The U.S. Army Corps of Engineers has suspended its 2019 discharge permit for PolyMet’s planned NorthMet copper-nickel mine in northern Minnesota, citing the 1972 Clean Water Act (CWA).
The Army Corps decision came in response to a February ruling by U.S. District Judge Patrick J. Schiltz that the U.S. Environmental Protection Agency (EPA) had wrongfully failed to determine formally whether the project “may affect” downstream waters that lie within lands belonging to the Fond du Lac Band of the Lake Superior Chippewa.
Fond du Lac is one of 73 tribal entities with EPA-approved water quality standards, affording them downstream legal status in CWA permit decisions.
Schiltz ruled EPA had erred in its decision not to give the Band proper notice the anticipated wastewater discharge “may affect” the Band’s waters. The permit suspension allows for a 90-day review of the mine’s potential effects on tribal waterways.
Big Benefits Were Expected
The final wetlands permit issued by the Army Corps’ St. Paul District Office in spring 2019 authorized PolyMet Mining Corp. to discharge dredge and fill material into 901 acres as part of the construction and operation of the NorthMet mine.
It is estimated that if NorthMet mine becomes fully operational it will produce about 225 million tons of ore containing a billion pounds of copper and smaller amounts of nickel and cobalt.
Polymet estimated the project, the first copper mine in the historic iron mining district, would produce more than a thousand construction jobs, approximately 360 full-time mining jobs, and 600 ancillary jobs. Polymet estimated the mine would produce approximately $500 million each year in economic benefits for the region over the mine’s 20-year permit life.
Mine opponents sued to overturn the permit, arguing toxic mercury could flow from the 19,000-acre, open-pit mining project into the reservation at levels that violate Fond du Lac’s water quality standards. In 2019, Fond du Lac asked the EPA Region 5 Administrator Cathy Stepp to study whether the mine’s discharges might effect tribal waters. EPA declined to undertake a formal determination, saying it had discretion over whether to do so.
Schiltz ruled the EPA lacked such discretion. The agency is required under language of the CWA to make a “may affect” decision, Schiltz stated in his ruling.
“The Band would seem to have a plausible (perhaps even a slam-dunk) claim that EPA did not act ‘in accordance with law,’” Schiltz wrote.
Contradicts Biden’s Claimed Goals
The mine would produce huge benefits for American industries and the public, says Frank Ongaro, executive director of Mining Minnesota.
“The NorthMet deposit is part of the Duluth Complex, one of the largest undeveloped copper, nickel, and precious metals deposits in the world, holding 95 percent of known domestic nickel resources, 88 percent of our cobalt, and 34 percent of our copper,” Ongaro said. “The Biden administration wants to have a domestic supply chain and move toward electric vehicles, but you cannot do this without more mining.
“The Duluth Complex contains enough metals to supply over 300 million EVs based on copper, over 200 million based on nickel, and over 40 million EVs based on cobalt, but it has to be mined,” Ongaro said.
‘No Water Quality Effects’
Schiltz’s decision was purely procedural, and science supports the PolyMet’s mining plan, says Bruce Richardson, vice president of corporate communications and external affairs for PolyMet.
“The science was clear from the environmental review and permitting process that we will have no water quality effects downstream of the project,” Richardson said. “That was the Minnesota Pollution Control Agency’s (MPCA) conclusion, and EPA’s separate conclusion was the project would have no water quality effects in a downstream state.
“Keep in mind that the [Fond du Lac] Reservation is located more than 110 river miles downstream of the project and MPCA found none of the communities between our project and the reservation would suffer any water quality effects as a result of our operations,” Richardson said. “In fact, because we are cleaning up a legacy iron ore processing site, there will actually be a net reduction in mercury loading to the St. Louis River as a result of our operations.”
‘A Dangerous Geopolitical Game’
With the Biden administration moving to reverse all the Trump administration’s accomplishments regardless of their benefits, it is unclear whether the PolyMet mine will ever open, says Bonner Cohen, a senior fellow at the National Center for Public Policy Research.
“The decision by Biden regulators to suspend PolyMet’s Section 404 wetlands permit comes as no surprise,” Cohen said. “The Biden EPA will take its time in reaching its decision, but I believe it will ultimately rule against the mine, which will be bad news for blue-collar workers in Minnesota’s Iron Triangle and thus bad news for Minnesota’s economy.
“There is the distinct possibility, if not probability, that the precedent set by the Fond du Lac Clean Water Act argument will be replicated elsewhere to snuff out other mining operations, which would be bad news for the nation,” Cohen said. “The high-tech economy the Biden administration says it is pursuing cannot function without precious metals, which the U.S. has in abundance. Being dependent on foreign sources for copper, nickel, and other valuable metals is a dangerous geopolitical game to be playing.”