Back 40 Mine Case Resumes In Lansing

Issue Date: October 24, 2019

Hearings on permits Aquila Resources needs to open its proposed Back 40 Mine in Stephenson Township, Michigan will resume this week in Lansing, Mich. before Administrative Law Judge Law Judge Judge Daniel Pulter.

Testimony is expected to be heard from Wednesday, Oct. 23 through Friday, Oct 25. Attorney Ted Warpinski, who represents the local anti-mine organization, "Coalition to Save The Menominee River, Inc.," said the testimony this week only has to do with the wetlands permits that are just a portion of the permits Aquila needs to proceed with its plans for the mine. He said earlier this summer he was in Lansing for four weeks of testimony on the wetlands permit issue.

Coalition President Dale Burrie and his wife, Lea Jane, were in Lansing for most of the four weeks of testimony last summer and Warpinski said he expects them to join him there for this week's proceedings. Other Coalition members may also be on hand.

Warpinski said most of the testimony in this final three days of hearings on the wetlands permits will be from expert witnesses Aquila will call to defend their position, and much of the testimony will focus on what effects the drawdown for mine construction and operation will have on wetlands in the area, both those within the proposed mine boundaries and those outside of it, including properties on the Wisconsin side of the Menominee River.

Warpinski said Michigan Department of Environmental Quality (MDEQ) had granted the permits - but with the condition that they would not be issued until Aquila had provided some site specific information, and if it was found their initial information was wrong the mining company would have to adjust its plans.

Position of the Coalition, and of Warpinski, is that Aquila has not established impacts from drawdown and mining activities, and that this should be done before the permits are issued, not after.

Warpinski said during this summer's hearings, Jill Van Dyke, a Michigan DEQ expert on groundwater monitoring, had testified she did some running of the model Aquila had presented, and she felt there might might be much more extensive effects from the drawdown than the model presented, even affecting into Wisconsin. "She may come back and testify this week," Warpinski said. He expected Aquila will also call one or more witnesses to testify on economic impact of the proposed mine.

He noted the wetland permit challenge was scheduled originally for two weeks of hearings back in June. That more than doubled, with hearings continued in August and is to be completed with the three days of testimony this week. There were nine days of hearings in June, and then eight more in August.

Janette Brimmer, an attorney with Earthjustice of Seattle , Wash., who has been representing the Menominee Tribe of Indians on Back 40 Mine issues, will probably also be in Lansing, Warpinski said.

Warpinski said Judge Pulter has a pretty good handle on this case, since he is the same judge who handled a prior permit hearing, that one for the mining permit itself.

Warpinski said the testimony being wrapped up this week is the most extensive review, but only the first level, getting factual issues. The judge will schedule written arguments on the legal issues,which likely will take 30 to 60 days, after which he will review those briefs as well as testimony at the hearings, and then issue a decision, which Warpinski does not expect until probably early spring.

Regardless of the decision, the decision of the Administrative Law Judge is a recommendation, Warpinski said. If either party does not like it, there are different levels of review, for example panels that could be set up by the State of Michigan. Then there's an opportunity for parties to appeal the decision in Circuit Court, which starts another appeal process.

The difference is that from this point forward everything will be based on what is recorded in the hearings being concluded this week. Future proceedings will be reviews of records and legal determinations based on those records.

In the meantime, Aquila is fleshing out other information the state has requested in regard to other permits Warpinski is not dealing with.

The names of some of the players have changed over the years that the mine has been an issue, but players remain basically the same. In a reorganization early this year, MDEQ became Michigan Michigan Department of Environment, Great Lakes, and Energy (EGLE), and EGLE subsequently established a new Environmental Permit Review Commission (EPRC) to serve as a contested case review panel and consider appeals from rulings of Administrative Laws Judges.

Contrary to some published headlines, permitting for the mine is far from over. Burrie said as of Sept.13 only one of the five permits had been issued and effective - the National Pollution Discharge Elimination System permit, involving water discharge to the Menominee River.

In addition to the wetlands permit, other permits "issued" but with conditions attached and therefore not yet effective, include the mining permit itself, and the modified air quality permit.

A dam safety permit is still under consideration by EGLE. According to information released by Burrie, in June Luke Trumble of EGLE determined that the project assessment was not adequate and requested additional information, with more details on eleven substantive issues. Aquila received an extension until Oct. 3, and at that time requested another extension, until Nov. 4, to provide this information.

Warpinski is also representing the Coalition in federal court. There is a case pending in front of Judge William Griesbach in Green Bay on motions filed by the Coalition contending permits for this mine should be handled by the Federal EPA, not the State of Michigan. EPA back in the 1980s delegated authority to Michigan. There is a related federal case brought by the Menominees. This was dismissed by Judge Griesbach, then there was an appeal, on which a decision could still be several months in the future.

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