Dan Kaufman: Wisconsin's new mining law would allow streams and ponds to be filled with mine waste

Debate over the proposed Gogebic Taconite iron ore mine in far northern Wisconsin has quieted since the 2013 passage of a state law relaxing environmental protections for iron mining.

But it has not disappeared.

Gogebic wants to build a $1.5 billion open pit iron mine in the Penokee Range in Iron and Ashland counties, and has begun what is expected to be a long permitting process with the state Department of Natural Resources. The agency is one of several, including the U.S. Army Corps of Engineers, that will weigh in on the project.

Company officials and state business leaders say the mine will provide thousands of jobs in an economically depressed part of the state. Opposition comes from environmentalists, some local residents and members of the Bad River band of the Chippewa, whose reservation lies near the site.

Opponents have dug in -- some literally in a North Woods encampment, and some in higher profile venues such as the pages of the Sunday New York Times.

Environmental arguments against the project dominated a March 29, 2014 opinion piece in the Times by Wisconsin native Dan Kaufman, a writer and musician who now lives in Brooklyn N.Y. (Kaufman is also a fact checker who works as a freelancer for the Times.)

Kaufman’s piece was titled "The Fight for Wisconsin’s soul" and detailed the size and scope of what all agree will be an immense project. (In a separate item, we rated Half True a Kaufman claim that the mine "could be extended as long as 21 miles.")

Gogebic had a hand in drafting the 2013 law, which Kaufman says would give the company  "astonishing latitude" when it came to building the mine -- including this startling claim:

"The new law allows the company to fill in pristine streams and ponds with mine waste."

When asked for backup, Kaufman said portions of the law, Section 295, mandate that the state approve the filling of ponds and streams, providing the company re-creates -- the legal term is mitigates -- the filled-in area in another location.

"So, an applicant shall receive DNR approval if they do something to ‘mitigate or compensate’ for the destruction elsewhere," Kaufman said in an email interview.

But that important point was not mentioned in his original piece.

In the interview, Kaufman noted the law doesn’t say where the company would have to do the mitigation work. It could, he argued, be nowhere near the mine.

Kaufman’s overall interpretation of the mining law is correct, said Larry Lynch, a hydrogeologist with the Wisconsin Department of Natural Resources. He is the agency’s top official overseeing the project. For years, state law has allowed developers who build on wetlands to re-create an equivalent wetlands in another location.

The mining law applied a similar standard to some bodies of water that would be affected by the Gogebic project, Lynch said.

"You can do that under limited situations," he said. "If they are going to have to impact surface waters, they can propose to mitigate."

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The law applies to small lakes and streams -- lakes that are smaller than two acres and streams that have a watershed smaller than two square miles.

The question of where Gogebic will store waste rock is an important aspect of the mine project. That’s because to get at the iron deposits, the company will have to dig out and remove tons of undesired material from two pits that are each estimated to be two miles long. The rock that’s embedded with the iron is then removed, crushed and the iron removed with giant magnets.

Preliminary plans call for the waste rock to be piled on the surface of the ground, an enormous pile called a "waste facility." Lynch said the company has not told the state where on the site they propose to locate such a facility -- or said whether any bodies of water could be affected.

Tentative plans call for Gogebic to use waste rock from the second pit to backfill the first pit, while the remaining rock would remain on the surface.

At this point, the company has not proposed filling in any streams or ponds.

"It will depend on the design submitted at that time," Lynch said. "They may lay it out so that it doesn’t have any impact on streams or lakes."

Our rating

The state law aimed at paving the way for the Gogebic mine relaxed environmental regulations for iron mining, and sped up the permit process, steps aimed at giving the company more certainty. Kaufman says that law also lets the company  "fill in pristine streams and ponds with mine waste."

Kaufman’s correct that the new mining law allows streams and ponds to be filled in at the mining site. But he left out an important point --  that before that takes place the company and state would have to strike a deal for comparable streams and ponds to be created elsewhere.  

We rate his statement Mostly True.