Serving Northern St. Louis County, Minnesota

EPA sued over refusal to release PolyMet comments

Federal agency has failed to respond to Freedom of Information Act request from Duluth-based Water Legacy

Marshall Helmberger
Posted 2/21/19

REGIONAL—The federal Environmental Protection Agency is facing a lawsuit over allegations that it prevented its own environmental specialists from providing written comments to Minnesota regulators …

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EPA sued over refusal to release PolyMet comments

Federal agency has failed to respond to Freedom of Information Act request from Duluth-based Water Legacy

Posted

REGIONAL—The federal Environmental Protection Agency is facing a lawsuit over allegations that it prevented its own environmental specialists from providing written comments to Minnesota regulators documenting concerns over a proposed state-issued water discharge permit to PolyMet Mining.

The suit, filed by Public Employees for Environmental Responsibility, or PEER, on behalf of Duluth-based Water Legacy, seeks to compel the EPA to produce written comments that were produced by EPA staff but that were allegedly suppressed by top supervisors appointed by President Trump.

Water Legacy is seeking the comments as part of its ongoing lawsuit against the Minnesota Pollution Control Agency over its December 2018 decision to issue a water pollution permit to PolyMet. The mining company proposes to build the state’s first copper-nickel mine near Hoyt Lakes, but the project faces a slew of legal and financial hurdles before that can happen.

Water Legacy legal counsel Paula Maccabee first made a Freedom of Information Act request for the EPA comments on Oct. 19, 2018, and was assured at the time that the request was “very simple” and that processing it “should not take very long.” EPA officials also indicated that given the limited nature of the request it would likely not require the payment of any fee.

The EPA’s FOIA process typically allows for twenty days to respond to a FOIA request. Yet more than four months later, Maccabee has yet to see the documents she requested and is now asking a court to require the EPA to release them. It appears the government shutdown and bureaucratic mishandling of Maccabee’s request could have played some role in the delay, although Maccabee states that she has information suggesting the delay is due to apparent intervention from top EPA officials in Washington, D.C., who are now reviewing her request.

Prior to Trump’s election, the EPA Great Lakes Regional Office had submitted detailed comments to the MPCA as well as the state’s Department of Natural Resources, both of which have permitting authority over the project. Plaintiffs in the lawsuit contend that those concerns have not yet been addressed, but that top political appointees in EPA’s regional office have kept its own professional staff from forwarding those concerns in writing to state regulators. Instead, it appears that EPA staff verbally read some of their concerns over the phone to MPCA staff, which state regulators recorded in handwritten notes. According to the MPCA notes, EPA remains concerned about excess mercury discharge, inadequate monitoring, and lack of numeric limits on mercury and other toxic chemicals in the discharge permits, among other problems. 

Water Legacy’s efforts to obtain the full written staff comments through a Freedom of Information Act request have been rebuffed by the agency, prompting the lawsuit.

“It is ridiculous that EPA can only conduct kabuki oversight since staff may only read but not register serious objections about potential pollution violations,” stated PEER staff Counsel Kevin Bell, who filed the FOIA lawsuit seeking release of the undelivered PolyMet comments. “EPA apparently wants to ensure there is no paper trail evidencing the very real concerns of career professional staff.”

EPA’s withdrawal from regulatory oversight is not limited to PolyMet, according to PEER, which alleges that EPA employees from other regions are reporting similar limits being placed on their ability to oversee state pollution control efforts. Many cite an Oct. 30, 2018, memo issued by Acting Administrator Andrew Wheeler directing EPA regional offices to exhibit “general deference to the states.”  

“The purpose of federal environmental laws is to guarantee a uniform safety net for clean water, air, and soil throughout the nation,” explained PEER Science Policy Director Kyla Bennett, a scientist and attorney formerly with EPA. “At EPA, oversight now means to overlook since political consensus is prized over EPA’s commitment to public health and the environment.” 

PEER has previously pursued litigation faulting EPA for routinely preventing creation of records documenting the basis for its actions under former EPA head Scott Pruitt. Wheeler won dismissal of the suit by promising reforms, but the PolyMet case and other instances raise new questions as to the efficacy of those reforms, according to a press statement issued by PEER.

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