Judge orders search of Minnesota Pollution Control agency computers in PolyMet challenge

MINNEAPOLIS (AP) — A judge on Tuesday ordered a forensic search of computers used by three former top officials at the Minnesota Pollution Control Agency as part of an investigation into whether they sought to suppress concerns by federal regulators about pollution risks from the proposed PolyMet copper-nickel mine.

The order filed Tuesday by Ramsey County District Judge John Guthmann in St. Paul also set Jan. 21 for the beginning of an evidentiary hearing expected to last five to 10 days.

The Minnesota Court of Appeals tasked the judge in June with determining whether MPCA officials sought to keep the Environmental Protection Agency’s serious concerns about the project out of the public record when the state agency was considering a major water quality permit for the proposed mine and processing plant between Babbitt and Hoyt Lakes in northeastern Minnesota.

Environmental groups and the Fond du Lac Band of Lake Superior Chippewa are challenging the MPCA’s decision last December to grant the water permit, saying its terms fail to protect the environment and human health. The appeals court found in June that there was “substantial evidence of procedural irregularities” leading up to the decision. The appeals court will use the judge’s report on that point when it decides the broader case.

The allegations stem from a leaked email and EPA documents showing that EPA officials read their criticisms of the permit over the phone to MPCA officials instead of filing them in writing, which would have made them part of the public record of the permit proceedings.

“This case from the beginning has been about what is in the administrative record and what has been withheld, what is available to the public and what is concealed,” said Paula Maccabee, an attorney for WaterLegacy, one of the groups behind the lawsuit.

In his order, Guthmann directed that a forensic search be conducted of all desktop and laptop computer hard drives, and all servers, that stored information generated since July 2016 by former MPCA Commissioner John Linc Stine, former Assistant Commissioner Shannon Lotthammer, and Ann Foss, who directed the agency’s metallic mining sector.

An MPCA spokesman did not immediately respond to a request for comment on the order. The state agency has previously defended the permitting process, and the EPA has concurred with the MPCA’s assertion that it made substantive revisions to the draft permit in response to the federal agency’s concerns.

Stine left the MPCA after his term ended in January when Tim Walz became governor, while Lotthammer transferred to the Department of Natural Resources. Foss retired in January 2018.

The case is one of several pending legal challenges to permits for PolyMet, whose majority shareholder is Swiss commodities giant Glencore.

The Court of Appeals is expected to rule in late January on challenges to the project’s permit to mine and dam safety permit. Oral arguments over PolyMet’s air quality permit are set for Jan 8. The company won other appeals in recent months.

In the meantime, PolyMet continues working to raise the nearly $1 billion it needs for construction financing, spokesman Bruce Richardson said.