-by Laura Gauger, Legal Affairs Coordinator, Wisconsin Resources Protection Council, October 30, 2013
Back in 2007 the Wisconsin Resources Protection Council (WRPC; Tomahawk, Wisconsin) embarked on a mission to hold Flambeau Mining Company (FMC) accountable for water pollution problems caused by the company’s Flambeau Mine near Ladysmith, Wisconsin. FMC, at one time managed by Kennecott Minerals (Salt Lake City, Utah) is a wholly owned subsidiary of Rio Tinto (London, UK).
This project was never just about us here in Wisconsin … it was about trying to help clean water advocates in the entire Great Lakes region and beyond protect their own waters from adverse impacts linked to sulfide mining operations.
As you know, the mining industry has held up the Flambeau Mine to YOU, the people of Minnesota, Michigan, Wisconsin, Alaska and who knows where else around the world as an example of “environmentally responsible mining” in efforts to convince you to “let them in” and mine in YOUR communities. Our lawsuit was meant to bring out the facts about the serious pollution problems at the Flambeau Mine site and thereby debunk the myth of the “environmentally responsible” Flambeau Mine and give you ammunition to use in your own battles.
We scored a partial victory in 2012, when we took FMC to federal court over violations of the Clean Water Act and the U.S. District Court for the Western District of Wisconsin ruled, among other things, that the company had indeed violated the Act on numerous counts at the Flambeau Mine site.
Unfortunately, however, FMC appealed the decision, and the U.S. Court of Appeals for the Seventh Circuit proceeded to let the mining company “off the hook.” The Court remained silent on whether or not FMC had violated the Clean Water Act. Instead, they ruled that the mining permit issued to FMC by the State of Wisconsin “shielded” the company from prosecution and that we therefore could not enforce the Clean Water Act against FMC (even though the company had indeed violated the Act, as determined by the U.S. District Court).
In the process, no one was held accountable for the fact that the Flambeau Mine has polluted a tributary of the Flambeau River to the point where theWisconsin Department of Natural Resources (DNR) has recommended to the United States Environmental Protection Agency (EPA) that the stream be listed as “impaired” for copper and zinc toxicity linked to the mining operation. And absolutely NOTHING has been done about the high levels of toxins (most notably manganese) in the groundwater at the mine site. You see, groundwater pollution at mine sites in Wisconsin has been legalized by the Wisconsin DNR and State Legislature (see NR 182.075, Wisconsin Administrative Code), so we could not argue that point in either state or federal court.
The latest twist is that FMC, owned by one of the wealthiest multinational mining corporations in the world (Rio Tinto), is “going after” WRPC, Laura Gauger and their fellow plaintiff (Center for Biological Diversity; Tucson, Arizona) to recover various “costs” the company accrued in the lawsuit … to the tune of $157,000.
Our lawyers are fighting the dollar amount demanded by FMC, but it appears we will be required to pay FMC/Rio Tinto many thousands of dollars.
MARQUETTE — On Thursday, a nonprofit corporation set up by Michigan Department of Environmental Quality (MDEQ) regulators and mining industry executives, the Northern Michigan Geologic Repository Association (NMGRA), will appear in Circuit Court in Marquette claiming that it is not a public body and therefore is not subject to public scrutiny under the Freedom of Information Act in response to requests for financial information.
In 2008 high-ranking State officials directly charged with enforcing mining safety and environmental regulations formed the Northern Michigan Geologic Repository Association as a ‘non-profit’ corporation while Rio Tinto was in the process of planning and constructing Eagle Mine. The NMGRA Board of Directors features Rio Tinto and Bitterroot Resources mining executives in addition to DEQ officials.
The Northern Michigan Geologic Repository Association is intended to fund and operate a “core shed” — a warehouse dedicated to storing mineral core samples which is a function of the Office of Geologic Survey according to Michigan law. As a nonprofit 501(c)3 organization, the contributions the Northern Michigan Geologic Repository received from individuals and corporations, including over $32,000 from Rio Tinto in 2012, are fully tax-deductible.
While Rio Tinto executives assisted in the formation of the NMGRA with state regulators, Rio Tinto constructed a 10 megawatt substation — 400% the power previously existing in Big Bay — to electrify a core shed adjacent to the Eagle Mine site. Once the power infrastructure had been installed, the core shed was removed, and Eagle Mine permit was granted a minor modification without due process or public participation.
Jana Mathieu, the attorney suing NMGRA to disclose their financial information said: “The murky facts surrounding the Northern Michigan Geologic Repository Association exemplify the need for the Freedom of Information Act and the purpose for which it was enacted: to shine a light on the actions of government officials which directly impact the citizens whom they purport to represent.”
Local attorney Michelle Halley, who challenged the Eagle Mine’s permits in court, says the public deserves to better understand the NMGRA’s funding. “The MDEQ’s partnership with corporations demonstrates its inappropriate relationship with the mining industry. The MDEQ’s motto of ‘the industry is our customer and we trust them’ is plain wrong. MDEQ’s job is to regulate the industry, not form partnerships with them — they’ve got it wrong, again,” said Halley.
“It can’t be overstressed how valuable these rock core samples are — to both the mining industry and the State of Michigan. The cores are key to understanding the safety of the proposed mine, the valuation of the proposed mine, and the toxic cocktail of heavy metals that will soon be raining down on Marquette County, when the mine’s exhaust vent stack begins spewing unfiltered mining dust into our clean air. Further, as the TWS is currently permitted, Eagle Mine will discharge over 500,000 gallons of water that will flow into the East Branch of the Salmon Trout River. That’s why, from the beginning, public access to information has been denied, and the core samples have been kept from scrutiny,” said Kathleen Heideman, Save the Wild U.P. vice president.
“The collaboration with mining executives for the creation of a non-profit in order to accomplish state mandates by a high level state of Michigan manager is classic regulatory capture: when an agency is captured to operate for the benefit of a private entity and no longer functions in the state’s best interests. We must end this regulatory fiasco,” said Jeffery Loman, former federal oil regulator and Keweenaw Bay Indian Community tribal member.
“I find it interesting that NMGRA would bring in the same high-powered downstate law firm on a simple Freedom of Information Act issue that Rio Tinto hired to run interference for the MDEQ in the Concerned Citizens of Big Bay’s administrative law case over the permitting of electric lines for Eagle Mine. It almost makes you think they have something to hide,” said Gene Champagne of Concerned Citizens of Big Bay, a grassroots group which has been active in monitoring regulatory oversight of Part 632, the legislation governing non-ferrous mining in Michigan.
“It’s in the best interests of Michigan taxpayers and workers that state regulators are doing their jobs of watching the mining industry, not holding hands with its executives. That is why we are also calling for a federal investigation of this so-called nonprofit,” said Margaret Comfort, president of Save the Wild U.P.
On June 8th, Save the Wild U.P. joined with Concerned Citizens of Big Bay and others calling for a federal corruption investigation of the mining industry and Michigan Department of Environmental Quality. Save the Wild U.P. is a grassroots environmental organization dedicated to the preservation of the Upper Peninsula of Michigan’s unique cultural and environmental resources.
Both Loman and Alexandra Thebert, executive director of Save the Wild U.P. agreed that “the decision to file the notice to sue was done after great circumspection and careful review of what is occurring at the Eagle Mine.”
“We seek to correct what is nothing short of a regulatory fiasco at the Eagle Mine. This is just the first step in a multifaceted plan to do that in full measure — we are also calling for a federal investigation of the relationship between State of Michigan regulators and the mining industry,” said Thebert.
“In order to protect our communities and environment, we must ensure that regulations are followed,” said Margaret Comfort, Save the Wild U.P. president. “Rio Tinto — and other mining companies — cannot operate outside the law.”
The 60-Day Notice to Sue was sent by certified mail Monday, June 24 at 2:00 p.m. EST. The notice went to the Acting Administrator of the EPA in Washington D.C., the EPA Region 5 Administrator in Chicago, the U.S. Attorney General, the Governor of Michigan, and Rio Tinto’s Eagle Mine President Adam Burley.
“The citizens of Michigan have consistently been denied access to information with regard to this so-called non-profit. Today we are pulling back the veil of secrecy,” explained attorney Jana Mathieu, who filed requests for information related to NMGRA which went unanswered.
Jeffery Loman, KBIC tribal member and former federal oil regulator, led the group on a walking tour of a large cinder block warehouse building located nearby, identified by signage as a “State Warehouse.” The property is actually leased by the nonprofit Northern Michigan Geologic Repository Association, and serves as its core shed, housing valuable core samples. Local workers report seeing only Rio TInto vehicles accessing the warehouse.
“This core shed symbolizes Rio Tinto’s end-run around Part 632, the legislation governing non-ferrous mining in Michigan,” said Loman.
“Something smells bad here. Why create a private non-profit to perform a function of the State of Michigan? The circumstances surrounding these dealings between State officials and mining companies look like a bad rash on this administration,” said Loman. “Sunshine is the best disinfectant. Hopefully Governor Snyder will agree.”
“This is a barrel of rotten apples,” said Mary Ellen Krieg, resident of Big Bay.
“As things stand, there’s no plan for any independent review of the quantity, content and grade of the ore removed at Eagle Mine. Essentially, that means the State is allowing Rio Tinto to self-report its income which serves as the bases for the taxes due the State. The DEQ’s Hal Fitch will just take Rio Tinto’s word for it, and in turn, Hal Fitch wants every taxpayer in Michigan to take his word for it,” explained Michelle Halley, an attorney based in Marquette.
“Great place for hiding something. It looks totally neglected. Here’s this big building covered with peeling paint, surrounded by invasive knapweed and erosion gullies — anyone driving by would assume it was a giant meth lab, not a top-secret core shed set up by mining executives and controlled by the Michigan DEQ,” says Gene Champagne of Concerned Citizens of Big Bay, a grassroots group which has been active in monitoring regulatory oversight of Part 632, the legislation governing non-ferrous mining in Michigan. “The more you look into this, the more it looks like either incompetence or fraud or even both.”
“There are serious concerns about the connections between the mining industry and the regulatory role of the state,” agrees Alexandra Thebert, Executive Director of Save the Wild U.P. “In the best interest of all Michiganders, we are calling for the Department of Justice to investigate.”
Save the Wild U.P. is a grassroots environmental organization dedicated to the preservation of the Upper Peninsula’s unique cultural and natural resources.
We want to hear from you — What would you say to Rio Tinto shareholders in London? Share your concerns in the “comments” section below and we’ll share your thoughts on our website, Facebook, and at shareholders meeting and protests in London.
Save the Wild U.P.’s executive director, Alexandra, will be heading to London to voice community opposition to Eagle Mine at Rio Tinto’s annual shareholders meeting. She will be the 10th person from the Upper Peninsula attending this meeting to highlight the hazards and risks of Eagle Mine to our community and show the shareholders that we won’t “Keep Calm and Carry On” in the face of sulfide mining.
Alexandra will join activists from around the world, including Colombia, Mongolia, and South Africa, to protest and highlight Rio Tinto’s wretched environmental and labor record. You can follow her trip on Twitter @SavetheWildUP, and on Facebook.
This is made possible by a special fund created by activists specifically for this trip and we are grateful for their support.
July 26, 2012
TRAVERSE CITY – A federal judge has refused to halt construction of a nickel and copper mine in northern Marquette County.
In an order signed Wednesday, Judge Robert Holmes Bell rejected a request by the private Huron Mountain Club to stop work on the mine while the club’s lawsuit works its way to trial.
The exclusive club owns about 19,000 acres of forestland in Marquette County, including an 11-mile stretch of the Salmon Trout River. In May, the club filed a suit claiming the mine would damage the river and nearby wetlands.
The mine’s name recently was changed from Kennecott Eagle Minerals Co. to Rio Tinto Eagle Mine.
State regulators and company officials say the mine can be operated safely. Drilling has begun and mineral production is expected to begin in 2014.
Court Rules Flambeau ‘Model Mine’ Violated Clean Water Act
The Flambeau Mine near Ladysmith, WI has a long history of controversy due, in part, to the proximity of the mine to the Flambeau River. This photo was taken in September 1994, when heavy rains caused flooding at the mine site.
State Officials Urged to ‘Learn from Flambeau’ and Stop Proposed Mega-Mines in Wisconsin, Minnesota and Michigan
A federal court ruled yesterday that Flambeau Mining Company (FMC) violated the Clean Water Act on numerous occasions by allowing pollution from its Flambeau Mine site, near Ladysmith, Wis., to enter the Flambeau River and a nearby tributary known as Stream C.
The lawsuit was filed early last year by the Wisconsin Resources Protection Council (WRPC), the Center for Biological Diversity, and Laura Gauger. The complaint charged that Flambeau Mining Company (a subsidiary of Kennecott Minerals Company / Rio Tinto) was violating the Clean Water Act by discharging stormwater runoff containing pollutants, including toxic metals like copper and zinc, from a detention basin known as a biofilter. Continue reading
Sides prepare for Wednesday hearing in U.S. District Court in Grand Rapids
June 4, 2012
MARQUETTE – Attorneys for three federal agencies and the Kennecott Eagle Minerals Co. have responded to claims made by the Huron Mountain Club in a federal lawsuit, which seeks a preliminary injunction to shut down development operations at Kennecott’s Eagle Mine in northwestern Marquette County. Continue reading
June 3, 2012
The time has come to seek the best available, and least disputable, science with regards to air quality monitoring for the Eagle Mine in northern Marquette County and any other hard rock (sulfide) mines that follow. Continue reading