Saturday, January 19, 2013

DEQ still accepting comments on Orvana Copperwood wetlands, inland lakes, streams permit

By Michele Bourdieu (Video updated; please see below.)

This map shows location of the proposed Orvana Copperwood mine in Gogebic County, between the Presque Isle and Black rivers and west of Porcupine Mountains Wilderness State Park, near the shore of Lake Superior. Click here for a location map from the Orvana wetlands, inland lakes and streams permit application to the Department of Environmental Quality, now under review.  (Map courtesy Keweenaw Bay Indian Community)

MARQUETTE -- The Michigan Department of Environmental Quality (DEQ) is still reviewing the Orvana Copperwood mining project's application for a wetlands, inland lakes and streams permit (Part 301/303) and, at the same time, adding conditions to Orvana's Part 632 mining permit -- because of public comments received in December 2012.

A Dec. 21, 2012, letter from Steve Casey, Michigan DEQ Upper Peninsula District Supervisor, Water Resources Division, to concerned citizens who submitted comments by the Dec. 18, 2012, deadline, acknowledged more time was needed to allow comments and to allow the DEQ to review the application in the light of supplemental information.

At the June 28, 2012, public hearing on air and water quality permits for the Orvana Resources Copperwood mining project, held at Gogebic Community College, Steve Casey, right, Michigan DEQ Upper Peninsula District Supervisor, Water Resources Division, and James Caron, Water Resources Division decision maker for the Parts 301 and 303 permit, invite the public to make comments. (Keweenaw Now file photo)*

"We will consider all comments that we receive prior to making a decision on this application," Casey wrote in this letter.  "We do not expect to make a decision until January 21, at the soonest."

Since Jan. 21 is a holiday (Martin Luther King Day), comments received on Jan. 22, and possibly after that date, would still be considered, Casey noted in a Jan. 16 telephone conversation with Keweenaw Now. Casey said he had not received any additional letters after Dec. 18, despite the indefinite extension of the comment period, other than a letter addressed to the Environmental Protection Agency (USEPA) from the U.S. Fish and Wildlife Service (USFWS).

U.S. Fish and Wildlife Service comments on Orvana's revised permit application

The USFWS letter, sent on Jan. 11, 2013, to Melanie Haveman, USEPA Wetlands and Watersheds Branch, Region 5 in Chicago, is a follow-up to the USFWS Aug. 13, 2012, letter commenting on the original permit application, which was re-submitted to the DEQ with some changes on Nov. 26, 2012.

In their Jan. 11 letter, USFWS acknowledges that the new application has addressed some, but not all of their concerns: "The applicant has adequately addressed our concerns regarding their alternatives analysis, removal of waste rock, potential impacts to Canada lynx, risk of contaminant exposure to migratory birds, and the adequacy of stream mitigation; however we still have several outstanding concerns," the letter states.

Since the Gogebic Range Water Authority (GRWA) recently withdrew their permit application (to the U.S. Army Corps of Engineers) to install and operate a water intake structure from Lake Superior and decided to look for a groundwater or other source, USFWS notes the following: "If the applicant is proposing to acquire process water from groundwater or other locations, the potential impacts of the water withdrawal to existing wetlands and aquatic habitats should be addressed."

Randy Scott, GRWA engineer, recently told Keweenaw Now that one reason they withdrew that application for water intake from Lake Superior was that, as they got into the design of the water intake structure, the costs began to escalate from about $7 million to $9 million for construction and maintenance -- and the marine contractors were worried about risks involved with working in the lake.

Lake Superior shoreline near the site of the proposed Orvana Copperwood mine. Plans by the Gogebic Range Water Authority to construct a water intake structure to withdraw water from Lake Superior for the mine and local communities were abandoned because of high cost and safety concerns. (Photo © and courtesy Jessica Koski)

"We started paying more attention to groundwater," Scott said. "There might be groundwater capability."

He said they are investigating that possibility, but real work would have to wait until spring. The water supply need would be about 350 to 400 gallons per minute. The location would be halfway between Wakefield and the mine site, west of CR 519. GRWA has subcontracted the hydrogeology work to Boulder Associates. Groundwater is regulated by the DEQ rather than the U.S. Army Corps, Scott noted.

The Jan. 11 USFWS letter also asks that the applicant develop a detailed plan to monitor for and prevent the spread of non-native invasive species.

"Monitoring for the spread of invasive species is critical to preserving the natural communities surrounding the proposed project," the letter states. "The applicant provides measures within their wetland mitigation monitoring plan to monitor for non-native invasive species. However, the applicant fails to provide any specific details on how non-native invasive species will be monitored throughout the proposed project area."

In addition, USFWS reiterates their concern about impacts to migratory bird habitat: "We also recommend the applicant minimize their impacts to migratory bird habitat by avoiding clearing habitat between April 15 and August 15."

An eagle near the site of the proposed Copperwood mine. In her Dec. 18, 2012, letter to Steve Casey, Margaret Comfort of Marquette County asks, "Can you GUARANTEE that the Family of Eagles soaring along the Shoreline of the Mightiest Lake on the Planet will still be in the Neighborhood after the Invaders pull out of Paradise and take it with them?" (Photo courtesy Bad River Environmental Department)

Since part of Orvana's proposed wetland mitigation includes "preserving" existing wetlands, USFWS in their Jan. 11 letter states, " Finally, we recommend that the applicant fully mitigate for all wetland impacts by either restoring or creating in-kind wetlands within the same watershed at appropriate mitigation ratios and provide permanent protection of the functions and values of the newly created wetland."

USFWS also recommended "that the applicant provide a longterm management plan and financial assurances for all mitigated wetlands."

Federal agencies send their comments to EPA, which will then send a letter to DEQ with federal concerns, Casey explained.

"We're still reviewing the permit," Casey said. "EPA comments are forthcoming."

Casey said some of the comments received by Dec. 18, 2012, pertained more to the Part 632 mining permit Orvana has already received than to the wetlands/streams permit. For this reason he has asked Joe Maki, DEQ state mining specialist in the Upper Peninsula Office of Oil, Gas, and Minerals, who is in charge of the Part 632 mining permit, to add conditions to the mining permit before a decision is made on the wetlands, inland lakes and streams permit.

"We want to put all the pieces together -- different regulatory tools," Casey said. "We want to make sure all the different statutes are in concert so that we can make a good decision to protect the environment."

One problem is that the wetlands, inland lakes and streams permit (Part 301/303) under review right now is only a five-year construction permit, not an operations permit like Part 632, Casey explained.

DEQ adding conditions to Part 632 permit

"The 632 permit governs how they operate and how they close, so we're putting additional conditions on 632 because of the comments on the wetlands permit that relate to the long-term operation and closure of the mine," Casey said.

For example, several streams run through the tailings basin (which is more than 300 acres), and the company plans to divert those streams around it.

"Once the tailings basin is closed and vegetated, we want the water to go back into the channels it used to go through," Casey noted. "We want to put it back in its natural configuration."

Since that happens after five years, it would have to be included in the Part 632 permit, Casey added. He said Joe Maki is working on this.

"He's doing a good job of getting us what we need," Casey said.

Maki recently gave a presentation on Michigan's mining permitting process at a meeting of the Keweenaw Land Trust in Houghton. In this video clip he answers a question on the Orvana Copperwood mining project, for which he approved the Part 632 mining permit.

During his presentation at a recent meeting of the Keweenaw Land Trust, DEQ State Mining Specialist Joe Maki answers a question on whether acid mine drainage is a possibility at the Orvana Copperwood mine. (Video clip by Allan Baker for Keweenaw Now) Editor's Note: This video clip is now public. Please excuse the delay if you weren't able to access it previously.

Several letters dated on or before Dec. 18, 2012, expressed frustration at the short comment period posted in the DEQ's Dec. 3, 2012, press release on the permit application and the fact that detailed information was not available on the DEQ Web site.

Great Lakes Indian Fish and Wildlife Commission voices concerns

John Coleman, environmental section leader for the Great Lakes Indian Fish and Wildlife Commission (GLIFWC), Madison, Wis., office, made these comments on Orvana's Nov. 26, 2012, revised permit application in his Dec. 18, 2012, letter to the DEQ:

"The application does identify new mitigation ideas for the project but did not include mitigation plans with the permit application. In reference to mitigation plans, the
Nov. 24th letter states, 'We also intend to be submitting supplemental application information to you prior to December 14, 2012' (page 16).  The permit application
references 'the Stream Impact and Mitigation Summary dated November 21, 2012,' yet no such materials were made available for review prior to the comment deadline of December 18th. We are interested in reviewing and commenting on those materials when they become available."**

New information available on DEQ Web site

As of Dec. 20, new information was posted on the DEQ Website, including the following documents, dated Dec. 14, 2012:
The DEQ updated their Web site on the Orvana permit with the new information in response to Coleman's and several other public comments received during the brief comment period ending Dec. 18.

As Casey stated in his Dec. 21 letter, "The entire Part 301/303 application has been available on the DEQ web site since November 30.  The December 3 press release was meant to, in part, make it easier for the public to find and review the entire application without having to go through the FOIA process. This is not required by statute, but was done as an outreach. The second page of the November 28 public notice and the second page of the December 3 press release provided a link to the DEQ webpage from which, the entire application could have been found. In hindsight, it was not easy to do so. The most direct way to view the entire application is to go to this link:
http://www.michigan.gov/deq/0,4561,7-135-3307_29692_24403-290574--,00.html."

Several public comments mentioned concerns about the tailings or TDF (Tailings Disposal Facility) and asked Orvana to consider backfilling. 

Casey noted the feasibility study for utilizing tailings for mine backfill is found in Appendix E under Tab 5: "Alternative Analysis" (on the above DEQ link).***

KBIC: Respect treaty rights, protect water

The Keweenaw Bay Indian Community (KBIC), in their letter of Dec. 18, 2012, signed by Jessica Koski, KBIC mining technical assistant, notes that the wetlands and streams Orvana proposes to fill for the Copperwood project are located within Anishinaabe ceded territory under the Treaty of 1842 at LaPointe, which reserves for KBIC the rights to hunt, fish, trap and gather in this territory.

"Irreversible injury to area wetland and streams of local watersheds of Lake Superior associated with this proposed permit, notably the construction of a very large permanent surface tailings disposal facility, will result in unacceptable destruction and degradation to these water resources -- and significantly affect the public and tribal trust in these resources," Koski writes.

Map of the proposed Copperwood mine from the earlier permit application, showing the location of the large Tailings Disposal Facility (TDF), right of center. (Map courtesy Jessica Koski)  Click here for a more detailed site plan from the November 2012 re-submitted application.

While the Alternatives Analysis of the re-submitted permit includes some analysis of backfilling the mine with tailings (the KBIC letter requested the DEQ make this Alternative Analysis accessible on the DEQ Web site) the alternatives indicate the company is unwilling to put the tailings underground for various reasons, chiefly "safety" and cost.

In the KBIC letter Koski also points out that the re-submitted application actually indicates an increase in impacts to streams: "When Orvana applied for their initial mine permit, they stated an impact of 8,000 feet of streams. Their previous wetland and fill permit application increased the impact to 13,000 feet of streams. Now,after more accurate accounting of direct on-site stream impacts, the total stream impact has increased to a total of 16,557 -- more than double what Orvana initially proposed in their mine permit application."****

A July 8, 2012, letter from GLIFWC staff, commenting on the earlier application, cites Orvana's own consultant, Knight Piesold, as pointing out some benefits of mine backfill with tailings. The letter also cites several sources of information on backfilling and states GLIFWC's position that the surface disposal of tailings is inappropriate.

Richard Sloat of Iron River, like KBIC, also questioned the increased stream impact in his Dec. 18, 2012, letter to the DEQ.

"Under the Clean Water Act, the applicant must first document that it has Avoided and Minimized impacts prior to Mitigation," Sloat writes. "The revised permit application seems to have Enlarged versus Minimized impacts in the case of the Tailings Disposal Facility (TDF) which began at a stated 8,000 feet of streams in Orvana's initial Mine Permit Application, to 13,000 feet of streams in their previous Wetland/Stream Fill Permit Application, now -- more than double what was stated in their initial mine permit plans.....16,557 feet of streams to be eliminated immediately adjacent to Lake Superior for the disposal of tailings into perpetuity."

Sloat also comments on the risk of contaminated water flowing towards Lake Superior.

"Re-designing on-site storm water management so that several detention basins discharge the water into existing downstream watercourses and two diverted/relocated streams is not wise," he notes. "What if this water is contaminated? The untested contaminated water will flow unchecked towards Lake Superior. "I must add that the DEQ does not have a way to absolutely control toxic water from entering into waters of the State from mine sites. I cite the abandoned Buck and Dober mines in Iron County, Michigan, as examples. Reduction of the contaminants is possible but the pollution still flows."

Casey said the Copperwood deposit Orvana plans to mine is very similar to the one at the former White Pine Mine. He noted the tailings from White Pine have been sitting in the weather for almost 50 years.

"DEQ has periodically sampled the storm water that runs off the tailings, and there has never been a problem (of acid mine drainage)," Casey said. "We have a whole list of things we check for coming from any mine, and White Pine is no exception; but there's no significant problem at White Pine right now."

Copperwood, though, is closer to Lake Superior than White Pine. Comments on the Orvana mining proposal -- both at public hearings and in letters sent to the DEQ and the EPA reflect considerable concern about its location.

In her Dec. 18, 2012, letter on Orvana to both DEQ and EPA regulators, Catherine Parker of Marquette, referring to the Rio Tinto-Kennecott Eagle Mine permitting process, writes, "It is unfortunate that we have a new mining law that does not have siting requirements, among other shortcomings. In spite of the fanfare touting it as the toughest of its kind in the nation, Part 632 most certainly is not so, as evidenced by the ease with which Kennecott has alternately ignored and manipulated its provisions, and the fact that DEQ is prepared to allow something like 16,000 feet of stream to be filled with tailings, within close proximity to the largest freshwater lake in the world. We have no greater resource than our clean water; thus, preserving and protecting it should be our highest priority."

Notes:

* For questions and comments at the June 28, 2012, public hearing on Orvana permits, see our two articles: "MDEQ hearing on Orvana Copperwood air, water quality permits: Part 1, Questions" and "MDEQ public hearing on Orvana Copperwood mine: Part 2."

** The Great Lakes Indian Fish and Wildlife Commission (GLIFWC) is an organization exercising delegated authority from 11 federally recognized Ojibwe (or Chippewa) tribes in Wisconsin, Michigan and Minnesota. Those tribes have reserved hunting, fishing and gathering rights in territories ceded in various treaties with the United States. GLIFWC’s mission is to assist its member tribes in the conservation and management of natural resources in the ceded territories and to protect habitats and ecosystems that support those resources. The proposed Copperwood mine is located within the territory ceded by the Treaty of 1842.

*** Click here to read the rest of Steve Casey's Dec. 21, 2012, letter.

**** Click here to read the KBIC letter of Dec. 18, 2012.

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