Wednesday, June 27, 2012

National Wildlife Federation releases report comparing sulfide mining regulation in Great Lakes region

By Michele Bourdieu

MARQUETTE -- National Wildlife Federation (NWF) Attorney and Senior Manager F. Michelle Halley recently released a report titled "Sulfide Mining Regulation in the Great Lakes Region: A Comparative Analysis of Regulation in Michigan, Minnesota, Wisconsin and Ontario."

At a meeting preceding the Lake Superior Binational Forum meeting, "Mining Impacts and Lake Superior: A Basinwide Approach," in Ashland, Wis., last March, National Wildlife Federation (NWF) Attorney and Senior Manager F. Michelle Halley presents a summary of a recent NWF report on sulfide mining. The full report was published in March. (Photo by Keweenaw Now)

Halley, who edited the report, writes, "Water is the most important natural resource in the Lake Superior basin and the long-term value of fresh water far outstrips that of any mineral or any mine. Sulfide mining is well known for its negative impact on water. This report's analysis and the subsequent recommendations offer proactive steps to protect the water, people, and traditions of the Great Lakes Basin."*

Halley hosted a Webinar on the report on June 21, 2012. Before that, she presented a summary of the report at a meeting in Ashland, Wis., preceding the March 23, 2012, Lake Superior Binational Forum meeting, "Mining Impacts and Lake Superior: A Basinwide Approach."

In both presentations Halley emphasized the poor quality of sulfide mining regulation in all three states and Ontario.

"The neighboring states of Michigan, Wisconsin, and Minnesota, as well as the province of Ontario, operate independently of one another when it comes to permitting, regulating, and monitoring prospective mines," Halley says. "And yet water is not constrained by state borders and neither are pollutants. The environmental impacts of sulfide mining in one of these jurisdictions may reach well beyond its border. Federal oversight of permitting and monitoring new mines is severely limited, but sorely needed."*

Halley noted in the Webinar the names and locations of several sulfide mines in Michigan and Minnesota that are receiving permits or in the process of applying for permits to mine copper, nickel, gold and other metals whose recent increased demand and value has attracted multinational mining companies to the Great Lakes Region. She mentioned two Michigan mines that have already received permits from the Michigan Department of Environmental Quality: Rio Tinto's Eagle Mine near Big Bay, Michigan -- already permitted and now under construction with mining projected to begin in 2014 -- and the Orvana Copperwood project located near the Porcupine Mountains State Park, only a few miles from Lake Superior, which recently received a Michigan Part 632 mining permit and is now applying for a wetlands permit (Part 303) and Inland Lakes and Streams permit (Part 301) and the air permit-to-install. A public hearing on these permits is scheduled for this Thursday, June 28, at Gogebic Community College in Ironwood.**

This map shows locations of proposed mines and potential deposit areas, some under exploration, in the Lake Superior Basin, as well as national parks, national forests and tribal lands. Click on map for larger version. (Map courtesy National Wildlife Federation)

A third project, Aquila's Back Forty near Menominee, Mich., Halley said, could be submitting a permit application this summer. In Minnesota, several areas are being explored and the North Met (Polymet) project may be the closest to being permitted. Right now they are revising their Environmental Impact Assessment (EIA). In Wisconsin, Gogebic Taconite recently withdrew their project to mine the Penokee Hills with an open-pit mine that was connected to a failed move by the Wisconsin legislature to change the mining law; but changes in that law may still be forthcoming, Halley noted.

Halley also mentioned two mines impacting Native American reservations in the West. Impacts from the Zortman and Landusky open-pit gold mines in Montana included a 50,000-gallon cyanide spill, pollution of public water systems, poisoned fish and wildlife and contaminated Native American sacred sites. Pollution from the Silver Valley mines in Idaho's Coeur d’Alene River Basin, adjacent to the Coeur d'Alene Reservation, resulted in a 21-square-mile Superfund site and more than a billion dollars in damage.

This aerial photo of Rio Tinto-Kennecott's Eagle Mine near Big Bay, Michigan, shows Eagle Rock, an Anishinaabe sacred site, at right, which is now surrounded by the mining company's fence and is penetrated, at lower right, by the portal to the mine. Michelle Halley, representing NWF, has joined with tribal representatives in contested case litigation against Kennecott and the Michigan Department of Environmental Quality that permitted the mine. In NWF's recent Webinar, Halley compared contamination of sacred Native American sites by mines in the West to this contamination of Eagle Rock. (Photo © and courtesy Jeremiah Eagle Eye. Reprinted with permission.)

Halley said she gave these examples just to point out that mines -- even what are considered "modern" mines -- can and do have very serious impacts on watersheds and may affect large areas of land.

Potential regulators of mining, she added, include tribes, local governments, state agencies and federal agencies.

"Tribes can be regulators," Halley said. "They can institute on reservations regulation -- It's normally called a TAS (Treatment as a State). That means that tribes can set their own water quality standards and air standards."

These regulations can apply to activities on the reservation and also activities off the reservation if they impact the reservation, she explained. Tribes have to go through a process with the federal government to obtain TAS status.

In a May 10, 2012, NWF press release on the report, Jordan Lubetkin notes, "Sulfide Mining Regulation in the Great Lakes Region also reviewed the role of tribal governments in the permitting process and found that jurisdictions failed to consider tribal perspectives or have denied meaningful tribal input into decision making. This is despite the fact that tribal entities have substantial land holdings and treaty rights across the Upper Great Lakes region."***

Local governments can be regulators as long as their regulations do not duplicate or conflict with state regulations, Halley explained. She encouraged representatives of local government to get involved in regulation.

NWF report ranks mining regulation in three states, Ontario 

This NWF report looks at three Great Lakes states and the province of Ontario as regulators. It compares these states in five areas: Regulatory Scope (what the state law says about what the agency should be doing), the Review Process (how thoroughly it is done), Enforcement, Program Resources (whether the agency has resources to monitor adequately), and Reporting and Official Statements (how monitoring information gets out to the public).

The research for the report included taking in all the info they could about these five areas in the whole region, surveying the laws, interviewing regulators from each of the states (and Ontario) and interviewing non-governmental groups.

"We really tried to get a broad view of how people view what's happening," Halley said.

Since Halley is involved in ongoing litigation related to Michigan laws, she felt it was inappropriate for her to conduct research for Michigan so NWF hired a temporary person to conduct the primary research for Michigan so it would be more objective. EcoJustice Canada did the Ontario research and rankings for Canada.

The rankings in the five categories were Good (little room for improvement), Fair (adequate or nearly adequate, but room for improvement) and Poor (failure to fulfill any or most of criteria for the category).

The report gives this summary of the rankings:

MICHIGAN: FAIR for two categories: Regulatory Scope and Reporting and Official Statements; POOR for the other three categories.

The report states, "Overall, Michigan lacks significant requirements for adequate regulation. Its laws are adequate, while acknowledging some major weaknesses like the lack of any siting requirements. Michigan’s largest weaknesses are Review Process (lack of stringent review of permit applications) and Enforcement. The failure in these areas is fueled by the lack of adequate Program Resources." (See pp. 6-7 of report for more detail on Michigan's rankings.)*

MINNESOTA: FAIR in all five categories.

"The law is adequate, but economic considerations appear to be a growing force resulting in legislative and policy changes designed not for environmental protections, but economic development," the report states.*

WISCONSIN: GOOD in two categories: Enforcement and Reporting and Official Statements; FAIR in the other three categories.

The report summarizes Wisconsin's enforcement thus: "The enforcement authority granted to Wisconsin’s DNR and to the public is the most extensive of any jurisdiction surveyed. It is marked not only by multiple opportunities and mandates for state enforcement actions, but also by open access for citizen participation in state enforcement actions and even direct citizen lawsuits against violators of the mining law. The one deficiency in this assessment category is the lack of a systematic monitoring scheme for the state to independently inspect and evaluate mining and reclamation activities."*

ONTARIO: FAIR/POOR in Regulatory Scope; FAIR in Enforcement and in Reporting and Official Statements; POOR in Review Process and in Program Resources.

"Ontario is in dire need of improving its laws (underway) and review processes. Of the upper Great Lakes region, Ontario is far and away the least equipped jurisdiction to regulate and facilitate public involvement in the establishment of new mines," notes the NWF report.*

"None of the states are adequately prepared to regulate this activity," Halley said. "At this point in Ontario the companies don't even need to obtain a mining permit at all."

During the Webinar, Halley did not address Ontario's issues in detail. She said she knew some people in Canada are working hard to address them. Halley noted the report's recommendations for all three U.S. states and some recommendations for individual states' issues.

Recommendations in common for the three states are these:
  • Improvement in coordinating the efforts of the agencies responsible for different aspects of permitting, monitoring and enforcement of a mining project. "In some cases there's very little communication going on among those agencies," Halley said. 
  • State or federally-conducted independent monitoring should be done regularly and be funded by the permittee.
  • Tribes should have meaningful involvement in permitting and monitoring on the basis of being sovereign nations. Consulting with tribes is not enough. Information from tribes should be incorporated into agencies' decision-making.
  • Mine plans should include such goals as workers' safety, long-term viability of the mine, economic plans for long-term community health, reasonable taxation, community priorities such as zoning, etc.
  • Laws should require that public funds not be committed to a project that has not completed and passed environmental review.
  • Penalties, royalties and fees should be used for regulation and remediation of nonferrous metallic mining -- not for other purposes.
Halley summarized these recommendations for Michigan:
  1. Exploratory activity should be regulated and better monitored.
  2. Environmental assessment should not be done by the applicant alone, but by the state. 
  3. Lack of siting criteria is a major shortcoming. "As of right now, there is no place in Michigan -- no matter how unique, how pristine, how highly valued by the public -- that is not open to mining," Halley noted. "It's a serious -- probably the most critical -- shortcoming in Michigan's laws from a wildlife perspective."
  4. At present, very long, cumbersome legal cases are needed to challenge a state's lack of enforcement. "Citizens should be allowed to initiate civil enforcement actions if the state is not taking sufficient action," said Halley, who has been involved in a lengthy legal case against Kennecott and the MDEQ concerning the Eagle Mine. 
Loopholes in Clean Water Act

Under federal enforcement, Halley pointed out that loopholes in the Clean Water Act (CWA) -- one of the Environmental Protection Agency's strongest tools -- allow waste materials from mines to be dumped into surface waters of the United States.

The original goals of CWA (in 1971), Halley noted, were "to restore and maintain the chemical, physical and biological integrity of the waters of the US and to eliminate the discharge of pollutants into the waters of the US."

The use of any of river, stream or ocean as a waste treatment system was unacceptable.

In the mid-70s the EPA determined a zero discharge standard for some categories of mines was reachable and it was instituted, Halley added.

"If these same standards were still enforced today, the limitations would prohibit the hard rock mines from storing their untreated waste in waters of the United States," Halley said.

The first loophole is this: For about the last 20 years, agencies' rule changes determined that waste treatment systems are not waters of the U.S., Halley explained. This allows mines to impound rivers, streams, lakes, wetlands and dump untreated waste into the impoundments since they are not considered waters of the U.S. While the law originally applied to man-made waters, the interpretation changed in the 1990s and refers to other waters, not necessarily man-made.

During her presentation on the NWF report in Ashland, Wis., Michelle Halley points out the first loophole in the Clean Water Act, which allows mines to dump untreated waste into waters of the U.S. by impounding rivers, streams, lakes and wetlands. Click on photo for larger version. (Photo by Keweenaw Now)

The second loophole concerns the definition of fill, which allows toxic mining waste to be treated as fill and dumped into waters.

With this slide, Michelle Halley explains how the 2002 CWA definition of "fill" allows mining companies to dump toxic waste into waters of the United States. Click on photo for larger version. (Photo by Keweenaw Now)

According to Halley, simple rule changes could close these two loopholes in the Clean Water Act: First, agencies could go back to the original interpretation of a waste treatment system and allow waste disposal only in manmade waters. Second, agencies could revise the definition of "fill" to exclude waste disposal.

Those changes would make federal government's ability to regulate mining waste "astronomically" better than it is now, Halley concluded.

Lubetkin's article cites Tony Turrini, senior counsel at the National Wildlife Federation, on the role of the federal government in protecting waters of the Great Lakes region:
"'Where the states fall short of protecting the Great Lakes, the EPA should close the gaps,' said Turrini. 'But, it is not. In fact, EPA needs to fix loopholes in its rules that allow the dumping of millions of tons of mine waste into surface water.'"***

Lubetkin also cites reactions to the report from environmental leaders in Michigan, Minnesota, Wisconsin and Canada -- among them Chuck Brumleve, mining specialist for the Keweenaw Bay Indian Community; Brad Garmon, director of conservation and emerging issues at the Michigan Environmental Council; Scott Strand, executive director of the Minnesota Center for Environmental Advocacy, who expressed concern about a potential mining project near the Boundary Waters Canoe Area; George Myer, executive director of the Wisconsin Wildlife Federation; and Anastasia Lintner, staff lawyer with Ecojustice Canada.***

In conclusion, Halley said greater federal oversight is necessary to provide consistency across jurisdictions, assess cumulative basin-wide impacts, facilitate inter-agency coordinated review and monitoring, and provide much-needed technical resources.

The report calls especially for improvement in regulatory scope and enforcement at state, federal and provincial levels.


* Click here for Michelle Halley's May 4, 2012, article introducing the NWF report on sulfide mining.  Click here to to download the full report, "Sulfide Mining Regulation in the Great Lakes Region: A Comparative Analysis of Regulation in Michigan, Minnesota, Wisconsin and Ontario."

** Click here for our announcement about the June 28 hearing on the Orvana Copperwood Project.

*** Click here for Jordan Lubetkin's article on the NWF report.

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