PolyMet scores a hat trick!

Marshall Helmberger, editor of the estimable Timberjay newspaper, tells the story well. In the space of a handful of days, the PolyMet water discharge permit issued by the infidels (Infidel: someone lacking fidelity to a set of principles — or the law) at the Minnesota Pollution Control Agency racked up not one, not two, but three investigations into “irregularities” [cough, cough] in consideration and issuance of the permit.

Really good work, people.

1) Several days ago, the Inspector General of the United States Environmental Protection Agency announced an investigation of the consideration of the PolyMet water permit by the EPA and the communications it had with the Minnesota Pollution Control Agency about the permit. Serious EPA staff objections to the permit were never made part of the public record — heh, until now.

2) At the request of Rep. Rick Hansen, the Chair of the Environment and Natural Resources Finance Division and the Chair of the Legislative Coordinating Commission, James Nobles, the Legislative Auditor, has agreed to commence an immediate investigation into the MPCA’s decision making on the water discharge permit.

3) Lastly, but probably firstly, the Minnesota Court of Appeals has sent an appeal of the MPCA’s issuance of the water permit by Water Legacy and other environmental groups to the Ramsey County District Court for some serious record making about “substantial evidence of procedural irregularities.” This is court speak for something doesn’t smell right here. I’ve described it more colorfully elsewhere. (Hint: follow me on Twitter at @stevetimmer.) Water Legacy and the Minnesota Center for Environmental Advocacy have a great deal of motivation to get to the bottom of what is certainly the malfeasance and infidelity of the staff of the MPCA.

But I think even more people need to be involved in lancing an abscess of corruption here. I will tell you why.

The EPA’s inspector general will necessarily be concerned primarily with the actions of the staff of the EPA. But it was the MPCA that issued the water discharge permit. The MPCA will likely get sideswiped in the Inspector General’s report, but it won’t say that the permit was unlawful. Probably.

The role of the Legislative Auditor is likewise somewhat circumscribed. Here are the last couple of the grafs of the article about the OLA linked above:

Separately, Nobles on Tuesday said his legislative auditor’s office will start examining the permit issues as soon as it can. Their focus is more on transparency of the process, he said. The review may take several months.

“I do not think we are being asked to necessarily look at the substance of their decision,” Nobles said, “but the process by which they arrived at it and whether or not it was consistent with state law and best practices.”

We already know the process stunk, Mr. Legislative Auditor; we don’t need you for that. But godspeed, James Nobles; you have a good staff; let them loose.

Personally, I pin my hope on the nonprofit environmental groups who are heading for the Ramsey County District Court to do discovery and make a record. If you can, send them some money; court reporters and transcription fees ain’t cheap. There are lots of depositions to be taken here.

But back to who else needs to come to the party. First, Governor Walz. By executive action, he needs to suspend the PolyMet permits, especially the water discharge permit and the permit to mine while a record is made on the corruption, malfeasance, and infidelity involved in their issuance. This is his administration now, and it’s his MPCA, too.

Attorney General Keith Ellison is another Minnesota executive officer who needs to come to the table. AG Ellison’s jurisdiction is not circumscribed the way the Legislative Auditor’s is. The statute that deals directly with malfeasance of public employees is much broader than the brief of the Legislative Auditor.

609.43 MISCONDUCT OF PUBLIC OFFICER OR EMPLOYEE.
A public officer or employee who does any of the following, for which no other sentence is specifically provided by law, may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both:
(1) intentionally fails or refuses to perform a known mandatory, nondiscretionary, ministerial duty of the office or employment within the time or in the manner required by law; or
(2) in the capacity of such officer or employee, does an act knowing it is in excess of lawful authority or knowing it is forbidden by law to be done in that capacity; or
(3) under pretense or color of official authority intentionally and unlawfully injures another in the other’s person, property, or rights; or
(4) in the capacity of such officer or employee, makes a return, certificate, official report, or other like document having knowledge it is false in any material respect.

The role of the Legislative Auditor is limited generally to injuries to the state and the conduct of its agents, not third parties, like PolyMet or its agents.

AG Ellison has said recently that he would defend the stupid elbows-and-knees-under-the-basket state laws to limit access to abortion which have recently been challenged in court, even though he says he is pro-choice. He ought, in my view, certainly to be at least as interested in the demonstrated corruption of an important cabinet-level department of state government.

But maybe that’s just me.

Ancillary to AG Ellison, of course, are the BCA, and the Ramsey County Sheriff and Attorney.

This is as big a scandal in state government as I can remember, and it needs serious law enforcement attention.

Update: But there is really nothing new under the sun for Minnesota’s Pollution Control Agency.

An Award for Polluting

Further Update: The Timberjay story linked just about is about how in the Orwellian world of mining regulation, you can be a serious polluter yet receive an award for regulatory compliance. Here’s a few grafs from the story:

I put that question [how can you get an award for polluting] to the MPCA, and I’ll let Darin Broton, the new spokesperson for the agency, explain:

“The current permit does not have effluent limits for sulfate, hardness, and specific conductance and thus there is no permit noncompliance associated with these parameters. The permit does not have an effluent limit for nickel as an individual parameter for the constructed wetland treatment systems – the permit instead includes an effluent limit for ‘additive toxicity’ of which nickel is a component. All five wetland treatment system discharges routinely meet the permit ‘additive toxicity’ effluent limit.”

There is a lot in this answer, but let’s be clear about the most basic issue— the MPCA’s approach to mining pollution far too often is to eliminate any requirement to comply with a specific effluent standard. As long as the company takes its monthly water samples and sends the results to the MPCA, they are in full compliance with their permit, even if the test results show the facility is polluting Minnesota waters. This approach by the MPCA not only allows mining companies to continue to pollute, it actually indemnifies the company against lawsuits that citizens might otherwise be allowed to file.

It also allows copper-nickel mining supporters to make misleading claims about the environmental impacts of sulfide-based rock, by suggesting that the Dunka pit does not pose an environmental hazard simply because it is in compliance with an unconscionably-weak discharge permit.

You have to wonder if PolyMet VP and former head of the Minnesota Pollution Control Agency Brad Moore was hired specifically to help engineer an “unconscionably-weak discharge permit.”

Maybe. But it’ll be nice to have Professor Wigmore’s Great Engine of Truth, cross examination, to help us find out.

If a mining company can engineer a weak permit, it becomes a virtual property right, literally permitting it to pollute in perpetuity. The regulators in Minnesota won’t ever make it tougher; we have a hundred years of proof of that, and citizens can’t sue because of the “permit shield.”

The terms of the permit are the whole game, really, now and forever, which is why the corruption at the MPCA, aided and abetted by others we haven’t yet identified, is such a problem and needs such thorough investigation.

But that doesn’t mean that fumbling idiots like Rep. Dave Lislegard from Aurora won’t say things like this:

PolyMet is the most highly regulated mining company in Minnesota history. The level of scrutiny in environmental review and permitting, the additional investment toward required environmental safeguards, the abundance of ongoing reporting requirements, and the level of financial assurance are each far greater than any mine ever in Minnesota.

Yes, Dave, and the MPCA pissed it all away by issuing a water discharge permit in the dark.

Rep. Lislegard is obviously another northern Minnesota PolyMet sycophant legislator who has either no understanding of the permitting and regulation here, or he doesn’t care.