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Former EPA official: Minnesota regulators wanted PolyMet critiques kept out of public comment to avoid ‘press’

Kevin Pierard, who oversaw a key water permit at the U.S. Environmental Protection Agency, is questioned via video.
Pool photo by Leila Navidi/Star Tribune
Kevin Pierard, who oversaw a key water permit at the U.S. Environmental Protection Agency, is questioned via video.

A former federal official testified in court on Tuesday that state regulators asked his office to shield criticism of a key water permit for the PolyMet copper-nickel mine in part to avoid news coverage.

Kevin Pierard, who oversaw the permit at the U.S. Environmental Protection Agency, said state officials asked him to submit concerns after a public comment period because those critiques would duplicate issues raised by environmental groups — but also because they would “create a good deal of press.”

Pierard was the first witness at a hearing in Ramsey County District Court over whether the Minnesota Pollution Control Agency broke with standard practice to keep EPA criticism on a draft permit governing water pollution out of public record. It’s one of several ongoing legal challenges to PolyMet Mining’s $1 billion project near Hoyt Lakes.

In this case, the MPCA has said it was operating normally when it issued the permit — aimed at preventing or limiting toxic discharge to nearby waters — in December 2018. For months, the agency argued it intended to change its draft permit after the public comments, and preferred the EPA feedback after those alterations. The EPA’s concerns were addressed, according to the MPCA, and the feds did not veto the final product.

But the Minnesota Court of Appeals in June said there was “substantial evidence of procedural irregularities” in how the MPCA handled the case and asked the district court to investigate. Environmental groups and the Fond Du Lac Band of Lake Superior Chippewa are suing the MPCA over the permit, known as a National Pollution Discharge Elimination System Permit (NPDES).

If built, PolyMet would be the first copper-nickel mine in the state, but the project has long been controversial; opponents contend such mining will pollute water with acidic runoff and heavy metals. PolyMet argues it can prevent that damage with new water treatment technology and other protections.

Answering questions from mine opponents under oath Tuesday via a live video from Santa Fe, N.M., Pierard said he disagreed with the MPCA’s request for the EPA to issue criticism after the public comment period. Pierard said it was “standard practice” to provide written comments on draft permits in order to document his agency’s action in an official record. Of the roughly 700 permits he has reviewed, Pierard said the EPA issued written comments on “most” of them.

“The process is what it is,” he said. “We don’t make it up site by site, or where you might get press or you might not. Our process was to provide comments to the state in writing.”

Judge John Guthmann
Pool photo by Leila Navidi/Star Tribune
Judge John Guthmann presiding over an evidentiary hearing regarding “procedural irregularities’’ in the PolyMet permit case on Tuesday.
Pierard spent 36 years at the EPA, all in the Chicago-based Region 5 branch. For nine years, he was chief of the NPDES program branch, and oversaw permitting in a cluster of Great Lakes states. He currently works at New Mexico’s Environment Department.

The EPA’s comments were read over the phone to MPCA staff after the public comment period in March of 2018 had ended. But they were not submitted in writing and did not become part of the administrative record that details how an agency issued a permit.

EPA notes of those critiques were eventually publicly released in writing earlier this year after a Freedom of Information Act request by the environmental group WaterLegacy. They outlined concerns the NPDES would violate the Clean Water Act and allow PolyMet to pollute.

Pierard did not say why the EPA agreed not to issue comments in writing on the draft permit. His testimony is set to resume Wednesday. But he said the MPCA preferred verbal communication, and that Minnesota regulators reviewing mining projects had a “hesitancy at the state level to memorialize things in writing.”

Former MPCA commissioner John Linc Stine and former assistant commissioner Shannon Lotthammer are expected to testify later this week. Pierard said Lotthammer had told him their decision was in part motivated by avoiding media coverage.

MPCA spokeswoman Cori Rude-Young did not respond to Pierard’s comments but said the agency would “respond through our cross examination and presentation of evidence” later in the hearings. In earlier court declarations, the MPCA said the EPA comments were one part of a lengthy collaboration between the governments.

The EPA and others had raised identical questions through the permit-development process that were detailed in the administrative record, MPCA attorney Richard Schwartz said in a June statement submitted to the Court of Appeals. Schwartz said the MPCA objected to the timing of EPA comments, not the agency’s ability to make comments. Plus, top officials at the MPCA said many concerns raised by others in the public comment period overlapped with the EPA’s concerns.

John Linc Stine
MinnPost photo by Walker Orenstein
John Linc Stine
“Rather than have EPA send us written comments on the version of the permit that we knew we were going to change, we believed that it would be more efficient — both for us and for EPA — if EPA waited to give us any written comments based on the next draft, in which we had the opportunity to address concerns shared by the public,” Lotthammer said in a June to the Court of Appeals. Lotthammer is now at the Minnesota Department of Natural Resources.

Pierard said that while some criticisms made by environmental groups can be similar to EPA comments, they are not equivalent. “Many times we can speak more authoritatively than most commenters,” he said.

Earlier in Tuesday’s hearing, environmental groups and the Fond du Lac Band accused the MPCA of intentionally deleting records to avoid scrutiny, including wiping Linc Stine’s computer after he left office in 2019. The mine opponents argued the MPCA should be sanctioned and asked Judge John H. Guthmann to presume the agency destroyed information that reflected poorly on it. Lawyers for the MPCA said the agency has kept to reasonable record-keeping practice and adhered to public records laws. 

Guthmann said he wouldn’t make a determination until more evidence was presented at the hearings.

Comments (11)

  1. Submitted by William Hunter Duncan on 01/22/2020 - 10:22 am.

    Corporate capture of Government. Clear corruption. No wonder the waters of Minnesota are so polluted and getting worse.

    Where was governor Dayton while his MN Pollution Control Agency went rogue? Or is this just how it is and was, business as usual, and no on cared until we did?

    • Submitted by Paul Udstrand on 01/22/2020 - 10:44 am.

      Basic management was definitely one of Dayton’s weaknesses if not outright failures. His appointees and executive direction in general were far less than stellar.

      The thing that keeps striking me about the defense the regulators here keep offering is that they were following “routine” procedures. Well, if ever there was a time or scenario that demanded above average scrutiny and a departure from routine THIS was it. This was an application for mining unlike any other type of mining ever done before in the history of the State and in perhaps the most ecologically sensitive region in the State.

      Beyond that, it’s clear that they were perfectly willing abandon or ignore certain “routines” that might threaten the permits. This business of trying to shape and control public perceptions on behalf of the industry not to mention destroying records and evidence just doesn’t pass the smell test. The fact that these guys thought they do all of this and get away with it probably point to underlying and systemic problems preceding this application.

      • Submitted by William Hunter Duncan on 01/22/2020 - 12:12 pm.

        I’m reminded of Proudhon’s truism, that every government that ever existed eventually sided with the best educated and the wealthy, at the expense of the poor and the many.

        There is a reason why the powerful have long demonized political anarchy, which is the purest form of democracy. In a real Democracy such a violation of the public trust would not be tolerated.

    • Submitted by Elanne Palcich on 01/24/2020 - 05:31 pm.

      Well, Gov. Dayton appointed Commissioners Linc-Stine and Landwehr and the Gov. also voiced his support of PolyMet in Oct. of 2017, thus giving the DNR and MPCA the green light to permit the mine.
      The permitting of PolyMet was a political decision. The potential 200-500 years of water treatment would have been enough in itself to stop the project.

  2. Submitted by joe smith on 01/22/2020 - 12:47 pm.

    Comments don’t stop the permitting process, not meeting standards does. As usual, it matters little how you “feel” about mining, it only matters if Polymet meets standards (which is the law). Once you pass the permitting process, you get permits and start mining. Unfortunately for all of the workers waiting for good jobs to open up, you get another lawsuit (been over 20 lawsuits) from some Greenie backed group.

    • Submitted by William Hunter Duncan on 01/23/2020 - 08:47 am.

      The EPA “comment” was about this project not meeting Clean Water Act standards, which would have put a great deal more scrutiny on the permitting process, but that was kept from the public, with is corporate capture of government, which is corruption of the intent of government.

      Besides, this permitting process has been mostly about figuring out how to let Glencore (Polymet is a shell company) pollute the Arrowhead and not have to pay for it.

      • Submitted by joe smith on 01/23/2020 - 11:02 am.

        If Polymet didn’t meet standards, they should not get permits. If they meet standards they should be permitted….. Not that difficult.

        • Submitted by Brian Nelson on 01/23/2020 - 12:43 pm.

          And, what is also not that difficult is to put Glencore’s name on the permits. I am sure you agree with that.

        • Submitted by Eric Snyder on 01/23/2020 - 02:26 pm.

          Why should anyone tolerate pollution of the BWCA and related watersheds?

          As a past article from MinnPost made clear:

          “But Twin Metals is not saying they won’t have any impact on water. Padilla also noted the company expects to work with the state to craft a financial assurance package to ensure the company will pay if clean up is needed.

          “It’s a box that I think the mining opponents would like to put projects in is that there should be no impacts, but that’s unrealistic for any type of project, whether it be residential, commercial, or industrial or recreational,” Padilla said.

          Regardless of permitting, these environmental vandals are fine with polluting something that never should be.

  3. Submitted by Curt Carlson on 01/22/2020 - 01:22 pm.

    It’s hard not to suspect that government reluctance to scrutinize mining permits too closely might have something to do with the effective lobbies of both the mining industry and unions. Now that both lobbies are more closely linked with the Trumpist party, perhaps it’s time for the agencies to do their jobs with the interests of the greater population – and the future of the environment – in mind.

  4. Submitted by Eric Snyder on 01/23/2020 - 09:47 am.

    “Rather than have EPA send us written comments on the version of the permit that we knew we were going to change, we believed that it would be more efficient — both for us and for EPA — if EPA waited to give us any written comments based on the next draft, in which we had the opportunity to address concerns shared by the public,” Lotthammer said in a June to the Court of Appeals.”

    Is the claim of efficiency actually true? Is it the primary explanation for what transpired?


    “Documents that the EPA tried to keep confidential before releasing them last week show that its staffers criticized how the MPCA drafted the permit and concluded that the permit would violate federal law because it lacked pollution limits based on the state’s water quality standards. Instead of filing the documents into the public comment record, EPA staffers read the comments to MPCA staffers over the telephone.” (June 19, 2019)

    This would help explain Pierard’s view “that Minnesota regulators reviewing mining projects had a “hesitancy at the state level to memorialize things in writing.””

    It would take an abject level of naiveté to believe that ‘efficiency’ was the criterion for determining the disposition of EPA comments.

    If the governor and state legislature have any concern for transparency and public accountability – key components of good governance, they’ll:

    1. Dismiss from all government employment and any level of participation in government contracts any MPCA official involved in this betrayal of the public trust.
    2. Rewrite the charter of the MPCA to mandate, at criminal penalty for its violation, the highest standards of transparency, public communication, adherence to science, etc. We supposedly care about this stuff in Minnesota, don’t we? And, orient the MPCA’s mission to prioritize public health and environmental protection over business interests. (Of course there are tradeoffs to be made, but it’s painfully obvious from this fiasco that the MPCA has reached a harmful level of favoritism toward industry. Or, consider the outrageous lack of accountability with Northern Metal Recycling.)

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