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Records: Upper Peninsula mine approved despite concerns

A sign stands in protest on Aug. 13 of Aquila Resources' plan to open a pit mine near the Menominee River in Michigan. The mine would send acidic waste into the river and surrounding waterways, which would then spill into the Great Lake, staff employees say. Harm is likely to come to more acres of wetlands than the mining company has projected, according to evaluators. (Paul Srubas/The Post-Crescent via AP)

A sign stands on Aug. 13 in protest of Aquila Resources’ plan to open a pit mine near the Menominee River in Michigan. The mine would send acidic waste into the river and surrounding waterways, which would then spill into the Great Lake, staff employees say. Harm is likely to come to more acres of wetlands than the mining company has projected, according to evaluators. (Paul Srubas/The Post-Crescent via AP)

Detroit Free Press

DETROIT (AP) — Over and over, Michigan environmental regulators had sounded alarms as they reviewed a proposed large, open-pit ore mine in the Upper Peninsula near the Menominee River, prized for walleye fishing and being a tributary to Lake Michigan.

The mine would send acidic mining wastes into the river and surrounding waterways, which would then spill into the Great Lake, staff members said. Harm would come to more acres of wetlands than the mining company was projecting, evaluators found.

But the U.S. Environmental Protection Agency and then-Michigan Department of Environmental Quality approved the mine anyway.

The Detroit Free Press reports that at stake in this debate over whether the Back Forty Mine should proceed is the health of one of the most important rivers in Michigan, part of a system that drains more than 4,000 square miles of the U.P. and northern Wisconsin, and a river culturally important to the Menominee Indians of Wisconsin, whose creation story holds that they come from the river’s mouth.

The tribe’s sacred burial grounds could be threatened by the mine. The tribe is now among those appealing various wetland and surface-water permits approved for the project.

Employees of the Department of Environmental Quality have long been concerned, and at times frustrated, with the Canadian company Aquila Resources’ plan to mine for gold, zinc and copper within 150 feet of the river — which runs in the western U.P. along the Michigan-Wisconsin border. Only now, though, is the extent of those anxieties coming to light, thanks to agency documents presented as evidence in the permit appeals now pending before an administrative-law judge.

The open-pit sulfide mine would operate on 83 acres and its pit would be 2,000 feet by 2,500 feet wide, and 750 feet deep, according to the company. The mine is planned to operate for about seven years, and Aquila estimates it will produce:

  • 512 million pounds of zinc
  • 468,000 ounces of gold
  • 51 million pounds of copper
  • 24 million pounds of lead
  • 4.5 million ounces of silver.

An on-site processing mill also will crush and refine minerals and ores through flotation, separation and the use of cyanide, according to the company’s plans.

The DEQ emails, letters and memos show concern that Aquila Resources and its engineering firm, the Green Bay-based Foth Infrastructure and Environment, LLC, was understating the project’s likely effects on the river and surrounding wetlands, according to regulators. The methods Aquila was using to gauge the project’s likely effects on wetlands were improper, and the mining company wasn’t changing them, DEQ staff said. The U.S. Environmental Protection Agency had similar concerns, documents show.

Eric Chatterson, a geology specialist in DEQ’s Water Resources Division, wrote in an email dated April 5, 2018 that there was a “high likelihood” that crushed minerals and ores from the mine “will be observed in the groundwater that discharges to the Menominee River and Shakey River.” He added that the risks would continue even when the mine was closed, stating, “Impacted groundwater from the backfilled pit is expected to migrate to local surface water sources.”

That’s a particular concern for many, as sulfide ores exposed to air and water undergo chemical reactions that form sulfuric acid, which is toxic to fish and smaller aquatic organisms.

Aquila’s permit request, according to DEQ staff, also failed to take into account the full extent of the mine’s likely effects on surrounding wetlands, which are vital to natural habitat, erosion protection and water quality. An unsigned, undated DEQ memo said of the groundwater model Aquila Resources was using as part of its permit application: “It provides little to no use in assessing impacts to nearby wetlands.”

At some sites around the mine, the proposed operation would reduce the flow of groundwater into wetlands “in excess of 6 inches to greater than 5 feet throughout the modeled life of the mine,” wrote Kristi Wilson of the DEQ’s Water Resources Division to Aquila Resources officials on Jan. 19, 2018.

The EPA was similarly concerned. Christopher Korleski — director of the Water Division at EPA’s Region 5, which includes Michigan — wrote to Coleen O’Keefe of the DEQ on March 8, 2018, noting the agency had objected to the issuance of a permit for the mine because, among other reasons, the company had not yet demonstrated that “the mine site plan is protective of water quality throughout the life of the mine and post-closure.”

But two months later, on May 3, 2018, following a meeting with Aquila officials and after “supplemental information” was presented to the EPA, Korleski changed his stance.

“Based on the information EPA has received from Aquila, a number of objections identified in EPA’s March 8 letter have been resolved,” he stated. “In addition, we believe that there is a ready pathway for the resolution of EPA’s remaining objections through MDEQ’s inclusion of specific conditions in a final permit issued by June 6, 2018.”

But the information from Aquila provided little of new substance, said Janette Brimmer, a lawyer at the environmental nonprofit group Earthjustice and legal representative of the Menominee tribe.

For example, regarding EPA’s concerns about water pollution after the mine is closed, the agency accepted Aquila’s statement that the plan would not be developed until after the mining pit had been excavated, “allowing the use of the mineralogy data from the pit walls to factor into the plan,” and that any final plan would require review and approval by DEQ. Regarding likely effects on secondary wetlands, Aquila stated the DEQ was “working with MDEQ to address concerns regarding the assessment of secondary impacts using modeling and water budgets.”

“That’s the million-dollar question: What changed?” Brimmer said. “Nothing changed. Nothing changed on the ground. The data didn’t change. Nothing changed other than, presumably, the politics. I would have liked to have been a fly on the wall in those EPA Region 5 meetings (with Aquila officials).”

The EPA reversal put the DEQ on a clock: Approve or reject the mining company’s wetlands, lakes and streams permit within a month, by June 6, 2018, or see authority over the permit application get transferred to the U.S. Army Corps of Engineers.

“I am concerned about the inevitable groundwater discharge that will be created from the mining and backfilling of the pit,” Chatterson wrote to Wilson in an email dated May 17, adding that Aquila’s design plans to reduce polluted discharges “should be approved by the Groundwater Permits Unit prior to construction activities,” countering the EPA’s position that the plan could be developed by the company after its pit had been dug.

By June 1 of that year, DEQ had approved Aquila Resources’ final necessary permit to proceed with the mine. The wetlands, lakes and streams permit included various requirements the company had to meet before its planned work could proceed, including new groundwater-level evaluations using methods approved by the DEQ. The permit allows for almost 6 acres of wetlands to be filled and for there to be indirect effects, from reductions in groundwater supply, on more than 17 acres of wetlands.

Scott Dean, a spokesman for the DEQ, which is now known as the Department of Environment, Great Lakes and Energy, or EGLE, said Aquila Resources has not yet provided EGLE with the information required in the conditional permit. In June, the agency’s Water Resources Division authorized Aquila to install equipment to monitor groundwater and surface water.

Aquila must also still submit a design plan “to ensure that the mine pit may be backfilled with waste material in a manner that is protective of water quality,” Dean said.

Additionally, Aquila is seeking a dam-safety permit for mining tailings and waste-rock management; an air pollution permit, and revisions to a previously approved permit for mining nonferrous metallic minerals. All of this is meant to meet the changed provisions for their plans as outlined in the wetlands permit, Dean said.

Brimmer said she’s never before seen a situation where conditions that are typically confirmed in a permit application instead become conditions to resolve later on in an approved permit.

“The DEQ witnesses, each and every one of them, were asked back in June (during testimony on the permit appeal), ‘Have you ever before done a permit like this? Have you ever seen anything like this before?’ To a person, they said no,” Brimmer said.

The with-conditions permit approval turns the way permitting procedures should work on its head, Brimmer said.

“In order for the public to participate and comment on this, they have to understand what the risks are to that river. What are you proposing? What have you analyzed?” she said. “You can’t do that when all of those details are blanks to be filled in later.

“It robs the public of meaningful participation in this process, which is a cornerstone of environmental law and regulation.”

Aquila Resources officials responded with an emailed statement to Free Press interview requests.

“Aquila Resources, Inc. has obtained all the major permits for the Back Forty Project. Federal and state agencies, including the U.S. EPA and EGLE have completed an exhaustive review of potential impacts. Multiple environmental studies of the project spanning over a decade informed our permits. Aquila believes in the value of public input and participation, and strongly supports processes that encourage engagement with stakeholders. Each of these permitting processes allowed for extensive public comment and participation, which we actively engaged in, listening to and learning from our stakeholders. Our permits contain stringent terms and conditions to ensure the project operates with minimal impact on the Menominee River, groundwater, wetlands, and other natural resources.”

Across the river, in Michigan’s Menominee County, the board of commissioners passed a resolution in 2017 opposing the Back Forty mine.

“It’s right on the river, 150 feet from the Menominee River,” said board vice chairman William Cech. “There’s never really been a successful sulfide mine without leaving a large stain on the landscape that they are digging in.

“If the mine was 5 miles in from the water, it might be a whole different story. But because it’s that main waterway that leads right into Lake Michigan, we are afraid.”

There is no additional opportunity for the public to comment on the Back Forty Mine’s wetlands and surface-waters permit. Hearings on the Menominee tribe’s permit approval appeal are scheduled to run until Wednesday in Lansing, but may be extended to a later date, Brimmer said.

The tribe is also challenging the U.S. Army Corps of Engineers’ faiure to act as the primary permitting authority for the Back Forty mine. The tribe is scheduled to present oral arguments in the 7th Circuit Court of Appeals in Chicago on Sept. 5, Brimmer said.

“We’re going to keep fighting,” Cox said.

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