Facing mounting scrutiny over how it handled comments from federal regulators, the Minnesota Pollution Control Agency is aiming to clear up how it managed concerns with the water permit issued to PolyMet earlier this year.
In a 14-page document being made public by the agency, the MPCA walks through about two dozen comments made by the federal Environmental Protection Agency about the permit, focusing largely on water quality guidelines and enforceability.
MPCA spokesman Darin Broton said the document considered and addressed all of the EPA’s concerns, and was delayed in being released as the state agency combed through the latest memo on the permits, according to the Star Tribune’s initial reporting last week.
“We wanted to triple check to make sure that we addressed all those things,” Broton said in a phone interview with the Mesabi Daily News. “We can say confidently that we addressed all the concerns that the EPA has gone through and shared with us. Unfortunately, that due diligence on our part means we are not as quick at responding as our opponents are at firing off accusations. At the end of the day we have full confidence in our permit and we did everything possible to protect Minnesota’s most precious resource — it’s water.”
Katrina Kessler, assistant commissioner on water policy for the MPCA and a former permit writer and environmental engineers, explained the document and the agency’s response in a conference call Monday with the Mesabi Daily News.
One of the biggest concerns raised by EPA officials, she said, was how the permit addressed the “reasonable potential” for discharge to violate downstream standards in the Clean Water Act. This included a number of potential pollutants discharged related to the Water Quality Based Effluent Limit (WQBEL) in the Clean Water Act and how they could exceed those limits downstream.
The challenge for PCA regulators was that PolyMet doesn’t have an active discharge to measure, meaning the agency had to scale up the company’s pilot test on proposed treatment to the size of a full-scale facility.
PolyMet opted to employ a membrane filtration — nanofiltration followed by reverse osmosis — to treat the discharge, the same type of treatment drinking water facilities use to produce potable water to remove “essentially all pollutants,” Kessler said.
It wasn’t a surprise, she added, that analyzing PolyMet’s discharge showed “no reasonable potential” to implement a WQBEL in the permit.
“We were not able to check the box,” Kessler said. “That said, we recognized there were concerns that this is the first of its kind in the state, and we need to do a very good job demonstrating how we’re protective and put extra layers of conservatism in there to make sure that in the event a failure happens, we are protecting downstream conditions and these are enforceable parts of the permit.”
MPCA worked with the EPA to develop enforceable operating limits for PolyMet on eight potential pollutants — mercury, sulfate, copper, cobalt, arsenic, lead, nickel and the overall toxicity of the mix — equal to the water quality standard.
Kessler said the MPCA has no reason to believe the membrane filtration system will put out levels close to violating the standard, but said the state was being responsive to concerns.
A further concern of the EPA was that standards used by the MPCA in the permit were less enforceable than a WQBEL, but the agencies worked together to reach a “common understanding” on that the standards are subject to the same severity of enforcement.
“We have a whole host of options,” Kessler said. “Ultimately they agreed the limits in the permit were an enforceable part of the permit, and that was part of the basis of them not object to the permit.”
Because of a long-standing memorandum of understanding between the EPA and MPCA, the federal agency cannot openly approve of a permit. They can either comment, object or not object. Kessler said the MPCA has had conversations with the EPA about revisiting discussions on that agreement.
“Everyone would love to have a letter from EPA that says, in glowing endorsement, we approve of this permit,” she added. “Their non-objection is the same thing as approving.”
A second large issue raised by EPA dealt with pollutants in stormwater discharge generated from construction and operation at PolyMet, and how the MPCA permit control and enforced its downstream pollution.
Minnesota uses a standard stormwater model used in numerous states across the country that is endorsed by the EPA, Kessler said, contingent on the company submitting a site specific plan reviewed by MPCA engineers.
PolyMet presented a comprehensive stormwater pollution prevention plan, she added, that includes wet ponds to collect flow, settle out pollutants, dry infiltration areas to trap runoff particles and a combination of wet and dry controls and filters. That plan was reviewed and approved by MPCA engineers.
Once PolyMet moves into operation, it will be covered under a general industrial permit that requires the company to maintain its stormwater pollution practices, but specifically requires stormwater that touches industrial activity must be run through and treated through the same membrane filtration system.
“They’re actually treating stormwater runoff to a very sophisticated low level once the operation takes effect,” Kessler said. “Which is far more than anyone else is doing in the state.”
That component, she added, was discussed with the EPA, which came around to understand the state’s approach and didn’t object to it.
Currently happening at the PolyMet site is the monitoring and cleaning up of legacy pollution from the LTV/Cliffs/Erie Basin, which the state required the company to do as part for the project to move forward.
Under the agreement, PolyMet is accountable for the prior contamination and allowing monitoring to create baseline data for the MPCA to monitor and check compliance.
There are 52 monitoring wells at the property and once operation begins, PolyMet will be treating that runoff as an enforceable part of the project.
Broton said the push to halt all permits for the project, a point raised last week by 18 Democratic lawmakers and environmental groups opposing the project, would be detrimental to the legacy cleanup.
“If a stay were to be issued or if the courts were to throw out the permits, all these pieces on monitoring would stop,” he said. “That was part of the deal for PolyMet to move forward. All that would come to a screeching halt.”
Under the Walz administration and new MPCA Commissioner Laura Bishop, the agency is reaching for a higher level of transparency on the permitting process, how they handle comments and hold the permit holder accountable.
The release of the document was a step in that direction, Broton said, a break from the previous administration that took the approach of putting a permit out in the public sphere and letting people decide if it was a good one or not.
He noted the PolyMet permit is a 479-page document and the agency can’t reasonable expect a person to read through its entirety.
It also sets the stage for a potentially more contentious environmental review when Twin Metals releases its mine plan for a copper-nickel mine near the Boundary Waters Canoe Area Wilderness, which is expected later this year. A third copper-nickel project is also being scouted by Vancouver-based Teck, formerly known as Teck Cominco, and sits between the proposed PolyMet mine and the Peter Mitchell taconite mine operated by Cleveland-Cliffs’ Northshore Mining.
“This is a new technology and these are mines we’ve never had before here — much different from than taconite,” Broton said. “So we want to make sure our process and our permits on this are rock solid. A lot of things here are at stake.”