Impaired Surface Waters (Stream C)

Despite industry claims that the Flambeau Mine has succeeded in protecting the environment from adverse impact, the facts prove otherwise.

Milwaukee Journal Sentinel_Toxins at Flambeau Model Mine_Nov 2011_P1

In June 2014 the EPA officially approved a December 2011 recommendation from the Wisconsin Department of Natural Resources (WDNR) that Stream C at the Flambeau Mine site be listed as impaired for copper and zinc toxicity linked to the Flambeau Mine operation. As such, Stream C is now included on what is known as the Clean Water Act’s Section 303(d) list for Wisconsin (effective April 2012). Click HERE to see the official EPA approval in its entirety (Stream C appears on page 66 of the document) and click HERE to see how WDNR has reported the Stream C impaired waters listing on its website (September 2014 static image).

Here is the story of how Stream C came to be added to the Clean Water Act’s Section 303(d) list:

In 2010, the Wisconsin Resources Protection Council (WRPC) petitioned the Wisconsin Department of Natural Resources to add Stream C at the Flambeau Mine site to the state’s list of “impaired waters” due to copper and zinc contamination linked to the Flambeau Mine operation. Since at least 1998, Flambeau Mining Company (FMC) had been discharging contaminated stormwater runoff from an on-site biofilter to Stream C on a routine basis without a Clean Water Act permit. Stream C is a tributary of the Flambeau River. Click here to see photos and diagrams of the stream and biofilter.

The data submitted to WDNR by WRPC was compiled by Dr. David Chambers (Center for Science in Public Participation), who obtained certain information about Stream C from the Wisconsin DNR and also drew on information contained in Flambeau Mining Company’s own environmental monitoring reports. For Stream C sampling site locations, please see the following three diagrams:

In addition to reviewing Dr. Chambers’ report, the Wisconsin Department of Natural Resources (WDNR) developed its own monitoring plan to assess surface water pollution at the Flambeau Mine site, collected field samples in 2010 and 2011, and released its final report in April 2012 (Surface Water Quality Assessment of the Flambeau Mine Site, Wisconsin Department of Natural Resources, April 2012).

In particular, WDNR assessed copper and zinc levels in Stream C and a reference stream deemed suitable by the department.  The Department looked at old data (collected by FMC), collected its own new data at various monitoring sites and determined that surface water toxicity standards set to protect fish and other aquatic species were routinely exceeded in Stream C.

To view a compilation of WDNR and FMC water quality monitoring data for Stream C including data for the biofilter (1999-2013) and to see Stream C data reported for 2014 and beyond, please click on the following links:

To see a graph of copper levels measured in Stream C, immediately downstream of the Flambeau Mine site (sampling site SW-C1), please click on the below link:

Upon concluding its study, WDNR recommended to the United States Environmental Protection Agency (EPA) that Stream C be listed as “impaired” for copper and zinc toxicity linked to the mining operation (WDNR Recommendation for listing of Stream C at the Flambeau Mine site as impaired, December 2011). A complete list of waters recommended by WDNR to be classified as impaired was posted on the WDNR website in December 2011. In the list, Stream C is referred to as an “Unnamed” water. WDNR updated its 2012 list of “impaired waters” in August 2013, still including Stream C.

WRPC sent out an “action alert” to members of the public in January 2012, encouraging them to contact WDNR in support of the Department’s recommendation that the EPA list Stream C as impaired. Organizations and individual citizens responded by submitting  letters to WDNR. A sampling of letters is included for your review:

In addition to testing surface waters at the Flambeau Mine site between 2010 and 2011, WDNR also collected biological and sediment data to assess potential mine impacts. Findings are summarized in the April 2012 WDNR report cited above. To see the raw data and the location of sampling sites, please click on the below links:

To see two FMC reports evaluating the health of Stream C, please click on the following links:

WDNR’s findings of high levels of toxic pollutants in Stream C was reported prominently in the state’s largest newspaper, the Milwaukee Journal Sentinel, in November 2011. And a month later, when WDNR recommended to the EPA that Stream C be listed as impaired for copper and zinc toxicity linked to the mining operation, it was also reported in the news. This was 5 months before a May 2012 court trial in the United States District Court for the Western District of Wisconsin in which 3 plaintiffs (WRPC, Center for Biological Diversity and Laura Gauger) accused FMC of violating the federal Clean Water Act by virtue of unlawfully discharging pollutants to Stream C. Still, the presiding judge (Judge Barbara Crabb) denied the plaintiffs’ December 2011 request for “leave to file [these] supplemental proposed findings of fact” because, in her opinion, as expressed in an April 2012 pre-trial ruling, “the proposed findings were not necessary to the decisions on the parties’ substantive motions.” Judge Crabb proceeded to declare in her final ruling on the lawsuit (July 2012) that the amounts of copper discharged from the biofilter to Stream C were “so modest” that she “would declare them de minimis if the Clean Water Act did not impose strict liability.”

There appears to be a disconnect between how the Wisconsin DNR viewed the copper levels in Stream C (i.e., high enough to prompt the department to recommend to the EPA that Stream C be listed as “impaired” for copper toxicity linked to the mining operation) and how Judge Crabb viewed the amounts of copper discharged to Stream C from the biofilter (i.e., “so modest” as to be considered “de minimis”).

In June 2014 the EPA officially approved WDNR’s December 2011 recommendation that Stream C be listed as impaired for copper and zinc toxicity linked to the Flambeau Mine operation. As such, Stream C is now included on what is known as the Clean Water Act’s Section 303(d) list for Wisconsin (effective April 2012). Click HERE to see the official EPA approval in its entirety (Stream C appears on page 66 of the document) and click HERE to see how WDNR has reported the Stream C impaired waters listing on its website (September 2014 static image).

In addition to surface water quality data for Stream C, information is available for the Flambeau River, three on-site ponds and a variety of miscellaneous locations on or near the mine site. To access this data, please visit the following pages of my website:

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