Lake Superior Mining News

by Gabriel Caplett

At a recent State contested case hearing concerning the Michigan Department of Environmental Quality’s (DEQ) issuance of mining permits for Kennecott’s Eagle project, the DEQ has presented itself as incapable and, possibly, unwilling to follow the law in presenting its approval of a potentially dangerous project.

Joe Maki is a geologist in the DEQ’s Office of Geological Survey and Mine Review Team leader for the DEQ. He recently recommended approval of Kennecott’s application.

Under sworn testimony, Maki outlined several startling themes:

1) The DEQ did not fully consider the current metallic mining law when granting a permit, and the State rules for nonferrous metallic mining were not decided by “consensus”, as claimed by the DEQ, Kennecott and many local elected officials;

2) Kennecott does not have a back-up plan in the event of a mine collapse or collapse of the Salmon Trout River, a mine tailings leak, contamination of pristine aquifers, an air filtration system failure, or a wastewater treatment plant failure;

3) The DEQ did not consider advice from its only rock mechanics expert that the mine could collapse.

For Maki’s June 19, 2008 contested case testimony, click HERE.

For Maki’s June 20, 2008 contested case testimony, click HERE.

If the State Won’t Follow the Law It Crafted, Who Will?

Maki acknowledged that the DEQ did not consider a central tenet of Michigan’s current nonferrous metallic mining law, “Part 632” (Act Number 451 of the Natural Resources and Environmental Protection Act), when reviewing Kennecott’s mine application and recommending final approval of the plan.

Maki ignored Number 3 of Section 63205, in Part 632, which states:

“The applicant has the burden of establishing that the terms and conditions set forth in the permit application, mining, reclamation and environmental protection plan and environmental assessment will result in a mining operation that reasonably minimizes actual or potential adverse impacts on air, water and other natural resources and meets the requirements of this act.”

As evidenced by Maki’s testimony:

QUESTION: “Did you apply this section of the statute to your analysis?”

MAKI: “I did not, no.”

QUESTION: “Did the mining team apply this section of the statute to its analysis?”

MAKI: “I don’t believe so, no.”

Additionally, Maki acknowledged a lack of competence in handling the review of Kennecott’s 8,000 page application: “Yes, I learned as I went along. I did not have all the knowledge of 632 in my head before going into this.”

Maki also confirmed the experience of many participants involved in crafting rules for the new nonferrous metallic mining law:

QUESTION: “Would you characterize the process of developing the rules as a

consensus process?”

MAKI: “I guess I would not; no.”

Where’s the Back-up Plan?

Maki acknowledged in his testimony that Kennecott’s application lacks contingency plans for major catastrophic events and mine plan failures:

Mine Collapse

QUESTION: “Any discussion of crown pillar failure?”

MAKI: “There is not.”

Post-mining Subsidence

QUESTION: “[Why does the backfilling plan] leave all of the tunnels and drifts as voids unfilled. . . that will cause subsidence; correct?”

MAKI: “I have no idea.”

Aquifer Contamination

QUESTION: “Is there any contingency in there that discusses what to do if the underground mine workings after they’re re-flooded [postmining] leach contaminated water out into aquifers?”

MAKI: “There’s no contingency that addresses that specifically, no.”

Mine Flooding

QUESTION: “How about [a contingency plan] if the inflow to the mine is…not 60 gallons per minute but…500 gallons per minute?”

MAKI: “I don’t see one, no.”

Wastewater Treatment Plant Failure

MAKI: “If the wastewater treatment plant closed down?”

QUESTION: “. . . for a substantial period of time.”

MAKI: “No, I don’t see anything in there for that.”

Air Filtration Failure

QUESTION: “Is there a contingency that considers that the vent – the vent raise filtering system doesn’t work?”

MAKI: “No, there is not.”

“There Was No One With Any Rock Mechanics Expertise On the Kennecott Side”

Joe Maki personally deleted a May 2006 report from Dr. David Sainsbury, a rock mechanics expert the DEQ had consulted to review Kennecott’s proposed project. The report offered a scathing criticism of Kennecott’s analysis of the proposed mine’s crown pillar stability (or the strength of the roof of the mine).

Maki considered Sainsbury’s report “a very technical report” that “did not meet my needs of what I needed from their review” and requested a summarized version that, incidentally, did not contain the same criticisms of Kennecott’s mine plan. Below are several criticisms that did not appear in Sainsbury’s final report:

“The analysis techniques used to assess the Eagle crown pillar stability do not reflect industry best practice. In addition, the hydrologic stability of the crown pillar has not been considered. Therefore, the conclusions made within the Eagle project mining permit application regarding crown pillar subsidence are not considered to be defensible.”

“Long-term time-dependent behavior of the Eagle crown pillar was not considered as part of the analysis.”

“The Salmon Trout River flows above the orebody and the area is surrounded by wetlands.”

Maki acknowledged that Sainsbury’s concerns regarding mining underneath bodies of water were removed from the final report, as were references to local mines, such as the defunct White Pine and Athens mines, that offered local examples of mine instability. Maki eventually admitted that not one of Sainsbury’s concerns omitted from the final version were, in fact, overly technical.

On June 21, 2006, Maki submitted a list of 91 questions that required response from Kennecott. Maki admitted, under oath, that he did not convey Sainsbury’s concerns to Kennecott and Kennecott was never asked to respond to those concerns:

QUESTION: “In your questions to Kennecott, did you raise anything connected to Sainsbury’s concerns?”

MAKI: “No, not specific; no.”

QUESTION: “Did you ask Kennecott anything about the effects of this mine on the Salmon Trout River to satisfy Sainsbury or the public’s concerns?”

MAKI: “I did not, not in this document. No, I didn’t.”

QUESTION: “Did you. . . raise a question to Kennecott in connection with the statement of Sainsbury that subsidence is a concern in all underground mining applications?”

MAKI: “I did not; no.”

QUESTION: “Has the concern of Sainsbury about the long-term time-dependent behavior of the crown pillar ever been considered to this date?”

MAKI: I don’t know. . . not to my knowledge, no.”

At this point, Maki admitted his lack of competency as leader of the team reviewing Kennecott’s application and recommending approval:

QUESTION: “You really don’t know what your own questions are asking, do you, sir, to be honest?”

MAKI: “To be honest, I do not have that expertise to be able to define and analyze what those questions really mean.”

Rather than utilize Sainsbury’s advice in order to prevent a potential mine collapse, Sainsbury was dismissed and transferred from his office, in Minnesota, to work overseas.

In a Summer, 2007, deposition, Sainsbury revealed that he had “asked for verbal permission to provide this document to personal contacts within Rio Tinto. . . because I was concerned that there was no one with any rock mechanics expertise on the Kennecott side that had reviewed this document . . . it was my opinion, at the time, that there was no one internally, for Kennecott, that [had] the expertise required to understand the technical nature of the discussions in this report.”

When asked if anyone at Rio Tinto took any action regarding his request, Sainsbury responded, “I believe they didn’t.”

Rather than apply Sainsbury’s expert report to Kennecott’s application, the DEQ decided to hire a different rock mechanics expert, Wilson Blake, who recommended, in a June 2007 report, that while the mine’s stability was unknown below a certain depth, the DEQ should approve Kennecott’s Mining Permit Application and allow Kennecott to develop a plan as they mined.

In a candid e-mail to Maki, Wilson Blake said, “Joe, here is my draft report. I’m not completely happy with it, but I hope that it is what is needed to get the Eagle project mine application permit back on track. Best, Wilson