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Tuesday, January 25, 2011

Updated: Lawsuit filed against Kennecott subsidiary for water pollution at Flambeau Mine site

"Just grass over a grave" is what the late Roscoe Churchill -- pictured here at the "reclaimed" Flambeau Mine site near Ladysmith, Wis. -- called the reclamation by the Flambeau Mining Co., a Rio Tinto / Kennecott subsidiary, that now faces a Clean Water Act citizen lawsuit because of pollution of the Flambeau River and one of its tributaries. (Photo © Linda Runstrom, Winona, Minn. Reprinted with permission.)

By Michele Bourdieu, with information from Wisconsin Resources Protection Council

MADISON, Wis. -- Two citizen groups -- the Wisconsin Resources Protection Council and the Center for Biological Diversity -- and Laura Gauger (formerly Furtman), who is a member of both groups, recently filed a Clean Water Act citizen suit against Flambeau Mining Company, a subsidiary of Rio Tinto / Kennecott, over its partially reclaimed Flambeau Mine near Ladysmith, Wis.

According to the suit, the mining company is violating federal law by discharging pollutants -- including potentially toxic metals like copper, iron and zinc -- into the Flambeau River and a tributary known as "Stream C" that flows across the company’s property.

"For too long, Flambeau Mining Company has ignored its obligation to protect the water quality of Stream C and the Flambeau River," said Laura Gauger, an individual plaintiff in the lawsuit. "This is yet another example of the company’s history of broken promises to the people of Rusk County and the Native American community."

Gauger says the pollution at the Flambeau site affects both ground and surface waters.

"For example, copper levels in the discharge from a detention pond that collects runoff from the reclaimed site have ranged from 11 to 91 parts per billion since 1998 (this is Kennecott's own data), whereas Wisconsin's chronic toxicity water quality standard (meant to protect fish and other aquatic species) is three parts per billion. The polluted water in the detention pond discharges into a creek that flows across the mining company's property to the Flambeau River," Gauger notes. "The groundwater is dirty as well. A well within the back-filled pit has registered manganese levels as high as 42,000 parts per billion (again, this is Kennecott's own data), whereas the drinking water standard for manganese is 50 parts per billion. This is of no small concern. Excessive exposure to manganese has been associated with causing nerve damage similar to that seen in Parkinson's disease. Unfortunately, Kennecott has not commented on any of this. Instead we are shown pictures of wildflowers waving in the wind."

The Flambeau is a popular river for fishing and canoeing and provides habitat for a wide variety of aquatic and wildlife species, including bald eagles and osprey. The Flambeau Mine -- an open-pit metallic sulfide mine for copper, gold and silver -- operated near the river from 1993 to 1997. Since the close of mining operations, Flambeau Mining Company has struggled to address persistent groundwater- and surface-water-quality problems, most notably at a 32-acre industrial park that remains operational.

The mining company channels stormwater runoff from this industrial park into a settling basin that discharges into a tributary of the Flambeau River. Monitoring data from the mining company and the state show that copper levels in the discharge have greatly exceeded Wisconsin’s toxicity standards. The stormwater detention basin once held highly toxic acid mine drainage (AMD) and runoff from the open-pit mine.

"The Clean Water Act requires that Flambeau Mining Company’s pollution discharges be regulated by a permit that sets clear limits on the amount of pollutants and protects the water quality of Stream C and the Flambeau River," said Jamie Saul, an attorney for the citizen groups. "Without such a permit, Flambeau Mining Company is in violation of the Act."

The lawsuit was filed Jan. 18, 2011, in the U.S. District Court for the Western District of Wisconsin, in Madison, under the Clean Water Act’s "citizen suit" provision. Congress authorized citizens to directly enforce Clean Water Act requirements against alleged polluters in federal court.

Gauger (formerly Laura Furtman) has visited the Marquette area and Eagle Rock on several occasions. Last spring she camped out on Eagle Rock with Native and non-Native Americans opposed to the Eagle Mine, and she spoke at the 2009 Protect the Earth event at Northern Michigan University, telling the story of the Flambeau Mine and the water pollution left from it.*

Laura Gauger (formerly Furtman) with campers at Eagle Rock in May 2010. (Keweenaw Now file photo)

Gauger also spoke about the late Roscoe Churchill, her mentor, with whom she co-authored the book The Buzzards Have Landed -- The Real Story of the Flambeau Mine, a comprehensive case study of how Rio Tinto / Kennecott paved the way for its Flambeau Mine by undercutting local democracy and exerting undue influence on state regulations governing environmental protection and taxation.

Churchill -- a dairy farmer, schoolteacher and community leader in Rusk County, Wis., where Kennecott’s Flambeau Mine was located -- served eight terms on his local county board during the controversial mining years and was a member of the committee that evaluated the Flambeau Mine proposal. He was also appointed by Wisconsin’s governor to serve on a statewide task force on mining in the late 1980s and witnessed the crafting of Wisconsin’s mining laws.

The Buzzards Have Landed is full of factual documentation -- from town and county board resolutions, legal briefs, mining company reports, financial spreadsheets, and newspaper articles to correspondence between mining company attorneys, state legislators, local officials, regulators within the Wisconsin Department of Natural Resources and representatives of the Great Lakes Indian Fish and Wildlife Commission -- documents that are available on a CD-ROM that accompanies the book. In addition, the book tells the story of how Roscoe and his wife, Evelyn, whose farm was located near the Flambeau Mine, fought for the land and water at heated town board meetings, county board meetings and even the State Capitol for a private meeting with former Wisconsin Governor Tommy Thompson.

Gauger is formerly a resident of Spooner, Wis., and currently resides in Duluth, Minn. She is a member of both citizen groups involved in the lawsuit.

The Wisconsin Resources Protection Council (WRPC) is a statewide, nonprofit membership organization concerned with the environmental impacts of metallic mining on the state’s precious water supplies, on the tourism and dairy industries, and upon the many Native American communities that are located near potential mine sites. WRPC educates the public about the consequences of allowing international mining corporations to develop a new mining district in the Lake Superior region under the present legal and regulatory framework.

Al Gedicks, WRPC executive secretary, has also visited Marquette and Eagle Rock and participated in Protect the Earth events related to more than one mining project. Gedicks is professor of sociology at the University of Wisconsin LaCrosse and is the author of The New Resource Wars: Native and Environmental Struggles Against Multinational Corporations (1993) and Resource Rebels: Native Challenges to Mining and Oil Corporations (2001). He has also produced documentary films on mining struggles in Wisconsin.

In his talk during Protect the Earth on July 31, 2010, at Keweenaw Bay Ojibwa Community College in Baraga, Mich., Gedicks told the story of Wisconsin's Crandon Mine, which was stopped by Native and non-Native people getting together to protect their common watershed until mining companies lost credibility and finally withdrew from the project. Gedicks was a consultant for the Mole Lake tribe and was involved in the nearly 30-year struggle of resistance against the Crandon mine.**

Gedicks reminded the Baraga audience that mining companies are aware of the need to have a "social license" to operate a mine -- in conjunction with their efforts to obtain permits from government agencies.

"If those government agencies (in supporting a mining project) fail to consult the people that are going to be directly affected by (mining) operations, that mining operation is in jeopardy," Gedicks said.

At some point citizen opposition can shut down the operation. That's why mining operations spend so much money to convince the public that the mining operation will benefit them, Gedicks explained.

"The bottom line is that even though it looks like they have the power, they have the money, they have the lawyers, they have the technical consultants," Gedicks said, "we have the people and we have the truth and we're going to win."

That same weekend, on Aug. 1, 2010, Gedicks addressed the crowd of people who walked to Eagle Rock and stood outside the security fence Kennecott had put up around the sacred Ojibwa site where the company plans to put the entrance to their Eagle mine.

On Aug. 1, 2010, Al Gedicks, executive secretary of the Wisconsin Resources Protection Council -- a citizen group involved in a lawsuit against Kennecott's Flambeau Mining Co. for water pollution at the Flambeau mine site near Ladysmith, Wis. -- addresses the crowd of Protect the Earth participants at Kennecott's Eagle Mine security fence, which now surrounds the sacred Ojibwa site, not far from Big Bay, Mich. (Keweenaw Now file photo)

"Mining companies depend on the psychology of inevitability," Gedicks said. "They depend upon convincing people that this project is already done, there's no point in opposing it and therefore the opposition should pack up their bags and go home. And if the opposition does not believe that the project is inevitable -- they don't buy into the psychology of inevitability -- that raises the cost of doing business. And that's what we have to do."

Gedicks added, "As long as this project remains an illigitimate project there are going to be future protests and that is going to raise the cost of bringing this project on line and eventually it's going to result in the project being put on permanent hold."

The Kennecott Eagle Minerals Co. Web site mentions the Flambeau Mine under the heading "Modern, Responsible Mining."

In a 2010 statement by Rio Tinto, Kennecott claims that at the Flambeau Mine, "where reclamation was completed more than 11 years ago, the company promised to protect the Flambeau River and that promise was kept. During its years of operation 1,000 water quality samples were drawn. The company’s state of the art water treatment plant, located at the mine site processed 600 million gallons of water for safe return to the environment. Monitoring to date shows the Flambeau River is and remains protected. The Flambeau Mine successfully operated without a permit violation."***

Kennecott also promotes the Flambeau Mine as an example of reclamation on their site****

The Clean Water Act citizen lawsuit directly opposes such claims by Rio Tinto / Kennecott.

"The Clean Water Act requires that Flambeau Mining Company’s pollution discharges be regulated by a permit that sets clear limits on the amount of pollutants and protects the water quality of Stream C and the Flambeau River," said Jamie Saul, an attorney for the citizen groups. "Without such a permit, Flambeau Mining Company is in violation of the Act."

The Center for Biological Diversity, the second citizen group participating as a plaintiff in the lawsuit, is a national, non-profit membership organization with over 40,000 members including hundreds of members in Wisconsin. The Center has an office in Duluth, Minnesota. The Center works through science, law and creative media to secure a future for all species, great or small, hovering on the brink of extinction.

"There are a number of large copper-mine proposals in this region, and the continuing pollution at this much smaller and short-term mine does not bode well for the larger strip-mine projects," said Marc Fink, attorney with the Center for Biological Diversity.

Ironically, last week, on Jan. 19, 2011, one day after this lawsuit against Flambeau Mining Co. (Kennecott Minerals) was filed, Wisconsin Public Radio broadcast a meeting to inform the public about the Penokee Mine -- a projected open-pit iron mine planned for the Ashland, Wis., area. During this program, a panel of speakers spoke about the benefits of the mine. Only one, a Native American speaker, spoke about protecting the land, water and Native American wild rice beds in the area. During the question-answer period, the Flambeau Mine was mentioned twice as a "success."

David Zion preceded his question on economic benefits with the statement that the Flambeau Mine was the "best example of environmentally safe mining on this planet."

A panel member answering a question on the state regulatory process also mentioned the Flambeau Mine in positive terms.

"It's a rigorous process. There's been one company that's been able to go from beginning to end through this process and that's Flambeau," he said. "That was an unusually rich deposit for its type."

The plaintiffs in this Clean Water Act citizen lawsuit would not agree that the Flambeau Mine has been reclaimed.

In a recent email to Keweenaw Now, plaintiff Laura Gauger notes, "The myth of the Flambeau Mine is that it is an example of 'environmentally responsible' mining. But, as Roscoe Churchill so adeptly observed, the landscaped surface at Flambeau with its prairie grass and wildflowers is 'Just Grass Over a Grave.' The real issue at the Flambeau Mine site, and with all mining operations, is water quality."


* Read about Laura (Furtman) Gauger's presentation on pollution at the Flambeau Mine at the 2009 Protect the Earth event at Northern Michigan University in our Aug. 5, 2009, article, "Protect the Earth 2009: Part 1."

** Click here to read Al Gedicks' article "The Crandon Mine Battle (1975-2003)" in Headwaters Magazine (Spring 2010), p. 21 (p. 11 in pdf version).

*** Taken from a statement by Rio Tinto, "Modern, Responsible Mining: A response to claims made about 'sulfide mining'" posted in June 2010 on the Kennecott Eagle Minerals Co. Web site.

**** Click here to see photos of "Flambeau Reclaimed."

Click here to listen to the Wisconsin Public Radio broadcast on the proposed Penokee Mine near Ashland.

Click here to learn more about the Wisconsin Resources Protection Council.

Click here to read about the Center for Biological Diversity.

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