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Mary Annette Pember
Indian Country Today

The Fond du Lac Band of Lake Superior Chippewa is breaking new ground in its fight against a planned $1 billion PolyMet copper mine in northern Minnesota.

Asserting its rights as a “downstream state” under the Clean Water Act, the Fond du Lac Band filed a federal lawsuit in 2019 against the U.S. Army Corps of Engineers and the Environmental Protection Agency.

The Army Corps of Engineers responded by issuing a decision temporarily halting wetlands permits the agency previously provided to the Polymet Mining Corporation that had allowed it to move ahead with the mine project.

“This is the first time that any downstream tribe has successfully exercised their rights under the Clean Water Act in order to object to a federal permit,” said Paula Maccabee, director and counsel for WaterLegacy. “Scientists have found that there is likelihood that mercury from Polymet’s NorthMet project will increase mercury content in fish found in the St. Louis River which flows through reservation lands.”

WaterLegacy is a nonprofit environmental rights organization based in Duluth focusing on threats to water posed by the mining industry.

Under Section 401 of the Clean Water Act, a federal agency may not issue a permit to conduct any activity resulting in discharge into U.S. waters without verifying compliance with water quality standards. Section 404 of the Clean Water Act governs and regulates discharge of dredged or fill material into U.S waters.

In February, U.S. District Judge Patrick Schiltz in Minnesota ruled that the Environmental Protection Agency failed not only to consider the impact of the mine’s water permits on the Band’s water but also to notify the Band.

In a March 17 letter to PolyMet Mining, Army Corps District Engineer Karl Jansen wrote that the court found that the EPA had a legal responsibility to make a so-called “may affect” decision within days of the Minnesota’s Pollution Control Agency’s certification of the project.

“The outcome of EPA’s ‘may affect’ determination may require the Corps to reconsider the 404 permit,” he wrote. “Depending on the outcome, the Corps will make a decision to either reinstate, modify or revoke the permit.”

The Band did not respond to a request for comment from Indian Country Today, but in a statement released to the Star Tribune said that the question of whether the EPA followed the law was a “slam dunk” for the tribe.

The St. Louis River moves through Wisconsin and Minnesota before flowing into Lake Superior. The Fond du Lac Band says a proposed copper mining operation would dump pollutants into the waterway. (Photo by Ryan Fonkert, Creative Commons)

“The Trump administration wholly failed to consult with the Band or listen to science,” according to the statement. “The project doesn’t comply with the Band’s federally approved water quality standards; certain discharges are completely unregulated.

“This is a serious concern for the Band because Polymet proposes to dump polluted wastewater and other contaminants into waterways that flow through the Band’s treaty territory and ultimately down to the reservation.”

Bruce Richardson, a spokesperson for PolyMet, told Indian Country Today that the project meets federal standards.

“We are participating fully as appropriate in the review process,” Richardson said. “We believe that the science shows that our project has no downstream water quality effects; the EPA has never said otherwise.”

Threats from mercury

The company began the environmental review process for what would be the first copper mine in Minnesota in 2004.

PolyMet later bought an iron-ore processing plant where it proposed to mine copper, nickel and other precious metals near the towns of Babbitt and Hoyt Lakes at the headwaters of the St. Louis River in an area known as the Duluth Complex. The Duluth Complex is a massive geologic formation near the eastern end of the Mesabi Iron Range which has been mined for iron ore for more than 100 years.

PolyMet Mining is based in Toronto, with majority ownership by Glencore in Switzerland.

According to Maccabee, with WaterLegacy, the Band and environmental groups have been fighting the PolyMet mine project in court for years.

“Unfortunately, a lot of the news coverage is like a scorecard over each court case and appeal. But I think people have forgotten what a serious danger PolyMet poses for the St. Louis River and in particular for the downstream Fond du Lac tribe,” she said.

“The scale of wetlands destruction that would take place at PolyMet is far beyond anything that has happened in the modern era under the Clean Water Act.”

Copper mining and waste facilities discharge sulfate into water and release sulfur compounds into the air. Processing of copper ore releases mercury into waterways. Maccabee said the combined releases present a perfect storm that would increase levels of methylmercury contamination of fish in the Partridge, Embarrass and St. Louis rivers downstream. These waterways ultimately drain into Lake Superior.

According to a 2011 study by the Minnesota Department of Health, 10 percent of newborns in the Lake Superior basin had mercury levels above safe levels. These levels are attributed to taconite mining already taking place in the Mesabi Iron Range in the area where PolyMet wants to build its copper mine. Taconite is a low-grade iron ore that is processed into pellets and shipped for further processing in blast furnaces.

Mining in Minnesota, mostly some form of iron extraction, has long been a major part of the state’s identity and economic history. Since the 1890s, immigrants flocked to Minnesota to work in its iron mines. Miners’ strikes in the early 20th century helped catalyze a long heritage of organized labor that continues to resonate in the Mesabi Iron Range.

Generations of Minnesotans have proudly worked in the mining industry, earning a living for their families, and discussions about the long-term viability and impact of pollution from mining can be contentious in the traditionally blue-collar Mesabi region. Although a long time Democratic stronghold, voters associated with mining have increasingly changed alliances, supporting Donald Trump.

PolyMet has heralded the economic benefits of its NorthMet Project, reminding residents that "mining is the backbone of our region."

The company says the copper mine will provide 360 full-time jobs and a $515 million annual boost to the St. Louis County economy.

Internal opposition overlooked

In 2019, WaterLegacy obtained documents from the Environmental Protection Agency indicating that regional staffers with the agency had substantial questions about the PolyMet project prior to the Minnesota Pollution Control Agency’s issuance of final water and air permits to the company. WaterLegacy gained access to the documents after filing a Freedom of Information Act request and then suing for their release.

A document shared with Indian Country Today shows that Region 5 Environmental Protection Agency staffers sent a letter and report to the Minnesota Pollution Control Agency detailing their concerns about pollutants that could be released by the NorthMet mine.

“There is nothing definitive in the permit or supporting information that justifies a conclusion that meeting these operational targets will result in meeting water quality standards in the permit application,” they wrote. “This is especially a concern for mercury. The pilot study states that the effectiveness of the treatment system to remove mercury is unknown.”

WaterLegacy also received copies of emails between high-level officials at the Minnesota Pollution Control Agency and two EPA administrators -- Cathy Stepp, who was appointed by Trump to head the region, and her chief of staff, Kurt Thiede, who was also appointed by Trump.

In the emails, officials from both agencies agree to read comments critical of PolyMet submitted by the EPA staffers aloud over the phone rather than allow them to be submitted in writing into the public record. Stepp is no longer with the agency.

The Minnesota Pollution Control Agency ultimately issued the water quality permit in 2018 for the NorthMet mine.

Under the Trump administration, the Environmental Protection Agency changed its rules under the Clean Water Act making it impossible for states to block water permits for any reasons other than direct pollution into waterways.

In July 2020, California, New York, Washington and 17 other states sued the federal government over the changes.

“There were a lot of bad changes to EPA rules during the Trump era making it easier for industry to pollute,” Maccabee said. “It’s going to take a lot of time and work to get these terrible rules off the books.”

New approaches in Washington

Changes are already underway.

In January, President Joe Biden signed an executive order protecting public health and the environment and restoring the use of science to tackle the climate crisis.

In the order, the president promised to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities. He also promised to address federal actions and regulation changes during the last four years that conflict with that mission.

On March 31, EPA Administrator Michael Regan announced his decision to remove more than 40 outside experts appointed by then-President Trump from the Science Advisory Board and the Clean Air Scientific Advisory Committee.

“Scientific integrity is one of EPA’s foundational values -- and as Administrator, I am committed to ensuring that every decision we make meets rigorous scientific standards,” Regan said in a statement released by the agency.

Regan’s decision to reset the committees is aimed at reversing other actions, including an internal directive in October 2017 that prevented qualified academics and non-governmental officials who received EPA grants from concurrently service on EPA advisory panels; eliminating key air pollution review panels; and not following the standard process for appointing committee members.

Regan also restored the Climate Change page to the agency’s website.

Ricky DeFoe, citizen of the Fond du Lac Band of Lake Superior Chippewa, stands on a rise with the St. Louis River estuary in the background near Duluth, Minnesota, in 2016.  DeFoe is on the board of WaterLegacy, a nonprofit opposing the PolyMet copper mine. (Photo courtesy of Ricky DeFoe)

‘Where the water stops’

Ricky DeFoe, a citizen of the Fond du Lac Band of Lake Superior Chippewa who also serves on the board of WaterLegacy, said government agencies such as the EPA and the Minnesota Pollution Control Agency no longer look out for the best interests of the people.

“They are now in cahoots with the mining interests,” he said, “so they make rules and decisions favorable to them.”

That puts the tribe and others at risk, he said.

“Fond du Lac is the place where the water stops,” DeFoe said. “We’re right downstream from all of these mines. If those dams burst, millions of gallons of polluted water would discharge into the St. Louis River and into Lake Superior.”

The paradigm represents what he calls a “corporatocracy” that has supplanted democracy to form a government in favor of big business. It has forced the tribe and others into the courtroom.

“Their hierarchy of life is upside down,” he said. “Our challenge as Indigenous peoples is to right-side this upside-down world.”

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