Sulfide Mining
Office of Geological Survey
December 19, 2005
MDEQ, 525 West Allen St.
Lansing, Michigan 48909-7756
To Hal Fitch, Susan Maul:
Here are my written comments to be included in the record of written public opinion regarding the sulfide mining rules.
These comments of mine consist of two main components: essays and notes.
Eight essay issues are presented for the record and your careful consideration.
Five of the essays discuss major issues and serious omissions I see in the current rules. My message is that revisions to the rules are imperative to resolve the issues and omissions.
I ask that you read and understand these essays. Please consider their words fairly:
Standards
Socioeconomic
Affected Area
Site Criteria
Bonding
Two of the essays discuss related topics that are disturbing and troubling. These essays serve to prove and support the above five:
Experts
Chiseling
Finally, the essay The Apple. This analogy reflects upon and illuminates issues from state and industry perspectives. The second major component of my written comments is my rules notes. For thirteen days I took notes at the Rules Promulgation meetings in St. Ignace. I’ve included here all 48 pages of these notes, in order taken, with an index I’ve devised for finding places and topics in the notes.
These notes are frequently cited in the eight essays, along with Statute quotes, to affirm statements I make. These sources both offer a form of proof .
Finally there is my Conclusion. Thank you for this opportunity to present my written comments on the rules and their promulgation process as I witnessed it. I am available for questions and discussion if you so wish.
Sincerely,
Richard C. Hendricksen
Marquette and Big Bay, Michigan
Standards Verses Inconsistency Related To Site Criteria
Summary: The DEQ is not recognizing statute words mandating standards (conditions) for sulfide mining. Specific statute words are discussed. Developing adequate standards should include careful consideration of existing regional precedent, ie., the Wisconsin 10/10 rule.
What are some standards used for sulfide mining? There are testing standards, language standards, legislative standards, baseline standards, testing standards, water standards, trucking standards, pubic hearing standards, pollution standards, on and on we go.
The statute clearly tells the DEQ to establish standards. Please look at this under legislative findings: 63202(e) “Nonferrous metallic mineral mining may be an important contributor to Michigan’s economic vitality. The economic benefits of nonferrous metallic mineral mining shall occur only under conditions that assure that the environment, natural resources, and public health and welfare are adequately protected. “
I have underlined the key point here. It is the word “only”. This is the word that indirectly tells the DEQ to establish standards/conditions. It does not say “occasionally” or “temporarily” or “maybe”. Only is a specific, dictating, exclusionary word. Other words to consider here are the words “conditions” and “adequately”. It sure appears one has to proceed to the word “adequately” in order to continue this thought on standards. And “adequately” would include analysis of relevant regional precedents regarding sulfide mining, such as the Wisconsin 10/10 rule, since in truth it is the most dominant standard.
In the Statute 63202(d) “The special concerns surrounding nonferrous metallic mineral mining warrant additional regulatory measures beyond those applied to the current iron mining operations.” In this part both words, “concerns” and “measures” are indicative of standards which reflect back to the word “only”.
In the Statute there are no other parts under 63202 Legislative findings that indicate standards. The other subrules (a), (b), and (c) are different, and not that of standards. So, my point is: standards are mandated in the statute and it is an important topic not to be ignored or politicized or be inconsistent about. You cannot have it one way, then another way to suit your fancy. “Only”, is the dictating word. If a standard is to be used; the Wisconsin 10/10 rule is that standard for the Midwest. It has been developed through ten years of study. Wisconsin borders two of the Great Lakes. It is a state rich in water. Intense and through debate about this issue has taken place there. For Michigan to think it can disregard Wisconsin’s work on standards for sulfide mining is short-sighted and really an insult not only to itself but to Wisconsin too. I think time will show this. Even someone logical from outside the Midwest, an objective thinker would agree that Wisconsin sets the standard. It follows the principles behind that word. Even further, when someone reads the St Ignace work group studies and comments of all, they will view that effort with pity and disdain. They will view Michigan as a terribly misguided state whose goal was one of greed and destruction of itself… with little vision for its future. Sulfide mining has not been done safely ---- yet. There needs much more discussion than what has occurred to date. Even during rules meetings, industry was continually looking out for its best interest far above that of protection of the natural resources. Simply study my notes under chiseling, level playing field, experts, fox in the hen house, fallacy issues, industry not paying cost above minimum, etc. Make your own judgment.
Permit me to give you another example of a standard, and then tie it back to “only” and “adequate”. In China it is said, they do not follow written contracts(but their word (honor) is another matter) Example is: a person was buying “short” in the stock market in copper. Copper went up in price so the China person lost much money. He just did not want to pay up for his losses. He somewhat disappeared. The international rule was to pay up his debt. The international rule (standard) is you lose you pay up. But such was not the STANDARD for this Chinese person. This Chinese don’t view matters the way we do. Dollars are awash in China and he does not view paper as we do. Contrary to his thinking, we Americans now cannot trust this person for business from our perspective. In the Chinese banking system,… if debts are unpay-able, then the bank just says; oh well, and goes on to another loan. The standard becomes one of distrust and sub quality of agreements, and chaos regarding paper debt on the international scene. China does not follow the rules and it gets a reputation of such (it actually is more complex than this yet not for a discussion here). The conclusion is, if you don’t follow the standards, you end up with distrust and chaos to some degree. This is the same issue that is happening with the Wisconsin 10/10 rule. It IS the area standard, not something else Michigan is trying to force down the public’s throat. Now, just as there may be exceptions to China’s internal standards, are there exceptions to Midwest Sulfide mining standards? Shouldn’t any such exceptions be analyzed, and accepted or rejected in order to justify that exception…. (Just like “adequate” is the subsequent line of thinking after “only”). Such has not been done with Sulfide mining. Actually I and many others find the Wisconsin standard to be appropriate yet the DEQ refuses to educate themselves on this standard.
One could think that if you want to eliminate this (only) standard, then so be it, despite thus contradicting the statute. Yet do so consistently. Then you have no standard, and no standard means what…chaos, disorder, anarchy, or just plain old crime. Does no standard lead to open-minded thinking? I would think it could. And therefore it helps to have direction. And direction could come from experts. Experts would be a source of information to enhance open-minded thinking, yet this was controlled and nearly eliminated during rules except for one lone expert (maybe more--depends on your point of view. Please read my comments/notes on “experts”).
It is unfortunate the State of Michigan has created such chaos, but since it has, it sure appears to me there is no choice but to be open-minded and bring in experts and establish standards. This further means to me that the differing conditions throughout the state (site by site) and that the word “only” clearly expresses a requirement for clarity, or “of statement”, not ambiguity. And it also means site criteria.
The statute is supposed to be a base, the fountain head for the rules. In the statute word “only” we find a mandate for clear standards rather than ambiguity. Regional sulfide mining standards were set in Wisconsin---they are our existing baseline and clearly a frame of reference. Yet Michigan disregards this regional baseline, and since this is so, how can we obtain an accurate perspective and starting-point in order to develop our statute-mandated standards? We won’t. The Wisconsin precedent must be understood. And then be consistent with your decision. If you’re going to break from Wisconsin --- then indeed do break and go your own way, yet justify with reasons.
From THE NEW RESOURCES WARS Page 94. “Under the consensus groundwater rules, the mining companies would be allowed to contaminate groundwater to federal maximum contaminant levels for drinking water, as specified in the Safe Drinking Water Act. During public hearings on the DNR’s adoption of these rules, Thomas D. Brock, the chair of the Department of Bacteriology at the University of Wisconsin at Madison, testified that it was not the intent of Congress to allow high-quality waters to be degraded to the levels specified by the Safe Drinking Water Act, and that this act should not be used as an excuse for allowing the degradation of Wisconsin ground-water. Brock’s testimony was particularly noteworthy because he was a member of the National Academy of Science’s Safe Drinking Water Committee and a co-author of a report made in conjunction with the Safe Drinking Water Act. Brock concluded that the consensus groundwater rules were not only inappropriate but unenforceable; “There can be no conclusion other than that the mining company, with their superior legal and technical resources, will be able to do virtually whatever they want to the groundwater quality of Wisconsin”
BASELINE - FOUNDATION (Standards)
1. bias or favoritism
2. Lake Superior water Coleman letter on high quality (r6p4#31) (see inconsistence #14) [r5p3#16] r6p8#64
3. facility, Standards set by state for water (r5p3#16) [r6p2#7] (r6p4#29) (see Phil. #28)
4. foundation for accepting or rejecting a permit (r5p5#45) [r6p4#27] (see permitting #1)(r2p1#1)
5. inspections (r5p6#47) (r4p1#2)(r4p5#18)
6. Minimum release (r5p9,10 entire) YD topic, aquifer loophole, defaulting to people
R6p5#37 [UP customs: r1p5#29, r4p3#9], r2p4#18, [traditional mining verses Sulfide (r5p7#53, r5p8#60)], [point of compliance (r6p4#22)] [detection (r6p4#24)] [Reputation (r3p6#31)(r3p7#41)], [permanent perpetual care (r6p10#86)], [facility a permitted release must not cause a facility (r5p4#26) ] (r1p3#15 = crimes, test drill)
I cannot help but think… I heard Joe Maki say he’d rather be sued by environmentalists rather than Industry. Is this the direction we are going? An unnecessary fight by the people to defend themselves, all because there is no conviction in our government to develop adequate standards reflecting what is truly customary in our region and to take into consideration the unique qualities of various geographical and geological areas of our state, meaning of course, site criteria. Instead the state seems intent on bringing heartache upon the people now and in future decades.
Socio-economic Study—My #1 Concern
The power of the state to impose its socio-economic will on local areas is epitomized by the recently passed sulfide mining legislation. A sulfide mine on the Yellow Dog Plains will transform the “affected area” like nothing before. Local zoning control will go out the window as the sulfide mine warps customary prices and use patterns of surrounding real estate. Customary quality of life will change, too, probably forever.
As local communities face this over-whelming state power over their lives, it seems obvious and fair that a baseline socioeconomic study must be mandatory before a sulfide mine begins its operations.
It is interesting to wonder why the DEQ has ignored or disbelieves that indications exist in the statute for mandatory use of a socio-economic study. Maybe this is due to competing interests? It has been said by DEQ (Fitch and gang) that the socio-economic studies are not in the purview of the DEQ. Prime examples are: r1p5#29, r1p3#13 etc (these discussions are found throughout my notes).
This DEQ position on the irrelevance of socio-economic matters in their responsibilities is just flat out wrong.
This section discusses specific language (words) in the statute that support and imply that a socioeconomic study is to be required in rules, and that results of such a study must be included in any DEQ consideration for the issuance or rejection of a mining permit. Further evidence for the inclusion of a socioeconomic study is presented in rules comments made by the Environmental Protection Agency (EPA).
PARTS OF THE STATUTE INVOLVING SOCIO-ECONOMIC FACTORS
Retaining the right In the statute under 63203(3): “Subject to subsections (4) and (5), a local unit of government shall not regulate or control mining or reclamation activities that are subject to this part, including construction, operation, closure, postclosure monitoring, reclamation, and remediation activities, and does not have jurisdiction concerning the issuance of permits for those activities.”
Here the state asserts its power to allow and control sulfide mining, as opposed to local government control. Since the state retains these rights, it follows that the socioeconomic effects of sulfide mining on the surrounding area are the state’s responsibility, and that that means the state has the right and obligation to require an objective baseline socioeconomic study.
Consider that elsewhere you have prevented the effective evaluative factors of socio-economic principles from occurring. (One example: At the rules meeting at St. Ignace by the DEQ.) But since you the State retain virtually or essentially total control over sulfide mining it stands to reason that the local socioeconomic consequences of it come under your purview. Can the state handle this responsibility…this comes back to “experts and knowledge”, budgetary concerns, and perhaps not wanting to take responsibility.
Interpreting “customary”
This word “customary” appears in the Statute 63203 (4):
“A local unit of government may enact, maintain, and enforce ordinances, regulations, or resolutions affecting mining operations if the ordinances, regulation, or resolutions do not duplicate, contradict, or conflict with this part. In addition, a local unit of government may enact, maintain, and enforce ordinances, regulations, or resolutions regulating the hours at which mining operations may take place and routes used by vehicles in connection with mining operations. However, such ordinances, regulations, or resolutions shall be reasonable in accommodating customary nonferrous metallic minerals mining operations.”
How shall we define “customary”? Customary to whom? Is it customary to our neighbors, Wisconsin, Minnesota, Canada? Can “customary” sulfide mining operations apply to what is local and customary in the UP of Michigan? We are in a water-rich area, customary must be related to this reality. Is related a key word? This word points towards LOCAL. This implies a socio-economic study among other things. What is customary and local in nature in the UP certainly is not always the same as downstate customary ways of thinking, not to mention customary sulfide mining ways of thinking.
It would make sense to determine what is local and customary in the socio-economic life of an area about to be enormously affected by sulfide mining before any misunderstandings occur.
See r1p5#29 of my notes: “Hal Fitch says: [“yeah I guess a neighbor could be affected by this”, he pauses and nods his head --- “maybe we should burm up a hill to block its view. “] Such expression is highly disrespectful of UP custom, and outright ignorant or unaware of that custom, which reflects a beautiful way of life. There are occasional passages referring to this topic of custom found throughout my notes. I did not record many on this topic as I wish I had now. Yet I would prove such statements as required. Somewhat, such “custom” comments could also be included under lack of knowledge. Additionally, one more direct comment under r4p3#9 is: [Issues: Wells, their definitions and customs of the UP. Camp wells, springs are quite varied and dispersed and …this reflects how the DEQ and industry are unaware of unique UP customs. These laws being made by obtuse people, downstate people. If a good elaborate discussion was had here, open and friendly, even intense and vigorous, chatter like, with plenty of time… Then even “other” overlooked matters may be seen or discovered. But the conditions for this are not there. There are really a least two issues here: wells, and communication. But what about “custom”, which I think is “law of situs”. What about “other”]. (there has been improvement on this issue since rules 12/12/05)
Interpreting “reasonable”
How shall we define “reasonable” in the above statute quote? Reasonable to whom? Can “reasonable” sulfide mining regulations apply to what is local and customary in the UP of Michigan? We are in a water-rich area, “reasonable” must be related to this reality. Is related a key word? This word points towards LOCAL. This implies a socio-economic study among other things.
Public Health, Safety, and Welfare.
WELFARE clause is referred to in statute around 18 times. What does the word “welfare” mean? Would you (DEQ) expect me to believe the legislators are not anthropocentric?
Affected Area --- Are People Included?
An “affected area” possesses not only vulnerable environmental characteristics. Common sense tells us that the socio-economic environment of this area also will be affected by very parameters that define the affected area.
The statute defines “affected area” 63201(b): “Affected area” means an area outside of the mining area where the land surface, surface water, groundwater, or air resources are determined through an environmental impact assessment to be potentially affected by mining operations within the proposed mining area.”
Please notice the word, “outside”. Consider how surface water travels to other property. Look at groundwater and the difficulty with hydrological studies. Look at air…..is one to say that the wind does not blow. This is your statute and signed by all.
Are we to believe that only the environment is to be affected by sulfide mining? People are part of the environment too, and they too, have a habitat and local and customary ways of living---which is socio-economics. Environment directly affects socioeconomics. I don’t see how a person could maintain that socio-economic factors are to be ignored as you the DEQ think. What are you doing defining such a concept as “affected area” if you are not including the human/socioeconomic factors?
Further in the statute: 63209(8) “Both the mining area and the affected area shall be reclaimed and remediated to achieve a self-sustaining ecosystem appropriate for the region that does not require perpetual care following closure and with the goal that the affected area shall be returned to the ecological conditions that approximate pre-mining conditions subject to changes caused by non-mining activities or other natural events. Any portion of the mining area owned by the applicant may be used for any legal purpose.”
People are not uninvolved in ecological conditions, are they? To reclaim and remediate private property in an affected area would definitely appear to be greatly aided if there was a baseline socioeconomic study to use as a guide.
Steve Hoffman of the EPA said, you have to have a baseline of the affected area. R3p5#24: [“Affected area again: What is it versus what the state thinks versus industry’s definition. This could block a permit if there is a conflict between the two. Steve at EPA says this is imperative. Back 40 lands clearly spelled out the potential conflict. Hal admits: what is the evidence. Little do they know. This sure looks like Steve will block a permit if the affected area is not proper.”] See also r5p1#2,
Strong statement from rules notes are R2p4#16: [Steve EPA says, explain or state that data should be collected for Public health, safety, or welfare. This is a coin phrase used in law. It is used 8 times in the House Bill 6243. This means the social economic effects are indeed to be considered. This means: Steve says, again, data is to be collected on the affected area. I say tourism, at large is part of the affected area] R4p4#12: [Issue:Rule package must tie back to Public health and safety etc, Hal says. I cannot help but wonder….he says the words but does not understand them. Or is he not clear. Or is it his mind set. What is it???]
Zoning and Land Values --- the State usurps control Not only words found in the statute determine my contention that a socioeconomic study is necessary for inclusion in the DEQ’s consideration over whether to issue a sulfide mining permit. It is what is not there in the statute that is also telling, and one thing grossly lacking is local control. Even local regulation of mining hours and/or trucking routes are subject to state approval, essentially.
Some have said that real estate values are not dropping in some areas due to the proposed sulfide mine. Assuming this is true, here is a case illustrating the principle of a unique area and that the public/individuals are purchasing property without any kind of concern for a mine.
But suppose the mine comes. Compare a wilderness recreational area with the type of person buying and its market, versus an industrial area with its type of market and the type of person buying. Each market area is different with its own special circumstances, and the zoning determines which areas are zoned for which activity.
With the mine, suddenly there is more different activity, more demand for commercial uses of previously wilderness or recreational land. Local zoning boards will be confronted with requests for zoning changes. You can imagine it…” I want to build a Walgreens on my lot here on 550, I want to build a truck stop…”
Land values will change drastically depending on the site, the buying market will change…socio-economics again. Zoning and socio-economic studies should work hand and hand. But the State has blocked this by its verbiage and behavior…. Which is in error, and consequently should be corrected by actually requiring the baseline socioeconomic study with its consequences and demands.
Refer to my Notes
See all my notes if you want. In late spring of 2005 I consolidated my notes, creating an index. The following is a list of socio-economic comments indexed at that time. This sub list is part of the total index.
SOCIO-ECONOMIC
1. reputation (r5p3#24) (see philosophy #49)
2. deterioration of a community (r2p2#8)
3. conflict with a community, arguing
4. language, words misused (r4p3#7,9)
5. public hearing, public meeting purposes (r6p6#54) (r1p2#10)(r1p4#26)(r1p6#31) (r3p1#1)(r3p1#4)(r3p2#10)(r3p4#20)(r4p1#4.1)(r4p5#21)
6. jobs + to a community
7. Tourism wilderness at odds
8. why not: lack of experts
9. UP customs (r1p5#29) (r4p3#9)
10. Public, health, and safety is used in statue (r1p3#13)(r2p4#16) (r4p4#12)
11. Powers letters.
12. Culturally important list (r5p2#13)(r5p2#10) [r5p2#9]
13. private property (r5p4#34) (r5p5#40)
14. sacrifice zones (r5p8#65)
15. ignore it [r6p2#10] (r1p4#25)(r2p2#7) [r3p3#16]
16. the rues [r6p2#11] (see inconsistency #1)
17. (r6p2#14)
18. affected area: (r1p5#29) (see language # 5)
19. measurable (r2p4#18)
20. Benefits and Costs [ r3p3#17](r4p3#10)
Argument Against A Socio-economic Baseline Study
At least one environmentalist, and some from industry, argue that a socio-economic study is inadvisable because no one can predict an area’s future in this regard involving a mine, and besides such studies are never done correctly. Huh? What is so special about a socio-economic study that it cannot be done with integrity as opposed to say, a baseline flora and fauna study? A baseline socio-economic study would still be useful to at least document the state of the economy and local social conditions before the mine goes in. Such a record will prove very useful come post-closure.
Rules Delay And A Better Product
I had a discussion with Tom Godbolt of the DEQ. It focused on a delay to create better rules. He said as best as I can express: you can accept things as they are, let the rules pass, to be implemented. Then the DEQ or State at least has a guideline to “operate” by. Something is better then nothing he says. Tom goes on to say, there is nothing to prevent you from legislating something new. This thinking is current legislative thinking. If you want changes bring those changes to them and deal with them legislatively. They do not want the DEQ writing laws. They want matters to go through them. If legislators had put no date on completing the rules then the DEQ could just drag things along like they have done elsewhere apparently…. Thus not getting things done and the DEQ having too much power… or something. A friend points out, if more legislative then blame can be put on legislators.
If I or someone files a contested case hearing, attempting correction of some rules then Tom thinks, so be it. The courts are made for such actions. Such is their purpose and he implied this can be a good thing. It takes responsibility off of them. It improves the law. He wants the best product.
Now, somewhat contrasting matters: in a conversation, Hal Fitch wants the same thing…. That is the best product. Yet he does not approach it as Tom does. Further Hal thinks his product is already there. He already has the best product. He says, the law does not permit him to make a lesser rules package then what the Statute is. It’s actually against the law he says. I ask myself, what is the conflict?
Anyway, back to Tom. He does not think legislators will give them more time, yet only to finish their existing process. So far, I like Tom’s way of expression and thinking. It makes sense to me that he would want a good product, although I thought he once said he thought the YD Plains was permit-able. (I suspect he knows he has to LOOK.) I immediately disagreed but with substance to my comments. He gave an unclear response.
Right to Impose Another more pertinent comments was nicely presented to me by Tom Godbolt. It is, the “right to impose” concept, meaning the DEQ in it’s powers to look out for the best interest of the people has the right to impose a socio economical study on landfills and prisons because it is a hardship on the surrounding communities (affected area). Since the DEQ indeed has the right to impose on landfills and prisons, logiclally, if court proceeding, it would have the “right to impose” on a sulfide mine. Because a sulfide mine is worse then a landfill or prison, which can be easily proven. A mine site is permenent unlike a prison, although a prison has escapees. As to a landfill, it does not go as deep and it has better oversite. Whatever, all are unique.
CONCLUSION
Rule 601 part 6 the DEQ continues to use the words “may request a prospective applicant to prepare and disseminate a socio-economic analysis”. Based on what has been written in this paper “may request” rightly ought to read “shall require”.
Additionally the rules should say “The socio-economic study will be considered when making a permit decision” rather than the current “However, the socio-economic analysis shall not be considered in making a permit decision”.
Logic dictates: the effect on tourism is paramount and this most be evaluated objectively by an objective socio economic study along with all other human factors that are therein.
Affected Area
This term is defined in statute, yet in the rules minimal direction exists to implement this definition. Since the purpose of the rules is to clarify or implement the statute, yet they fail to do so regarding affected area, the rules lack substance; they are incomplete.
Defined in statute as “Affected area means an area outside of the mining area where the land surface, surface water, groundwater, or air resources are determined through an environmental impact assessment to be potentially affected by mining operations within the proposed mining area.”
The following are quotes from rules notes where I identify significant comments on affected area. I was especially aware of the affected area because I personally would be considered an expert on this topic because of my 30 years of real estate experience.
R3p5#24, I have repeated this quote under the socio-economic issue, yet it applies here also. [“Affected area again: What are they versus what the state thinks versus Company. This could block a permit if there is a conflict between the two. Steve of EPA says this is imperative. Back 40 lands clearly spelled out the potential conflict. Hal Admits: what is the evidence. Little do they know. This sure looks like Steve will block a permit if the affected area is not proper.”]
r1p5#29 This following quote is repeated also: Affected area, indirect impacts (effects)= EPA; this man brought out a major issue. But the topic was poorly received. The bill was written for direct impacts as they say. Social Economic impacts: this act does not cover this, Hal Fitch says. Skip says the intent is that the DEQ will consider the total area. (Affected area= It is understood by all parties that the DEQ shall consider the effects of Sulfide mining on the total socio-economic area around a proposed mine site. Mining effects could range anywhere from 1/2mile to 100 miles and even further. It is more likely to occur around 10 to 20 miles, an example being the effects on tourism in the entire Upper Peninsula. Further, what are potential effects on quality of life on nearby communities? This paragraph is written by me and I plan to improve it and finally submit it to the rules group)
Continued from notes: After debate about affected area, HAL FITCH SAYS, YEAH I GUESS A NEIGHBOR COULD BE AFFECTED BY THIS, HE PAUSES AND NODS HIS HEAD --- MAYBE WE SHOULD BURM UP A HILL TO BLOCK ITS VIEW (he thinks he should give a little and understand a point). As he says this he tilts his hands, then he wonders where this house is located on their property, maybe they have a forty and are built in the center or far side, implying no burming would be necessary ‘cause they cannot see the mine site anyway. He and others go on to talk about this hypothetical neighbor and burming up the bank. To me this is an ungodly example of how obtuse Hal is about UP custom and life styles. I don’t know whether they don’t want to see, or are just unaware... and consequently NOT experts. Although Joe lives in Gwinn, I wonder why he does not say anything. What I mean by UP custom and lifestyles: there are no or very few fences, roads go everywhere, neighbors help one another even at distances of a few miles away, etc. Hal does not see the customary UP use patterns of recreational land, either.
r5p1#2 As long as the affected area was not disturbed by subsidence. Issue is: affected property versus mining property.
Reviewing the notes index of the records I made during rules, I cannot find any more references concerning affected area. From my memory, I cannot remember Hal talking about it at all in a substantive or definitive way. (as this is my expertise) . For example: Trucking in affected area. Any site permitted anywhere in our state must always address movement of ore because smelting is not licensed (during rules we talked about the smelting being not licensed). Joe Maki’s response was that another law deals with trucking… so the topic was passed over. This law that he mentioned was not discussed so there was minimum input from the group. The point here is the DEQ has the responsibility of regulatory oversight over sulfide mining to protect the health and welfare of the public, yet ore trucking is dealt with in another law, and presumably by another agency. And at rules meetings everyone’s face looks blank or empty because few know the other law and therefore unable to offer input. So trucking routes, an important and inescapable part of affected area, draws a blank and is passed over during rules. Yet the neglected term of course remains in the statute. To me an important concept to understand is: 1. It is the DEQ’s responsibility to adequately define and handle the issue of affected area, as it is referenced in the Statute. 2. The intent of the statute is to assign regulatory responsibilities to the DEQ, not to other agencies whose mission is not “protection of natural resources”.
Therefore affected area needs clarification and substantive attention by the DEQ.
So, I have to ask myself why the DEQ refusing this responsibility. Why are they costing the taxpayers this hassle, which will likely result in lawsuits. It is as if DEQ wants lawsuits, as if they are doing intentionally a bad job. This is perplexing to me.
The affected area to me is extremely important, not only from the natural resources aspects but human quality of life values as well.
1. The trucking factors are very important.
2. The real estate values are entirely another matter.
3. Tourism factors are not even talked about…. Whereas such an industry is possibly grossly affected by mining law… especially this type of mining.
These are huge topics to be addressed, yet are absent from rules. I suspect or realize their absence is attributed to socio economic factors therefore the DEQ is trying is stay away from any further depth into the topic. I wonder also, if the DEQ is to acknowledge land surface, surface water, groundwater or air resources one might think such acknowledgement lends itself to others thinking being noise pollution, trucking, land values, and tourism. It sure appears to me that one can see right through this faulty logic, as socio economic words are used all over the statute.
This is so important to me that it is mind boggling!
One mine site may have a relatively small affected area whereas another’s would be great. One has to ask what is a small area versus a large one. If test cases were studied, such examples could give answers. One example: using Kennecott’s proposed Yellow Dog Plains as a test case. If you are allowed to destroy a river system then would you proclaim in rules “in the affected area you may harm or pollute the Salmon Trout River because the greater good is more valuable then the loss of the fishing and camps and risk to Lake Superior.” You would soon see that you cannot deteriorate others peoples’ property as the courts have shown this, and that the greater good is to refrain from mining in this case. You would see that your statement helps you pinpoint how important the affected area becomes for hypothetical discussions. Another example test case: study the old Ropes gold mine and observe the site is polluted and there is no immediate stream nearby, yet still downstream is Deer Lake where CCI has polluted it previously with mercury. You could begin to get a grasp of affected area and proceed to write good objective rules.
Leadership from the DEQ could say: “Companies, before you spend monies, make sure you understand the affected area you are testing in.” or “Will you be near a stream and discharging into that stream where your discharges move many miles or will dissipate.” Or “Please notice the waters in you testing area, you must match or improve waters in the testing area you are exploring”.
The DEQ would expand greatly upon the affected area, giving clarity and words and ideas to its communication, ending with “not limited too” which is unlike what Hal has concluded in rules regarding affected area. Such gives industry no direction. Another example: “If you industry don’t know how to determine the realistic answer to affected area, you had better seek truly objective advice.” The DEQ should say: “we the DEQ don’t know what it is either” But the public will know when they come to public hearings.
The following is something I wrote during rules. Of course no-one would listen to this…. at rules. Yet, this paragraph does illustrate the kind of information needed in order to have safe mining. I would appropriately add “and is not limited too”.
R3p5#27 A water study shall be performed by x company for a period of between 1 and 10 years. Said time period shall be based upon the specific and individual characteristics of the mining site, and the total affected area, and the social economic effects. Said water study shall not commence until open public input has been thoroughly received and responded to. The mining permit shall be (permanently) rejected and terminated if such type of public input has not been obtained. Additionally, any governmental authority or entity (courts, DEQ, legislators, Governor) shall not unequivocally consider previous expenditures (monies, labor, whatever) spent on a mining proposal as an incentive for the issuing of a permit.
The Quiet People
The following is affected area from a more personal perspective. I am reluctant to express this, yet I did record it, so I will attach it here and give it some clarification. It could be called the quiet people.
Many people in our society are not loud and aggressive. They just want to be left alone and live their lives in the peace granted to them by our constitution. Some of the individuals in the rules group are quiet while others are more outspoken.
I tend toward either direction… both quiet and outspoken. If the topics had evolved into socio economics I would have become outspoken, but such was prevented. I recall how adamant Skip Press was when he announced at the first rules meeting how socio sconomic factors would not be addressed. The key word to remember here is that Skip was adamant. Irrespective of this directive set by the DEQ, I still sat through all 13 day meetings. In my mind, my expertise was relegated to limbo, unused and unwanted for all this time. The rules group did not even once ask me for my opinion, as I sat there and took notes.
A good resource, not even used, sitting right in front of them. See all my rules notes, but specifically under Consensus #7, quiet me and quiet others. (r5p6#46) (r6p10#80) (r1p3#12)( (r6p1#4) (r6p2#12) (r6p7#59)[r6p9#76][r6p11#91] (r4p2#6)
Disclosure
At the rules meeting in Escanaba I submitted 3 disclosure forms. This is a very important concept affecting real estate value in the affected area. Please make sure you understand this. I could talk for hours on this issue alone.
Conclusion. It is not too late to give affected area substantive attention in the rules. Let’s re-assemble the work group with a different mind set, in order to study, evaluate, articulate, and include the details on affected area in the rules. It’s OK to do this, in fact it’s vital to avoid incomplete rules going to the legislature for approval.
Site Criteria Should Be Included in the Rules
Introduction. Site Criteria, as I understand them, are a list of characteristics, any one of which classifies a potential site as unsuitable for sulfide mining in Michigan. Examples of site criteria might include the presence of a copious amount of water, such as an aquifer, stream, or spring run-off, as well as being part of the Lake Superior watershed. These are just examples.
The fact that water characteristics as site criteria would tend to eliminate the proposed sulfide mine on the Yellow Dog Plains has muzzled any serious consideration of inclusion of such criteria in the rules, much less as an integral component of the permit process.
This neglect of site criteria, possibly due to industry interference, is unfortunate, and another example of the incomplete nature of the rules as they are currently promulgated.
Site criteria are highly appropriate for inclusion in the rules: Statute language permits them, Common sense demands them, Precedent in South Dakota permits them, The obligation of Due Diligence permits them, The concept of the Precautionary Principle permits them, Their inclusion will ameliorate a serious flaw in statute language.
Inclusion of site criteria does not mean that the DEQ will be deprived of flexibility when weighing all the factors when making a permit decision. On the contrary, the presence of site criteria will simply acknowledge the obvious, and in so doing lend greater clarity and direction to the permit process for all concerned, in keeping with the purpose of the statute and law in general.
Statute language permits site criteria. Nothing in the statute forbids site criteria; the statute therefore gives the DEQ the latitude to consider them in the permit process, in fact use them as a deciding factor. So “legal” supports the inclusion of site criteria.
Common sense demands site criteria. I say this because every site is unique, and it is an acknowledged fact that much of Michigan is surrounded by fresh water, and those sites with or near fresh pure water are by any rational and fair examination unsuitable for sulfide mining—to mine would be like starting a bonfire in a dynamite factory. As they say, “Fools rush in…”
Worsening the hasty inclusion of water-rich sites for potential sulfide mining is the fact that neither the DEQ nor industry has any experience with sulfide mining under these unique and problematic conditions.
With sulfide mining in Michigan, it will be “learn as you go.” This lack of expertise demands site criteria to preserve and protect our most valuable and vulnerable sites.
Precedent in South Dakota permits site criteria. The state of Michigan exhibits such stubborn arrogance in refusing to learn by example. Wisconsin has the 10/10 rule. Despite facing continual attack by industry, this 10/10 rule stands as an instructive precedent on how a water-rich area can deal with sulfide mining. Yet Michigan refuses to listen.
Then there is South Dakota, a relatively arid state, which appears to care a lot more about its fresh water than the our vaunted Great Lakes homeland. In that state of hills and plains sulfide mining is forbidden on or near stream beds. This precedent is another example of common sense, but a common sense that is sadly lacking in our rules.
Due Diligence demands site criteria. Careful analysis will reveal that when Michigan sold mining leases with sulfide mining exposure, our state engaged in a very risky investment strategy, one that is never recommended : “Invest and then investigate.” It was the opposite of Due Diligence, which is what every investment company anywhere recommends: “Do your own investigation and analysis before investing.”
Sadly, the chickens have come home to roost. The state has locked itself into a sulfide mining obligation, an obligation about which it was so ignorant that a brand new regulatory law had to be hastily written after the fact.
What a failure to perform due diligence! What can be done for damage control? Site criteria will allow the DEQ to preserve and protect, through clear and forthright criteria, our most vulnerable and valuable sites.
I might add that the obligation of due diligence will remain. The State has been so lax in this vital regard that I wonder if the people might rise up and cry “Negligence.” As it is, it is the people who are assuming the obligation of due diligence; in the public forum they are auditing the state’s actions regarding sulfide mining, and the ongoing audit is revealing unseemly haste, ignorance, hubris, just to name a few critical failures of due diligence. The list will go on. As they say, the fight has only just begun to save our land and water.
The concept of the Precautionary Principle permits site criteria. A Google search will reveal many entries exploring the Precautionary Principle; it has many applications. A good definition relevant to sulfide mining in Michigan (ie., the Upper Peninsula), is “Where an activity raises threats of harm to the environment or human health, precautionary measures should be taken even if some cause-and-effect relationships are not fully established scientifically…It is ampler than conventional vision because it values the long term, because it looks beyond shareholders to consider the needs of workers, citizens, and future generations, and because it is concerned with ecological health.”*
In others words, the Precautionary Principle maintains that when faced with pressure to adopt a new activity or product, it is right, proper, good and wise to err on the side of caution. This type of thinking is embodied in common sayings like “Look before you leap” and “Better safe than sorry.” Foreign languages have their own versions of the precautionary principle at work.
Admittedly, some in the environmental camp believe that proper exercise of the Precautionary Principle would logically mean adoption of a moratorium on sulfide mining, much like the Wisconsin 10/10 rule. Unfortunately, as things stands now (see Due Diligence above) Michigan has painted itself into a corner on sulfide mining. We’re more or less obligated to allow it.
But the Precautionary Principle can still be a blessing to us. With site citeria, we can err on the side of caution by allowing the DEQ to preserve and protect, through clear criteria, our most valuable and vulnerable sites.
The inclusion of Site Criteria will ameliorate a serious flaw in the statute wording. In the statue it says under 63205 (11) Subject to subsection (10) the department shall approve a mining permit if it determines both of the flowing: (a) the permit application meets the requirements of part 632 of the act. (b)The proposed mining operation will not pollute, impair, or destroy the air, water, or other natural resources or the public trust in those resources, in accordance with part 17 of the act. In making this determination, the department shall consider the extent to which other permits determinations afford protection to natural resources. For this subdivision, excavation and removal of nonferrous metallic minerals and of associated overburden and waste rock, in and of itself, does not constitute pollution, impairment, or destruction of those natural resources.
Then in rules it say the same thing under Rule 201 (7): “Subject to subrule (9) of this rule, the department shall approve a mining permit if it determines both of the following:
(a) the permit application meets the requirements of part 632 of the act.
(b) The proposed mining operation will not pollute, impair, or destroy the air, water, or other natural resources or the public trust in those resources, in accordance with part 17 of the act. In making this determination, the department shall consider the extent to which other permits determinations afford protection to natural resources. For this subdivision, excavation and removal of nonferrous metallic minerals and of associated overburden and waste rock, in and of itself, does not constitute pollution, impairment, or destruction of those natural resources.
The rules are supposed to promulgate or expand on or clarify where a mine could or could not go. It is not to repeat the statute. The repetition here is very disturbing. Here the problem of site suitability still glows like a raging fire.
But it’s not only the lack of clarification and repetition in the rules that is striking. Consider the sentence I have placed in italics above. This sentence states that mining does not pollute, nor does mining impair or destroy natural resources or damage the public trust in natural resources.
This assertion is positively Orwellian: it is just like the State telling us to believe that war is peace, and hate is love, just because the State says so. So we are to believe that mining in and of itself does no harm, so says the State, and such a redefinition of the effects of sulfide mining is embodied in a statute and rules supposedly written to control and prevent the ever-present environmental dangers which are part and parcel of sulfide mining!
What a dangerous and dishonest contradiction. This is a serious flaw in statute and rules wording, and calls into question the integrity of the entire sulfide mining legislative process—is it all just window-dressing, as some have claimed?
Inclusion of site criteria in the rules will permit the state to ameliorate the damaging fall-out from this unacceptable , outrageous, and misleading statute language. Until and if the statute can be amended, site criteria in the rules will allow the DEQ to preserve and set aside, through specific, clear criteria, our most vulnerable and valuable sites. These precious sites will be ruled as outright “ineligible” for sulfide mining. Amen.
References to Site Criteria in my Notes R5p5#45 EPA says = again, the state needs a bases for rejecting or accepting a permit. It might be in “guidance” so that the decision can be made with some kind of consistence. EPA also says get water and ground water data, 1 year was minimum. Even Ind agrees, but Hal does not give an answer. Everyone is against him but he sits there.
R4p5#16. HUGH ISSUE: TAKING. Sites; private lands = are taking was mentioned. This is more then mentioned, it is mentioned at first, but then blown up. Ind rocks on his butt, face turns red, twist his body, eyes now alert. It is interesting to watch him. (most of the time he sits quiet) Have to pay the mineral company for their mineral rights. New Industry man in corner says; legislators labored 4 days arguing over 90 million, therefore they are not interested in this topic at all. Then why don’t those legislators resign. This topic is not over with. Sleeping bear dunes had to pay 90 million for the loss of mineral rights. “taking issue”. DNR = took this land under the dune.
The inherent Natural areas Why are some areas un-mineable, Hal says, and makes a satisfying look, “its these rules that will protect the areas”. Yet he was not quite clear. This topic should have been hammered to death. For example, where are the examples, how and why.
Private owned mineral rights is taking, limits available. What a joke, who own them. R5p9#66. Walk away from site it (one) must be able to use that aquifer, YD cannot be used but other sites may used across the Western UP. O discharge verses R5p9#68. There is some anticipated release, Hal looks at it this way. Industry wants some release while if a special site then What?. R5p2#12. EPA: you don’t want the Feds to supercede the process cause the Feds will “mess it up” R5p2#11. What about sites of the future; talk about inconsistencies again. How we handle it: Ind says is the issue. p. 4 line 18 still inconsistent (I think). Process is the Key. Flag this, see attorney general. R4p5#20.5. ISSUE: Water fluctuation was admitted by Ind.. focused on the location. I kind of forgot this, but I think it is just the point that each site is unique and need subsequent though about the principle of “unique”. The DEQ is inconsistent, which cannot occur.. period….. Site specific for studding for water flow. This reflects the YD and its unique character. R2p1#1. Steve spoke saying BASELINE: of water, air, including human resources. Why wasn’t air added he asked.
I see no logic that say to not use site criteria.
* Quotation taken from page 30 of the January/February 2006 issue of WorldWatch magazine. Part of an article entitled, “First, Do No Harm” by Gary Gardner. Bonding Insurance needs more teeth in the rules
Introduction
The last line of protection for the people in case of a mining accident, mistake, catastrophic event or unforeseen harm from the approved mining processes is insurance. Please read the following, which was discussed at rules, and you will see that if disaster should occur or a mining process prove damaging, the people will be left holding the bag, because insurance won’t cover the whole cost of restoration and the mining company will declare bankruptcy. Experts must be brought in to speak on this issue of insurance and offer ideas to be included in the rules to deal with this troubling situation and strengthen this last line of protection.
#45. How does the DEQ recover the cost to go after the industry; Env asks. No answer was there, except it comes out of oversight or you cannot get it except court action. Discussing the bank to have its place of business or doing business in Michigan verses in Gwam in the S Pacific. Making a surety not so strict that the DEQ cannot get a company to actually obtain said surety or insurance.. (11/24/05: What if you had a truck 15 years old but no miles on it. The insurance co. will insure the year but not the low mileage. I tried this myself. This points to the same situation as our un-insurable… therefore they have to be evaluated differently, maybe no permit. Some sites can have a high percentage danger while other sites are less risky, insurance would reflect this.)
A surety is released once the DEQ says so; but then 10 years later it leaks and your insurance money is gone. You only can go after the original company but not anything else. Surety: they issue this based upon getting insurance and that they (industry) want to get insurance and that they have the reputation or keep their reputation. One cannot make it impossible for the industry to get this surety. WHY? Env says it is a “taking” I say, protection of the environment So the State takes the surety Bond or released it. How does it use the bond, to pay social programs in Lower Michigan. The communities are left with the environmental nightmare.]
R4p7#32. If an accident, then is the mine destroyed and there is limited security therefore the company leaves and consequently the people are left holding the bag… the property tax is lost too. Example given by Env A car is use as security to pay car insurance. This conversation was unclear , and erratic, but at least it was had. Maybe something will evolve form it. R5p1#8. If banks fails then what, Hal does not seem to say. Banks don’t fail but Bonds fail. Hal says, we cannot eliminate every single risk. R6p9#69 The topic is about security not being the mine itself. Page 9. Env keeps saying, you cannot use a asset that you have to mine in order to acquire that asset. Meaning you cannot use the mine as collateral because if something goes wrong, then you have to continue mining in order to cover the collateral loss. He said this several times. One might ask one’s self why repeat your self. Why even say this at all because it is so stupid. I shake my head in disbelief. R6p9#72. (This topic is on Corporate liability): others are listening but I know corporate liability is a huge topic but other just don’t understand. Financial guarantee: Env, suggest 5 specific persons get together then report back. This #73. suggests that I am correct: only 5 or so people understand this topic , enough in order to debate it. There should clearly be experts brought in to discuss this topic. R6p9#75. Boy, this topic looks bad, it’s chasing the money. Bonds, trust, etc. It sounds like an Enron thing.
There is what is called a risk assessment (they exist and I barely understand it) where monies consistently come in at substantial higher dollars then projected. To speculate, I suspect risk assessment means: the risk of anything going wrong at a given site. One hears: the company gives a number, but when someone objective comes in to assess the same situation the number is substantially higher. This expression was said somewhere in rules, but I cannot remember where. But what I do know is: an expert should be talking on this topic. This topic could be a major aid or thought in determining site criteria, what is mine-able and what is not, because of the risks.