On June 12, 2019, the U.S. Environmental Protection Agency (EPA) finally released EPA comments highly critical of the water pollution permit prepared by the Minnesota Pollution Control Agency (MPCA) for the controversial PolyMet project, which would be Minnesota’s first copper nickel mine.
Minnesota environmental group WaterLegacy had sought these comments for more than a year, and had sued EPA under the Freedom of Information Act (FOIA) to secure these comments. EPA released the comments on the day that EPA briefs were due to respond to WaterLegacy’s legal complaint.
Once permitted and all of its financing in place, Polymet has plans to develop an open pit copper-nickel mine on a 30-square-mile patch of land that includes the old Erie Mining Plant processing facility, rail line, and tailings basin in the Hoyt Lakes area.
The NorthMet project, as it is called, would create three open pit mines for copper, cobalt, nickel and other precious metals, with the deepest mines being about 700 feet. Waste rock would be stored next to the mines and be piled as high as 20 stories.
Opponents of the proposed mine worry that sulfide ore, or the sulfide tailings (waste rock) that are exposed to air and water during the mining, will create sulfuric acid and drain into the BWCAW watershed, devastating the plants, fish and animals.
WaterLegacy attorney Paula Maccabee explains, “Minnesotans concerned about preventing sulfide mining’s toxic pollution achieved a huge victory. EPA’s devastating criticism of the PolyMet water pollution permit has finally seen the light of day, and EPA has now released comments on the PolyMet permit that had long been kept secret from the public. These comments reveal that EPA was highly critical of the draft PolyMet permit.”
The PolyMet water pollution permit is a regulatory milestone. PolyMet represents a major new discharger in Minnesota’s Lake Superior watershed and Minnesota’s first proposed coppernickel sulfide mine.
Shortly after the public comment period for the permit closed on March 16, 2018, WaterLegacy learned secondhand that EPA hadn’t submitted its written comments, even though EPA professionals were very concerned that the PolyMet permit would fail to protect Minnesota waters.
Since March 2018, WaterLegacy has submitted five Data Practices Act requests for these hidden comments and any notes taken by MPCA about these comments; they also filed two Freedom of Information Act (FOIA) requests to the EPA.
WaterLegacy was not alone in efforts to protect the integrity of the regulatory process from EPA and MPCA irregularities. Jeffry Fowley, a retired lawyer with the EPA, conducted an investigation and learned what had happened behind the scene. Both Fowley and the Fond du Lac Band of Lake Superior Chippewa asked for an EPA Office of Inspector General investigation of the irregular procedures in suppressing EPA’s comments on the PolyMet permit.
During this process, EPA confidential sources disclosed that MPCA had taken notes when EPA comments about the PolyMet mine were read aloud, and that MPCA had asked EPA not to send its written comments to the agency. MPCA has admitted that staff took notes when the EPA comments were read aloud to them, but then destroyed their own notes.
Paula Maccabee, counsel for WaterLegacy, explains, “From what we have learned, it is clear that both EPA and MPCA engaged in highly irregular procedures to keep EPA’s criticism of a weak PolyMet permit hidden and benefit PolyMet at the expense of the Minnesota public. Only through the combined efforts of WaterLegacy, the Fond du Lac Band, Congresswoman McCollum, a retired EPA lawyer, and professional EPA staff who confidentially shared information, was EPA’s devastating assessment of failure to control PolyMet pollution brought to light.”
A copy of EPA’s comments describing the deficiencies in the PolyMet water pollution permit is attached, with EPA staff notes indicating what was read aloud to MPCA. Information on WaterLegacy and the PolyMet NorthMet mine is available at www.waterlegacy.org.
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