Before The

State Of Wisconsin DIVISION OF HEARINGS AND APPEALS

In the Matter of the Petition for Contested Case Hearing Regarding Issuance of a Certificate of Completion for the Flambeau Mine, City of Ladysmith, Wisconsin.

Case No. IH-07-05

DIRECT TESTIMONY OF LAURA FURTMAN

Q. Please state your name and address. 1

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A. My name is Laura Furtman. I live at 27426 County Road H, Webster, Wisconsin 54893.

Q. Please describe your educational and professional background.

A. I am a registered pharmacist, licensed to practice in the states of Wisconsin and Minnesota. I

have a degree in Pharmacy from the University of Wisconsin-Madison, and I have been

practicing since 1979. Over the course of my career I have been involved in two scientific

research studies approved by the University of Wisconsin Human Subjects Committee

(involving cervical ripening in pregnant women), participated in a collaborative research study at

the University of Wisconsin School of Pharmacy (involving the characterization of an ocular

insert for sustained drug delivery to the eye), presented a poster paper at a national meeting of

the American Society of Hospital Pharmacists (involving the characterization of an intravenous

drug delivery technique used in preterm infants), and have authored or co-authored reports

related to three of the above-cited studies that have appeared in professional journals (the articles

were published in Drug Intelligence and Clinical Pharmacy, the International Journal of 14

15 Gynecology and Obstetrics, and the American Journal of Hospital Pharmacy). I also co-authored

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a chapter in the book, Handbook of Nonprescription Drugs, a publication of the American

Society of Hospital Pharmacists (the chapter dealt with pharmaceuticals used to treat dermatitis,

dry skin, dandruff, seborrheic dermatitis and psoriasis). In 1984 I was selected “Hospital

Pharmacist of the Year” by the Wisconsin Society of Hospital Pharmacists. I am currently

working as a professional pharmacist at St. Luke’s Hospital in Duluth, Minnesota. EXHIBIT 200

is my resumé.

Q. Are you familiar with the Flambeau Mine site and the reclamation plan for the Flambeau

Mine?

A. Yes.

Q. What, if any, special knowledge or expertise do you have regarding the Flambeau Mine

as it relates to this proceeding?

A. I had the good fortune of meeting Roscoe Churchill of Ladysmith in 1997 at an

environmental meeting in Rice Lake, Wisconsin. For close to ten years, up until his death this

past February, Roscoe was my mentor on the mining issue. He served eight terms on the Rusk

County Board (1976-1991), was a member of Governor Tommy Thompson’s Ad Hoc Task

Force on Mining (1987) and served on the negotiating committee for the Flambeau Mine Local

Agreement (1987-1988). He and his late wife Evelyn also founded the Rusk County Citizens

Action Group (1976) and the Wisconsin Resources Protection Council (1982) with the intent of

working together with other concerned citizens to protect Wisconsin’s water resources from the

hazards of metallic sulfide mining.

The impetus for the Churchills’ concern was that various documents issued by the

Minnesota DNR, UW Center for Geographical Analysis, United Stated Environmental Protection

Agency, Ontario Ministry of Health, Minnesota Pollution Control Agency and Kennecott’s own

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technical experts had suggested to them that, historically, metallic sulfide mines had a propensity

to cause problems with acid mine drainage. The Churchills wanted to do what they could to

protect their community from a similar fate and hence became central figures in opposing the

development of the Flambeau Mine. EXHIBIT 201 is a paid advertisement that the Rusk County

Citizens Action Group placed in the May 20, 1993 issue of the Ladysmith News to inform the

public of what various governmental agencies had said with regard to the potential for metallic

sulfide mines to cause acid mine drainage.

For the past six years, Roscoe Churchill and I worked together to write a book about the

Flambeau Mine that is soon to be released. As part of our research, we did numerous open

records requests of the Wisconsin DNR to obtain information about various activities, including

reclamation activities and pollution problems at the mine site. It is that factual information which

forms the basis of my testimony here today.

Q. What specific issues do you intend to address in your testimony?

A. In particular, I will be focusing on four areas of concern:

1. The history of soil contamination problems at the reclaimed mine site and how that soil

contamination has impacted and continues to impact water quality in the wetlands,

biofilters and creeks at the Flambeau Mine site.

2. The history of groundwater contamination problems at the Flambeau Mine site as it

relates to reclamation of the backfilled pit;

3. Worrisome trends in data reported for sediment, crayfish and walleye samples collected

from the Flambeau River that suggest contaminants from the reclaimed mine site are

entering the river and accumulating in said specimens.

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4. The paucity of critical monitoring data and need for expanded monitoring at the

reclaimed mine site.

I will be referring to a number of different landmarks at the mine site during my testimony, so I

would first like to submit three exhibits that show the “lay of the land.” EXHIBIT 202 is a map

of the reclaimed Flambeau Mine site showing the location of the backfilled mine pit, rail spur,

industrial outlot, streams and ponds. This map is a combination of various maps contained in the

EIS and the company’s Reclamation Plan. I created it by using overlays. EXHIBIT 203 is a map

showing the location of the waste rock stockpiles, the mine pit and the ore crusher during the

mining years. It is taken from the EIS. EXHIBIT 204 is a map showing the location of the

various monitoring wells at the reclaimed mine site and the compliance boundary. Again, I

created this map by using overlays.

Since the various pollution problems I am about to discuss are consistent with the

characteristics of acid mine drainage, I feel compelled to start off by: (1) briefly explaining the

chemistry of acid mine drainage; and (2) discussing the sulfide content of the Flambeau Deposit

and hence the waste rock produced as a by-product of mining activities.

When rock containing sulfide minerals is mined and crushed, the minerals naturally come

into contact with oxygen and water, which may result in the production of acid mine drainage.

The chemical reactions that come into play are explained in a report entitled “A Review of Acid-

Mine Drainage: Chemical Evolution, Prediction and Control” that was prepared by Schafer and

Associates of Bozeman, MT for Flambeau Mining Company in 1995. EXHIBIT 205 is an

excerpt from that report (pages 3-9 and 40-41). In particular, the report states the following:

Initially pyrite (FeS2) reacts with oxygen in the presence of water to produce dissolved ferrous

ions, sulfate and hydrogen ions by reaction [1]:

FeS2 + 7/2 O2 + H2O = Fe+2 + 2SO4-2 + 2H+ [1]

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This reaction results in an increase in acidity (decrease in pH) and an increase in total dissolved

solids (TDS) as sulfate, ferrous ions [Fe

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+2] and hydrogen ions. …

Secondary reaction products include metals, such as copper, released during oxidation of

sulfides such as chalcopyrite (CuFeS2). Metals held in non-sulfide complexes may also become

more soluble as a result of the increased acidity of the acid-drainage environment…

The Flambeau Deposit had a high sulfide content. EXHIBIT 206 is a report written by Kennecott

geologist Ed May in 1977 in which the deposit is described as containing 60% pyrite, 12%

chalcopyrite and 2.5% sphalerite, all of which are sulfide minerals. The report, entitled

“Flambeau – A Precambrian Supergene Enriched Massive Sulfide Deposit” appeared in the July

1977 issue of Geoscience Wisconsin.

During the mining years in Rusk County, Kennecott stored the crushed, sulfide-

containing waste rock at two separate locations at the mine site, based on sulfur content.

EXHIBIT 203 shows where the so-called “low-sulfur/Type-I” waste rock stockpile was located

(estimated at 40 acres in size, 2.8 million cubic yards in volume and 60 feet in height) as well as

the “high-sulfur/Type II” waste rock (estimated at 27 acres in size, 2.2 million cubic yards in

volume and 70 feet in height) . According to the Environmental Impact Statement for the

Flambeau Mine, the Type-I waste rock contained less than 1% sulfur by weight. The EIS,

however, did not specify the exact composition of the Type-II waste rock, except to say that it

was “greater than 1% sulfur by weight.” As pointed out in EXHIBIT 206, however, the deposit

as a whole consisted of approximately 75% sulfides. Hence, the sulfur content of the Type-II

waste rock was likely substantial. In addition, heavy metal-laden sludge produced by the mine’s

wastewater treatment plant was deposited on top of the Type-II waste rock. Maximum sludge

production was estimated at 124 tons per day. All of these figures are included in EXHIBIT 207,

which is Chapter One of the final EIS for the Flambeau Mine.

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Issue #1: History of Soil Contamination & Reclamation Relative to the Rail Spur & Stream C. 1

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Q. What factual information do you have concerning the history of soil contamination

problems at the mine site?

A. During the mining years in Rusk County, the railroad ballast at the Flambeau Mine site

became contaminated with copper, sulfur and acid. This was likely due to the fact that the rail

spur was located right next to the ore crusher and high-sulfur waste rock stockpile, where a lot of

metallic sulfide dust got into the air on a daily basis. Loading the rail cars for shipment was a

dusty activity as well, and perhaps some of the crushed ore spilled onto the sides of the tracks as

the cars were loaded. Unfortunately, it appears that no special precautions were taken by

Kennecott to protect the ballast from contamination. And when the mine site was reclaimed in

1997, the ballast was simply left in place without any attempt to clean it up.

Q. How is this relevant to reclamation of the mine site?

A. In 1999, less than two years after the mine pit was backfilled and seeded down with prairie

grass, a problem developed. The problem, which persists to this day, involves a 0.9-acre pond

which is commonly referred to by Flambeau Mining Company (FMC) and the DNR as a

“biofilter.” This so-called “biofilter” is labeled as Wetland-C in my Exhibit 202, and it is located

right next to the rail spur. The parties viewed this area on May 17, 2007 following the public

hearing. This “biofilter” is clearly visible on the north side of the road as you enter the industrial

park, and it drains into the small creek labeled as Stream-C in Exhibit 202. Stream-C eventually

flows into the Flambeau River, as Your Honor and several parties to the hearing observed at the

end of our tour. What is most significant with respect to reclamation is that water samples

collected by Flambeau Mining Company and reported to the DNR from both the 0.9-acre

“biofilter” and Stream C over the past several years have repeatedly shown elevated levels of

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copper and zinc. In fact, the levels of these two metals have often exceeded the upper limit of

what’s considered safe for sensitive species of fish and other forms of aquatic life.

Q. Can you be more specific as to how high the levels are?

A. Yes, the Chronic Toxicity Criterion (CTC) for copper in surface water, as established in

Chapter NR 105 of the Wisconsin Administrative Code, is 7 ppb (for warm water sport fisheries

with a water hardness of approximately 50 ppm), but levels as high as 2,000 ppb have been

recorded in the 0.9-acre “biofilter,” and levels as high as 390 ppb have been recorded in Stream-

C. This compares to an average baseline reading of less than 5 ppb in the Flambeau River, as

measured in 1987 and reported in the final EIS for the project. A baseline copper reading of 5

ppb was also measured in Wetland-1 at the mine site at that time.

The CTC for zinc in surface water, as established in Chapter NR 105 of the Wisconsin

Administrative Code is 66 ppb, but levels as high as 360 ppb have been recorded in the 0.9-acre

“biofilter,” and levels as high as 600 ppb have been recorded in Stream-C. This compares to an

average baseline reading of less than 50 ppb in the Flambeau River, as measured in 1987 and

reported in the final EIS for the project. A baseline zinc reading of 50 ppb was also measured in

Wetland-1 at that time.

In EXHIBIT 208, which is taken from the EIS, baseline readings for copper, zinc and

other metals in the Flambeau River and Wetland-1 are shown. In EXHIBIT 209, which is also

taken from the EIS, the location of Wetland-1 and other wetlands that existed at the mine site

prior to mining are shown.

Q. Where did you obtain the water quality information for the 0.9-acre “biofilter” and

Stream-C ?

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A. I did several open records requests of the Wisconsin DNR between 2003 and 2007 to obtain

surface water quality monitoring data for the wetlands, biofilters and creeks at the Flambeau

Mine site and was sent copies of various reports submitted by FMC to the DNR. Using those

reports, I compiled two data tables, one for copper levels in the surface waters at the Flambeau

Mine site (EXHIBIT 210, and the other for zinc levels (EXHIBIT 211). If you wish to see the

original company reports, I direct you to the following three exhibits: (1) EXHIBIT 212 consists

of data tables submitted by the company to the DNR between 1999 and 2004; (2) EXHIBIT 213

is a report issued by the company to the DNR in 2005 (after the rail spur was reclaimed in late

2003); and EXHIBIT 214 is a data table submitted by the company to the DNR in January 2007

(after the parking lot in the industrial outlot was reclaimed in 2006).

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Q. What is the likely source of the copper and zinc in the 0.9-acre “biofilter” and Stream-C

at the reclaimed Flambeau Mine site?

A. To learn more about the problem, I did several open records requests of the DNR’s Larry

Lynch in late 2003 and 2004. Lynch responded by sending me a letter in December 2003 in

which he stated that the rail spur west of Highway 27 had been identified as a “possible problem

area” (EXHIBIT 215). Lynch also provided me with a copy of an email he had sent to Thomas

Boerner, a gentleman from Michigan who had inquired about the development of acid mine

drainage problems at the Flambeau Mine site (EXHIBIT 216). Here is an excerpt of what Lynch

wrote to Boerner in January 2004:

After cessation of mining, we noticed that there was a fair amount of sulfide minerals present near

the surface and intermixed with the rail ballast material. Over time, we also began to observe

copper “blooms” forming on the surface, particularly during the warm and dry summer

months. In addition, we noted that the rails themselves started to show signs of accelerated

corrosion, to the point that material was actually spalling off of the tracks.

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Also, beginning in late 1999, the company began sampling the wetlands and biofilters that were

created on the site as part of final reclamation. The small biofilter adjacent to the rail spur

showed much higher levels of copper than all of the other areas sampled. Copper levels in

the biofilter ranged from 25- 91 [mcg/l] while the highest concentration in any of the other

wetlands was 12 [mcg/l]. The biofilter flows to a small intermittent stream that eventually

flows into the Flambeau River.

The combination of the visual observations of the spur area and the water quality

information for the biofilter provided compelling evidence that a problem was developing

… [emphasis added]

Q. Are you aware of any studies performed by either the DNR or FMC to characterize the

contamination of the ballast itself?

A. Yes. As a result of my open records request, I also received copies of two reports submitted

by FMC to the DNR in which the company analyzed soil samples from the rail spur area. The

first report, which is EXHIBIT 217, demonstrates that Kennecott knew as early as August of

1998 that elevated levels of copper were present in the ballast—as much as 230 mg/kg at a depth

of 6 inches. To put that number into perspective, consider this: Baseline copper levels in the

topsoil at the mine site were reported at 2.7–4.0 mg/kg in the final EIS for the project, which

meant levels had increased by at least 57 times. EXHIBIT 218 is the section of the EIS in which

this baseline data, as well as baseline data for sulfur was reported.

Q. How did the DNR react to the elevated levels of copper in the railroad ballast?

A. As far as I can tell, the DNR did not require Kennecott to do anything about the contaminated

ballast until July of 2003, 5 years after the initial data was reported. That’s when the Department

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requested Kennecott to gather more information regarding soil contamination beneath the rail

spur.

Q. Did anything strike you odd about the time frame for when the 2003 soil sampling study

was conducted?

A. Yes. I was puzzled why the DNR had not required follow-up studies sooner.

Q. Why do you say this?

A. The DNR knew as early as November of 1999, when the first water samples were collected

from the 0.9-acre “biofilter,” that water in the pond’s outlet (i.e., water draining out of the pond

into Stream-C) was registering copper levels above the CTC. In fact, copper levels higher than

the CTC were consistently reported between November 1999 and June 2003. Levels, which were

checked once a year, ranged from 25 ppb to 91 ppb, compared to the CTC of 7 ppb. All of this

data is reported in EXHIBIT 210.

Q. You have mentioned water quality data for the 0.9-acre “biofilter” outlet to Stream-C.

Is there any data for water at the pond’s inlet (i.e., where runoff from the mine site enters

the pond)?

A. Yes. Data for water samples collected from the pond’s inlet was first reported to the DNR in

May 2003. At that time copper levels measured 520 ppb, and the following month levels of 740

ppb were reported (EXHIBIT 212). Both of these values grossly exceed the CTC for copper. I

would be curious to see earlier data, but none was reported to the DNR, despite the fact that

water samples had been collected from the pond’s outlet to Stream-C as early as 1999.

Q. How did the DNR react to the high levels of copper reported in the pond’s inlet in May

and June of 2003?

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A. As I mentioned earlier, the Department requested Kennecott to gather more information

regarding soil contamination beneath the rail spur in July 2003. At that time, 12 different

locations along the spur were sampled, all of them west of Highway 27. When Kennecott started

digging next to the tracks, there was so much sulfur in the ground that it was stained yellow.

Here is what the company stated in a report issued in October 2003 (EXHIBIT 219):

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Photographs of the excavations from which the soil samples were taken provide an indication of

the presence of high sulfur content in the soil. … [They show] yellowish staining in the uppermost

sand and gravel layers.

Q. Are you aware of the results of the soil sampling study?

A. Yes. Soil samples were collected by Kennecott at depths that ranged from 6 to 24 inches

along the rail spur, and the fine soil (as opposed to the gravel beneath the tracks) was tested for

copper, sulfur and pH. As expected, the highest levels of contamination were found in the

shallowest samples, where values were reported in the following ranges:

- Copper: 200–3,400 mg/kg (compared to an estimated baseline of 2.7–4.0 mg/kg)

- Sulfur: 352–19,400 mg/kg (compared to an estimated baseline of 2,000 mg/kg)

- pH: 2.5–4.8 s.u. (no baseline value was reported in the EIS)

Q. Was zinc tested in the soil samples as well?

A. No. This was puzzling to me because elevated levels of zinc had been measured in the 0.9-

acre “biofilter” (EXHIBIT 211).

Q. How did Kennecott and the DNR react to the elevated levels of copper in the ballast?

A. Kennecott submitted a plan to the DNR in October 2003 whereby the company proposed

removing the top two feet of material beneath and next to the rail spur and hauling it away to

Timberline Landfill, a licensed solid waste facility located west of Ladysmith (EXHIBIT 219).

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Over 4100 cubic yards of contaminated soil (that’s more than 7500 tons) was removed. The

project was carried out in late 2003.

Q. When did FMC remove the ballast relative to the DNR’s acceptance of the company’s

Notice of Completion (NOC) for reclamation activities at the mine site?

A. Like I said, the ballast was removed in late 2003. This was approximately two years after the

DNR accepted FMC’s Notice of Completion (NOC) in November of 2001. It appears, therefore,

that the NOC was accepted prematurely.

Q. Are you aware of any other soil sampling conducted by FMC or the DNR at the mine

site since the ballast was removed?

A. Yes. A limited amount of soil sampling was conducted in April of 2004 along the rail spur

east of Highway 27 (across the road from the mine site). Four samples were collected along the

first 200 feet of track, and all of them showed elevated levels of copper. Values ranged from 28

mg/kg to 120 mg/kg, with the highest level of copper reported in the sample closest to the

highway (and therefore closest to the mine site). This study is included as EXHIBIT 220.

Soil sampling was also conducted in the parking lot of the industrial outlot during August

2005, which I will elaborate upon later in my testimony.

Q. Did the removal of the ballast cause copper levels in the inlet to the 0.9-acre biofilter to

decline?

A. No, as you can see from the data table I cited earlier (EXHIBIT 210). Prior to the November

2003 excavation project, copper levels in the pond’s inlet measured 740 ppb (June 2003). After

the ballast was removed, the initial water sample showed a modest reduction in copper (650 ppb

in April 2004). But all samples collected between September 2004 and August 2005 registered

copper levels significantly higher than those measured prior to the excavation. EXHIBIT 221 is a

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graph that I created using Kennecott’s monitoring data. It demonstrates the dramatic increase in

copper levels measured in the pond’s inlet after the rail spur was reclaimed. The company’s

original data, which I used for creating the graph, is included in EXHIBIT 212 and EXHIBIT

213.

Q. Did the removal of the ballast cause copper levels in Stream-C to decline?

A. No. Again, I refer you to EXHIBIT 210 for a summary of test results. Only limited

monitoring data is available for Stream-C prior to when the rail spur was reclaimed in November

2003. But all samples collected from the stream since that time have registered copper levels

significantly higher than the CTC. Four sampling sites have been utilized, as shown in a diagram

that I modified from an FMC drawing. My diagram is EXHIBIT 222. The Stream-C sampling

sites are labeled as C-1, C-2, C-3 and C-4. The data shows that it does not matter where along the

stream the samples were collected, whether it was north of the rail spur (C-1) , immediately

upstream of the biofilter’s outlet to the stream (C-2), immediately downstream of the biofilter’s

outlet to the stream (C-3), or right at the confluence of Stream-C with the Flambeau River (C-4).

All samples collected between April 2004 and June 2005 significantly exceeded the CTC for

copper, with values ranging from 11 ppb to 200 ppb. Additional monitoring data was collected at

the C-1 and C-3 sampling sites between July 2006 and November 2006, and all of those values,

too, significantly exceeded the CTC, ranging from 23 to 390 ppb (EXHIBIT 214).

Q. Did the removal of the ballast cause zinc levels in Stream-C to decline?

A. It’s hard to say because zinc levels were not monitored in Stream-C by the DNR or FMC

prior to when the rail spur was reclaimed in November 2003. But I can tell you this. Since April

2004, 22 water samples from Stream-C have been tested by FMC for zinc, and 11 of them have

registered zinc levels in excess of the CTC. This data is included in EXHIBIT 211. The most

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recent data from late 2006 shows a zinc level of 96 ppb at sampling site C-1 and a level of 92

ppb at sampling site C-3, compared to a CTC of 66 ppb. This data is reported in EXHIBIT 214.

Q. In your opinion, did FMC’s reclamation of the rail spur solve the problem of copper

and zinc-loading into Stream-C?

A. No, it did not. The numbers I cited prove it. What’s more, the DNR required FMC to develop

a monitoring plan for the Stream-C watershed in August 2004, after the Great Lakes Indian Fish

and Wildlife Commission (GLIFWC) voiced concern over copper and zinc levels in Stream-C

that exceeded CTC limits. EXHIBIT 223 is a letter sent by GLIFWC’s John Coleman to the

DNR’s Larry Lynch in May 2004 in which Coleman advanced the idea of developing a

monitoring plan for Stream-C. FMC subsequently developed a monitoring plan, which is

EXHIBIT 224. The plan, which was modified as a result of input from Coleman, called for: (1)

sampling both sediment and water in the 0.9-acre “biofilter”: (2) sampling water at various

locations along Stream-C; (3) sampling stormwater runoff from two sites within the industrial

outlot; and (4) conducting a biological assessment of Stream-C. Study results were reported to

the DNR in January 2005. This report is EXHIBIT 225.

Q. Are you familiar with the study results from the Stream-C monitoring program? If so,

what did they show?

A. Yes, I am familiar with the study results reported in January 2005. Let me first talk about the

surface water quality data reported for the 0.9-acre “biofilter” and Stream-C. You may recall that

I referred to this data earlier when discussing how pollution levels in the 0.9-acre “biofilter” and

Stream-C had actually worsened after the rail spur area was reclaimed.

Q. What does that tell you about the rail spur reclamation?

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A. It tells me that the problem of contaminated stormwater runoff at the mine site was not limited

to the rail spur area, and since metallic sulfide dust likely settled over the entire mine site and

beyond, it’s difficult to know how far the problem truly spreads.

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Q. How did the DNR react to the failure of the rail spur reclamation to clear up the

pollution problems in the 0.9-acre biofilter and Stream-C?

A. After it was clear that the rail spur reclamation had not resulted in an abatement of the

pollution problems in the biofilter and Stream-C, the DNR’s Larry Lynch sent a letter to FMC’s

Jana Murphy in which he outlined additional monitoring requirements. This letter, dated March

22, 2005, is EXHIBIT 226. Specifically, the company was instructed to expand sampling of

stormwater runoff from the industrial outlot area in an effort to pinpoint the source of the copper.

The upshot was that five sampling points were added in the parking lot of the industrial outlot

area to monitor copper, zinc, sulfate, water hardness and pH in stormwater runoff. The new

sampling sites were located close to where the mine’s wastewater treatment plant and runoff

pond had been located during the mining years and are labeled as R-3, R-4, R-5, R-6 and R-7 in

EXHIBIT 222 (Please note: the sampling sites for runoff labeled as R-1 and R-2 were part of the

original plan and the company continued to monitor them as well). In addition, FMC was

instructed to continue monitoring the 0.9-acre “biofilter” and Stream-C. Study results were

summarized in a report issued by FMC to the DNR in October 2005. This report is EXHIBIT

213.

Q. What, if anything, did the expanded monitoring program reveal?

A. Copper levels in stormwater runoff collected at the new sampling sites ranged from 64 ppb to

a staggering 100,000 ppb between April and August 2005. In addition, copper levels in the inlet

waters of the 0.9-acre “biofilter” reached 2,000 ppb in August 2005 , and a copper level of 170

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ppb was recorded in Stream-C, north of the rail spur, in June 2005. All of this data is

summarized in EXHIBIT 210.

Q. Did FMC offer an explanation for the high levels of copper observed in the stormwater

runoff and Stream-C? If so, what was FMC’s explanation?

A. Yes, FMC’s Jana Murphy offered the following explanation in a cover letter attached to the

official report submitted to the DNR in October 2005 (EXHIBIT 213):

The surface water sampling that has been completed within the watershed of Stream-C suggests

that some areas, particularly those affected by highway runoff, may naturally exhibit elevated

copper levels in the water. In addition, the sampling indicates that there appear to be localized

areas at the industrial outlot that may be contributing elevated copper levels to storm water.

[emphasis added]

Q. Based on your knowledge, experience and the research you have done with Roscoe

Churchill for you forthcoming book, do you agree with FMC’s assessment?

A. No, I do not.

Q. Why not?

A. Based on my research and analysis of the issue, in my opinion it was unreasonable for FMC

to attribute the very high copper levels in the water samples collected from the Stream-C

watershed to “highway runoff.” This because the sampling site that had registered a copper level

of 100,000 ppb (R-3) was located a long distance away from Highway 27. And even though the

so-called “control” site for the study (C-1) was located close to Highway 27, it was also right

next to where the rail spur and high sulfur waste rock stockpile had been located. That certainly

would be a more likely source of copper than runoff from Highway 27. Therefore, the surface

water sampling that has been completed within the watershed of Stream-C strongly suggests that,

due to FMC’s mining activities, some areas, particularly those close to where the ore crusher,

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runoff pond, rail spur and high sulfur waste rock stockpile were located, have become

contaminated with acid mine drainage.

Q. Do you know what happened after the high levels of copper were observed in the

stormwater runoff from the parking lot in the industrial outlot?

A. Yes, in an effort to identify the source of the contamination, Kennecott collected soil samples

in August 2005 in the vicinity of where the mine’s wastewater treatment plant, runoff pond and

ore crusher had been located. Unfortunately, however, no samples were collected close to

Highway 27 to test the validity of Murphy’s theory about how contaminated highway runoff

might be contributing to the problem. The report and action plan that were subsequently

submitted by FMC to the DNR to deal with the problem is marked as EXHIBIT 227.

Q. What did the report, EXHIBIT 227, show?

A. It showed that copper levels in the soil samples collected from the parking lot in the industrial

outlot ranged from 23 mg/kg to 1,500 mg/kg, as compared to a baseline value of perhaps 4

mg/kg. The copper levels in the soil from the industrial outlot were lower than what had been

measured in the railroad ballast in 2003 (those levels ranged from 200–3,400 mg/kg) but

nevertheless worrisome.

Q. Why do you say the study results are worrisome?

A. If the amount of copper that got into the top few inches of soil in the industrial outlot caused

so much stormwater runoff pollution that Stream-C and the 0.9-acre “biofilter” became polluted

to the point where they exceeded surface water quality standards, then it is reasonable to believe

that the groundwater in the backfilled pit must be grossly polluted. Thus, the contaminated

topsoil may be just the tip of the iceberg.

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Q. What, if anything, has been done to address the problem of contaminated soils in the

parking lot in the industrial outlot?

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A. As part of the reclamation plan outlined in EXHIBIT 227, Kennecott agreed to scrape off a

minimum of four inches of gravel and soil from all graveled areas surrounding the buildings in

the industrial outlot, cover the exposed area with a heavy-duty landscape fabric permeable to

water, and spread a minimum of 4 inches of crushed limestone aggregate (gravel) on top of the

fabric to help neutralize acid mine drainage. The company also agreed to excavate the entire run

of the drainage ditch from the west end of the industrial outlot to the 0.9-acre “biofilter,” line it

with the same kind of landscape fabric used around the buildings and spread limestone aggregate

in the ditch to serve as a buffer.

Q. How large an area was involved in this reclamation action?

A. The entire area of excavation (around the buildings and within the drainage ditch) was

estimated at 10,500 square yards, and the contaminated material, estimated at 2,300 cubic yards,

was hauled away to a licensed landfill. The plan was executed in May and June of 2006.

Q. Do you know if this latest effort to control pollution levels in the 0.9-acre “biofilter” was

successful?

A. Unfortunately, it was not successful. While, copper levels in the inlet waters to the biofilter

have indeed dropped, the copper levels are still significantly higher than the CTC for copper.

Specifically, copper levels ranging from 60 ppb to 140 ppb were reported in samples collected

between July and November 2006, as compared to the CTC of 7 ppb. Copper levels in the

biofilter outlet (i.e., the water draining into Stream-C) have dropped as well, but not very much.

Levels ranging from 16 ppb to 34 ppb were recorded between August and November of 2006.

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Again, these levels still exceed the CTC for copper. This is shown in EXHIBIT 214, which is a

data table submitted by FMC to the DNR in January 2007.

I would add that even if the copper levels in the biofilter had dropped to beneath the CTC

limit, it would still be too soon to conclude that the reclamation of the parking lot had succeeded

in eliminating the source of the contamination. As I discussed earlier, there was an initial decline

in copper levels in the biofilter after the rail spur was removed in 2003 as well. But within a year

of when the rail spur was reclaimed, the levels rebounded, and within two years they reached all-

time highs (EXHIBIT 221). Perhaps this type of phenomenon will be repeated with the

reclamation of the parking lot as well.

Q. Has the reclamation of the parking lot in the industrial outlot had a significant impact

on the pollution levels in Stream-C?

A. No. The data reported by FMC to DNR in EXHIBIT 214 makes this clear. Copper levels at

sampling point C-3 (located just downstream from where the biofilter drains into the stream)

measured 52 ppb in June 2005 (prior to the reclamation of the parking lot in June 2006). But in

November 2006, levels were still at 46 ppb.

The data reported for sampling point C-1 (located in Stream-C north of the reclaimed rail

spur) is especially troubling. Copper levels of 170 ppb were reported in June 2005 (prior to the

reclamation of the parking lot). But in October 2006 the levels were even higher, measuring 390

ppb. EXHIBIT 228 is a graph of FMC’s monitoring data reported prior to 2006. The latest data

for sampling point C-1 would be off the chart.

Q. What, in your opinion, is the significance of this latest data from Stream-C?

A. Based on my experience and research on this issue, the latest data from Stream-C indicates

that there must be some other source of contamination that is contributing to the pollution in

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Stream-C. Neither the reclamation of the rail spur nor the reclamation of the parking lot has

resolved the pollution problem. The stream is still registering copper levels that far exceed the

legal limit, and the level of pollution in the part of the stream north of the rail spur has actually

become worse.

Q. When did FMC reclaim the parking lot in the industrial outlot, and when did that take

place relative to DNR’s acceptance of FMC’s Notice of Completion (NOC) for reclamation

activities at the mine site?

A. FMC completed the parking lot reclamation in June 2006. This was approximately 4.5 years

after the DNR accepted FMC’s Notice of Completion (NOC), in November 2001. Therefore, it

appears, that the NOC was accepted prematurely by DNR.

Q. You mentioned earlier that FMC also sampled the sediment in the 0.9-acre “biofilter”

for contaminants as part of the monitoring plan put into place in 2004. What were the

results of that sampling?

A. High levels of copper and zinc were measured in the sediment at the bottom of the biofilter in

2004 and 2005. For example, samples collected from various locations within the pond in

September 2005 showed copper levels of 340–2,200 mg/kg and zinc levels of 66–160 mg/kg. All

of this data is included in EXHIBIT 213.

Q. Did FMC report any baseline sediment data from naturally-occurring wetlands at the

mine site that could be used as a point of reference for the data collected from the 0.9-acre

biofilter in 2004 and 2005?

A. No. FMC did not report that it ever analyzed the sediment in any of the wetlands at the mine

site prior to mining, so there is no real baseline data available at this time. However, the sediment

in the Flambeau River was tested upstream from the mine site in 1992, and this testing showed a

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baseline copper level of only 6 mg/kg and zinc levels of 33 mg/kg. This indicates that sediment

in the 0.9-acre “biofilter” is markedly contaminated from any naturally occurring baseline that

might have once existed there.

Q. What does FMC say about this?

A. FMC has put a different spin on this data. In EXHIBIT 213, FMC officials point out that

higher levels of copper and zinc were observed in sediment samples collected at the inlet to the

pond than at the outlet. As such, FMC concluded that the wetland was filtering the contaminants

out of the water and, therefore, “functioning as designed.” Unfortunately, however, a close

inspection of the data reveals that FMC actually skewed the results. In fact, the study showed

that regardless of what part of the wetland was sampled, the highest levels of copper and zinc

were measured in the specimens collected closest to the surface (especially in the top one inch of

sediment). That made sense, but FMC reported inlet results for samples dug to 1 inch beneath the

surface, but outlet results for samples dug to 2.5 inches. This undoubtedly contributed to the

outlet samples showing lower levels of contamination and is clear from a close reading of FMC’s

report, EXHIBIT 213.

Q. You also mentioned earlier that part of the monitoring program for the Stream-C

watershed included a biological assessment of Stream-C. Before talking about the results of

that study, could you tell us if there is any baseline data available?

A. Yes. Unfortunately, there is no baseline data available for Stream-C, according to

DNR. This is clear from a letter I received from the DNR’s Larry Lynch in late 2005, which is

marked as EXHIBIT 229.

Q. Were you surprised by this?

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A. Yes. I had assumed that Stream-C had been vibrant with life prior to the mine being built,

especially since it ran through a lush wooded area and its flow volume had been high enough for

the stream to qualify as a navigable water of the State of Wisconsin. EXHIBIT 230 is the section

of the EIS in which it was noted that Stream-C was indeed considered navigable (see page 32 of

the document). I also assumed that this type of designation would afford the stream protection

under the state’s Public Trust

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Doctrine, and that the DNR would have required some sort of baseline monitoring – especially

since the mine permit called for filling in a portion of the stream’s headwaters. But this was not

required.

Q. How is Stream-C doing today?

A. Not very well. As I mentioned earlier, ever since 2002, when the first water samples were

collected for analysis, all of the samples have contained copper levels significantly above the

CTC (EXHIBIT 210). In other words, the 0.9-acre biofilter is NOT handling contaminated

stormwater runoff as it should. Polluted water is getting into the creek and from there into the

Flambeau River. For example, in June 2005, the copper level in the creek – just downstream

from where the biofilter was draining into it – measured 52 ppb. And at its entry point into the

Flambeau River, the levels in Stream-C were 36 ppb (again, the legal limit designed to protect

the fishery is 7 ppb). In effect, it seems Stream-C is being used by FMC as a means of

conveying polluted stormwater runoff from the mine site, the 0.9 acre “biofilter,” and the rail

spur area to the Flambeau River. Thus, it is not surprising that when FMC hired a biologist to

assess the stream in 2005 the scientist concluded the following (EXHIBIT 213):

Stream-C is an intermittent stream with poor aquatic habitat that lacks aquatic vegetation and

aquatic macroinvertebrates. As a result of the poor habitat and very limited food source, no fish

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were observed in the stream during the … biological assessments. Stream-C does not possess

the types of characteristics that are needed for it to support any type of fishery.

In my opinion, FMC has nearly destroyed Stream-C because of it’s failed surface reclamation

plan.

Q. You have talked quite a bit about the 0.9-acre “biofilter” next to the rail spur. Are there

any other “biofilters” at the mine site?

A. Yes. There are two biofilters at the Flambeau Mine site. One is the 0.9-acre pond that we have

already talked about. The second is a 1.7-acre pond located fairly close to the Flambeau River.

The map marked as EXHIBIT 202 shows the location of each biofilter. The 0.9-acre pond is

labeled as “Wetland-C” on the map, since it drains into Stream-C. The 1.7-acre pond is labeled

as “Wetland-B,” since its channel is in the vicinity of where Intermittent Stream-B was located

before it was destroyed by the mining operation.

Q. Were the two biofilters part of FMC’s original reclamation plan?

A. No. The biofilters were added into the plan in 1998, when FMC applied to the DNR for

permission to amend the approved Reclamation Plan. The amended plan, as proposed by FMC at

that time, is marked as EXHIBIT 231. Not all of the proposed amendments were approved by

DNR, but the provision for constructing the two biofilters was approved. By comparing

EXHIBIT 209 with EXHIBIT 202, one can see that the two biofilters are located in areas where

wetlands existed prior to mining.

Q. Do you know why the biofilters were added into the amended Reclamation Plan?

A. I was one of the interested parties to the 1998 proceeding, when FMC was seeking to change

the approved Reclamation Plan. At that time I did not appreciate the significance of FMC’s

request. I thought the company was just talking about recontouring a couple of wetland areas. In

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retrospect, it appears FMC’s request to construct the two biofilters was an early indication that

FMC anticipated problems with contaminated stormwater runoff at the mine site. As far as I

know, the whole idea behind a biofilter is to direct contaminated runoff toward it so that the

contaminants can settle out before doing any more harm. In a way, biofilters are kind of like

giant septic tanks – except they look like ponds and the waste that settles to the bottom is not

biodegradable. The heavy metals just pile up. In the context of metallic sulfide mining, biofilters

are receptacles for acid mine drainage.

Q. Can you elaborate on this point?

A. Yes. Take the example of what’s happening in the 0.9-acre pond next to the rail spur:

1. First off, polluted stormwater runoff containing high levels of copper is draining into

the pond. This is shown in EXHIBIT 221.

2. Next, copper and other heavy metals are settling out to the bottom, as documented in

a report submitted by FMC to DNR in 2005. Sediment samples were shown to be

markedly contaminated with copper (EXHIBIT 213).

3. And third, water containing lower levels of copper (but nevertheless still polluted) is

draining out of the pond into Stream-C (EXHIBIT 210).

Q. Is the 0.9-acre biofilter at the mine site operating as designed?

A. According to FMC, the answer is yes. Here is a quote from the company’s Jana Murphy

(EXHIBIT 232):

Analyses of the 0.9-acre biofilter inlet samples indicate that the biofilter is operating as designed

by dramatically reducing concentrations of copper and manganese from stormwater runoff.

[emphasis added]

Q. Do you agree with FMC’s conclusion?

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A. No. While it is true that copper levels in the inlet waters are higher than the levels in the

outlet, the levels in the outlet still exceed the CTC for copper. This means that the copper load in

the contaminated stormwater runoff from the mine site is so high that the biofilter is not able to

filter out enough of the copper to make the water safe or that there is some sort of design flaw in

the biofilter itself.

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When Murphy made the above statement in December 2003, the most recent data from

the biofilter had shown a copper level of 740 ppb in the biofilter’s inlet and a level of 62 ppb in

the outlet. Going from 740 ppb to 62 ppb represented a 92% reduction in copper, which sounds

like a lot. But everything is relative, and a small percentage of a large number can still be a large

number. The level of 62 ppb that was measured in the outlet still exceeded the CTC for copper

by almost 9 times. In fact, even though the “biofilter” is supposedly “operating as designed,”

water samples collected at the outlet of the pond to Stream-C have consistently violated the CTC

standard since 1999.

The thing to remember is that even though the water draining out of the 0.9-acre biofilter

at the mine site is somewhat cleaner than the water entering it (due to the settling out of some of

the contaminants), the pond and its sediment are still toxic. Nothing is really being eliminated.

Some of the heavy metals pass straight through and the rest are accumulating in the bottom of

the pond, waiting to break loose. Thus, the existence of this biofilter at the Flambeau Mine site is

not a solution to the problem, but rather symptomatic of a much bigger problem brewing next to

the Flambeau River.

Q. Have you come across any anomalies in the reporting of data for the 0.9-acre biofilter?

A. Yes. In May of 2003 the iron level in the outlet of the biofilter (0.50 mg/l) was ten times

higher than the iron level at the inlet (0.056 mg/l). At first, I thought it was a fluke or perhaps a

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decimal point error on the part of the laboratory, but the same kind of thing happened in April of

2004, when the iron level in the outlet was reported as 0.6 mg/l, as compared to an inlet level of

0.12 mg/l. It is not clear why this is happening, but that’s what the record shows (EXHIBIT 212).

Q. In light of the serious problems with copper pollution in the 0.9-acre biofilter and

Stream-C, can you tell what’s happening to the water in the 1.7-acre biofilter located

between the backfilled mine pit and the Flambeau River?

A. Not really.

Q. Why not?

A. When I did an open records request of the DNR in January 2006 to find out how well the 1.7-

acre biofilter was working, I was told there were “no plans to conduct [an] extensive monitoring

program” of the biofilter because, “based on the monitoring results to date, such an extensive

monitoring program [was] not warranted.” This is set forth in EXHIBIT 233. (EXHIBIT 233)

Q. Did you find that odd?

A. Yes, because FMC has only tested a single water sample from the 1.7-acre biofilter each year

since 1999; no sediment samples have been collected; and the water in the channel between the

biofilter and the Flambeau River has never been tested for contaminants. That’s hardly enough

data to draw any real conclusions. Yet, this biofilter is supposed to be how FMC is preventing

polluted stormwater runoff from getting into the Flambeau River.

Q. Have you noticed anything worrisome in the limited amount of water quality data that

has been reported for the 1.7-acre biofilter?

A. Yes. Metal concentrations have been fluctuating widely. Here is what we know (EXHIBIT

212):

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1. Elevated copper levels of 12 mcg/l were recorded in the biofilter in both

November 2000 and April 2004 (that’s nearly twice the legal limit);

2. Barium levels went from 12 mcg/l in November 1999 to 120 mcg/l in June

2002 and then back down to 23 mcg/l in May 2003;

3. The highest iron levels recorded so far have been 1.6 mg/l (June 2002) and

1.1 mg/l (June 2005); and

4. Manganese levels in the wetland jumped from 12 mcg/l in April 2004 to 310

mcg/l in June 2005.

All of these results are of concern, especially considering how close the 1.7-acre biofilter is to

the Flambeau River.

Q. Is there anything else you would like to say about the biofilters at the mine site?

A. Yes. As I mentioned earlier, the “biofilters” at the mine site are functioning as giant septic

tanks. Anyone who has a septic tank knows that periodically it has to be pumped – or it will back

up. When I asked the DNR in January 2006 what kind of provisions were in place for long-term

maintenance of the biofilters, Larry Lynch wrote back and said the following (EXHIBIT 233):

There is no specific mention of the maintenance of the biofilters [in the permits issued to

Kennecott]. The department will retain a portion of the reclamation bond for at least twenty years

after issuance of the certificate of completion for the entire mining site. As long as we have that

financial instrument, the company will retain some level of responsibility for maintenance of the

biofilters.

This begs the question of who will pay the cost of dredging the ponds after the rest of the bond is

returned?

I am also concerned about FMC’s use of the term “biofilter” to describe something that is

really a pond. As I mentioned earlier, both of the “biofilters” at the mine site are located where

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there were naturally-occuring wetlands to begin with. This is clear from EXHIBIT 209. But

now, since the company is calling them “biofilters” instead of ponds, there has been no

enforcement of water quality standards.

Q. Can you tell me anything about the “mitigation wetland” at the mine site?

A. Yes. The mitigation wetland, which is labeled as Wetland-A in EXHIBIT 202, is located in

the northeast corner of the mine site, where the low sulfur waste rock was stored during the

mining years without a liner. Take a look at EXHIBIT 202, and you will notice that Wetland-A

drains into Stream-A, which ultimately empties into the Flambeau River.

Q. Is the mitigation wetland free of pollution?

A. It’s hard to say for sure because there isn’t a lot of data to examine. As far as I know, only a

single water sample (at the outlet of Wetland-A to Stream-A) has been collected each year for

analysis since 1999, which doesn’t provide much of a picture, especially considering the fact that

the wetland is 8.5 acres in size. No stormwater runoff samples have been collected to analyze

what’s getting into the wetland from the reclaimed mine site or what’s draining directly into

Stream-A; no water samples have been collected along the length of Stream-A to monitor the

health of the stream; no samples have been tested at the outlet of Stream-A to the Flambeau

River to see what’s getting into the river; and no sediment samples have been collected from

either the wetland or Stream-A.

Q. Do you find this lack of monitoring data curious?

A. Yes. In light of the high levels of pollution in the 0.9-acre “biofilter” and Stream-C, it’s odd

that more data has not been collected from Wetland-A. In addition, Wetland-A is the wetland

that FMC was legally required to construct as a replacement for the wetlands lost during mine

construction, so one would expect that the company would have to demonstrate that the wetland,

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as a whole, met the appropriate water quality standards and that Stream-A was not carrying

pollutants to the Flambeau River.

Q. Do you know if there are any plans to increase monitoring of the mitigation wetland?

A. I asked the DNR in late 2005 if there were any plans to develop a comprehensive monitoring

program for Wetland-A and Stream-A, comparable to what had been done for the 0.9-acre

biofilter and Stream-C. I was told the following (EXHIBIT 229 and EXHIBIT 233):

There are no plans to conduct an extensive monitoring program … of the 8.5 acre wetland. Based

on the monitoring results to date, such an extensive monitoring program is not warranted. …

There has been no water quality monitoring conducted on Stream-A … and there are not any

plans to do so.

Q. Do you have concerns about DNR’s decision to not expand monitoring of the mitigation

wetland?

A. Yes, because the wetland was constructed as part of the approved reclamation plan and,

therefore, I think FMC should have to demonstrate that the wetland meets certain performance

criteria.

Q. Have you noticed anything worrisome in the limited amount of water quality data that

has been reported for Wetland-A?

A. Yes. As I noted earlier, just a few water samples have been collected over the years, but some

of the results have been troubling (EXHIBIT 212). For example, copper levels in the wetland’s

outlet have jumped around quite a bit, going from less than 0.5 mcg/l (November 1999) to 12

mcg/l (November 2000) to less than 3 mcg/l (November 2001) to 17 mcg/l (April 2004) and then

back down to 3.8 mcg/l (June 2005). There seems to be no rhyme or reason to the numbers.

However, the surface water quality standard for copper is 6.6 mcg/l, so the water leaving

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Wetland- A and entering Stream-A has on occasion registered copper levels 2–3 times higher

than the maximum level considered safe for sensitive species of fish.

Iron and barium levels in the Wetland-A outlet have jumped around as well. For example,

iron levels increased from 0.02 mg/l in November 1999 to 1.00 mg/l in June 2002, dropped back

down to 0.08 mg/l in May 2003 and then increased to 0.64 mg/l in April 2004. And barium went

from 6.5 mcg/l (November 1999) to 110 mcg/l (June 2002) to 20 mcg/l (May 2003). The wide

fluctuation in readings highlights the fact that it’s not enough for FMC to collect just a single

water sample once a year from the wetland. Samples need to be collected from numerous

locations at least quarterly in order for anyone to understand what’s really happening to the

water.

I suspect that the elevated levels of copper, iron and barium that have sporadically shown

up in Wetland-A have something to do with the fact that the wetland is located where the low

sulfur waste rock was stored during mining. Since the crushed rock was not stored on a liner, it

may be that the groundwater table beneath the wetland as well as the surrounding soils are

contaminated with sulfur and heavy metals, in a way similar to what happened to the railroad

ballast. I also wonder if any of the heavy metals in the wetland are making their way down

Stream-A to the Flambeau River. These are questions that need to be answered.

Q. Are there any other wetlands at the mine site that you believe should be monitored by

FMC?

A. Yes. I am concerned about Wetland-11, a naturally-occurring wetland that runs along the east

bank of the Flambeau River, directly between the mine site and the river. You can see its

location by looking at EXHIBIT 209. FMC stated in the EIS that “no significant adverse impacts

to any functions of Wetland-11 would occur from … groundwater drawdown” during the mining

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years (EXHIBIT 208 – see page 63 of the document). But the company made no mention of the

post-mining years and how contaminated groundwater from the backfilled mine pit as well as

stormwater runoff from the reclaimed site were certain to flow through Wetland-11 on their way

to the Flambeau River.

Q. Are you positive that Wetland-11 is not being monitored?

A. Yes. In January of 2006 I did an open records request of the DNR to find out exactly what

was known about the water quality in Wetland-11. In response to my request the DNR’s Larry

Lynch indicated that he was not aware of any water quality sampling having been conducted in

Wetland-11. This is set forth in EXHIBIT 233.

Q. How does all the information you have been providing relate to your position that FMC

should not be granted a Certificate of Completion for its reclamation activities at the

Flambeau Mine site?

A. In light of: (a) the pollution problems in the Stream-C watershed that persist to this day

despite FMC’s reclamation of the rail spur and parking lot; (b) the absence of sufficient

monitoring data for the 1.7-acre biofilter and the channel connecting it to the Flambeau River; (c)

the absence of sufficient monitoring data for the mitigation wetland and Stream-A; and (d) the

absence of monitoring data for Wetland-11, it would be premature to declare the Flambeau Mine

reclamation to be complete. The burden of proof is on FMC to show that the site has been

stabilized, but supportive documentation is lacking. Indeed, ongoing pollution problems in

Stream-C prove that the site has not been stabilized.

Issue #2: Groundwater Contamination Problems. 21

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Q. You stated early on that you wanted to testify about the history of groundwater

contamination problems at the Flambeau Mine site as it relates to reclamation of the

backfilled pit. Would you like to shift focus to that topic right now?

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A. Yes.

Q. Was the backfilling of the mine pit indeed part of the reclamation plan?

A. Yes. As mining drew to a close, the term “reclamation” started popping up in newspaper

articles to describe what was to happen next. You can see what I mean by looking at several

articles that appeared in the Ladysmith News in December 1996 and March 1997 (EXHIBIT 234

and EXHIBIT 235).

Q. Can you briefly describe the materials that were used to backfill the pit?

A. Yes. There were three types of materials, as described in the EIS for the project. First off,

there was an estimated 2 million cubic yards of crushed Type-II waste rock. That was the rock

with the highest sulfide content, much of it containing 50% or more sulfides (mostly pyrite).

During the mining years this material was stored on a liner because of its high pollution

potential, and any stormwater runoff from the stockpile was routed through the mine’s

wastewater treatment plant.

Second, there was sludge from the wastewater treatment plant. This toxic material was

dumped on top of the Type-II waste rock during the mining years. In terms of volume, the final

EIS for the project stated that up to 124 tons of sludge would be produced by the water treatment

plant per day. Figuring that the plant was in operation for about four years, this worked out to

over 180,000 tons of sludge.

Third, there was an estimated 2.7 million cubic yards of Type-I waste rock, which

supposedly contained no more than 1% sulfur. This material was not stored on a liner.

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Q. When was the mine pit backfilled? 1

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A. Backfilling operations began in earnest in April 1997 and took about a year to complete.

Q. Did the reclamation plan include any provisions for trying to minimize the formation of

acid mine drainage within the backfilled pit?

A. Yes. Once the decision was made to stop production at the Flambeau Mine, the first thing the

mining company did as part of the reclamation plan was to push the so-called Type-II waste rock

and the sludge from the wastewater treatment plant back into the pit.

FMC believed that by burying the crushed Type II rock and sludge in the very bottom of

the pit, the sulfides would be less likely to come in contact with oxygen and produce acid mine

drainage. As explained by FMC’s Tom Myatt in an article that appeared in the March 13, 1997

issue of the Ladysmith News, “Oxygen must be present with water to form acid from sulfur rock,

but material below about 90 feet will be anoxic (without oxygen)” (EXHIBIT 234).

Q. Are you sure that the waste rock from the Flambeau Mine site really had the potential

to produce acid mine drainage?

A. Yes.

Q. How do you know?

A. From the company’s own data, which I have incorporated into a table for illustrative purposes

(EXHIBIT 237). FMC tested the water percolating through the Type-II waste rock before the

waste rock was pushed into the pit, and incredibly high levels of copper, iron and manganese

were recorded. In addition, the water was clearly acidic, with pH values ranging from 3.1 to 3.9.

FMC’s original reports are marked as EXHIBIT 238.

I would add that if the waste rock and ore body had not been prone to causing acid mine

drainage, there would have been no need for the company to construct a highly-sophisticated and

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expensive water treatment plant on site. The fact that water accumulating in the bottom of the pit

and water percolating through the Type-II rock had to be routed to the water treatment plant

before being discharged into the Flambeau River speaks for itself. A diagram from the EIS,

marked as EXHIBIT 239, shows the overall scheme for routing this water to the treatment plant.

An aerial photograph, marked as EXHIBIT 240, shows the dirty water in the surge and runoff

ponds before being treated.

Q. Did the reclamation plan include any other provisions for trying to minimize the

production of acid mine drainage within the backfilled pit?

A. Yes. The company mixed lime (calcium carbonate – the same thing you find in TUMS) with

the high-sulfur waste rock and sludge in an effort to counteract acid production. According to the

company, somewhere between 5 and 20 pounds of limestone was mixed with each ton of Type-II

material.

Q. Based on the reclamation plan presented to the public at the time of the Master Hearing,

a plan that incorporated techniques for minimizing the production of acid mine drainage,

did the company offer any predictions regarding the extent of groundwater pollution that

was likely to occur?

A. Yes. At the time of the Master Hearing, the company predicted manganese, copper, iron and

sulfate levels for the groundwater within the backfilled pit as well as the pH of the water.

(EXHIBIT 236 – see page 28 of the document)

Q. Have those predictions turned out to be accurate?

A. No.

Q. Please explain.

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A. I will first discuss the levels of manganese in the water. FMC predicted that the manganese

levels in the groundwater within the backfilled pit would not exceed 522 ppb. But by October

2001, the levels in a monitoring well (MW) within the backfilled pit had already reached 41,600

ppb, and a level of 42,000 ppb was recorded in the same well (MW-1013B) in April 2005. I

obtained this data from FMC’s annual reports. To put the cited manganese levels into

perspective, the drinking water standard (MCL) for manganese is 50 ppb, and baseline

manganese levels at the mine site ranged from 30 ppb to 290 ppb in deep Precambrian test wells.

EXHIBIT 241 is a graph that shows this data, and EXHIBIT 204 is a map that shows the location

of the cited well at the mine site.

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Q. Is MW-1013B the only test well at the mine site that is showing elevated levels of

manganese?

A. No. EXHIBIT 242 is a table I assembled using data from FMC’s annual reports. It shows that

grossly elevated manganese levels have been recorded in: (1) both sets of test wells within the

backfilled pit (the MW-1013 and MW-1014 series); and (2) the test well that exists in fractured

bedrock between the mine pit and Flambeau River (MW-1000PR). It also shows that manganese

levels in the single set of monitoring wells along the compliance boundary (the MW-1015 series)

have, on occasion, exceeded the enforcement standard of 230 ppb set by the DNR for the project.

I would also point out that, while the mine pit was dug to a depth of 220 feet and was 32

acres in size, there are only two nests of test wells (4 wells per nest) within the backfilled pit, and

only two of the wells exceed 150 feet in depth (MW-1013C and MW-1014C). This raises the

question of whether even higher levels of manganese might be present in the groundwater but are

going undetected due to the minimal monitoring program that was put in place.

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Q. Are the elevated levels of manganese in the groundwater at the mine site of concern to

you?

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A. Yes.

Q. Please explain why.

A. At the time of the Master Hearing, FMC’s permit was approved with the understanding that

manganese levels within the backfilled pit were not going to exceed 522 ppb. The levels that

have thus far been measured (and no one knows if they have topped off) exceed the prediction by

80 times. What’s more, the groundwater is moving straight toward the Flambeau River, as

illustrated in EXHIBIT 202.

I am also concerned because the bedrock between the mine pit and Flambeau River is

fractured, as documented in a report issued by Kennecott to the DNR at the time of the Master

Hearing. (EXHIBIT 236 – see page 30 of the document)

Q. But is manganese harmful to anything?

A. Yes, it is. In terms of human consumption, the following has been reported in the medical

literature (EXHIBIT 243):

“Limited evidence suggests that high manganese intakes from drinking water may be associated

with neurological symptoms similar to those of Parkinson’s disease. Severe neurological

symptoms were reported in 25 people who drank water contaminated with manganese and

probably other contaminants from dry cell batteries for 2–3 months. Water manganese levels

were found to be 14 mg/liter [14,000 ppb] almost 2 months after symptoms began and may have

already been declining. … Due to the severe implications of manganese neurotoxicity, the Food

and Nutrition Board of the Institute of Medicine has set very conservative upper levels of intake

for manganese.”

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Q. How much of the water from MW-1013B at the Flambeau Mine site (containing 42,000

ppb manganese) could you drink before exceeding the upper level of intake for manganese

set by the Institute of Medicine?

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A. It depends on your age. For example, children 1–3 years of age are supposed to ingest no

more than 2,000 mcg of manganese per day. It would take less than 2 ounces of the contaminated

water in MW-1013B to exceed that limit.

Q. Do you have any other concerns about the high levels of manganese in the groundwater

within the backfilled pit?

A. Yes. It has to do with the fish in the Flambeau River. Both the Norwegian Institute for

Water Research in Oslo, Norway and the Great Lakes Fishery Commission have raised concerns

about the toxic effects of iron and manganese on fish. (EXHIBIT 244)

Q. Are there any other pollutants in the groundwater within the backfilled pit that are of

concern?

A. Yes. There are elevated levels of iron and copper. As in the case of manganese, FMC’s

predictions for the levels of groundwater pollution were grossly inaccurate.

EXHIBIT 245 is a graph I made of the iron levels in MW-1014C within the backfilled pit

using data provided in FMC’s annual reports. It shows that the predicted level of iron was

exceeded by 44 times.

EXHIBIT 246 is a graph I made of the copper levels in MW-1014B within the backfilled

pit using data provided in FMC’s annual reports. It shows that the predicted level of copper was

exceeded by 58 times.

Q. Do you have any information concerning how long these elevated levels of manganese,

copper and iron are expected to persist in the groundwater at the Flambeau Mine site?

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A. Yes. This is addressed in a table that appeared on page 28 of Appendix L of one of the

documents submitted by FMC to the DNR during the permitting process (EXHIBIT 247). The

table shows that, based on FMC’s initial estimate of the levels of manganese, iron and copper

that would get into the groundwater, FMC predicted it would take over 4,000 years for the

pollution to dissipate. However, now that FMC’s predicted levels of manganese, copper and iron

have far been exceeded, it is reasonable to conclude that it will take even longer than originally

predicted for the levels to normalize.

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Q. Do you know why the levels of manganese, iron and copper in the groundwater within

the backfilled pit might be so much higher than predicted?

A. We can’t know for certain. However, there are only two possibilities. Either FMC failed to

properly execute the approved Reclamation Plan and thus caused these problems in the

reclamation process itself, or if the plan was properly executed by FMC, it was a flawed plan.

Issue #3: Data Indicating Pollution of the Flambeau River. 13

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Q. The third issue you mentioned concerned data that indicates pollution of the Flambeau

River. What, if any, data do you have that indicates that polluted water from the Flambeau

Mine site is getting into the Flambeau River?

A. The data I have on this issue falls into four categories, including data on (1) surface water; (2)

sediment; (3) crayfish; and (4) walleyed pike. I have created a map, which is marked as

EXHIBIT 248, to show where the various specimens have been collected within the Flambeau

River. (EXHIBIT 248)

Q. Before going further, could you please clarify if the source of the pollutants in the river,

if indeed those pollutants exist, would be from contaminated groundwater from the

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backfilled pit, or would it be from contaminated runoff from the surface of the reclaimed

mine site?

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A. It could be from either source or both. In terms of surface water runoff, I have already

discussed how contaminated runoff from the reclaimed mine site is draining into the 0.9-acre

biofilter next to the rail spur and how that water eventually drains into the Flambeau River via

Stream-C. In terms of groundwater, FMC itself acknowledged in its mining permit application

that contaminated groundwater from the backfilled pit would be entering the river through

fractured bedrock (EXHIBIT 236 – see page 30 of the document).

Q. Would you please elaborate on what you just said about the 0.9-acre biofilter?

A. Yes. Your Honor had the opportunity to see how Stream-C feeds into the Flambeau River on

May 17, 2007, although this was after spring runoff and at a relatively low flow

time. Nevertheless, the Flambeau River is the ultimate destination of the contaminated water

draining out of the biofilter, and all water samples collected from Stream-C at its point of entry

into the Flambeau River have thus far exceeded the CTC for copper. This was made clear in

EXHIBIT 210 and EXHIBIT 228. For example, the last reported data from FMC (June 2005)

showed a copper level of 36 ppb in Stream-C at its confluence with the Flambeau River, as

compared to the CTC of 7 ppb.

Q. Are there any other potential sources of contamination to the Flambeau River from the

Flambeau Mine site?

A. Yes. I am aware of at least four, and the first three are tied to surface reclamation issues:

1. Water draining into the Flambeau River from the 1.7-acre biofilter;

2. Water draining into the Flambeau River from the 8.5-acre mitigation wetland;

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3. Stormwater runoff draining directly into the Flambeau River from the surface of

the reclaimed mine site; and

4. Contaminated groundwater from the backfilled pit entering the Flambeau River

through the fractured bedrock between the pit and the river.

Q. What, if anything, do you know about the 1.7-acre biofilter?

A. Because of the high levels of pollutants in the 0.9-acre biofilter at the mine site and the high

levels of pollutants in Stream-C, the question must be raised as to whether or not a similar

problem has developed in the 1.7-acre biofilter at the reclaimed mine site. Specifically, it would

be important to know if contaminated stormwater runoff from the reclaimed surface is making its

way into the biofilter. But as I discussed earlier: (1) FMC has submitted very little data to the

DNR to show what’s happening to the water in the biofilter itself; (2) no data at all has been

submitted by FMC for the water in the channel that connects the biofilter to the Flambeau River;

and (3) the sediment in the biofilter has never been tested by FMC or the DNR for contaminants.

Q. What can you tell us about the 8.5-acre mitigation wetland at the reclaimed mine site?

A. Everything I said about the 1.7-acre biofilter pertains to the 8.5-acre biofilter as well. It would

be important to know if contaminated stormwater runoff from the reclaimed surface is making its

way into the mitigation wetland and ultimately the Flambeau River, but FMC has not provided

enough data to characterize what is happening.

Q. What can you tell us about your third point, concerning stormwater runoff from the

mine site draining directly into the Flambeau River?

A. As I mentioned earlier, it is almost certain that metallic sulfide dust settled over the entire

mine site and beyond during the mining years. Therefore, it is likely that stormwater runoff

draining directly into the Flambeau River from the mine site is contaminated. One way to check

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this out would be to monitor pollution levels in Wetland-11 at the mine site. As shown in

EXHIBIT 209, this particular wetland runs along the east bank of the Flambeau River, directly

between the mine site and river. But again, FMC has submitted no monitoring data to the DNR

for this area and DNR has not done any monitoring of its own.

Q. How does the lack of monitoring data for the 1.7-acre biofilter, the 8.5-acre mitigation

wetland and Wetland-11, relate to whether FMC should receive a Certificate of

Completion of reclamation for the Flambeau Mine site?

A. The lack of monitoring data for these areas shows that FMC has not met the requirement

under Wis. Admin. Code § NR 132.08(1)(e)1., that it conduct “[m]onitoring of wastes and

ground and surface water quality” as part of its plans for long-term maintenance of the site.

Thus, it would be premature to award the Certificate of Completion at this time because this type

of required monitoring has not yet been done and there is no plan in place other than the

Reclamation Plan to require it to be done. Moreover, if the Certificate of Completion is granted

now, it is clear that this type of monitoring will never be done because FMC will have no other

obligation to do it.

Q. Your fourth point dealt with contaminated groundwater from the backfilled pit entering

the Flambeau River through the fractured bedrock between the pit and river. What do you

know about that?

A. Not only did FMC underestimate the levels of contaminants that would get into the

groundwater within the backfilled pit, but it also grossly underestimated the rate of groundwater

flow from the backfilled pit to the river. I refer you to EXHIBIT 249, which is a report submitted

by John Coleman of GLIFWC to the DNR in 2001 in which he estimated that the flow rate from

the backfilled pit to the river was likely to be, “2 to 3 orders of magnitude [100 to 1000 times]

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greater than that predicted by the mining company’s consultant.” I also refer you to EXHIBIT

250 for the DNR’s response to Coleman. The DNR did not totally agree with his analysis but

seemed to agree that the flux rate was at least 125 times higher than what FMC had predicted.

I would add that the backfilled pit is extremely close to the Flambeau River – only 140

feet away. So the groundwater does not have far to travel before entering the river. EXHIBIT

251 is a photo taken in September 1994 when the Flambeau River flooded and came to within 4

vertical feet of spilling into the pit.

The net result is that groundwater, which in some instances has been 80 times more

polluted than FMC had predicted, is moving from the pit to the river at a rate that is over 100

times faster than FMC predicted. Considering that the Flambeau River is quite shallow in the

vicinity of the mine site (only 2–3 feet deep in the summertime), there is a real need to monitor

the potential impacts to the river. Indeed, a comprehensive monitoring program is needed to

gauge the success of the company’s reclamation plan.

Q. Is FMC monitoring the surface water of the Flambeau River for contaminants?

A. Yes, but only on a voluntary basis. Mandatory monitoring was eliminated in 2001.

Q. What have FMC’s voluntary monitoring results shown?

A. In general, nothing remarkable has shown up so far in terms of the surface water itself. But it

is important to note that there is a significant flaw in FMC’s study design. The so-called

“downstream” sampling site in the Flambeau River, which is labeled as F-4 on EXHIBIT 248, is

actually located about a quarter mile upstream from where Stream-C empties into the river.

Consequently, the polluted water that makes its way to the river from the 0.9-acre biofilter is not

being picked up in any of the voluntary monitoring. You can see this by referring to EXHIBIT

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248. It’s difficult to gauge the success of the reclamation plan in protecting the Flambeau River

from adverse impacts with such an obvious flaw in the approach taken to the monitoring.

Q. Is there anything else you would like to say about the surface water monitoring results

for the Flambeau River?

A. Yes, and it has to do with aluminum levels in the river. In June 2000 (the last time aluminum

levels were checked in the river by FMC) the aluminum level at the downstream sampling site

(F-4 in EXHIBIT 248) measured 160 ppb, which was about four times higher than the aluminum

level at the upstream sampling site (F-3), where a level of 42 ppb was recorded.

Q. Please put those numbers into perspective.

A. The DNR does not list a toxicity standard for aluminum in NR 105, but a 1989 Environmental

Protection Agency document (which was quoted in the FEIS for the Flambeau Mine) lists an

aluminum level of 87 mcg/l as being toxic to sensitive species of fish (EXHIBIT 252). That

means the aluminum level recorded at the downstream sampling site in June 2000 exceeded the

EPA toxicity standard two-fold! It is also important to remember that the aluminum levels

measured by FMC were taken at the sampling site located downstream rather than upstream from

the Stream-C discharge point. Thus, we have no information on what the levels are downstream

from Stream-C.

Q. Why do you think the aluminum would have come from the mine?

A. According to the EIS, which is marked as EXHIBIT 218, aluminum was indeed present in

the waste rock at the mine site.

Q. Let me turn your attention to the issue of sediment in the Flambeau River. Are you

aware of any river sediment monitoring data from the DNR or FMC?

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A. Yes. FMC’s mining permit called for testing the Flambeau River’s sediment once a year,

between 1991 and 2000, for heavy metal accumulation. Two different sites were monitored, one

upstream and the other about 1.5 miles downstream from the mine site. The mining company

hired Blue Iris Environmental of Black Creek Wisconsin to do the work, and samples were

collected by placing sediment traps on the river bottom and retrieving them after two to three

months. The sediment was then analyzed for thirteen different metals, including aluminum,

arsenic, cadmium, chromium, copper, iron, lead, manganese, mercury, nickel, selenium, silver

and zinc.

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Q. What did the results show?

A. Blue Iris Environmental summarized the results in what has been marked as EXHIBIT 253,

as follows:

Data from the ten years of sediment analysis indicate that, in general, no increase or decrease in

parameter concentration in sediments is occurring. Data from 2000 compare very favorably with

data collected in 1999. Moreover, downstream samples continue to compare favorably with

upstream sediment samples indicating no impacts due to mine activities.

Q. Do you agree with this assessment by Blue Iris Environmental?

A. No.

Q. Why not?

A. First, the consultant provided no statistical analysis of the data to back up its claim of, “no

impacts due to mine activities.” Second, when I assembled the data into a chart and compared

upstream and downstream levels of copper, zinc and iron in the sediment, it was clear that the

upstream and downstream samples did not “compare favorably.” This is shown in EXHIBIT

254, which is the table I assembled using the data provided in the report (EXHIBIT 253) by Blue

Iris Environmental.

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Q. Please give an example of where you believe the upstream and downstream samples do

not compare favorably in terms of heavy metal content.

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A. Take the example of zinc and copper, as shown in EXHIBIT 254. In 1993 (at the very

beginning of mining) the upstream samples had higher levels of zinc and copper than the

downstream samples. But the very next year, as the mining operation picked up speed, things

started to turn around. In 1994, 1995, 1996, 1997, 1998, 1999 and 2000 the downstream

sediment samples all had higher levels of copper and zinc than the upstream samples. The same

holds true for samples collected just last year, in 2006. Therefore, the claim by Blue Iris

Environmental that the upstream and downstream samples “compare favorably” is unreasonable

and has no factual basis.

Q. When is the next round of sediment data due to be reported to the DNR by FMC?

A. FMC was only required to report sediment data for a ten-year period, from 1991 to 2000.

Therefore, the only reporting at this stage is on a totally voluntary basis.

Q. Based on your research and expertise on this issue, do you see problems with this

voluntary testing and reporting?

A. Yes, I do. It can take decades for the problems associated with acid mine drainage to fully

manifest. Therefore, it is premature to stop mandatory testing at this time. Moreover, it is my

understanding that the Reclamation Plan and NR 132.08(1)(e) require monitoring of wastes and

ground and surface water quality for long-term maintenance of the mining site, and this is not

occurring with respect to sediment monitoring in the river.

Based on an Public Records Law request I submitted to the DNR, I also discovered an

internal DNR memo that was sent to Larry Lynch in 2001, which supports the idea of continued

monitoring. It is marked as EXHIBIT 255, and here is what it says:

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Because metals are expected to continue moving from the mine pit to the river, and because

metals can build up in sediments over time and bioaccumulate in organisms (with potential for

cascading up the food chain), continued monitoring could yield much important information.

Q. What do you know about the crayfish monitoring data you mentioned earlier?

A. FMC’s mining permit required the company to monitor the crayfish living along the river

bottom for bioaccumulation of heavy metals over a ten-year period (1991-2000). Blue Iris

Environmental carried out the work, and specimens were also collected on a voluntary basis in

2004. The upstream sampling site was at Blackberry Lane (Point CF-1 in EXHIBIT 248), and

there were two downstream sites, one at the confluence of Meadowbrook Creek with the

Flambeau River (Point CF-2) and the other at the site of the former Port Arthur Dam (Point CF-

3, 4 miles downstream from the mine). At each location, about twenty-five crayfish were

collected, placed into a Ziploc bag and later run through some kind of blender to create a single

sample for analysis. The crayfish were analyzed for eleven different metals, including aluminum,

arsenic, cadmium, chromium, copper, lead, mercury, nickel, selenium, silver and zinc.

Q. What did the results show?

A. In what is marked as EXHIBIT 256, Blue Iris Environmental summarized the results as

follows:

A review of the data indicates that no relative difference in parameter concentrations from

upstream locations to downstream locations is evident. Data for the three sites are similar when

compared to each other and, are also comparable to results which were obtained both during the

active mine operation and the years during and immediately following the mine site reclamation.

… Based on data collected in 2004, there appears to be no impact to crayfish relative to metal

uptake whether we are looking at upstream-downstream effects or effects due to time (active

mining phase, mine site reclamation or post-reclamation).

Q. Do you agree with this assessment by Blue Iris Environmental?

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Q. Why not?

A. The consultant provided no statistical analysis of the data to back up its claim that the data

indicated “no impact to crayfish relative to metal intake.” And when I assembled the data into a

chart and compared upstream and downstream levels of copper in the crayfish specimens, it was

clear that higher levels of copper had indeed been recorded in the downstream crayfish. The table

I assembled is marked as EXHIBIT 257. It is based entirely the data collected by Blue Iris

Environmental.

Q. When is the next round of crayfish sample data due to be reported?

A. FMC was only required to report crayfish data for a ten-year period (1991-2000). Therefore,

any reporting at this stage (which indeed did happen in 2006) is on a voluntary basis only.

Q. Based on your research and expertise on this issue, do you see any problems with this

voluntary monitoring and reporting?

A. Yes, I do. It can take decades for the problems associated with acid mine drainage to fully

manifest. Therefore, it is premature to stop mandatory sampling and testing at this time.

Furthermore, such ongoing monitoring is necessary as part of the reclamation process approved

under the Reclamation Plan and NR 132.08(1)(e).

Q. What do you know about the walleye data you mentioned earlier?

A. FMC hired Blue Iris Environmental to go fishing for walleye in the Flambeau River once a

year between 1991 and 2000, in order to monitor the fish for bioaccumulation of heavy metals.

Two different sampling locations were utilized, as shown in EXHIBIT 248. The upstream site

(Point W-1 on the map) was in the Ladysmith Flowage above the Peavey Mill Dam (about 4.5

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miles upstream from the mine site). The downstream site (Point W-2) was in the Thornapple

Flowage above the Thornapple Dam (about 9 miles downstream from the mine site).

Blue Iris used a technique known as “electrofishing” to catch the walleye for the study. At each

sampling location, nine walleye were caught and filleted, and the livers were combined into a

single sample for metal analysis.

Q. What did the results show?

A. Blue Iris Environmental summarized the results in what is marked as EXHIBIT 258, as

follows:

A review of the historical information (data from 1991 to 2000) suggests that relative values for

copper in walleye liver from the Thornapple Flowage and from the Ladysmith Flowage are

consistent. Moreover, it is observed that year-to-year increases and decreases in concentrations

of copper in the liver of walleye are comparable from the upstream flowage to the downstream

flowage. … It is concluded that the operation of the mine, including the time window when

reclamation and habitat restoration activities are being conducted, has had no impact on the

concentrations of metals which are observed in the liver of walleye.

Q. Do you agree with this assessment by Blue Iris Environmental?

A. No.

Q. Why not?

A. The consultant provided no statistical analysis of the data to back up its claim that the mine

had had “no impact” on the concentrations of heavy metals in the walleye. However, when I

assembled the data into a chart and compared upstream and downstream levels of copper and

zinc in the walleye specimens, it was clear that higher levels of copper and zinc had indeed been

recorded in the downstream fish. The table I prepared with this data is marked as EXHIBIT 259.

Q. When is the next round of data due to be reported?

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A. FMC was only required to report walleye data for a ten-year period (1991-2000). Therefore,

any reporting at this stage (which indeed did happen in 2005 and 2006) is on a voluntary basis

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Q. Based on your research and expertise on this issue, do you see any problems with this

voluntary reporting?

A. Yes, I do. It can take decades for the problems associated with acid mine drainage to fully

manifest. Therefore, it is premature to stop mandatory testing at this time. Furthermore, such

ongoing monitoring is necessary as part of the reclamation process approved under the

Reclamation Plan and NR 132.08(1)(e).

Issue #4: The Paucity of Critical Monitoring Data. 10

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Q. At the beginning of your testimony, you indicated that you wanted to comment on the

paucity of critical monitoring data and need for expanded monitoring at the reclaimed

mine site. Would you please do that now?

A. Yes. Throughout my testimony I have noted various examples of where FMC has failed to

provide information critical to determining whether or not the company has succeeded in its

reclamation efforts at the Flambeau Mine site. Following is a list of the monitoring activities that

I believe need to be carried out before a determination can reasonably be made regarding the

issuance of a Certificate of Completion of Reclamation to FMC:

1. Comprehensive monitoring of the 1.7-acre biofilter and the channel that conveys

water from the biofilter to the Flambeau River. Both surface water and sediment

should be analyzed from several different locations within the biofilter and along the

channel.

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2. Comprehensive monitoring of the 8.5-acre mitigation wetland and Stream-A, which

conveys water from the mitigation wetland to the Flambeau River.

3. Comprehensive monitoring of Wetland-11, which is situated between the mine site

and the Flambeau River.

4. Expanded monitoring of the Stream-C watershed to determine the source of

contaminants getting into the stream north of the rail spur area.

5. Comprehensive monitoring of soils at the mine site to determine potential sources of

contaminants.

6. Renewed mandatory monitoring of Flambeau River surface water. Besides using the

original sampling sites, at least one additional site should be added downstream of the

confluence of Steam-C with the river. In addition, testing should be expanded to

include critical metals such as aluminum.

7. Renewed mandatory monitoring and testing of Flambeau River sediment.

8. Renewed mandatory monitoring and testing of Flambeau River crayfish.

9. Renewed mandatory monitoring and testing of Flambeau River walleye.

Q. Based on your research and expertise on this issue, how long do you believe these

monitoring activities should be carried out?

A. Since the full effects of acid mine drainage can take decades to manifest, it is my opinion that

this type of monitoring must be carried out for at least twenty to thirty years and probably much

longer.

Q. Based on your research on this issue, what, if anything, else do you think should be done

at the Flambeau Mine site in terms of monitoring requirements relative to reclamation?

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A. There are two things. First, in my opinion more monitoring wells need to be drilled along the

compliance boundary. You will note from EXHIBIT 204 that the direction of groundwater flow

at the mine site is from the backfilled pit toward the Flambeau River. Yet, you will also notice

that no wells have been drilled across the river to monitor what’s happening along that stretch of

the compliance boundary. In fact, only one nest of wells (the MW-1015 series) exists along the

entire compliance boundary, which I have estimated to be greater than 3.5 miles in length. Surely

this is inadequate.

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Q. What is the second thing that you believe needs to be done at the reclaimed Flambeau

Mine site in terms of monitoring requirements?

A. The DNR needs to establish a groundwater intervention boundary at the reclaimed mine site

and require test wells to be drilled along that boundary. The failure to do so appears to have been

an oversight at the time of the Master Hearing in 1990, since NR 182.075(1)(c)3, as it existed at

that time, clearly mandated the establishment of such a boundary. A copy of Wis. Admin. Code §

NR 182.075(1)(c)3, as it existed at the time of the Master Hearing, is marked as EXHIBIT 260.

The rule was amended in 1998 to add greater specificity, but this does not detract from the fact

that the DNR was required to establish an intervention boundary when the Flambeau Mine was

permitted.

Q. Are you positive that an intervention boundary was never established for the Flambeau

Mine?

A. Yes.

Q. How do you know?

A. I did a Public Records Law request of the DNR in December 2003 to find out the exact

location of both the compliance and intervention boundaries for the Flambeau Mine site. At that

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time I was informed by the DNR that an intervention boundary had never been established. The

letter I received on this issue was from the DNR’s Larry Lynch. It is marked as EXHIBIT 261,

and it states as follows:

I have enclosed a figure that depicts the compliance boundary for the site. The Flambeau

operation was permitted prior to implementation in 1998 of the rule provisions that created the

concept of the mandatory intervention boundary. Thus, a mandatory intervention boundary has

not been established for the Flambeau Mining site.

But Lynch’s statement was not correct. While NR 182.075 was amended in 1998 to add greater

specificity, the concept of, and requirement for, an intervention boundary nevertheless existed at

the time the Flambeau Mine was permitted.

Q. What is the significance of this lapse?

A. The intervention boundary concept was incorporated into NR 182 as a way to ensure that

MCL standards would not be violated at the compliance boundary. Especially in light of the high

levels of pollution evident in the groundwater within the backfilled pit at the Flambeau Mine site,

this safety net is clearly necessary.

Q. Let me digress and ask you a follow-up question about the soil removal activities that

were done at the rail spur, which you addressed in the first part of your testimony. Do you

know whether the soil removal that was done at the rail spur in 2003 was characterized or

considered to be part of the “reclamation” process, as opposed to some type of

“remediation” or “long-term care” of the mine site?

A. Yes. In fact, two separate activities have taken place at the mine site since 2003 that have

generally been characterized as being part of the “reclamation” of the mine site. Let me list them

for you:

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1. The removal of the ballast from the west rail spur area in November 2003. The

Wisconsin DNR has referred to the rail spur removal project in no uncertain terms as

“reclamation,” as shown in EXHIBIT 262. This exhibit is a letter from the DNR to FMC dated

June 2, 2004 that starts out as follows:

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Not only did the DNR refer to the rail spur removal project as “reclamation,” but so did FMC

itself as recently as January 2007. I will refer to EXHIBIT 263, which is a section taken from

FMC’s 2006 Annual Report (issued January 2007), that summarized the work and is entitled

“Rail Spur Reclamation.” The exact same language was also used to describe the project in

FMC’s 2004 Annual Report right after the project had been completed. This is shown in

EXHIBIT 264.

2. The removal of contaminated gravel from the parking lot in the industrial outlot

in June 2006. As in the case of the rail spur reclamation, the excavation of the parking lot at the

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mine site has been referred to as “reclamation.” This is clearly shown in a letter sent by FMC’s

consultant, Foth & Van Dyke of Green Bay, Wisconsin, to the DNR on March 30, 2006. This

letter is EXHIBIT 265.

Q. Does that conclude your direct testimony?

A. Yes it does.

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