BAD
RIVER BAND OF LAKE SUPERIOR CHIPPEWA INDIANS
POSITION STATEMENT ON PROPOSED GTAC IRON MINE AND PROPOSED IRON MINING LEGISLATION IN WISCONSIN
September 2011
The position of the Bad River Band of the Lake Superior Chippewa Indians
(“Band”) on the proposed Gogebic
Taconite LLC (“GTAC”) iron mine in the Penokee
Hills of Ashland and Iron Counties, and
on proposed iron mining legislation in the State
of Wisconsin, is as follows:
A. THE BAND OPPOSES THE PROPOSED GTAC MINE AND ANY MINING
IN THE PENOKEE HILLS. The Band opposes development of the
proposed GTAC
taconite iron mine in the Penokee Hills
of Ashland and Iron Counties in Wisconsin,
because it is clear, based on available
geologic and environmental information, that such
a mine cannot be developed and operated
using current mining technologies and practices
without destroying the environmental
quality, including the air, lands and forests,
wetlands, streams, and rivers of the
Bad River watershed, the Bad River Indian
Reservation, and Lake Superior. The Bad River watershed is a pristine
environmental
resource, and the Band’s way of life is
highly dependent upon maintaining the health and
integrity of the watershed. The proposed GTAC iron mine would
destroy the Bad River
watershed and the Band’s way of life.
B. THE BAND’S POSITION ON PROPOSED IRON
MINING LEGISLATION.
Notwithstanding the Band’s position on
the proposed GTAC iron mine, the Band
understands that Wisconsin Governor
Scott Walker and some members of the Wisconsin
Legislature are proposing to change
Wisconsin’s metallic mining laws to distinguish
between ferrous or iron mining and
other metallic sulfide mining, to shorten the state’s
permitting process, and otherwise
change the permitting and regulatory process for new
iron mines. As such, the Band views the process of changing state law as
being distinct
from the question of whether or not the
proposed GTAC mine should be permitted.
The
Band’s position on proposed iron mining
legislation is that such legislation should be
based on sound science and sound legal
principles. The Band opposes the
proposals that
were included in LRB 2035, which was
leaked to the public in early 2011, to streamline
and weaken the Wisconsin Department of
Natural Resources (“DNR”) permitting
process. With respect to any new proposals to change Wisconsin’s
metallic mining laws,
the Band’s position is that any such
legislation should include the following principles
and/or provisions, although the Band
also reserves the right to propose other provisions if
legislation is actually introduced:
1. THE DEFINITION OF IRON MINING SHOULD BE CLEARLY SET
FORTH TO EXCLUDE ANY PROJECT PROPOSAL
THAT HAS THE POTENTIAL
TO CAUSE ACID MINE DRAINAGE. Regulatory
requirements for any specific
metallic mining proposal should be
tailored to the actual characteristics of the proposed
mine itself, including the nature of
the overburden, the ore body, the ore processing
operations, the disposal or storage of
overburden, tailings, and other waste materials, and
the ecology and geology of the site and surrounding environment. If iron mining is to be
treated differently than other metallic
mining under any modification of existing law, the
distinction or definition of iron
mining must not be arbitrary.
Thus, there must be a clear,
unambiguous and science-based
definition of iron mining that excludes from the
provisions of any new law all mining
proposals having any potential to cause acid-mine
drainage based on the geological
properties of the proposed mining site, regardless of the
minerals that would be mined.
2. THE COMPLETENESS OF IRON MINING PERMIT APPLICATIONS
SHOULD BE CLEARLY DEFINED. There must be a clear and comprehensive
application completeness requirement,
and a clear completeness determination process by
the DNR. This is because the permitting time frame for any permit
application is
dependent on starting the review
process with a complete permit application from the
permit applicant. Such an application must have
sufficient environmental and technical
information for the DNR to conduct the review
process, and the information provided
must show that the proposed project
will meet all applicable environmental standards and
requirements. The burden of preparing and submitting a complete permit
application
must be entirely on the applicant and
should never shift to the DNR or other interested
parties.
3. THE PERMITTING TIME FRAME SHOULD BE REASONABLE,
FLEXIBLE, AND CONSISTENT WITH FEDERAL
AGENCY TIME FRAMES.
Regardless of the duration of the
permitting time frame, the mining permit application
review process should be triggered only
upon a determination of completeness by the
DNR of a mining permit
application. The permitting time
frame should be reasonable for
the applicant but, more importantly, it
should provide sufficient time for the DNR, the
public, federal agencies having
jurisdiction or an interest in a proposed mining project,
and interested Indian tribes to fully
review and participate in the permitting process. The
permitting process should take as much
time as necessary to ensure protection of the
environment and the rights of
interested parties, including Indian tribes. Approval of a
mining permit application should not be
presumed. The permitting time frame should not
be rigid because flexibility may be
necessary to allow for extensions requested by an
applicant or interested parties,
depending on the size, scope, location, proposed
operations and environmental
considerations unique to any specific mining permit
application. While generalized or estimated time frame goals may be
appropriate to
provide guidance for the DNR and permit
applicants, such goals should be flexible and
fully consistent with permitting
procedures and requirements of federal agencies,
including the U.S. Army Corps of
Engineers (“USACE”), the U.S. Environmental
Protection Agency (“USEPA”), and
others, as well as neighboring states and Indian
tribes.
4. WETLAND PROTECTION STANDARDS SHOULD BE
MAINTAINED AND THE FEDERAL/STATE
PARTNERSHIP IN THE
ENVIRONMENTAL REVIEW PROCESS UNDER WEPA
AND NEPA SHOULD
NOT BE JEOPARDIZED. Wisconsin’s current and long-standing
wetland protection
standards and provisions, including but
not limited to the provisions relating to “area(s)
of special natural resource interest”
(“ASNRI wetlands”), under Wis. Stats. §§
281.37(1)(a) and (a)13, as defined in
Wis. Admin. Code § NR 103.04, should not be
changed or weakened in any manner. In addition, the federal/state partnership between
the USACE and the State of Wisconsin in
implementation of Section 404 of the federal
Clean Water Act (“CWA”), Section 10 of
the federal Rivers and Harbors Act, the
National Environmental Protection Act
(“NEPA”), and the Wisconsin Environmental
Protection Act (“WEPA”), relative to
review and approval of permits for work in waters
and/or wetlands in Wisconsin, should
not be jeopardized or weakened in any way. In a
recent letter from Tamara E. Cameron,
Regulatory Branch Chief of the St. Paul District
of the USACE to Keith Gilkes, Chief of
Staff to Wisconsin Governor Scott Walker, the
USACE noted that it generally takes in
excess of two (2) years to prepare a federal
environmental impact statement (“EIS”)
under NEPA, and that separate, disconnected
state and federal environmental review
of any proposed mining project would be
inefficient and counterproductive. (See Letter from Tamara E.
Cameron, Regulatory
Branch Chief, St. Paul District USACE
to Keith Gilkes, Chief of Staff for Wisconsin
Governor Scott Walker, of 8/1/11.)
5. FEDERAL CLEAN WATER ACT IMPLEMENTATION BY DNR
SHOULD BE CORRECTED AND NOT
WEAKENED. Implementation of the
CWA’s
National Pollutant Discharge
Elimination System (“NPDES”) by the DNR, through
administration of the DNR’s Wisconsin
Pollutant Discharge Elimination System
(“WPDES”), as applied to all metallic
mining permit applications, should be corrected
and brought into compliance with USEPA
requirements. In a July 18, 2011
letter from
Susan Hedman, USEPA Region 5
Administrator, to DNR Secretary Cathy Stepp,
numerous deficiencies in Wisconsin’s
WPDES program and water quality protection
laws were noted. These deficiencies included the
inadequacy of the DNR’s authority to
“ensure compliance with the applicable
water quality requirements of all affected states,”
under 40 C.F.R. § 122.4(d) (including
the Band’s strict water quality standards which
have been promulgated pursuant to the
Band’s “treatment as state” designation by the
USEPA under the CWA). (See Letter & Enclosure from
Susan Hedman, USEPA Region
5 Administrator, to Cathy Stepp, DNR Secretary, of 7/18/11.)
6. THERE SHOULD BE CONTESTED CASE HEARINGS TO ALLOW
FULL PARTICIPATION BY INTERESTED
PARTIES. Contested case hearings
and
full participation by interested
parties, as provided for under Wisconsin’s existing
metallic mining laws, should be
maintained for iron mining permit applications as well as
all other metallic mining permit
applications. Contested case
hearings with full
participation by interested parties are
trial-like hearings on permit applications where the
permit applicant and interested parties
may call witnesses, including technical experts, to
testify under oath subject to
cross-examination by the administrative law judge (“ALJ”),
as well as other parties and
attorneys. Such hearings are very
different than so-called
“public hearings,” in which permit
applicants and interested parties and their witnesses
are not required to testify under oath
and are not subject to cross-examination.
The
requirement of presenting testimony
under oath which is subject to cross-examination is a
fundamental aspect of due process and
the truth finding process in legal proceedings.
Such requirements are important to
prevent fraudulent or poorly documented mining
permit applications. These procedures are highly important
to ensure that all legal and
technical standards under the law will actually be met by permit applicants.
7. THERE SHOULD BE NO PREEMPTION OF LOCAL CONTROL.
Local and county land use controls over
metallic mining projects, including town and
county zoning restrictions and other laws and regulations based on the police powers of
towns and counties, should not be
preempted by state law.
8. CITIZEN SUITS SHOULD BE MAINTAINED. The citizen suit
provisions of Wisconsin’s existing
metallic mining law, under Wis. Stat. § 293.89, should
be maintained and applied equally to
iron mining projects. Similar
citizen suit provisions
are found in the federal CWA and the
federal Clean Air Act. Citizen
suits are suits that
may be brought by interested citizens
who have standing to sue to enforce environmental
standards that are not being complied
with by a project developer, a permit holder, or
applicable regulatory agencies. Such provisions help ensure that permit
standards will be
complied with after a permit has been
issued. These provisions hold
permit holders and
the regulatory agencies like the DNR accountable under the law.
9. CONSULTATION WITH INDIAN TRIBES SHOULD BE REQUIRED.
In many parts of Wisconsin where iron
and other metallic mineral deposits have been
discovered, Indian tribes and Indian
reservations would be adversely impacted if mining
operations are approved. The adverse impacts would include
pollution of air and water
resources, destruction of fish and
wildlife habitat, and loss of public lands which are
currently open to off-reservation
treaty rights for hunting, fishing, and gathering, as well
as adverse cultural, economic, and
social impacts. Under federal law
the federal agencies
have a trust relationship with Indian
tribes and must, therefore, consult with and fully
consider the impacts of their decisions
on the tribes. Any change to
Wisconsin’s mining
laws should include provisions to
require the DNR to fully consult with and consider the
potential impacts of mining projects on
interested Indian tribes, in much the same manner
as federal agencies are required to
under federal law. This type of
consultation between
the DNR and interested Indian tribes is
important for environmental, economic, legal,
cultural, and social reasons, to ensure
that principles of “environmental justice” are
followed by the State of Wisconsin, and
to prevent minority and low income Indian
communities from being discriminated
against and from being forced to bear undue
adverse impacts from proposed mining projects.
10. INTERESTED PARTY FINANCING SHOULD BE PROVIDED. Some
proponents of changing Wisconsin’s
mining laws to streamline the review process for
iron mining permits have used the
Wisconsin Public Service Commission’s (“PSC”) time
frames for reviewing proposals for new
electric generating plants and high voltage
electric transmission lines as an
example of how such time frames might be established.
However, metallic mining activities
involve excavation of minerals from below the
ground surface, which is very different
than the type of impacts associated with
development of electric generating
plants and high voltage transmission lines.
Nonetheless, even the existing PSC
review process for such projects provides for
contested case hearings and
intervention in the PSC review and hearing process by
interested parties other than the
applicant and the PSC staff.
Moreover, such
“intervenors” have often been eligible
to receive “intervenor financing” so they can fully
participate in the hearing process by
hiring attorneys and experts to testify and present
technical information to the PSC. Such “intervenor financing” should also
be provided
for if there is any change to
Wisconsin’s metallic mining laws specific to iron mining.