U.S. District Court dismisses federal challenge of PolyMet water permit

February 17, 2021

A federal judge dismissed a challenge to the U.S. Environmental Protection Agency’s (EPA) oversight of a National Pollutant Discharge Elimination System water quality permit issued to Poly Met Mining Inc. that was filed by the Fond du Lac Band of Lake Superior Chippewa.

The challenge, filed in September 2019 in U.S. District Court in Minneapolis, argued that EPA should have objected to PolyMet’s permit before it was issued. On Feb. 15, Judge Patrick J. Schiltz held that it had no jurisdiction to review EPA’s oversight role, and so dismissed the band’s claim. However, Schiltz allowed the band’s claim that the EPA failed to inform it of potential environmental effects of the proposed copper-nickel mine to continue.

The 2019 lawsuit said that because concerns and comments made by EPA staffers reviewing a draft of PolyMet’s national pollutant discharge elimination system (NPDES), permit were read to the Minnesota Pollution Control Agency over the phone and kept out of the public record, that the court should order the “EPA to reconsider its decision not to object to the permit until a proper review takes place.”

Schiltz said the court did not have authority to do that and dismissed that part of the band's lawsuit.

“The Court agrees with defendants that it lacks jurisdiction to review either EPA’s decision not to object to the NPDES permit or the process by which EPA made that decision,” Schiltz wrote.

Schiltz let the band’s claim that the EPA failed to inform it that PolyMet “may affect” its reservation to continue.

“The Court therefore finds that it has jurisdiction to review EPA’s ‘may affect’ determination,” Schiltz wrote.

The proposed PolyMet copper and nickel mine is located 112 km (70 miles) upstream from the Fond du Lac Reservation near Babbitt and Hoyt Lakes and in the St. Louis River Watershed.

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.

In a news release, PolyMet noted there were no other federal cases challenging the NPDES permit, but that the Minnesota Court of Appeals continues to review it.

“Today’s decision ends the only federal court challenge to PolyMet’s water quality permit. However, PolyMet continues to litigate that permit in the Minnesota Court of Appeals, in part to defend a favorable Ramsey County District Court decision last fall finding that the permit was not the result of procedural irregularities,” the company said in a release.

In that case, the project's water permits are headed back to the Court of Appeals after a district court judge said the agency did not not break the law or its own policies in trying to keep the EPA's comments and concerns out of the public.

PolyMet’s NPDES, which regulates water discharged from industrial activities, and many other of its permits were placed on hold amid numerous court challenges.

The Minnesota Supreme Court is reviewing two cases examining PolyMet’s air permits and permit to mine and dam safety permits. It could issue decisions soon.

A separate federal lawsuit filed by environmental groups in September 2019, the same day as the band’s lawsuit challenging the EPA and U.S. Army Corps of Engineers, continues.

In that lawsuit, Friends of the Boundary Waters Wilderness, Center for Biological Diversity and Minnesota Center of Environmental Advocacy claimed the Army Corps violated the Clean Water Act and the National Environmental Policy Act when it issued PolyMet's wetlands permit, which allows the company to discharge dredged and fill material into more than 900 acres of wetlands as the company develops and builds its mine.

 

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