Retired EPA officials testifies that PolyMet water permit negotiations were unusual

A retired official with the U.S. Environmental Protection Agency testified Tuesday that Minnesota's request for the EPA not to submit its concerns about the planned PolyMet mine in writing was highly unusual.

Minnesota was the first state to make such a request to him, said Kevin Pierard, former chief of the water quality permitting branch in the EPA's Chicago office. Pierard worked for the federal regulator for 36 years. Of the estimated 700 water quality permits from various states he reviewed over the years, Pierard said that "most of them" would have received official EPA comments in writing.

"It was much more prevalent in this sector in Minnesota — this sector being the mining sector — that there was a hesitancy at the state level to memorialize things in writing," he said.

Pierard was the first witness to testify in an unusual evidentiary hearing in Ramsey County District Court revealing some of the inner workings of a powerful state environmental regulator. At issue is whether the Minnesota Pollution Control Agency (MPCA) engaged in "procedural irregularities," deviating from standard practices in issuing a critical water quality permit for PolyMet Mining Corp. and the controversial copper-nickel mine it wants to build in northeast Minnesota.

The long list of irregularities that have been alleged includes asking the EPA not to submit its comments on a draft of PolyMet's water permit during the public comment period, but waiting until after, and destroying notes on important meetings with the EPA.

Pierard indicated during his testimony that the final decision not to submit the EPA's written comments was made above him at EPA's Region 5 Chicago office, and that he disagreed with it. He indicated that it was his decision to read the EPA's written comments to MPCA staff over the phone.

Pierard was livestreamed from Santa Fe, N.M., into the packed St. Paul courtroom. His testimony will continue Wednesday morning, and former MPCA Commisioner John Linc Stine is likely to be next.

Mine opponents — a coalition of environmental groups and a Minnesota Indian band — accuse the MPCA of suppressing critical comments raised by career scientists at the EPA by keeping them out of the formal written record on the permit.

They have also accused the MPCA of destroying important computer records, wiping the documents from Stine a month after he left the agency, for example. A backup file held just one document of Stine's.

"This evidentiary hearing has been hamstrung because the MPCA did not preserve evidence," Evan Nelson, an attorney for several mine opponents, told Ramsey County Chief Judge John Guthmann on Tuesday.

The opponents "will show that records were destroyed and at that point in time nobody knew what the administrative record was going to be," said Vanessa Ray-Hodge, an attorney for the Fond du Lac Band of Lake Superior Chippewa.

An attorney for the MPCA responded that the agency had no obligation to place a "litigation hold" on the records considering that the challenge to the permit is about the administrative record, not the underlying law.

"That would be an incredible burden," said John Martin of the Holland & Hart law firm.

MPCA officials have insisted that their handling of the water permit was perfectly routine and aimed at efficiency, and that in the end they incorporated most of the EPA's concerns into PolyMet's final water permit.

After hearing the arguments, Guthmann deferred the motion on records destruction until all other evidence is presented.

At the center of the dispute is a state permit that would regulate pollutants such as arsenic, mercury, lead and sulfate that PolyMet can discharge in wastewater from the mine. The open-pit mine operation would be near Hoyt Lakes and Babbitt.

Mining opponents say that PolyMet would be Minnesota's first experience with copper-nickel mining, a process that can produce particularly toxic water pollution.

Jennifer Bjorhus • 612-673-4683