PolyMet (now NewRange Copper Nickel, LLC)

On May 3, 2022, EPA presented its “evaluation and recommendations” with respect to the Fond du Lac Band of Lake Superior Chippewa’s objection to the U.S. Army Corps of Engineers’ issuance of a Clean Water Act Section 404 permit for PolyMet Mining Corp.’s proposed NorthMet project in northeastern Minnesota. EPA provided this information, as required by the Clean Water Act, during a three-day hearing held by the Corps.

EPA’s key recommendation is that the Corps should not reissue the CWA Section 404 permit for the NorthMet project, as proposed. As the NorthMet project is currently designed, there are no conditions that EPA can provide to the Corps that would ensure that the discharges from the CWA Section 404 permitted activities would comply with the Fond du Lac Band’s water quality requirements for its waters. EPA’s assessment is based on an independent scientific review of the record, including PolyMet’s CWA Section 404 permit application and Minnesota’s water quality certification, as proposed at the time of EPA’s evaluation.

EPA’s recommendations do not foreclose any future modifications to the permit application or to the NorthMet project design. Any future modifications should include meaningful involvement of the Fond du Lac Band and the State of Minnesota to ensure compliance with both tribal and state water quality requirements.

EPA’s “May Affect” Notification

On June 4, 2021, EPA notified both the Fond du Lac Band and the State of Wisconsin that EPA determined that the discharges associated with the proposed NorthMet Mine in St. Louis County, Minnesota “may affect . . . the quality of the waters of [those jurisdictions].” The notice was provided pursuant to CWA Section 401(a)(2), 33 U.S.C. § 1341(a)(2). On August 2, 2021, Wisconsin notified EPA and the Corps that it did not object to the issuance of the CWA Section 404 permit. On August 3, 2021, Chairman Kevin DuPuis Sr. of the Fond du Lac Band, notified EPA and the Corps of the Band’s determination that impacts from the NorthMet CWA Section 404 permitted activities “will affect” the Band’s waters. The notification included the Fond du Lac Band’s objection to the Corps’ issuance of the CWA Section 404 permit, and its request that the Corps hold a hearing on its objection.

EPA’s Evaluation and Recommendations

Pursuant to CWA Section 401(a)(2), EPA presented an “evaluation and recommendations” for the Fond du Lac Band’s objection during the Corps’ public hearing on May 3-5, 2022.

Under CWA Section 401(a)(2), after the conclusion of the hearing and the public comment period, which ends on June 6, 2022, the Corps will consider the information presented. The Corps will then decide (i) whether the CWA Section 404 permit will be issued as conditioned; (ii) whether further conditions are required to comply with water quality requirements; or (iii) whether the project cannot be permitted as currently proposed because adding conditions to the permit alone cannot ensure that discharges from the permitted activities will achieve compliance with the State’s and Band’s water quality requirements.

Why is EPA taking this action?
Why is EPA presenting this Evaluation and Recommendations?
What information did EPA use to make its Evaluation and Recommendations?
Weren’t the water quality concerns in the Band’s Objection considered in the Minnesota permitting and certification process? If so, what is the point of CWA Section 401(a)(2)?
Why weren’t the concerns regarding tribal water quality standards identified by EPA earlier in the permit review process?
What are the details of the public hearing?
What effect does EPA expect this action to have on the NorthMet project?
What are anticipated next steps?
What about MPCA's National Pollutant Discharge Elimination System permit?
Documents related to EPA’s “May Affect” Notification:
Materials related to EPA’s Evaluation and Recommendations

Why is EPA Taking this Action?

The CWA provides that, for projects requiring a federal license or permit, “[w]henever such a discharge may affect, as determined by the Administrator, the quality of the waters of any other State” the Administrator shall “so notify such other State” within 30 days of receiving notice. 33 U.S.C. § 1341(a)(2). Such “other State” under this section of the CWA means states adjacent to the certifying state, or neighboring state or states. Tribes that have received “Treatment in a similar manner as State” for CWA Section 401 are treated as states for purposes of this neighboring state section of CWA Section 401(a)(2). CWA Section 518, 33 U.S.C. § 1377.

EPA Region 5 determined that the discharge from the proposed NorthMet project “may affect” the water quality of both the Fond du Lac Band and the State of Wisconsin under CWA Section 401(a)(2). EPA notified both the Fond du Lac Band and Wisconsin on June 4, 2021.

On August 2, 2021, Wisconsin notified EPA and the Corps that it did not object to the issuance of the CWA Section 404 permit. On August 3, 2021, Chairman Kevin DuPuis Sr. of the Fond du Lac Band, notified EPA and the Corps of the Band’s determination that impacts from the NorthMet CWA Section 404 permitted activities “will affect” the Band’s waters. The notification included the Band’s objection to the Corps’ issuance of the CWA Section 404 permit, and its request that the Corps hold a hearing on its objection. Pursuant to CWA Section 401(a)(2), EPA presented an “evaluation and recommendations” of the Fond du Lac Band’s objection during the Corps’ public hearing on May 3-5, 2022.

Why is EPA presenting this evaluation and recommendations?

Following the process outlined in CWA Section 401(a)(2), the Corps held a May 3-5, 2022 public hearing on May 3-5, 2022 on the Objection as requested by the Fond du Lac Band on August 3, 2021. The CWA requires that EPA submit its evaluation and recommendations with respect to the Objection to the licensing or permitting agency. In this case, the permitting agency is the Corps because it is responsible for processing the NorthMet permit application.

What information did EPA use to make its Evaluation and Recommendations?

EPA conducted a comprehensive review and scientific analysis in developing its evaluation and recommendations for this matter. This information included:

The Fond du Lac’s Band’s Objection and supporting materials;
PolyMet’s NorthMet permit application;
The Corps’ suspended CWA Section 404 permit for the NorthMet project;
The Corps’ record of decision for the CWA Section 404 permit for the NorthMet project and related materials;
The Minnesota Pollution Control Agency’s (MPCA) CWA Section 401 Certification and supporting documentation for the CWA Section 404 permit for the NorthMet project;
Information provided by PolyMet regarding the NorthMet project; and
Other relevant documents, many of which are referenced in the NorthMet Section 404 permit application and in MPCA’s 401 Certification documentation and that are publicly available.

Weren’t the water quality concerns in the Band’s Objection considered in the Minnesota permitting and certification process?

If so, what is the point of CWA Section 401(a)(2)?EPA also received analyses from EPA’s Office of Research and Development to inform the evaluation and recommendations.

The Minnesota Pollution Control Agency’s CWA Section 402 permitting and CWA Section 401(a)(1) certification processes addressed Minnesota’s water quality requirements that might be impacted by the project. The State’s permitting and certification focused on meeting Minnesota’s water quality requirements, not the downstream waters of the Fond du Lac Band. The CWA Section 401(a)(2) process focuses on project discharges that may impact a neighboring jurisdiction (in this case, the downstream waters of the Fond du Lac Band). These water quality concerns were not covered by Minnesota’s evaluation of whether the project would meet its water quality requirements. In this case, the Fond du Lac Band’s water quality standards for mercury and specific conductance are more stringent than Minnesota’s.

Why weren’t the concerns regarding tribal water quality standards identified by EPA earlier in the permit review process?

The CWA Section 401(a)(2) review process does not begin until EPA receives both the CWA Section 404 permit application and the state or authorized tribe’s CWA Section 401 Certification.

In this case, EPA received notice from the Corps of PolyMet’s CWA Section 404 permit application and MPCA’s CWA Section 401(a)(1) certification on December 20, 2018. At that time, EPA did not notify other jurisdictions, including the Fond du Lac Band, as required by Section 401(a)(2) within 30 days of receipt of the Corps’ notification. The Corps then issued the CWA Section 404 permit to PolyMet.

The Fond du Lac Band sued EPA in federal court. In its order of February 16, 2021, the U.S. District Court for the District of Minnesota ruled that EPA had a non-discretionary duty to make a “may affect” determination pursuant to CWA Section 401(a)(2) in this matter. Fond du Lac Band of Lake Superior Chippewa v. EPA, 519 F.Supp.3d. 549, 567 (D. Minn. 2021).

EPA sought remand to reconsider whether to provide notice to the Fond du Lac Band under CWA Section 401(a)(2). On March 8, 2021, the District Court granted EPA’s request for a voluntary remand. On March 4, 2021, EPA sent a letter to the Corps asking the Corps to suspend the CWA Section 404 permit it had issued for the NorthMet project. EPA asked for this suspension to allow EPA to complete its CWA Section 401(a)(2) review. The Corps suspended the CWA Section 404 permit for the NorthMet project on March 17, 2021.

EPA Region 5 completed its review under CWA Section 401(a)(2) and determined that the discharge from the proposed PolyMet project “may affect” the water quality of both the Fond du Lac Band and the State of Wisconsin. EPA Region 5 notified both the Band and Wisconsin of this determination on June 4, 2021.

On August 2, 2021, Wisconsin notified EPA and the Corps that it did not object to the issuance of the CWA Section 404 permit. On August 3, 2021, Chairman Kevin DuPuis Sr. of the Fond du Lac Band, notified EPA and the Corps of the Band’s determination that impacts from the NorthMet CWA Section 404 permitted activities “will affect” the Fond du Lac Band’s waters. The notification included the Fond du Lac Band’s objection to the Corps’ issuance of the CWA Section 404 permit, and the Band’s request that the Corps hold a hearing on its objection. Pursuant to CWA Section 401(a)(2), EPA presented an “evaluation and recommendations” of Fond du Lac’s objection during the Corps’ public hearing on May 3-5, 2022.

Why didn’t EPA recommend permit conditions instead of recommending that the Corps not reissue the suspended CWA Section 404 permit?

EPA’s key recommendation is that the Corps should not reissue the suspended CWA Section 404 permit, as proposed. As the NorthMet project is currently designed, there are no conditions that EPA can provide to the Corps that would ensure that the discharges from the CWA Section 404 permitted activities would comply with the Fond du Lac Band’s water quality requirements. EPA’s evaluation is based on an independent scientific evaluation of the record, including the CWA Section 404 permit application and Minnesota’s water quality certification, as proposed at the time of EPA’s evaluation.

EPA’s recommendations do not foreclose any future modifications to the permit application or to the NorthMet project design. Any future modifications should include meaningful involvement of Fond du Lac and Minnesota to ensure compliance with both tribal and state water quality requirements.

What are the details of the public hearing?

The hearing was held May 3-5, 2022. Details can be found on the Corps’ PolyMet web page under Public Notices. https://www.mvp.usace.army.mil/Missions/Regulatory/PolyMet/

What effect does EPA expect this action to have on the NorthMet project?

EPA’s presentation of its evaluation and recommendations at the Corps’ hearing has no direct effect on the NorthMet project.

EPA’s recommendations do not foreclose any future modifications to the permit application or the NorthMet project design. Any future modifications should include meaningful involvement of the Fond du Lac Band and the State of Minnesota to ensure compliance with both tribal and state water quality requirements.

What are anticipated next steps?

Under CWA Section 401(a)(2), after the conclusion of the hearing and public comment period, the Corps will consider the information presented and decide whether the CWA Section 404 permit will be issued as conditioned, whether further conditions are required to comply with water quality requirements, or whether the project cannot be permitted as currently proposed because adding conditions to the permit alone cannot ensure that discharges from the permitted activities will achieve compliance with water quality requirements.

What about MPCA's National Pollutant Discharge Elimination System permit?

The Fond du Lac Band challenged EPA’s review of the Minnesota Pollution Control Agency’s National Pollutant Discharge Elimination System (NPDES) permit in the same lawsuit described above. EPA’s asked the Court to dismiss this challenge. The Court determined that it could not review EPA’s evaluation of the permit, and dismissed the Band’s claim against EPA.

The MPCA NPDES permit remains subject to challenge by the Fond du Lac Band and other parties in state litigation. Inquiries regarding the MPCA NPDES permit or that state court litigation should be directed to MPCA.