ST. PAUL — State regulators and the conservationists litigating against them moved to prepare their closing arguments Wednesday, Jan. 29, in the court hearing centered on mining company PolyMet's proposal to dig for precious metals in northern Minnesota.
Lawyers for the coalition made up of environmental groups and the Fond du Lac Band of Lake Superior Chippewa, which filed the lawsuit, declined to call additional witnesses to testify early Wednesday. Attorneys for the Minnesota Pollution Control Agency and PolyMet, also named in the suit, did the same.
Ramsey County District Court Judge John H. Guthmann instructed the legal teams for both sides that morning to finalize their paperwork and create a timeline for the remainder of the case. Closing arguments will be submitted to Guthmann in writing.
The Minnesota Court of Appeals handed the case down to Guthmann and called on him to determine whether the MPCA violated its own policy by requesting that federal regulators refrain from criticizing on an essential permit for the mining project during its public notice period. In a separate matter, the appellate court recently sent PolyMet’s three other permits back to the Minnesota Department of Natural Resources for an administrative hearing.
Obtaining the permits would clear the way for PolyMet to build a copper-nickel mine, processing plant and tailings dam near Hoyt Lakes and Babbitt. It would be the first mine of its kind in Minnesota and, the company has said, be an economic asset to the region.
But by asking the U.S. Environmental Protection Agency to submit its written comments on the permit at a later date, opponents of the mining project argue that the MPCA effectively suppressed them from the public. EPA officials later read the contents of the comment letter to their state counterparts over the phone, which prevented the document from being entered into the MPCA's official record on it.
Former MPCA officials, including former commissioner John Linc Stine and former assistant commissioner Shannon Lotthammer, testified that the request was made at a time when the agency was trying to respond to a high volume of publicly submitted comments. To meaningfully respond to the EPA's concerns, they said, would have overburdened an already busy staff.
Both said that it was unusual for such a request to be made but said they did not try to silence the EPA.
Also at issue in court is whether the MPCA erred in destroying emails, notes, computer hard drives and other materials related to the water permit. The agency has said that it didn't dispose of anything that would have been required to be kept in the permit's official record.
Attorneys for the coalition tried to show that the email Lotthammer deleted and which contained her request for the delay should have been saved. They said that to make such a request without scheduling additional public comment periods went against the agency's memorandum of agreement with the EPA.
Lawyers for the MPCA and PolyMet responded by pointing to other documents that were kept for the record, including follow-up email exchanges between the two agencies. Throughout the hearing, they also pointed out that the EPA could at any time have filed a formal objection to the permit's issuance but ultimately chose not to do so.
At any rate, they said, no statute or regulation bars the MPCA from making such a request.
Guthmann has said that the case will not rule on the substance of the EPA's comment letter but on the MPCA's alleged deviation from its procedural norms. He asked attorneys for both sides to lay out their next steps to him by Friday, Jan. 31.