Wisconsin Resources Protection Council

June 1, 2020

Coalition to SAVE the Menominee River, Inc.
P.O. Box 475
Marinette, Wisconsin 54143

Mr. Luke Trumble,
Michigan Department of Environment, Great Lakes and Energy
Dam Safety Unit
P.O. Box 30473
525 West Allegan Street
Lansing, MI 48909-7923

Dear Mr. Trumble,

We are writing to express our concerns about the permitting process for the Back Forty tailings dam in light of the unprecedented flooding after two dams collapsed in Michigan following record rainfall.

The Edenville Dam was breached after Midland received 4.7 inches of rain in a 48-hour period, following days of heavy rain across the state. Much of Midland, a city of more than 40,000, was submerged in floodwaters that flowed into a large Dow Chemical complex and threatened a vast Superfund toxic cleanup site downriver. Thousands of residents of Edenville, Midland and Sanford were forced to flee their homes and businesses along the Tittabawassee River.

The National Weather Service in Detroit described a “particularly dangerous situation” and a “catastrophic” flood threat. Governor Gretchen Whitmer issued an emergency declaration, noting that the flood severity is on the order of a 500-year event. A previous flood in Midland County in 1986 was considered a once-every-500-years flood.

You are, of course, quite familiar with the Edenville Dam because you inspected the dam on October 4, 2018, following the issuance of a Federal Energy Regulatory Commission (FERC) order revoking the license of the dam’s owner.

According to The Detroit News, federal regulators were concerned about the dam since at least 1999, when its owners were warned that more spillway capacity to help direct excess water around the dam was needed in order to avoid a potential collapse. The dam was on FERC’s list of “high hazard” dams, meaning that its failure could damage property and threaten lives. FERC warned that the dam “could not handle 50 percent of a probable maximum flood for the region.”

Nevertheless, you reported that the dam “was observed to be in fair structural condition” and that “there were no observed deficiencies that would be expected to cause immediate failure of the dam.” The state of Michigan did not impose any repair requirements on the owners of the dam despite FERC revoking their license.

The Edenville and Sanford dams that failed were water-retention dams made of concrete and steel. In contrast, the upstream dam design proposed for the Back Forty tailings dam is made of crushed waste rock and overburden soil. If the more stable water-retention dams were unable to withstand a 500 year flood event, we have serious concerns that Aquila’s far less stable Back Forty tailings dam would be able to withstand a similar challenge. The 24-hour 100-year precipitation criterion in the Part 632 mine regulations is outdated and in need of revision in this era of climate change and extreme rainfall events.

EGLE’s previously stated response to citizen concerns about extreme rainfall events was that “contingencies are included in the mine plan to address outlier events.” This technological optimism is scientifically unwarranted and ignores the record of 46 catastrophic tailings dam failures in the past 20 years.

Heavy rain has been implicated in 25% of global and 35% of European tailings dam failures (M. Rico et al., 2008. “Reported tailings dam failures: a review of the European incidents in the worldwide context, “ Journal of Hazardous Materials, 152, pp. 846-852).

The U.S. Environmental Protection Agency has warned of the extreme vulnerability of the upstream dam construction method to sudden failure in areas of heavy rainfall. “A tailings pond that is expected to receive high rates of water accumulation (due to climatic and topographic conditions) should be constructed using a method other than upstream construction.”

In response to a previous citizen comment about the inadequacy of the 24-hour 100-year rainfall event criterion, EGLE stated that they “have the authority to require a mining permit to be amended if it can be demonstrated that the terms and conditions of the mining permit are not providing the intended reasonable protection of the environment, natural resources, and public health and safety.” (Summary Response to Comments, Back Forty Mining Permit Amendment Application November 2018, Oil, Gas, and Minerals Division, December 12, 2019).

In light of the recent dam failures and the well-documented threat of upstream dam failure for the proposed Back Forty tailings dam in an area of heavy rainfall, we are asking EGLE to exercise your authority to prohibit the upstream dam construction design for the proposed Back Forty tailings dam.

If EGLE fails to prohibit a dam design that has already been banned in Brazil, Chile and Ecuador as an inherently risky technology, the communities downstream from the Back Forty’s tailings dam can only interpret this decision as placing Aquila’s corporate profits over public health, safety and clean drinking water.
Sincerely,

Dale Burie, President
Coalition to SAVE the Menominee River, Inc.

Cc: Governor Gretchen Whitmer
Liesel Clark, Director of EGLE:
Teresa Seidel, Director of the Water Resources Division
Jill Van Dyke, Geology Specialist, Water Use Program
Mario Fusco, Environmental Engineer, Unit Supervisor, Hydrology
Dan De Vaun, Dam Safety Engineer
Adam Wygant, Director, Oil, Gas and Minerals Division
Mark Snow, Oil, Gas and Minerals Division
Katie Kruse, Environmental Justice and Tribal Liaison
Ryan Mc Cone, Water Resources Division
Michael McClellan, Environmental Support Division
Eric Oswald, Drinking Water and Environmental Health Division
Melanie Humphrey, Oil, Gas and Minerals Division

U.S. Senator Debbie Stabenow
U.S. Senator Gary Peters
U.S. Representative Jack Bergman
Congressman Dan Kildee
Governor Tony Evers
U.S. Senator Tammy Baldwin
U.S. Senator Ron Johnson
U.S. Representative Mike Gallagher
State Senator Dave Hansen
State Representative Jeffrey Mursau
Ann Kipper, Deputy Division Administrator, Wisconsin DNR
Gregory Pils, Bureau Director, DNR Central Office
Preston Cole, Wisconsin DNR Secretary
Joan Delabreau, Menominee Tribal Chairperson
Doug Cox, Menominee Environmental Task Force
Guy (Anahkwet) Reiter, Menikanaehkem
David M. Chambers, Ph.D., P. Geop., President, Center for Science in Public Participation (CSP2)
Dr. Al Gedicks, Executive Secretary, Wisconsin Resources Protection Council
Jessie Thomas-Blate, Director of River Restoration and Most Endangered Rivers Manager, American Rivers
Shanyn Viars, Economic and Policy Research Associate, American Rivers
Allison Werner, Policy and Advocate Director, River Alliance