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Will State Allow Sulfide Mining Under U.P. River?

Green groups fear DEQ may ignore law they helped write

September 14, 2007 | By Glenn Puit
Great Lakes Bulletin News Service

Bill Kinjorski
  Kennecott Minerals wants to mine sulfide under the Salmon Trout River, which is home to the endangered coaster brook trout.

MARQUETTE—When a Utah mining company first proposed digging a sulfide mine directly underneath the Salmon Trout River in Michigan’s Upper Peninsula five years ago, Michigan had no rules that could guide a decision about whether to allow such a thing.

So, encouraged by Governor Jennifer M. Granholm’s administration, a group of union officials, environmentalists, Upper Peninsula politicians, state environmental officials, and representatives of the mining company, Kennecott Minerals, together crafted rules for sulfide mining in Michigan. When they finished and the rules became law in 2004, the parties claimed it would protect Michigan’s environment, allow the revival of the Upper Peninsula’s once-mighty mining industry, and boost the state’s faltering economy.

But now that Kennecott appears close to getting what it wanted in the first place—permission to dig a sulfide mine beneath a world-class trout stream—opposition to the proposal has exploded in this Lake Superior city, which is roughly 30 miles from the mine site. A local citizen group, Save the Wild U.P., and a coalition of environmental groups, including the National Wildlife Federation, Sierra Club, and the Michigan Environmental Council, are fighting hard to stop it.

These groups, which supported the new law when it was written, say that they are now very frustrated with the state for indicating that it intends to approve the new application despite the fact that sulfur forms dangerous sulfuric acid if it is mixed with water and oxygen.

They maintain that the major reason the company has been allowed to proceed with its plans so far is that the Michigan Department of Environmental Quality, which enforces the law, seems unwilling to use it to say no to Kennecott.

"For the most part it’s a good law, but a law is only as good as its implementation, and that is where Michigan is failing miserably," said Michelle Halley, an attorney for the National Wildlife Federation who helped construct the law.

The DEQ has promised an independent, thorough review of Kennecott’s application. The department, which has issued a preliminary decision that Kennecott’s application appears to meet the requirements for a mining permit, disputes assertions that it is not properly implementing the law.

"We will make the best decision possible," DEQ spokesman Robert McCann promised. "Our team was put together for that sole purpose, to make as thorough a recommendation as possible, and what is technically the most right decision isn’t always the most popular."

The DEQ is expected to make a final decision on the permit later this fall. Opponents, meanwhile, are encouraging people to attend either of next Wednesday’s DEQ public hearings in Lansing on Kennecott’s mining permit. The hearings, at the Lansing Center, are from 1 to 4:30 p.m. and 6 to 9:30 p.m. The agency is also accepting written comments from the public through October 17.

‘A Terrible Place’
The proposed mine would be dug very near to Big Bay, a sleepy, rural, and charming town west of here, near the Superior shoreline. The area is known as the Yellow Dog Plains—a largely untouched wilderness on the edge of 576,000 acres of undeveloped timberlands. Kennecott wants to dig the mine to a point nearly 1,000 feet directly below the Salmon Trout River, where the company found significant deposits of valuable nickel and copper embedded in sulfide. Although the firm will not say how much the ore deposit is worth, many estimates of its value run into the billions of dollars. (See Page 2 of this article for much more background.

Mine opponents argue that the river itself is literally priceless. They point out that the river is a spawning ground for the endangered coaster brook trout and that the mine is just a few miles upstream from Lake Superior. So, they argue, a sulfuric acid release, known as acid mine drainage, could erase the trout population and significantly harm Lake Superior’s ecosystem. They say that these are just a few of the many reasons why, according to a petition opponents circulated, 96 percent of Big Bay’s residents oppose the project, even though Marquette County, where both Marquette and Big Bay are located, has an unemployment rate of about 6 percent.

Those against the mine also object on broader grounds as well; they say that Kennecott’s mining operation would, among other things, transform one of the state’s most remote and unspoiled areas into a heavily industrialized site and generate a great deal of heavy truck traffic.

What most baffles opponents, however, is what they see as a lack of basic common sense about where and where not to put a sulfide mine. Or, as one of the mine’s most prominent opponents, former Governor William G. Milliken, puts it: "What a terrible place for a mine."

The opponents’ biggest fear is that the mine could collapse. If it did, they argue, it would drastically change the Salmon Trout River’s geography forever.

That fear may not be far fetched: Last year, persistent inquiries by mining opponents revealed that the DEQ had failed to release a scientific analysis, one that it contracted, that said such a collapse was indeed possible. The DEQ insisted that it did not intentionally withhold the study, which is public information. Kennecott disputes the findings, which said that the mine’s crown pillar, which supports the mine’s ceiling, could be vulnerable.

Kennecott’s project manager for the mine, Jonathan Cherry, said the project has been meticulously designed to protect the environment. When asked if there was any chance the river could collapse into a mine dug directly beneath it, Mr. Cherry insisted there was little, if any chance such a catastrophe could happen.

"What I can say is that with the modeling we have done and the samples we have collected and engineering designs that we’ve put together," he said, "we are as confident as we can be that the river will not collapse into the mine."

Fear of ‘Takings’
According to the National Wildlife Federation’s Ms. Halley, the group of representatives that she worked with to write the new sulfide mining regulations did discuss a ban on sulfide mining in sensitive areas. But, she said, industry representatives convinced state officials that the law could not restrict the location of a mine without opening the state up to litigation.

The industry argued that, if the state forbid a company to mine in a specific location that it owned or had a financial interest in, that firm could sue the state in what is known as "takings" litigation—suits that seek compensation for a landowner prevented from using their property in the way that they wish. Ms. Halley said that, when told this, state officials were not willing to put restrictions on the actual siting of any mine.

"The industry made comments about ‘takings’ litigation, that it felt it would get the state into trouble," she said. "I think the state became intimidated by that."

The DEQ’s own Web site essentially confirms Ms. Halley’s theory.

"Some people have advocated for ‘siting criteria,’ which would prohibit issuance of a permit for mining in certain categories of environmentally sensitive lands," a question-and-answer feature about the new sulfide mining regulations says. "However, such a categorical denial on private land would almost certainly subject the State of Michigan to a claim for a taking of property. Under the U.S. and Michigan Constitutions, the State cannot take private property without compensation—in other words, the State would have to pay full market value for the property, plus legal costs."

Yet Mr. McCann, the DEQs spokesman, said that the mine’s location is considered in the permitting process in other ways.

"The location does play a role in issues such as, can the water quality be protected," he said.

But Jim Olson, a Traverse City-based lawyer noted for his environmental litigation, particularly around water issues, believes the state is giving way too much legal consideration to the threat of a takings lawsuit. He said that Michigan laws, in addition to protecting private property rights, also strongly emphasizes the public’s interest in protecting state lands as well—which would include the river, the public land it flows through, and Lake Superior.

"It is affecting public policy and good judgment," Mr. Olson said of the takings threat.

Mr. Olson added that, if the DEQ and state leaders stopped worrying about being sued and instead stood up to protect such vulnerable places like the Salmon Trout River, it would eventually prevail, even if Kennecott is a very large company with tremendous financial resources.

"The DEQ is not standing up for the sovereign rights of water in the state’s most critical time," Mr. Olson said. "If the state would assert its sovereign interest, it would have broader powers."

Wisconsin’s Challenge
One state that is considered a model for strict regulations on sulfide mining is Wisconsin, which many say has effectively instituted a moratorium on sulfide mining by requiring a mining company to demonstrate that prior sulfide mines have not polluted.

But Ms. Halley and another mine opponent, Cynthia Pryor of the Yellow Dog Watershed Preserve, said that when the law was being written, the DEQ and the mining industry made clear that there was not going to be a law in Michigan that mirrored the Wisconsin law.

"What Wisconsin did was put in place a permit law that basically says, 'If you want to mine for sulfides in Wisconsin you have to find other mines anywhere that either ran for 10 years or were reclaimed for 10 years that did not have acid mine drainage or heavy metals discharge,'" Ms. Pryor said. "'Prove it. If you find three, you can start the process here.'

"We tried to implement kind of a ‘prove it first’ philosophy here," she recalled, "and we were told at the very first meeting when we went to talk about the statute that, if you are here to talk about a Wisconsin-like moratorium, forget it."

She added that a DEQ deputy director essentially said, "We are here to do legislation for underground mining. We are not here to do a moratorium."

Environmental groups have since written a letter to the DEQ urging it to allow an independent investigation to determine whether there is an underlying "corporate culture in the (DEQ’s) Office of Geological Survey" that is undermining "state policy governing metallic mining as set out by the new law." So far, the DEQ has refused to do so.

(Click here to read more background on the mine proposal, the area where it would be built, and problems associated with sulfide mining. On Tuesday the Great Lakes Bulletin News Service will report on how Kennecott’s lobbying efforts may have affected officials’ views on their proposal. Glenn Puit, a veteran investigative reporter, is the Michigan Land Use Institute’s Emmet County policy specialist. Reach him at glenn@mlui.org

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