Sulfide mining: the next step

by Cynthia Pryor

Even after the Department of Environmental Quality mistakenly made its final decision to grant the first ever metallic sulfide mining permit in the state of Michigan, a mining permit to Kennecott Eagle Minerals Company (KEMC), several avenues of oppositional recourse are available:

• Contested Case Proceedings
• State and Local Permits—additional requirements and/or challenges
• Federal Permits —additional requirements and/or challenges
• Judicial Action
• Other ‘What Ifs’

Under Part 632, Michigan’s Nonferrous Metallic Mining Regulations, “a person who is aggrieved by an order, action or inaction of the department by the issuance, denial, revocation or amendment of a mining permit under this part may file a petition with the department requesting a contested case hearing.”
A contested case hearing is handled by the state of Michigan’s Administrative Law process set up to handle grievances with the MDEQ/MDNR administrative processes. A petition must be made within sixty days of the order to be contested.
Also under Part 632, 324.63205 (14): “A mining permit is not effective until all other permits required under this act for the proposed mining operation are obtained.” There still is much dispute over what other permits are required by Kennecott.
For example, Kennecott has not applied for wetlands permits, even though they are necessary. While Kennecott’s models assert only a six-inch drawdown, other hydrological experts assert up to twelve feet of drawdown of the wetlands surrounding the Salmon Trout riparian corridor.
The MDNR has not yet issued a State Land Use Lease Permit in response to Kennecott’s lease application requesting the exclusive use of 120 acres of State public lands for surface mining facilities and portal to the underground mine. That decision is due January 10, 2008 at the next Natural Resources Commission meeting in Lansing.
The MDNR also has indicated that its permit will not become effective until any and all state and federal permits are obtained.
Additionally, before the lease would be issued, KEMC must answer MDNR’s request for additional information regarding several components of the proposed mining operation.
Currently, the Environmental Protection Agency (EPA) has indicated to Kennecott that at least one Underground Injection Control (UIC) permit is required for its water discharge arena.
The EPA has indicated that a letter of deficiency on Kennecott’s application is due out in early January. Until this permit is obtained, the MDNR lease permit will not become effective.
Additional federal permits also may be required.
Several groups are poised to pursue lawsuits on the mining, groundwater discharge and air applications.
Federal lawsuits may include the Threatened and Endangered Species Act, Clean Air and Clean Water Acts and any others that are applicable.
The biggest “what if?” is the fact that Kennecott’s parent company, Rio Tinto, is threatened by hostile takeover bids by BHP Billiton ($134 billion) and by the Government of China ($200 billion).
Rio Tinto’s portfolio is lucrative, and a takeover by BHP would make BHP the largest mining company in the world.
China is countering BHP’s bid in purchasing Rio Tinto so that commodities it seeks would be under their immediate control, rather than trading with large mining conglomerates.
Any takeover of Rio Tinto at this point should send a clear message to our state government that it would be dealing with a very shaky financial situation where the financial assurance and bonding of this proposed mine could be called into question.
A mine owned and operated by China in the heartland of the Upper Peninsula is a specter that could change the dynamics of this situation dramatically.
The DEQ permits are only part of the bigger picture. Once challenged, a fair-minded judge will agree they were illegally issued upon applications that have been faulty and incomplete from the beginning.
Please continue to send postcards and letters to DNR Director Rebecca Humphries in opposition to the DNR leasing state lands to Kennecott, at: Department of Natural Resources, Executive Division, Attention: Rebecca Humphries, Director, P.O. BOX 30028, Lansing, MI 48909.

—Cynthia Pryor

Editor’s Note: Pryor is the executive director of the Yellow Dog Watershed Preserve.

Stupak takes a stand

The Michigan Department of Environmental Quality (DEQ) announced Friday the approval of permits for a sulfide mine northwest of Marquette to be operated by Kennecott Minerals Company, a subsidiary of Rio Tinto.
The following statement may be attributed to Congressman Bart Stupak (D-Menominee): “I am disappointed DEQ has decided to approve permits for Kennecott’s sulfide mine in northwest Marquette County along the Yellow Dog River. Having had time to thoroughly review the information, there are a number of concerns I have which still need to be addressed.
“I am not opposed to mining. I remain very supportive of mining in the U.P. However, these permits represent the first time the state is allowing sulfide mining. State officials must take their time and make sure sulfide mining is safe. It is critical that comprehensive independent studies be completed before additional permits are issued.
“Once permitted, I am fearful as many as six additional sulfide mines will be allowed to operate on the shores of the Great Lakes, jeopardizing the world’s largest body of fresh water. DEQ has allowed their permits without requiring an Environmental Impact Statement to be completed. I also believe comprehensive baseline hydrological and geological studies should be conducted by an independent third party. While DEQ has, as I have advocated, required Kennecott to provide a financial assurance bond, I remain concerned that the negotiated agreement does not provide enough funding and does not cover a long-enough period to address potential contamination. Environmental damages often do not surface until years after a mine is out of operation and can be costly for local and state governments to clean up. Contaminated sites cost significantly more to clean up than the $17 million set aside for this project. With the seepage of kiln dust into Lake Michigan at Bay Harbor, CMS estimates $93 million will be needed to abate the environmental damage, and the groundwater leakage has not yet stopped. We must make sure the state and local community won’t be left with an expensive clean-up years down the road.
“I also have significant concerns, given the state of Michigan’s budgetary situation, that DEQ will not have adequate resources to ensure Kennecott is complying with all safety and environmental standards that it has promised to meet. The proposed sulfide mine will require well-trained inspectors to enforce air and water pollution control standards established in the permits. The Kennecott Company, rather than the taxpayers, should be responsible for providing the state with the funding needed for the inspectors.
“The Kennecott Company has yet to prove the sulfide mine will not degrade the community, watershed, air quality or ecology of the area. While the DEQ permits have been approved, additional permits are required by the U.S. Environmental Protection Agency and the Michigan Department of Natural Resources. I will continue to urge EPA and DNR to thoroughly review this proposed sulfide mine.”

DEQ sued for illegal permits
One week after a controversial decision by the Michigan DEQ to permit a sulfide mine in the central U.P., the National Wildlife Federation, Keweenaw Bay Indian Community, Huron Mountain Club and Yellow Dog Watershed Preserve filed a contested case petition and a lawsuit against the MDEQ as the first step in a legal challenge to halt the mine.
“The opponents of the mine have presented MDEQ with over 1,000 pages of unequivocal evidence that Kennecott’s proposed sulfide mine does not meet the state’s legal requirements and would result in profound pollution, impairment and destruction of air, water and other natural resources,” said Michelle Halley, attorney for NWF and the other co-petitioners. “The MDEQ has issued permits that are based upon defective, inadequate and incomplete applications and are therefore illegal.”
The MDEQ granted approval of all three permits to Kennecott Eagle Minerals Company on December 14. The contested case and lawsuit will focus directly on Michigan’s new nonferrous metallic mining law and the MDEQ’s failure to enforce the law, prescribed standards and rules.
“Opponents of the mine have consistently fought the project because the construction and operation of the mine, as proposed, will result in the pollution of the environment and the destruction of natural resources in the Yellow Dog Plains due to scientific and engineering defects in the design of the mine,” Halley said.
She cited subsidence, probability of acid mine drainage, irreversible impact of wetlands drawdown and pollution of the groundwater and the air as challenges.
While legal action to challenge the mine’s safety and environmental impact has long been an option for opponents, Halley said a telling announcement this week by Kennecott’s parent company, Rio Tinto, fortified the resolve of the opposition. In the December 17 announcement, a Rio Tinto official said the company is focused on six additional prospects in the region.
“Whether they knew or not, the MDEQ and the Governor have egg on their faces. Let’s hope Rebecca Humphries puts an end, at least, to the notion of letting Kennecott use state-owned land as its pollution receptacle,” Halley said.
On January 10, Humphries is expected to announce her decision on a Kennecott request to lease state land for the purpose of constructing surface facilities. If allowed by the DNR, Kennecott would be granted exclusive use of 120 acres of state property for a period of at least forty years.



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