To whom it may concern:

The primary use of the proposed road is the hauling of ore by Rio Tinto from the Eagle mine that is now in the final stages of construction. But for the construction of the Eagle mine – there would be no proposed road project. I hope agency officials accept this reality despite all of the other misguided suggestions that there are other substantial uses of this proposed road. To do otherwise lacks common sense. It is a fact and extremely troubling, that despite its many years of involvement in these mining activities the U.S. Environmental Protection Agency (EPA) does not have in its possession the results of a comprehensive chemical analysis of a representative sample of the cores that Rio Tinto obtained to define the Eagle ore body. If EPA did – it would know for example, that there is a high possibility that Rio Tinto will eventually mine uranium and process uranium containing ore at the Humboldt mill. The record clearly demonstrates that former Governor Jennifer Granholm directed her staff to obtain agreement status from the Nuclear Regulatory Commission at the same time Rio Tinto informed the State of Michigan it intended to construct a mine in Marquette County. This status would allow the state to regulate, among other things – uranium mining. EPA should be aware that there are numerous other nickel/copper mines that turned to uranium extraction and yellow cake production shortly after they started operating. According to geological survey results there are likely economically viable quantities if uranium trioxide (U3O8) and other uranium containing substances in the Eagle ore body. The economic viability comes primarily as a result of the recent sharp increase in the price of uranium – an ore where only 20% of what is used in the United States is produced domestically. It is also a fact that Rio Tinto encouraged the State of Michigan to take many other steps that would minimize regulatory oversight by federal agencies who, unlike the State of Michigan, have a trust responsibility to Indians. As you are aware, Michigan and only one other state has been delegated Section 404 authority under the Clean Water Act – the primary issue giving rise to EPA’s involvement in this matter. Communication between Rio Tinto and Michigan officials make clear that the primary reason this delegation was obtained was to put Michigan in a dominate role for overseeing every activity Rio Tinto intends to carry out as it furthers its resource extraction objectives. During the drafting of Michigan’s non-ferrous metals mining law (Part 632) the U.S. EPA properly expressed a number of concerns with the process, including deficiencies in financial responsibility assurances and the complete lack of any restriction as to the future location of mines. Michigan ignored these concerns and adopted mining regulations that have all but eliminated federal oversight and are inconsistent with federal law. Now EPA has a decision to make with respect to the transportation of ore from the mine to the mill. But EPA has absolutely nothing in its possession to inform itself as to what is even in the ore with respect to hazardous substances.

I am a member of the Keweenaw Bay Indian Community (KBIC) and in that capacity I have the right to hunt, fish and gather over every inch of the land where this proposed road would be located. This land was ceded to the United States by my ancestors when they signed treaties obtaining these rights. Furthermore, my family has property and homes near the area and we depend on drinking water from the nearby aquifer. EPA – as the predominant trustee for the protection of treaty trust resources that appertain to KBIC must discharge its authorities with the level of discretion that is fully protective of treaty resources and my right to hunt, fish and gather or face substantial legal risk in the context of a breach of trust. If and when the day comes, and it will if EPA fails to act properly, we are standing before a Federal Court with EPA appropriately at the defendant’s table, what will EPA say to demonstrate to the Court that it acted properly? How can EPA assert that it knew exactly what level of risk to tribal trust resources comes from hauling millions of tons of ore across miles of our ceded territory? EPA can’t make this claim when it didn’t have one shred of documentation demonstrating that it knew what contaminants were present in the ore. How can EPA reconcile that it is a suppose to be a “regulator” and continue to operate without the most basic fundamental information at issue – the contaminants of concern that will travel across an area where our prime subsistence hunting and fishing occurs and an area where we obtain medicinal roots, bark and plants to cure our sick people?

To summarize EPA’s involvement in Rio Tinto’s mining objectives in the Upper Peninsula of Michigan – EPA has sat idle while the State of Michigan adopted a new mining law that is inconsistent with federal law and ignored substantial concerns that EPA shared with the state. The failed Part 632 process resulted in the placement of the mine portal into a traditional cultural property that is highly important to Indian people, including myself, for the purpose of spiritual practices. The ability to practice spiritual activities there is now gone – possibly forever. Had EPA not allowed the State of Michigan to ignore its concerns with provisions of Michigan’s new mining law this could have been easily avoided by having a basic restriction on locating mines at Indian traditional cultural properties. It is a fact that Rio Tinto could have easily located the mine portal elsewhere – such as over the ore body which is the case for almost all other mines. You should know that internal communication within Rio Tinto indicate that the only reason they selected Eagle Rock as the location for the mine portal was to take the focus off the real problem – which is water pollution. It is a fact that most people in the Upper Peninsula of Michigan place great value on clean water and especially Lake Superior. But few appreciate a “spiritual rock”. I would point out that no Court is likely to accept that EPA couldn’t have been aware of this communication when a citizen – tribal member obtained it and has presented it to the Court. It is a fact that the trustee has a greater duty to protect the trust than the beneficiary themselves. Additionally, because the State of Michigan hasn’t fully informed itself as to the full possibilities of potential contaminants of concern, EPA has failed to properly oversee the State’s issuance of a National Pollution Discharge Elimination System (NPDES) permit at the Humboldt mill. And more importantly, it is a fact that EPA spent considerable time and resources incorrectly demanding that Rio Tinto obtain an Underground Injection Control (UIC) permit under the Safe Drinking Water Act (SDWA) for the discharges from the treated water infiltration system (TWIS) at the Eagle mine. This assertion is supported by EPA’s ultimate withdrawal of the UIC permit requirement. But EPA has failed to reconcile that these discharges are by everyone’s estimation – not subsurface in nature, will vent to the surface a short distance from the Eagle mine, and will flow directly into the East Branch of the Salmon Trout River. The TWIS is clearly a discrete conveyance and these discharges, once entering waters of the United States – will do so in direct violation of the Clean Water Act and give rise to additional legal challenges that EPA will ultimately face.

EPA now an opportunity to redeem itself after a litany of missteps and find that the proposed County Road 595 project is both unnecessary and unreasonably harmful to treaty trust resources that appertain to KBIC. With half of the wetlands in the United States and an even larger percentage in Michigan and within our ceded territories destroyed forever – what level of discretion is expected of a trustee for these resources under the law? Please ask yourselves this fundamental question before you make your decision. This is your duty and it involves loyalty and honesty to your Indian beneficiaries. This isn’t just some concept that was harkened to during your lessons on responsibilities to tribes – it is the law. EPA must now start to behave in the manner required of both a regulator and a trustee acting for the President who has made his expectations abundantly clear here. I know that during your public hearing you received comments in support of the proposed road from elected officials, some with great power who have the ability to do things like cut EPA’s budget. I would suggest that EPA ignore these Rio Tinto handmaidens and focus squarely on its duties and responsibilities. To do otherwise will only give rise to the mounting support of other powerful politicians who seek to eliminate the EPA altogether. Rest assured that if EPA fails to protect the environment you will see your strongest advocates – such as myself, joining those who would abolish your agency completely. Please discharge your authorities accordingly.

Thank you for the opportunity to comment. Please feel free to contact me if you have any questions.

Jeffery Loman
PO Box 244456
Anchorage, AK 99524
907 720-8680