New commissioner David Saint-Onge questioned why the City was considering the resolution.

“As a new guy on the commission, I’m not so sure why this issue comes before us, to be honest with you, why we’re taking the amount of time that we’ve taken to address this issue – not that it’s not important,” said Saint-Onge. “I do believe that there are some portions of the resolution that’s being offered this evening that are unnecessarily inflammatory.”

Saint-Onge said that, since the resolution was introduced he could not, according to City guidelines, abstain from a vote. The seemingly reluctant St. Onge endorsed the resolution with a quiet “yes” vote.

According to November 30 City Commission meeting minutes, the anti-ballot resolution was introduced in order to support “State Senator Prusi’s efforts to defend mining in the Upper Peninsula.” In a November 11 news release, endorsed by four other Upper Peninsula politicians, Prusi claimed the MiWater ballot would “BAN any future mining,” and would create “economic devastation for the families that live and work in the Upper Peninsula.” Although the proposed MiWater ballot would act as an amendment to legislation governing only metallic sulfide mining (the ballot would also require similar legislation for uranium mining), Prusi’s claim was invoked by two City commissioners.

Mayor Pro-Tem John DePetro, who introduced the anti-ballot resolution, suggested that the ballot effort was a “guise” that “would affect and stop future mining in the Upper Peninsula the rest of our lives.”

Commissioner Frederick Stonehouse agreed, claiming the ballot would “have a very negative effect on all mining in the Upper Peninsula, be it iron, copper, nickel, even limestone.”

During public comment, building contractor, Jorma Lankinen and Marquette resident, Tony Retaskie used rhetoric similar to that in Senator Prusi’s statement.

“The Michigan water ballot proposal is really an anti-economic, anti-jobs, anti-mining and anti-Upper Peninsula proposal, and it’s disguised under a clean water initiative derived from Grosse Pointe,” said Retaskie.

Retired professor, Jon Saari disagreed, saying that Retaskie’s comments represent “the whole hammer blow of what we’re going to be seeing in this debate over the next year.”

“Our public discourse, these days, is abysmal,” said Saari. “This Michigan water initiative is being presented as anti-UP, anti-UP economy, culture and future, and a trick by a bunch of Grosse Pointe elitists.”

Gene Champagne, spokesperson for Concerned Citizens of Big Bay (CCBB), introduced himself as from “Big Bay up the road, not Big Bay below the bridge, at Grosse Pointe, as some of our officials like to point out in the media.”

Champagne explained that CCBB introduced a resolution in 2003 or 2004 calling for independent hydrology studies.

“That resolution called for a third party, independent hydrology study on the Yellow Dog Plains before any hardrock or sulfide mining takes place,” said Champagne. “The hydrology is not a guise; it’s been at the forefront of this issue since the beginning.”

In 2005, Marquette County Board Chairman Gerald Corkin wrote to express similar concerns to the Michigan Department of Environmental Quality:

“The Marquette County Board of Commissioners supports…recent requests for a United States Geological Survey (USGS) Baseline and Hydrologic Survey of the Yellow Dog Plains region. This request has the support of Marquette County residents and local government officials, the Keweenaw Bay Indian Community, as well as State Senator Michael Prusi.”

The Marquette City Commission unanimously passed a resolution supporting independent hydrology studies and was supported by Marquette County and a number of townships.

In his support for the anti-ballot resolution, Commissioner Stonehouse noted that only three percent of Michigan’s voting population lived in the Upper Peninsula.

“We effectively have no functional voice on politics in this state – we are simply overwhelmed by the numbers,” said Stonehouse.

Commissioner Robert Niemi also took a practical view of the ballot initiative.

“The issue is too complex to do by initiative,” said Niemi. “The future of the mining industry is important to the UP and the vagaries of a political campaign are not the way to decide the question.”

Some comments in support of the resolution claimed disastrous economic consequences if the ballot proposal moved forward.

Amy Clickner, CEO of the Lake Superior Community Partnership (City commissioner and former Cleveland-Cliffs manager of public affairs, Don Ryan, helped form the group), along with some influential building contractors one of the main supporters of Rio Tinto’s Eagle Mine proposal, claimed that a water ballot proposal would threaten all other aspects of Michigan’s economy.

“Once we start this slippery slope, where does it end?” questioned Clickner. “Is the next ballot initiative what we can do in timber, is it what we can do in agriculture, is it what we can do in recreation?”

Jon LaSalle, chairman of Citizens to Protect Michigan Jobs, claimed that, if the proposed ballot were passed, “The economic consequences of all future mining would be horrendous.”

“There’s no proven contamination anywhere in this subject matter,” said LaSalle.

However, according to the US Forest Service, at least ten-thousand miles of rivers in the American West have been destroyed by metallic sulfide mining operations. In September 2008, one of Rio Tinto’s largest shareholders, the Norwegian government, divested and called the company “grossly unethical” for its operations at a controversial mine in West Papua, currently under Indonesian military control. In a statement, Norway’s Council on Ethics said that acid drainage from metallic sulfide mines is “considered one of the most serious mining-related environmental problems across the world.”

Promoted as a “citizen” campaign, the spokesperson for Citizens to Protect Michigan Jobs is Deb Muchmore. For years, Muchmore has been Rio Tinto’s lead spokesperson in efforts to open the proposed Eagle Mine.

LaSalle also said that claims of future uranium mining in Michigan were unfounded.

“Today, earth scientists agree that no one has found a commercially-viable uranium ore body in Michigan,” said LaSalle.

Retired Northern Michigan University chemistry professor, Gail Griffith, disagrees. According to Griffith, since 2004 the price of uranium has dropped from $139 a pound to less than $50 a pound, making uranium operations that may be economically viable in the future not viable today.

“If well water in the Jacobsville Sandstone formation is already contaminated with uranium it seems reasonable to develop stringent rules for uranium mining to protect these waters and to do it now,” said Griffith.

According to Michigan Messenger a joint venture between uranium giant, Cameco, and Bitteroot Resources, has been actively exploring the Upper Peninsula since 2003, spending over $700 thousand on uranium exploration in the first nine months of 2009 alone.  In a report issued to shareholders in July, the company noted that it had “identified several areas which warrant additional exploration.”

Commissioner Stonehouse seemed to agree with Griffith.

“If it only prevented uranium mining I would likely support it and would be the first one to sign the petition,” said Stonehouse. “If the issue were only about mining on the Yellow Dog Plains and its sensitivity to Lake Superior, that’s a different story too.”

Stonehouse said that a number of issues are affecting the Great Lakes that are more significant that metallic sulfide mining and cited his belief that Asian carp “will decimate a seven billion dollar fishing industry.

“From an environmental perspective that is a disaster of biblical proportions,” said Stonehouse.

For additional video from the meeting, please go to YouTube.

In a recent statement, local politicians Sen. Mike Prusi, D-Ishpeming, Sen. Jason Allen, R-Traverse City, Rep. Mike Lahti D-Hancock, Rep. Steve Lindberg, D-Marquette, and Rep. Judy Nerat, D-Wallace, accused sponsors of a proposed 2010 ballot measure on mining of talking about uranium mining in order to scare people and destroy the mining industry.

This irresponsible statement tells us more about politicians than the group, Save Our Water, and the ballot initiative. Everyone in Marquette County who has followed the mining controversy knows in 2003 local green groups were telling anyone with ears that Michigan didn’t have regulations covering sulfide mining or underground mining.

Then Gov. Granholm created a mining work group to create new legislation. The playing field wasn’t even from the beginning, as the Michigan Department of Environmental Quality told the group that a Wisconsin-type mining law wouldn’t even be discussed.

If Michigan’s new mining laws had a regulation that a sulfide mine had to be at least 2,000 feet from a body of water, we wouldn’t need a ballot initiative. If Michigan’s new mining laws had a regulation requiring an example of another sulfide mine that operated and closed without polluting, we wouldn’t need a ballot initiative.

Why do I as a homeowner have to be so many feet from water to build a house or put in a septic field and a mining corporation doesn’t have such a restriction?

When a group of politicians get together from supposedly different parties and recite the same mantra, it tells us there is only one party in America and that’s the Corporate Party. Both Republicans and Democrats are conduits for that party.

Have you ever wondered why the wealthiest 5 percent of our nation controls 95 percent of everything? By controlling politicians to secure the legislation they want with exemptions, loopholes and financial breaks. The top U.S. corporations know this and contribute equally to Democrats and Republicans. Currently there are 250 former congressman and senior government officials who are active lobbyists.

A recent report from the Center for Responsive Politics describing the wealth of members of Congress indicates that 237 members of Congress currently are millionaires. That’s 44 percent of the body – compared to about 1 percent of Americans over all.

The time for a legitimate second party is now, and without one we will never have anything resembling a green economy.

Also posted at the Marquette Mining Journal.

"These colors don't run!," says a Borax miners' union website; Photo courtesy I.L.W.U Local 30

Regardless of whether it’s true or not, Rio Tinto always seems to know what to say.

Rio Tinto boasts to the public, gullible politicians and job hopefuls in Michigan that the company is doing well financially, in order to lend the impression that the company’s Eagle Mine, in the Huron Mountains of the Upper Peninsula, is an inevitability.

In Boron, California, home of Rio Tinto’s vast US Borax operations, workers are being sold an entirely different tale.  To the nearly 600 workers at Local 30 of the International Longshore and Warehouse Union, AFL-CIO, fighting for respect and decent working conditions at California’s largest open pit mine, company brass is claiming they are in hard times.  While overseas investors are courted and assured that billions more than expected will be available for new project development in 2010 and southern California business leaders are informed that “the financial position of the company is very strong,” workers in Boron are told there is a need for cutbacks.  It’s all part of a broader effort to break I.L.W.U. Local 30 and force workers to sign a weak contract.

The union has received support from workers in Maritime Union of Australia, the Construction Forestry and Mining Union, Mining and Energy Division, as well as mine workers’ unions in Denmark, Poland, Turkey and India.  US Representatives Linda Sanchez, Stephen Lynch and Michael Michaud from the Labor and Working Families Caucus, as well as Representative George Miller, also expressed support for the workers.

In an October 15 statement the Maritime Union and CFMEU said:

“While our Unions have had a long and bitter experience with Rio Tinto and their anti-union, anti-workforce tactics and policies here in Australia, we continue to be amazed at the way in which multi national corporations like Rio Tinto, demand and expect working men and women to sacrifice hard won conditions of employment in order to prop up already bloated corporate profits.”

In a letter to Gary Goldberg, Rio Tinto US Borax President and CEO, Darrell Steinberg, from the California Senate and Karen Bass, Speaker of the California State Assembly, warned the company that they had “been informed that employees who have spoken up on job related issues have been reassigned, in apparent retaliation for exercising their right to free speech on the job.  This gives the impression that management at US Borax is intentionally increasing the adversarial nature of its relationship with its employees and their union.”

Poland’s Trade Unions Alliance wrote Rio Tinto CEO Tom Albanese to express concern that Rio Tinto was contradicting its “own policies concerning sustainable development” by showing a willingness to “punish the workers and their community which have been responsible for [the company’s] success” in Boron and was “seeking to weaken the trade union.” 

The letter noted company demands that “are unjustified and draconian” and maintained that “the company proposes to dramatically reduce worker rights, provided under the current agreement; terminate the current pension plan; drastically increase costs for dental and medical benefits; eliminate leave for sick workers; take away bidding rights of older workers; and offer no wage increases over 8 years while cutting wages if productivity falls.”

“Near slave conditions” in Namibia

Rio Tinto has an infamous labor rights record around the world.  The compay’s Rossing Uranium Mine, a joint venture with the government of Iran, operated in violation of the United National Council for Namibia’s “Decree No. 1” and various UN and International Criminal Court sanctions related to apartheid South Africa’s illegal occupation of the country.  A UN report at the time noted that workers at the mine operated under “near slave conditions.”  The twenty million member International Federation of Chemical, Mine, Energy and General Worker’s Unions accused Rio Tinto of racially segregating mine workers and paying black workers less than their white counterparts.

“Targeted retaliation” at Kennecott Utah Copper

Back in the US, at the company’s most profitable mine, Rio Tinto has long tried circumventing US labor law, in attempts to bust the union at the Bingham Canyon copper mine.

In 2003, the United Steelworks of America (USWA), which represents 600,000 workers, and the Kennecott Coordinated Bargaining Committee, representing local workers in five unions were outraged when Rio Tinto subsidiary, Kennecott, in a show of force to intimidate unionized workers, abruptly layed off 120 workers, including many military veterans and one worker on active duty in Iraq, only two days following the settlement of a six-year labor agreement.

“Judging by the manner and timing of these layoffs, we can only conclude that this company has exercised targeted retaliation against union members and union-represented workers for exercising their legal and constitutional rights: in violation of the two-day old agreement, in apparent violation of labor law, and in violation of the most basic rules of human conduct and decency,” said Leo Gerard, International President of the USWA.

In defiance of US labor law, senior workers eligible for voluntary retirement bonuses under the new agreement were escorted from their jobs by Rio Tinto, alongside union leaders and injured workers receiving worker’s compensation.

In a recent letter to the Mining Journal titled “No U.P. Uranium”, there is a statement: “There is no uranium ore anywhere in the state of Michigan.”  The important word here is “ore”, which is defined as a naturally occurring material that can be profitably mined.  This does not mean that there is no uranium in the state of Michigan.  It means that no one has yet found of a profitable ore body.

The evidence for the presence of uranium in the U.P. is strong.  The Western Upper Peninsula Health Department has issued an advisory for people with water wells in the Jacobsville sandstone formation in the Keweenaw Peninsula to have their water tested for uranium, because a 2003 study by a group at Michigan Tech found that about 25% of 300 wells tested in the area had levels of uranium above what is considered safe by the national Environmental Protection Agency.

Since 2003, Bitterroot Resources has been exploring for uranium in the Ottawa State Forest in the Jacobsville sandstone.  In 2007, they found small amounts of uranium in drill cores. Cameco, a Canadian company that is one of the world’s biggest uranium suppliers, has given Bitterroot $1.7 million to do further exploration on the site.  New drilling was done in 2008, and the results are now being evaluated for follow-up.  Given that uranium prices have gone down from a peak of $140/lb. in 2004 to about $45/lb. today, even if this uranium body is large or rich, it may not be profitable now, but may well be later.

Mining for uranium is currently done by an process called in-situ leaching (ISL). This method does’t bring any ore to the surface, but rather pumps chemically-treated water into and through the ore body to dissolve the uranium and brings it to the surface, where it is extracted.  Treated water is pumped back in to dissolve more uranium.  The question is, where does the water come from, and where does it go?

Uranium deposits suitable for ISL are found in permeable sand or sandstone that must be protected above and below by impermeable rock, and which are below the water table.  This means that if there is any connection or leakage into any other water source, that water will be contaminated with uranium.  Further, the water used in the ISL process can’t be effectively restored to natural groundwater purity.

Michigan’s new Nonferrous Metallic Mineral Mining law was written to deal with the threat of pollution by metallic sulfide ores and wastes that can create acidic, metal- laden water that must be carefully purified before being released into the environment.  During the rule-making process, it was pointed out that uranium is a nonferrous metal, and could be mined under these rules, even though there were no provisions for the special precautions needed for radioactive materials.  The response by the Michigan Department of Environmental Quality was that, yes, the “rules would apply to uranium mining, however, if uranium mining appears imminent, then the DEQ will review these rules for their adequacy to regulate such mining and determine revisions that may be needed.”

Part of the proposed MIWater Ballot Initiative language speaks to this issue by prohibiting uranium mining until new rules have been established. It is clear that such rules are needed now, and a vote for the initiative would ensure this.  It’s all about our water.

Also posted at the Marquette Mining Journal.

The meeting contrasted sharply with hearings held on Rio Tinto’s proposed Eagle Project mine from 2006 to 2007. More than 400 attended one Eagle hearing, with over ninety-percent speaking in opposition to the project.

While not quite the inverse of the Eagle hearings—roughly sixty-percent of public comments were offered in support of the milling project and only about forty public comments were taken—the number in support greatly outnumbered detractors, partly due to the presence of mine company staff and generous amounts of heckling from much of the crowd.

To thunderous applause, one audience member disrupted Big Bay resident and Save the Wild UP (SWUP) director, Kristi Mill’s public comment. The man shouted that discussion of Rio Tinto’s Eagle Mine was “not relevant” to the Humboldt hearing. Moderator, James Collins, replied that Mills had time remaining for her comment and that discussion of Eagle was allowed because the two projects “are related”.

Mills had been questioning why the DEQ was using tax payer dollars to consider Rio Tinto’s Humboldt Mill application while the Eagle Project has been “deferred” indefinitely.

Rio Tinto has had a rough few months.

The company has seen a dramatic reduction in its share value as metal prices have plummeted. Nickel, alone, has fallen from over $25 per pound roughly a year ago to less than $5 per pound today. Burdened with roughly $40 billion in debt, the company announced plans last week, to sell nearly one-fifth of the company to the Chinese government-run aluminum company, Chinalco, currently Rio Tinto’s largest shareholder. Kennecott is, currently, a wholly-owned subsidiary of London-based Rio Tinto.

Economy Main Issue at Hearing

A need for additional area employment and economic growth was, by far, the strongest theme during the hearing. Every comment in support of the project cited the need for more jobs without addressing the Humboldt application specifically. Although not a job creation agency, the DEQ was repeatedly urged to approve the project based on the potential for job creation and economic growth.

County commissioner Deb Pellow said that Rio Tinto’s project is “very important to the county’s overall economic diversification and well being.”

“DEQ: do your job and bring us these jobs,” urged Pellow.

Gerald Corkin, chairman of the Marquette County Board of Commissioners, said the mill project would “provide up to fifty to seventy full-time jobs [and] one-hundred to two-hundred construction jobs.”

“There’s the potential to have mining for another hundred years in the UP,” Corkin speculated.

Joe Derocha, Humboldt Township supervisor, said, “Mining was what raised us, brought us here today.”

“More businesses, more jobs, more people create more economic development,” said Derocha.

Tom Peterson, former Cleveland Cliffs Iron Company general manager and current president of Citizens for Responsible Mining offered his support for the project and represented the hearing’s only complaint coming from a Rio Tinto supporter.

“I did not want to see Kennecott do what they did down in Ladysmith at the Flambeau Mine and that is to high-grade a deposit and leave a lot of ore that could be mined,” said Peterson.

According to Jack Parker, former Rock Mechanics Director at the White Pine Mine, Rio Tinto has similar plans for the Eagle ore deposit. According to Parker, the company plans to leave much of the ore behind, taking only the richest available. Parker maintains that, since much of the ore is owned by the people of Michigan, mining only the high and mid-grades and leaving the rest is “not responsible mining”.

DEQ: “Mercury would likely be a major concern to the public” at Humboldt Mill

According to documents obtained through an open records request, the DEQ believes mercury discharges may be a serious issue at the mill site. Mercury is known to bioaccumulate in fish tissue and is considered a serious danger to public health. According to the DEQ, “There are no proven technologies to consistently achieve [a] low level…Mercury would likely be a major concern to the public and environmental groups.”

At the hearing, some local citizens expressed concerns regarding potential water contamination and fugitive dust control problems at the Humboldt Mill.

Robert Rivera, from Iron River, told the DEQ that he is opposed to Rio Tinto’s milling plans that could process ore currently being explored by Prime Meridian Resources, in Iron County, where he has lived most of his life.

“I grew up in a mining family, in a mining town a quarter of a mile from an abandoned and toxic mine site on the Iron River. It has been remediated and remediated again and it still leaches yellow boy,” said Rivera.

Ely Township resident and miner, Stephen Johnson, said that he lives along the Escanaba River. “Since the thirty years I’ve lived here I’ve seen the Middle Branch of the Escanaba deteriorate as a quality watershed,” Johnson said. “We used to have brook trout galore in it some thirty years ago and I’m not aware of anybody catching a brook trout down by my residency in the last fifteen years.”

Johnson commented on Callahan Mining’s Humboldt Mill application in the 1980s and said that he was “not really happy with the way, at that time, the DNR handled the situation. There were a lot of questions we asked that were never answered.”

“My major concern is here what is the DEQ going to do to ensure that the quality no longer deteriorates anymore and what are we doing to bring it back to the level that it was thirty years ago,” said Johnson.

Incomplete Application?

Only a handful of comments in opposition to Rio Tinto’s milling project highlighted concerns directly related to aspects of the company’s milling application.

Chuck Brumleve spoke on behalf of the Keweenaw Bay Indian Community and raised concerns regarding water inflow through bedrock surrounding the tailings pit. According to Brumleve, “the applicant seems to treat the pit as if it’s a sealed pool or container for sulfide tailings.”

“There is a whole body of current information by the Canadians and the [Environmental Protection Agency] that indicates surrounding rock considerations are the primary consideration in safe tailings disposal, which is not addressed by the applicant in this mining permit application,” said Brumleve.

Brumleve also addressed the need to clean-up existing mining contamination at White Pine, the Keweenaw Copper district and the Empire and Tilden mines before new mining projects are permitted.

Brumleve urged Rio Tinto supporters to “think of the next seven generations and not of your level of affluence here in today.”

Big Bay resident, Cynthia Pryor, raised concerns that construction plans for a protective berm were not included in the Humboldt application and that the plan lacks adequate contingency plans for such events as an “absolute berm failure”.

“It’s very difficult to give public comment on something that’s not included in the application,” said Pryor.

Defending the DEQ

Even the DEQ’s Office of Geological Survey Director, Hal Fitch, took his turn at the microphone to respond to this writer’s public comment on DEQ malfeasance regarding the handling of Rio Tinto’s Eagle Project application. Fitch also defended his role in forming a non-profit corporation with Kennecott and Bitterroot Resources while the Eagle Project application was under agency consideration.

The Northern Michigan Geologic Repository Association (NMGRA) was formed by the DEQ in 2007, with Fitch as president. Meetings were held in the DEQ’s Lansing office building and were attended by paid DEQ and DNR staff. Company representatives expressed an interest in utilizing federal and state grants to fund NMGRA projects.

In an October 2007 e-mail, Fitch acknowledged “that there would be a problem with a state agency forming a corporation” but “came up with an innovative way to address the problem: formation of a non-profit corporation that is not a part of any state agency, but in which OGS is a participating member.”

Hal Fitch resigned from the NMGRA’s board in Fall 2008.

At the Humboldt hearing, Fitch defended his actions: “To suggest that somehow I’m corrupt because I tried to organize a system where we could get the users to pay for something we’re mandated to do, I don’t think that’s very responsible.”

Fitch also defended the actions of DEQ employee Joe Maki, who testified under oath during a recent contested case hearing, that the DEQ did not follow a key provision in Michigan’s new metallic mining law:

“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.”

When questioned by a National Wildlife Federation attorney if either he or “the mining team” applied this key section of the new law to their analysis of the Eagle Project application, Maki responded, “I did not, no.”

At the Humboldt hearing, Fitch disagreed, saying, “Joe Maki did not say that we did not, that we disobeyed the law in processing the permit,” said Fitch.

Fitch was presented with a copy of Maki’s court transcript.

Rio Tinto is proposing to produce both nickel and copper concentrates at the Humboldt Mill that would “most likely” be shipped via rail to smelters in Canada. The waste material, containing heavy metals and acid-generating material, would be deposited underwater at the mill site, on top of Callahan’s tailings. The company plans to discharge treated wastewater into wetlands that feed into the middle branch of the Escanaba River.

According to the DEQ, the company must still apply for Air Use, Surface Water Discharge and Inland Lakes and Streams permits before the Humboldt Mill can be used again for mine processing. The DEQ expects to issue a proposed decision in “mid-April.” A new public hearing, addressing all of the required permits would follow.

Citizens are encouraged to send in written comments on the Humboldt Mill mining application. Comments are due to the DEQ by 5:00 pm on Wednesday, March 18.

Letters should be sent to:

Kennecott/Humboldt Mill Comments

DEQ Office of Geological Survey

PO Box 30256

Lansing, MI 48909

Or, by e-mail:

Deq-kennecott-humboldt-mill-comments@michigan.gov

Marquette County, MI – The Marquette County Board of Commissioners and numerous board members (and the CEO) at the Lake Superior Community Partnership (LSCP) have become, over the years, Kennecott-Rio Tinto’s most vocal supporters for its proposed Eagle Project mine. At the company’s urging, the county passes resolutions of support and encourages local townships to do the same. The county assists the company in lobbying the State of Michigan and the federal government to support and permit the project and meets with the Eagle Project Manager to decide what the company can buy for Marquette County in order to ensure continued and vocal support.

The county hasn’t always behaved in such an embarrassing fashion.

While the State was considering rules to accompany its “Part 632” statute on metallic mineral mining, County Chairman Gerald Corkin made repeated attempts to convince the State of a need for an independent hydrologic survey of the Yellow Dog Plains. The State continues to rely solely on Kennecott-Rio Tinto’s own data in permitting the mine project.

On March 4, 2005, Corkin wrote to Hal Fitch, Director of the Michigan Department of Environmental Quality’s (DEQ) Office of Geological Survey, “The Marquette County Board of Commissioners supports…recent requests for a United States Geological Survey (USGS) Baseline and Hydrologic Survey of the Yellow Dog Plains region. This request has the support of Marquette County residents and local government officials, the Keweenaw Bay Indian Community, as well as State Senator Michael Prusi.” Corkin expressed the county’s desire to work with the DEQ to seek funding options at the federal level for the study.

In an earlier letter to Fitch, Corkin maintained that “local governments should have the right to require analysis of a mining operation’s impact on the host community….baseline studies must be of sufficient duration to provide meaningful, actual data from the mining operation. Consideration should be given to neutral, third-party resources to substantiate data.”

Corkin reiterated the request in a July 12, 2005 letter to Joe Maki, DEQ geologist and Mine Team Leader for the DEQ’s permitting of the Eagle Project. The County Board had other concerns regarding the project.  On December 14, 2005, Corkin wrote Fitch, again, outlining “a need for reasonable siting criteria that do not prohibit mining,” a triple liner system, as opposed to the company’s plan to rely on natural bedrock, as well as a two year flora and fauna study. On February 8, 2006, the county reiterated these concerns in a letter to Governor Jennifer Granholm.

The county produced a fact sheet noting that, despite “Part 632”, “local units of government” likely retain the ability “to institute a variety of requirements, including proof of safe and responsible past operations and social and economic impacts analysis.” In order to learn more, the county solicited an “Academic Learning Service Project” that researched information on Wisconsin’s “moratorium” on sulfide mining as well as the industry’s global track record on sulfide mining.

In a draft letter to Governor Granholm, the county expressed a “concern for the future of drinkable, fishable water in Michigan” and told her that “our water is threatened by sulfide mining.”

County Strikes a Deal

Yet, underneath this concern for protecting water quality and the local economy, Eagle Project Manager Jon Cherry was working his voodoo with the LSCP’s CEO, Amy Clickner, and the Marquette County Administrator, Steve Powers. The trio was busy hatching an agreement between the county, townships and Kennecott, focusing on organizing economic projects and increasing the county’s tax base.

On November 9, 2005, Powers reminded supervisors from Champion, Powell and Michigamme townships, as well as County Commissioner Chuck Bergdahl, that Jon Cherry “tasked” county and township representatives, at a November 8 meeting, with discussing the economic and community impacts and benefits of the potential Eagle project and to submit personal lists of “specific economic development projects,” per Cherry’s request. The following day, Powers wrote an e-mail noting that Cherry “may need political help” in order to construct a new haul road for the mine going over the National Wild and Scenic Yellow Dog River and through wetlands in the remote Michigamme Highlands.

Powers listed potential “economic and community development” projects that Kennecott could pay for: an “industrial park near [Kennecott’s] rail spur” for “small wood related manufacturers,” “retail development” and “tourism amenities” in Champion Township, “Perkins Park improvements” (at the request of former Powell Township Supervisor Vince Bevins), and money for the Big Bay school. Powers also noted that Champion Township “wants to choose [the] location for Kennecott’s wetlands that will be needed to replace those lost to the road project.”

On February 3, 2006, Powers told County Board members Bergdahl, Corkin and Deb Pellow that he would “be meeting with Jon Cherry to discuss/negotiate an agreement between the County and Kennecott.” On February 14, Powers told commissioners that he was meeting with Cherry to “discuss preliminary ideas and plan for possible scenarios” that “must have the support of Kennecott and Michigamme Township.”

That same day, Powers wrote to Cherry that the LSCP “sees Kennecott as a potential major underwriter of economic development” and that he understood Kennecott’s public relations goals involved a “coordination of requests for assistance and, more importantly, intelligent and strategic use of resources.” He asked, Cherry, “What are your expectations?”  In response, Cherry noted that he would be meeting with Amy Clickner to discuss Kennecott’s ability to fund specific projects in the county.

On March 16, 2006, Powers told Amy Clickner that “Jon Cherry would like the County and LSCP/EDC [Economic Development Corporation] to work together on what our expectations are for support from Kennecott.”

On April 5, 2006 Powers told the county that Northern Michigan University’s Mike Roy (also on Kennecott-Rio Tinto’s “Community Advisory Group”) had been researching an appropriate amount of money the county should request from the company for economic projects.

In a telling account, Powers wrote that, while the mine carried with it “some risk,” it “would be a huge increase to our tax base.”

“A Coordinated Effort”

Having successfully negotiated an agreement, it was the county’s turn to reciprocate.

Utilizing fact sheets from Jon Cherry and information from the sulfide mining advocate group “Citizens for Responsible Mining,” [CRM] Steve Powers and Amy Clickner facilitated a “coordinated local effort” to convince state and federal regulators and officials to approve Kennecott’s project.

In July 2007, when the CRM cofounder wrote that Matt Johnson (former UP representative to Governor Granholm and current Rio Tinto lobbyist) and Steven Chester (Director of the DEQ) “want to know if anyone supports this mine,” local elected officials wrote letters of support for the project. Excitedly, Clickner told Powers that, “according to Jon [Cherry]” the letters “have been very helpful” and that Chester “specifically mentioned [that] he received correspondence from the County, Ambassadors, LSCP and Citizens for Responsible Mining.”

While lobbying a congressional delegation in Washington D.C., Cherry encouraged Clickner that “the positive letters and phone calls they receive are very important” and expressed “thanks for all of your help so far.” In support of Cherry’s quest for federal support, Clickner asked Powers if the county could “send support letters to the federal delegation.”

Cherry informed Clickner, the same month, that the DEQ would restart the permitting process (following an internal investigation into suppression of a rock mechanics report highly critical of the mine plan).  In August, Cherry boasted to Powers that, according to the Environmental Protection Agency (EPA), the company’s Underground Injection Control permit “was one of the best permit applications they had ever seen.”

Still hungry, the company pursued and obtained vocal support from the county for its Humboldt mill project.  In turn, the county encouraged “all townships and cities in Marquette County….to support and encourage Kennecott,” while the company held a meeting with Humboldt Township to request a resolution of support. Powers wrote that Jon Cherry, himself, was “very pleased” with the county’s endorsement letter.

In late October 2008, Clickner utilized highly speculative information to host a public relations event promoting two projected mining investments. Using total project estimations, not dollar amounts that would actually remain in the county, Clickner showcased Kennecott-Rio Tinto’s proposed $380 million dollar Eagle Mine project and Cliffs Natural Resources proposed $765 million expansion. One week later, Cliffs announced the potential for mass layoffs at its Empire and Tilden mines. The three-quarter of a billion dollar investment has been placed on hold indefinitely. The Eagle Mine may be shelved soon, as well.

And, this fall, the county has continued its own work in support of Kennecott-Rio Tinto’s mine project. The company, apparently frustrated that the Michigan Department of Natural Resources (DNR) would not provide a multi-decade public land use lease until all mining-related permits were approved, requested local elected officials’ “support to have that condition dropped.”

“Part of a coordinated effort,” according to Steve Powers.

At the time of publication, Amy Clickner of LSCP, did not respond to a request for an interview.

On March 1, 2007, the Michigan DEQ (MDEQ) withdrew its proposed approval of Kennecott Eagle Minerals Co.’s permit application.[1] The decision was made following the exposure of the DEQ’s failure to publicly disclose a crucial report regarding the crown pillar subsidence and hydrologic stability of Kennecott’s Eagle Project.

DEQ Hears Public Comment, Lansing, December 2005; Photo courtesy Doug Cornett

The National Wildlife Federation (NWF) had submitted Freedom of Information Act (FOIA) requests to the DEQ, attempting to retrieve a report regarding crown pillar subsidence and the hydrologic stability of the Eagle Project. NWF lawyer, Michelle Halley, stated that the DEQ initially ignored the requests then submitted only partial information before finally releasing the report.

In a phone interview, Steven Wilson, in the DEQ’s Office of Geological Survey, noted that, at the agency, “many reports get lost or shredded.”[2]

The report, commissioned by the DEQ through David Sainsbury of Itasca Consulting Group, Inc., offered a revealing criticism of Kennecott’s method of assessing the crown pillar stability of the proposed Eagle Mine:

“The analysis techniques used to assess the crown pillar stability of Eagle Mine 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….The Scaled Span analysis conducted clearly indicates that stability of the proposed Eagle crown pillar should be a concern, although this concern has not been raised within the conclusions of the Eagle Project Geotechnical Study. Considering the sensitive nature of the hydrological environment surrounding the Eagle project, further detailed analysis is required to understand fully the expected short- and long-term crown pillar subsidence and hydrologic stability.”[3]

Sainsbury noted further that, “The procedure used to determine the equivalent UCS from the point-load test results is based upon a procedure no longer current within the mining industry.”[4]

The report also demonstrates that the company has made claims in its permit application that are simply untrue:

“The Eagle Project Mining Permit Application states that both plastic and elastic deformations of the crown-pillar rock mass were evaluated. In fact, no analyses were conducted using plasticity theory to predict shear and tensile failure of the rock mass.”[5]

Eagle Mine project manager, Jon Cherry has said, “The Eagle Mine will contribute substantially to the economic well-being of the Marquette area and its families.”[6] Kennecott president and CEO, David Salisbury, noted, “It is our experience that if we do it right, the people will be better off when we leave in comparison to when we arrived. That’s what our interest is. We want people to be better off.”[7] Also, Kennecott has noted repeatedly, in its public relations, that it is a modern company, using sophisticated technology, that the Eagle Project would be done safely because Kennecott uses updated technology and is a “different Kennecott” than it was formerly.

The Itasca report does sheds a glaring light on Kennecott’s professed benevolence to the local community.

The DEQ’s current conduct should be viewed in the proper context.

In 1995, by executive order, Governor John Engler[8] split the Michigan DNR, forming the DEQ. Seventeen citizen oversight committees were eliminated while, in both departments, field staff were reduced in order to expand the amount of administrative positions. The amount of funding increased for the DNR and DEQ, collectively, from what had previously been allocated.[9]

In 1995, the DNR denied a permit application from Technisand Mining Co. Technisand was attempting to expand an existing mine that would level a protected sand dune, near St. Joseph. The DNR noted that the company did not qualify for an exemption in Section 2b of Section 63702 of the 1976 Sand Dune Protection and Management Act (“SDPA”, which constitutes Part 637 under Michigan’s Natural Resources and Environmental Protection Act, “NREPA”):

“(1) Notwithstanding any other provision of this part, the department shall not issue a sand dune mining permit within a critical dune area as defined in part 353 after July 5, 1989, except under either of the following circumstances: (a) the operator seeks to renew or amend a sand dune mining permit that was issued prior to July 5, 1989….(b) the operator….is seeking to amend the mining permit to include land that is adjacent to property the operator is permitted to mine, and prior to July 5, 1989 the operator owned the land….for which the operator seeks an amended permit.” [10]

On April 1, 1996, the DEQ wrote to Technisand:

“Since April of 1995 there have been many changes in state government and the DNR/DEQ in particular. Some of these changes coupled with additional information that Technisand has apparently supplied to the Michigan Attorney General’s Office are instrumental in the GSD’s ability to proceed with the review of your amendment request.”[11]

The DEQ informed Technisand regarding what the company should address in a potential permit to the DEQ. Technisand submitted a revised proposal, which the DEQ approved on November 26.

In 2000, Preserve the Dunes lost their motion in circuit court because the action was made more than 60 days following the issuance of the permit and that “any adverse impact on natural resources will not rise to the level of impairment or destruction of natural resources within the meaning of MEPA.” However, the state Court of Appeals overturned the ruling, citing Michigan Environmental Protection Act (MEPA) subsections (a) and (b) S. 63702.

The DEQ has not disputed that S. 63702 would deny Technisand the permit. However, the agency has selectively read the law in order to justify its action. The DEQ claims that S. 63702 is overridden by S. 63709:

“The department shall deny a sand dune mining permit if, upon review of the environmental impact statement, it determines that the proposed sand dune mining activity is likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in those resources, as provided by part 17 [of NREPA].”[12]

On July 30, 2004, without ruling on whether or not the DEQ-issued permit was legal, the Michigan Supreme Court reversed the Court of Appeals ruling, stating that Technisand’s permit could not be rejected based upon provisions in the MEPA.

The Preserve the Dunes v. DEQ and Technisand Mining Co.[13] case relates closely with another Michigan Supreme Court case involving the DEQ: National Wildlife Federation and Upper Peninsula Wildlife Council v. Cleveland Cliffs Iron Company and DEQ. In both cases, Court opinions were filed on July 30, 2004. Also, both demonstrate a certain form of constitutional federalism that is now gaining prevalence in Michigan courts.

In a contested case hearing with the DEQ as well as in Michigan circuit court and court of appeals, the plaintiffs in NWF & UPEC v. CCI & DEQ were denied standing under the provisions of MEPA. However, a unanimous Michigan Supreme Court decision granted the plaintiffs standing because they passed federal standing requirements that require plaintiffs to demonstrate a “particularized” injury. The four justice majority inferred that standing would not have been granted solely under the provisions of MEPA.

The majority noted that the US Constitution delegates the judiciary authority in “applying, according to the principles of right and justice, the constitution and laws to facts and transactions in cases” yet, maintains that providing standing to a plaintiff under MEPA’s direction would mean requiring the judiciary to violate the Article 3, Section 2 of the Michigan Constitution that ensures the separation of the legislative, executive and judicial branches of government.

In her opinion, Justice Weaver cited MEPA’s “citizen-suit” provision:

MCL 324.1701 (1) “The attorney general or any person may maintain an action in the circuit court having jurisdiction where the alleged violation occurred or is likely to occur for declaratory and equitable relief against any person for the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction.”

Professor Joseph Sax, who drafted the original MEPA legislation in the early 1970s, wrote a supporting amicus curiae asserting that the MEPA legislation conformed directly to provisions in the 1963 Michigan Constitution that noted “the conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.” [14]

Justice Weaver notes that MEPA’s conformation with the Michigan Constitution goes further in coinciding with the Constitution’s Article 3, Section 7, as well as Article 1, Section 1: “All political power is inherent in the people. Government is instituted for their equal benefit, security and protection.”

Citing the US Supreme Court decision in Lujan v. Defenders of Wildlife (1992) in its decision in Lee v. Macomb County Board of Commissioners (2001), the Michigan Supreme Court first applied federal standing provisions, relating to Article III of the US Constitution, to Michigan court cases. However, the US Supreme Court case, ASARCO, Inc. v. Kadish (1989) asserted that the Court “recognized often that the constraints of Article III do not apply to state courts, and accordingly the state courts are not bound by the limitations of a case or controversy or other federal rules of justicibility.”

In Ray v. Mason County Drain Commissioner (1975) and Eyde v. State of Michigan (1975), the Michigan Supreme Court had reaffirmed MEPA’s provision to allow “any person” to file legal action regarding a threat to the state’s environment. In no case between these and Lee did the Michigan Supreme Court require a plaintiff prove standing based upon constitutional (US or Michigan) rather than prudential grounds. Indeed, the US Supreme Court applied prudential standing considerations to environment-related federal cases in Bennett v. Spear (1997): “the grant of standing to “any person” under the Endangered Species Act….must be taken at “face value” because “the overall subject matter of this legislation is the environment (a matter in which it is common to think that all persons have an interest) and that the obvious purpose of the provision is to encourage enforcement by so-called “private attorneys general” [individual persons].”

Justice Weaver’s opinion further notes that the US Supreme Court, in Friends of the Earth, Inc. v. Laidlaw Environmental Services (2000), “tempered its application of the Lujan [“particularized injury”] requirement, holding that a plaintiff’s “reasonable concerns” that a defendant’s conduct would affect their recreational, aesthetic, and economic interest was sufficient.”

Weaver, however, asserts that Article 3, Section 8 of the Michigan Constitution “grants power to the legislature and the governor to request an advisory opinion on the constitutionality of legislation” and further that the Constitution places in the legislature the authority to enact laws and the judiciary to decide cases based upon those laws.

Thus, in refusing to follow provisions in MEPA in granting standing to cases of environmental significance, as well as the above noted legislative and judicial duties provided for in the Michigan Constitution, the present Court majority insinuates that the Michigan Legislature, in creating MEPA, violated the Michigan State Constitution.

With this “judicial activism…disguised as judicial restraint” in mind, Justice Weaver asserts that the Court has “constitutionalized Michigan’s judicial standing test. In so doing, the majority usurps the Legislature’s authority to modify or abrogate the judiciary’s prudential standing constraints. It is, thus, the majority’s application of [the US Constitutional] Article III-based test to this and future MEPA cases that will disrupt Michigan’s “constitutional architecture” and the legislatively conferred access to the courts.”

Similarly, in a case filed by the Yellow Dog Watershed Preserve, Keweenaw Bay Indian Community and the Huron Mountain Club, the Michigan Court of Appeals decided that the plaintiffs did not have standing as they were not directly “aggrieved” when the DEQ accepted the Kennecott Eagle Mining Co. permit as “administratively complete.”[15] The plaintiffs chose to not carry the case to the Michigan Supreme Court, waiting to apply again, perhaps, after a DEQ final approval of the permit.

While the DEQ is known as a go-between for mining companies, its connections to big industry are perhaps best exemplified in the state’s dioxin debacle.

In 2001, tipped off by a DEQ insider, the Lone Tree Council and Michigan Environmental Council filed a FOIA regarding DEQ testing of dioxin levels south of Saginaw.

In April, 2000, while conducting a wetland mitigation project, General Motors Corporation (GM) found elevated levels of dioxin (as well as dibenszofuran compounds) in a farm field near the confluence of the Tittawbawasee and Saginaw Rivers. The samples contained concentrations of dioxin as high as 2,199 ppt (parts-per-trillion) in toxic equivalence factor units (TEF). From December 2000 to June, 2001, in the interest of public safety, the DEQ collected soil samples from five locations in the Tittawbawasee River flood plain, south of Saginaw. The thirty-four samples collected showed dioxin concentrations ranging from 39 to 7,261 ppt with only five samples containing TEF concentrations less than the NREPA (Part 201) recommended residential criteria of 90 ppt or less.[16]

The FOIA request revealed that agency director Russ Harding had suppressed information regarding the soil tests and refused to give approval for any further soil testing of the Tittawbawasee floodplain. Harding also suppressed an internal state health assessment that recommended immediate government action. Harding went so far as to blacken out sections and redact certain public documents that referred to Dow Chemical’s involvement in the dioxin contamination.[17]

The director attempted to alter Part 201 of NREPA to increase the amount of allowable dioxin in residential and industrial areas, in order to better accommodate Dow Chemical’s operations, creating a “dioxin zone” in the Midland and the Tittawbawasee floodplain that would allow permissible levels of dioxins more than ten times above the state’s health standards. Also included in DEQ-Dow discussions was a relaxation over Dow’s accountability in possible future litigation regarding the dioxin’s effect on public health as well as the DEQ allowing DOW to review the DEQ.[18] Michigan Attorney General, Jennifer Granholm, informed the DEQ that, because the deal did not follow proper administrative procedure and was performed without public knowledge the action would be considered illegal.[19]

In January, 2002, Granholm filed a lawsuit in the Ingham County Circuit Court in order to fine Radian International LLC up to $4 million for repeated violations of Michigan’s hazardous waste and air pollution laws (under Parts 111 and 55 of NREPA). The violations concerned Radian’s activities at the Dow Chemical wastewater treatment facility, in Midland, from 1997-98. The company had been hired to dry and burn dioxin-containing hazardous wastes, which found its way into the area soil and roadways. The lawsuit did not involve Dow Chemical, itself, as the company was then negotiating a private settlement with the DEQ.[20]

In the October 2004 issue of Chemical Policy Alert Magazine, Harding, who now works for the Dow-funded Mackinaw Center for Public Policy said that the cost of cleanup for Dow “would be a huge expense for them for what they think is not money well-spent.”[21]

Since the DEQ’s founding, in 1995, numerous citizen groups have looked to the agency as a rotten apple on the legislative branch of state government.

In 1998, the group Public Employees for Environmental Responsibility (PEER) conducted a survey of all 1,462 DEQ employees. 609, or 41.6%, responded to the survey. A startling 81% of respondents said that they “did not trust top management of the DEQ to protect Michigan’s resources and public health.” 55% of respondents either “disagreed” or “strongly disagreed” that “the DEQ disseminates complete and accurate agency information to the general public.”[22]

The DEQ has yet to shed its public image as a rogue agency.

1 Michigan DEQ, Press Release, March 1, 2007

2 Wilson, Steve, DEQ, Office of Geological Survey, Telephone Interview, March 28, 2007

3 Sainsbury, David, “Technical Review: Crown Pillar Subsidence and Hydrologic Stability Assessment for the Proposed Eagle Mine” Itasca Consulting Group, Inc. report to MFG, Inc. & Michigan DEQ, May 22, 2006

4 Ibid

5 Ibid

6 AP and Journal Staff, “Judge: DEQ can continue Kennecott permit process”, The Mining Journal, September 16, 2006

7 Eggleston, Sam “Kennecott Mine: Contractor Guidelines Explained” The Mining Journal, February 23, 2007

8 When the state of Michigan enacted legislation prohibiting oil and gas development in the Nordhouse Dunes, a protected wilderness area, the DNR rejected a permit by the Miller Brothers Oil Company. A trial court ruled in favor of Miller Brothers and the court of appeals affirmed that, by regulating the Nordhouse Dunes, the state had effected a “taking” of the company’s “property.” However, “before the end of the trial on the compensation issue, and prior to any appeals, Governor Engler negotiated a settlement of the case.” The State ended up paying the plaintiffs $90. [Echeverria, John, “Changing the Rules by Changing the Players: The Environmental Issue in State Judicial Elections” New York Environmental Law Journal Vol., 9, 2001, pgs. 269-87]

9 Environmental Working Group “Pollution Pays: Michigan, Failure to Enforce Clean Water Laws In Michigan” January 31, 2000

10 Preserve the Dunes Brief in 2nd Circuit Court

11 Cited from Preserve the Dunes Brief in Michigan Court of Appeals case Preserve the Dunes, Inc. v. DEQ and Technisand, Inc.

12 Cited from Ibid

13 See: Court Document
&
Court Document

14 Sax, Joseph L. “Brief on Appeal of Joseph L. Sax as Amicus Curiae in Support of Plaintiffs-Appellees,” October 20, 2003

15 Supra, 5

16 MECProtects.org, “Citizens Ask For Federal Probe Into Major Dioxin Cover-up in Michigan” January 31, 2002 Press Release

17 Bhopal.net, “Dow Stooge Says Dioxin Risk to Residents Should Be Based on Science” June 26, 2006

18 Mindfully.org, “Michigan Environment Agency in Collusion with Dow Chemical to Create Dioxin Zone,” Press Release, October 22, 2002

19 Bhopal.net, “The New Dow-funded Study in Midland, Michigan: Insider Dr. von X Gives His View” August 19, 2006

20 Editorial Staff, “Michigan Files Lawsuit for Hazardous Waste Violations,” Ohio?, January 28, 2002

21 Bhopal.net, “Dow Stooge Says Dioxin Risk to Residents Should Be Based on Science,” June 26, 2006

22 PEER “1998 PEER Survey of Michigan DEQ Employees,” 1998