December 2013 Newsletter
December 12, 2013
Dear WRPC Member,
Kennecott/Rio Tinto’s Flambeau Mining Company (FMC) appealed its conviction for violating the Clean Water Act at its partially reclaimed Flambeau mine to the U.S. Court of Appeals for the 7th Circuit in Chicago.
Flambeau Mining is let off the hook for pollution
In October 2013 the Appeals Court let FMC off the hook by ruling that the mining permit issued to FMC by the State of Wisconsin “shielded” the company from prosecution and that we (the three plaintiffs, WRPC, the Center for Biological Diversity (CBD) and Laura Gauger) therefore could not enforce the Clean Water Act against FMC even though the company had indeed violated the Act, as determined by the U.S. District Court in Madison, WI.
This means that no one is going to be held accountable for the fact that the Flambeau mine has polluted a tributary of the Flambeau River to the point where the Wisconsin DNR has recommended to the U.S. Environmental Protection Agency (EPA) that the stream be listed as “impaired” for copper and zinc toxicity linked to the mining operation. And, as Laura Gauger has emphasized, “absolutely NOTHING has been done about the high levels of toxins (most notably manganese) in the groundwater at the mine site.” Thanks to Kennecott’s lobbying during the 1980s, groundwater pollution at mine sites in Wisconsin has been declared legal by the Wisconsin DNR (NR 182.075, Wisconsin Administrative Code). That’s not all.
Rio Tinto Targets Clean Water Advocates in Wisconsin
Not content with winning its case, Rio Tinto (RT), one of the wealthiest multinational mining corporations in the world, is going after WRPC, CBD and Laura Gauger to recover various “costs of litigation” in the lawsuit to the tune of $152,000. As the prevailing party in the lawsuit, RT does not need to recover any costs. It made over $9 billion in 2012 (before huge writeoffs), meaning it made $25.5 million per day or $1.06 million per hour. $152,000 equals 15 minutes of profits for RT.
They obviously want to send a clear message to scare off anyone who dares to challenge wrongdoing by mining companies. As Dave Blouin of the Wisconsin Sierra Club-John Muir Chapter has noted, “This is just the latest in a series of mining industry attacks on individuals, organizations and state and local laws designed to intimidate the opposition and force unsafe proposals on Wisconsin, including the Iron Mining Bill and SB 349 restricting local government regulation of frac sand mining, the proposed iron ore mine in the Bad River watershed and factory farms across the state.
A Chilling Effect on Citizen Suit Enforcement of the Clean Water Act
Our attorneys have argued that the Court retains discretion “to order the parties to bear their own costs, and it should do so here in light of the unique circumstances of this case.”
Not only did WRPC prevail on almost every issue before this Court prior to the Seventh Circuit’s reversal on a novel issue not briefed by any party, but WRPC litigated in good faith and in furtherance of the policies underlying the Clean Water Act’s citizen suit provision. Flambeau, by contrast, seemed unconcerned with controlling its costs, making purchases and engaging in services wholly discretionary in nature and running up the bill with needless motions and filings. Under these circumstances, the parties should bear their own costs.
(Plaintiffs’ Objections to Defendant’s Bill of Costs, November 12, 2013).
Furthermore, the imposition of costs upon nonprofit environmental organizations can be contrary to Congressional intent in the Clean Water Act to encourage citizen suits like WRPC’s. Flambeau dismissed this argument as a “sham.” Our attorneys objected to Flambeau’s “inflammatory rhetoric” and argued that “There is no ‘sham’ in WRPC’s effort to vindicate congressional intent and improve the environment against a much better funded opponent, even though those efforts fell short on appeal.” (Plaintiff’s Reply Brief in Opposition to Defendant’s Bill of Costs, November 27, 2013).
Finally, “the Court should order each side to bear its own costs, given the public interest objectives underlying this suit and the resources of the parties. Taxing a large bill of costs…can and will chill private enforcement of the Clean Water Act and similar public interest litigation contrary to Congress’s stated encouragement of citizen suit enforcement.” (Plaintiff’s Objections to Defendant’s Bill of Costs, November 12, 2013).
Whatever the court decides about costs, the facts of the Flambeau mine pollution demonstrate that metallic sulfide mining poses serious threats to clean water (see Jane Reyer’s recent op ed in the Duluth News Tribune). These facts need to be part of the public discussion regarding PolyMet Mining Corp’s proposed open-pit copper-nickel sulfide mine near Babbit, and Hoyt Lakes in northeastern Minnesota.
500 Years of Pollution for 20 years of jobs?
On December 6, 2013 state and federal agencies released the Supplemental Draft Environmental Impact Statement (SDEIS) for PolyMet’s NorthMet Mining Project and Land Exchange. This is the second draft. The U.S. EPA rejected the first in 2010, saying the project “must not proceed as proposed.”
Based upon the SDEIS, the Minneapolis Star Tribune reported in October that the PolyMet project, even in its revised form, “would generate water pollution for a minimum of 500 years.”
According to Paul Austin, executive director of Conservation Minnesota, “the biggest thing is this whole question about 500 years of pollution for 20 years of jobs. The people of Minnesota really need to be part of a conversation and decide for themselves if that’s a good deal.”
A 60-page summary of the SDEIS is available, as well as a CD containing the full version by calling the MDNR at 651-259-5110. The SDEIS is also posted on MDNR’s website. Three public hearings on the SDEIS are scheduled in Duluth (January 16, 2014), Aurora (January 22) and Saint Paul (January 28). For more information on the proposed mine and public hearings see Water Legacy’s website.
Gogebic Taconite (GTac) President Bill Williams faces trial for mining pollution in Spain
On November 27, 2013 a Spanish newspaper, El Correo De Andalucia, reported that Bill Williams, the president of GTac, faces criminal charges in connection with mining operations in Spain.
Williams was Director of Mining for the Cobre Las Cruces (CLC) copper mine in Seville Province until January of 2011. The charges were filed in a criminal complaint in 2008 and include alleged illegal construction of tailings ponds with contaminated water, illegal groundwater drawdown and contamination of the Posadas-Gerena aquifer with arsenic. He has previously denied any involvement with the environmental issues at the Spanish mine, claiming that he left the mine before the issues arose. He has also previously held up the CLC mine as an example of the tailings storage procedures planned for the Penokee Mine.
GTac submits revised plans for bulk sampling but downplays risk of asbestos-filled rock
In response to public concerns about the abundant amounts of asbestos discovered at a bulk sampling site of the proposed Penokee taconite mining project, GTac’s revised bulk sampling plan will take two previously proposed sampling sites out of its plan. The revised plan states the following:
The grunerite (asbestos) issue has been the subject of a media debate and the removal of these areas leaves the debate to be resolved by the systematic and scientific study of the issue that will be required within the permit application. Our position remains that asbestiform material is unlikely to be present in the reserve, but will defer to a proven and methodical approach to address the potential of asbestiform materials in the future mining permit application.
What debate is GTac referring to, asks geologist Dr. Joseph Skulan? “The presence of asbestiform grunerite has been proven by multiple independent analyses, and can be documented by anyone who takes the trouble to walk the Penokee ridge. This is not a ‘he said, she said’ story. It is not a story with two sides, at least not if those two sides are questioning if asbestos is or is not present. That is a scientific question, a question of objective fact, and it is a question that has been settled. The debate should be about the severity of the danger posed by the asbestos, which is not a settled question.” (“An Open Letter to the Press Regarding GTAC,” Wisconsin Citizens Media Cooperative, December 3, 2013).
The DNR needs to hear from the public that GTac should be denied permission to blast asbestos-filled rock in the Penokee Hills. E-mail your comments to: DNRWAMINING-GOGEBICTACONITE@Wisconsin.gov.
Please contribute to WRPC’s legal defense fund
Enclosed is an envelope to make a contribution to WRPC’s efforts to tell the truth about pollution and defend ourselves against Rio Tinto’s bullying tactics.
Al Gedicks, Executive Secretary