The U.S. Environmental Protection Agency has asked to study whether the proposed PolyMet copper-nickel mine "may affect" the downstream Fond du Lac Band of Lake Superior Chippewa after the court last month said the federal agency had the duty to make such a determination under the Clean Water Act.
In a motion filed Thursday in U.S. District Court in Minneapolis, the EPA voluntarily requested to review if discharges from PolyMet, which is proposed 70 miles upstream from the Fond du Lac Reservation, "may affect" the band's waters.
If the court grants the motion, the EPA said the review would take 90 days and has requested the U.S. Army Corps of Engineers suspend PolyMet's Section 404 permit, which allows PolyMet to discharge dredged and fill material into over 900 acres of wetlands, during that time.
If during its review the EPA finds PolyMet would affect the Fond du Lac Band, it would be required to notify the band. That would then allow the band to object to the permit and require the Army Corps to hold a hearing on the band's objection.
And if the permit was already suspended it "would allow for meaningful additional ... proceedings before the (Army) Corps" if the EPA does find PolyMet "may affect" the Fond du Lac Band, said Tera Fong, director of EPA's water division, in a Thursday letter to Col. Karl Jansen, the Army Corps' district engineer for the St. Paul District.
"Accordingly, EPA requests that the Corps consider suspending PolyMet’s CWA Section 404 Permit if EPA’s motion for a voluntary remand is granted," Fong wrote.
The Army Corps has authority to suspend a permit if it is "in the public interest," Fong wrote.
The move comes just weeks a federal judge allowed the band's claim that the EPA failed to inform it that PolyMet "may affect" its reservation to continue. In that decision, Judge Patrick J. Schiltz wrote "the Court has held that EPA had a legal duty to make a 'may affect' decision — and given that EPA has admitted that it did not make such a decision — the Band would seem to have a plausible (perhaps even a slam‐dunk) claim that EPA did not act 'in accordance with law.'"
In the same opinion, the judge had dismissed some of the band's other claims challenging a different water permit.
PolyMet's proposed copper-nickel mine near Babbitt and Hoyt Lakes would be the state's first and would sit within the St. Louis River Watershed, which empties into Lake Superior.
The Fond du Lac Reservation and treaty land sits on the St. Louis River. The band fears potential pollution from PolyMet, namely sulfides, would damage its wild rice and other resources.
A spokesperson for the Fond du Lac Band did not respond to the News Tribune's requests for comment Thursday evening.
PolyMet did not oppose EPA's motion, according to court documents.
"PolyMet plans to participate fully, as appropriate, in this process and believes the science will once again prevail," PolyMet said in a news release Thursday evening. "The science is clear that water discharges from the NorthMet copper-nickel-precious metals mine will have no impact on downstream waters."
PolyMet noted that the Minnesota Pollution Control Agency in December 2018 found that PolyMet would protect state's water quality, a finding challenged by environmental groups.
A number of other PolyMet permits remain on hold pending numerous legal challenges.