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EPA recommends Army Corps not reissue PolyMet permit

The recommendation came on the first day of a three-day public hearing.

PolyMet
Plans for PolyMet include building dams to increase the storage capacity of tailings basins. One would be built in the distance to raise the basin on the right to the level of the area on the left.
Steve Kuchera / 2017 file / Duluth News Tribune
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DULUTH — The U.S. Environmental Protection Agency recommended the U.S. Army Corps of Engineers not reissue a key permit for the proposed PolyMet copper-nickel mine over concerns that it could violate Fond du Lac Reservation’s water quality standards.

The Army Corps suspended PolyMet’s Section 404 permit, which allows PolyMet to discharge dredged and fill material into over 900 acres of wetlands, in March 2021 . It remained on hold after the EPA in June 2021 determined PolyMet “may effect” the Fond du Lac Band of Lake Superior Chippewa’s reservation 100 miles downstream from the proposed mine near Hoyt Lakes and Babbitt.

The EPA’s recommendation came Tuesday, the first day of a three-day public hearing on the permit held by the Army Corps.

"EPA’s key recommendation is that the Corps should not reissue the CWA (Clean Water Act) Section 404 permit for the NorthMet project, as proposed,” the EPA said on its website . “As the NorthMet project is currently designed, there are no conditions that EPA can provide to the Corps that would ensure that the discharges from the CWA Section 404 permitted activities would comply with the Fond du Lac Band’s water quality requirements for its waters.”

However, the EPA said the permit and/or the project could be changed to meet the Clean Water Act requirements.

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“EPA’s recommendations do not foreclose any future modifications to the permit application or the NorthMet project design,” the EPA wrote in its 47-page evaluation . “Any future modifications should include meaningful involvement of the Band and Minnesota to ensure compliance with both tribal and state water quality requirements.”

In a news release Tuesday afternoon, the Fond du Lac Band said the EPA's recommendation was a "victory for the Band's efforts to protect its waters from unacceptable pollution that threatens their culture and way of life."

Fond du Lac Chairman Kevin Dupuis Sr. said in the release: "It has taken a lot of time and dedication to get where we are today, and we appreciate EPA for taking a robust and meaningful look at our objection which is grounded in science. It is no surprise that EPA's recommendations agree with our long-standing concerns."

In an email, Paula Maccabee, counsel and advocacy director of environmental group WaterLegacy, said the recommendation was “a landmark triumph of tribal stewardship and the EPA’s allegiance to science and law to protect Lake Superior basin waters and environmental justice.”

Bruce Richardson, a spokesperson for PolyMet, stressed that it was only a recommendation from the EPA and said the company will present evidence that the company believes the federal agency did not consider.

“We strongly disagree with the EPA’s recommendation. Importantly, like the Fond du Lac Band of Lake Superior Chippewa that initiated this hearing, the EPA has disregarded the science-based conclusions in PolyMet’s Environmental Impact Statement and permitting decisions that we will reduce mercury and sulfate loading to the St. Louis River watershed,” Richardson said in an email to the News Tribune.

PolyMet is proposing the state’s first copper-nickel mine near Hoyt Lakes and Babbitt. The open-pit mine and processing facility would sit in the St. Louis River Watershed. The Fond du Lac Band fears potential pollution from PolyMet, namely sulfides and mercury, would damage its wild rice and other resources. The St. Louis River runs along the reservation’s eastern border and through Fond du Lac Band’s tribal land.

Fond du Lac in 2019 sued the EPA because the agency never notified the band on whether the project "may affect" its waters. The band argued it should have because under the Clean Water Act, the band is considered a state and was entitled to the same kind of notification and objection process.

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A federal judge , and later the EPA's Office of Inspector General , agreed.

The EPA then found the project “may affect” Fond du Lac, a determination that allowed the band to object to the permit and require the Army Corps to hold a hearing on the band's objection.

The three-day public hearing is underway and being streamed at the “MVP Public Affairs” YouTube channel.

Members of the public can comment via audio teleconference from 4-9 p.m. Thursday. The Army Corps directed people wishing to make a verbal comment to its website, mvp.usace.army.mil/Missions/Regulatory/Public-Notices, for more information.

Written comments may also be submitted electronically by June 6 to USACE-PolyMet-401a2@usace.army.mil .

This story was updated at 12:41 p.m. May 3 with quotes from the Fond du Lac Band and Fond du Lac Chairman Kevin Dupuis Sr. It was originally posted at 11:35 a.m. May 3.

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Jimmy Lovrien covers energy, mining and the 8th Congressional District for the Duluth News Tribune. He can be reached at jlovrien@duluthnews.com or 218-723-5332.
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