January 2020 Newsletter
January 9, 2020
Dear WRPC Member and Friends of the Menominee River,
January 25 marks the one-year anniversary of the Brazilian mine tailings dam rupture that released almost 3 billion gallons of toxic mine waste and killed 270 people in Brazil’s deadliest-ever mining accident. After the catastrophic failure, Brazil not only banned the upstream design at issue in the disaster for future mines, but mandated that every existing mine tailings dam of that design be decommissioned. As I’ve written in an extensive background report, why would Wisconsin and Michigan residents put up with what Brazil will not? The report is online at UrbanMilwaukee.com
Aquila withdraws its dam safety permit
After requesting two extensions for submitting further information on its proposed upstream design for its tailing dam to Michigan’s Department of Environment, Great Lakes, and Energy (EGLE), Aquila withdrew its permit application prior to a December 31, 2019 deadline for submission of a completed application. Aquila will gather additional information requested by EGLE and resubmit a dam safety permit application in 2020. This will restart the dam safety permit review process from the beginning, including new opportunities for public review and comment. Aquila will not be able to begin mine construction until EGLE has approved all permits for the Back Forty project.
EGLE issues a modified air quality permit and an amended mining permit
On December 12, 2019 EGLE issued a new air quality permit and an updated 632 mining permit.
Tom Boerner, who owns land next to the proposed mine, has already filed a petition with EGLE for a contested case hearing on the air quality permit. Boerner alleges that the State of Michigan did not take into consideration the direct impacts, indirect impacts, cumulative impacts, and known health risks from airborne pollution that will be caused by mining activity. This is Tom Boerner’s third contested case hearing against the State of Michigan’s issuance of permits to Aquila Resources. He has previously challenged the Part 632 mine permit and the Part 303 wetlands permit.
Closing briefs filed in contested case against Aquila’s wetland permit
On December 20, 2019, the Menominee Indian Tribe of Wisconsin, along with the Coalition to SAVE the Menominee River and Tom Boerner, filed closing briefs with the Administrative Law Judge against Michigan Department of Environmental Quality’s issuance of a wetland permit for Aquila’s Back Forty project.
The major argument of the three plaintiffs is that the DEQ issued the wetland permit in violation of the statutory requirements under Part 301 and Part 303 of the Natural Resources and Environmental Protection Act. The DEQ could not and did not meet the statutory requirements to issue a permit because the DEQ lacked the essential information to make the required determinations.
As Ms. Kristy Wilson, the primary permit reviewer in the DEQ’s Water Resources Division (WRD), testified, the DEQ could not determine whether the permit would not result in an unacceptable disruption of aquatic resources, because there was a “moving target” as to what the total impact, including direct and indirect impacts, of the mine would be.
Despite the lack of baseline information necessary to analyze the project’s impacts, the DEQ ignored the objections of its own scientific staff in the WRD and issued the permit with 28 pages of conditions. “The addition of several conditions whereby information and data that should have been submitted as a part of the application…does not cure the statutory defect.”
Impacts to the Menominee Tribe’s Cultural, Historic, and Spiritual Resources
The Menominee Tribe’s traditional and historical territory includes both sides of the Menominee River, in an area much larger than the proposed mine site. The Tribe’s long history of occupation in the area has prompted them to submit an application to nominate the area as a historic district under the National Historic Preservation Act. The application designates burial sites, mounds, garden bed areas, village sites, traditional dance rings, and cemeteries – all places of cultural importance to the Menominee people as part of the historic district.
The Back Forty Mine footprint overlaps with part of the historic district, and construction of the mine will adversely affect the historic district as a whole through the loss of individual sites. The historical district also includes wetland areas. The wetlands support wild rice, traditional plants, and are sites where Menominee people gather materials to make cultural items, such as mats and nutrient-rich soil to build raised garden beds. The loss of historic sites are a permanent impact.
“Once they’re gone, they’re lost and gone forever. It’s not like the environmental issues of clean water, clean air where you can – you can use remedial activities to improve them. Once these sites are gone, the information is lost” according to Dr. David Overstreet, contract archaeologist for the Menominee Tribe.
Risk factors for tailings dam failures
The withdrawal of Aquila’s dam safety permit has provided an opportunity for the public to submit comments on a new permit application at a time when there is unprecedented criticism of the way that the mining industry has neglected the safety of tailings dams in the pursuit of corporate profits.
A group representing the world’s largest miners has published a November 2019 report on standards to govern how companies build and operate the sort of mine-waste dam that collapsed in Brazil in January 2019: Global Tailings Review
A key finding of the report is that “a human rights due diligence process is required to identify and address those rights that are most at risk from potential failures of tailings facilities” This includes “respect for individual rights and the collective rights of local, indigenous and tribal peoples who may own, occupy or use land or natural resources at or near a tailings facility site, or downstream areas that may be affected by a failure. To demonstrate this respect, project affected people must be afforded opportunities for meaningful engagement in decisions that affect them.”
Tailings risk and climate change
Another recent report by an investment consulting group has arrived at a disturbing conclusion for the mining industry. “Changing weather patterns may unwind the parameters used decades ago to design some tailings dam structures, before climate change was considered.”
“Two primary causes account for about 80 percent of all dam failures: (1) “overtopping” i.e. insufficient flood or spillway capacity or (2) quality issues, usually problems with “piping.”
Overtopping occurs when excess water flows over the top a dam. Tailings dams are made of erodible material, and overtopping will cause erosion and potential collapse of the retaining wall.
Piping problems occur when drainage becomes clogged, causing large volumes of saturated sand to create pressure next to the retaining wall.
“Dams collapse when their systems are overwhelmed with pressure, often the result of deficient capacity or equipment to manage the influx of water. One of the most common causes of dam collapses is therefore from extreme weather events.”
http://ww2.oldmutual.co.za/docs/default-source/esg-documents/q1-2019/tailings-risks_-governance-failures-and-climate-change.pdf?sfvrsn=2
2019: Wettest Year for Midwest
Wisconsin and the Midwest recorded their wettest year ever in 2019 since record-keeping began in 1895. The “unprecedented” storm that hit Wisconsin and parts of Menominee County on July 19 and 20, 2019 brought heavy rain and fierce winds that damaged buildings and cut electric power for thousands of people. The storm dumped 1.43 inches of rain in Green Bay, breaking a record for the most rainfall in a single day that had stood since 1903.
Senator Dave Hansen (D-Green Bay) raises concerns about the Back Forty project
Senator Dave Hansen has raised the issue of climate change in a December 17, 2019 letter to Michigan Governor Gretchen Whitmer. The location of the proposed Back Forty mine just 150 feet from the Menominee River raises “serious concerns in the event of flooding, a more common problem as the effects of climate change have led to high lake levels on Lake Michigan and the bay. We are also starting to see a pattern of serious flooding that has caused the bay to overflow its banks in Northeastern Wisconsin causing serious problems in communities located on its shores. Should flooding cause a breach at the mine it could result in irreparable harm to the Menominee River’s fish population, especially the threatened Lake Sturgeon…
Aquila’s insistence on an upstream tailings dam design that is especially vulnerable to extreme weather events may well be the Achilles heel of this ill-conceived project.
Stay tuned, Al Gedicks, Executive Secretary
