Infiltration Basins

There is a long history leading up to the 2012 creation of three “infiltration basins” at the Flambeau Mine site.  In fact, the story goes all the way back to 1998, when a 0.9-acre biofilter, the predecessor to the infiltration basins, was first created. Here’s what happened:

In January 1998, Flambeau Mining Company (FMC) made application to the Wisconsin Department of Natural Resources (WDNR) to amend the approved reclamation plan for the Flambeau Mine. The company wanted to, among other things, convert a surge pond at the mine site into a 0.9-acre biofilter to collect and passively treat stormwater runoff from the corner of the mine site where the mine’s ore crusher, rail spur and administration building were located during the mining years. To read the story of what all happened as citizens stepped forward to oppose the plan, I refer you to Chapter 116 of the book I co-authored with Roscoe Churchill about the Flambeau Mine: The Buzzards Have Landed! – The Real Story of the Flambeau Mine:

Chapter 116_Kennecott Closes the Mine and Changes Its Reclamation Plans (1997)

The Wisconsin Department of Natural Resources approved Kennecott’s request to amend the reclamation plan for the Flambeau Mine (and create the 0.9-acre biofilter) in July 1998. By design, overflow from the biofilter was routed to a tributary of the Flambeau River known as Stream C. Unfortunately, however, discharges from the biofilter contained high levels of copper (and sometimes zinc), resulting in the contamination of Stream C. Indeed, toxicity standards set by the State of Wisconsin to protect fish and other aquatic species were  exceeded in Stream C on a routine basis. For this and other reasons the Wisconsin Resources Protection Council, Al Gedicks and Laura Gauger filed a Notice of Intent (NOI) to sue both FMC and the Wisconsin DNR in State of Wisconsin Circuit Court in June 2009.

After the NOI was filed, WRPC attorney Glenn Stoddard, WRPC scientific consultant Dr. David Chambers and Laura Gauger met with representatives of WDNR and Wisconsin Assistant Attorney General Thomas Dawson to discuss the concerns raised in the notice. As Mr. Dawson stated in a July 30, 2009 memo: “The DNR believes such discussions could be constructive and could offer the potential for crystallizing and resolving the issues and concerns raised in the NOI, and with the hope and intent to avoid litigation.”

It is at this meeting, held in September 2009, where the concept of converting the 0.9-acre biofilter at the Flambeau Mine site to an infiltration basin was first advanced by WDNR. Mr. Dawson summarized the discussion in a follow-up memo dated April 23, 2010:

“You state that during our meeting “DNR suggested eliminating the 0.9 acre biofilter in the Industrial Outlot and replacing it with an infiltration gallery as a way of eliminating discharge of contaminated surface water runoff from the mine site to Streams C.” While you expressed a concern about such a system potentially allowing contaminated groundwater from the system to make its way to Stream C, you state, “we believe this could be a workable solution to the problem.” You ask that DNR follow up on this and provide further information regarding the feasibility of constructing an infiltration gallery at the site.”

Dawson continues: “Although it may be an overstatement to say that DNR “suggested” eliminating the biofilter by replacing it with an infiltration basin(s), we agree this is an idea well worth exploring. Preliminary review of this idea suggests it is worth serious consideration and review provided the effect of removing, closing, or reengineering the biofilter are properly evaluated. DNR has broached this idea wih FMC, which is reviewing these issues and prelimiary response is positive. In the event this idea becomes a workable option, your client’s cooperation in making it happen may be expected. We hope to have more to report to you on this in the near future.”

The above is the real reason the infiltration basins at the Flambeau Mine site came to be. It’s not that FMC merely wanted to “return the property closer to pre-construction conditions and restore wetlands,” as stated in the application that the company filed with the Wisconsin DNR in May 2011 to obtain approval for the proposed work plan. Rather, the construction of infiltration basins at the mine site represented FMC’s fourth attempt to try to get the problem of contaminated runoff into Stream C under control, and the timing of the proposal suggested it was done in an effort to avoid litigation. Previous mitigation efforts had taken place in 2003-2004, 2005-2006 and 2008. These earlier plans and their unsatisfactory results are all on record at WDNR headquarters in Madison, Wisconsin and can be viewed by clicking on the following links:

1. Final Soil Sampling Results and Remediation Plan for the Flambeau Mining Company Rail Spur West of STH 27, Ladysmith, Wisconsin, October 20, 2003

2. Flambeau Industrial Outlot Action Plan, November 22, 2005

3. 2008 Monitoring Results and Copper Park Lane Work Plan, October 14, 2008

While citizens and tribal members were willing to look at the infiltration basin plan advanced by FMC to deal with the contamination of Stream C caused by the mining operation, some of them did not like what they saw. In particular, Dr. David Chambers (representing the Wisconsin Resources Protection Council), Attorney Dennis Grzezinski (representing the Lac Courte Oreilles Band of Lake Superior Ojibwe) and Laura Gauger (representing herself) submitted testimony in opposition to the plan.

Gauger’s concern, as detailed in her testimony and exhibits (scroll down for links to exhibits), was that FMC had already contaminated the groundwater at the Flambeau Mine site far in excess of levels predicted by computer modeling at the time of the permit hearing in 1990. Since the company’s latest plan to construct infiltration basins at the mine site would be adding even more pollutants to the groundwater, she deemed it unacceptable, especially since, by FMC’s own computer modeling, the direction of groundwater flow at the Flambeau Mine site is toward and into the Flambeau River, through fractured bedrock. Attorney Grzezinski voiced additional concerns on behalf of the Lac Courte Oreilles tribe, as documented in his written testimony.

In addition, Dr. David Chambers (Center for Science in Public Participation (Bozeman, MT); Website Static Image) submitted testimony pointing out various shortcomings of the infiltration basin plan, particularly with regard to the absense of a monitoring program to ascertain impacts to groundwater and Stream C. Here is what Dr. Chambers wrote:

“Sufficient monitoring of both surface and ground waters should be in place to monitor the impact of metals on groundwater, and to insure that groundwater discharge to Stream C is not adversely impacting that stream. In addition, some additional surface water monitoring in Stream C is required to adequately monitor surface water quality at the point of discharge into the Flambeau River, since metals levels at this point are currently exceeding Wisconsin water quality standards, and could possibly continue to exceed these standards even with the implementation of the proposed groundwater discharges and changes to the channel of Stream C on the mine property.”

Despite concerns raised by Dr. Chambers, the Lac Courte Oreilles tribe, Laura Gauger and others opposed to the FMC work plan, WDNR approved construction of the infiltration basins in October 2011.

FMC reported its first round of water quality data for Stream C, post-construction of the infiltration basins, in July 2013. Instead of going down, copper levels in Stream C have actually gone up and are indeed higher than ever reported before (81 mcg/l at sampling site SW-C1 in October 2013). Once more, the company’s “fix” has proven ineffective. Indeed, it appears that FMC has made the problem worse. 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:

As mentioned earlier, the concept of creating infiltation basins at the Flambeau Mine site was first advanced by FMC after WRPC, Al Gedicks and Laura Gauger threatened to sue FMC in State of Wisconsin Circuit Court in 2009 over ongoing problems with groundwater and surface water contamination at the Flambeau Mine site. That lawsuit never materialized, as discussed elsewhere on this website. A different lawsuit, however, was filed by WRPC, the Center for Biological Diversity and Gauger in federal court in January 2010 due to the fact that FMC had never applied for or obtained a Clean Water Act permit to regulate contaminant levels in the biofilter discharge to Stream C. After the Clean Water Act case was filed is when FMC moved forward with plans to construct the infiltration basins at the Flambeau Mine site and indeed used that as part of their defense in the Clean Water Act case. You can see the timing on all this for yourself by looking at the dates associated with the various documents listed below.

Here, then, are the official documents dealing with FMC’s infiltration basin plan:

FMC Work Plan:

Scheduling of Public Hearing:

Public Hearing Testimony (written):

WDNR Approval of FMC’s Infiltration Basin Plan:

After FMC’s work plan was approved by WDNR, the company quickly began construction of the infiltration basins. Figure 2-3 of the plan (below) shows the various specifications for construction approved by the department. FMC, however, altered certain of these specifications after-the-fact. Click here for a discussion between WDNR officials of the “As Approved” vs. “As Built” plans and comparative diagrams.

Infiltration Basins_Cropped

The west infiltration basin was constructed in late 2011, and the north and east basins were constructed between March and April of 2012. The east basin is of particular interest because it is located at the site of the former 0.9-acre biofilter. For a news account of some of the construction work, click here.

One of the conditions specified in WDNR’s approval of FMC’s infiltration basin plan was the following:  “You must develop a surface water monitoring plan to evaluate the effectiveness of the project at modifying stormwater discharge at the reclaimed mine site, specifically the removal of copper and zinc from Stream C. The plan must be submitted for review and approval by department staff within 3 months of the date of this permit [October 12, 2011] and implementation must begin by March 15, 2012.”

FMC fell far short of meeting the deadlines imposed by WDNR for finalizing and implementing the required surface water monitoring plan. A first draft of the plan was submitted to the department on February 24, 2012, followed by a second draft on  May 8, 2012. In a letter dated June 12, 2012, WDNR recommended a number of changes to the second draft, and five months later (November 15, 2012), FMC submitted yet a third draft.

As stated in a December 17, 2012 memo  from WDNR to FMC:

“Please be aware that this plan was to be prepared by the applicant by February 12th 2012 and implemented by March 15th 2012. While there has been continued correspondence between FMC and the Department throughout project construction, this monitoring plan must be finalized and ready for implementation by February 28, 2013.”

In the same memo, WDNR commented on various shortcomings of FMC’s third draft of the monitoring plan, and specific changes were recommended. WDNR also noted that the infiltration basins constructed by FMC “did not function as planned in 2012.” Here are the department’s words:

“In addition, we understand that the project remains under construction. However, the infiltration basins did not function as planned in 2012. The basins maintained a more or less permanent pool of water unless mechanically pumped out. You should be aware that ponds within 500 feet of public waters such as Stream C or the Flambeau River require a permit under Chapter 30 WI State Stats. If the basins cannot be constructed to meet infiltration basin standards and continue to maintain a pool of water, you will need to obtain a Chapter 30 permit to maintain those basins within 500 feet of public waters.”

For more information regarding the malfunctioning of the infiltration basins at the Flambeau Mine site, click here.

FMC submitted a final draft of its proposed surface water monitoring plan to WDNR on February 13, 2013.  The company, however, failed to incorporate a key recommendation made by WDNR in its December 17, 2012 memo to FMC:  that surface water sampling be triggered by having visible surface water flow at sampling site SW-C9 AND sampling site SW-C1 (see attached map) rather than being triggered by having visible surface water flow at sampling site SW-C9 OR sampling site SW-C1. WDNR had recommended that the former set of conditions apply. Still, when the final draft was submitted by FMC to WDNR, it was discovered that the company had failed to change the word “or” to the word “and.” This did not go unnoticed by WDNR, as evidenced in a February 26, 2013 email sent by the department’s Jon Kleist (Water Management Specialist) to Phil Fauble (WDNR Mining Program Coordinator).

The department proceeded to accept the monitoring plan submitted by FMC, but with several  corrections, as outlined in a March 21, 2013 letter written by Phil Fauble to FMC’s Jana Murphy. In particular, Fauble stated:

“We agree with the sampling locations, parameters, frequency and reporting as presented in the plan. We have only one minor correction, which is to state that, “A qualifying storm water runoff event will be determined by having visible surface water flow from the culvert under Highway 27 at SW-C9 and in the channel of Intermittent Stream C at SW-C1 which will trigger the sampling.”. The purpose of this requirement is to make sure FMC is not sampling stagnant surface water which could lead to water quality results that are not representative of the true water quality in Stream C.”

On July 24, 2013 FMC reported its first round of surface water data for the infiltration basin monitoring plan. Sampling results showed that, despite the construction of the infiltration basins in the industrial outlot area, copper levels in Stream C still exceeded the acute toxicity criterion set to protect fish and other aquatic species. Indeed, copper levels in Stream C have actually gone up (not down) and are indeed higher than ever reported before (81 mcg/l at sampling site SW-C1 in October 2013). Once more, the company’s “fix” has proven ineffective. Indeed, it appears that FMC has made the problem worse. You can read for yourself:

To see graphs of historic and current copper levels measured in Stream C, immediately downstream of the Flambeau Mine site (sampling site SW-C1), please click on the below links:

For more information regarding the malfunctioning of the infiltration basins at the Flambeau Mine site, click HERE.

For historic Stream C water quality data (1999-2014) click HERE.

For new developments (2015 and beyond) regarding the infiltration basins at the Flambeau Mine site, please go to my supplemental website, Flambeau Mine Exposed-II.