Michigan Mining Law and the Sierra Club
By Marvin Roberson, Chapter Forest Ecologist
In the 19th century, mining was a huge industry in
Michigan. It has been estimated that almost 70% of the copper ever mined in the
world came from the UP. Iron mining was also very significant and continues to this
day in open pit mines that can be seen from space. So great is the store of the
mineral in Michigan, early surveyors were convinced that their compasses were
malfunctioning, because the ore in the ground interfered with the magnetic
workings of the instruments.
At the time of this original mining boom, most laws were
written specifically to benefit the big mining companies at the expense of
ordinary citizens, and we ended up with things like the “split estate.” This
allows companies to buy the minerals under a piece of land without actually
having to buy the land itself and lets the owner of the minerals mine them over
objections of the owner of the surface land.
In the 1970s, federal legislators began waking up to the
need for environmental protection and regulation. The Endangered Species Act
was passed, along with the Clean Water Act, Clean Air Act, and a host of
others. Michigan passed some strong environmental laws as well.
However, Michigan did not address mining issues in these
new regulations. By the time Sierra Club began protecting the environment in
our state, most mines in the UP had closed, or were winding down. It was
believed by many, including the mining industry, that the majority of the
commercially accessible ore had been played out with little chance of a
resurgence in Michigan. Therefore, it did not seem necessary to spend time and
effort regulating an industry which no one thought would be around anymore.
Mining Rises Again in the UP
In the very late 1990s and early 2000s, rumors began
circulating of new mineral discoveries in the UP, with the very real
possibility of new mining occurring. Kennecott Minerals, a subsidiary of Rio
Tinto (the world’s largest mining company), began leasing minerals from the
state and purchasing privately held minerals on the Yellow Dog Plains, a remote
area of the UP in northern Marquette County. It soon became clear that they had
discovered a significant ore body, mostly copper, with some gold and other
minerals as well. Mining was set to resume in Michigan, using techniques which
had not been imagined during the original mining boom.
Sierra Club Pushes for Regulation
At the time, Anne Woiwode was the director of the Sierra
Club Michigan (then Mackinac) Chapter. Very few people have a better grasp of
big-picture long-term strategic issues than Anne, who retired after 30 years
with the Chapter in 2015. She quickly came to the realization that Michigan
essentially had no regulatory structure addressing mining at all, much less the
new kinds of mining likely to occur as a result of technological advances since
the original mining boom. So she convinced the State of Michigan to convene a
Mining Law Work Group to address this issue and design a statute governing
mining which would be protective of Michigan’s resources. As the Chapter’s
staff forest ecologist, I was assigned to be the Sierra Club representative on
the work group, a role that proved to be drawn out, difficult, exhausting, and
controversial.
Known as the “Part 632 Work Group” (named after the
section this statute would occupy in Michigan’s laws, Part 632 of NREAPA), the
body consisted of state representatives including Department of Environmental
Quality (DEQ) employees. One of these, State Geologist Hal Fitch, was the chair.
In addition, the work group included members of the governor’s staff, and some
state legislative staff. Membership also consisted of representatives of the
mining industry including Kennecott, the Michigan Manufacturer’s Association,
existing iron mining operations and the salt mining industry. The environmental
community was represented by the Sierra Club, National Wildlife Federation,
Michigan Environmental Council, and smaller, local groups from the area likely
to be impacted by the first mine.
The work group met for a total of 23 full days, in two- and
three-day stretches, over a period of nine months. It was a grueling process. We
met in a windowless conference room in St. Ignace, just north of the Mackinac Bridge.
Travel was often brutal in the winter, and frankly, the conference center was
not well heated.
We wrote a new statute governing mining from scratch. We
had very little to model it after, as the situation in Michigan was very
different from other states. Much of the existing mining in the country is in
western states on public lands where regulation is much more straightforward.
In Michigan, much of the proposed mining would occur on private holdings. In
addition, much of the new mineral base was in “sulfide” mineral deposits. These
deposits are acidic in nature. When exposed to air and water, they produce
sulfuric acid, which is known as “acid mine drainage.” This was new to
Michigan, and had to be addressed as well.
Consensus Process Produces Winning Legislation
One of the important points of the process was consensus.
Nothing was included in the statute unless every single participant agreed.
This did two things. First, it caused the process to be extremely long and
drawn out, as arguments about minuscule points could go on seemingly forever,
but it meant that when the statute was completed, everyone in the room had
supported every portion of it.
This was crucial in the passage of the statute. When time
came to take it to the legislature, the representative from Kennecott testified
next to me, the representative of the Sierra Club. We both asked the legislature
to pass the statute exactly as drafted, with no change. The committee chair said,
“If we have Kennecott and the Sierra Club agreeing on every point, we’d be
foolish not to run with it.” Part 632 passed the Michigan Legislature
unanimously, and was signed by the governor in 2004.
In my humble opinion, Part 632 is the strongest, most
comprehensive mining regulation in the nation. It requires a comprehensive environmental
impact assessment, flora and fauna surveys and monitoring, water protection,
both ground and surface. Most importantly, it places the burden of proof on the
applicant for a permit, not the state. In other words, the applicant for a
mining permit must demonstrate that the mining will cause no harm in order to
get a permit, rather than requiring the state to demonstrate harm in order to
deny the permit.
MDEQ Fails the Law
Unfortunately, in the very first test of this law, the
state failed miserably. Kennecott Mineral submitted an application for a mining
permit under Part 632 for the Eagle Mine in a remote section of Marquette
County. Despite extensive documentation from Sierra Club and other organizations
that clearly demonstrated Kennecott had failed to meet the requirements of Part
632, the DEQ granted the mining permit with virtually no changes.
The permit was upheld in a subsequent lawsuit, in which
Sierra Club was not a plaintiff. Since that initial permit, there have been no
applications for permits for other mines. However, the DEQ has granted Kennecott
major alterations to the initial permit, which should have triggered the need
for an entirely new permit. Instead, the DEQ treated these major changes as
inconsequential issues and simply changed the permit.
In addition, DEQ granted Kennecott a permit for an ore
processing facility in Marquette County, despite Kennecott’s assertion in the
initial permit application that they would not be processing the ore in
Michigan. There has been one more application for a Part 632 Mining Permit
since the statute was passed. This was requested by Aquila Resources for the
“Back Forty Project,” which is adjacent to the Menominee River in the western
UP. That permit process is still ongoing, and no permit has been granted as of
this time.
Michigan has the best mining regulation in the country,
and we should be very proud of that statute, and all the incredibly hard work
which went into it. However, this is also a cautionary tale which demonstrates
that the best regulation in the world is meaningless if the agencies charged
with protecting our resources choose to disregard their legal duty to do so.
Kennecott Inspires Yellow Dog Sentinels Water
Protection Project
By John Rebers, Chair of Sierra Club’s Central Upper
Peninsula Group
The Central Upper Peninsula Group (CUPG) has been working
on a water sentinels project to survey water quality in the Yellow Dog Plains
area in Northern Marquette County since 2004. The project started out as part
of the Water Sentinels project funded by the national Sierra Club. That project
provided funding for equipment, including a dissolved oxygen meter and pH
meters, as well as time for former Chapter staffer Rita Chapman to provide
training and coordination.
Kennecott Mining Corporation established a mine in
northern Marquette County called the “Eagle Mine.” The mine was later sold to
Lundin Mining, a Canadian Corporation. Since the ore being mined is in a
sulfide ore body, there is a serious concern that acid produced when the ore is
exposed to air and water could affect water quality. Release of acid would
affect fish and other aquatic life directly. In addition, metals such as copper
and arsenic found in the rock can be released by the acid mine drainage
process. Because of these concerns, the CUPG wished to establish baseline measurements
in streams downstream of the proposed mine prior to the start of mining
operations. The group has continued monitoring since mining began. Other
groups, including the Yellow Dog Watershed Preserve and the Superior Watershed
Partnership, have also been monitoring water quality in the area.
Four core volunteers have participated in the project
since its inception: Dave Allen, Ken Arseneau, Mike Schneck, and John Rebers.
About 10 other volunteers have shown up to help at some of the monitoring
dates. We have collected data on water chemistry (pH, dissolved oxygen,
conductivity and total dissolved solids), temperature, stream flow, and aquatic
macroinvertebrates in the streams. So far we have not noted any major changes,
but it is important to keep track of what is happening in the streams
downstream from the mine to provide evidence of problems with the mine if water
quality problems develop.
