International Joint Commission Letter to Scott Walker 06/08/2011

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