In court, environmental regulators accused of suppressing comments in PolyMet case

Attorney William Pentelovitch of Maslon
Attorney William Pentelovitch argues for the opponents during an evidentiary hearing regarding alleged “procedural irregularities’’ in the way the PolyMet project's MPCA water quality permit was issued. The proceedings began at the Ramsey County courthouse in St. Paul Tuesday.
Leila Navidi | Star Tribune

The Minnesota Pollution Control Agency on Tuesday was accused of asking federal regulators to delay submitting written comments critical of a permit for the proposed PolyMet copper-nickel mine, a request that a retired U.S. Environmental Protection Agency official described as “odd” and contrary to established practice.

The contention is at the center of a complicated legal hearing that began this week in Ramsey County District Court, which was given the task of investigating alleged “procedural irregularities” that preceded the MPCA’s issuance of a water permit to PolyMet Mining in late 2018.

Several environmental groups and the Fond du Lac Band of Lake Superior Chippewa argue that the MPCA tried to improperly suppress serious concerns from EPA scientists about the permit’s ability to protect waterways in northeastern Minnesota. The organizations brought those concerns to the Minnesota Court of Appeals, which ordered the district court to investigate them.

Rather than submit the comments in writing during the public comment period, as is customary, EPA officials instead delivered them over the phone to their counterparts at the MPCA after the comment period had closed, effectively keeping those comments out of the official public record.

Kevin Pierard, the retired chief of the permits branch at the U.S. EPA regional office in Chicago, testified in court Tuesday that it was “standard practice” to put comments in writing, for several reasons.

A judge presides over a hearing in the PolyMet permit case.
Judge John Guthmann presides over the evidentiary hearing Tuesday.
Leila Navidi | Star Tribune

He said the EPA would regularly send written comments so their communication was clear; so the agency couldn’t be misconstrued; and for the sake of transparency. More fundamentally, he said, written comments are “put on the record. If someone were to ask what’s EPA’s role, of what did EPA do, that’s in the record and you can see that.”

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Pierard, who managed water permits at the EPA for nine years, and implemented Clean Water Act regulations for 25 years, said that, before the PolyMet permit, he had never received a request to not put EPA’s concerns in writing.

“I never had an instance where a person at any level in state government has asked that we not put our comments in writing,” he said in his testimony that spanned about four hours Tuesday.

In an email that was leaked by EPA staff last summer, then-MPCA assistant commissioner Shannon Lotthammer sent an email asking the EPA not to send a written comment letter during the public comment period.

She made a similar request in phone calls, Pierard said. “It seemed rather odd that the Minnesota water director would suggest as somehow inappropriate for us to comment during the public comment period,” he said. “EPA makes comments all the time inside and outside the comment period.”

Vanessa Ray-Hodge, an attorney representing the Fond du Lac tribe
Vanessa Ray-Hodge, an attorney representing the Fond du Lac Band of Lake Superior Chippewa, speaks to another attorney during evidentiary hearings Tuesday.
Leila Navidi | Star Tribune

Attorneys for the Minnesota Pollution Control Agency and PolyMet will have a chance to cross-examine Pierard when the hearings continue Wednesday.

In written briefs prior to the start of the investigation, they argue the agency did not engage in procedural irregularities, but were rather complying with a memorandum of agreement that lays out the oversight that the EPA has over state permits.

And they said, in the end, they incorporated EPA’s comments into the final permit and addressed their concerns — an argument that’s supported, they say, “by the avoidance of an EPA veto.”

Spoliation at the center

The hearing Tuesday was just the first day of what’s expected to be a one- to two-week court proceeding to determine whether state environmental regulators engaged in irregular or improper behavior as they worked to approve a key permit for the proposed PolyMet copper-nickel mine, which would be the first of its kind in Minnesota.

“Let’s get this meeting of the Bar Association underway,” quipped Chief Ramsey County District Court Judge John Guthmann, who oversaw the proceedings Tuesday in a small St. Paul courtroom crowded with more than a dozen attorneys, representatives of PolyMet and environmental groups and their supporters fighting the controversial proposed project.

Guthmann made clear that the hearing is not about the substance of the MPCA’s determinations in issuing the water quality permit to the PolyMet project. Rather, it’s meant to determine whether there were irregularities in the MPCA’s procedures that factored into the permit’s approval.

Attorney Monte Mills argues for PolyMet.
Attorney Monte Mills argues for PolyMet in Ramsey County District Court Tuesday.
Leila Navidi | Star Tribune

“I’m only getting a very narrow issue,” Guthmann said. “The Court of Appeals gets the rest.”

Guthmann’s task is to determine what was left out of the official administrative record on the permit the MPCA issued to PolyMet that shouldn’t have been.

He’ll then send his determination back to the state appeals court, which has put a temporary hold on the water quality permit while these legal proceedings play out.

One procedural issue that was not resolved Tuesday was whether the MPCA should be penalized for destroying documents and computers that included information relevant to the case, including the computer of former MPCA Commissioner John Linc Stine, which was wiped clean 30 days after he left the agency.

“This is an evidentiary hearing that has been hamstrung because MPCA did not preserve evidence, despite knowing since 2015 that litigation was anticipated and likely,” argued Evan Nelson, an attorney representing several environmental groups.

In legal terminology, intentionally destroying evidence relevant to a legal inquiry is known as “spoliation.” Groups challenging the PolyMet permit argue that the MPCA recognized five years ago that litigation was inevitable when they hired outside legal counsel to help them defend their permit decision.

MPCA General Counsel speaks with two attorneys representing the agency.
MPCA General Counsel Adonis Neblett, top, speaks with John Martin, right, and Bryson Smith, left, attorneys representing MPCA, during the hearings Tuesday in St. Paul.
Leila Navidi | Star Tribune

Yet they failed to retain relevant documents that would be needed for that litigation, the groups argue. “It’s our position that things were destroyed along the way that should have been retained,” said Vanessa Ray-Hodge, an attorney for the Fond du Lac band.

John Martin, an attorney representing the MPCA, said the agency did anticipate litigation. But he argued there’s no legal obligation to hold all relevant documents for cases that are typically confined to documents contained in the administrative record.

“There may be hundreds of decisions that the agency makes on a yearly basis,” he told the judge. “If we had to put a hold on all those documents, it would strain the resources of the MPCA,” and would create what he described as an “incredible burden.”

Attorneys for environmental groups and the Fond du Lac band are asking the judge to assume the worst, and rule that the documents that should have been preserved, but were destroyed, contained evidence that was unfavorable to the MPCA.

Guthmann deferred a decision Tuesday, saying he needs to hear all the evidence before he can make a determination.

Attorneys plan to call former MPCA commissioner Linc Stine as a witness Wednesday, in testimony that’s expected to last most of the day. The hearing is expected to stretch into next week, and will also include testimony from several additional MPCA officials.