REGIONAL— The Minnesota Court of Appeals will take its own look at the actions of the state’s Pollution Control Agency, after a district court judge found that the state agency did not break permitting rules when it pressured the federal Environmental Protection Agency to delay issuing public comments on its proposed water discharge permit for PolyMet.
The Ramsey County judge, John H. Guthmann, issued detailed “findings of fact,” in a 104-page opinion released Sept. 3. “The request to delay written comments until later in the permit review process was not an effort to avoid written comments altogether or skirt a regular procedure or requirement,” wrote the judge in his decision.
The ruling comes in the wake of a trial in which a coalition of environmental groups and the Fond du Lac Band accused the MPCA of trying to bend rules to suppress criticism from professional staff at the EPA and hide the evidence by deleting records.
Paula Maccabee, head legal counsel for plaintiff Water-Legacy, said her organization plans to appeal.
The recent court ruling is just one part of a broader case against the water discharge permit, known as an NPDES permit, that environmental groups and the Fond du Lac Band continue to pursue. They contend that the permit that the MPCA issued to PolyMet in December 2018 fails to comply with the federal Clean Water Act— and that broader question remains before the Court of Appeals.
“The main point of our appeal is still that the permit was no good and wouldn’t protect our water,” said Maccabee.
PolyMet’s NPDES permit has been suspended until the court proceedings conclude, which could take well into 2021, or beyond.
The Court of Appeals, in a rare move, had asked Judge Guthmann earlier this year to engage in fact-finding over the allegation that the state and federal regulators had, in effect, colluded to keep unfavorable comments from the EPA out of the permit’s administrative record. The administrative record is generally critical to judicial oversight of agency decisions, so any effort to limit that record could be viewed as improper by the courts.
Last week’s decision focused only on alleged irregularities in the procedure used by the MPCA and the EPA in seeking federal input into the PolyMet permit. The district court was never asked and never undertook consideration of the merits of the NPDES permit itself.
Nor did the district court examine or weigh-in on the actions of the EPA, which is not subject to the control of a state judge. A federal Inspector General continues to investigate the actions of EPA officials who kept the agency’s professional staff from voicing their objections to the draft permit in the usual written form. Instead, EPA staff were limited to reading their concerns over the phone, an action that meant those concerns would not get press attention or be part of the administrative record. The EPA offered no comment on the final permit that the MPCA issued to PolyMet, but Maccabee argues that the final permit never adequately addressed the verbal concerns that the EPA had raised on the draft permit.
Even so, officials with both the MPCA and PolyMet, saw the decision as an opportunity for a victory lap. “With today’s decision, the court renewed its confidence in the MPCA’s permitting process for PolyMet,” said MPCA spokesman Darin Broton in a written statement. “While the MPCA always strives to do better, the court overwhelmingly said the agency’s permitting procedures were not irregular.”
John Cherry, PolyMet’s chairman, president and CEO, said the company is “pleased with the district court’s ruling and looks forward to defending the challenge to the water permit currently pending in the court of appeals.”
What defines an “irregularity”?
Judge Guthmann essentially confirmed many of the actions alleged by the plaintiffs in the case, although he ascribed more benign motives to agency officials than the plaintiffs contend. The proceedings before Judge Guthmann confirmed that high-level MPCA officials wanted EPA staff to delay submitting written comments, which they knew were critical of the draft permit they planned to issue to PolyMet. The judge also found evidence that MPCA was motivated in large part by concern over the press attention that critical EPA comments might generate. Despite those findings, the judge determined that the MPCA actions did not constitute “procedural irregularity,” since neither state law nor a memorandum of understanding between the two agencies explicitly prohibited such actions.
Even so, Guthmann did find two instances in which the state departed from regular procedure when issuing the NPDES permit. 
The MPCA wrongly deleted emails, including from then-commissioner John Linc Stine asking the EPA to delay its comments. These documents were only made public when EPA employees leaked them to WaterLegacy. Guthmann said if the emails had not been destroyed, the MPCA would have been required to disclose them as public records.
And Guthmann said the MPCA failed to put a timely “litigation hold” on records to preserve them for court challenges. Guthmann said these actions were, “at best,” the results of “poor training and careless management of the potential administrative record.”
Maccabee said those findings were unprecedented. “This is the first time in Minnesota history that any judge has found a state agency has engaged in procedural irregularities, and even destroyed two exhibits, which were the two smoking guns,” she said. According to Maccabee, the proceedings proved successful in the end because they brought valuable evidence into the administrative record, that the MPCA had sought to exclude.
If built, PolyMet would be the first mine of its kind in the state. The company, which is owned primarily by the Swiss mining giant Glencore, promises 360 direct jobs and plans to extract copper, nickel, platinum, cobalt and other metals at an open pit mine near Hoyt Lakes for 20 years. The controversial project has been challenged repeatedly by opponents who say copper-nickel mining could result in toxic water pollution of the St. Louis River watershed and Lake Superior, though PolyMet maintains it can safely extract the metals.
MinnPost’s Walker Orenstein contributed reporting for this story.