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EPA: Don’t reinstate PolyMet wetlands permit

Federal agency cites concerns over mercury as part of hearing on Fond du Lac concerns

Marshall Helmberger
Posted 5/4/22

REGIONAL— The federal Environmental Protection Agency has dealt PolyMet’s proposed NorthMet mine a potentially crippling blow. In a 47-page opinion issued to the U.S. Army Corps of …

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EPA: Don’t reinstate PolyMet wetlands permit

Federal agency cites concerns over mercury as part of hearing on Fond du Lac concerns

Posted

REGIONAL— The federal Environmental Protection Agency has dealt PolyMet’s proposed NorthMet mine a potentially crippling blow.
In a 47-page opinion issued to the U.S. Army Corps of Engineers on April 29, the federal agency is recommending against reinstatement of the federal wetlands permit, known as a Section 404 permit, that is critical to the project. Section 404 refers to a portion of the federal Clean Water Act (CWA).
If the Army Corps accepts the recommendation, it would prohibit the copper-nickel mine from going forward, at least as currently envisioned.
The EPA’s Region 5 office drafted the document and its recommendations in response to a formal objection to the Section 404 permit made by the Fond du Lac Band. In that objection, tribal officials contend that the proposed mine will further degrade water quality in the St. Louis River, which flows through the Band’s reservation near Cloquet— in violation of the tribe’s own water quality standards. Many native bands, such as Fond du Lac, have the authority under federal law to establish their own water quality regulations, which Fond du Lac has done.
As a result, the EPA had a legal duty to inform Fond du Lac that the PolyMet project “may affect” the reservation’s waters, a step that the EPA previously failed to undertake. The Fond du Lac Band sued in 2019 and a federal judge agreed in February 2021 that the Band had the right to a hearing on their concerns. That hearing got underway on Tuesday and was scheduled to continue past the Timberjay’s Wednesday deadline this week.
As part of that process, the EPA began reviewing Fond du Lac’s concerns and commissioned two additional studies that looked at how the project’s impact to wetlands could impact mercury methylation and increase the level of specific conductance in downstream waters.
“Through the EPA’s evaluation of the Band’s objection, the EPA identified several points of uncertainty and reasonably foreseeable discharges of mercury and dissolved ions contributing to specific conductance with respect to the NorthMet project and the CWA Section 404 permitted activities,” wrote the agency in its report. As a result, “EPA recommends that the Corps not reinstate the suspended CWA Section 404 permit for the NorthMet project, as currently proposed.”
The EPA stated further that it was unaware of conditions in the Army Corps permit that would ensure compliance with the Fond du Lac water quality requirements for reservation waters.
“This is absolutely landmark,” said Paula Maccabee, attorney for Duluth-based Water Legacy, which has worked closely with the Fond du Lac Band on a number of challenges to PolyMet permitting.
“The EPA has used the weight of the science and the law to support the tribes, for the first time,” added Maccabee. “The EPA has put in strong evidence through science, that no conditions could be added to make this project safe as designed.”
While the decision on the Section 404 permit is ultimately up to the Army Corps, Maccabee said it was unlikely the Corps would effectively overrule the EPA on a recommendation pertaining to water quality.
Other opponents of the mine claimed victory. “The recommendation from the EPA vindicates the tireless work by the Fond du Lac Band to assert their tribal sovereignty and protect the clean water downstream of the proposed PolyMet project,” said Chris Knopf, executive director of the Friends of the Boundary Waters. Friends legal counsel Max Kieley said the EPA’s recommendation raises serious questions about the Minnesota Pollution Control Agency’s decision-making regarding PolyMet permitting. “It seems we have a state regulator that is not doing its job in regard to state water quality standards,” said Kieley.
While the EPA recommendation is likely to be weighty, it will not be the final word. PolyMet representatives were set to make their presentations on Wednesday and expressed confidence that the permit provides adequate protection of water quality. “We strongly disagree with the EPA’s recommendation,” said PolyMet spokesperson Bruce Richardson. “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.”
PolyMet was scheduled to present its evidence in the hearing on Wednesday, some of which the EPA failed to consider, according to Richardson. “We’re confident the Corps will affirm the original conclusions by state and federal agencies that the PolyMet project will meet and exceed water quality standards, including at the Fond du Lac Band reservation located 116 river miles downstream,” he added.
Broader impacts to wetlands at issue
While PolyMet officials argue that their proposed mine plan will actually reduce mercury discharges to the St. Louis River watershed, EPA officials say the current Section 404 permit does not consider the potential for significant additional mercury discharges as a result of indirect impacts to surrounding wetlands. Most of the wetlands that would be impacted by the project are peat bogs, which are known to serve as mercury sinks. At the same time, the EPA report notes that in low-oxygen aquatic systems, like peat bogs, elemental mercury can be altered by sulfate-reducing bacteria to methylmercury, a highly-toxic chemical that is known to “bio-accumulate” in aquatic food chains, posing health risks to humans who consume fish. Health surveys in the Great Lakes region have documented that northeastern Minnesota residents tend to have higher levels of mercury in their blood than others in the region, likely due to higher levels of fish consumption.
“The permit suite does not consider water quality impacts arising from changes in hydrology of wetlands due to the dewatering of the mine pit and that will result in the methylation of mercury and mobilization of mercury from the impacted wetlands,” wrote the EPA in its analysis, which relies heavily on work done by the EPA’s Office of Research and Development.
The EPA noted that total mercury in the surface water of the St. Louis River as it passes through the Fond du Lac reservation is among the highest in Minnesota and that the waters there are already considered impaired for exceedances of mercury that are several times the mercury standard set by the Fond du Lac, as well as by the state of Minnesota. The Band’s mercury standard is 0.77 nanograms per liter (ng/l), while the state sets its limit at 1.3 ng/l. Levels reported in the St. Louis River, near the Fond du Lac reservation range from a high of 7.8 ng/l to 4.2 ng/l.
The EPA indicated that there was little that could be done within the existing Section 404 permit to address its concerns about mercury. “Given these significant uncertainties, EPA is unaware of any CWA Section 404 permit conditions that would ensure compliance with the Band’s water quality requirements,” noted the agency in its report.
While mercury may be a higher profile concern, the EPA also appears to agree with the arguments from Fond du Lac that the mine project, as currently designed, would fail to meet the Band’s standard for specific conductance, which is a measure of the amount of dissolved mineral ions in an aquatic system. “Both lake sturgeon and brook trout, as well as the benthic invertebrates upon which they feed, require low specific conductance water for naturally sustained populations,” noted the EPA. Even at relatively low levels of specific conductance, the EPA concluded “there would be declines in the abundance of aquatic microinvertebrates.”
Next steps
Armed with the information from this week’s hearings, the Army Corps will ultimately need to decide its own next steps, which could include reinstating the permit as is, reissuing it with modifications, or permanently withdrawing it.
If the latter, PolyMet would presumably have the option of litigation, or of modifying its project in a way that addresses the EPA’s concerns. That could be a very lengthy process, however, one that could require substantial additional environmental analysis. The EPA also recommends that any modifications closely involve both the state of Minnesota and the Fond du Lac Band as they are developed.