Lake
Superior Binational Forum Letter on LRB 2035 Lake Superior
Binational Forum June 8, 2011 To: Governor Scott Walker and Members of the
Wisconsin Legislature Members of the Lake Superior Binational Forum
have reviewed the draft document LRB 2035 and find that its content proposes
changes to the Wisconsin Mining Law that are inconsistent with efforts to
protect and restore the ecosystem of Lake Superior. Accordingly, please
accept this letter as preliminary testimony regarding LRB 2035,
Wisconsin’s proposed Ferrous Metallic Mining law, on behalf of the Lake
Superior Binational Forum. We will await new language in any bill to change the
Wisconsin Mining Law and respond further as appropriate. This consensus
letter outlines our primary concerns with the proposed legislation. Background Created in 1991, the Lake Superior Binational
Forum is a volunteer stakeholder group comprised of members with diverse
backgrounds that represent a wide range of perspectives such as local
government, industry and business, labor, academic, faith communities,
recreation, environmental, First Nations and Native American. Our members
live in communities around Lake Superior, in Wisconsin, Michigan,
Minnesota, and Ontario. The purpose of the Forum is to protect and restore Lake
Superior and the surrounding basin by fostering increased engagement among
numerous diverse stakeholders. The Binational Forum is part of the broader
Lake Superior Binational Program to Restore and Protect the Lake Superior
Basin. In 1990, the International Joint Commission challenged the
governments of Canada and the United States to develop a program to
virtually eliminate a group of “The Nine” persistent, bio-accumulative
and toxic pollutants. The governments responded to this challenge by
creating the Binational Program, which is administered by federal, provincial,
state and tribal agencies. As part of our mission statement to protect and
restore Lake Superior, and because the Binational Forum actively promotes
all public input processes, we offer five recommendations regarding LRB
2035. Recommendations 1. Compliance with the Lakewide Management Plan The Lake Superior Lakewide Management
Plan (LaMP) was developed by the Binational Program as a management
strategy for Lake Superior and currently guides the implementation of the Zero
Discharge Demonstration program. The LaMP provides the guiding framework
for the management interventions needed to maintain and restore the
physical, chemical and biological integrity of the lake. Forum Recommendation: We recommend that LRB 2035
require that any proposed ferrous mining projects in Wisconsin that lie
within the Lake Superior basin meet the environmental standards developed
within the LaMP before being approved. 2. Zero Discharge Demonstration Program At the core of the LaMP is the Zero Discharge
Demonstration Program, which is intended to prevent any new or additional
sources of critical pollutants from entering Lake Superior. The original
program focused on nine pollutants including mercury a potential
ecological risk from ferrous mining. As new contaminants presenting a
substantial risk to the health of the Lake Superior basin have emerged, those
too are considered in light of the Zero Discharge Demonstration Program.
Zero discharge does not mean “only a little bit” or “in very low concentrations;”
it means no release. Forum Recommendation: The principle of zero discharge means that any
proposed ferrous mine project in the Lake Superior basin should be
operated under a zero discharge practice. We recommend that LRB 2035
require that any company proposing a ferrous mine in the Lake Superior basin
must first demonstrate how the company will prevent the discharge of any
mercury-containing materials that may enter Lake Superior or the streams,
rivers, and wetlands within the Lake Superior basin. Continuous
monitoring using contemporary analytic methods during and after mine
operation should be required. 3. Wetlands and Water Quality Under current law, the Wisconsin Department of
Natural Resources must deny a mining permit if “irreparable damage to the
environment” cannot be prevented. Activities expected to cause landslides
or substantial deposition in stream or lake beds that cannot be feasibly
prevented, or the destruction or filling in of a lake bed, constitute grounds
for denial of a permit. LRB 2035 removes these as bases for denial of the
permit, which could have significant impacts on streams and lake beds within
the Lake Superior basin. LRB 2035 would also change existing wetlands
protections. The proposed bill includes a legislative finding that
“because of the fixed location of ferrous mineral deposits in the state, it is
probable that mining those deposits will result in adverse impacts to
areas of special natural resource interest and to wetlands, including
wetlands located within areas of special natural resource interest and that,
therefore, the use of wetlands for bulk sampling and mining activities,
including the disposal or storage of mining wastes or materials, or the
use of other lands for mining activities that would have a significant
adverse impact on wetlands, is presumed to be necessary.” (p. 53, LRB) Forum Recommendation: We recommend that LRB 2035 be
amended so that it does not allow adverse impacts to wetlands. The use of
wetlands for bulk sampling and mining activities, including the disposal
or storage of mining wastes or materials, should be forbidden. Water quality
objectives that are developed for any proposed ferrous mine site in the
Lake Superior basin should be consistent with the goals and objectives
that have been developed for the LaMP. So that only clean water flows into Lake
Superior, technologies and practices that adequately contain and recycle
waste water and remove or encase toxic material need to be implemented. Only when
these technologies and practices are documented to be feasible should
permits be issued. We do not agree with the inference in LRB 2035
that ferrous mining must inevitably involve disposal of mining wastes in
wetlands, particularly those that connect to Lake Superior. The Forum
recommends that no mine waste containing the potential for mercury or
other toxic chemical release be deposited within or near natural wetlands
in the Lake Superior basin. Sufficient detail should be provided in each
proposal to demonstrate that no net loss of wetlands within the Lake Superior
basin will occur and that planned measures are technically, economically
and biologically feasible. A proposed ferrous mine within the Lake
Superior basin should be required to identify potential effects on fish
and fish habitat during all phases of the project. Sufficient detail should be
provided in each proposal to demonstrate that no net loss of productive
capacity of fish habitat will occur and that proposed measures are
technically, economically, and biologically feasible. 4. Cleanup responsibilities: The proposed bill would reduce the economic and
legal obligations of mining operators to clean up their wastes. Rather
than the current 40-year obligation, operators would have only a 20-year
obligation. Forum Recommendation: Past ferrous mining history
along Lake Superior shows that decades after mines have ceased to
operate, mine waste in various forms has remained a potential source of
contaminants, and impairments to the environment. To prevent that with
proposed new ferrous mines in the Lake Superior basin, we recommend that
the operator of any proposed ferrous mine be held responsible for
monitoring, maintenance, and management (including funding for at least 40 years
after mine closure) of mine rock stockpiles and tailings, including
runoff and seepage. Given the unstable nature of metal markets, we
recommend that funding sufficient for cleanup should be put aside prior to
work beginning to develop the proposed mine. This would substantially
reduce the danger of escape or spill into Lake Superior, the surrounding
watershed or sub-watersheds. 5. Citizen representation: The proposed bill would
restrict the role of local communities and the public in mine permitting.
Local communities and the public would no longer have the right to
challenge permits, and contested case hearings would be outlawed, with
consequences for due process and expert testimony. Citizen lawsuits
would not be allowed. Forum Recommendation: Citizen participation is at
the core of the Binational Forum’s mission. Restricting the rights of
citizens and local communities is not consistent with the existing Canada-U.S.
Great Lakes Water Quality Agreement. Local Citizen Impact Committees
should be retained and strengthened. The members of the Forum are not opposed to
development in general or mining in particular within the Lake Superior
basin. We come from the communities that surround the lake and we recognize the
benefits from mining and other development to the residents of the Lake
Superior basin. But we believe such development should always be carried
out responsibly, in accordance with the LaMP and Zero Discharge Demonstration
Program principles. Projects should not harm water quality in the Lake Superior
basin. As our vision statement declares, “Water is Life and the Quality of
Water Determines the Quality of Life.” Sincerely, Bruce
Lindgren
Glen Dale U.S. Co-chair,
Canadian
Co-Chair