulting in a weak permit that endangers people downstream. We're glad EPA has acknowledged this breakdown in process and highlighted EPA's concerns. With all the problems, it's clearly time for MPCA to revoke the permit.”
MCEA Director of Public Engagement Aaron Klemz added, “Legislators, led by Senator John Marty, sent a letter to the MPCA in July 2019 regarding the revelations about EPA’s concerns. This report is a clear repudiation of MPCA's response to these legislators, which was that all EPA staff concerns about the water permit were resolved before it was issued and that proper procedures were followed. Governor Walz needs to hold his agency staff accountable for misleading legislators who raised the alarm about the violations of policy and process around this permit.”
Background: EPA reviews state-proposed Clean Water Act permits to verify whether they comply with federal requirements. The EPA’s Office of Inspector General is an independent office within the EPA that audits programs and investigates the agency. It is funded separately from the EPA and conducts independent audits, evaluations and investigations.
In March 2018, EPA staff drafted a comment letter outlining concerns with the draft PolyMet water permit. But MPCA staff and leaders in EPA’s regional office colluded to withhold the critical letter. Then in December 2018, EPA staff drafted a second memo that showed just six of 29 concerns identified by EPA staff had been resolved prior to MPCA issuing the final PolyMet water permit. The public did not become aware of EPA staff’s extensive concerns until long after MPCA issued the PolyMet water permit, when they were leaked by a whistleblower who sent the document to their EPA employee union representative.
The EPA OIG initiated the investigation in June 2019 in response to a complaint regarding the process that resulted in the Minnesota Pollution Control Agency’s issuance of the PolyMet water permit. In September 2019, OIG broadened the investigation to audit similar water permits issued nationwide, and the results of the PolyMet investigation were included in this report.
The PolyMet water pollution (NPDES) permit is currently suspended by the Minnesota Court of Appeals. It is one of four permits issued to PolyMet that are either suspended or overturned, and a fifth permit (air pollution) is currently under review by the Minnesota Court of Appeals.
Key portions of the OIG report include the following:
“Region 5 did not address all CWA and NPDES regulations during its review of a draft NPDES permit for a mine and processing facilities to be built by PolyMet Mining Inc. along the St. Louis River in northeastern Minnesota. Despite its concerns about the NPDES permit, Region 5 did not provide written comments to Minnesota, contrary to the region’s standard operating procedures and per common EPA practice. In addition, Region 5 repeatedly declined to make a formal determination under CWA § 401(a)(2) regarding whether discharges from the PolyMet NorthMet project may impact the quality of waters within the jurisdiction of the Fond du Lac Band of Lake Superior Chippewa, whose tribal lands are 125 miles downstream from the site of the PolyMet NorthMet project. The tribe was therefore unable to avail itself of the NPDES permit objection process set forth in CWA § 401(a)(2).” (Page 3, “At a Glance”)
“EPA reviewers determined that the draft NPDES permit reviewed by EPA Region 5 for PolyMet’s NorthMet project did not address all CWA and NPDES requirements. Despite the concerns about the draft PolyMet NPDES permit, Region 5 management did not transparently exercise its oversight authority, choosing instead to not provide written comments summarizing those concerns. In addition, Region 5 repeatedly declined to make a formal determination under CWA § 401(a)(2) regarding whether federally permitted discharges from the NorthMet project may impact the water quality of the Fond du Lac Band, whose lands are located downstream. Region 5’s interpretation of CWA § 401(a)(2) allowed the EPA to deny a potential administrative remedy to the tribe simply by neglecting to assess downstream affects (sic), despite repeated requests. In addition, the EPA arguably did not meet the intent of its tribal and environmental justice policies, including its Policy on Consultation and Coordination with Indian Tribes and Policy on Environmental Justice for Working with Federally Recognized Tribes and Indigenous Peoples, which aim to ensure consultation, fair treatment, and meaningful involvement of tribes in EPA decisions affecting their health or environment.” (page 25, Chapter 3)
Read the letter to Governor Walz sent by Senator John Marty and seventeen additional legislators