PolyMet Water Pollution Permit: Appeal

What is the PolyMet water pollution permit appeal?

The PolyMet NPDES/SDS water pollution permit was issued by the Minnesota Pollution Control Agency (MPCA) on December 20, 2018.
The MPCA’s decision issuing this PolyMet permit — like any other state administrative decision — is challenged by filing an appeal with the Minnesota Court of Appeals. The Court of Appeals has the authority to affirm or overturn the PolyMet permit.

The Court’s decision is usually based on the documents in the administrative record, along with briefs and an oral argument. In the PolyMet water pollution permit case, WaterLegacy’s evidence of “irregularities in procedure” has allowed the courts to review additional documents withheld by the MPCA and suppressed by the U.S. Environmental Protection Agency (EPA) at MPCA’s request.

Photo via Marshall Helmburger of The Timberjay

What is the current status?

WaterLegacy filed an appeal of MPCA’s decision issuing the PolyMet NPDES/SDS water pollution permit on January 22, 2019, along with a statement of the grounds for the appeal.

No decision has been made by the Court of Appeals on the merits of the claims made by WaterLegacy and our allies.

In a process that has only been used once before in Minnesota history, the PolyMet water pollution permit cases were transferred to the district court for a hearing to determine “irregularities in procedure” in MPCA’s issuance of the PolyMet permit. The water pollution permit was suspended six weeks later, so no construction can begin related to the permit.

The district court judge, Judge Guthmann, conducted an evidentiary hearing from January 21-19, 2020. On September 3, 2020, District Court Judge John Guthmann issued his Findings, Conclusions and Order. Judge Guthmann adopted as findings many facts proposed by WaterLegacy, including:

  1. MPCA knew EPA intended to send written comments on the deficiencies of the draft PolyMet permit (Comments).
  2. MPCA asked the EPA to withhold its Comments.
  3. When EPA professional staff did not agree to withhold their comments, MPCA Commissioner John Linc Stine and Assistant Commissioner Shannon Lotthammer lobbied Region 5 political appointees who blocked EPA’s Comments.
  4. MPCA’s request to EPA was completely unprecedented.
  5. Although EPA read its Comments to MPCA on the phone, neither MPCA’s records from this phone conference nor any MPCA responses to EPA’s Comments were included in the public record.

Judge Guthmann also found – for the first time in Minnesota history – that MPCA’s actions in issuing the PolyMet water pollution permit included “irregularities in procedure” in destroying notes and official records.

WaterLegacy appealed from the District Court transfer case order on November 2, 2020, arguing that MPCA’s actions to prevent EPA from sending its Comments were also irregularities in procedure. The Minnesota Court of Appeals will decide this appeal when it considers whether the PolyMet water pollution permit was improperly issued.

Judge John Guthmann, presiding over hearing on PolyMet permit procedural irregularities. Photo by Leila Navidi/Star Tribune via Getty Images.

Understanding the Court Process

Transfer to District Court

On May 17, 2019, WaterLegacy made a motion to the Court of Appeals to delay briefing or transfer the MPCA PolyMet permit cases to district court to determine whether MPCA’s procedures in developing and issuing the PolyMet NPDES/SDS water pollution permit were irregular and to secure critical documents, including the EPA comments, that were missing from the administrative record produced by MPCA.
On June 25, 2018, the Minnesota Court of Appeals ordered the PolyMet permit appeals transferred to the district court to obtain information not already provided by MPCA in the administrative record:
We conclude that WL has provided substantial evidence of procedural irregularities not shown in the administrative record, and thus that it is appropriate to transfer this matter to district court for a hearing and determination of the alleged irregularities.

Suspension of the Permit

On August 6, 2019, in response to a motion from WaterLegacy and our allies, the Court of Appeals stayed (suspended) the PolyMet permit:
On the unique facts of this appeal, we conclude that staying the permit is warranted. A substantial issue has been raised as to the regularity of the MPCA’s proceedings in granting the permit, and this court has ordered the exceptional remedy of a transfer to district court to hear and determine those irregularities . . . relators have identified injuries to their environmental interests should the project proceed, and we are cognizant of the “difficulty of stopping a bureaucratic steam roller, once started.” Sierra Club v. US. Army Corps of Engineers , 645 F.3d 978, 995 (8th Cir. 2011) . . . We are also persuaded that a stay will both promote the public interest and protect this court ‘s appellate jurisdiction. Accordingly , we conclude that it is appropriate to stay the permit, at least through the pendency of the district court proceedings.

District Court Orders and Hearings

Ramsey County District Court proceedings began before Judge Guthmann on August 7, 2019. Judge Guthmann allowed limited questioning of MPCA and additional discovery to find documents missing from the administrative record.

Even though Judge Guthmann ordered a forensic search to find documents not produced by MPCA, the “smoking gun” email leaked by the EPA union and secured in its complete form by WaterLegacy under the Freedom of Information Act (FOIA), were never found. During the evidentiary hearing in January 2020, former Assistant Commissioner Shannon Lotthammer admitted she’d deleted the email.

The Star Tribune reported on Lotthammer’s Jan. 23, 2020 testimony,

The e-mail triggered alarm about the permit process when it was leaked last June. It revealed for the first time that Minnesota pollution regulators had asked the EPA not to send the federal regulator’s serious concerns about PolyMet’s draft permit in writing during the public-comment period, but to hold off. That move kept EPA reservations about the water-quality permit and its ability to control pollution, out of the public record.

On Thursday, the reason became clear. Former Minnesota Pollution Control Agency Assistant Commissioner Shannon Lotthammer, the e-mail’s author, testified that she had deleted it.

“I deleted the e-mail knowing that, at least to the best of my knowledge, this was the only e-mail that contained the request,” she testified Thursday.

Kevin Pierard, who oversaw the PolyMet water pollution permit at EPA, testifies via video. Photo by Leila Navidi/Star Tribune via Getty Images.

The evidentiary hearing featured lead witness Kevin Pierard, who was EPA Region 5 NPDES Program Chief throughout the PolyMet water pollution permit process. Pierard, who is now the Chief of New Mexico’s Hazardous Waste Bureau, testified remotely on video.

MinnPost summarized points made by Pierard at the hearing on MPCA procedural irregularities:

Between Jan. 31 of 2018 — when PolyMet’s public comment period opened — and March 5, Pierard said the EPA told state regulators they intended to submit written comments. The public comment period ended March 16.

But in early March, Pierard said MPCA staff asked him “if there was any wiggle room” to delay the EPA’s comments. Pierard testified the request was odd. He could not recall ever getting a similar request on a draft NPDES permit . . . he saw delaying EPA comments for a revised permit as a departure from normal procedure. “That just doesn’t make any sense that we would do that,” he told the court via livestream from Santa Fe, New Mexico. “It’s not our practice and it wouldn’t speed up the process which I think they were concerned about. It actually slows it down.”

Read (Proposed) Findings of Fact, Conclusions of Law, and Order for the evidence of MPCA irregular procedures in issuing the PolyMet NPDES/SDS water pollution permit.