Updated: 12:37 p.m.
On the first day of a first-of-its-kind public hearing this week on the fate of a key permit for the proposed PolyMet copper-nickel mine, the U.S. Environmental Protection Agency recommended against reissuing the permit, saying the project risked increasing levels of mercury and other pollutants in the St. Louis River downstream from the proposed mine.
While only a recommendation, it could deal a potentially severe blow to the controversial $1 billion mine proposed near the northeastern Minnesota towns of Babbitt and Hoyt Lakes, if the U.S. Army Corps of Engineers follows the advice of the EPA and decides not to reinstate the “Section 404” wetlands permit, one of several key approvals PolyMet needs to begin construction.
The EPA announced its position early in a three-day hearing taking place in Carlton, Minn., this week where the U.S. Army Corps of Engineers is hearing testimony to determine whether the proposed PolyMet copper-nickel mine would violate the water quality standards of the Fond du Lac Band of Lake Superior Chippewa, whose reservation lies downstream of the proposed project.
The Army Corps will use the information it gathers in the hearing to aid in its decision whether to reinstate the wetlands permit, one of three critical PolyMet permits that have been suspended.
The hearing is also historically significant. It’s the first time a sovereign American Indian tribe has used its authority under the Clean Water Act as a “downstream state” to challenge a federal permit to protect its lands and waters.
What did the EPA say?
In its presentation, the EPA advised the Army Corps not to reinstate the contested permit, because of uncertainty over how much mercury would be discharged by the project, and concerns that mercury released by wetlands impacted by construction of the mine could further violate the Fond du Lac Band’s water quality standards.
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The EPA also expressed concern over discharges from the mine that would likely lead to an increase in a type of pollution known as “specific conductance” in downstream waters on the Fond du Lac reservation.
Furthermore, the agency determined that there were no conditions that the Army Corps could place on the permit that would ensure compliance with the Band’s water quality regulations.
Fond du Lac Chairman Kevin Dupuis Sr. applauded the EPA for taking a robust look at the Band’s objections to the permit. “The Band is not opposed to mining, but if mining is to occur, we must ensure that our waters are protected, not just for the Band, but for all Minnesotans,” Dupuis said.
Environmental groups that oppose PolyMet believe the EPA’s position will carry significant weight with the U.S. Army Corps when it decides whether to reinstate or revoke the wetlands permit, and that if the Corps didn’t follow the EPA’s advice, that a court would likely find that violates federal law.
PolyMet said the agency “disregarded the science-based conclusions in PolyMet’s Environmental Impact Statement and permitting decisions that [the company] will reduce mercury and sulfate loading to the St. Louis River watershed.” The company said it’s confident the Corps will affirm the permit after it considers PolyMet’s evidence.
How did this hearing come about?
The U.S. Army Corps of Engineers first approved the Section 404 permit for PolyMet in early 2019. The permit allows PolyMet to fill around 1,000 acres of wetlands at its proposed mine site with dredged material — something mine opponents have described as the largest permitted destruction of wetlands in the state’s history.
The Fond du Lac Band is one of 79 tribes nationwide that have been granted the authority by the federal EPA to develop their own water quality standards, which means that those tribes are treated the same way the government would treat a state.
Under the Clean Water Act, if the EPA determines that pollution from a project may affect a downstream state — or, in this instance, a downstream tribe — then the government is required to notify those entities.
In this case, the EPA never notified the Fond du Lac Band of those potential impacts. The Band says the government never responded to its concerns or request for a hearing.
Later in 2019, the Band sued the Army Corps and the U.S. EPA in federal court. Last year, a federal judge agreed with the Band. That set in motion a rapid chain of events in which the U.S. Army Corps suspended the permit, the EPA issued a determination concluding that the proposed mine “may affect” the Fond du Lac Band and finally, the Band formally objected to the permit and called for this hearing.
Why is it significant?
First, the 404 wetlands permit is one of several key approvals that PolyMet needs to begin construction on what would be the state’s first mine for copper, nickel and precious metals, a type of mining with the potential to cause more severe water pollution than the state’s iron ore mining industry.
Second, this is the first time a hearing like this has been held, in which a tribe that has developed its own water quality standards has exercised its authority under the Clean Water Act to object to a permit it argues would violate its environmental regulations.
“It is an important and inspiring thing when a tribe is exercising stewardship of clean water,” said Paula Maccabee, attorney and advocacy director for the environmental group WaterLegacy. Several years ago she wrote a legal article advocating for federal recognition of the right of downstream tribes to object to federal permits.
While stressing she does not speak for the Fond du Lac Band or other tribes, Maccabee said often tribes will communicate their objections to a project, only to have agencies make decisions against their interests.
“The potential for tribes to exercise Clean Water Act rights may change this equation,” she said.
What is the Fond du Lac Band arguing?
The Band did not respond to requests for an interview. According to environmental groups also fighting the proposed mine, the Band argues the project would increase mercury levels in the headwaters of the St. Louis River, which eventually flows through the Fond du Lac reservation downstream.
Mercury in the St. Louis River already exceeds the Band’s water quality standards, which are more stringent than the state. Band members rely on fish from the river for subsistence and cultural practices, but consumption advisories limit the amount of fish that can be safely eaten.
The Band’s water quality standards also limit something known as “specific conductivity,” by regulating the amount of salty pollution, such as chloride and sulfate. The Band argues those pollutants harm aquatic life in the St. Louis River, yet they are not considered in PolyMet’s current state and federal permits.
How does PolyMet respond?
PolyMet argues it will actually reduce the amount of sulfate and mercury discharged into the St. Louis River basin.
The company plans to build its waste tailings basin on top of an old iron ore mine waste pond that’s currently seeping pollutants into the watershed. PolyMet intends to build a wall down to bedrock to capture that seepage and then treat it using reverse osmosis before it’s released into the environment.
PolyMet also points out that its project is located more than 100 river miles upstream from the Band’s reservation. It contends that other rivers and streams that flow into the St. Louis River below its mine site would have a much larger impact on the Band’s water quality than the proposed mine.
“After 15 years of scientific study and review, it is an indisputable fact that the project will significantly reduce the amount of sulfate and mercury currently entering the watershed because PolyMet will bring the former taconite site up to modern standards and clean up legacy issues in the process,” said PolyMet spokesperson Bruce Richardson.
On Thursday, members of the public will have the chance to deliver testimony virtually. The U.S. Army Corps has posted information on how to call in to the hearing. Comments may also be delivered in writing 30 days after the hearing.
As has become typical at other hearings about the proposed mine, both proponents and opponents of PolyMet have alerted their supporters of the hearing and encouraged them to comment.
The Army Corps hopes to provide a live stream, but depending on internet service may have to post a recorded video of the hearings.
What’s next for PolyMet?
At some point after the hearing, the U.S. Army Corps will determine whether to reinstate the 404 Wetlands permit, revoke it or apply new conditions to meet the Band’s water quality standards.
Regardless of the decision, it’s expected to be challenged in federal court.
Meanwhile, two other key permits remain suspended due to additional litigation and regulatory proceedings.
The Minnesota Pollution Control Agency is determining whether any pollution discharges from PolyMet into groundwater would violate the federal Clean Water Act, after a recent appellate court decision.
The Minnesota Supreme Court has also agreed to hear additional challenges to that permit raised by environmental groups and the Fond du Lac Band.
The project’s permit to mine also remains suspended until the Minnesota Department of Natural Resources conducts a contested case hearing on narrow aspects of that permit. The DNR hasn’t yet announced a date for that hearing.