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.

Bob and Pat Tammen Canoe on Birch Lake; Photo courtesy Lori Andresen

On November 19, the White Iron Chain of Lakes Association (WICOLA) outlined plans before the Lake County Board for an extensive water testing effort of the Kawishiwi River watershed in order to locate pollution sources and prevent future pollution.  The project would be funded with $500,000 from the Minnesota Pollution Control Agency and could possibly attract matching funds.

WICOLA, which has not taken a stance on the metallic sulfide mining controversy, has been conducting water testing for years.  The $500,000 investment in remote Lake County would be much more comprehensive than previous efforts.

Franconia Minerals Exploration Barge on Birch Lake; Photo courtesy Lori Andresen

Although companies actively pursuing projects in northeastern Minnesota between the Boundary Waters Canoe Area Wilderness and Lake Superior claim that future mining operations would be “sustainable” and have few, if any negative affects on the surrounding environment, Duluth Metals seems concerned with an extensive testing regime that would establish baseline water conditions, allowing future pollution to be readily detected.  Duluth Metals and Franconia Minerals are both conducting extensive exploration at Birch Lake, which feeds into the White Iron Chain of Lakes and, ultimately, the Boundary Waters and Hudson’s Bay.  Franconia is exploring directly underneath Birch Lake.

Claiming to represent the mining industry, David Oliver, project manager for Duluth Metal’s Nokomis Project, expressed opposition to the proposal and warned WICOLA that they should only be affiliated with metallic sulfide mine supporters.

“The reputation you have is not based on loose associations or casual associations, it comes from newsletters written by Brad Sagen, Carla Arneson, Bob Tammen and we even have a new film star here tonight, Steve (Koschak) in a new anti-mining film,” said Oliver.

Bob Tammen is a retired iron worker from the Minnesota Iron Range and has worked in other area iron mines.  Steve Koschak owns a successful family resort on the edge of the Boundary Waters Wilderness.

A paranoid Oliver claimed that “half of this crowd isn’t part of WICOLA… which leads me to believe the crew tonight was hand-picked. . . You have members who have written in their own newsletters very shortly after the last meeting… that they’re going to form a watershed plan to stop whatever they’re against.”

Duluth Metals has located what is called the Nokomis Project, in northeastern Minnesota.  The company was recently nominated by the Mining Journal for its success in locating the deposit, considered to be possibly one of the world’s largest copper, nickel, platinum, palladium and gold deposits.

The study shows that, out of a little over 600 regulated facilities in Michigan, nearly 60% have violated the Clean Water Act.  More disturbingly, only 11% of all known violations met with any kind of enforcement action from the Michigan Department of Environmental Quality (MDEQ) or other agencies charged with enforcement.

Minnesota doesn’t fare much better, with enforcement of only 12% of all violations, while Wisconsin has enforced 33% of its violations.

Some results of the Time’s study are displayed in an easy-to-use format that allows viewers to locate statistics on Clean Water Act violations and lack of enforcement, by state, as well as find Clean Water Act violators in each state.

In the Michigan county where a metallic sulfide mine, proposed by

Cliff's Natural Resources' Tilden Mine, in Marquette County; Photo courtesy Michigan State University

Kennecott/Rio Tinto, has been approved by the MDEQ, Clean Water Act violators include A. Lindberg & Sons, which has been hired by Rio Tinto to construct a road to haul ore to a proposed milling facility; Cliffs Natural Resources’ Tilden iron ore mine; the Ironwood Oil Company and Shopko, in Marquette, in addition to both of the community’s coal-fired power plants; as well as both Marquette and Richmond Township’s wastewater treatment plants.

According to the Times the Marquette Wastewater Treatment plant “has been out of regulatory compliance 11 of the past 12 quarters,” and has never faced enforcement for violations of the Clean Water Act, while Cliff’s Tilden Mine, last punished for violating the Clean Water Act in 2007, has violated in “8 of the past 12 quarters.”  According to the Times, both of Marquette’s power plants, while shown to be consistent violators, have never been enforced for failing to follow federal law.

On Minnesota’s Iron Range, iron miners are shown to be consistent polluters, alongside power plants.  The Northshore Mining Co./Cliffs MnMinerals Co. , in Babbitt, is shown to have violated the Clean Water Act during the entire duration of the study, while the Cliffs Erie facility, near Lake Superior, has been shown to be a consistent violator.

The information came as the result of an extensive survey of water law violations and widespread lack of enforcement that utilized hundreds of thousands of documents obtained through open records requests with every single state and the Environmental Protection Agency (EPA).  With the information, the Times created

Steven Chester, Michigan DEQ Director; Photo courtesy State of Michigan

a national water pollution database “that is more comprehensive than those monitored by states or the E.P.A.”

The Time’s study shows that, while “powerful industries,” such as mining, have helped to “undermine effective regulation,” increased workloads and a lack of funding has contributed to many state’s lack of enforcement.

In September 2008, MDEQ Director Steven Chester acknowledged that his agency “simply [doesn't] have the kind of funding we need to adequately implement the laws we’re required to implement.”

In an interview with the Marquette Mining Journal, Steve Casey, an official with the Michigan Department of Environmental Quality’s Water Bureau said, “This is the first time we’ve had a significant issue with selenium in Michigan.”

However, according to DEQ records, elevated selenium levels are also found near the old Humboldt Mine, in western Marquette County.  Kennecott-Rio Tinto is attempting to use the area to process metallic sulfide ore from the proposed Eagle Project Mine.

Selenium, like mercury, can bioaccumulate up the food chain, creating potential public health problems when people ingest contaminated fish or other animals.

Casey says that water in a hypothetical new drinking water well at the site shouldn’t be affected by the discharges and wouldn’ t be likely to exceed drinking water standards for selenium.

“Cliffs has been working with DEQ to identify what the potential source of this element is,” Cliffs spokesman Dale Hemmila said. “Right now there is no source identified.  We believe additional studies have to be done.”

Hemmila says that there is “no known known impact on the drinking water.”

The DEQ has set selenium limits on process wastewater discharge from the Empire Mine that are due to take effect in December 2011.

Cliffs maintains other iron ore mines, as well as coal operations elsewhere in North America and abroad.

Marquette, Michigan – Current pollution from past chemical, mining and military operations were addressed alongside the potential for continued public health threats posed by coal power generation and mining activities, Thursday, at the Women’s Federated Clubhouse, in Marquette. The event, organized by the Great Lakes Health and Environment Action League (HEAL), featured presentations by area health professionals, toxicologists and university professors.

Event moderator, Gene Champagne, said the event was significant for many because public health concerns are “universal.”

“No one wants to be ill,” said Champagne. “We’re talking about the health, our own health, our parents, our children. That matters to everyone.”

Heavy Metals a Concern in Water and Air
Dr. Lisa Long, a family practitioner in Negaunee, discussed various heavy metals and their potential to affect human health. According to Long, metals such as arsenic, lead, chromium, thallium and cadmium are commonly associated with mine-related pollution. Cadmium, which is also contained in sewage sludge fertilizers, as well as medical and household incinerated waste, is also commonly found in cigarettes.

“If you smoke, you’ve got twice the exposure as somebody who doesn’t,” said Long.

Although highly toxic, particularly to children and pregnant women, lead is also fairly common in everyday life. “The only metal with more commercial uses is iron,” said Long.

According to Long, lead has a “sweet” taste and was commonly used by ancient Romans to sweeten cheap wine. It is that sweetness that makes the metal attractive to young children exposed to the metal. Children absorb roughly fifty percent of lead they ingest, compared to only ten to fifteen percent for adults. The absorption rate is higher with airborne exposure to lead.

Dr. Alan Olson said that, for metals like lead, “zero tolerance should be the rule.”

Shawn Devlin, of Chocolay Township, disagreed. “When you argue for zero you lose credibility,” Devlin said. “There are natural levels of all these things.”

Dr. Scott Emerson, a toxicologist and emergency room physician at Marquette General Hospital, responded that lead has no positive function in the human body and is only found in unsafe amounts as a result of industrial activities.

Dr. Scott Emerson explaining how much lead the human body requires

“There is no safe level for lead, period,” Emerson said.

Emerson also discussed the role of mercury in affecting public health near mining operations. According to Emerson, high sulfate levels in water can assist in increasing concentrations of methyl mercury, a potential problem at Kennecott Mineral’s proposed Eagle Project mine and Humboldt milling facility, both in Marquette County.

Emerson describes methylated mercury as “the most dangerous neurotoxic form of mercury. You get a very aggressive toxin that can go right into the brain and is very readily absorbed.”

According to Dr. Gail Griffith, professor emeritus of Northern Michigan University’s (NMU) chemistry department, coal-fired power plants are another source of mercury, which bio-accumulates in fish tissue and can cause serious human health problems, particularly in young children.

Orthopedic surgeon, Dr. Clayton Peimer cautioned that exposure to “micro-particulates” can be hazardous even if the substance does not contain toxic elements like lead.

“If someone says to you “micro-particles,” go get a mask,” warned Peimer.

Dr. Emerson agreed, maintaining that air pollution “is much more dangerous and has much more impact on health than even the water pollution does”

This surprised Negaunee resident Laura Royea.

“The environmental concerns, the airborne pollutants were very important, the particulate matter,” said Royea. “I had not considered that. I always thought of runoff into the streams and, you know, I didn’t think of the things that become airborne and travel much farther.”

Audience Members at "Your Water Your Health" event

Public Health Threats in the UP

Dr. Griffith discussed ongoing contamination at a number of sites throughout the Upper Peninsula, including the former Cliffs-Dow site that produced charcoal and wood distillate chemicals in the City of Marquette. The company’s dumps closed in the 1960s and eventually became federally-listed Superfund sites.

“You could always tell when they were cleaning out the stills because you could smell it,” said Griffith

For over fifty years, Cleveland Cliffs International (now Cliffs Natural Resources) released mercury from it’s Ishpeming laboratories into the city’s wastewater. That mercury found its way to Deer Lake.

“Some fish of some types from some bodies of water you should never ever eat and that is Deer Lake, for example,” said Griffith.

Griffith explained current public health threats posed by other sites, such as Torch Lake, near Houghton, and the former K.I. Sawyer Air Force Base, northeast of Gwinn. Although the air force complex was closed in the early 1990s, underground storage tanks, landfills, munitions testing areas and fuel spills continue to threaten groundwater quality.

“As we speak there is still a plume of jet fuel headed for Silver Lead Creek,” Griffith said.

Griffith also discussed problems associated with radioactive materials. Republic is considered a “hotspot” for radon, the second major cause of lung cancer, after smoking. In the 1990s, a survey of Republic homes showed that eighty-four percent exceeded maximum exposure levels for the dangerous gas.

A different radioactive element, uranium, has been found in residential wells along the Keweenaw Peninsula, prompting exploration companies to explore for the substance near Lake Gogebic.

“So far they’ve found a little sniff of it but not very much,” said Griffith.

According to NMU sociology professor, Dr. Patricia Cianciolo, new uranium and metallic mining proposals have received some support due to the potential for increased job creation.

“People leave this area when they are young because there is a lack of jobs,” said Cianciolo.

Cianciolo said the lack of regional mine employment pales when compared to the potential threat to residential wells and aquifers from metallic sulfide and uranium mining projects in the western UP.

“It’s just profound to see how close the potential mine sites would be to our major water supplies,” said Cianciolo.

Flambeau Mine Still Polluting
Mining was also a strong theme in Dr. Emerson’s presentation. Emerson explained that Kennecott Mineral’s closed Flambeau copper mine, in Wisconsin, polluted the nearby Flambeau River and continues to discharge high levels of unregulated heavy metals.

“The best predictor of future behavior is past behavior,” Emerson explained. “Kennecott, in general, has not left a good footprint when they have had past mining.”

Emerson said that high levels of manganese have been of particular concern at the Flambeau site. Chronic exposure “basically causes a schizophrenic type psychotic illness which can progress to motor abnormalities and Parkinson’s-type disease,” Emerson said.

“Although they did test the Flambeau River all the testing was done above where the most contaminated stream was in confluence with the Flambeau River,” said Emerson.

“There seems to be some real regulatory failure on the part of the State of Wisconsin on this.”

Marquette resident Brenda Hershey said that the information on Flambeau made her “more concerned.”

“When the research showed they were above levels they just stopped the research,” said Hershey. “How can we base decisions about Marquette [County] on information that is not complete?”

According to Emerson, despite high levels of “indicator” metals, such as copper and zinc, studies for lead and other heavy metal contamination at the Flambeau mine site were not presented to the public. Studies conducted by Colorado-based Stratus Consulting showed that, based on Flambeau results, Kennecott’s proposed Eagle mine could have lead levels nine times what is allowed in the mining permit issued by the Michigan Department of Environmental Quality as well as high levels of cadmium, which can cause kidney damage.

“This is at best regulatory incompetence and, at worst, highly unethical shenanigans on the part of the DEQ,” said Emerson.
According to HEAL’s website, the group “is an information warehouse focused on water and air quality and related environmental health topics in the Great Lakes Basin” and sees it’s role as a facilitator of “user-friendly” information between the citizens and science and health professionals.

Metallic sulfide mining on the Yellow Dog Plains threatens the last remaining naturally reproducing population of the potamodromous Coaster Brook Trout (Salvelinus fontinalis) on the southern shore of Lake Superior. Because the trout is not located within the boundaries of the actual mine site, Kennecott Mineral’s Environmental Impact Assessment makes no mention of the trout that its operations would invariably impact.[1]

On April 10, 2007, Patrick Kochanny, Chairman of Michigan Trout Unlimited (MCTU) issued a press release stating that “Trout Unlimited and the Michigan Council strongly oppose this project, and believe that it is in the best interest of the State of Michigan and the Salmon Trout River to deny Kennecott’s application at this time.”[2

Kochanny continued: “We are seriously concerned that [the DEQ’s] analysis and review of the permit application may not have been conducted properly.”

This recent position offers a refreshing contrast to MCTU’s previously tepid statements regarding the proposed project.

In February, 2006, the Sierra Club and Huron Mountain Club (HMC) filed a joint petition with the US Fish and Wildlife Service (USFWS) to seek protection for the Coaster Brook Trout, under the Endangered Species Act.[3] USFWS has not taken action nor have the Sierra Club and HMC countered that inaction with a lawsuit.

Carefully ignoring any specifics of the potential threat to the Coasters, the Michigan Chapter of Trout Unlimited issued a statement, in response to the petition:

1. The means to recovery – whether through habitat restoration and other management actions or the application of the Endangered Species Act – is less important than the ultimate result that these remarkable fish are recovered.”[4]

Certain MCTU local chapters have gone further by insinuating support of the project. Doug Miller, president of the Fred Waara chapter of Trout Unlimited said “it is in Kennecott’s best interest to protect the environment….this company has deep pockets; if something goes wrong, they do have the resources to fix it…we would rather not see a mine on the Yellow Dog Plains, but I believe we need to face reality. If we use the resources then we will have mines. If we have mines, then we need strong regulations to ensure the environment is protected. Instead of trying to kill Kennecott, we should be working in coordination with other environmental groups to ensure that we get the resources that we all seem to want and protect the environment as well.”[5]

There was a degree of frustration at the Wisconsin chapter of Trout Unlimited over Michigan’s inability to effectively protect the trout from the proposed project. In March, 2007, Bill Pielsticker, Legislative Chair of Wisconsin TU said that they “will do what [they] can to see that it is protected. However, we are quite limited….and may be restricted to support for actions [sic] by Michigan TU.”[6]

Following the MCTU press release, Miller says that Fred Waara TU’s position on the project “coincides with that of the Michigan chapter.” Kochanny said this position was made at a March 30, 2007 meeting, following an extensive review of Kennecott’s mining application by “outside experts” and commented that “there is no room for error” when considering projected impacts to the Salmon-Trout River spawning grounds.

1 Kennecott Eagle Mining Co. “Eagle Project Mining Permit Application, Vol. 2: Environmental Impact Assessment,” February, 2006

2 Michigan Council of Trout Unlimited, “Michigan Council Trout Unlimited Stands Firm Against Kennecott Mine Project,” Press Release, April 10, 2007

3 Sierra Club & Huron Mountain Club “Petition for a Rule to List the Anadromous Coaster Brook Trout Under the Endangered Species Act,” February 22, 2006

4 Michigan Chapter TU “TU Statement Regarding Proposal to List Coasters Under the ESA,” MCTU Website

5 Miller, Doug Fred Waara TU Opinion Paper, 2005

6 Pielsticker, Bill (Wisconsin TU), E-mail exchange, March 14, 2007

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