A Minnesota district court judge ordered the forensic search of all computer hard drives belonging to former top Minnesota Pollution Control Agency officials as part of its inquiry into the agency's approval of a key water permit for PolyMet, the company looking to build the first copper-nickel mine in Minnesota.
According to court documents, Judge John H. Guthmann ordered a forensic search that "shall encompass all desktop/laptop hard drives and all servers that stored information generated by" former MPCA commissioner John Linc Stine, former MPCA assistant commissioner Shannon Lotthammer and former metallic mining sector director Ann Foss from July 11, 2016 until they left the MPCA.
Paula Maccabee, advocacy director and counsel for WaterLegacy, one of the environmental groups that filed a Nov. 11 motion requesting the search, said she hopes it will reveal the truth.
"I think (the order) shows the judge is taking this case seriously, and it is not a common thing to order a forensic search for state agency," Maccabee told the News Tribune Tuesday. "And so I think that there's a real concern that the Minnesota Pollution Control Agency has been less than forthcoming."
The investigation into the comments stems from emails leaked in June by the American Federation of Government Employees Local 704, which represents the EPA’s Region 5 employees in Minnesota, that show Lotthammer asking EPA region chief of staff Kurt Thiede to wait on commenting on a Polymet draft permit until the public comment period ended.
The union and opponents of the mine argue the email showed the MPCA suppressed the EPA's concerns.
The MPCA maintains it was following a memorandum of agreement between the MPCA and EPA that laid out steps for the EPA and MPCA to follow when commenting on permits.
Another email released in September showed Stine had discussed that memorandum of agreement on the phone with Thiede and Cathy Stepp, the regional administrator for EPA region 5, just prior to Lotthammer's email.
The release of Lotthammer's email came less than one week after the EPA released documents showing the agency was concerned a draft permit would not meet the Clean Water Act standards unless the Minnesota Pollution Control Agency made substantial changes to the permit and the EPA’s office of inspector general said it would audit the agency’s PolyMet permitting procedures.
However, the MPCA's handling of the comments remain under investigation by three different government bodies: the court, the EPA’s Office of Inspector General and the Minnesota Office of the Legislative Auditor.
“Not only did the MPCA issue a flawed wastewater permit to PolyMet, they actively worked to hide these flaws from the public," Chris Knopf, executive director of the Friends of the Boundary Waters Wilderness, one of the groups fighting PolyMet in court, said in a statement Tuesday. "The people of Minnesota deserve better from our public officials and we commend the Court for demanding answers into this growing scandal.”
The MPCA and PolyMet did not immediately respond to the News Tribune's request for comment Tuesday.
The case had been going through the Minnesota Court of Appeals, but the court said in a June order that the MPCA and Environmental Protection Agency's review of the permit showed "procedural irregularities." In that order, the Court of Appeals transferred the case to the district court "to hear and determine those irregularities."
The water permit remains on hold by the court.
Tuesday's court order also set the hearing for Jan. 21 at 9 a.m. at the Ramsey County Courthouse in St. Paul. The hearing is expected to take 5-10 trial days, the court said.
Jan. 21 is also the last day for the Court of Appeals to issue an opinion on a separate case involving PolyMet's permit to mine and dam safety permits, which are also on hold by the court.
The Court of Appeals suspended PolyMet's permit to mine and dam safety permits in September after two post-permitting developments: Glencore took a 72% stake in PolyMet in June and a Vale tailings dam collapsed in Brazil in January, killing more than 200 people.
Last month, it extended that suspension one day after the court heard oral arguments from environmental groups and the Fond du Lac Band of Lake Superior Chippewa, which want the court to reverse the permits.