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EPA’s OIG to investigate handling of PolyMet permit

Marshall Helmberger
Posted 6/19/19

REGIONAL— 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 …

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EPA’s OIG to investigate handling of PolyMet permit


REGIONAL— 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.”

PolyMet Mining proposes to build Minnesota’s first copper-nickel mine near Hoyt Lakes.The MPCA granted the company its water discharge permit, known as an NPDES permit, last December.

EPA professional staff, who had worked on the PolyMet permitting process had drafted written comments outlining their concerns but were allegedly told they could not submit them to the MPCA as would normally be done as part of the process on a major permit. Instead, in April of 2018, the EPA staff read portions of their written comments to MPCA officials over the phone. MPCA officials acknowledge the phone conversation took place but have since stated in court filings that they destroyed their notes of the call.

In order to address an ongoing legal fight over access to the EPA comments, the federal agency released the seven-page comment letter to environmental groups, including Duluth-based Water Legacy, on June 12. The comments cited several instances where the EPA officials believed the PolyMet permit did not comply with federal and state water quality laws and rules, and was likely unenforceable.

A retired EPA attorney, Jeffry Towley, had filed an affidavit with the court in that case, alleging that a top official with the MPCA, possibly former Commissioner John Linc Stine, had asked Stepp to withhold the comments. EPA whistleblowers allege that the MPCA wanted to keep EPA’s concerns out of the administrative record, which courts must rely on to determine whether an agency’s decision was appropriate. Tribal governments in Minnesota along with several environmental groups are currently suing the MPCA over the issuance of the NPDES permit to PolyMet.

Now released, the EPA comments are likely to pose a major headache for the MPCA as the agency attempts to defend its permit decision in court.

In her June 12 letter, Khadija Walker, with the EPA’s Office of Inspector General, informed Stepp that the OIG’s objective “is to determine whether the EPA followed appropriate Clean Water Act and NPDES regulations to review the PolyMet permit approved by Minnesota and issued in 2018.”

As part of that investigation, the OIG is seeking “analysis and meeting documents from all staff and management related to the review of the PolyMet permit issued in 2018, to include Region 5’s written comments for the permit.”

In her letter, Walker indicated that her office would be in touch about setting up an initial meeting within two weeks to discuss the investigation, answer questions, and obtain documents for review by investigators. The letter provides no timeline on how long the investigation might take to complete.


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