On Feb. 16, 2021, federal district court judge Patrick Schiltz entered an order in the case of the Fond du Lac Band of Lake Superior Chippewa against the Environmental Protection Agency (EPA) and the Army Corps of Engineers. The Ojibwe Band had sued over the issuance of a dredging permit – a “404” permit – allowing the direct destruction of more than 900 acres of wetlands, and the affecting of many more, for the PolyMet open pit sulfide mine. The complaint offered multiple theories why the permit issuance was unlawful. PolyMet intervened in the suit as a defendant, and the defendants moved for summary judgment.
The 404 permit is the second “water” permit issued to PolyMet. The other one, the water pollution discharge permit, the NPDES or Clean Water Act permit, was issued by the Minnesota Pollution Control Agency acting as the agent of the EPA. That permit is stayed in litigation at the moment, too.
The Feb. 16 order was a decision on the defendants’ motion. It granted summary judgment on some of the theories, or counts, but not on others. Right after the decision was announced, the PolyMet communications department took a victory lap and issued a press release claiming victory.
It became apparent soon after that though, to PolyMet and everyone else, that by making the motion, the defendants had lit the exploding cigar.
One of the counts on which Schiltz ruled against PolyMet and the federal defendants was a claim by the Band that it was entitled to notice from the EPA and an opportunity to assert that the Band’s rights would be affected by the issuance of the 404 permit. The judge thought that was a pretty good claim, saying, “The Band would seem to have a plausible (perhaps even a slam-dunk) claim that EPA did not act ‘in accordance with the law.’ ” Since the judge’s ruling was on defendant’s motion, it didn’t actually tell the Corps of Engineers to withdraw the permit. But it turns out it didn’t have to.
The EPA saw the handwriting on the wall and asked the court for a voluntary remand of the Corps permit, and the court gave them one.
In a letter to PolyMet on March 17, 2021, the Corps of Engineers voluntarily suspended the 404 permit to PolyMet. The Corps couldn’t even bring itself to copy the Fond du Lac Band or its counsel on the letter.
These facts can be readily gleaned from news reports. But what is behind this outline of the situation and what it means for the future of the mine are the fascinating part. Start by understanding that a federally enrolled Indian tribe is entitled to apply to the EPA to be considered as a state for certain purposes under the Clean Water Act. The Fond du Lac Band has done that; it has “Treatment as State” (TAS) status and it has water quality standards (WQS) that the EPA has accepted.
For a very important purpose here, the Fond du Lac Band is just like Wisconsin.
Because many water bodies have connections to multiple states, conflicts between states over water diversion and flow and over pollution arise frequently. There is an EPA mechanism for a downstream state to object to a proposed permit by an upstream state so that the upstream state can’t just issue a permit knowing that the pollution will be exported.
Under regulations existing at the time, the EPA was supposed to make a “may affect” determination to decide if a proposed permit “may affect” a downstream state’s water quality. If it concluded that the permit may affect the downstream state’s water quality, the EPA had to notify the downstream state and offer a hearing. The downstream state’s water quality standards are supposed to be observed, even if they are more stringent than the upstream state’s.
Parenthetically, after this suit arose, the Trump EPA amended relevant regulations to relieve itself from making “may affect” determinations in situations such as this.
In the case of PolyMet, the Trump EPA didn’t make any decision at all. It stonewalled so Fond du Lac would have nothing to appeal. Given Schiltz’s ruling, though, the EPA concluded it had to make the “may affect” finding decision and the Corps suspended the permit. It seems unlikely that the EPA will be able to determine that the PolyMet 404 permit doesn’t affect the Band’s water quality.
That is so because the staff of the EPA has had mercury pollution from PolyMet on its radar for at least a few years. This is from the EPA staff comments that were suppressed by the EPA at the request of the MPCA in the lead up to the issuance of the NPDES (water pollution discharge permit) by the MPCA in late 2018. Paragraph 7 on page 3 of the comments Enclosure:
EPA is concerned that the permit and supporting materials do not include sufficient information to explain how downstream water will be protected consistent with CWA Section 402(b)(5), 33 U.S.C. § 1342(b)(5), based upon the following considerations, including: (1) downstream receiving waters exceed the applicable state and downstream state human health and wildlife water quality standard for mercury, and (2) the pilot study states that the effectiveness of the treatment system to remove mercury is unknown. We note that a downstream tribe, that has “Treatment as a State” and federally approved WQS, has notified EPA that the project is likely to contribute to exceedances of its downstream WQS, including for mercury. MPCA should ensure that its permit will ensure compliance with downstream state WQS.
As the EPA comment says, the Fond du Lac Band asserts that PolyMet is “likely to contribute to exceedances of its downstream WQS including for mercury.” The level of mercury in the St. Louis River is already really high. Fond du Lac children are not supposed to eat fish from the St. Louis; adults are to limit consumption, and children along the North Shore have elevated mercury levels; the St. Louis River, empties, of course, into Lake Superior. The knowledge and characterization of mercury pollution in the St. Louis is not as robust as it should be because the MPCA abruptly canceled a Total Maximum Daily Load study for the river in 2013. It was afraid of what it would find, namely, that the contribution of existing mines, and the coal fired power plant that powers them, to the impaired state of the St. Louis River was considerable, and that adding a new sulfide mine was going to make the situation worse.
A lot of mercury was deposited in wetlands in the St. Louis River watershed by taconite mining and coal burning as well as sources farther away over scores of years. Disturbing over 900 acres of that wetland is a really poor idea. Everyone — including at the Corps of Engineers, the EPA and the MPCA, and at PolyMet, too — knows that.
What are we to make of all of this?
You will have to make up your own minds, but I’ve concluded that our regulatory agencies, both state and federal, who are charged with protecting the public interest, have a lot of trouble finding it. Especially when it comes to our Indian friends and their reservation and treaty rights.
I have also concluded, after a survey of the cases on the subject, that the Indians are a lot better at protecting clean water for everybody than we are at protecting clean water for them.
Steve Timmer is a retired Twin Cities lawyer. His twitter handle is @stevetimmer.
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