The Star Tribune is absolutely right to shame the Interior Department for its secrecy regarding a scientific study of the risks of copper-nickel mining near the Boundary Waters (“End the secrecy on federal BWCA study,” April 14). As the editorial noted, the refusal to release documents about the study “suggests there is something to hide.”

Similar secrecy exists surrounding the permits issued to the PolyMet copper-nickel mine proposal. In PolyMet’s case, what is being hidden could harm thousands of people who live downstream of the proposed mine and strip them of any recourse if PolyMet pollutes their water.

PolyMet’s permits, issued a few months ago, are now being challenged in court. In a permit appeal, the court relies on the agency’s record to review the agency’s decision. This record comprises communication about the decision, including e-mails, notes, reports and comments from citizens and government agencies. If something isn’t in that record, it can’t be used in the appeal. If something isn’t written down, there’s nothing for a court to review.

Throughout the PolyMet permitting process, the U.S. Environmental Protection Agency provided specific written comments. EPA’s written comments are pivotal, because it is the authority on the Clean Water Act and whether a permit complies with federal law. In 2010, EPA’s comments on an earlier version of the mine found the proposal would pollute the Embarrass River. This forced PolyMet back to the drawing board to make major revisions. That’s why the sudden silence of the EPA at the end of the PolyMet permitting process was particularly jarring.

Data requests uncovered handwritten notes detailing phone calls between the EPA and Minnesota Pollution Control Agency staff. EPA scientists and attorneys repeatedly raised concerns about the lack of enforceable, numerical limits on pollution downstream in the PolyMet water permit. PolyMet’s permit requires it to use certain technology without limiting its downstream pollution. But the technology may not function as PolyMet is hoping, or there may be other sources of pollution at the site. Indeed, modeling shows PolyMet will cause pollution for hundreds of years, so it seems almost inevitable that some pollution will leak from the mining site.

Instead of EPA submitting its critical comments in writing, which would allow the public to see them, the MPCA and EPA struck a deal where EPA staff dictated their written concerns over the phone. But unless the written comments from EPA come to the surface, the courts will never have the opportunity to consider these concerns. In the end, none of EPA’s concerns about the PolyMet water permit made it into the record, because they were never written down and submitted.

This secrecy is not just bureaucratic bungling. If the EPA was raising a red flag about the PolyMet water permit, the public deserves to know it. In discussions with MPCA staff, EPA warned them that this permit would not be enforceable. From what we can see, PolyMet’s water permit won’t just fail to prevent pollution — it will actually prevent PolyMet from being held accountable if pollution occurs. As long as PolyMet complies with the terms of the permit, the company will be shielded from liability for pollution it creates. Right now, the water permit would protect PolyMet more than the people who would be harmed by pollution.

A whistleblower in the EPA regional office raised this issue, setting off an inquiry by the EPA’s Office of the Inspector General. In addition, U.S. Rep. Betty McCollum sent a letter to the EPA requesting the written comments prepared by staff that were never delivered to Minnesota regulators. But to date, the EPA has not provided the written comments to anybody, including the court reviewing the water permit.

Minnesotans who are shocked by the Department of Interior’s secrecy on the Boundary Waters study should know that similar secrecy infects the PolyMet permitting process. Since Minnesota has never permitted a copper-nickel mine before, the PolyMet permits provide a blueprint for future mines to follow. The blueprint should be one of transparency, not secrecy. EPA’s comments should be made available for the public and the courts to review.

 

Kathryn Hoffman is the chief executive of the Minnesota Center for Environmental Advocacy.