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U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF INSPECTOR GENERAL
Hotline Report:
Ensuring clean and safe water
Improved Review Processes
Could Advance EPA Regions 3
and 5 Oversight of State-Issued
National Pollutant Discharge
Elimination System Permits
April 21, 2021
Report No. 21-P-0122
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Report Contributors: Kathlene Butler
Allison Dutton
Lauretta Joseph
Alicia Mariscal
Johnny Ross
Jay son Toweh
Khadija Walker
Abbreviations
C.FR. Code of Federal Regulation
CWA Clean Water Act
EPA U.S. Environmental Protection Agency
NPDES National Pollutant Discharge Elimination System
OIG Office of Inspector General
U.S.C. United States Code
Cover Photo: Wild rice lake in the Fond du Lac Band of the Lake Superior Chippewa
Reservation. The Fond du Lac Band tribal lands are located along the
St. Louis River in northeastern Minnesota, 125 miles downstream from a
proposed mine and processing site. (EPA OIG photo)
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U.S. Environmental Protection Agency
Office of Inspector General
At a Glance
21-P-0122
April 21, 2021
Why We Did This Audit
The Office of Inspector General
for the U.S. Environmental
Protection Agency sought to
determine whether the EPA's
reviews of state-proposed
National Pollutant Discharge
Elimination System, orNPDES,
permits verify that the permits
adhere to Clean Water Act, or
CWA, requirements. This audit
was initiated based on three
complaints submitted to the
OIG Hotline about the Agency's
oversight of state-issued
NPDES permits in EPA
Regions 3 and 5.
The EPA has federal authority
over the implementation and
oversight of CWA and NPDES
regulations. As of August 2020,
46 states and one territory were
authorized by the EPA to
implement their own state
NPDES programs.
This audit addresses the
following:
• Ensuring clean and safe
water.
This audit addresses these top
EPA management challenges:
• Overseeing states
implementing EPA programs.
• Integrating and leading
environmental justice.
Address inquiries to our public
affairs office at (202) 566-2391 or
OIG WEBCOMMENTS@epa.gov.
List of OIG reports.
Improved Review Processes Could Advance EPA
Regions 3 and 5 Oversight of State-Issued National
Pollutant Discharge Elimination System Permits
What We Found
In Regions 3 and 5, the EPA did not follow all relevant
CWA and NPDES regulations and guidelines while
reviewing permits.
Improved EPA
oversight could
ensure that state
NPDES programs
are protecting
human health and
the environment.
Region 3 did not adequately perform its oversight
responsibilities to ensure that NPDES permits issued by
the State of West Virginia meet CWA and NPDES
regulatory requirements. Specifically, West Virginia reissued 286 NPDES mining
permits to reflect revisions made to its water quality regulations in 2015, but it is
unclear whether Region 3 took steps to verify that the CWA's anti-backsliding
provisions were met. In addition, Region 3 experienced permit review delays, and
states within the region issued permits without addressing the EPA's comments.
Region 5 did not address all CWA and NPDES regulations during its review of a
draft NPDES permit for a mine and processing facilities to be built by PolyMet
Mining Inc. along the St. Louis River in northeastern Minnesota. Despite its
concerns about the NPDES permit, Region 5 did not provide written comments
to Minnesota, contrary to the region's standard operating procedures and per
common EPA practice. In addition, Region 5 repeatedly declined to make a
formal determination under CWA § 401 (a)(2) regarding whether discharges from
the PolyMet NorthMet project may impact the quality of waters within the
jurisdiction of the Fond du Lac Band of Lake Superior Chippewa, whose tribal
lands are 125 miles downstream from the site of the PolyMet NorthMet project.
The tribe was therefore unable to avail itself of the NPDES permit objection
process set forth in CWA § 401 (a)(2).
Recommendations and Planned Agency Corrective Actions
We make a total of five recommendations to the regional administrators for
Regions 3 and 5, including that Region 3 review West Virginia's reissued NPDES
mining permits to ensure that no backsliding has occurred and that they contain
appropriate limits for pollutant discharges; that Region 3 develop a formal internal
operating procedure for its NPDES review process; that Region 5 provide written
input regarding any resubmitted NPDES permit for the PolyMet NorthMet project;
and that Region 5 commit to making formal determinations regarding
downstream water quality impacts, pursuant to the CWA. Region 5 agreed with
our two recommendations specific to that region; those recommendations are
resolved with corrective action pending. Region 3 did not agree with our three
recommendations specific to that region; those recommendations therefore
remain unresolved.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
THE INSPECTOR GENERAL
April 21, 2021
MEMORANDUM
SUBJECT: Improved Review Processes Could Advance EPA Regions 3 and 5 Oversight
of State-Issued National Pollutant Discharge Elimination System Permits
Report No. 21-P-0122
Sean W. O'Donnell
FROM:
Sean W. O'Donnell
J
TO: Diana Esher, Acting Regional Administrator
Region 3
Cheryl Newton, Acting Regional Administrator
Region 5
This is our report on the subject audit conducted by the Office of Inspector General of the
U.S. Environmental Protection Agency. The project number for this audit was OA&E-FY19-0340. This
report contains findings that describe the problems the OIG has identified and corrective actions the OIG
recommends. Final determinations on matters in this report will be made by EPA managers in accordance
with established audit resolution procedures.
Regions 3 and 5 are responsible for the recommendations discussed in this report.
In accordance with EPA Manual 2750, Region 5 provided acceptable corrective actions in response to
Recommendations 4 and 5. These recommendations are resolved, with corrective actions pending. A final
response pertaining to these recommendations is not required; however, if you submit a response, it will
be posted on the OIG's website, along with our memorandum commenting on your response.
Action Required
Recommendations 1, 2, and 3, which are directed to Region 3, are unresolved. The resolution process, as
described in the EPA's Audit Management Procedures, begins immediately with the issuance of this
report. Furthermore, we request a written response to the final report within 60 days of this memorandum.
Your response will be posted on the OIG's website, along with our memorandum commenting on your
response. Your response should be provided as an Adobe PDF file that complies with the accessibility
requirements of Section 508 of the Rehabilitation Act of 1973, as amended. The final response should not
contain data that you do not want to be released to the public; if your response contains such data, you
should identify the data for redaction or removal along with corresponding justification.
We will post this report to our website at www.epa.gov/oig.
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Improved Review Processes Could Advance
EPA Regions 3 and 5 Oversight of State-Issued
National Pollutant Discharge Elimination System Permits
21-P-0122
Table of C
Chapters
1 Introduction 1
Purpose 1
Background 1
Responsible Offices 5
Scope and Methodology 6
Prior Reports 8
2 Region 3 Needs to Improve Its Oversight to Ensure NPDES Permits
Meet CWA and NPDES Regulatory Requirements 9
EPA Approval of West Virginia's Request to Make State Program
Modifications Hinders Achieving Water Quality Standards 9
Reasonable Potential Analysis May Not Have Been Performed for
Modified NPDES Mining Permits in West Virginia 12
Ionic Pollution Is Not Addressed in Modified NPDES Mining Permits
in West Virginia 13
Lack of Formal Permit Review Procedure Caused Delays and
Issuance of Permits That Do Not Address Region 3 Comments 14
Conclusions 17
Recommendations 17
Agency Response and OIG Assessment 18
3 Region 5 Needs to Improve Oversight and Address Tribal
Concerns for PolyMet NPDES Permit 19
Region 5 Did Not Follow Its Standard Operating Procedure
for Reviewing the PolyMet NPDES Permit 19
Region 5 Provided Only Oral Comments on Draft PolyMet
NPDES Permit 20
NPDES Permit Concerns Remained Unresolved 21
Region 5 Declined to Determine Downstream Impacts
and Engage Tribe 22
Conclusions 24
Recommendations 25
Agency Response and OIG Assessment 25
Status of Recommendations and Potential Monetary Benefits 26
- continued -
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Improved Review Processes Could Advance
EPA Regions 3 and 5 Oversight of State-Issued
National Pollutant Discharge Elimination System Permits
21-P-0122
Appendices
A Internal Control Assessment 27
B Region 3 Response to Draft Report 28
C Region 5 Response to Draft Report 35
D Distribution 53
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Chapter 1
Introduction
Purpose
The U.S. Environmental Protection Agency's Office of Inspector General
conducted this audit to determine whether the EPA adhered to the requirements of
Top Management Challenges
This audit addresses the following top management
challenges for the Agency, as identified in OIG
Report No. 20-N-0231. EPA's FYs 2020-2021 Top
Management Challenges, issued July 21, 2020:
• Overseeing states implementing EPA programs.
• Integrating and leading environmental justice.
CWA and NPDES regulations. This audit was initiated based on complaints
submitted to the OIG Hotline regarding the EPA's oversight of state-issued
NPDES permits in Regions 3 and 5.
Background
Water pollution degrades water quality, making surface water unsafe for drinking,
fishing, swimming, and other activities. As authorized by the CWA, the EPA
implements the NPDES permit program to control water pollution by regulating
point sources that discharge pollutants into waters of the
United States.
Under the CWA, the EPA may authorize state, tribal, and
territorial governments to implement the permitting,
administrative, and enforcement aspects of the NPDES
program. As of August 2020, 46 states and one territory are
authorized to implement their own NPDES programs. For
the purpose of this report, we refer to these authorized
programs as state NPDES programs and the permits these
state NPDES programs issue as state-issued NPDES permits.
Each authorized state has a designated state permitting
authority—typically the state environmental department or agency—that manages
the state NPDES program. The EPA retains oversight responsibility for state
NPDES programs and state-issued NPDES permits.
Each authorized state must have a memorandum of agreement in place with the
relevant EPA region that outlines components of the state's implementation of the
NPDES program. NPDES regulations require that these memorandums of
agreement contain certain provisions, including provisions specifying which
the Clean Water Act, or CWA, and
National Pollutant Discharge
Elimination System, or NPDES,
regulations and applicable guidance
while reviewing state-issued NPDES
permits. Specifically, we worked to
determine whether the EPA met its
oversight responsibilities under the
Point source is defined in the CWA to
mean "any discernible, confined, and
discrete conveyance ... from which
pollutants are or may be discharged,"
such as a pipe, ditch, channel, tunnel,
conduit, discrete fissure, or container.
Pollutant includes but is not limited to
dredged spoil; solid waste; sewage;
chemical wastes; biological materials;
radioactive materials; heat; and industrial,
municipal, and agricultural waste
discharged into water.
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classes and categories of permit applications, draft permits, and proposed permits
the authorized state will send to the EPA region for review; comment; and, if
applicable, objection.
While the federal rules distinguish between "draft" and "proposed" permits, not
all permit writers and managers use the terms consistently. A draft permit
comprises the pre-public notice and public notice versions of the permit. A
proposed permit comprises not only the post-public notice version of the permit
but also any post-public hearing versions, versions undergoing administrative
appeals, and the version intended to be adopted as a final permit. A final permit
comprises the official EPA- or state-issued license for a facility to discharge a
specified amount of a pollutant or pollutants into a receiving water under certain
conditions (Figure 1). A modified permit is a permit that has been changed or
updated since its original issuance.
Figure 1: Typical administrative process for state-issued NPDES permits*
Significant EPA
Comments/
Objection
Significant,
Widespread,
Public Interest
EPA review of draft permit
and fact sheet (or statement of basis)"
Public Hearing
No EPA Comments
Draft
Permit
Stage
Issue final permit
Prepare administrative record (If required)
Prepare fact sheet (or statement of basis)
Develop draft permit limits and conditions
Prepare final permit, fact sheet, and admin, record
Public notice (opportunity for public comment)
Final
Permit
Stage
Proposed
Permit
Stage
Source: EPA NPDES Permit Writers' Manual, dated September 2010. (EPA image with EPA OIG
modifications)
*State statutes and regulations govern the specific steps of the state administrative process,
which may differ from the process outlined in this exhibit.
**Underthe memorandum of agreement between the state and EPA, the EPA may review
draft or proposed permit.
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NPDES Permit Requirements
NPDES regulations require that each NPDES permit contain limitations adequate
to achieve the water quality standards of the water body or bodies receiving the
discharge. These are known as effluent limitations in NPDES permits and are the
primary mechanism for controlling the amount of pollutants discharged to
receiving waters. Effluent limitations must control all pollutants or pollutant
parameters that a state has determined will be or may be discharged at a level that
will cause, has the reasonable potential to cause, or will contribute to an
unpermitted discharge—that is, an excess of pollutants—above the state's water
quality standards.
Permit writers for state NPDES programs derive appropriate effluent limitations
based on applicable water quality standards. The effluent limitations must be
adequate to achieve the water quality standards that the state established under
CWA § 303. Water quality standards define the water quality goals of a water
body, or portion thereof, by designating the use or uses to be made of the water
and by setting criteria that protect the designated uses. States may set numeric
water quality criteria or narrative water quality criteria to protect the designated
use of a water body (Table 1). NPDES permits can specify the numeric and
narrative water quality criteria relevant to the receiving water, or they can
incorporate the criteria established in federal and state law by reference.
Table 1: Types of water quality criteria
Numeric
Criteria expressed as concentrations of chemicals in or properties of water that
should protect a designated use.
Narrative
Criteria expressed in concise statements, generally in a "free form" format. General
statements of attainable or attained conditions of water quality for a given use
designation.
Source: EPA, Water Quality Standards Glossary, updated 1997. (EPA OIG table)
For each NPDES permit they issue, state NPDES programs must conduct a
reasonable potential analysis to determine appropriate effluent limitations for
pollutants in discharges. NPDES regulations at 40 C.F.R. § 122.44 specify that for
each pollutant determined to have the reasonable potential to cause an excursion—
in other words, an excess of pollutant—above a state's water quality standard, the
state must include water-quality-based effluent limitations in the permit to control
the discharge of such pollutant. Any reasonable potential analysis conducted
becomes part of the record documentation for the NPDES permit.
Once an NPDES permit has been issued, the CWA "anti-backsliding" provision
requires that the permit not be renewed, reissued, or modified to contain effluent
limitations that are less stringent than comparable effluent limitations in the
previous permit.1
1 33 U.S.C. § 1342(o).
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NPDES Oversight
The CWA and NPDES regulations also establish the EPA's oversight
responsibility for NPDES permits. There is no CWA or regulatory requirement
for the EPA to provide input on each draft or proposed NPDES permit; permit
review is discretionary. However, the EPA has the responsibility to oversee state
NPDES programs. At the time of our audit, the EPA employed two primary
mechanisms to oversee state-issued NPDES permits:
• Real-time reviews of selected draft permits.
• Historical reviews, called permit quality reviews, of final permits.
Real-Time Reviews
EPA regional staff conduct real-time reviews of selected draft or proposed
NPDES permits that authorized states intend to issue. During our audit, we
were told by the then-EPA assistant deputy administrator and chief operating
officer that there was no national policy for conducting real-time permit
reviews; instead, EPA regions used the EPA's permit-quality-review guidance
or region-specific templates to guide their real-time reviews.
During a real-time review, the authorized state sends the appropriate EPA
region a draft or proposed permit selected for review, and the region identifies
any issues regarding the permit's consistency with federal requirements and
communicates these issues to the state. The EPA region can object to the draft
or proposed permit if it identifies significant issues. If the state does not
satisfactorily address the points of objection, the EPA regions have the
exclusive authority to issue the permit directly. The specific process for EPA
real-time reviews varies by EPA region and state, pursuant to the
memorandums of agreement between an EPA region and authorized state.
In December 2020, the EPA issued its National Permitting Oversight Policy
to standardize and improve the EPA's oversight of NPDES permits and
permitting authorities. This policy establishes a framework to "identify
emerging issues, track trends, inform National Program workplans and guide
periodic adjustments to the oversight of individual permitting authorities."
It applies to both annual reviews of states' permitting programs, like the
permit quality reviews, and the real-time review of draft NPDES permits. The
EPA plans to begin implementing the policy in 2021.
Permit Quality Reviews
The EPA conducts permit quality reviews to assess whether previously issued
state-issued NPDES permits meet the applicable CWA and regulatory
requirements. EPA regions are expected to conduct permit quality reviews
every five years for each authorized state NPDES program. During a permit
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quality review, the EPA reviews a sample of at least ten NPDES permits
issued by the state that reflect a cross-section of its permitting authority.
Permit quality reviews enable the EPA to promote national consistency among
and identify successes, challenges, and areas for improvement within state
NPDES programs.
EPA Policies to Engage Tribal Communities
Tribal communities are located in every EPA region and can be affected by EPA
decisions to issue NPDES permits. The EPA Policy on Consultation and
Coordination with Indian Tribes, published in May 2011, establishes national
guidelines and institutional controls for consultation between the EPA and tribal
governments when EPA actions and decisions "may affect tribal interests." The
policy specifically lists permits as an EPA activity appropriate for consultation if
the permits may affect a tribe.
The EPA Policy on Consultation and Coordination with Indian Tribes tasks
regional administrators with overseeing the consultation process with tribes in
their respective regions. The criteria that the EPA uses to identify matters
appropriate for consultation include tribal government requests for consultation.
The policy states:
Tribal officials may request consultation in addition to EPA's
ability to determine what requires consultation. EPA attempts to
honor the tribal government's request with consideration of the
nature of the activity, past consultation efforts, available resources,
timing considerations, and all other relevant factors.
Additionally, the EPA Policy on Environmental Justice for Working with
Federally Recognized Tribes and Indigenous Peoples, published in 2014, affirms
the EPA's commitment to provide federally recognized tribes with fair treatment
and meaningful involvement in EPA decisions that may affect their health or
environment. According to this policy, meaningful involvement denotes that:
(1) potentially affected community members have an appropriate
opportunity to participate in decisions about a proposed activity
that will affect their human health or environment; (2) the public's
input can influence the regulatory agency's decision; (3) the
concerns of all participants involved will be considered in the
decision-making process; and (4) the decision-makers seek out and
facilitate the involvement of those potentially affected.
Responsible Offices
The Office of Water is the primary EPA headquarters office that manages the
NPDES program. The Office of Water delegates oversight responsibility to EPA
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regional offices for states in their region with NPDES authorization; this
responsibility includes real-time review of draft permits.
Scope and Methodology
We performed our work from September 2019 through February 2021. We
conducted this performance audit in accordance with generally accepted
government auditing standards. Those standards require that we plan and perform
the audit to obtain sufficient, appropriate evidence to provide a reasonable basis
for our findings and conclusions based on our audit objective. We believe that the
evidence obtained provides a reasonable basis for our findings and conclusions
based on our audit objective.
As detailed in Appendix A, we assessed the internal controls necessary to satisfy
our audit objective.2 In particular, we assessed the internal control components
and underlying principles—as outlined in the U.S. Government Accountability
Office's Green Book—significant to our audit objective. Any internal control
deficiencies we found are discussed in this report. Because our audit was limited
to the internal control components and underlying principles deemed significant
to our audit objective, it may not have disclosed all internal control deficiencies
that may have existed at the time of the audit.
Our work was initiated based on complaints submitted to the OIG Hotline
regarding the EPA's oversight of state-issued NPDES permits in Regions 3 and 5:
• Region 3: NPDES Review Process Hotline Complaint. The OIG received
a hotline complaint in August 2019 concerning Region 3's oversight of
state NPDES programs. This complaint alleged that regional management
implemented a real-time permit review process that hampered Region 3
staffs ability to review and comment on NPDES permits within the
allowed comment period.
• Region 5: PolyMet Mining Inc. Hotline Complaint. The OIG received a
hotline complaint in January 2019 alleging several issues with Region 5's
oversight of a state NPDES program. The allegation centered on the
EPA's real-time permit review of Minnesota's development and issuance
of an NPDES permit for PolyMet's NorthMet project, which comprises a
mine and processing facilities along the St. Louis River in northeastern
Minnesota. The NorthMet project would mine copper-nickel-platinum
group elements.
2 An entity designs, implements, and operates internal controls to achieve its objectives related to operations,
reporting, and compliance. The U.S. Government Accountability Office sets internal control standards for federal
entities in GAO-14-704G, Standards for Internal Control in the Federal Government (also known as the "Green
Book"), issued September 10, 2014.
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• Region 5: Fond du Lac Band of
Lake Superior Chippewa Hotline
Complaint. The OIG Hotline
received a complaint in February
2019 regarding EPA responsibilities
related to the NPDES permit and
CWA § 404 permit for the NorthMet
project. The EPA notes that the
tribal lands of the Fond du Lac Band
are located 125 miles downstream from the site of the NorthMet project.
The Fond du Lac Band has "Treatment as a State" status and, as such, has
established its own set of federally approved water quality standards under
the CWA.3 The tribe's concern is that the PolyMet NPDES permit is not in
compliance with its or the State of Minnesota's water quality standards,
especially for sulfate limits. High levels of sulfate could dramatically
affect the Fond du Lac Band's ability to grow wild rice. Furthermore, the
Fond du Lac Band made several written requests to Region 5 asking that
the region make a determination pursuant to CWA § 401(a)(2) regarding
whether discharges related to an applied-for CWA § 404 permit may
impact the quality of tribal waters.
After assessing the hotline complaints regarding Regions 3 and 5, we selected an
additional region to further examine regional variations in oversight of state
NPDES programs. We selected Region 10 to broaden our geographical
representation across the country.
Our audit reviewed regional EPA oversight of state NPDES programs and
included detailed reviews of the processes used by Regions 3, 5, and 10 to
conduct real-time reviews of state-issued NPDES permits. During our audit, we
interviewed management and staff in the Office of Water. We also interviewed
staff in the Office of Enforcement and Compliance Assurance and the Office of
International and Tribal Affairs, as well as the then-EPA assistant deputy
administrator and chief operating officer, who signed the EPA's National
Permitting Oversight Policy. In Regions 3, 5, and 10, we interviewed staff and
management in the regions' Water Protection Divisions. In Region 5, we also
interviewed management in the regional administrator's office.
We analyzed key background and criteria documents, including documents
relating to state-issued NPDES permits, from the initial permit application to the
issuance of the final permit; emails; written communications between interested
parties and stakeholders; memorandums of agreement; standard operating
procedures; administrative records; court records; and legal proceedings.
CWA § 404 permits are issued by the
U.S. Army Corps of Engineers for dredging
and filling activities. CWA § 401(a)(2)
requires that, as part of the CWA § 404
permit issuance process, the EPA notify
downstream states and tribes of the
proposed discharge if the EPA determines
the discharge may impact the
downstream state's water quality.
3 The CWA authorizes the EPA to treat eligible federally recognized Indian tribes as a state for the purpose of
implementing and managing certain enviromnental programs and functions, as well as for grant funding.
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Lastly, we conducted an anonymous survey of EPA staff from January to
February 2020. Because of the disproportionate geographic distribution of the
responses received, we were unable to identify national, overarching NPDES
oversight issues. In addition, our staff interviews and document reviews in
Region 10 did not identify oversight concerns. As a result, this report does not
draw conclusions on national trends in the national NPDES program or on
Region 10 oversight of state NPDES programs.
Prior Reports
OIG Report No. 10-P-0224. EPA Should Revise Outdated or Inconsistent EPA-
State Clean Water Act Memoranda of Agreement, issued on September 14, 2010,
found that NPDES memorandums of agreement between the "EPA and States do
not ensure Agency management control and effective oversight over a national
program administered by States that is capable of providing equal protection to all
Americans." We recommended that the EPA revise outdated memorandums of
agreements to improve NPDES oversight. The EPA told the OIG in a closeout
memorandum that it completed all corrective actions.
OIG Report No. 12-P-0113. EPA Must Improve Oversight of State Enforcement,
issued December 9, 2011, found that the EPA needed to improve oversight of state
enforcement. The EPA told the OIG in a closeout memorandum that it completed
all corrective actions.
OIG Report No. 18-P-0221. Management Weaknesses Delayed Response to Flint
Water Crisis, issued July 19, 2018, found that the EPA should strengthen its
oversight of state drinking water programs to improve the efficiency and
effectiveness of the Agency's response to drinking water contamination
emergencies. The EPA still had some corrective actions pending as of April 2021.
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Chapter 2
Region 3 Needs to Improve Its Oversight to Ensure
NPDES Permits Meet CWA and NPDES
Regulatory Requirements
EPA Region 3 did not adequately perform its oversight role to ensure that West
Virginia's modified state-issued NPDES permits for mining facilities, also
referred to as NPDES mining permits, meet the requirements of CWA and
NPDES regulations. From July 2019 through December 2019, the West Virginia
Department of Environmental Protection, which is the state permitting authority
for West Virginia, issued 286 modified NPDES mining permits to reflect
revisions made to its water quality regulations in 2015. It is unclear whether
Region 3 took steps to verify that West Virginia conducted a reasonable potential
analysis to ensure that the CWA's anti-backsliding provisions were met. In
addition, Region 3 approved revisions to West Virginia's NPDES program in
March 2019, which eliminated an express requirement that permitted discharges
not violate applicable water quality standards and which prohibited the
incorporation of water quality standards by reference. As a result, some pollutants
that were previously regulated and enforced via NPDES permits that incorporated
water quality standards by reference—such as ionic pollution, which is commonly
found in mine discharges—are no longer regulated by the modified NPDES
permits. The approved changes to West Virginia's NPDES program may also
shield permittees from enforcement action by the EPA or the State regarding the
discharge of pollutants not specified in the modified permits. We also identified
three deficiencies in the Region 3 review process for state-issued NPDES permits.
These deficiencies resulted in state-issued NPDES permits that do not meet the
requirements of NPDES regulations and that potentially violate the
anti-backsliding provision of the CWA.
EPA Approval of West Virginia's Request to Make State Program
Modifications Hinders Achieving Water Quality Standards
In 2015, the State of West Virginia enacted House Bill 2283, or HB 2283,
amending the West Virginia Code of State Regulations. This state legislation
deleted an express requirement from West Virginia's regulations that all
state-issued NPDES mining permits contain conditions to ensure that permitted
discharges do not cause a violation of water quality standards. Specifically, the
State deleted the narrative water quality standard provision from its mining
regulations. This provision served as a catch-all requirement to regulate
discharges of pollutants not specifically listed in NPDES permits. The previous
state regulation stated that "discharges covered by a [West Virginia NPDES]
permit are to be of such quality so as not to cause a violation of applicable water
quality standards promulgated by [state regulation]."
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In addition, the State of West Virginia enacted Senate Bill 357, or SB 357,
amending statutory text in the West Virginia Code to expand the scope of the
"permit shield" and prohibit the incorporation of water quality standards by
reference in state NPDES mining permits. The term permit shield refers to the
notion that, pursuant to Section 402(k) of the CWA, compliance with an NPDES
permit amounts to compliance with applicable NPDES requirements for
enforcement purposes. As such, facilities discharging pursuant to their permits
may be shielded from enforcement action by the EPA or a state regarding
discharges that, in fact, violate water quality standards.
After the State enacted these regulatory modifications, the West Virginia
Department of Environmental Protection submitted relevant revisions to the state
NPDES program to Region 3 for approval. Among the revisions proposed was
deleting the state NPDES program's requirement that narrative water quality
criteria be incorporated in state-issued NPDES permits. The EPA considered
West Virginia's NPDES program revisions to be "substantial," which required the
EPA to issue a public notice regarding the revisions in the Federal Register and
provide 30 days for public comment. The EPA published the notice and began the
public comment period on September 17, 2018 (83 Fed. Reg. 46945). After the
comment period, Region 3 compiled the public comments in a Response to
Comments document.
Previously, on two occasions in 2015, Region 3 did not approve requests by the
West Virginia Department of Environmental Protection to modify or remove the
requirement that permitted discharges not cause a violation of water quality
standards. The EPA said then that the removal of that requirement would make
state law inconsistent with federal law and weaken the state NPDES program.
Even so, on March 27, 2019, Region 3 approved the deletion of the requirement
and the revision of the state NPDES program, attaching the public comments
received to its approval letter. When we asked about this apparent reversal,
Region 3 staff stated that Region 3 had never formally disapproved the program
change in 2015 but sought additional information from the State.
On July 5, 2019, the West Virginia Department of Environmental Protection
began the process of submitting state-issued NPDES mining permits for
modification and reissuance based on the EPA's approved revisions to the state
NPDES program. As of January 2020, 286 state-issued NPDES permits had been
submitted for modification by the State of West Virginia.
The deletion of the requirement that permitted discharges not cause a violation of
water quality standards had two major implications on West Virginia's NPDES
mining permits. First, in its March 2019 approval letter, the EPA stated that the
West Virginia Department of Environmental Protection should, for any permit
reissued, ensure that the permit "does not run afoul of the Clean Water Act's
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'anti-backsliding' provisions (33 U.S.C. § 1342(o))."4 To accomplish this, the
EPA instructed the West Virginia Department of Environmental Protection to:
include in its record documentation that it has performed a
rigorous reasonable potential analysis for numeric and narrative
water quality criteria and that the terms and conditions of the
permit, including any WQBELs [water-quality-based effluent
limitations] (numeric or narrative), will be protective of designated
uses and numeric and narrative water quality criteria, and are thus
not "less stringent" than the general narrative condition in the
previous permit, [emphasis added]
These instructions meant that, for even those state-issued NPDES permits for
which a reasonable potential analysis was previously performed and included in
the record documentation, an additional reasonable potential analysis should be
performed and included in the record documentation if these permits were
reissued after the removal of the narrative criteria. This would help ensure that the
reissued permits are not less stringent than the original permit.
Second, deleting the requirement that permitted discharges not cause a violation
of water quality standards meant that some pollutants previously regulated under
state-issued NPDES permits will no longer be regulated in modified permits. One
such pollutant that is no longer regulated, and one of particular concern for
NPDES mining permits, is ionic pollution. The EPA's Office of Research and
Development has observed that high
conductivities, which indicate a high level of
ionic pollution, in streams below surface coal
mining operations are associated with
impairment of aquatic life. In addition, because
West Virginia arguably expanded the scope of
the "permit shield" with SB 357 to provide that
compliance with an NPDES mining permit is
considered compliance with water quality standards, facilities that are discharging
pursuant to their modified NPDES mining permits may be shielded from
enforcement action by the EPA or the State regarding discharges that in fact
violate water quality standards. We discuss the impact of these changes further in
the "Ionic Pollution Is Not Addressed in Modified NPDES Mining Permits in
West Virginia" section below.
Mine drainage deposits significant
amounts of ions into the receiving
water. Ionic pollution, measured by
conductivity, occurs when these
deposits contain excessive levels of
ions, which can cause the receiving
waters to become impaired.
4 The anti-backsliding provision establishes that a permit that has been issued may not be renewed, reissued, or
modified to contain effluent limitations that are less stringent than comparable effluent limitations in the previous
permit (33 U.S.C. § 1342(o)).
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Reasonable Potential Analysis May Not Have Been Performed for
Modified NPDES Mining Permits in West Virginia
Documentation provided by Region 3 during our audit did not include evidence
that the West Virginia Department of Environmental Protection performed a
reasonable potential analysis for each modified NPDES permit, even though the
State was instructed to do so in the EPA's March 2019 approval letter.
On July 5, 2019, Region 3 received three modified permits submitted by the West
Virginia Department of Environmental Protection for reissuance. Region 3 permit
reviewers found that the permit documentation did not include the required
reasonable potential analysis. In a July 25, 2019 letter to the West Virginia
Department of Environmental Protection, the Region 3 Water Protection Division
NPDES Permit Branch provided written comments to the State outlining this
deficiency in the permits. The letter noted that for two of the permits:
[I]t is unclear whether [the West Virginia Department of
Environmental Protection] has performed a rigorous reasonable
potential analysis for numeric and narrative water quality criteria
or demonstrated that the terms and conditions of the proposed
reissued permit, including any WQBELs [water-quality-based
effluent limitations] (numeric or narrative), will be protective of
designated uses and numeric and narrative water quality criteria,
and are thus not "less stringent" than the general narrative
condition in the previous permit. EPA recommends that [the West
Virginia Department of Environmental Protection] include such
analysis of available monitoring data in the permit fact sheet.
The 1982 memorandum of agreement between West Virginia and the EPA,
which authorizes the State to operate its NPDES program, requires that the State
provide complete NPDES permit documentation to the EPA for review. Without
complete documentation and analysis from the State regarding its reasonable
potential analysis, Region 3 could not verify that no backsliding would occur. It is
unclear whether the State addressed these written comments before West Virginia
issued the modified permits. As a result, these permits may be less stringent than
prior permits and may violate the CWA anti-backsliding provision.
On April 9, 2021, one business day before this report was originally due to be
issued, Region 3 provided us with additional information in an effort to clarify the
discussion on reasonable potential analysis for these permits. This information
was not provided during the course of our audit; in response to our discussion
document; in response to our February 17, 2021 draft report; or during our
March 25, 2021 exit conference. The region asserted that the modified permits did
not actually require a reasonable potential analysis because they were submitted
for administrative changes. However, this directly contradicts the official
comment letter that the region submitted to the State on July 25, 2019, which
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stated that "the documentation and analysis ... as to backsliding appears to be
incomplete ... it is unclear whether [the West Virginia Department of
Environmental Protection] has performed a rigorous reasonable potential
analysis." The additional information submitted to us from the region, therefore,
did not clarify the actions the Agency took to ensure that the modified permits
would not violate the anti-backsliding requirement of the CWA. In addition, when
Region 3 personnel provided this additional information to us, they did not
explain why we were not granted timely access to the information during the
course of our audit; in response to our discussion document; in response to our
February 17, 2021 draft report; or during our March 25, 2021 exit conference.
Ionic Pollution Is Not Addressed in Modified NPDES Mining Permits
in West Virginia
We found that ionic pollution may no longer be regulated under the parameters of
the state-issued modified NPDES mining permits in West Virginia. This change
may affect the 286 modified NPDES mining permits reissued by West Virginia.
Ionic pollution was previously regulated via the regulatory requirement that
permitted discharges not cause a violation of water quality standards, which was
incorporated into NPDES mining permits by reference; however, with West
Virginia's removal of the regulatory requirement and corresponding references in
NPDES mining permits, ionic pollution may not be incorporated into effluent
limitations in the modified permits.
Based on the requirement established in 40 C.F.R. § 122.44(d)(l)(iii),5
state-issued NPDES mining permits should include water-quality-based effluent
limitations for ionic pollution where permitted discharges would cause, have the
reasonable potential to cause, or contribute to an excursion above water quality
standards applicable to ionic pollution. Since West Virginia's water quality
standards are no longer incorporated into its NPDES mining permits and no
effluent limitations or parameters have been established for pollutants previously
covered by incorporation of these standards, permitted operations could discharge
harmful levels of ionic pollution. Additionally, because the reference to water
quality standards has been removed, permittees could be shielded under CWA
§ 402(k) from enforcement action by the EPA or the State regarding certain
discharges that may cause a violation of water quality standards.
5 As discussed in Chapter 1, 40 C.F.R. § 122.44(d)( 1)(iii) states, "When the permitting authority determines ... that
a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above the
allowable ambient concentration of a State numeric criteria within a State water quality standard for an individual
pollutant, the permit must contain effluent limits for that pollutant." See also 40 C.F.R. § 123.25(a)(15).
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Lack of Formal Permit Review Procedure Caused Delays and
Issuance of Permits That Do Not Address Region 3 Comments
We found that Region 3 lacks a formal internal operating procedure for real-time
permit reviews that provides instructions, establishes milestones, and outlines
procedures for Region 3 to coordinate with states and the EPA's Office of Water.
Such an operating procedure would serve as an internal control to help the EPA
ensure that the permits it oversees meet CWA requirements. The
U.S. Government Accountability Office's Standards for Internal Control in the
Federal Government states that control activities in government programs should
be effective and efficient in accomplishing an agency's control objectives.
The lack of a formal permit review procedure led to delays in the EPA's review
process and to permits issued by West Virginia that did not address EPA
comments. We identified three examples of NPDES permit review issues that
negatively impacted Region 3's oversight of state NPDES programs:
• Region 3 reviewers prepared comments on the modified NPDES mining
permits, but Region 3 management did not always relay those comments
to West Virginia.
• Region 3 did not always provide its comments regarding proposed NPDES
permits within the allotted time frame. For example, per West Virginia's
memorandum of agreement, if there are no comments about or objections
to a permit provided within 30 days, the State can finalize and issue the
permit.
• The West Virginia Department of Environmental Protection did not
always address EPA comments on the draft modified NPDES mining
permits before reissuing the permits.
As a result, not all the modified permits that Region 3 received for review were
reviewed in a timely manner or adhered to NPDES requirements. Developing a
formal internal operating procedure in Region 3 for this process could improve
overall permit quality and verify that state-issued NPDES permits meet the
requirements of the CWA and NPDES regulations.
EPA Comments Not Relayed to State
Before Region 3 approved West Virginia's request to delete the reference to water
quality standards from the state NPDES mining regulations, the region's permit
reviewers worked directly with states when conducting real-time reviews of
NPDES permits. Specifically, the permit reviewers would communicate with the
states to resolve issues regarding the review comments. However, after the
region's permit reviewers provided written comments, which outlined the
requirement for reasonable potential analysis documentation, to West Virginia in
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July 2019, Region 3 management changed this collaborative process via new
informal instructions. On August 1, 2019, after consulting with West Virginia,
Region 3 management emailed its permit reviewers, instructing them to compile
all written comments, especially for permits modified based on HB 2283, into an
issue paper. This issue paper was to be provided to regional management through
the Water Division section chief and branch chief. Regional management would
then work with the State to resolve permit issues.
Under management's new informal instructions, Region 3 permit reviewers were
no longer allowed to provide comments to states directly to resolve permit issues
without approval from managers. These informal instructions led to confusion
among the permit reviewers as to when they could directly contact the state.
We also found instances where the EPA permit reviewers had comments that
were not effectively relayed to West Virginia. For example, a regional permit
reviewer forwarded the following detailed written comments to Region 3
management to improve a permit's enforceability for selenium:
The draft permit attempts to
incorporate the 8 mg/kg
[milligram per kilogram] WQC
[water quality criterion] as an
effluent limit, but this
construction does not establish a
valid and enforceable effluent
limit. Development of a selenium
WQBEL [water-quality-based
effluent limitation] from a fish-
tissue based WQC requires
calculation of a Bioaccumulation
Factor and a Protective Water
Column Concentration (PWCC), as provided in [the West Virginia
Department of Environmental Protection's] WVDEP's selenium
criteria implementation guidance as well as EPA's promulgated
fish-tissue based selenium WQC criteria recommendation. Please
re-evaluate reasonable potential based on PWCCs for selenium
and, if appropriate, incorporate concentration-based effluent limits
for selenium.
However, a Region 3 manager provided only these comments to the State:
This permit is being modified to incorporate selenium monitoring
and it is our understanding the permit made [s/c] be revised based
on monitoring results. We do not offer any additional comments at
this time.
Selenium is a naturally occurring element
present in sedimentary rocks, shales, coal, and
phosphate deposits and soils. Selenium can be
released into water resources by natural
sources via weathering and by anthropogenic
sources, such as surface mining. Selenium
bioaccumulates in the aquatic food chain and
chronic exposure in fish and aquatic
invertebrates can cause reproductive
impairments (for example, larval deformity or
mortality). Selenium can also adversely affect
juvenile growth and mortality.
—EPA website. Aquatic Life
Criterion - Selenium
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While the EPA has discretion regarding what comments to provide to states, in
this case, all staff views regarding water quality limits were not provided to West
Virginia before the State issued the permit. A calculated protective water column
concentration value included in the final permit before issuance would ensure
compliance with the CWA and satisfy the EPA's promulgated fish-tissue-based
selenium water quality criteria recommendation. The comments provided by EPA
management to the State, however, allow the permittee to discharge 8 milligrams
per kilogram without establishing protective water column concentration values
until sometime in the future. This level of selenium may be harmful, and
monitoring would allow the discharge to continue until any harm could be
measured and action taken.
Agency policy, as established in a 2011 memorandum,6 instructs regions to
conduct a reasonable potential analysis to establish water-quality-based effluent
limitations in permits, as well as:
to ensure that limitations are as stringent as necessary to meet
water quality standards, consistent with NPDES regulations,
permitting authorities should not defer reasonable potential
analyses until after permit issuance. Under the CWA and its
implementing regulations, an NPDES permit must contain limits as
stringent as necessary to meet applicable water quality standards.
Additional Coordination Impacted Timeliness of EPA Comments
In July 2017, the EPA's Office of Water began requiring the regions to notify
headquarters of all proposed objections to NPDES permits. This added a layer of
coordination that impacted Region 3's ability to review and comment within the
allotted comment period.
For example, for a draft permit submitted for review from the Pennsylvania
Department of Environmental Protection, a Region 3 permit reviewer indicated in
an email to the State of Pennsylvania that the EPA had run out of time and would
not be able to make an objection to the permit, as intended:
Yes, my understanding is that the review clock has expired for this
permit. We removed the interim objection when we felt the
package was finally complete, and when we received PADEP's
response in October we did not subsequently issue a specific
objection during the little (if any) time remaining in the review
period. In this case, it would have been logistically impossible to
arrange the management briefings and notification to EPA
Headquarters now required to issue an objection to this permit
before the close of the permit review period.
6 EPA, Improving EPA Review of Appalachian Surface Coal Mining Operations Under the Clean Water Act,
National Environmental Policy Act, and the Environmental Justice Executive Order, July 21, 2011.
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EPA Comments Not Addressed by State
We identified instances where regional staff reviewed permits and prepared and
submitted comments to West Virginia but where the State did not address the
EPA's comments before issuing the permit. By not addressing EPA comments,
the State missed the opportunity to improve permit quality and ensure that all the
requirements of the CWA and NPDES regulations were met. For example, as
previously mentioned, Region 3 permit reviewers provided written comments for
the initial two permits submitted for modification based on West Virginia's
HB 2283, but we found no evidence that those comments were addressed by West
Virginia before the permits were issued. Region 3 did not issue an objection for
these permits, and the State issued them.
Conclusions
Region 3 has not taken steps to ensure that the 286 modified NPDES mining
permits submitted for its review met all the requirements of the CWA and NPDES
regulations. More specifically, the region must ensure that the record
documentation for each state-issued NPDES mining permit demonstrates that the
reasonable potential analysis has been performed, for the purpose of verifying
adherence to the anti-backsliding requirements of CWA § 402(o). These modified
NPDES mining permits should include effluent limitations for ionic pollution
where permitted discharges would cause, have the reasonable potential to cause,
or contribute to an excursion above water quality standards applicable to ionic
pollution. Additionally, Region 3's permit review process can be improved with a
formal internal operating procedure to ensure that the region's reviews are
completed within the allotted time frame and that comments are conveyed in a
timely manner to the relevant state. These enhancements would improve the
quality of state-issued NPDES permits, which in turn would help protect water
quality, human health, and the environment.
Recommendations
We recommend that the regional administrator for Region 3:
1. Review the modified National Pollutant Discharge Elimination System
mining permits issued by West Virginia based on the 2019 revisions to its
National Pollutant Discharge Elimination System program to ensure that
no backsliding has occurred, including for discharges of ionic pollution, in
accordance with EPA Region 3's approval letter dated March 27, 2019. If
a permit does not contain record documentation for the reasonable
potential analysis or otherwise allows backsliding, alert West Virginia of
the permit inadequacies.
2. Review the modified National Pollutant Discharge Elimination System
mining permits issued by West Virginia based on the 2019 revisions to its
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National Pollutant Discharge Elimination System program to determine
whether the permits contain effluent limits for ionic pollution and other
pollutants that are or may be discharged at a level that causes, has the
reasonable potential to cause, or contributes to an excursion above any
applicable water quality standard, as required by Clean Water Act
regulations. If a permit lacks required effluent limits, take appropriate
action to address such deficiencies.
3. Develop a formal internal operating procedure to facilitate timely permit
reviews and transmission of EPA comments to states.
Agency Response and OIG Assessment
Region 3 did not agree with our recommendations. In response to
Recommendations 1 and 2, Region 3 stated that it would review draft permits to
ensure they meet federal statutes and regulations. Region 3 stated that it will
include a review of reasonable potential for mining permits in the next permit
quality review for West Virginia in fiscal year 2024. Additionally, Region 3 stated
that it plans to finalize the real-time review document by the end of March 2021.
While selecting a sample in fiscal year 2024 will allow Region 3 to assess some
of the West Virginia mining permits of concern, these corrective actions do not
address the universe of 286 permits that the OIG identified as risks for
backsliding because of their lack of record documentation for the reasonable
potential analysis. As previously noted, one business day before this report was
originally due to be issued, Region 3 provided us with additional information in
an effort to clarify the discussion on the reasonable potential analyses for the
modified permits. However, this additional information did not clarify the actions
the Agency took to ensure that the modified permits would not violate the
anti-backsliding provisions of the CWA. Recommendations 1 and 2 remain
unresolved.
In response to Recommendation 3, Region 3 stated that it previously shared the
2019 internal standard operating procedure with the OIG. In fact, during an
interview, Region 3 personnel told us that no standard operating procedure for
NPDES permit reviews existed and that Region 3 did not have a target date for
developing a standard operating procedure. In an exit conference held after we
received Region's 3 response to our draft report, we requested documentation of
the 2019 internal standard operating procedure, but the documentation Region 3
provided did not show a finalized standard operating procedure.
Recommendation 3 remains unresolved. Region 3's response to the draft report is
in Appendix B.
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Chapter 3
Region 5 Needs to Improve Oversight and Address
Tribal Concerns for PolyMet NPDES Permit
EPA reviewers determined that the draft NPDES permit reviewed by EPA
Region 5 for PolyMet's NorthMet project did not address all CWA and NPDES
requirements. Despite the concerns about the draft PolyMet NPDES permit,
Region 5 management did not transparently exercise its oversight authority,
choosing instead to not provide written comments summarizing those concerns. In
addition, Region 5 repeatedly declined to make a formal determination under
CWA § 401(a)(2) regarding whether federally permitted discharges from the
NorthMet project may impact the water quality of the Fond du Lac Band, whose
lands are located downstream. Region 5's interpretation of CWA § 401(a)(2)
allowed the EPA to deny a potential administrative remedy to the tribe simply by
neglecting to assess downstream affects, despite repeated requests. In addition,
the EPA arguably did not meet the intent of its tribal and environmental justice
policies, including its Policy on Consultation and Coordination with Indian
Tribes and Policy on Environmental Justice for Working with Federally
Recognized Tribes and Indigenous Peoples, which aim to ensure consultation, fair
treatment, and meaningful involvement of tribes in EPA decisions affecting their
health or environment.
Region 5 Did Not Follow Its Standard Operating Procedure for
Reviewing the PolyMet NPDES Permit
We found that Region 5 did not follow its standard operating procedure for
NPDES permit reviews or common EPA practice when it decided to not convey
comments in writing regarding its review of the draft PolyMet NPDES permit.
The Region 5 NPDES permit review standard operating procedure, published in
2012, outlines the region's administrative process for providing comments to
states, as well as the process to follow when EPA comments are not fully
addressed by states. Per the standard operating procedure:
Though discussions may continue to resolve issues and answer
questions about the permit, the Permit Reviewer must provide an
appropriate comment review transmittal letter to the State within 30
days of the date that a Proposed Permit (or, in some cases, Draft
Permit) was received.
Once the permit review process is complete, according to the standard operating
procedure, the region is to prepare and send a letter, even if only to indicate that
the region has no objection to the permit.
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In addition, although the EPA's decision to provide input on a draft NPDES
permit is discretionary under CWA, when the Agency chooses to review an
NPDES permit, it is common EPA practice to provide written comments at the
draft permit stage to reduce the need to comment on the proposed permit.
Specifically, CWA § 402(d)(2), 40 C.F.R. § 123.44(a)(1), 40 C.F.R.
§ 123.44(b)(1), and the 1974 memorandum of agreement between Region 5 and
Minnesota authorizing the state NPDES program indicate that the region should
provide comments, recommendations, and objections regarding a draft or
proposed NPDES permit in writing. For example, pursuant to 40 C.F.R.
§ 123.44(a)(1), the EPA "shall send a copy of any comment, objection or
recommendation to the permit applicant." Sending a copy of comments,
objections, or recommendations would require that such communications be
written. The extensive comments that the EPA provided to the Minnesota
Pollution Control Agency pertained to the draft PolyMet NPDES permit were
provided orally.
Region 5 Provided Only Oral Comments on Draft PolyMet NPDES Permit
Region 5 had three opportunities to review the draft PolyMet NPDES permit
before the Minnesota Pollution Control Agency, the state permitting authority for
Minnesota, approved the final permit in December 2018:
• Region 5 received what it referred to as a "pre-public notice" draft
PolyMet NPDES permit from the Minnesota Pollution Control Agency on
January 17, 2018.
• Region 5 received what it referred to as the "pre-proposed" PolyMet
NPDES permit from the Minnesota Pollution Control Agency on
October 25, 2018.
• Finally, Region 5 received the proposed final PolyMet NPDES permit on
December 4, 2018.
Region 5 used two different terms to describe the draft NPDES permit versions
discussed above: pre-public notice and pre-proposed. In this chapter, we refer to
both of these versions simply as the draft permit, as they were not yet finalized by
the Minnesota Pollution Control Agency.
In March 2018, Region 5 identified numerous substantive issues in the draft
permit and prepared a comment letter addressed to the Minnesota Pollution
Control Agency. The Minnesota Pollution Control Agency requested that the
comments be provided orally instead of in writing, and the region's then-chief of
staff agreed with that approach, even though the approach did not follow the
region's standard operating procedure. As a result, during an April 5, 2018
conference call, Region 5 orally conveyed the contents of the seven-page
comment letter, including four major categories of concern (Table 2), 29 specific
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concerns, and additional recommendations for the Minnesota Pollution Control
Agency regarding the permit.
Table 2: Excerpts of EPA's comments on the draft PolyMet NPDES permit
Area of Concern
Description
Water-quality-
based permit limits
• "The draft permit does not include water quality based effluent
limitations," with limited exceptions, or "other conditions that are as
stringent as necessary to ensure compliance with the applicable
water quality requirements" of "all affected States," as required by
CWA§ 402(b); 33 U.S.C. § 1342(b); and 40 C.F.R. §§ 122.4(d),
122.44, and 123.44(c)(1), (8)-(9).
• Instead, the permit included technology-based effluent limits that
allow pollution at a concentration "up to a thousand times greater
than applicable water quality standard."
Effluent guidance
calculation
• The draft permit did "not include all the requirements of
40 C.F.R. 440, Subparts G, J, and K that apply to this proposed
project, including a restriction on discharge volume that is ...
equivalent to the annual net precipitation for the site."
Permit
enforceability
concerns
• "The permit contains 'operating limits' on an internal outfall that" are
not clearly enforceable by the EPA or the Minnesota Pollution
Control Agency "and, thus, may be ineffective at protecting water
quality," per 40 C.F.R. §§ 122.4(a) and (d).
• The permit functions as a shield from CWA enforcement for
pollutants disclosed during the application process, per 33 U.S.C.
§ 1342(k).
Decision-making
procedures
• "The draft permit states that certain plans, reports, and other actions
are effective parts of the permit upon submittal by the permittee,
making them de facto permit modifications that, in some instances,
are likely to be major modifications" subject to "the public process"
associated with "permit modifications under" 40 C.F.R. § 122.62.
• "Permit modifications that do not follow federal regulations" create
compliance and enforceability concerns as to the scope of "what is
covered by the permit," per 40 C.F.R. § 122.4(a).
Source: OIG analysis of Region 5's comment letter, which was orally conveyed to the Minnesota
Pollution Control Agency on the draft PolyMet NPDES permit. (EPA OIG table)
NPDES Permit Concerns Remained Unresolved
Following the April 5, 2018 conference call, Region 5 and the Minnesota
Pollution Control Agency held multiple meetings. During these meetings, the
Minnesota Pollution Control Agency provided updates on the status of the permit
but did not provide responses to the EPA comments that it had received. The
Region 5 NPDES branch chief summarized the EPA's oral comments and the
State's responses in a document, indicating areas where the region and State
continued to disagree. The branch chief memorialized this information in an
internal memorandum to file dated December 18, 2018, one day before the
expiration of the EPA's 15-day comment period on the final permit. This
memorandum detailed:
• The 29 comments and multiple recommendations that had been read to the
Minnesota Pollution Control Agency over the telephone.
• The permit revisions, if any, made in response, to these comments and
recommendations.
• Whether the EPA's comment was addressed by the revisions made, if any.
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The memorandum identified 12 EPA comments as "Comment was not
addressed," "Comments were not addressed," or "Comment was not addressed
fully" (emphasis in original). Also in the memorandum, the NPDES branch chief
expressed skepticism of the Minnesota Pollution Control Agency's use of
"operating limits" rather than "water quality-based effluent limitations," referring
repeatedly to operating limits as "arguably" enforceable (emphasis in original).
The branch chief noted that "federal enforceability of these operating limits is less
certain and more complex than if these limits were established as [water-quality-
based effluent limitations]."
Despite Region 5 senior management's knowledge of the unaddressed NPDES
permit concerns, Region 5 chose to not exercise its oversight authority to ensure
that all deficiencies in the PolyMet NPDES permit were addressed. Pursuant to its
CWA authority, the EPA could have formally objected to the permit when it did
not address the region's oral comments, but the EPA chose not to do so. Per the
memorandum of agreement between Minnesota and the EPA, if the concerns
raised by an EPA objection were not satisfied, the EPA would then have had
"exclusive authority" to issue the permit. In the case of the PolyMet NPDES
permit, absent any objection from the EPA, the Minnesota Pollution Control
Agency issued the final PolyMet NPDES permit on December 20, 2018.7
Region 5 Declined to Determine Downstream Impacts and Engage Tribe
In addition to needing an NPDES permit for its planned NorthMet project,
PolyMet needed a CWA § 404 permit to lawfully engage in dredging and filling
activities related to the project. CWA § 404 permits are issued by the Army Corps
of Engineers. Pursuant to CWA § 401(a)(1), prior to the issuance of a federal
permit resulting in a discharge to a water of the United States, the state in which
the discharge will originate must certify that the proposed discharge will not
violate water quality standards. Additionally, CWA § 401(a)(2) requires that the
EPA notify downstream states of the proposed discharge if the EPA determines
the discharge "may affect" the downstream state's water quality standards.
The Minnesota Pollution Control Agency issued a CWA § 401(a)(1) certification
for the NorthMet project on December 20, 2018. The Fond du Lac Band, based on
its "Treatment as a State" status, formally requested on three occasions that the
EPA provide notice to the tribe regarding the downstream water quality impacts
of discharges associated with the CWA § 404 permit, pursuant to
CWA § 401(a)(2) (Figure 2). The Fond du Lac Band's requests included
assertions that the permit would have downstream impacts to tribal water quality.
Pursuant to CWA § 401(a)(2), the EPA has a responsibility to "determine[]"
whether the downstream water quality may be impacted and to notify downstream
states or tribes, if applicable.
7 As of December 15, 2020, the PolyMet NPDES permit is stayed pending resolution of litigation in state court.
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Figure 2: Timeline of dates surrounding the Fond du Lac Band's requests
ie Fond du Lac
Band formally
requested the
opportunity to
00 review the
CWA § 401
—. certification
t— under CWA
pj §401 (a)(2). The
—. request was sent
CD to Region 5,
MPCA,* and
Army Corps of
Engineers.
Source: OIG analysis of Fond du Lac Band communication to Region 5. (EPA OIG image)
* MPCA stands for Minnesota Pollution Control Agency.
CWA § 401(a)(2) states:
Whenever such a discharge [resulting from federally permitted
activity] may affect, as determined by the Administrator, the
quality of the waters of any other State, the Administrator within
thirty days of the date of notice of application for such Federal
license or permit shall so notify such other State, the licensing or
permitting agency, and the applicant.
Section 401(a)(2) then discusses a process by which the affected state may object
to the issuance of the permit and request a hearing, at which it may present
evidence to support its objection. That is, the administrative process of
CWA § 401(a)(2) is available only after—and if—the EPA administrator or
regional administrator, as delegated, makes a determination regarding whether the
discharge at issue may affect the waters of the downstream state. Without an
affirmative determination, the notification, objection, and hearing do not occur.
The Fond du Lac Band informed Region 5 on multiple occasions of the tribe's
belief that its water quality would likely be affected by the discharge from the
NorthMet project associated with the CWA § 404 permit. The tribe requested that
the region make the relevant CWA § 401(a)(2) determination and issue the
corresponding notification, presumably so the Fond du Lac Band could formally
object. However, Region 5 never made the determination, thereby precluding the
tribe from formally raising and pursuing a potential objection, pursuant to
CWA § 401(a)(2).
The Region 5 Office of Regional Counsel asserted that the phrase "as determined
by the Administrator" in CWA § 401(a)(2) indicates that it is within the EPA's
discretion whether to make such a determination at all, irrespective of requests
from downstream states. The Army Corps of Engineers issued the CWA § 404
permit for PolyMet's NorthMet project on March 21, 2019.
MPCA issued
the CWA § 401
certification for
the PolyMet
00 permit.
o
CM
CM
The Fond du Lac
R -nd formally
requested the
opportunity
to review
Z_ CWA §401
certification.
f***i The request was
__ sent to Region 5,
^ MPCA, and
x— Army Corps of
Engineers.
,:i its third
¦ lmunication
attempt, the
Fond du Lac
0> Band provided a
T summary of its
¦— concerns and
in objections. This
¦—» letter was sent to
CM Region 5 and
Army Corps of
Engineers.
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Region 5's interpretation of CWA § 401(a)(2) allowed the region to deny a
potential administrative remedy to the tribe simply by neglecting to assess
downstream affects, despite repeated requests. The tribe challenged the EPA's
interpretation of CWA § 401(a)(2) in federal court, leading the U.S. District Court
for the District of Minnesota to rule in February 2021 that the Agency has a legal
duty to make a "may affect" determination under CWA § 401(a)(2) and notify the
tribe of its determination.8 Following the decision, the court granted a motion by
the EPA seeking a voluntary remand of its lack of notice to the tribe to
"reconsider, re-review, or modify" the lack of notice and make a "may affect"
determination.
As mentioned in Chapter 1, the EPA's Iyolicy on Consultation and Coordination
with Indian Tribes tasks regional administrators with overseeing the consultation
process with tribes in their respective regions, including analyses for potential
consultation. The policy specifically lists permits as an EPA activity normally
appropriate for consultation if they may affect a tribe. In addition, the EPA Policy
on Environmental Justice for Working with Federally Recognized Tribes and
Indigenous Peoples notes that to facilitate meaningful involvement for potentially
affected communities, the decision-makers should seek out and facilitate the
involvement of those potentially affected.
We found that Region 5's failure to make a determination about the potential
downstream effects per CWA § 401(a)(2) barred the Fond du Lac Band's access
to the administrative process by which it could formally voice its concerns. In
addition, the EPA arguably did not meet the intent of its tribal and environmental
justice policies, including its Policy on Consultation and Coordination with
Indian Tribes and Policy on Environmental Justice for Working with Federally
Recognized Tribes and Indigenous Peoples, which aim to ensure consultation, fair
treatment, and meaningful involvement of tribes in EPA decisions affecting their
health or environment.
Conclusions
Despite Region 5's concerns with the draft PolyMet NPDES permit, the region
chose to not exercise its oversight authority to ensure that the final permit met
CWA and NPDES requirements. Regional management did not ensure that its
comments were conveyed to Minnesota in a transparent and timely manner per
the region's standard operating procedure, and the permit issued by the State did
not address all of the EPA's concerns. In addition, by not making a determination
regarding the potential downstream impacts of proposed discharges related to the
NorthMet project, Region 5 limited the Fond du Lac Band's ability to formally
voice the tribe's concerns in accordance with the process outlined in CWA § 401.
Furthermore, the EPA did not meet the intent of its tribal and environmental
justice policies, which aim to ensure that tribes receive consultation, fair
8 Fond Du Lac Band of Lake Superior Chippewa v. Wheeler, No. 19-CV-2489 (PJS/LIB), 2021 WL 603754, at *10
(D. Minn. Feb. 16, 2021).
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treatment, and meaningful involvement in decisions affecting tribal health or the
environment.
Recommendations
We recommend that the regional administrator for Region 5:
4. Review and provide written input on any National Pollutant Discharge
Elimination System permit prepared for reissuance by the Minnesota
Pollution Control Agency for the PolyMet Mining Inc. NorthMet project,
if applicable, as appropriate pursuant to the requirements of the Clean
Water Act, National Pollutant Discharge Elimination System regulations,
the Region 5 National Pollutant Discharge Elimination System permit
review standard operating procedure, and the memorandum of agreement
between EPA Region 5 and the Minnesota Pollution Control Agency.
5. Pursuant to Clean Water Act § 401(a)(2), commit to making a
determination regarding the downstream water quality impacts of pertinent
discharges whenever available information, including information provided
by downstream states or tribes, indicates reasonable grounds to conclude
that the discharges may impact downstream water quality.
Agency Response and OIG Assessment
Region 5 agreed with our recommendations. In response to Recommendation 4,
Region 5 stated that if the Minnesota Pollution Control Agency reissues the
PolyMet NPDES permit, EPA comments and recommendations will be
transmitted in writing. Regarding Recommendation 5, Region 5 plans to make a
determination under CWA § 401(a)(2) in light of the February 2021 court
decision and related remand,9 and it will "reconsider, re-review, or modify" its
lack of notice to the Fond du Lac Band. Region 5 plans to report the status of
these actions to the court within 90 days of the relevant court order and agreed to
provide this same information at that time to the OIG. This meets the intent of
Recommendation 5. Recommendations 4 and 5 are resolved with corrective
actions pending. Region 5's response to the draft report is in Appendix C.
9 Fond Du Lac Band of Lake Superior Chippewa at *10.
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Status of Recommendations and
Potential Monetary Benefits
RECOMMENDATIONS
Potential
Planned
Monetary
Rec.
Page
Completion
Benefits
No.
No.
Subject
Status1
Action Official
Date
(in $000s)
17 Review the modified National Pollutant Discharge Elimination
System mining permits issued by West Virginia based on the
2019 revisions to its National Pollutant Discharge Elimination
System program to ensure that no backsliding has occurred,
including for discharges of ionic pollution, in accordance with
EPA Region 3's approval letter dated March 27, 2019. If a permit
does not contain record documentation for the reasonable
potential analysis or otherwise allows backsliding, alert West
Virginia of the permit inadequacies.
17 Review the modified National Pollutant Discharge Elimination
System mining permits issued by West Virginia based on the
2019 revisions to its National Pollutant Discharge Elimination
System program to determine whether the permits contain
effluent limits for ionic pollution and other pollutants that are or
may be discharged at a level that causes, has the reasonable
potential to cause, or contributes to an excursion above any
applicable water quality standard, as required by Clean Water
Act regulations. If a permit lacks required effluent limits, take
appropriate action to address such deficiencies.
18 Develop a formal internal operating procedure to facilitate timely
permit reviews and transmission of EPA comments to states.
25 Review and provide written input on any National Pollutant
Discharge Elimination System permit prepared for reissuance by
the Minnesota Pollution Control Agency for the PolyMet Mining
Inc. NorthMet project, if applicable, as appropriate pursuant to
the requirements of the Clean Water Act, National Pollutant
Discharge Elimination System regulations, the Region 5 National
Pollutant Discharge Elimination System permit review standard
operating procedure, and the memorandum of agreement
between EPA Region 5 and the Minnesota Pollution Control
Agency.
25 Pursuant to Clean Water Act § 401(a)(2), commit to making a
determination regarding the downstream water quality impacts of
pertinent discharges whenever available information, including
information provided by downstream states or tribes, indicates
reasonable grounds to conclude that the discharges may impact
downstream water quality.
Region 3 Regional
Administrator
Region 3 Regional
Administrator
Region 3 Regional
Administrator
Region 5 Regional
Administrator
11/30/23
Region 5 Regional
Administrator
6/7/21
1 C = Corrective action completed.
R = Recommendation resolved with corrective action pending.
U = Recommendation unresolved with resolution efforts in progress.
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Appendix A
Internal Control Assessment
This table identifies which internal control components and underlying principles are significant
to our audit objective.
Which internal control components are
significant to the audit objective?
Which internal control principles are sianificant to the audit
objective?
X
Control Environment
The foundation for an internal control
system. It provides the discipline and
structure to help an entity achieve its
objectives.
1. The oversight body and management should demonstrate
a commitment to integrity and ethical values.
2. The oversight body should oversee the entity's internal
control system.
X
3. Management should establish an organizational structure,
assign responsibilities, and delegate authority to achieve
the entity's objectives.
4. Management should demonstrate a commitment to
recruit, develop, and retain competent individuals.
5. Management should evaluate performance and hold
individuals accountable for their internal control
responsibilities.
X
Risk Assessment
Management assesses the risks facing the
entity as it seeks to achieve its objectives.
This assessment provides the basis for
developing appropriate risk responses.
6. Management should define objectives clearly to enable
the identification of risks and define risk tolerances.
7. Management should identify, analyze, and respond to
risks related to achieving the defined objectives.
8. Management should consider the potential for fraud when
identifying, analyzing, and responding to risks.
9. Management should identify, analyze, and respond to
significant changes that could impact the internal control
system.
X
Control Activities
The actions management establishes
through policies and procedures to achieve
objectives and respond to risks in the
internal control system, which includes the
entity's information system.
X
10. Management should design control activities to achieve
objectives and respond to risks.
11. Management should design the entity's information
system and related control activities to achieve objectives
and respond to risks.
12. Management should implement control activities through
policies.
X
Information and Communication
The quality information management and
personnel communicate and use to support
the internal control system.
13. Management should use quality information to achieve
the entity's objectives.
X
14. Management should internally communicate the
necessary quality information to achieve the entity's
objectives.
X
15. Management should externally communicate the
necessary quality information to achieve the entity's
objectives.
X
Monitoring
Activities management establishes and
operates to assess the quality of
performance overtime and promptly
resolve the findings of audits and other
reviews.
X
16. Management should establish and operate monitoring
activities to monitor the internal control system and
evaluate the results.
17. Management should remediate identified internal control
deficiencies on a timely basis.
Source: Based on internal control components and principles outlined in GAO-14-704G, Standards for Internal
Control in the Federal Government (also known as the "Green Book"), issued September 10, 2014. (EPA OIG table)
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Appendix B
Region 3 Response to Draft Report
.^tosr%
7>
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
16S0 Arch Street
Philadelphia, Pennsylvania 19103-2029
MEMORANDUM
SUBJECT: Response to the Office of Inspector General (GIG) Draft Report Improved Review Processes
Could Advance EPA Regions 3 and 5 Oversight of State-Issued National Pollutant Discharge
Elimination System 1'ernhis lor Region 3 and Region 5 dated February 17. 2021
Thank you for the opportunity to respond to the issues and recommendations in the subject draft
audit report. The following is a summary of the U.S. Environmental Protection Agency
(USEPA) Region Ill's overall position on the draft report along with our response to each of the
recommendations. The draft report contains three recommendations for Region III which are
identified below. We are also enclosing an attachment that provides additional comments
addressing specific statements and information contained in the draft report. We have limited
our response and comments to those portions of the report that are focused on or reference the
Office of the Inspector General's (OIG) evaluation of Region Ill's oversight program.
SUMMARY OF RESPONSE
EPA Region III does not concur with the OIG's recommendations. The Region believes that the
report does not accurately reflect the entirety of the Region's oversight of the state's National
Pollutant Discharge Elimination System (NPDES) programs, in particular West Virginia's
mining permit program.
The Region's oversight of state programs assures that all Clean Water Act (CWA) statutory and
regulatory requirements are met. There are aspects of the Region's oversight program that
should be better identified in the draft report, including real time permit reviews (RTRs) and
monthly meetings with the states' permitting programs to discuss process, issues, and comments
on draft permits and fact sheets. With the significant volume of permits submitted to the Region
for RTR, the permit reviewers are relied upon for their program knowledge and expertise to
FROM: ])i ana Esher, Acting Administrator Q|A|\jA
FPA Region III
ESHER
TO:
Kathlene 1 killer. Director
Water Directorate
Office of Audi I and I /valuation
Office of Inspector General
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prioritize draft permits for review and comment. EPA's comments are often addressed and/or
resolved between the state and the permit reviewer prior to providing written comments.
To improve oversight, Regional management instituted a permit review process which enabled
management to identify reoccurring issues, assure consistency across permit reviewers, and
elevate appropriate issues for resolution with the state. As a result of this process, the Region
can more quickly elevate concerns and issue objections when draft permits fail to meet federal
CWA statute and regulations. The Region fully executes all state program oversight
responsibilities.
REGION III RESPONSE TO PIG RECOMMENDATIONS
OIG RECOMMENDATION: Review the modified National Pollutant Discharge Elimination
System mining permits issued by West Virginia based on the 2019 revisions to its National
Pollutant Discharge Elimination System program to ensure that no backsliding has occurred,
including for discharges of ionic pollution, in accordance with EPA Region Ill's approval letter
dated March 27, 2019. If a permit does not contain record documentation for the reasonable
potential analysis or otherwise allows backsliding, alert West Virginia of the permit
inadequacies.
REGION III RESPONSE: We will review draft permits and associated documentation provided
to EPA to ensure that draft permits and fact sheets meet federal statute and regulations. West
Virginia conducts a reasonable potential analysis on its permits. The Region will include a
review of reasonable potential for mining permits in future permit quality reviews. The next
review for West Virginia is tentatively scheduled in federal fiscal year 2024. The Region will
continue to review permits and appropriate documentation in accordance with the RTR
document. This will provide the process by which EPA and West Virginia coordinate on permits
that are required to be submitted for EPA review. The RTR document will be final by the end of
March 2021. Please note that this is a living document that will be updated on a periodic basis to
reflect changes in process.
OIG RECOMMENDATION: Review the modified National Pollutant Discharge Elimination
System mining permits issued by West Virginia based on the 2019 revisions to its National
Pollutant Discharge Elimination System program to determine whether the permits contain
effluent limits for ionic pollution and other pollutants that are or may be discharged at a level
that causes, has the reasonable potential to cause, or contributes to an excursion above any
applicable water quality standard, as required by Clean Water Act regulations. If a permit lacks
required effluent limits, take appropriate action to address such deficiencies.
REGION III RESPONSE: We will review draft permits and associated documentation provided
to EPA to ensure that draft permits and fact sheets meet federal statute and regulations. West
Virginia conducts a reasonable potential analysis on its permits. The Region will include a
review of reasonable potential for mining permits in future permit quality reviews. The next
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review for West Virginia is tentatively scheduled in federal fiscal year 2024. The Region will
continue to review permits and appropriate documentation in accordance with the RTR
document. This will provide the process by which EPA and West Virginia coordinate on permits
that are required to be submitted for EPA review. The RTR document will be final by the end of
March 2021. Please note that this is a living document that will be updated on a periodic basis to
reflect changes in process.
OIG RECOMMENDATION: Develop a formal internal operating procedure to facilitate timely
permit reviews and transmission of EPA comments to states.
REGION III RESPONSE: As we shared with the OIG during the onsite Regional review, we
addressed this recommendation through an internal operating procedure implemented in July
2019. The Region's internal operating procedure for timely reviews is part of EPA's Lean
Management System (ELMS). The procedure requires permit reviewers to complete their
detailed reviews and develop comments by day 21 of our 30-day review time. This procedure
enables timely transmission of permit reviews to the states.
CONTACT INFORMATION
If you have any questions regarding this response, please contact the EPA Region III Water
Director, Catherine Libertz, at Libertz.Catherine@epa.gov or (215) 814-2737 or the Region III
Audit Coordinator, Lorraine Fleury, at Fleury.Lorraine@epa.gov or (215) 814-2341.
cc: Cheryl Newton, Acting Administrator, EPA Region V
Allison Dutton, OIG
ATTACHMENT 1
EPA Region III Response to specific statements in OIG Draft Report Improved Review Processes
Could Advance EPA Regions 3 and 5 Oversight of State-Issued National Pollutant Discharge
Elimination System Permits for Region 3 and Region 5 dated February 17, 2021
OIG STATEMENT: On Page 2, the OIG references the following in bullet 2: "Historical reviews,
called permit quality reviews, of final permits."
REGION III RESPONSE: The text highlighted suggests that EPA reviews all final permits as part
of the permit quality review. We recommend that the OIG edit the document to state that "some"
final permits are reviewed. We also recommend that the OIG include a reference to the EPA PQR
guidance, which outlines the procedures to ensure that there is no ambiguity in the process and
expectations: https://www.epa.gov/npdes/npdes-program-and-permit-qualitv-review-standard-
operating-procedures.
OIG STATEMENT: On Page 2, the OIG states that "EPA regional staff conduct real-time reviews
of selected draft or proposed NPDES permits that authorized states intend to issue."
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REGION III RESPONSE: EPA is not obligated to review all of the draft permits and
documentation that are required to be submitted for review. For draft permits required to be
submitted by federal regulation, executed memorandum of agreement (MOA) or the revocation of a
waiver, EPA has the discretion to review the permit. On average, the Region reviews greater than
500 draft permits in the mining sector alone. Additionally, the Region receives draft permits in
other sectors for formal and informal review. In the mining sector, the Region has a best practice
of triaging permits for review. We meet with our state permitting agencies regularly (monthly) to
discuss permits, comments, and program issues.
OIG STATEMENT: On Page 6, the OIG states that the "complaint alleged that regional
management implemented a real-time permit review process that hampered Region 3 staffs ability
to review and comment on NPDES permits within the allowed comment period."
REGION III RESPONSE: The comment response process was modified to improve permit reviews
by creating a process to identify, evaluate, raise, and resolve reoccurring issues in draft permits. In
the former process, individual staff sent EPA comments directly to the state, generally without a
review by EPA Regional management. The Region determined that it was more effective and
efficient to resolve common, potential program-wide issues by elevating the issue for attention by
both state and EPA management rather than repeating comments in staff-to-staff letters. The
revised, current process includes a review by the Clean Water Branch Chief who then sends EPA
comments on draft permits to the states. The purpose for this process change was to enable the
Branch Chief to identify programmatic issues occurring across multiple permit reviewers, evaluate
for potential impact, and elevate as appropriate. This process change has (1) helped to identify
common issues to be addressed; (2) ensured consistency of permit reviews across the NPDES
Permits Section; and (3) created an effective, efficient elevation and resolution process for draft
permits which don't meet federal CWA statute and regulations.
OIG STATEMENT: One Page 7, the OIG states that "We analyzed key background and criteria
documents, including documents relating to state-issued NPDES permits, from the initial permit
application to the issuance of the final permit; official EPA records; emails; written
communications between all interested parties and stakeholders; memorandums of agreement;
administrative records; court records; and legal proceedings. AND Because of the disproportionate
geographic distribution of responses received from EPA staff, we were unable to identify national,
overarching NPDES oversight issues."
REGION III RESPONSE: It would be helpful to understand the specific documents reviewed as
part of this effort. The Region would like to gain a better understanding of the basis for the OIG
recommendations, given that the OIG was unable to identify national, overarching NPDES
oversight issues.
OIG STATEMENT: On Page 9, the OIG states that "From July 2019 through December 2020, the
West Virginia Department of Environmental Protection, which is the state permitting authority for
West Virginia, issued 286 modified NPDES mining permits without conducting a reasonable
potential analysis to ensure that the CWA's anti-backsliding provisions were met."
REGION III RESPONSE: It would be helpful in formulating a response to understand the
documentation and review process which the OIG used to reach the conclusion that West Virginia's
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final permits do not meet the statutory and regulatory requirements of the CWA and that the state is
not conducting a reasonable potential analysis.
OIG STATEMENT: On Page 9, the OIG states that "NPDES permits that incorporated water
quality criteria by reference—such as ionic pollution, which is commonly found in mine
discharges—are no longer regulated by the modified NPDES permits."
REGION III RESPONSE: This statement is misleading. Ionic pollution does not have an EPA
recommended or state-imposed Water Quality Criteria.
OIG STATEMENT: On Page 10, the OIG states that "As such, facilities discharging pursuant to
their permits may be shielded from enforcement action by the EPA or a state regarding discharges
that, in fact, violate water quality" standards.
REGION III RESPONSE: Water Quality Standards are limits or methods bound in state legislation.
As they are incorporated into the permits as a limit, violations occur when a facility exceeds the
limits that are included in the permit.
OIG STATEMENT: On Page 10, the OIG states that "Previously, on two occasions in 2015,
Region 3 did not approve West Virginia Department of Environmental Protection requests to
modify or remove the narrative water quality criteria permit requirement."
REGION III RESPONE: In 2015, EPA did not take any formal disapproval action. The Region's
first formal action was in March 2019.
OIG STATEMENT: On Page 11, the OIG states that "These instructions meant that, for even those
state-issued NPDES permits for which a reasonable potential analysis was previously performed
and included in the record documentation, an additional reasonable potential analysis should be
performed and included in the record documentation if these permits were reissued after the
removal of the narrative criteria."
REGION III RESPONSE: It is unclear how the OIG determined the intent with regards to an
additional reasonable potential analysis.
OIG STATEMENT: On Page 12, the OIG states that "On July 5, 2019, Region 3 began reviewing
the first two modified permits submitted by the West Virginia Department of Environmental
Protection for reissuance. Region 3 permit reviewers found that the permit documentation did not
include the required reasonable potential analysis". This page also includes the following statement
"West Virginia stated in the modified permits that no backsliding has occurred; however, Region 3
cannot verify this statement, since the State provided no documentation that the reasonable
potential analysis was completed." Finally, the report includes the following statement: "To date,
Region 3's management has not taken action to ensure that the modified permits reflect reasonable
potential analysis and do not violate the CWA anti-backsliding provision. Without the reasonable
potential analysis, these permits may be less stringent than prior permits and may violate the CWA
anti-backsliding provision."
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REGION III RESPONSE: Region III would find it helpful in formulating a response to know the
specific permits and documentation which the OIG reviewed to reach this conclusion.
OIG STATEMENT: Throughout Page 13, the OIG references Region Ill's processes, including the
Region's decision to modify comment procedures and the timeliness of the Regional process and
the state's response to EPA comments.
REGION III RESPONSE: Comments are offered to provide additional information to the state on
clarity and interpretation of the draft documents reviewed. If the draft permit as written does not
meet federal and state statute and regulation, the Region uses the tools at our disposal, including
objection, to address those issues. We take into consideration the recommendations from our
Mining Team and the permit reviewers for select permits to ensure that the state is issuing a permit
that meets the requirements of the CWA. The state is not obligated to address all comments, only
those that do not meet federal statute and regulations and/or state statute and regulation. When
permits do not meet the Federal statute and regulations, the Region may object to permits.
Members of the Region III Mining Team triage permits for review. The state must submit all
permits in accordance with federal regulations, but EPA is not required to review all state
submissions. Region III program management relies on the Mining Team to use their best
professional judgement to prioritize permits for review. The Mining Team meets to discuss and
review the volume of permits received from all Region III states. In addition, the Mining Team
meets with state mining contacts to discuss any issues, concerns and potential corrective actions.
Not all comments rise to the level of objection or need to be addressed by the state. The state must
address only those comments that do not meet federal statute or regulations. In those instances,
EPA may choose to issue an objection to a permit. Regional permit objection authority resides
with the Water Director in Region III. The process change has resulted in an earlier elevation of
concerns and better articulation of the issues to the Director.
EPA Region III management encourages permit reviewers to reach out to the state to ask questions,
gather information and understand the draft permits. Management implemented a change to the
process for the transmission of comments to the state. The change was instituted to ensure better
elevation of commonly found issues and to address programmatic concerns with the state. This
resulted in a more efficient process to expeditiously elevate and address concerns and issue an
objection when draft permits do not meet federal CWA statute and regulations. Since 2019, the
Region has issued 7 objection letters to states using this revised process and 6 of those objections
have been satisfied. The final objection is still within the regulatory timeframe for the state to
address EPA's concerns.
OIG STATEMENT: On Page 15, the OIG states that "all staff views regarding water quality limits
were not provided to West Virginia before it issued the permit."
REGION III RESPONSE: There were instances where permit reviewers did not provide clear or
concise comments timely for comments to be provided to the state. Where this occurred, the permit
reviewers did not meet the internal deadlines that had been established in July 2019 as part of the
formal internal permit review process. As we shared with the OIG during the onsite Regional
review, the Region's internal operating procedure for timely reviews is part of EPA's Lean
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Management System (ELMS). The procedure requires permit reviewers to complete their detailed
reviews and develop comments by day 21 of our 30-day review time. This procedure enables
timely transmission of permit reviews to the states.
OIG STATEMENT: On Page 16, the OIG provides its conclusions on the Region III process.
REGION III RESPONSE: We respectfully request that the OIG review and revise its conclusions
based on the comments provided by the Region.
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Appendix C
Region 5 Response to Draft Report
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 5
77 WEST JACKSON BOULEVARD
CHICAGO. IL 60604-3590
REPLY TO THE ATTENTION OF:
R-19.J
MEMORANDUM
SUBJECT: R egion 5 Response to the February 17. 2021. Office of Inspector General's Draft
Report (Project No. OA&.F.-FY 19-0340). "Hotline Report: insuring Clean and
Safe Water Improved Re\ iew Processes Could Advance HP A Regions 3 and 5
Oversight of State-Issued National Pollutant Discharge l.liminalion System
Permits"
Cheryl Newton, Acting Regional Administrator CHERYL cherunewton
EPA Region 5 NEWTON ^:™025
Kathlene Butler, Director
Water Directorate
Oflice of Evaluation
EPA Regions 3 and 5 have been asked to review and comment on the Office of Inspector
General's Findings in the February 17, 2021 Draft Report, "Improved Review Processes Could
Advance EPA Regions 3 and 5 Oversight of State-Issued National Pollutant Discharge
Elimination System Permits (Project No. OA&E-FY19-0340) ("Draft Report"). In accordance
with the Office of Inspector General's (OIG) request, Region 5 submitted a timely response to
the Draft Report on March 19, 2021. Region 5 now submits this updated response to reflect the
clarifications discussed in the March 22, 2021 exit interview between Region 5 representatives
and the Office of the Inspector General.
The draft report provides:
In accordance with EPA Manual 2750, you are required to provide a written response to
the findings and recommendations in this draft report within 30 days of the draft report
date. The response should address the factual accuracy of the draft report and indicate
whether you concur or do not concur with each finding and recommendation. The
response should also indicate planned completion dates for all recommendations. If you
do not concur with a recommendation, please provide any alternative actions you wish to
be considered for the final report. Your response should identify any corrective actions
FROM:
TO:
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already initiated or planned. The final report will include an assessment of your response,
and we reserve the right to modify our report in light of your response.1
Accordingly, Region 5 reviewed the Draft Report and makes the following responses regarding
factual accuracy, our concurrence/non-concurrence with your findings, and our response to your
recommendation as set forth in the table below. We note that key aspects of EPA's oversight of
the PolyMet permitting matter, including EPA's actions with respect to review under Clean
Water Act (CWA) Section 401(a)(2), 33 U.S.C. § 1341(a)(2) remain in litigation.2 Additionally,
on March 8, 2021, the U.S. District Court for Minnesota granted the U.S. Environmental
Protection Agency's request for a voluntary remand in Fond du Lac Band of Lake Superior
Chippewa v. Andrew Wheeler, el ai. Case No. 19-CV-2489 (PJS/LIP) (ECF No. 89) (hereafter
FDL v. EPA). EPA sought this remand to reconsider its lack of notice to the Fond du Lac Band
of Lake Superior Chippewa (the "Band") under Section 401(a)(2) of the Clean Water Act. 33
U.S.C. § 1341(a)(2). Therefore, it would be inappropriate for EPA to comment on those matters
that remain in litigation or are predecisional.
This limitation does not, however, preclude us from confirming that the Region is committed to
(1) reviewing and providing a written response to any National Pollutant Discharge Elimination
System (NPDES) permit prepared for reissuance by the Minnesota Pollution Control Agency for
the PolyMet Mining Inc. NorthMet project (should such an opportunity arise) and (2) to making
a determination whether discharges "may affect" the waters of the Band pursuant to CWA
section 401(a)(2) in accordance with the Minnesota District Court's Order referenced above, in
the PolyMet matter. We believe these commitments are consistent with the Draft Report
Recommendations Nos. 4 and 5.
We note, however, that consistent with the CWA, NPDES regulations and the Region's NPDES
Permit Review Standard Operating Procedure (SOP), EPA maintains its discretion to choose
whether to review and comment on state NPDES permits. The Agency's discretion to make such
choices was recently affirmed by the federal District Court for Minnesota in FDL v. EPA. The
Court affirmed:
[T]he Clean Water Act explicitly grants EPA the authority to waive its right to object to a
proposed NPDES permit. See 33 U.S.C. § 1342(d)(3). Consequently—and as a number of
courts have recognized—EPA's waiver decision is not subject to judicial review under
the Administrative Procedure Act ("APA") because it is "committed to agency discretion
by law." 5 U.S.C. § 701(a)(2); see District of Columbia v. Schramm, 631 F.2d 854, 861
(D.C. Cir. 1980); see also Menominee Indian Tribe of Wis. v. EPA, 947 F.3d 1065, 1073
(7th Cir. 2020); Save the Bay, Inc. v. Adm 'r of EPA, 556 F.2d 1282, 1295 (5th Cir. 1977).
(FDL v. EPA, Order, February 16, 2021, at 11-12).
1 Memorandum from Kathlene Butler, Director, Water Directorate, Office of Evaluation, to Diana Esher, Acting
Regional Administrator Region 3, and Cheryl Newton, Acting Regional Administrator, Region 5, enclosing Draft
Report: Improved Review Processes Could Advance EPA Regions 3 and 5 Oversight of State-Issued National
Pollutant Discharge Elimination System Permits, Project No. OA&E-FY19-0340 (February 17, 2021), at 1.
2 Fond du Lac Band of Lake Superior Chippewa v. Andrew Wheeler, etal, Case No. 19-CV-2489 (PJS/LIP)
(Hereafter FDL v. EPA).
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Region 5's other comments and ongoing and/or proposed actions are further explained below.
Thank you for the opportunity to review and comment on these draft findings and
recommendations. Please do not hesitate to contact me should you wish to further discuss the
information in this letter, or you may contact Stephen Jann and David Pfeifer of my staff
regarding the NPDES permit review and oversight and 401(a)(2), respectively.
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Draft Report Findings Relating to NPDES Permit Review and Oversight
Allegation/Quoted language from report
Factual Accuracy/Does EPA
Concur or Not Concur
Planned Completion
Date for
Recommendations
Alternative
Action for
things EPA does
not concur on
Corrective
Actions
Already
initiated or
planned
1
Despite the concerns about the draft PolyMet
NPDES permit, Region 5 management did not
transparently exercise its oversight authority,
choosing instead to not provide written
comments summarizing those concerns.
Not Concur with comments
Both the CWA and the
NPDES regulations require
that any objections must be
provided in writing. While
Region 5 did not provide
written comments on the
proposed PolyMet Permit,
the CWA and the NPDES
regulations provide EPA
discretion to comment or not
and do not obligate EPA to
provide written comments.
See 40C.F.R. 123.44(a)(1).
Clean Water Act (CWA)
section 402(d)(3), 33 U.S.C.
§ 1342(d)(3) provides
discretion for EPA to waive
its rights to object to a
proposed permit.
40C.F.R. § 123.44 (a)(1)
provides that "the
Memorandum of Agreement
shall provide up to 90 days in
N/A
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Allegation/Quoted language from report
Factual Accuracy/Does EPA
Concur or Not Concur
Planned Completion
Date for
Recommendations
Alternative
Action for
things EPA does
not concur on
Corrective
Actions
Already
initiated or
planned
which the Regional
Administrator may make
general comments upon,
objections to or
recommendations on
proposed permits. EPA
reserves the right to take 90
days to supply specific
grounds for objection,
notwithstanding any shorter
period specified in the
Memorandum of Agreement,
when a general objection is
filed within the review period
specified in the
Memorandum of Agreement.
The Regional Administrator
shall send a copy of any
comment, objection or
recommendation to the
permit applicant." [Emphasis
added.]
2
We found that Region 5 did not follow either
its standard operating procedure for NPDES
permit reviews or common EPA practice when
it decided to not convey comments in writing
regarding its review of the draft PolyMet
NPDES permit.
Not Concur with comments
While the Region typically
transmits comments on
permits it reviews, the SOP
reflects the discretion in the
CWA and the NPDES
N/A
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Allegation/Quoted language from report
Factual Accuracy/Does EPA
Concur or Not Concur
Planned Completion
Date for
Recommendations
Alternative
Action for
things EPA does
not concur on
Corrective
Actions
Already
initiated or
planned
regulations cited in (1)
above.
The SOP explicitly states that
it is not binding on EPA or
others: "[t]his SOP is
intended as guidance for
Region 5 NPDES Programs
Branch staff only. It shall not
be deemed to create any right
or benefit, either substantive
or procedural, enforceable by
any person or entity against
EPA. EPA retains discretion
to take approaches consistent
with EPA's authority under
the Clean Water Act and
EPA's regulations on a case
by case basis that differ from
those described in this SOP."
[Emphasis added.]
The MOA between Region 5
and Minnesota provides, in
relevant part, that "If no
written comment is received
by the Agency from the
Regional Administrator
within the 15 days, the
Director may assume, after
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Allegation/Quoted language from report
Factual Accuracy/Does EPA
Concur or Not Concur
Planned Completion
Date for
Recommendations
Alternative
Action for
things EPA does
not concur on
Corrective
Actions
Already
initiated or
planned
verification of receipt of the
proposed permit, that the
EPA has no objection to the
issuance of the permit."
3
The Region 5 NPDES permit review standard
operating procedure, published in 2012,
outlines the region's administrative process
for providing comments to states, as well as
the process to follow when EPA comments are
not fully addressed by states. Per the standard
operating procedure:
Though discussions may continue to resolve
issues and answer questions about the permit,
the Permit Reviewer must provide an
appropriate comment review transmittal letter
to the State within 30 days of the date that a
Proposed Permit (or, in some cases, Draft
Permit) was received.
Not Concur with comments
See (2) above. We also note
that when reviewing permits
that may be complex or
require decisions that are not
delegated to the Branch
Chief, the typical process
laid out in the SOP may not
apply.
N/A
4
Once the permit review process is complete,
according to the standard operating procedure,
the region is to prepare and send a letter, even
if only to indicate that the region has no
objection to the permit.
Not Concur with comments
See (2) above.
N/A
5
For example, pursuant to 40 C.F.R. §
123.44(a)(1), the EPA "shall send a copy of
any comment, objection or recommendation to
the permit applicant/'
Concur with comment
See (1) above.
N/A
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Allegation/Quoted language from report
Factual Accuracy/Does EPA
Concur or Not Concur
Planned Completion
Date for
Recommendations
Alternative
Action for
things EPA does
not concur on
Corrective
Actions
Already
initiated or
planned
6
Sending a copy of comments, objections, or
recommendations would require that such
communications be written.
Not Concur with comments
See (1) above.
The CWA and regulations do
not prohibit providing
comments orally. There are
often permit specific
conversations regarding
comments that are
preliminary or a preview of
comments in advance of
anticipated communication.
The Region has found these
detailed conversations
helpful in understanding the
basis for permit conditions
and reaching agreement on
necessary modifications in
draft and proposed permits.
The changes are then
submitted to EPA for review
in accordance with the CWA,
the MO A and regulations.
N/A
7
Region 5 used two different terms to describe
the draft NPDES permit versions discussed
above: pre-piiblic notice andpre-proposed.
For the purpose of this chapter, we refer to
both of these versions simply as the dra ft
Not Concur with comments
Under EPA's regulations at
40C.F.R. 122.2, a "draft
permit" and a "proposed
N/A
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Allegation/Quoted language from report
Factual Accuracy/Does EPA
Concur or Not Concur
Planned Completion
Date for
Recommendations
Alternative
Action for
things EPA does
not concur on
Corrective
Actions
Already
initiated or
planned
permit, as they were not yet finalized by the
Minnesota Pollution Control Agency.
permit" are distinct and
cannot be used
interchangeably. A "draft
permit" is, in part, a
document prepared under 40
C.F.R. § 124.6 indicating
the Director's tentative
decision to issue or deny,
modify, revoke and reissue,
terminate, or reissue a
"permit." In general, draft
permits are subject to public
participation
requirements. A "proposed
permit" is
"a State NPDES 'permit"
prepared after the close of
the public comment period
(and, when applicable, any
public hearing and
administrative appeals)
which is sent to EPA for
review before final issuance
by the State." In general,
proposed permits have
already undergone public
participation procedures. In
the case of the Polymet
permit review, EPA also
used the term "pre-proposed"
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Allegation/Quoted language from report
Factual Accuracy/Does EPA
Concur or Not Concur
Planned Completion
Date for
Recommendations
Alternative
Action for
things EPA does
not concur on
Corrective
Actions
Already
initiated or
planned
permit at times. This term
was used to describe the
stage of the permit
proceeding after the permit
had undergone public
participation procedures, but
before it formally had been
submitted to EPA for
review. The email from K.
Thiede to S. Lotthammer
dated March 16, 2018
memorialized this specific
agreement (see attached).
Thus, characterizing
proposed or pre-proposed
permits as draft permits is
inappropriate.
8
The Minnesota Pollution Control Agency
requested that the comments be provided
orally instead of in writing, and the region's
then chief of staff agreed with that approach,
even though the approach did not follow the
region's standard operating procedure.
Partially Concur, with
comments
Region 5 concurs with
highlighted text. However,
both the CWA and the
NPDES regulations provide
EPA with discretion whether
to provide written comments;
written comments are not
required.
N/A
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Allegation/Quoted language from report
Factual Accuracy/Does EPA
Concur or Not Concur
Planned Completion
Date for
Recommendations
Alternative
Action for
things EPA does
not concur on
Corrective
Actions
Already
initiated or
planned
See also (1) and (2) above.
9
The branch chief memorialized this
information in an internal memorandum to file
dated December 18, 2018, one day before the
expiration of the EPA's 15-day comment
period on the final permit, detailing:
The 29 comments and multiple
recommendations that had been read to the
Minnesota Pollution Control Agency over the
telephone;
The permit revisions, if any, made in response,
to these comments and recommendations; and
Whether the EPA's comment was addressed
by the revisions made, if any.
Neither concur nor non-
concur - the memorandum
speaks for itself.
N/A
10
This table identified 12 EPA comments as
"Comment was not addressed" or "Comment
was not addressed fully/' (Emphasis in
original.)
EPA did not include the table here.
Neither concur nor non-
concur - the memorandum
speaks for itself.
N/A
11
Also in the memorandum, the NPDES branch
chief expressed skepticism of the Minnesota
Pollution Control Agency's use of "operating
limits" rather than "water quality-based
effluent limitations," referring repeatedly to
Neither concur nor non-
concur - the memorandum
speaks for itself.
N/A
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Allegation/Quoted language from report
Factual Accuracy/Does EPA
Concur or Not Concur
Planned Completion
Date for
Recommendations
Alternative
Action for
things EPA does
not concur on
Corrective
Actions
Already
initiated or
planned
operating limits as "arguably" enforceable.
(Emphasis in original.)
12
The branch chief noted that "federal
enforceability of these operating limits is less
certain and more complex than if these limits
were established as water quality-based
effluent limitations/'
Neither concur nor non-
concur - the memorandum
speaks for itself.
N/A
13
Despite Region 5 senior management
knowledge of the unaddressed NPDES permit
concerns, Region 5 chose to not exercise its
oversight authority to ensure that all
deficiencies in the PolyMet NDPES permit
were addressed.
Not concur. As the Court
found in FDL v. EPA,
"[t]here is no dispute that
EPA has discretion to choose
not to object to a permit even
if the permit fails to comply
with federal regulatory
requirements.'' (FDL v. EPA,
Order, February 16, 2021, at
14.)
N/A
14
Despite Region 5's concerns with the draft
PolyMet NPDES permit, the region chose to
not exercise its oversight authority to ensure
that the final permit met CWA and NPDES
requirements.
Not Concur with comments
EPA engaged with MPCA
both in writing and orally
with respect to this permit
review.
See discussion of EPA
discretion at (1). Also, as the
Court held in FDL v. EPA,
"[t]here is no dispute that
N/A
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Allegation/Quoted language from report
Factual Accuracy/Does EPA
Concur or Not Concur
Planned Completion
Date for
Recommendations
Alternative
Action for
things EPA does
not concur on
Corrective
Actions
Already
initiated or
planned
EPA has discretion to choose
not to object to a permit even
if the permit fails to comply
with federal regulatory
requirements." (FDL v. EPA,
Order, February 16, 2021, at
14.)
15
Regional management did not ensure that its
comments were conveyed to Minnesota in a
transparent and timely manner per the region's
standard operating procedure, and the permit
issued by the State did not address all of the
EPA's concerns.
Not Concur with comments
See discussion at (14) and of
discretion at (1).
N/A
16
Recommendation 4
Review and provide written input on any
National Pollutant Discharge Elimination
System permit prepared for reissuance by the
Minnesota Pollution Control Agency for the
PolyMet Mining Inc. NorthMet project, if
applicable, as appropriate pursuant to the
requirements of the Clean Water Act, National
Pollutant Discharge Elimination System
regulations, the Region 5 National Pollutant
Discharge Elimination System permit review
standard operating procedure, and the
memorandum of agreement between EPA
Region 5 and the Minnesota Pollution Control
Agency.
Concur
Consistent with the
CWA, the regulations
and the MOA with
MPCA, Region 5 will
review the permit if
or when it is
transmitted for
review by MPCA.
Comments or
recommendations, if
there are any, will be
transmitted in
writing.
Notwithstanding the
possible remand of
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Allegation/Quoted language from report
Factual Accuracy/Does EPA
Concur or Not Concur
Planned Completion
Date for
Recommendations
Alternative
Action for
things EPA does
not concur on
Corrective
Actions
Already
initiated or
planned
the PolyMet permit to
MPCA for further
action in accordance
with on-going state
litigation, EPA
anticipates it would
next review a draft
permit for this project
when the State
proposes to renew it,
pending the facility's
request for permit
renewal, in
conjunction with the
current permit's
expiration date of
November 30, 2023.
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Draft Report Findings Relating to CWA 401(a)(2)
Allegation/Quoted language from report
Factual Accuracy/Does
EPA Concur or Not Concur
Planned Completion
Date for
Recommendations
Alternative
Action for
things EPA does
not concur on
Corrective
Actions
Already
initiated or
planned
1A
The Minnesota Pollution Control Agency issued
a CWA § 401(a)(1) certification for the
NorthMet project on December 20, 2018. The
Fond du Lac Band, based on its "Treatment as a
State" status, formally requested on three
occasions that the EPA provide notice to the
tribe regarding the downstream water quality
impacts of discharges associated with the CWA
§ 404 permit, pursuant to CWA § 401(a)(2)
(Figure 2). The Fond du Lac Band's requests
included assertions that the permit would have
downstream impacts to tribal water quality.
Neither concur nor not
concur with the highlighted
portion. Concur with the
remainder. The District
Court in FDL v. EPA held
that EPA has a duty under
Section 401(a)(2) to make a
determination whether
discharges from federally-
licensed projects "may
affect" the waters of other
states. This is the first court
N/A
Pursuant to CWA § 401(a)(2), the EPA has a
responsibility to "determine []" whether the
downstream water quality will be impacted and
to notify downstream states or tribes, if
applicable, (p. 21)
to make a conclusion
regarding the scope of
EPA's discretion under this
statutory provision. EPA is
reviewing this decision and
its potential impact on
Agency decisionmaking.
2A
The Region 5 Office of Regional Counsel
asserted that the phrase "as determined by the
Administrator' in CWA § 401(a)(2) indicates
that it is within the EPA's discretion whether to
make such a determination at all, irrespective of
requests from downstream states. The Army
Corps of Engineers issued the CWA § 404
The District Court in FDL
v. EPA held that EPA has a
duty under Section
401(a)(2) to make a
determination whether
discharges from federally-
licensed projects "may
affect" the waters of other
N/A
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Allegation/Quoted language from report
Factual Accuracy/Does
EPA Concur or Not Concur
Planned Completion
Date for
Recommendations
Alternative
Action for
things EPA does
not concur on
Corrective
Actions
Already
initiated or
planned
permit for Poly Met's NorthMet project on
March 21, 2019. (p. 22)
states. This is the first court
to make a conclusion
regarding the scope of
EPA's discretion under this
statutory provision. EPA is
reviewing this decision and
its potential impact on
Agency decisionmaking.
3A
While arguably consistent with the letter of
CWA § 401(a)(2), Region 5's interpretation of
the provision allows the region to deny a
potential administrative remedy to the tribe
simply by neglecting to assess downstream
affects, despite repeated requests, (p. 23)
See 2A.
N/A
4A
We found that Region 5's failure to make a
determination about the potential downstream
effects per CWA § 401(a)(2) barred the Fond du
Lac Band's access to the administrative process
by which it could formally voice its concerns.
In addition, the EPA arguably did not meet the
intent of its tribal and environmental justice
policies, including its Policy on Consultation
and Coordination with Indian Tribes and
Environmental Justice Policy, which aim to
ensure consultation, fair treatment, and
meaningful involvement of tribes in EPA
decisions affecting their health or environment,
(p. 23)
On March 4, EPA sought a
voluntary remand of its lack
of notice to the Band. See
Motion of March 4, 2021
(Attachment 1 to this
memorandum). EPA
sought this remand to
reconsider its lack of
notice to the Fond du Lac
Band of Lake Superior
Chippewa (the "Band")
under Section 401(a)(2)
of the Clean Water Act.
33 U.S.C. § 1341(a)(2).
N/A
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Allegation/Quoted language from report
Factual Accuracy/Does
EPA Concur or Not Concur
Planned Completion
Date for
Recommendations
Alternative
Action for
things EPA does
not concur on
Corrective
Actions
Already
initiated or
planned
5A
In addition, by not making a determination
regarding the potential downstream impacts of
proposed discharges related to the NorthMet
project, Region 5 limited the Fond du Lac
Band's ability to formally voice the tribe's
concerns in accordance with the process
outlined in CWA § 401. (from conclusion, p. 23)
See 4A.
N/A
6A
Furthermore, the EPA did not meet the intent of
its tribal and environmental justice policies,
which aim to ensure that tribes receive
consultation, fair treatment, and meaningful
involvement in decisions affecting tribal health
or the environment, (from conclusion, p. 23)
See 4A.
N/A
7A
Recommendation 5:
Pursuant to Clean Water Act § 401(a)(2),
commit to making a determination regarding the
downstream water quality impacts of pertinent
discharges whenever available information,
including information provided by downstream
states or tribes, indicates reasonable grounds to
conclude that the discharges may impact
downstream water quality.
Concur with comment.
Our concurrence is limited
to the PolyMet matter. See
4A.
See 4A.
EPA Region
5 aims to
complete its
review under
401(a)(2) for
the PolyMet
matter within
90 days of the
Court's grant
of our
voluntary
remand
motion; EPA
will report the
status of its
action to the
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Allegation/Quoted language from report
Factual Accuracy/Does
EPA Concur or Not Concur
Planned Completion
Date for
Recommendations
Alternative
Action for
things EPA does
not concur on
Corrective
Actions
Already
initiated or
planned
Court on June
7, 2021.
Should EPA
require
additional
time to
complete its
review, it will
so notify the
OIG.
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Appendix D
Distribution
The Administrator
Associate Deputy Administrator
Assistant Deputy Administrator
Chief of Staff, Office of the Administrator
Deputy Chief of Staff, Office of the Administrator
Agency Follow-Up Official (the CFO)
Agency Follow-Up Coordinator
General Counsel
Associate Administrator for Congressional and Intergovernmental Relations
Associate Administrator for Public Affairs
Assistant Administrator for Water
Regional Administrator for Region 3
Regional Administrator for Region 5
Principal Deputy Assistant Administrator for Water
Deputy Regional Administrator for Region 3
Deputy Regional Administrator for Region 5
Deputy Assistant Administrators for Water
Director, Office of Continuous Improvement, Office of the Chief Financial Officer
Director, Office of Regional Operations
Regional Public Affairs Officer, Region 3
Regional Public Affairs Officer, Region 5
Audit Follow-Up Coordinator, Office of the Administrator
Audit Follow-Up Coordinator, Office of Water
Audit Follow-Up Coordinator, Region 3
Audit Follow-Up Coordinator, Region 5
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