“I can’t stress enough how troubling these communications appear and the doubts they cast on MPCA, EPA and past Minnesota House political leaders acting together to undermine the protection of Minnesota waters under the Clean Water Act.””

Paula Maccabee, Water Legacy

REGIONAL— A new release of documents from the U.S. Environmental Protection Agency confirm that the state’s top environmental official was in contact with the EPA’s regional administrator last year in an effort to limit commenting by the federal agency on the PolyMet water discharge permit. At the same time, the documents, released to the Fond du Lac Band and Water Legacy as part of a Freedom of Information Act request, reveal that two state House Republicans, former Speaker Kurt Daudt and Rep. Dan Fabian, had contacted regional EPA administrator Cathy Stepp to determine her willingness to allow the Minnesota Legislature to potentially weaken the state’s wild rice sulfate limit of 10 milligrams per liter.

“These documents are blockbuster revelations,” said Paula Maccabee, WaterLegacy’s advocacy director and legal counsel. “I can’t stress enough how troubling these communications appear and the doubts they cast on MPCA, EPA and past Minnesota House political leaders acting together to undermine the protection of Minnesota waters under the Clean Water Act.”

Water Legacy and the Fond du Lac Band had filed suit in federal court last month after the EPA failed to respond to their request for the documents, mostly emails. A union representing EPA workers had released a single email from former MPCA Assistant Commissioner Shannon Lotthammer earlier this summer. That March 13, 2018, email showed that the MPCA had concerns about the timing of the release of EPA staff comments on the PolyMet water permit, known as an NPDES permit, and that the state agency had asked the EPA not to provide comments during the public comment period. That single email referenced other communications, however, which the EPA has now released. The newly-released emails confirm that former MPCA Commissioner John Linc Stine spoke to EPA’s Stepp and her chief of staff Kurt Thiede on March 12, 2018, to discuss the EPA’s potential comments and other topics.

Ultimately, Stepp, a Trump appointee, restricted EPA professional staff to reading their concerns about the PolyMet permit over the phone to MPCA officials, rather than submitting them in writing as is the usual procedure. MPCA officials acknowledge they took handwritten notes of the EPA’s concerns, but those notes were never included in the official record of the permitting process, which meant any court review would likely be undertaken without knowledge of the fact that EPA staff believed the PolyMet permit might not comply with the Clean Water Act.

If that was the MPCA’s intent, it went badly awry when a public records request from Water Legacy uncovered a set of the notes of the phone call between EPA and MPCA officials. The revelation has prompted allegations that both the MPCA and EPA may have acted in bad faith and sparked both state and federal investigations.

The Minnesota Court of Appeals has since put PolyMet’s NPDES permit on indefinite hold and took the nearly unprecedented step in late June of sending a legal challenge of the permit, by the Fond du Lac Band and a coalition of environmental groups, to Ramsey County District Court to allow for more fact-finding into the MPCA’s actions.

MPCA spokesperson Darin Broton, in response to questions from the Timberjay, suggested that the MPCA had reached out to the EPA simply to improve the efficiency of their commenting. "MPCA was making changes to the draft permit based on public feedback and other considerations,” said Broton. “MPCA staff was trying to provide the EPA with an updated version for feedback.”

Broton also noted that the EPA is legally authorized to comment whenever it feels it is appropriate. “The MPCA does not have authority to instruct/order any federal agency not to submit comments,” he stated.

The emails released this past week also show that top GOP lawmakers in the Minnesota House were in discussion with EPA’s Stepp as well as MPCA officials about their legislation designed to substantially weaken the state’s sulfate standard for wild rice waters. A March 8, 2018, email from EPA regional chief of staff Kurt Thiede recounts a conversation from the previous day between Stepp, then-House Speaker Kurt Daudt, and Rep. Dan Fabian. “After a discussion of a bill that is being debated in the MN state legislature that would limit MPCA’s ability to impose a numerical standard for sulfides (sic), the Speaker asked if you would support their action (legislation),” Thiede writes. “You did not commit to supporting their legislation, but rather you responded that what you could do is respect the MN legislative process and would reach out and work with John Linc Stein (sic) on the implementation of any policies or rules needed to implement their MPDES (sic) program. In addition, you noted your commitment to resolve the longstanding MPDES (sic) impasse.”

The emails document that Stepp did have a conversation with Commissioner Linc Stine four days later, on March 12. An email written from Linc Stine later that day thanks Stepp for the conversation and includes the subject line: “RE: Minnesota Speakers Office.”

To Water Legacy’s Maccabee, the emails suggest a troubling level of collusion and secrecy between officials who were charged with protecting environmental quality. The emails, she said, “suggest that EPA was negotiating with political leaders in the Minnesota House of Representatives as well as with Commissioner Stine without informing tribes, the public or concerned environmental groups who had raised questions about both the PolyMet permit and enforcement of the wild rice sulfate standard.”

Rep. Dan Fabian, R-Roseau, takes strong exception to Maccabee’s characterization of collusion, saying that he was working in a bipartisan manner last year to find a workable solution to the state’s longstanding impasse over the wild rice sulfate rule. He said the current wild rice standard had never been enforced and that he was working with lawmakers from the Iron Range and other parts of rural Minnesota, to try to establish a standard that was more easily enforceable. “Why would we continue to chase that unrealistic number?” he asked. “Why wouldn’t we try to find something that can actually be written into a permit?”

Fabian, who had headed the House Environment and Natural Resources Committee at the time, said he’s heard from more than just the taconite industry on the issue, including sugar beet processors and municipalities who discharge treated wastewater, who are concerned that enforcement of the wild rice standards could be unaffordable.

While the bill produced by the Legislature last year was ultimately vetoed by Gov. Mark Dayton as too lax, industrial dischargers continue to anticipate that the state will weaken the rule at some point. PolyMet officials have already signaled that they believe the wild rice standard will be eliminated or modified. The company’s most recent technical feasibility study, issued in March 2018, notes that: "For purposes of this study, PolyMet has assumed that the Minnesota water quality standards governing sulfate in wild rice water will be revised, as required by law, after the project is in operations.”

MPCA’s Broton said that “no new changes in the wild rice sulfate standards are currently being planned.” The agency’s earlier effort to institute a so-called “flexible” standard was thrown out by an administrative law judge last year. Even so, as Broton confirmed, “the Legislature is preventing the MPCA from enforcing the strict standard.”

In the case of PolyMet, Broton notes that the company voluntarily agreed to have the wild rice standard incorporated into its permit, making it the first mine in the state to voluntarily submit to the standard. That does not prevent the company from seeking exemption from the standard if the Legislature and the MPCA are ultimately successful in weakening the law. PolyMet’s current NPDES permit would be up for renewal, and potential modification, in less than five years.