As court case continues, MPCA defends handling of PolyMet permit, citing efficiency

Kevin Pierard, ex-chief of water quality permitting branch of Chicago EPA.
Kevin Pierard, former chief of the water quality permitting branch of the Chicago office of the Environmental Protection Agency is questioned via video link from Santa Fe, N.M., during an evidentiary hearing in the PolyMet permit case held at Ramsey County District Court in St. Paul on Tuesday.
Leila Navidi | Star Tribune

In testimony that stretched over two days, former Minnesota Pollution Control Agency Commissioner John Linc Stine steadfastly maintained his agency did not pressure federal officials to suppress comments that were critical of a key water permit for the proposed PolyMet copper-nickel mine.

Instead, he said the agency asked their counterparts at the U.S. Environmental Protection Agency to delay filing their concerns in writing until after the formal comment period had ended to improve the efficiency of the process.

“I was concerned about the workload and getting the work done in the most effective way, the most efficient way, that we could,” he testified during the third day of a highly unusual evidentiary hearing in Ramsey County District Court.

At issue in the hearing, which is expected to stretch into next week, isn’t the substance of the permit itself — but rather alleged “irregularities” that led up to the permit being issued.

As part of the regulatory process for building its mine, PolyMet needed to secure a water quality permit from the MPCA, which is responsible for protecting air and water quality in Minnesota. The permit lays out how PolyMet intends to meet state and federal standards designed to safeguard surrounding waterways. MPCA issued that permit to the PolyMet project in December 2018.

Environmental groups and the Fond du Lac Band of Lake Superior Chippewa argue that the MPCA improperly lobbied EPA officials to delay submitting their comments in writing during the official comment period, which would have made those concerns part of the administrative record.

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That’s crucial, mining opponents argue, because courts must rely only on what’s in that public record when they decide on challenges to the mine’s permits.

But Linc Stine said the agency asked the EPA to delay so that MPCA staff would have time to respond to hundreds of comments on the permit that had already been filed by members of the public.

“The staff were really deluged by the response requirements,” he testified.

Linc Stine said the agreement his staff reached with the EPA allowed the MPCA to respond to comments from the public, and update the permit as something they called a “pre-proposed permit.”

The EPA would then have 45 days to comment on that updated permit. Typically, the EPA would comment during the public period, with the MPCA responding to all comments before issuing its final permit.

Attorneys for the groups fighting the PolyMet project highlighted in court the unusual nature of the MPCA’s arrangement with EPA in this permit.

Linc Stine acknowledged that it was the only time in his tenure as commissioner that the MPCA had added that “pre-proposed permit” step to its process for developing permits. The addition is also not mentioned in a written agreement that lays out how the two agencies work together in developing permits.

Opponents also questioned whether adding a new layer to the review process really made it more efficient.

“So, your view ... is that it would be more efficient for the PCA to take all public comments, except the EPA, and draft a new version of the permit?” asked attorney Bill Pentelovitch, who represents the groups opposed to the mine. “Then, have the EPA comment on that permit, and risk having to redraft the permit again, because the EPA didn’t like what you did? And you thought that would be more efficient than just getting the EPA comments?”

”I didn't view it as an extra layer, I viewed it as more efficient,” answered Linc Stine.

The PolyMet Mining company is planning to build what would be Minnesota’s first copper-nickel mine, with a presence in the Iron Range towns of Babbitt, Minn., and Hoyt Lakes, Minn. The company had secured the permits it needed from state and federal regulators, including the MPCA, by the end of 2018. But then the legal challenges began.

Among them, several environmental groups and the Fond du Lac Band challenged the MPCA water quality permit at the state appeals court. They asked the appeals court to send the case down to the lower court, arguing there was evidence of procedural irregularities in the permitting process that merited further fact-finding.

The court agreed, and sent the matter to Ramsey County District Court, and ultimately Chief Judge John Guthmann.

The order came after an email from MPCA official Shannon Lotthammer to her colleagues at the EPA was leaked. In it, Lotthammer asked EPA staff not to file written comments on PolyMet's permit during the public comment period.

Lotthammer, who served as assistant commissioner for water at the MPCA under Linc Stine, followed his testimony on Thursday. Over several hours on the stand, she insisted that, while the request was not typical, it was appropriate in the case of the PolyMet permit. Furthermore, she said, in the end, it was up to the EPA to decide how it wanted to proceed.

Lotthammer’s testimony will continue into Friday. She’s expected to be followed on the witness stand by current MPCA Commissioner Laura Bishop, and several additional agency officials. The hearing is expected to continue into next week.

At the end of the proceedings, Guthmann will decide what should be included in the administrative record of how the MPCA’s water quality permit was developed. He will prepare his findings on the alleged irregularities to be sent to the appeals court, as it continues to weigh a broader legal challenge to the water quality permit.

Meanwhile, Minnesota’s Office of the Legislative Auditor and the EPA’s inspector general are conducting their own investigations of the actions at the MPCA and EPA leading up to the issuance of the water permit.

PolyMet is also engaged in several other legal battles in its efforts to open the mine in northeastern MInnesota.

Earlier this month, the appeals court overturned three important permits issued by the Minnesota Department of Natural Resources, and ordered the DNR to hold additional hearings on the permits before an administrative law judge. PolyMet has said it plans to appeal that decision to the state Supreme Court.