DEQ delays final mine decision, sets stage for a nasty holiday gift

The Michigan Department of Environmental Quality last week delayed its expected decision on a permit for the Back Forty Project, an open-pit gold, zinc and copper mine proposed for the western Upper Peninsula. Back in September, the agency indicated in a preliminary decision its intent to approve the request from Aquila Resources, opening a final window for the public to weigh in before the final decision set for Dec. 1. The deadline for that final decision has now been pushed back to Dec. 29.

Ho, ho, ugh. If approved, this permit would be a terrible Christmas gift to the people of Michigan, far worse than a lump of coal.

Our review reveals that Aquila's permit application is deeply flawed, endangers nearby waters held sacred by local Native Americans, fails to meet requirements in state law and therefore should be rejected.

And while the extended decision deadline does not necessarily mean the agency is open to hearing more comments-officially, public comment on the proposed decision ended Nov. 3-we hope you'll let your elected leaders and the DEQ hear about it anyway. A state review this half-hearted should land the agency's Office of Oil, Gas and Minerals squarely on your naughty list.

Below are just few of the problems we found in our review. Our full comments can be found online here.

Alternatives not explored

For starters, Aquila is required by law to describe "feasible and prudent" alternatives that were considered as part of its Environmental Impact Analysis. Aquila provides no such analysis regarding their choice to create-and later backfill with reactive materials-a large, open mine pit on the banks of the Menominee River. They offer just a 107-word justification with no description or analysis of any alternative approaches.

Worse, the rationale that is provided for dismissing alternatives is based solely on the applicant's own economic considerations, not the long-term risks and tradeoffs related to environmental or natural resource concerns.

Similarly, Aquila proposed to process the ore onsite, including using cyanide treatment and flotation techniques to separate the valuable materials from the "waste" material. So why did Aquila not analyze an alternative mining approach in which the ore is removed immediately and processed at an offsite location away from the banks of the Menominee River? Apparently, that approach offers less profit. Or, in Aquila's own words, "the cost for ore shipment to off-site facilities is not sustainable for the project value."

Last time we checked, economic considerations alone-i.e., the applicant's profit motives-are not sufficient to dismiss potential alternatives in an Environmental Impact Assessment. And yet, that approach is apparently good enough for the Michigan DEQ.

Analyzing alternatives-whether it's the decision to use an open pit approach instead of an underground tunnel, or to process onsite instead of taking reactive materials offsite to be processed-is among the most basic requirements of state mining law in terms of "minimizing actual or potential adverse impacts." Aquila's lack of consideration of alternatives alone should justify a denial of the permit as proposed.

Scant details

Beyond failing to explore alternatives, Aquila's application and the DEQ's proposed permit also just leave too much of the actual mine plan up in the air. And-here's the real cause for concern-the DEQ seems to be OK with that.

This permitting process is the department's opportunity to judge, on behalf of Michigan residents, the rigor and seriousness of the company's plans to minimize the environmental impacts of its proposed mine. Yet, the DEQ's proposed permit allows Aquila to sail through the process, even without basic plans and documents that the company has had more than a decade to prepare. The state seems willing to grant the permit first, and then ask the company for fundamental information about how they plan to operate the mine safely.

Here are a few examples:

• The proposed permit says the mining company "shall submit a planto monitor surface water and aquatic biota" and receive written approval of the plan from the DEQ before beginning mine operations. We can't help but wonder why Aquila does not already have in place a plan for such a basic environmental safeguard. There needs to be a robust plan in place not only before the mining starts, but before any permit is granted.

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  The permit requires Aquila to perform tests before building a "cut-off wall" to demonstrate that it is capable of keeping contaminated water out of the Menominee River, which is just 150 feet away. But it then lays out steps the company must take, "If the results of monitoringindicate that the cut-off wall is ineffective for its intended purpose." Preventing harm to the Menominee River-spawning ground for half of Lake Michigan's lake sturgeon-should be a fundamental component of any permit for this mine. It's no place for improvisation.

• The department says "the permittee shall conduct a water withdrawal evaluation" before construction, "If withdrawal of water from the pit and water supply wells will exceed a cumulative total of over 100,000 gallons of water per day when averaged over a consecutive 30-day period." If Aquila plans to withdraw significant amounts of water for its mine, the DEQ should require the company to demonstrate it won't harm local stream flows and ecology before granting a permit, not after.
• Similarly, the department says that, if monitoring shows that water withdrawals for the mine might impact groundwater levels, Aquila "shall submit a plan to MDEQ to prevent that potential impact." If groundwater impacts are sufficiently likely that the DEQ mentions it in the proposed permit, shouldn't the company just go ahead and submit that plan before a permit is granted? We think so.

These are by no means isolated examples of the DEQ's "wait and see" approach to the Back Forty. The department's proposed permit contains the phrase "prior to construction" no fewer than six times in reference to designs, plans and techniques that are yet to be supplied. It includes the phrase "shall submit" in relation to non-existent plans or specific engineering designs at least five additional times.

Violation of statute

Early in May of this year, the DEQ sent a letter to Aquila with 196 questions or requests for additional information about a wide variety of data, plans and techniques. A month later, the company responded with a letter of its own, prepared by a consultant. Many of the answers-maybe most-were ambiguous at best. Yet, the DEQ seems satisfied with these halfhearted responses.

For example, the department requested-reasonably and clearly-that Aquila provide a cyanide management plan as part of its permit application. The company's response? "A more detailed Cyanide Management Plan will be provided prior to construction." Rather than demanding that plan be provided before approving the permit, the DEQ rolled over and said, basically: OK, just send it to us before you start mining. There are many other examples of this ridiculous, hands-off regulatory approach in the proposed permit.

Bottom line, our DEQ is proposing to grant the permit for a major open pit mine-one that would unearth and expose millions of tons of acid-generating material and place it in a giant open pit adjacent to a magnificent river-without requiring even basic, common-sense details about how, or if, the plans and techniques being proposed will work.

By our read, this is a clear violation of Michigan statute, which states that the mining, reclamation, and environmental protection plan for any proposed mining operation must include both "a description of materials, methods, and techniques that will be utilized," and (with our emphasis added) "information that demonstrates that all methods, materials, and techniques proposed to be utilized are capable of accomplishing their stated objectives in protecting the environment and public health."

This DEQ mining permit is one of several approvals Aquila will need before moving forward. The project also requires a state air permit, a wetland permit and a National Pollutant Discharge Elimination System permit. But the mining permit is the heart and soul of the project-the only reason the company would need to seek the other approvals.

This is a major project with huge implications, not just for Michigan and our immediate neighbors in Wisconsin, but for the Great Lakes region overall. There are very few sulfide-based mines permitted in the region, so each new one that gets reviewed essentially sets a new precedent, a new standard. The least the DEQ can do is hold every project to the highest standards required in law, and to demand information adequate to really judge the project's impacts on Michigan's land, water, people and communities.

We hope the DEQ carefully reviews all the comments and decides to deny the permit. That would be a real Christmas gift to the people and amazing natural resources of our state. But given their track record with sulfide mining, we're not optimistic.

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Top photo: Deb Nystrom via Flickr

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Menominee Tribe photo: Environmental Health News

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Juvenile sturgeon photo: USFWS via Flickr

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Rafting photo: Deb Nystrom via Flickr.