A federal judge approved the Environmental Protection Agency's proposal to study potential effects of PolyMet's copper-nickel mine on the downstream Fond du Lac Band of Lake Superior Chippewa, beginning a 90-day review.
But the U.S. Army Corps of Engineers has not decided whether it will suspend a permit during that review, despite the EPA's request.
In an order filed in U.S. District Court in Minneapolis on Monday, Judge Patrick Schiltz granted a motion the EPA voluntarily filed last week requesting the review after a February opinion from Schiltz said the "EPA had a legal duty to make a 'may affect' decision" and allowed the band's claim that the EPA failed to inform it of possible effects to continue.
If during its review the EPA finds discharges from PolyMet "may affect" the Fond du Lac Band's waters, it would be required to notify the band. That would then allow the band to object to the permit and require the U.S. Army Corps of Engineers to hold a hearing on the band's objection.
In a letter to the Army Corps last week accompanying the motion, the EPA requested the Army Corps suspend PolyMet's Section 404 permit, which allows PolyMet to discharge dredged and fill material into over 900 acres of wetlands, if the motion was granted by Schiltz.
On Monday, after the motion was granted, an Army Corps spokesperson said a decision on the permit suspension has not yet been made.
“We are aware of the decision and are currently reviewing it," Patrick Moes, a spokesperson for the Army Corps' St. Paul District, said in an email to the News Tribune. "We will make a decision on the request to suspend the permit in the coming days/weeks.”
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.
The Fond du Lac Band did not respond to a request for comment Monday, but said in court documents last week that during the review it will have the opportunity to meet with the EPA and its lawyers "to discuss the process, its fairness, transparency and allow for sufficient time for new submissions to be submitted to the agency before EPA makes a decision."
Last week, PolyMet did not oppose EPA's motion and said in a news release at the time that it would participate in the process.
"The science shows that PolyMet’s project has no downstream water quality effects. EPA has never said otherwise, but it did not make explicit findings when the issue arose in 2018 after the Minnesota Pollution Control Agency certified that the project will not affect the state’s water quality," PolyMet said in the release. "This 90-day remand gives it the opportunity to do so."
The MPCA December 2018 found that PolyMet would protect the state's water quality. The state agency said it doesn't expect the EPA's review to change that.
"We don’t believe this will impact the 401 certification for the project," MPCA spokesperson Darin Broton said in an email to the News Tribune last week.