Serving Northern St. Louis County, Minnesota

Judge orders search of MPCA computers

Former officials allegedly involved in PolyMet permit comment suppression

Marshall Helmberger
Posted 11/19/19

REGIONAL— A Ramsey County District Court judge, on Tuesday, ordered an independent forensic investigation of computers that were used by three former officials of the Minnesota Pollution Control …

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Judge orders search of MPCA computers

Former officials allegedly involved in PolyMet permit comment suppression

Posted

REGIONAL— A Ramsey County District Court judge on Tuesday ordered an independent forensic investigation of computers that were used by three former officials of the Minnesota Pollution Control Agency.
The officials, former commissioner John Linc Stine, assistant commissioner Shannon Lotthammer, and mining sector director Ann Foss, may have been involved in the alleged suppression of comments from professional staff at the federal Environmental Protection Agency related to a water discharge permit for PolyMet Mining.
Those allegations have been under both state, federal, and judicial investigation since last winter, when an EPA whistleblower alleged that state officials had asked the federal agency to delay issuing written comments raising concerns about the terms of the permit for the state’s first-ever copper-nickel mine.
Environmental groups and the Fond du Lac Band appealed the permit and, in an unprecedented action, the court of appeals remanded the case to a district court to allow for further investigation of the allegations. Following a hearing with the various parties on Nov. 13, Judge John Guthmann ordered the forensic search as part of that investigation.
The court of appeals also suspended PolyMet’s water pollution permit on Aug. 6 until hearings are completed into whether the MPCA and Trump political appointees in the EPA tried to hide concerns from the agency’s professional staff that the PolyMet wastewater permit would violate the Clean Water Act. 
Environmental litigants had argued for the forensic search after the MPCA contended that many of the emails produced by the three former officials, some of which may shed light on their interactions with the EPA over the permit, appear to no longer be available on their former computers. A forensic investigator may be able to recover communications that were previously deleted, whether accidentally or intentionally.
The judge’s order is unusual in that it suggests concern over the MPCA’s handling of official records that likely should have been retained. “The MPCA had already hired private outside counsel,” said Water Legacy legal counsel Paula Maccabee. “They knew this was likely to be litigated. In the common course of things, these communications should have been part of the official record.” In addition, state law requires retention of official records, and that would certainly cover email communications by top MPCA officials on a matter of significant public interest.
“Today’s order underscores our ongoing concerns about shocking behavior from the agency tasked with controlling pollution,” said Chris Knopf, executive director for the Friends of the Boundary Waters. “Not only did the MPCA issue a flawed wastewater permit to PolyMet, they actively worked to hide these flaws from the public. The people of Minnesota deserve better from our public officials and we commend the court for demanding answers into this growing scandal.”
Under the judge’s order, the parties will be required to select an independent forensic auditor and have the work completed by Dec. 16. A new evidentiary hearing is now set for Jan. 21, 2020.
It remains unclear what, if anything, a forensic search of computer records might uncover, but plaintiffs in the case have reason to believe that MPCA officials did communicate with EPA representatives because data requests to the EPA had revealed at least some of the communications. In addition, a union representing EPA employers leaked a copy of an email from Lotthammer to the chief of staff of the EPA’s Great Lakes office, in which Lotthammer sought to delay the agency’s issuance of written comments regarding the PolyMet permit. That email, among others, helped spark an ongoing investigation by the EPA’s Office of Inspector General. The Minnesota Legislative Auditor is also conducting its own investigation.

polymet, mpca

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