Tag Archives: Legal/Legislative

Eagle Rock Honored, Small Homeland Victories

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August 18, 2009

Contact: Michelle Halley, NWF – 906-361-0520

NWF and partners pleased with Eagle Rock protection, will appeal remainder of decision

MARQUETTE, MICH – Administrative Law Judge Richard Patterson announced today that he will uphold permits issued to Kennecott Eagle Minerals Company by the Michigan Department of Environmental Quality in 2007, with one critical exception that could nix the project or at the very least require a major overhaul of the mining plan. Nonetheless, the petitioners in the case will likely appeal the portions of the permits not struck down or modified. Attorneys say the contested case record provides a remarkably strong basis for appeal.

In his decision, Patterson recommended moving the mine’s portal, or entryway, from Eagle Rock, a sacred outcropping with spiritual importance to local Native American tribes. Patterson stated that Kennecott and the MDEQ “did not properly address the impact on the sacred rock outcrop known as Eagle Rock” and suggested moving the mine’s entry portal away from the rock.

Michelle Halley, attorney for the National Wildlife Federation, said “Kennecott has claimed for years that Eagle Rock is the only possible location for the mine’s portal. Without that option, this mine could be halted or, at the very least, require a complete overhaul of the mining plan. We are pleased that Eagle Rock will be protected, assuming MDEQ Director Steve Chester follows the judge’s recommendations on this issue.”

Patterson’s decision comes in the form of a recommendation to Chester. According to law, the parties in the case will have an opportunity to file exceptions to the judge’s recommendations by submitting a written document outlining those components with which they agree or disagree. Once Chester has received the exceptions, he will issue his final decision. Chester is not obligated to follow Patterson’s recommendations.

“While the protection of Eagle Rock is fantastic, it doesn’t address most of the technical deficiencies we outlined in the course of the contested case. Therefore we will almost certainly appeal the final agency decision should Director Chester adopt the judge’s recommendations on the remaining issues,” Halley stated.

The decision is the latest development in a series of legal challenges to prevent a foreign mining company with a deeply troubled environmental and human rights history from blasting a risky metallic sulfide mine beneath the Salmon Trout River in the central Upper Peninsula. Petitioners in the case are the Keweenaw Bay Indian Community, Huron Mountain Club, National Wildlife Federation and Yellow Dog Watershed Preserve.

In most areas, the judge’s recommendations failed to address issues that are important to protect workers and the environment. Halley, who said she is still reviewing all of the specifics of the decision, went on to say that NWF will address its concerns in written exceptions presented to the MDEQ and ultimately through appealing Chester’s final decision if it comes to that.

“We put on a solid case and created a factual record that will support appealing the remainder of the permit provisions that Judge Patterson left unaddressed. Many of those are too important to be overlooked and if they should remain unaddressed by Director Chester, we are prepared to appeal,” Halley stated.

“This ruling does not change our firm belief that the decision to permit this mine violates the law,” said Andy Buchsbaum, regional executive director of the National Wildlife Federation’s Great Lakes Regional Center. “We remain committed to protecting the people, economy and wildlife of Michigan from this risky type of mine that has proven deadly to rivers, streams and communities in other states.”

During oral arguments in the summer of 2008, NWF and its partners presented more than two dozen witnesses in a variety of technical disciplines. At the time, Halley remarked “the testimony in this case has done nothing but demonstrate Kennecott’s substandard job in preparing the application and the slipshod review by the DEQ. Testimony at the hearing from Kennecott, MDEQ and our experts proves time and time again that the proposed mine is unsafe for humans and the environment.”

Perhaps most stunning was the admission of MDEQ employee Joe Maki, leader of the mining review team that ultimately recommended approval of the mining permit. Asked under oath if he had applied mining law Part 632’s critical standard which states that the company must prove it will not pollute, impair, or destroy natural resources, Maki stated simply “I did not.” Asked if the mining review team had applied that standard, he said “I don’t believe so, no.”

Should MDEQ Director Chester act on Patterson’s recommendation regarding Eagle Rock, Kennecott will remain stymied and cannot conduct mining operations until a new mining plan is submitted and approved. In addition, the U.S. Environmental Protection Agency must still decide whether the company could obtain necessary federal permits.

Great Lakes United wins mining lawsuit

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The Canadian Federal Court decision requires Environment Canada to make the mining industry annually report the toxic waste accumulating in tailings ponds and waste rock piles.

John Jackson

Great Lakes United

Great Lakes United and Mining Watch Canada, with the legal assistance of Ecojustice, have won a court case, forcing Environment Canada to require the mining industry to annually report the toxic substances put into tailings ponds and waste rock piles to a public inventory. This means that approximately 20 metal mining facilities located on the Canadian side of the Great Lakes basin will have to report their waste. This court decision will allow us to more completely understand threats to the Great Lakes basin as a result of mining activities.

Ecojustice launched the suit in November, 2007 on behalf of Great Lakes United and Mining Watch Canada. On April 23 2009 the Canadian Federal Court issued an order requiring the federal government to immediately begin publicly reporting mining pollution data from 2006 onward to the National Pollutant Release Inventory (NPRI).

The strongly worded decision described the government’s decision-making pace as “glacial” and chastised the government for turning a “blind eye” to the issue and dragging its feet for “more than 16 years”.

In response to the Canadian Minister of the Environment’s failure to require reporting, the Honourable Mr. Justice Russell concluded, “the result is that the people of Canada do not have a national inventory of releases of pollutants that will allow them to assess the state of the Canadian environment and take whatever measures they feel are appropriate to protect the environment and facilitate the protection of human health.”

In contrast, since 1998, the U.S. government has required mining companies to report all pollutants under the Toxics Release Inventory (TRI), the U.S. equivalent of the NPRI. In 2005, the 72 mines in the U.S. reporting to the TRI released more than 500 million kilograms of toxic substances to mine tailings and waste rock. This accounted for 27% of all U.S. pollutants reported. The addition of the Canadian data will give us a more complete picture of the mining threat in the Great Lakes.

Toxics leak through tailings ponds walls and evaporate into the air on an ongoing basis. As climate change threatens to bring more frequent and increasingly intense storms, the potential for tailings ponds’ walls to collapse increases. This means toxic tailings rushing out into the environment and into the lakes. Such devastating collapses of tailings ponds have already occurred in Europe and in the coal mining area of the U.S.

The decision also means that the public will have to be told about the devastating toxic discharges to the massive tailings ponds created by mining the tar sands in Alberta.   The product of tar sands development—one of the largest industrial undertakings in the world—is being touted as the source of oil for proposed expansions of oil refineries throughout the Great Lakes in locations such as Superior, Wisconsin, Gary, Indiana, Detroit, and Sarnia.

Now that we will have knowledge on the toxic contents of these tailings ponds and rock piles on both sides of the Great Lakes basin, we will be more capable of pressuring for action to protect the Great Lakes from these threats.

Environment Canada has stated that they will move quickly to implement the judge’s decision.

jjackson@glu.org

To read the entire legal judgement, click on http://www.glu.org/en/node/293.

DEQ Holds Hearing on Rio Tinto’s Humboldt Mill Project; Comments Focus on Jobs and Water Quality

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by Gabriel Caplett

Humboldt, Michigan – While a blizzard raged in the eastern part of the county, about 100 citizens attended a Michigan Department of Environmental Quality (DEQ) hearing on a mining application for Kennecott-Rio Tinto’s proposed Humboldt Mill project. Comments were starkly divided between those citing perceived job creation as motivation for their support of the project and those concerned about the proposed Eagle Project and potential for water pollution and fugitive dust problems at the site.

The meeting contrasted sharply with hearings held on Rio Tinto’s proposed Eagle Project mine from 2006 to 2007. More than 400 attended one Eagle hearing, with over ninety-percent speaking in opposition to the project.

While not quite the inverse of the Eagle hearings—roughly sixty-percent of public comments were offered in support of the milling project and only about forty public comments were taken—the number in support greatly outnumbered detractors, partly due to the presence of mine company staff and generous amounts of heckling from much of the crowd.

To thunderous applause, one audience member disrupted Big Bay resident and Save the Wild UP (SWUP) director, Kristi Mill’s public comment. The man shouted that discussion of Rio Tinto’s Eagle Mine was “not relevant” to the Humboldt hearing. Moderator, James Collins, replied that Mills had time remaining for her comment and that discussion of Eagle was allowed because the two projects “are related”.

Mills had been questioning why the DEQ was using tax payer dollars to consider Rio Tinto’s Humboldt Mill application while the Eagle Project has been “deferred” indefinitely.

According to Marquette resident and part-time SWUP worker, Teresa Bertossi, “With numerous, unresolved issues revolving around approval of the Eagle Project and serious questions as to whether Rio Tinto will ever fully pursue the project at all, why the DEQ is even considering the Humboldt application at this time is baffling.”

Rio Tinto has had a rough few months.

The company has seen a dramatic reduction in its share value as metal prices have plummeted. Nickel, alone, has fallen from over $25 per pound roughly a year ago to less than $5 per pound today. Burdened with roughly $40 billion in debt, the company announced plans last week, to sell nearly one-fifth of the company to the Chinese government-run aluminum company, Chinalco, currently Rio Tinto’s largest shareholder. Kennecott is, currently, a wholly-owned subsidiary of London-based Rio Tinto.

Economy Main Issue at Hearing

A need for additional area employment and economic growth was, by far, the strongest theme during the hearing. Every comment in support of the project cited the need for more jobs without addressing the Humboldt application specifically. Although not a job creation agency, the DEQ was repeatedly urged to approve the project based on the potential for job creation and economic growth.

County commissioner Deb Pellow said that Rio Tinto’s project is “very important to the county’s overall economic diversification and well being.”

“DEQ: do your job and bring us these jobs,” urged Pellow.

Gerald Corkin, chairman of the Marquette County Board of Commissioners, said the mill project would “provide up to fifty to seventy full-time jobs [and] one-hundred to two-hundred construction jobs.”

“There’s the potential to have mining for another hundred years in the UP,” Corkin speculated.

Joe Derocha, Humboldt Township supervisor, said, “Mining was what raised us, brought us here today.”

“More businesses, more jobs, more people create more economic development,” said Derocha.

Tom Peterson, former Cleveland Cliffs Iron Company general manager and current president of Citizens for Responsible Mining offered his support for the project and represented the hearing’s only complaint coming from a Rio Tinto supporter.

“I did not want to see Kennecott do what they did down in Ladysmith at the Flambeau Mine and that is to high-grade a deposit and leave a lot of ore that could be mined,” said Peterson.

According to Jack Parker, former Rock Mechanics Director at the White Pine Mine, Rio Tinto has similar plans for the Eagle ore deposit. According to Parker, the company plans to leave much of the ore behind, taking only the richest available. Parker maintains that, since much of the ore is owned by the people of Michigan, mining only the high and mid-grades and leaving the rest is “not responsible mining”.

DEQ: “Mercury would likely be a major concern to the public” at Humboldt Mill

According to documents obtained through an open records request, the DEQ believes mercury discharges may be a serious issue at the mill site. Mercury is known to bioaccumulate in fish tissue and is considered a serious danger to public health. According to the DEQ, “There are no proven technologies to consistently achieve [a] low level…Mercury would likely be a major concern to the public and environmental groups.”

At the hearing, some local citizens expressed concerns regarding potential water contamination and fugitive dust control problems at the Humboldt Mill.

Robert Rivera, from Iron River, told the DEQ that he is opposed to Rio Tinto’s milling plans that could process ore currently being explored by Prime Meridian Resources, in Iron County, where he has lived most of his life.

“I grew up in a mining family, in a mining town a quarter of a mile from an abandoned and toxic mine site on the Iron River. It has been remediated and remediated again and it still leaches yellow boy,” said Rivera.

Ely Township resident and miner, Stephen Johnson, said that he lives along the Escanaba River. “Since the thirty years I’ve lived here I’ve seen the Middle Branch of the Escanaba deteriorate as a quality watershed,” Johnson said. “We used to have brook trout galore in it some thirty years ago and I’m not aware of anybody catching a brook trout down by my residency in the last fifteen years.”

Johnson commented on Callahan Mining’s Humboldt Mill application in the 1980s and said that he was “not really happy with the way, at that time, the DNR handled the situation. There were a lot of questions we asked that were never answered.”

“My major concern is here what is the DEQ going to do to ensure that the quality no longer deteriorates anymore and what are we doing to bring it back to the level that it was thirty years ago,” said Johnson.

Incomplete Application?

Only a handful of comments in opposition to Rio Tinto’s milling project highlighted concerns directly related to aspects of the company’s milling application.

Chuck Brumleve spoke on behalf of the Keweenaw Bay Indian Community and raised concerns regarding water inflow through bedrock surrounding the tailings pit. According to Brumleve, “the applicant seems to treat the pit as if it’s a sealed pool or container for sulfide tailings.”

“There is a whole body of current information by the Canadians and the [Environmental Protection Agency] that indicates surrounding rock considerations are the primary consideration in safe tailings disposal, which is not addressed by the applicant in this mining permit application,” said Brumleve.

Brumleve also addressed the need to clean-up existing mining contamination at White Pine, the Keweenaw Copper district and the Empire and Tilden mines before new mining projects are permitted.

Brumleve urged Rio Tinto supporters to “think of the next seven generations and not of your level of affluence here in today.”

Big Bay resident, Cynthia Pryor, raised concerns that construction plans for a protective berm were not included in the Humboldt application and that the plan lacks adequate contingency plans for such events as an “absolute berm failure”.

“It’s very difficult to give public comment on something that’s not included in the application,” said Pryor.

Defending the DEQ

Even the DEQ’s Office of Geological Survey Director, Hal Fitch, took his turn at the microphone to respond to this writer’s public comment on DEQ malfeasance regarding the handling of Rio Tinto’s Eagle Project application. Fitch also defended his role in forming a non-profit corporation with Kennecott and Bitterroot Resources while the Eagle Project application was under agency consideration.

The Northern Michigan Geologic Repository Association (NMGRA) was formed by the DEQ in 2007, with Fitch as president. Meetings were held in the DEQ’s Lansing office building and were attended by paid DEQ and DNR staff. Company representatives expressed an interest in utilizing federal and state grants to fund NMGRA projects.

In an October 2007 e-mail, Fitch acknowledged “that there would be a problem with a state agency forming a corporation” but “came up with an innovative way to address the problem: formation of a non-profit corporation that is not a part of any state agency, but in which OGS is a participating member.”

Hal Fitch resigned from the NMGRA’s board in Fall 2008.

At the Humboldt hearing, Fitch defended his actions: “To suggest that somehow I’m corrupt because I tried to organize a system where we could get the users to pay for something we’re mandated to do, I don’t think that’s very responsible.”

Fitch also defended the actions of DEQ employee Joe Maki, who testified under oath during a recent contested case hearing, that the DEQ did not follow a key provision in Michigan’s new metallic mining law:

“The applicant has the burden of establishing that the terms and conditions set forth in the permit application, mining, reclamation and environmental protection plan and environmental assessment will result in a mining operation that reasonably minimizes actual or potential adverse impacts on air, water and other natural resources and meets the requirements of this act.”

When questioned by a National Wildlife Federation attorney if either he or “the mining team” applied this key section of the new law to their analysis of the Eagle Project application, Maki responded, “I did not, no.”

At the Humboldt hearing, Fitch disagreed, saying, “Joe Maki did not say that we did not, that we disobeyed the law in processing the permit,” said Fitch.

Fitch was presented with a copy of Maki’s court transcript.

Rio Tinto is proposing to produce both nickel and copper concentrates at the Humboldt Mill that would “most likely” be shipped via rail to smelters in Canada. The waste material, containing heavy metals and acid-generating material, would be deposited underwater at the mill site, on top of Callahan’s tailings. The company plans to discharge treated wastewater into wetlands that feed into the middle branch of the Escanaba River.

According to the DEQ, the company must still apply for Air Use, Surface Water Discharge and Inland Lakes and Streams permits before the Humboldt Mill can be used again for mine processing. The DEQ expects to issue a proposed decision in “mid-April.” A new public hearing, addressing all of the required permits would follow.

Citizens are encouraged to send in written comments on the Humboldt Mill mining application. Comments are due to the DEQ by 5:00 pm on Wednesday, March 18.

Letters should be sent to:

Kennecott/Humboldt Mill Comments

DEQ Office of Geological Survey

PO Box 30256

Lansing, MI 48909

Or, by e-mail:

Deq-kennecott-humboldt-mill-comments@michigan.gov

Canada’s toxic mine tailings secret goes to court: Information on toxic pollution from mines being hidden from public

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TORONTO – Canada’s Federal Court heard a lawsuit case on Monday against the Minister of the Environment for failing to ensure that Canada’s mining industry publicly reports the hundreds of millions of kilograms of toxic pollution it generates each year.

The lawsuit was filed in Federal Court in late 2007 by Ecojustice (formerly Sierra Legal Defense Fund) on behalf of Mining Watch Canada and Great Lakes United. The Application for Judicial review alleges that the Minister broke the law when he directed mining companies to not report huge amounts of pollution sent to tailings ponds and waste rock piles to the National Pollutant Release Inventory (NPRI).

“We are arguing that the Minister has ignored his legal duties under the Canadian Environmental Protection Act to provide the public with the full extent of pollutants released by mining companies in Canada,” said Justin Duncan, Staff Lawyer with Ecojustice. “The Canadian public – and especially residents living downstream from mining operations – have the right to scrutinize the environmental and health hazards these mining companies continue to create”

In stark contrast, for more than a decade the U.S. government has required mining companies to report the amount of pollutants they release under the American equivalent of the NPRI, the U.S. Toxics Release Inventory (TRI).

In 2005, in the United States, mining operations represented less than one-half a percent of all industries reporting to the TRI; however, they accounted for 27% of all pollutants released – more than 530 million kilograms of toxic materials.

Pollution in the form of mine tailings and waste rock – the data being withheld from the Canadian public – accounted for more than 97% of the total pollutants reported by the U.S. mining industry.

“Given the enormous amounts of carcinogens and heavy metals like lead and mercury reported in U.S. mine tailings, it is absurd that Canadian mines are being let off the hook and not reporting this massive form of toxic pollution,” said MiningWatch Canada spokesman Jamie Kneen. “Whether you live in Smithers, British Columbia, Voisey’s Bay, Newfoundland and Labrador, or anywhere in between, Canadians have a right to know what poisons industry is releasing into our air, water, and soil.”

“There are at least 80 facilities across the country not reporting their tailings and waste rock pollution to the NPRI. If the U.S. figures are any indication, this could be many millions of kilograms of toxic pollution,” said John Jackson, Director of Clean Production and Toxics for Great Lakes United. “But, so long as the Minister of the Environment continues to direct the mining industry to break the law and conceal these figures, we’ll never know.”

For further information please visit www.ecojustce.ca or contact:

Justin Duncan or Marlene Cashin, Ecojustice (416) 368-7533 ext.22 or ext. 31 John Jackson, Great Lakes United, (519) 744-7503 or 519-591-7503 (cell) Jamie Kneen, MiningWatch Canada (613) 569-3439