EPA union releases leaked email showing apparent malfeasance in PolyMet mine permit process
CHICAGO (June 18, 2019)--The union representing Environmental Protection Agency Region 5 employees in Minnesota, the American Federation of Government Employees (AFGE) Local 704, on Tuesday released an internal EPA email they obtained through an anonymous leak showing how the Minnesota Pollution Control Agency (MPCA) pressured EPA leadership to suppress comments from EPA staff raising concerns about the permit for the controversial PolyMet mine. AFGE Local 704 released the email in response to news reports raising questions about the apparent malfeasance in the permitting process for the controversial PolyMet mine. Last year, after nearly 15 years of study and debate, the Minnesota Department of Natural Resources approved PolyMet’s copper-nickel mining operation close to the Boundary Waters. It was up to MPCA, with EPA’s oversight, to issue a permit to the mine that allows operations to discharge wastewater in compliance with the Clean Water Act.
“We are releasing internal correspondence that we received anonymously which shows that the State of Minnesota pressured EPA Region 5 to delay submitting its comments on the PolyMet mine permit until after the public comment period elapsed,” said Nicole Cantello, President of AFGE Local 704. “The apparent actions by both EPA and MPCA leadership to avoid transparency about the environmental impact of the PolyMet mine should raise serious flags for anyone who cares about the Boundary Waters.”
According to recent reports, EPA Region 5 Director Cathy Stepp allegedly tried to minimize EPA staff comments that were critical of the PolyMet proposal, by requiring staff to read their comments over the telephone to the MPCA, rather than properly submitting the written comments.
Last week, the EPA Region 5 Great Lakes Office publicly released written draft comments on the PolyMet permit. Some of those comments raised serious questions about the permit’s compliance with key requirements of the Clean Water Act.
An email from then-Minnesota Pollution Control Agency Assistant Commissioner Shannon Lotthammer to EPA Region 5 Chief of Staff Kurt Thiede shows that MPCA pressured EPA to delay the submission of comments on the PolyMet permit, even though those comments, if submitted, were legally required to be published during the public comment period. The email was provided to AFGE 704 anonymously by an apparent whistleblower.
“By asking EPA to submit its comments after the public comment period, in whatever form, MPCA was attempting to suppress those comments from public review,” said Cantello. “This suppression is completely inappropriate and allowed those comments to remain secret.”
The pertinent part of Lotthammer’s email, sent May 13, 2018, states:
“The concern we have expressed to Region 5 staff/mgrs is the timing of EPA comments, not the ability for EPA to comment. The draft permit that is the subject of this discussion is on public notice until March 16. We know that we will be making some changes to the draft permit in response to public comments, and also questions raised by EPA. We have asked that EPA Region 5 not send a written comment letter during the public comment period and instead follow the steps outlined in the MOA, and wait until we have reviewed and responded to public comments and made associated changes before sending comments from EPA.”
Following the apparent directive of Lotthammer’s email, EPA apparently did not submit a single public comment during the public comment period, nor did any such comments appear in the public record for the PolyMet permit.
Further, on Page 17 of a May 31, 2019 filing before the Minnesota Appeals by MPCA, MPCA said that it “did not receive written comments from EPA, did not take efforts to keep EPA’s written comments out of the administrative record, or fail to disclose the existence of EPA comments.”
“Based on Lotthammer’s email, we believe this statement, just recently filed with the Court by MPCA, may be false,” said Cantello. “EPA and MPCA appear to have acted together to evade rules devoted to public transparency. This is unacceptable. In addition, the document seemingly contradicts statements made by MPCA to the Minnesota Appeals Court, raising issues of public integrity and trust for all involved. Minnesotans deserve full transparency when it comes to the safety of the water they and their children drink every day. EPA and MPCA owe the public an explanation, and those involved in these communications must answer for them.”
Following is the full text of the email, sent March 13, 2018:
Thank you and Cathy for the opportunity to connect with you on this matter. By way of introduction, as John notes below I’m assistant commissioner for Water at MPCA, and prior to that I led a division here at MPCA that included both our water quality standards efforts and support for our permitting programs.
The agreement John references is the Memorandum of Agreement (MOA) that exists between MPCA and Region 5 EPA regarding the NPDES program delegation to MPCA. That agreement is attached. The question at issue is the timing of EPA written comments on draft/proposed NPDES permits.
As you’ll note in the highlighted portions of page 27-28 of the attached .pdf (which are pages 10-11 of the actual MOA) the established process is for MPCA to place the draft permit on public notice, consider and respond to public comments and make any resulting changes that are necessary, and then to submit the proposed permit to EPA for review and comment (which could include objection) prior to final issuance.
The concern we have expressed to Region 5 staff/mgrs is the timing of EPA comments, not the ability for EPA to comment. The draft permit that is the subject of this discussion is on public notice until March 16. We know that we will be making some changes to the draft permit in response to public comments, and also questions raised by EPA. We have asked that EPA Region 5 not send a written comment letter during the public comment period and instead follow the steps outlined in the MOA, and wait until we have reviewed and responded to public comments and made associated changes before sending comments from EPA.
We have been meeting regularly with Region 5 permitting folks to identify and work through questions, and we would be happy to continue to do so as we review and respond to public comments and continue to refine the draft permit. I also understand that some EPA staff are concerned that the 15-day timeline laid out in the MOA for EPA review and comment/response/objection is not sufficient time given the complexity of this draft permit. We are certainly sympathetic to the need for adequate review time, and we’d be happy to talk about and memorialize via a letter or a meeting a longer time frame for EPA review prior to permit issuance.
Again, I wish to stress, as I have with Chris Korleski and Kevin Pierard, that the concern here is not about EPA’s authority for review. We recognize and respect that authority. The question is about the timing of that review, and the importance of maintaining the approach laid out in the MOA for the sake of clarity and efficiency, among other goals.
I would be happy to talk with you more about this matter, or to provide any additional information that would be helpful. Thank you again for the opportunity to connect. The MPCA and Region 5 EPA have a strong working relationship, and I wish to do all I can to reinforce our partnership and continue to strive towards our shared goals of water quality protection and excellence and public service.
Minnesota Pollution Control Agency