EPA inspector general: Agency should've shared PolyMet permit concerns with MN regulators in writing

Audit also faults EPA for not consulting Fond du Lac Band of Lake Superior Chippewa over potential downstream pollution concerns

A basin
Plans for PolyMet include building dams to increase the storage capacity of tailings basins. One would be built in the distance to raise the basin on the right to the level of the area on the left.
Steve Kuchera | Duluth News Tribune 2017

By Jimmy Lovrien | Duluth News Tribune

The U.S. Environmental Protection Agency did not follow its own procedures when it shared comments and concerns on a draft permit for PolyMet's proposed copper-nickel mine over the phone with Minnesota regulators instead of in writing, according to the agency's inspector general.

In a report filed Wednesday morning, the EPA's Office of Inspector General, which conducts independent audits of the agency and makes recommendations, criticized the EPA's Region 5 office for agreeing to read comments on PolyMet's National Pollutant Discharge Elimination System, or NPDES, permit to the Minnesota Pollution Control Agency over the phone and not in writing in April 2018.

Without the comments in writing, they were not included in the public record.

The comments included four concerns held by EPA staff that the permit may not meet the Clean Water Act as it did not set many water-quality-based effluent limitations — standards that ensure bodies of water receiving discharged water are not polluted — and may not be enforceable, EPA staff said. Those concerns remain "unresolved," the report said. The MPCA, which had requested the comments be read over the phone and not in writing, in December 2018 issued the permit to PolyMet, which is hoping to build Minnesota's first copper-nickel mine near Hoyt Lakes and Babbitt.

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"Regional management did not ensure that its comments were conveyed to Minnesota in a transparent and timely manner per the region’s standard operating procedure, and the permit issued by the State did not address all of the EPA’s concerns," the report said.

In comments responding to the Inspector General's report, EPA staff disagreed with the Inspector General and maintained the EPA has the "discretion" on whether to make written comments and that "written comments are not required." It did agree that the MPCA made the request for oral, not written, comments from the EPA.

But Region 5 did agree to the Inspector General's two goals: "that Region 5 provide written input regarding any resubmitted NPDES permit for the PolyMet NorthMet project; and that Region 5 commit to making formal determinations regarding downstream water quality impacts."

Elise Larson, senior staff attorney for the Minnesota Center for Environmental Advocacy, said the report was "a big deal."

"The EPA's oversight wing has acknowledged that the Minnesota Pollution Control Agency issued a permit where there were over 20 concerns expressed by EPA staff that had been left unresolved," Larson said. "Those concerns could have real, on-the-ground impact for downstream communities from this mining project."

The EPA's Office of Inspector General began its audit into the issue in June 2019 after receiving a hotline complaint.

It's one of three inquiries into the handling of the comments on the permit.

The issue is before the Minnesota Court of Appeals after a State District Court judge in September said the MPCA broke no laws or procedures by asking the EPA to keep the comments private, but acknowledged such a move was made to prevent comments from reaching the public and leading to "bad press."

Separately, the Minnesota Office of the Legislative Auditor also continues to investigate the MPCA's handling of the comments

The Center for Environmental Advocacy called on the MPCA to revoke its NPDES permit to PolyMet in light of Wednesday's report.

In a statement to the News Tribune on Wednesday, MPCA spokesperson Darin Broton said the reported highlighted "the need for government agencies to do better when issuing permits."

"While the EPA report does not directly address the MPCA’s procedures, a Minnesota District Court stated in September 2020 that the MPCA did not deviate from its standard practices when it issued the PolyMet permit," Broton said. "The MPCA remains committed to ensuring that its permit processes and decision-making are transparent and provide a robust opportunity for public participation.”

Wednesday's report also criticized the EPA for not determining whether PolyMet "may affect" the downstream Fond du Lac Band of Lake Superior Chippewa, despite repeated requests from the band.

"The EPA did not meet the intent of its tribal and environmental justice policies, which aim to ensure that tribes receive consultation, fair treatment, and meaningful involvement in decisions affecting tribal health or the environment," the report said.

The EPA last month suspended the PolyMet's, Section 404 permit, which allows PolyMet to discharge dredged and fill material into over 900 acres of wetlands, so it could review whether PolyMet, which is proposed 70 miles upstream from the Fond du Lac Reservation, and in the St. Louis River Watershed, would affect the band.

The "may affect" review stems from a federal judge's decision in February that said the "EPA had a legal duty to make a 'may affect' decision."

The decision was considered a legal win for tribal rights as it asserted the band has the the same rights as a downstream state under the Clean Water Act.

In a statement, the Fond du Lac Band said it was "pleased" with the release of the report and its findings.

"The Band believes that the NPDES Permit violates the Clean Water Act and the report confirms that EPA did not follow its normal process during review of PolyMet’s NPDES Permit and many of EPA’s concerns remained unresolved at the time of Permit issuance," the band said. "The Band is also pleased that the (Office of Inspector General) acknowledged that the EPA did not properly or meaningfully consult or address the Band concerns with respect to the project's downstream impacts on the Band’s waters.”