Mine permit hearing slated
Mine permit hearing slated
By JOHN PEPIN Journal Staff Writer
MARQUETTE — A judicial hearing downstate this week is expected to consider a request by the Michigan Department of Environmental Quality to stay what some believe is a precedent-setting injunction granted recently that blocked further consideration of a Kennecott Eagle Minerals Company mining application.
“We just have a basic disagreement with Judge Manderfield’s ruling,” said Robert McCann, spokesman for the DEQ in Lansing. “If her ruling is accurate, you could theoretically tie up any project and tie our hands to perform our core functions as an environmental protection agency.”
The hearing is scheduled for 2:30 p.m. Wednesday in Ingham County Circuit Court in Lansing. The petitioners in the case are the Keweenaw Bay Indian Community, Huron Mountain Club and the Yellow Dog Watershed Preserve Inc., and the respondents are the DEQ and state Office of Administrative Hearings and Rules.
A previous ruling kept Kennecott from having standing in the case.
In her ruling in late June, Judge Paula J.M. Manderfield sent a previously denied petition back to the state Office of Administrative Hearings and Rules.
The action blocked the DEQ from releasing a preliminary decision on whether to grant a permit to Kennecott for its proposed Yellow Dog Plains mining project until after a new hearing.
In May, Administrative Law Judge Richard Laccasse dismissed a petition from the four petitioners requesting Lacasse hold a formal hearing to determine whether Kennecott’s permit application was complete and to halt any further processing of the application by the DEQ until the issue was decided.
The petitioners said the DEQ wrongfully decided that Kennecott’s application was “administratively complete.” They alleged the DEQ is now considering, and has disseminated to the public, an incomplete application that is missing numerous documents and pieces of information required by the state’s sulfide mining statute and rules.
With information incomplete, the petitioners said is was impossible for the public — and the DEQ itself — to properly determine whether the proposed mine can be designed and operated in a way that adequately protects the environment and natural resources.
The 60-page petition stated that the application is missing information or includes inadequate information on groundwater and hydrogeologic data, surface water level and discharge rate data, groundwater and surface water quality data, meteorological data, terrestrial flora and fauna data, transportation plans and impacts, and other things.
Kennecott officials disagreed with the assertion the company’s permit application was lacking.
Lacasse ruled the petition could not be heard until the DEQ had made its preliminary decision on the permit. The petitioners appealed, resulting in the hearing before Manderfield.
Kennecott spokeswoman Deborah Muchmore said she believes the Manderfield decision will have wider implications, potentially affecting numerous types of permitted projects.
“It will likely be precedent setting for permit issues beyond this particular (Kennecott) application,” Muchmore said. “I think this is a broader issue.”
Cynthia Pryor, executive director of the Yellow Dog Watershed Preserve, said the state’s argument is that the court’s ruling on being able to change an “administrative completeness” determination could slow down about 7,000 other types of applications each year.
“The argument ignores the uniqueness of the non-ferrous metal statute, which specifically allowed for this type of contested case activity at any time during the application process,” Pryor said. “It also ignores the state DEQ’s current assessment of Kennecott’s groundwater discharge permit as ‘administratively incomplete,’ based on the same reasoning being used in the contested case petition.”
McCann said he wasn’t aware of any such provisions in the state mining non-ferrous statute.
Michael Johnston, director of regulatory affairs for the Michigan Manufacturers Association, wrote a letter urging the DEQ to appeal Manderfield’s ruling.
Johnston said if the ruling stands, the “consequence for the Michigan economy will be significant.”
“Projects in the manufacturing sector often propose to invest hundreds of millions of dollars in capital assets. Like all investors, manufacturers are seeking the greatest amount of return in the shortest period of time,” Johnston said. “Permit process delays diminish the rate of return on investment capital. In an increasingly fast paced global economy, investment capital is very nimble.
“If Michigan’s permit processes are fraught with delays and the uncertainty of third party challenges at every interim stage in a permit review process, job creating projects will not likely seek Michigan as a location for that capital investment. This added level of uncertainty and delay is simply not acceptable.”
McCann said additional basic procedural items will be addressed at Wednesday’s hearing.
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