MAC/20: Mines and Communities

US-Canada update

Published by MAC on 2007-03-17


US-Canada update

17th March 2007

A significant victory has been won by opponents of the plan by US company, Coeur d'Alene, to dump toxic tailings into a freshwater lake.

A federal court ruling last Friday should (if there were logic or justice) now have repercussions on both the Pebble Mine project in southwest Alaska and the use of pristine lakes for mine waste disposal in Canada.

[see: http://www.minesandcommunities.org/Action/press1267.htm ]

As we reported last month, Rio Tinto recently acquired nearly 20% of the equity in Northern Dynasty - "owner" of the mine Pebble project - and has earmarked it as one of it's key new "development" projects for the coming year .

Pollution flows in both directions between Canada and the US. Last year Teck Cominco was found guility of massive cross-border pollution, thanks to protests in the US. This week a US company was charged with causing methylmercury contamination of Canadian waterways.

Meanwhile, MiningWatch Canada has protested at the possible damaging consequences of allowing nickel sulphide ores to be shipped from Michigan to Canada, if Rio Tinto/ Kennecott's controversial (and currently stalled) Eagle Mine is allowed to proceed.

Earlier this month we reported on MAC that Rio Tinto/Kennecott's plans to open a nickel-copper mine in Michigan had been set back when "irregularities" (if not criminal deception) were discovered in the state's procedure for assessing the environmental impact of the proposed operation.

We also cited evidence from a recent report by EarthWorks that the company's previous mine in the region, situated at Lac du Flambeau, Wisconsin, had alarmingly exceeded water polution standards in the case of several toxic heavy metals. [see: http://www.minesandcommunities.org/Action/press1391.htm]

Now Rio Tinto has applied to Wisconsin's Department of Natural Resources (DNR) for a "certificate of completion" (COC) confirming it has met the reclamation standards at the Flambeau mine, despite compelling evidence that it hasn't.

Citizens living in the area are now calling for denial of what, they believe, would be a mandate - not only to proceed with the Michigan mine, but also overturn Wisconsin's unique and hardwon regulations which have effectively banned the impositon of sulphide-based mining in the state.


Coeur d'Alene Mines Loses Clean Water Act Court Case

SAN FRANCISCO, California, (ENS)

16th March 2007

The federal Clean Water Act cannot be used to destroy an Alaskan lake, a federal appeals court ruled today, in a decision that may set precedent about how the act is interpreted nationwide.

Although the full ruling is not yet released, the 9th Circuit Court of Appeals said the U.S. Army Corps of Engineers was wrong in letting gold mining company Coeur d'Alene Mines dump toxic mine tailings into a lake near Juneau, Alaska.

"In issuing its permit to Coeur Alaska for the use of Lower Slate Lake as a disposal site, the Corps violated the Clean Water Act," the court said in the first part of a two part ruling on Kensington Mine dumping operations.

The ruling disallowed a diversion ditch which the court said was environmentally destructive and which violated a previous injunction against the mine. But, the court said it would rule against the entire dumping procedure in its final opinion.

The decision could prevent mines across the United States from dumping into lakes, streams and rivers, said Tom Waldo, attorney for Earthjustice, the non-profit law firm that filed the appeal on behalf of the Southeast Alaska Conservation Council, Lynn Canal Conservation, and the Sierra Club.

"The Kensington permit was a test case by the Bush administration to resurrect destructive mining practices from the pick-and-shovel days," Waldo said. "We've learned from the mistakes of the past. The Clean Water Act prohibited these practices, and today's court ruling confirms that."

Waldo is concerned about similar operations elsewhere in Alaska, expecially the proposed Pebble Mine in Bristol Bay, which hosts the world's largest sockeye salmon fishery.

Pebble Mine, like Kensington, is designed to dump vast quantities of toxic mine tailings into lakes. A coalition of business, environmental, fishing and native groups is opposing the Pebble Mine because of its damaging potential.

In 1982, the U.S. Environmental Protection Agency adopted regulations under the Clean Water Act prohibiting new gold mines from dumping their tailings into waterways.

Yet, the Corps' permit granted Coeur d'Alene Mines Corporation the right to dump 210,000 gallons per day of a toxic waste slurry into Lower Slate Lake, despite the availability of disposal methods less damaging to the environment. The slurry is a byproduct of a gold extraction process that blends water with crushed ore. Attorneys representing mine developers and the federal government said the slurry is legal fill material in their view of the law, but the court rejected that argument.

The mine site is in Berners Bay, about 35 miles northwest of Juneau. The disputed permit would fill Lower Slate Lake, a 23 acre wooded, sub-alpine lake in the Berners Bay watershed. All fish and most other life forms would have been killed.

Coeur d'Alene Mines already had approval to build a conventional dry land tailings disposal facility, but the company applied for a permit to dump tailings directly into the lake as a cost-cutting measure.


Michigan Energy Company Sued for Mercury Pollution in Canada

SARNIA, Ontario, Canada

12th March 2007

(ENS) - Michigan's DTE Energy Company is being sued for its role in allegedly polluting the St. Clair River with mercury.

DTE Energy, the parent company of Detroit Edison, operates the St. Clair/Belle River coal-fired power plant complex in Michigan. On average, the facility emits 2,000 pounds of mercury each year.

Scott Edwards, a Canadian citizen and authority on mercury pollution, was in Sarnia court Wednesday charging that the St. Clair/Belle River generating station on the banks of the St. Clair River has been breaching Canada's Fisheries Act for two years.

Edwards is the legal director for Waterkeeper Alliance, a global coalition of 150 grassroots environmental groups.He is being aided by three other affiliates of Waterkeeper Alliance, Mark Mattson, Doug Chapman and Doug Martz. Mattson is lead investigator and the Lake Ontario Waterkeeper. Doug Chapman is lead counsel and the Fraser Riverkeeper. Martz is the St. Clair Channelkeeper.

More than half of DTE Energy's mercury emissions land in Canada. When the mercury enters the St. Clair River, it is altered by bacteria into methylmercury which spreads throughout the food chain, altering fish habitat and rendering fish unsafe for human consumption.

Edwards is alleging that DTE's mercury deposits are illegal under Canada's Fisheries Act and has launched a private prosecution.

Private prosecutions allow any Canadian citizen to independently prosecute offenses in the criminal courts.Fines under the Fisheries Act can range up to $1 million a day.

A test of pollution control technology in 2004 reduced mercury emissions at the St. Clair plant by 94 percent, but at the conclusion of the 30 day test, DTE Energy stopped using the mercury control technology.

"DTE has acted with a blatant disregard for the health and welfare of Canadian citizens and Canadian law," says Edwards.

"My hope is that this prosecution will result in significant reductions in DTE Energy's mercury emissions and a cleaner and safer St. Clair River."

The court will set a date for the initial hearing later this month.


Michigan Mining Proposal Collapses

Between Editions, the Great Lakes United Newsletter

March 2007 The Michigan Department of Environmental Quality (DEQ) overturned its proposed decision to approve a mining application by Kennecott Eagle Minerals Company after it was found that key reports criticizing the mine's structural safety were deleted from the public record. The reversal is cause for celebration for those groups fighting the mine, but not for long. The proposal is still active and the DEQ is reviewing the hidden documents. Following the revelation that documents were suppressed, several groups called for the reassignment of Hal Fitch, the DEQ's top mining regulator. Regardless of whether Fitch was aware of the document suppression, the groups contend that sloppy oversight of the proposed sulfide mine has undermined the state's tough new mining laws, put the Upper Peninsula's tourism economy and natural resources at risk, and shattered public confidence in the mining permit process. "Whether or not this inexcusable breach of trust was done with Mr. Fitch's knowledge is beside the point," said James Clift, Policy Director of the Michigan Environmental Council. "It is symptomatic of a relationship Mr. Fitch and his subordinates have with Kennecott that is compromising their ability to make objective decisions regarding this application." The League of Conservation Voters Education Fund, Michigan Environmental Council, Save the Wild UP and Sierra Club's Michigan chapter, echo Clift's comments. Asking for new leadership on the issue, the groups argue that the Kennecott proposal should restart from the beginning to ensure public confidence and adequate protection of the environment. The overturned decision also comes days before a Canadian firm revealed that it would start exploring for mining sites only miles from the mine proposed by Kennecott. Prime Meridian Resources Corporation hopes to start test drilling soon with results expected by early June. The Kennecott proposal is the first application under the state's new mining law. The law was written to regulate what are expected to be numerous new mining applications in the coming decade - all in the sulfide rock formations that create dangerous battery-acid strength liquid waste laced with toxic heavy metals. Managed improperly, or subject to lax state enforcement, the waste could contaminate groundwater and ruin numerous trout streams that flow into Lake Superior near Big Bay. Impacting not only Michigan's Upper Peninsula and Lake Superior waters, Mining Watch Canada raised concerns with the DEQ that ore from the proposed mine will be shipped off-site to Sudbury, Ontario for milling and smelting, adding to that city's legacy of contamination from three enormous tailings impoundments. In what appears to be a significant gap in binational oversight, there is no environmental assessment mechanism to assess impacts of the transport, processing and storage of ore from the United States into Canada or visa versa.


Letter: From Joan Kueyk, MiningWatch Canada to Michigan Office of Geological Survey

1st March 2007

To: Steven Wilson,
Office of Geological Survey,
P. O. Box 30256,
Lansing, MI 48909-7756

e-mail to: wilsonse@michigan.gov

Dear Sir:

RE: Kennecott Eagle Project comments.

I am writing on behalf of the Board and staff of MiningWatch Canada to add our voices to those protesting against the Eagle Mine.

MiningWatch Canada is a coalition of twenty labour, Aboriginal, environmental, social justice and development organizations from across Canada with a mandate to support communities affected by mining in Canada, and affected by Canadian mining companies abroad. We bring together communities affected by mining, workers whose survival depends upon mining, and the indigenous people who face the prospect of their traditional lands being irreparably damaged by mining.

For eight years, we have provided a co-ordinated and effective response in Ottawa to the threats to public health, water and air quality, fish and wildlife habitat and community interests posed by irresponsible mineral policies and practices in Canada and around the world. Mining Watch Canada carries out and/or supports the monitoring, analysis and advocacy necessary to affect the behaviour of industry and public decision-makers.

I am also writing to you personally, as someone who lived in Sudbury Ontario for over thirty years. I raised my children there, and one daughter still lives in that community with two of my grandchildren. I am well aware of the damage caused by nickel mining in sulphide ore bodies, and of the high environmental and social costs that are borne by the communities that depend on that industry.

The ore from this mine will be shipped off-site to Sudbury for milling and smelting, where it will add to the accumulated destruction of the environment in that city, which already has three enormous tailings impoundments, and contaminated soil in most of the region.

Tailings and waste rock

Mining is really a waste management industry. Digging up metals generates enormous piles of rock, which contain trace amounts of potentially harmful substances. As an example, one gold wedding ring produces anywhere from 6-30 tonnes of waste rock and tailings. Waste rock is unprocessed rock that has been broken into pieces to facilitate its removal; tailings are the processed finely ground rock created by extracting ore. Around the Great Lakes in Canada and the US, they are usually highly acidic, leaching sulphuric acid into waters and aquifers. They can contain arsenic, mercury, copper, nickel, selenium and other toxic substances. Tailings (also called slimes) are usually kept in impoundments of immense size, which have to be monitored in perpetuity. In Canada, mining already creates almost 2 million tones of waste rock and tailings a day.

In Sudbury, the CVRD-INCO Copper Cliff tailings area is over 3000 hectares in size; Xstrata has two major tailings areas: one near the Strathcona mine and mill, and the "New Tailings Area" near the Xstrata smelter (over 30 million tonnes of tailings). Similarly to the Eagle Mine proposal, both companies now return much of their waste rock underground through a paste backfill process. Slag - the residue from smelting the ore - is another concern, and although it is less toxic than tailings, very elevated levels of heavy metals have been found in properties in the Gatchell and Little Britain neighbourhoods adjacent to the slag heaps.

Air deposition to soil

In Sudbury, historic smelting practices have also resulted in the acidification and the accumulation of heavy metals in soil and water, which have been documented in a number of studies by scientists like Keith Winterhalder, Tom Peters and Gerry Courtin. Over the past five years, Sudbury has been the subject of a Soil Study to measure contaminants in the soil from historic mining and smelting practices. The analysis of these results is about to be released to the community.

The raw soil study data has some very disturbing findings. 5% of the samples have above the recommended level for antimony, arsenic, cadmium, cobalt, and zinc. Lead and selenium levels in a quarter of the samples exceed the guidelines, and copper and nickel levels are way over the guidelines in almost 80% of the samples. Although aluminium is not included in the Ontario guidelines, the levels in the samples are anywhere from 3-6 times the levels recommended in other literature. To make things worse, these exceedances correlated with one another. High concentrations of nickel, copper, cobalt, arsenic, lead and zinc tended to turn up in the same samples. The highest proportion of these samples are in the core area, especially in Gatchell, Little Britain and the northwest corner of Ramsey Lake.

(The tables can be found at:

http://www.sudburysoilsstudy.com/EN/media/support/reports/2001SoilsData/2001SoilsData.htm

Table 7.1.3.3 -Sudbury Core Pollution summary and Page 47.)

The general message from the local Department of Public Health is that "there is no immediate danger". Certainly, the contaminants in the soil are probably not getting worse. They are probably getting better with lime amendments by homeowners to soil, with the Sudbury reclamation work, with regulations restricting SO2 and particulate emissions from the smoke stacks and with covers on the dry tailings. We are probably in no more danger now than we were ten years ago.

However, unless we know a lot more about the interactions between acidity, each of the different metals and our health, we cannot rule out the effects these contaminants may be having on all of us and our families. Do we know which of us are unlucky enough to be living in the places where the metals are elevated? Do we know if our children's school or daycare has high metal levels in the school yard? Do we know where tailings have been used as fill? Do we know to what extent chronic illness, cancers and hyperactivity in children can be linked to these contaminants? Do we know what we can do if there is a link?

It is frightening to face these issues. But I prefer to know the dangers I face and participate in solving the problem - not be handed soothing phrases and patted on the head.

We have a right to know about the contaminants affecting our lives and those of our children

We do not have a Public Right to Know about the toxins in these tailings and slag.

In Canada, The National Pollutant Release Inventory (NPRI) is the means by which Canadians can find information about the pollutants annually transferred by companies and released to the environment in their communities. It helps government and other groups by identifying priorities for action to protect health and the environment in Canada. It is part of the Canadian Environmental Protection Act (CEPA).

In the United States, the Toxics Release Inventory, or TRI, plays the same role. When mining was added to the TRI in 1997, the mining industry suddenly moved to the top of the list of polluters, contributing over half the 7.77 billion pounds of toxic chemicals released to the environment. Most of the pollutants came from the waste rock and tailings that are created at the mine site.

In Canada, most of the CEPA toxins released by the creation of tailings and waste rock during mining/milling have been exempt from the National Pollutant Release Inventory, the NPRI since 1993.

For a number of years now, a struggle has been taking place in Canada between the mining industry and organizations that care about public health, to get mining wastes and tailings included in the NPRI. The mining industry argues that low concentrations of toxins in waste rock and tailings occur in nature and are therefore not "releases to the environment".

Removing the rock from the ground and crushing it exposes dangerous substances to air and water, and disposes of them in waste rock heaps and tailings impoundments which have to be monitored in perpetuity. Their effects are cumulative and toxic, and the public has the right to know about them.

Protecting ourselves when and if the mines and smelters close

MiningWatch Canada learned on April 13, 2006, through an application under the Freedom of Information and Privacy Act, that the two mining companies in Ontario with the largest environmental footprint have been allowed to "self-assure" their mining operations in Sudbury and Timmins against closure and abandonment. The companies themselves estimate the cost of that clean-up as over $585 million.

The clean-up estimate costs have not been independently evaluated, and there is no requirement under Ontario law for this to be done.

On December 5, 2005, the Auditor-General of Ontario released a report slamming the Ontario government for exposing tax payers to this enormous risk.

" Companies whose bonds are rated Triple B or higher meet the financial test established in the Mining Act and don't have to provide finan­cial assurance. We were informed by the Min­istry that Ontario is the only province in Canada that accepts the corporate financial test for of assurance, which constitutes the major portion of total financial assurance provided. This form of financial assurance essentially amounts to self-assurance.

" A consultant hired by the Ministry in 1996 to review self-assurance found that the risks associated with granting such a privilege to a mining company are considerable because the Ministry is effectively assuming the status of an unsecured creditor. Any failure of these min­ing companies would mean a significant liabil­ity for the province. Also, it could be difficult to obtain another form of financial assurance once a company is experiencing financial difficulty and can no longer meet the financial test.

" Experience in other jurisdictions has shown that mining companies that have gone bankrupt continued to meet the financial test right up to the time they filed for bankruptcy protection. Because significant mine-rehabilitation costs are being borne by government after companies that offered self-assurance have gone bank­rupt, some jurisdictions have eliminated the use of self-assurance. For example, the Bureau of Land Management in the United States has not accepted any new corporate self-assurance since 2001."

No Environmental Assessment for the imported ores

Even though the ore imported from the Eagle Mine will add significantly to the environmental risks faced by the community in Sudbury, there will be no environmental studies to look at the effects of the ore's transport, processing or storage. Compared to the effects likely to be experienced in Michigan, the effects in Sudbury are much greater. We become a sacrifice zone.

Kennecott has argued that the transportation plans/impacts are not part of the statute and rules and has refused to develop an impact statement about the transportation of ores from the site to the railhead; and from the railhead across Michigan; and from Michigan across the Soo bridge to Canada and on to Sudbury.

No independent person in authority in Canada or the US will even ask questions about the milling, smelting and waste management issues.

I ask you to consider the impacts on Sudbury of this way of dealing with the worst impacts from mining. Kennecott states that " There will be no on-site processing and therefore, no tailings will be generated as part of the project. The very simple design of Eagle includes excavating the ore from the ground, crushing it to minus six inches and loading it into trucks. The trucks will take the ore to an off site rail transfer facility where it will be loaded into rail cars for processing outside of Michigan." There will be tailings, and they will have an environmental impact.just not in Michigan.

Although amending and improving our be-nighted regulatory regime when it comes to mining is our work to do, I ask you to not take advantage of the situation, and to instead, help us remedy it.

Yours respectfully.

Joan Kuyek, National Co-ordinator

cc. John Rodriguez, Mayor of Sudbury, john.rodriguez@greatersudbury.ca


Keeping Roscoe's Struggle alive * (see note below)

Laura Furtado

13th March 2007

Dear environmental friends,

This is a call to rally the troops. Kennecott (AKA Flambeau Mining Company) has applied to the Wisconsin DNR for a Certificate of Completion (COC) for its reclamation activities at the Flambeau Mine site (see attached news article from the Ladysmith News, labeled as LN20071018). What it boils down to is that FMC wants to get back its $11 million reclamation bond, based on the company's claim that the site has been successfully reclaimed (If a COC is awarded, the State of Wisconsin can return up to 80% of the bond - the remaining 20% would be held for an additional 20 years).

This issue not only impacts those of us who live in Wisconsin, but people in the Upper Peninsula of Michigan and Minnesota as well. You see, Kennecott is trying to gain approval to construct mines in those two states at the present time and has been using the Flambeau Mine as its calling card, telling everyone what a wonderful job the company did at Ladysmith. If Kennecott succeeds in getting a COC for the Flambeau Mine, the company WILL use this to bludgeon down Wisconsin's mining moratorium law and claim the company has done what no one else has ever managed to do - successfully reclaim a metallic sulfide mine. The only problem is that the Flambeau Mine site has NOT been successfully reclaimed. Basically, everything that Roscoe and Evelyn Churchill said would happen with regard to acid mine drainage is happening even as we speak - and at some point down the line (it may take decades), I fully expect the area will be declared a Superfund site. Here are some of the issues of concern:

1. The groundwater within the backfilled mine pit is grossly polluted with heavy metals, and the groundwater is seeping through fractured bedrock directly into the Flambeau River. Not only did the company underestimate the amount of groundwater pollution that would occur within the backfilled mine pit, but the rate at which it would seep into the river. Take the example of manganese! Prior to mining, levels ranging from 30-290 mcg/l were measured in "deep Precambrian wells" at the mine site. Since the drinking water standard is 50 mcg/l, that meant some wells already exceeded the safety limit even before Kennecott crushed up the bedrock and pushed it into the unlined pit. Kennecott predicted at the time of the Master Hearing that levels would increase to 522 mcg/l within the backfilled pit. But guess what really happened! Levels of 42,000 mcg/l were measured in April 2005 in one of the wells (80 times higher than predicted) and will undoubtedly remain grossly elevated for centuries (levels bounced around in 2006, decreasing to 22,000 in January, increasing to 36,000 in July and decreasing to 23,000 in October 2006). By the way, high manganese intake from drinking water can cause nerve problems similar to those seen in Parkinson's disease.

2. Sediment, crayfish and walleye specimens collected in the Flambeau River downstream from the mine site already show higher levels of heavy metals than upstream samples, even though the mine has been closed for only ten years.

3. It appears that FMC may be positioning itself to try to avoid any discussion of groundwater and surface water issues at the contested hearing - and instead limit the scope of the hearing to above-the-ground issues (i.e., plant species, hiking trails, bird surveys). As Sandy Lyon put it, "That's a 'half COC'd plan,' and if the DNR goes along with it and allows Kennecott to declare ''Mission Accomplished,' the hearing will be nothing but a scam/sham." (We are checking into converting Sandy's statement into a cartoon that we hope to run in newspapers as a paid advertisement!)

4. FMC's annual reclamation reports make no mention of the various endangered species found at the site prior to mine construction. Were those species impacted by the mine?

5. The company has failed to monitor a naturally-occurring wetland located directly between the backfilled mine pit and Flambeau River for adverse impacts.

6. And the list goes on and on (see attached letter that contains comments I plan to send to the DNR - labeled as LFWrittenComments).

The DNR has put a March 22, 2007 deadline on submitting written comments to the department regarding Kennecott's COC (see attached notice from the DNR, labeled as DNR20070221), and a prehearing conference has been scheduled for Tuesday, April 17, 2007 at 1:00 PM in the County Board Room of the Rusk County Courthouse. The actual hearing, which will be conducted as a contested case, will likely be held in May.

So what can you do? There are three things:

1. Submit written comments to the DNR by the March 22nd deadline. At a minimum, would you be willing to write to the DNR and make the point that the hearing MUST include a discussion of groundwater and surface water quality issues? Here is where to send your letter:

Philip Fauble
Wisconsin DNR
Bureau of Waste and Materials Management
101 South Webster St.
PO Box 7921
Madison, WI 53707-7921

If anyone wants or needs additional information about any of the issues listed above or in the attached letter (labeled as LFWrittenComments), please contact me and I will try my best to get you whatever factual information you may need to back up your concerns. In addition, FMC's 2006 annual report (which contains groundwater data) and annual reclamation report (which contains "surface" data like plant, bird and butterfly surveys) is available on the internet at: http://www.flambeaumine.com (click on reports).

2. The Wisconsin Resources Protection Council, an organization that Al Gedicks and the Churchills founded in 1982 with the help of other concerned citizens (www.wrpc.net), has hired Attorney Glenn Stoddard of Eau Claire to represent its interests in the upcoming hearing. Any money you could contribute to help cover legal expenses, the cost to hire expert witnesses and/or paid advertisements to alert the public to what's happening would be greatly appreciated. If you wish to contribute, please make your check payable to WRPC and send it to Al at the following address:

Al Gedicks
210 Avon Street #4
La Crosse, WI 54603

3. Send this information around to people and distribute it widely on your environmental lists. This is especially important for the Michigan and Minnesota people. If Kennecott gets away with its "half COC'd plan" in Wisconsin, it will cause GREAT pain across the entire mining district.

Roscoe may no longer be here as our "lead goose," but the formation needs to stay intact and keep flying! Thanks for your help.

Sincerely,
Laura Furtman

Webster, WI 54893

* Roscoe Churchill, along with his wife Evelyn, was a founder of the movement against Rio Tinto's Flambeau Mine. His death in early February this year, was commemorated on the MAC website. See:

http://www.minesandcommunities.org/Action/press1361.htm


From: Laura Furtado
27426 County Road
Webster, WI 54893

To: Philip Fauble
Wisconsin Department of Natural Resources
Bureau of Waste and Materials Management
101 South Webster Street
PO Box 7921
Madison, WI 53707-7921

14th March 2007

Subject: Application of Flambeau Mining Company (FMC) for Issuance of a Certificate of Completion of Reclamation Case No. IH-07-05

Dear Mr. Fauble,

I am an “interested person” in the above stated subject and hereby submit my written comments regarding issues that I believe need to be addressed at the contested case hearing. I have a number of concerns, as listed below:

1. The DNR approved FMC’s Notice of Completion (NOC) for the Flambeau Mine reclamation in November 2001, which thereby started a mandatory minimum 4-year monitoring period before the DNR could consider issuing a COC. However, since November 2001 the following significant reclamation activities have been initiated and carried out at the mine site: a. November 2003 – FMC removed 4,120 cubic yards (7,510 tons) of contaminated railroad ballast from the mine site. b. November 2005 – FMC submitted a plan to the DNR for removing an estimated 1,200 cubic yards of contaminated soils from a 10,500 square yard area surrounding the buildings in the industrial outlot area at the mine site. The plan was carried out in 2006.

Since the above actions clearly constitute significant reclamation activities, it appears that the NOC was issued prematurely and that it is therefore premature for the department to consider issuing a COC at this time. Indeed, the four-year clock needs to be restarted.

2. According to WDNR staff, the assumption is that the identified contamination in 1-b above came from spillage or tracking of high-sulfide material by trucks that traveled between the pit, the ore loading area and the mine operation buildings. There are other areas of the mine site that experienced similar truck traffic yet have not been tested for contaminated soils. In light of the truly significant contamination of both soil and surface water runoff in the industrial outlot area, additional testing of similar traffic areas at the mine site needs to be done before a COC is granted. 3. FMC’s annual reclamation reports contain extensive information about the number of plant, bird and butterfly species presently observed at the mine site. However, no discussion of baseline data is included. Surely, in order to establish the effectiveness of FMC’s reclamation activities, such a discussion must occur before a COC is awarded. In other words, we must compare the “before” conditions to the “after” conditions to see what we really have here. In addition, the annual reclamation reports make no mention of any sort of reestablishment of reptile and amphibian populations at the mine site. Since these types of species are considered to be markers of environmental degradation, surely their presence or absence at the mine site must be addressed before a COC is awarded.

4. Several endangered or threatened species were observed at the mine site prior to the commencement of mining (purple wartyback clam, bullhead mussel, pygmy snaketail dragonfly, extra-striped snaketail dragonfly, St. Croix snaketail dragonfly, gilt darter, river redhorse, greater redhorse, wood turtle). Yet, I see no mention of any of these species in the company’s annual reclamation reports. Surely the reclamation of the Flambeau Mine mine site cannot be considered complete until the continued presence of these species has been confirmed.

5. As part of its revised reclamation plan approved by the DNR in July 1998, FMC created two so-called “biofilters” at the mine site. Surface water and sediment have been tested in one of them (the 0.9-acre pond next to the rail spur area), and significant levels of contaminants have been measured in not only the “biofilter” but the small creek (Stream-C) that conveys surface water from the “biofilter” to the Flambeau River. However, only limited surface water testing and absolutely no testing of sediment has occurred in the other “biofilter” (the 1.7-acre pond between the backfilled mine pit and Flambeau River). Nor has the channel connecting the 1.7-acre pond to the Flambeau River been evaluated for contaminants. Since this “biofilter” was designed to help manage contaminated surface water runoff from the reclaimed site, surely data must be gathered as to the effectiveness of the “biofilter” before a COC can be issued.

I might add that when evaluating the effectiveness of the 0.9-acre “biofilter” in trapping contaminants, FMC picked a “control” site for the surface water monitoring program that, by any scientific standard, would not qualify as a true control. This brings the credibility of any conclusions drawn by FMC regarding the surface water runoff monitoring program into question.

6. Even though by their very nature “biofilters” may periodically need to be dredged, no provisions for long-term maintenance of the two “biofilters” at the Flambeau Mine site were incorporated into FMC’s reclamation permit. Surely money must be retained from the reclamation bond to insure proper maintenance of the “biofilters” so that taxpayers are not stuck with the cost in the future.

7. The following groundwater issues need to be addressed and resolved before a COC is granted:
a. The DNR never established an intervention boundary for the Flambeau Mine site, despite the fact that NR 182.075(1)(c)3 (as enacted in 1982) clearly required the department to do so. As a result, compliance with Preventive Action Limits (PALs) has not been established. Surely a COC cannot be issued until a boundary is drawn and appropriate water samples tested to insure the State that reclamation was successful.
b. FMC grossly underestimated the amount of groundwater pollution that would occur within the backfilled pit and the rate of groundwater flow to the Flambeau River. Take the example of manganese! Prior to mining, levels ranging from 30-290 mcg/l were measured in "deep Precambrian wells" at the mine site. Since the drinking water standard is 50 mcg/l, that meant some wells already exceeded the safety limit even before Kennecott crushed up the bedrock and pushed it into the unlined pit. Kennecott predicted at the time of the Master Hearing that levels would increase to 522 mcg/l within the backfilled pit. But in reality, levels of 42,000 mcg/l were measured in April 2005 in one of the wells (80 times higher than predicted) and will undoubtedly remain grossly elevated for centuries (levels bounced around in 2006, decreasing to 22,000 in January, increasing to 36,000 in July and decreasing to 23,000 in October 2006). This is not to be taken lightly. High manganese intake from drinking water can cause nerve problems similar to those seen in Parkinson's disease. Surely, a COC cannot be issued when acid mine drainage problems of this magnitude have already been observed and the contaminated groundwater is headed straight toward the Flambeau River. Worse yet, a thorough evaluation of the ramifications for the river and downgradient drinking water supplies is currently lacking, as elaborated upon in 7-c and 7-d below.
c. Most of the Flambeau River monitoring programs that were put in place (sediment, crayfish and walleye) have already been terminated, despite the fact that worrisome trends had started to emerge. Even surface water testing is only being performed twice a year on a voluntary basis. Since problems with acid mine drainage can take decades to fully manifest, a COC must not be issued until further testing can prove the effectiveness of FMC’s reclamation activities (affecting surface water runoff into the Flambeau River and seepage of contaminated groundwater from the backfilled pit into the Flambeau River).
d. To date, only one nest of monitoring wells has been drilled along the entire length of the compliance boundary for the Flambeau Mine (estimated at 19,500 feet in length and encompassing an area of about 535 acres, nearly a square mile), and that nest is not even directly downgradient from the backfilled mine pit. Surely a COC cannot be issued until groundwater impacts are more fully evaluated.

8. Kennecott’s reclamation activities have thus far failed to restore the integrity of Stream-C, classified as a navigable water of the State of Wisconsin prior to development of the Flambeau Mine. Surely a COC cannot be granted until the company demonstrates a returned viability of the stream. Right now, the stream is basically dead and the water contaminated beyond surface water quality standards, presumably due to contaminated surface water runoff from the mine site and a failure on the part of FMC to reestablish the stream’s headwaters.

9. Naturally-occurring Wetland-11 (as shown in Figure 3-11 in the EIS) lies directly between the backfilled mine pit and the Flambeau River. Yet, FMC has reported no surface water quality data from the wetland to prove that reclamation activities have protected the wetland from adverse impacts. Surely because of the critical nature of this wetland as a buffer between the backfilled pit and Flambeau River, impacts on Wetland-11 must be evaluated before a COC is issued.

10. Only limited surface water testing (one sample from one location per year) and absolutely no sediment testing has been performed on the so-called “mitigation” wetland at the Flambeau Mine site. Since surface water runoff from the mine site enters that wetland, surely the water quality of the wetland must be evaluated to confirm the effectiveness of reclamation.

As you can see, I find numerous problems with the DNR’s granting of a COC to FMC at this time. In order to protect the interests of the State of Wisconsin and its taxpayers, a more thorough evaluation of the effectiveness of FMC’s reclamation activities must be undertaken.

Sincerely,

Laura Furtman

 

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