REGIONAL—The federal Environmental Protection Agency has notified the Fond du Lac Band and the state of Wisconsin that the proposed PolyMet copper-nickel mine near Babbitt “may …
REGIONAL—The federal Environmental Protection Agency has notified the Fond du Lac Band and the state of Wisconsin that the proposed PolyMet copper-nickel mine near Babbitt “may affect” downstream water quality.
The notice, issued late last week, is the first step in a process that could eventually invalidate PolyMet’s federal wetlands permit, without which the mine could not go forward. That permit is currently suspended pending the results of upcoming public proceedings and an eventual determination by the Army Corps, which issued the permit in 2018.
At issue is whether the provisions of the wetlands permit sufficiently protect the quality of downstream waters.
Under federal law, downstream “states,” which include Indian reservations, are supposed to be notified if a federally permitted project has the potential to impact water quality within their jurisdiction. The Fond du Lac Reservation, near Cloquet, encompasses a portion of the St. Louis River, which would receive discharge from the proposed mine.
The EPA, under the Trump administration, never provided the required notice and the Fond du Lac Band filed suit over that failure in 2019. A federal court agreed with the Band this past February and later remanded the issue to the EPA for further proceedings, which will include a public hearing.
Both the Fond du Lac Band and the state of Wisconsin now have 60 days to object to the wetlands permit and request the public hearing. While it’s unknown whether Wisconsin will do so, the Fond du Lac band is already preparing to go through the process. “We’ve made it pretty clear that the project, from our perspective, would not meet our water quality standards,” said Nancy Schuldt, water projects coordinator for the Fond du Lac Band.
During the hearing, any objectors would have the opportunity to present information regarding their position. Fond du Lac officials have done that already, for years, preparing detailed critiques of some of the decisions made by regulators as the PolyMet project moved toward permitting. “It’s not that we didn’t bring all these issues to the agencies in a timely manner, they just ignored them,” said Schuldt. She’s hopeful that the new administration, which has elevated the importance of tribal consultation, will be more open to their arguments this time. Schuldt noted that the EPA career staff had raised concerns of their own about lax enforcement provisions in the NPDES [water discharge] permit that the Minnesota Pollution Control Agency issued to PolyMet back in 2018.
Following the planned hearing, the EPA is expected to evaluate the information it receives from the various parties and will make recommendations to the Army Corps about possible changes to the wetlands permit, or whether the permit should be withdrawn altogether if it finds that new conditions are insufficient to guarantee protection of water quality.
How that process might play out is largely unknown, notes Schuldt. “There are so very few circumstances where a tribe has been successful in getting this finding,” she said. “There’s very little case law in this area. It’s precedent-setting.”
PolyMet officials noted that the decision by the EPA means only that water quality "may be affected," not that it would be for certain.
"The Minnesota Pollution Control Agency certified in 2018 that the project would not affect in-state water quality under section 401 of the Clean Water Act," stated PolyMet in a press release issued this week. "PolyMet now will present the evidence on which the MPCA relied to the Army Corps of Engineers, which will likely require a hearing to make a final decision on the project’s downstream water quality effects"
According to company officials, the mine will collect and treat water, including water that holds mercury and other contaminants from historical taconite mining in the vicinity, resulting in a net reduction of contaminants to the St. Louis River system. “I am hard pressed to understand how our treated water can meet water quality standards at the point of discharge and at other downstream communities closer to the project site, and actually reduce overall mercury loading to the river, but somehow ‘may affect’ water in places located more than 100 river miles downstream,” said Jon Cherry, PolyMet chairman, president and CEO.