Over and over, Michigan environmental regulators sounded alarms as they reviewed a proposed large, open-pit ore mine in the Upper Peninsula near the Menominee River, prized for walleye fishing and a major tributary to Lake Michigan. The mine would send acidic mining wastes into the river and surrounding waterways, which would then spill into the Great Lake, staff said. More acres of wetlands would be harmed than the mining company was projecting, evaluators found.
Then the U.S. Environmental Protection Agency and then-Michigan Department of Environmental Quality approved the mine anyway.
At stake in whether the Back Forty Mine proceeds is the potential endangerment of one of the most important rivers in Michigan, part of a system that drains more than 4,000 square miles of the U.P. and northern Wisconsin, and a river culturally iconic to the Menominee Indians of Wisconsin, whose creation story includes that they come from the river’s mouth. Sacred burial grounds of the tribe are potentially threatened by the mine. The tribe is now among those appealing wetlands and surface water permit approvals for the mine.
The level of DEQ staff concern, and at times frustration, with Canadian company Aquila Resources' plan to mine for gold, zinc and copper within 150 feet of the river — in the western U.P. on the Michigan-Wisconsin border — has only now come to light, through agency documents presented as evidence in the appeal pending before an administrative law judge.
The open-pit sulfide mine would operate on 83 acres and its pit would be 2,000 feet by 2,500 feet, and 750 feet deep, according to the company. The life of the mine is planned at approximately seven years, and Aquila estimates it will produce:
- 512 million pounds of zinc
- 468,000 ounces of gold
- 51 million pounds of copper
- 24 million pounds of lead
- 4.5 million ounces of silver.
An on-site processing mill also will crush and refine minerals and ores through flotation, separation and the use of cyanide, according to the company's plans.
The DEQ emails, letters and memos show concern that Aquila Resources and its engineering firm, Green Bay, Wis.-based Foth Infrastructure and Environment, LLC, was understating the project's impact on the river and surrounding wetlands, according to regulators. The methods Aquila was using to measure wetlands impacts were improper, and the mining company wasn't changing them, DEQ staff said. The U.S. Environmental Protection Agency shared similar concerns, documents show.
Eric Chatterson, a geology specialist in DEQ's Water Resources Division, wrote there was a "high likelihood" that crushed minerals and ores from the mine "will be observed in the groundwater that discharges to the Menominee River and Shakey River," in an April 5, 2018, email to a department colleague. He added that the problems would continue when the mine ultimately closed, stating, "Impacted groundwater from the backfilled pit is expected to migrate to local surface water sources."
That's a particular concern for many, as sulfide ores exposed to air and water undergo chemical reactions that create sulfuric acid that harms water quality and is toxic to fish and smaller aquatic organisms.
Aquila's permit request, according to DEQ staff, was also failing to capture the mine's full impact on surrounding wetlands, which are vital to natural habitat, erosion protection and water quality. An unsigned, undated DEQ memo said of the groundwater model Aquila Resources was using as part of its permit application: "It provides little to no use in assessing impacts to nearby wetlands."
DEQ officials found that at some locations around the mine, operations would reduce the groundwater feeding wetlands "in excess of 6 inches to greater than 5 feet throughout the modeled life of the mine," wrote Kristi Wilson of the DEQ's Water Resources Division to Aquila Resources officials on Jan. 19, 2018.
The EPA was similarly concerned. Christopher Korleski, director of the Water Division at EPA's Region 5 that includes Michigan, wrote the DEQ's Coleen O'Keefe on March 8, 2018, stating the agency objected to the issuance of a permit for the mine for, among other reasons, that the company had not yet demonstrated that "the mine site plan is protective of water quality throughout the life of the mine and post-closure."
But two months later, on May 3, 2018, following a meeting with Aquila officials and "supplemental information" being presented to the EPA, Korleski changed his stance.
"Based on the information EPA has received from Aquila, a number of objections identified in EPA's March 8 letter have been resolved," he stated. "In addition, we believe that there is a ready pathway for the resolution of EPA's remaining objections through MDEQ's inclusion of specific conditions in a final permit issued by June 6, 2018."
But the information provided by Aquila provided little of new substance, said Janette Brimmer, an attorney with the environmental nonprofit Earthjustice who is representing the Menominee tribe it its permit appeal.
For example, regarding EPA's concern about potential adverse impacts to water quality at the mine's closure, the agency accepted Aquila's statement that the closure plan would not be developed until after the mining pit was excavated, "allowing the use of the mineralogy data from the pit walls to factor into the plan," and that any final closure plan would require review and approval by DEQ. Regarding secondary wetlands impacts, Aquila stated it was "working with MDEQ to address concerns regarding the assessment of secondary impacts using modeling and water budgets."
"That's the million-dollar question: What changed?" Brimmer said. "Nothing changed. Nothing changed on the ground. The data didn't change. Nothing changed other than, presumably, the politics. I would have liked to have been a fly on the wall in those EPA Region 5 meetings (with Aquila officials)."
EPA says its concerns were addressed
EPA Region 5 responded to Free Press requests for an interview with an emailed statement, stating Aquila's requirement to finalize plans with the state of Michigan and evaluate impacts prior to starting construction in wetlands addressed the agency's concerns.
The EPA reversal put the DEQ on a clock: Approve or reject the mining company's wetlands, lakes and streams permit within a month, by June 6, 2018, or authority on the permit application would transfer from the state agency to the U.S. Army Corps of Engineers.
"I am concerned about the inevitable groundwater discharge that will be created from the mining and backfilling of the pit," Chatterson wrote to Wilson in a May 17 email, adding that Aquila's design plans to reduce polluted discharges when they closed and backfilled their mine "should be approved by the Groundwater Permits Unit prior to construction activities," countering the EPA's position that the plan could be developed by the company after its pit was dug.
By that June 1, DEQ had approved Aquila Resources' final necessary permit to proceed with the mine. The wetlands, lakes and streams permit included numerous provisions that the company had to follow before work could proceed, including new groundwater level evaluations using methods approved by the DEQ. The permit allows for the filling of almost 6 acres of wetlands, with an indirect impact to more than 17 acres of wetlands from reductions in groundwater supply.
Scott Dean, a spokesman for the DEQ, which is now known as the Department of Environment, Great Lakes and Energy, or EGLE, touted the approved permit's provisions that Aquila Resources must meet, including "an enhanced groundwater modelling and monitoring plan consistent with industry best practices," annual monitoring data to guard nearby wetlands over the years of the mine's operation, and adaptive protections that ramp up "if adverse water impacts are detected during the life of the project."
Aquila also will be required to develop "state-of-the-art controls" aimed at spill prevention and response to potential pollution releases, including chemicals used and stored on-site, and the storage and disposal of waste rock, Dean added.
More than a year after the state approved the wetlands and surface waters permit, Aquila Resources has not yet provided EGLE with the information required in the conditional permit, Dean said. The agency's Water Resources Division authorized Aquila to install groundwater and surface water monitoring equipment at the site in June.
Aquila must also still submit a design plan "to ensure that the mine pit may be backfilled with waste material in a manner that is protective of water quality," Dean said.
Additionally, Aquila is filing with EGLE for a dam safety permit for its mining tailings and waste rock management facilities; an air pollution control permit, and revisions to an earlier approved permit for nonferrous metallic mineral mining, to meet the changed provisions for their plans as outlined in the wetlands permit, Dean said.
Brimmer said she's never before seen a situation where conditions that are typically confirmed in a permit application instead become conditions to resolve later in an approved permit.
"The DEQ witnesses, each and every one of them, were asked back in June (during testimony on the permit appeal), 'Have you ever before done a permit like this? Have you ever seen anything like this before?' To a person, they said no."
The with-conditions permit approval turns the way the process should work on its head, Brimmer said.
"In order for the public to participate and comment on this, they have to understand what the risks are to that river. What are you proposing? What have you analyzed?" she said. "You can't do that when all of those details are blanks to be filled in later.
"It robs the public of meaningful participation in this process, which is a cornerstone of environmental law and regulation."
Aquila Resources officials also responded to Free Press interview requests with an emailed statement.
"Aquila Resources, Inc. has obtained all the major permits for the Back Forty Project. Federal and state agencies, including the U.S. EPA and EGLE have completed an exhaustive review of potential impacts. Multiple environmental studies of the project spanning over a decade informed our permits. Aquila believes in the value of public input and participation, and strongly supports processes that encourage engagement with stakeholders. Each of these permitting processes allowed for extensive public comment and participation, which we actively engaged in, listening to and learning from our stakeholders. Our permits contain stringent terms and conditions to ensure the project operates with minimal impact on the Menominee River, groundwater, wetlands, and other natural resources."
This 'is our homeland'
For the Menominee Indian Tribe of Wisconsin, concerns about the Back Forty mine project go beyond potential environmental damage.
The tribe, with about 9,500 enrolled members, traces its creation story and history to the Menominee River, tribal chairman Douglas Cox said.
"The story is that the first being associated with our tribe, the Great Bear, came out of the lake at the mouth of the Menominee River and walked onto the land," he said.
The area is known to the tribe as Sixty Islands, and further legends tell of an ancient Menominee woman who performed ceremonies in the area and was taken up by the spirits that live in the river, Cox said.
"Our tribal members continue to visit that site, and some say they can hear or see that ancient Menominee woman, who is still there today," he said.
The area near the mine "is our homeland," Cox said. "Our people still go there, they still fish there, they still gather there."
There are burial mounds with the remains of tribal ancestors "up and down the Menominee River," he said.
"If you tell Americans, 'We're going to go dig up your grandma and grandpa to build a mine, to build industry, to disturb the banks of a historic river that's in your blood,' how does that feel?" he said.
"It's protection of our cultural resources. There are cultural resources that are at risk from this development. We haven't gotten due attention under the law for our cultural resources."
The Michigan-based permitting process for the Back Forty mine has left the Wisconsin side of the river mostly on the sidelines, Cox said.
"When the EPA, the Army Corps, U.S. Fish and Wildlife Service all take actions that are federal, they are obligated to consult with the tribe under laws such as the National Historic Preservation Act, the National American Graves Protection and Repatriation Act," he said.
"(Michigan) gets to contend, 'Nope, we're the authority now, so we're not obligated to do anything with you Indian nations — you independent, sovereign nations. We'll send you a letter, let you know what we're doing. But we won't communicate with you directly.' "
Cox questioned Michigan's "strange-sounding process" of leaving so many things unresolved in the approved permit.
"You would think that, rather than try to conditionalize a permit to include all that's required, you would just say, 'We're not going to issue this permit until all of these big things are addressed, like groundwater modeling,'" he said. "I guess in Michigan they don't see it that way."
Across the river, in Michigan's Menominee County, the board of commissioners passed a resolution opposing the Back Forty mine back in 2017.
"It's right on the river, 150 feet from the Menominee River," board vice chairman William Cech said. "There's never really been a successful sulfide mine without leaving a large stain on the landscape that they are digging in.
"If the mine was 5 miles in from the water, it might be a whole different story. But because it's that main waterway that leads right into Lake Michigan, we are afraid."
More hearings on the appeal ahead
There is no further opportunity for the public to comment on the Back Forty Mine's wetlands and surface waters permit. Hearings on the tribe's permit approval appeal are scheduled through Wednesday in Lansing, but may be extended to a later date, Brimmer said.
The tribe is also challenging the U.S. Army Corps of Engineers' failing to act as the primary permitting authority for the Back Forty mine. The tribe is slated to present oral arguments in the 7th Circuit Court of Appeals in Chicago on Sept. 5, Brimmer said.
"We're going to keep fighting," Cox said.
Contact Keith Matheny: 313-222-5021 or email@example.com. Follow on Twitter @keithmatheny.