History Highlights

Okanogan County Solid Waste Exemption
Money and politics wins over truth and justice

On January 21, 1999 Superior Court Judge for Okanogan County, Jack Burchard dismissed a lawsuit brought by the Okanogan Highlands Alliance against Okanogan Health District and County for exempting Battle Mountain Gold’s proposed gold mine from needing solid waste permits for it’s tailings and waste rock facilities for what would be Washington States first large scale open-pit, cyanide-leach gold mine.

Washington State Superior Court ruled that Okanogan County Health District could exempt the tailings and waste rock from needing a solid waste permit because the state legislature had validated the the right of local jurisdictions to grant exemption regardless if the exemption was right or wrong. However, in his decision the judge said that the Health Dept was probably wrong in saying that the waste rock was inert and that the mine waste was exempt from solid waste laws. He states that “BMG conceded at one point that 10% to 15% of the waste rock has the potential for generating acid or metals leachate.” So even though the water quality permit indicates that the waste rock will not be inert and that the discharge from it will not meet state standards, the legislature overrode the ability of the court to hear substantive issues of the case.

This mine has been delayed this long because it has not been able to meet clean water standards. Instead of accepting this reality lobbyists and politicians created a loophole for the company to crawl through to exempt it from the law that everyone else has had to follow. To top it off, BMG has proposed a permanent water treatment plant because their promised “pristine alpine lake” will not meet standards either.

The state has issued permits even though the mine is predicted not to meet standards and Okanogan Health District was wrong in it’s reasoning for exempting the waste rock facility. Is this pollution an acceptable price for everyone to pay in perpetuity for some short term jobs? Any reasonable person would insist, that the water quality would be protected and that our local government would act with integrity and correct the mistake.

Waste rock and tailings should not be dumped on top of a creek. Runoff from these sources is one of the major killers of streams in the West. A decision that could injure the health and safety of County residents shouldn’t be issued by the Health Department. Battle Mountain Gold proposes to dispose of 9,000,000 tons of tailings material in Marias Creek and its associated wetlands as well as 135,000,000 tons of waste rock in unlined waste rock dumps. This material is not inert and is potentially dangerous.

Lacey, Washington, May 11, 1998, Attorneys for OHA, the Washington Environmental Council, the Center for Environmental Law & Policy (CELP), and the Confederated Tribes of the Colville Reservation presented evidence before the Pollution Control Hearings Board (PCHB) regarding the inequity of granting large water rights to Battle Mountain Gold Co. (BMG) of Houston, Texas while denying even small quantities of water to local farmers and ranchers.

Two weeks before this trial, Washington State Department of Ecology (Ecology) and BMG, in response to our experts’ criticism, changed their streamflow depletion predictions and their precipitation estimates, forcing them to increase their mitigation quantities up to 50%. They also added an additional mitigation pipeline to release water from the pit lake into Nicholson Creek for previously undetected permanent reductions. On cross examination by Rachael Paschal of CELP, Carol Fleskus, the water rights decision maker for Ecology, admitted that she did not know how much water was available for appropriation in Myers or Toroda Creeks, how much water was already appropriated, or how many exempt wells there are in the basins, and did not consider the impact of BMG’s water right on future water rights applications. Ms. Fleskus did not consider wetlands as part of the public interest test or the impacts to wetland recharge, nor did Ecology determine flows necessary for channel maintenance.

In an outline of the Pros and Cons of a yes or no decision about BMG’s water rights, Ms. Fleskus wrote that mitigation is not a proven system; therefore it could fail. The problem is unlike other mitigation systems, the impacts like the pit lake are not tied to a water withdrawal that could be terminated to stop the impact . The only recourse is through a financial security system, but no surety has yet been established for the recently added changes to the mitigation plan. She admitted that administering the mitigation system would take a long-term commitment of agency monitoring and enforcement even though no financial surety is in place. On the pros side of a no decision she states, “That the mitigation proposal pushes the envelope beyond what is in the public interest.” She admits that the perpetual part of the mitigation proposal is unique in the agencies experience and that she had no policy standards or guidance from Ecology. In a surprising confession, Ms. Fleskus admitted not knowing whether she was required to consider impacts to senior water rights holders in Canada other than Mr. Harpur.

Throughout the remainder of the seven day hearing Adam Berger, of Earthjustice Legal Defense Fund did a skillful job at getting BMG’s and Ecology’s expert witnesses to admit that there could still be a fair amount of uncertainty in their predictions.

Washington, D.C. (May 21, 1999) – Congress passed the Emergency Supplemental Appropriations Bill to provide relief funding for Kosovo and victims of Hurricane Mitch. The bill contains a rider, attached at the request of Senator Slade Gorton (R-WA), that would exempt a cyanide process gold mine in his home state from current legal limits on mine waste dumping. 

Senator Gorton’s gold mine rider illustrates the mining industry’s scandalous hold on Congress. For years, Congress has rejected efforts to reform the outdated 1872 Mining Law and protect America’s public lands and resources from irresponsible and inappropriate mining. The damage to date: more than $240 billion mineral giveaways from public lands, with $0 return to U.S. taxpayers; more than 500,000 abandoned mines (with a cleanup cost of $32 billion to $72 billion); 12,000 miles of polluted streams; and 180,000 acres of polluted lakes.

Not only does this “gold mine rider” set a potential precedent for exempting mines from waste-dumping limits, it would result in a giveaway of an estimated $500 million in gold reserves to mining company Battle Mountain Gold, with a $0 return to taxpayers.

Environmental groups are calling on the Clinton-Gore Administration to stop the giveaways to mining companies, and address the 1872 Mining Law through open public debate, not behind closed doors. “The great gold heist continues, but now it goes behind closed doors. Another $500 million in public gold given away to a gold mining company, a valuable piece of public land in Washington State decimated, and no-limits on mine waste dumping. It’s time for the Clinton-Gore Administration to draw a line and end the special favors to mining companies,” said Stephen D’Esposito, president of Mineral Policy Center. “Stealth attacks on environmental protection should not be tolerated, not by this administration, not by any administration. Those in Congress who seek to roll-back environmental safeguards should have the courage to do it in the open,” he added.

“They want to blast away Buckhorn Mountain and dump cyanide-saturated waste over a creek bed. But rather than debate this openly, the rider was attached behind closed doors and drafted by mining industry attorneys. For the sake of our mountain, our streams, and good public policy, the Administration and Congress must draw the line on irresponsible and inappropriate mining,” said Dave Kliegman of the Okanogan Highlands Alliance, a community group made up of members who live near the proposed Crown Jewel mine site. “The Colville Tribe, Governor Locke, and community leaders across the state oppose deciding this issue with a closed-door rider,” he continued

Senator Slade Gorton’s political maneuvering to attach a mining rider on the Emergency Funding bill for hurricane victims and to fund the war in Kosovo, has inspired a national uproar. The rider exempts the controversial gold mine that Battle Mountain Gold Co.(BMG) of Houston, Texas, wants to develop on Buckhorn Mountain in the Okanogan Highlands of North Central Washington from the current Federal Mining Law.

The Okanogan Highlands Alliance a local public interest organization has extensively studied the technical aspects of this mine and the laws and has concluded that the risk to public health, safety and the environment is neither worth the risk nor legal. If the mine could pass all the laws and permit regulations, it might be allowed to go forward, but BMG has continually used it’s wealth and influence to create access to the political process and has gained exceptions to the laws. This political maneuver by Gorton for a special favors for BMG, another in a long series of exemptions, shows that the mine could not pass legal scrutiny.

The Forest Service’s approval the mine was based on the premise that BMG had valid mining claims. Before the BLM and FS could approve a Plan of Operations (PoO) for the mine project, the Department of Interior had to examine the validity of the mining claims. The Plan BMG submitted clearly was over the legal limit of millsites. A company is allowed up to 5 acres of land for mill and waste facilities for each 20 acre mining claim. BMG’s project uses 115 millsite for 15 mining claims, over the limit by about 500 acres. The Interior and Agriculture Departments had no choice but to deny the PoO.

For Battle Mountain to cry crocodile tears and ask favors of congress is indefensible. Feigned ignorance of the law is not a defense. BMG does not need emergency relief. They should obey the law, like everyone else. Too often corporations are treated with deference, and because of the power and influence they wield, they are able to mobilize institutions as commanding as Congress.

Slade Gorton went to Interior and he went to BLM, he asked for a special way around the 1872 mining law for BMG, which for over 125 years, paved the way for the development of mining in the West, the company didn’t happen to like this clause could they kindly get around it? Apparently when the agencies didn’t think BMG should have the privilege of breaking the law, legislation by fiat became the mode of the day.

Senator Gorton, who is reported to have received over $144 thousand in campaign contributions from mining and oil interests, enters the picture, with the intent to subvert implementation of the millsite limitation of the 1872 Mining Law for BMG through a special dispensation from Congress. With the mining industry, he crafted a political solution, behind closed doors so as not to raise a lot of attention.

Gorton’s initial rider would have also changed the mining law to eliminate this millsite provision completely. The conference committee rejected this because it was too far reaching and because most members agreed that reform of the law should be done with open public debate. So Gorton, surrounded by mining industry lobbyists, scrambled to write a more limited exemption, just for BMG, that was approved in the late hours of the conference committee.

Attaching riders to special legislation such as the Kosovo/Hurricane Relief special appropriations bill is unconscionable. The thought that laws do not have to be made in an open forum, but are concocted in the back rooms and and through the influence of special interest groups is repugnant.

There has been a groundswell of outrage at Gorton’s back room deal to exempt Battle Mountain Gold from one of the few limitations in the 1872 mining law. Many Representatives in Congress and Gary Locke Governor of Washington have spoken out against this pollution of the emergency funding bill.

Gorton’s contempt for the laws that protect the environment and fair, open political process are exemplified in his back room political maneuvering for a single multinational gold corporation. How much longer will Congress, the President and the American people put up with this type of special interest corporate privilege, tipping the scales of justice?

On January 19, 2000, the Washington State Pollution Control Hearings Board (PCHB or Board) issued a decision reversing the grant of 16 water rights and a Clean Water Act Section 401 certification to BMG.

The PCHB rejected all of the appealed water permits, delving deeply into the hydrogeologic modeling for the project. The board found that crucial data developed for the models was not credible. BMG consistently used data most favorable to them, regardless of its accuracy.

For example, the Board noted that during the water rights trial, BMG presented evidence that mitigation water would flow rapidly underground to augment depleted streams. At the water quality trial, however, BMG attempted to prove just the opposite &endash; that contaminated groundwater would migrate very slowly through the system &endash; and argued that surface waters were not threatened by mine leachate.

The streamflow and aquatic resource mitigation plans, intended to offset impacts to both water quantity and quality, were derived from these data and models. Lacking confidence in the science, the Board ruled that the mitigation plans were too speculative and error-ridden to provide the level of protection that senior water rights and the environment require.

Of particular concern to the Board was that the proposed mitigation activities would be required to last forever. BMG’s exploitation and reclamation of the site would be concluded in 18 years. Nonetheless, the pipe and valve boreholes draining the pit lake, and the high elevation water treatment plant, would have to be powered and maintained in perpetuity.

BMG proposed posting a large bond to ensure perpetual maintenance of its engineered mitigation. The PCHB found this unpersuasive, stating that “this approach is tantamount to entering a busy interstate highway on an exit ramp against the traffic. The availability of insurance in that circumstance is no more comforting than the proposed bonding here. The focus of our environmental laws must be on preventing pollution and habitat degradation . . . The long-term engineered solutions proposed in this case are legally insufficient.”

The PCHB also rejected the mitigation proposal to protect off-site wetlands in compensation for destruction of headwaters, wetlands, seeps and springs at the mine site. Noting that many of the aquatic sites proposed for mitigation were already protected by existing environmental laws, the Board rejected the aquatic resources plan as “inflating the degree of compensation afforded for the mine.” The Board also relied upon the state’s anti-degradation laws to rule that the state’s “no net loss” policy for wetlands was not satisfied by the plan.

The Board also ruled that the extent and fate of water pollution from the pit lake and the waste rock piles was inadequately assessed. The Department of Ecology acknowledged that the acid mine waste leaching from the piles would violate state groundwater standards. Yet the agency was willing to certify “with reasonable assurance” that the mine would meet standards when an as-yet unidentified water quality treatment plan was adopted. The Board dubbed Ecology’s review “a work in progress” and rejected the certification as legally unsupportable.

Finally, perhaps most importantly for the public, the board ruled that Ecology must look beyond the direct impacts of the mine to its secondary effects on local communities. The Okanogan Highlands is a water-scarce region. The town of Chesaw, at the foot of Buckhorn Mountain, is facing water supply problems today. The mine would add even more population, and more people means more demand for water. The Board ruled that Ecology must consider these “cumulative effects, including the “future demand from exempt wells and reasonably foreseeable development projects, either independent of or prompted by the mine’s development.”

The state-wide implications of this “cumulative effects” ruling are significant. Future developers seeking water rights will have to assess the impact of their proposals on water supply for surrounding communities. While this may present a formidable challenge to development, it is only fair to those of us who live here now and enjoy Washington’s exceptional quality of life.

BMG’s gold mine cannot go forward without water and it is likely that the board’s ruling will halt the project. Not only would the gold mine disrupt the ability of existing water users in the Okanogan Highlands to exercise their rights, its environmental costs are too great. Washington’s water laws guarantee protection for our streams and wetlands. The Pollution Control Hearings Board made good on that guarantee.

The PCHB’s ruling may be accessed via the internet at eho.wa.gov

Highlights of the Ruling:

“59. The only real assurance we have is the proposed bonding that the state may rely on to enforce environment laws in the future. This approach is tantamount to entering a busy interstate highway on an exit ramp against the traffic. The availability of insurance in that circumstance is no more comforting than the proposed bonding here. The focus of our environmental laws must be on preventing pollution and habitat degradation. It is not legally sufficient to proceed with the proposed mine without much more specific knowledge of the potential impacts from the development and meaningful means of preventing and protecting against the adverse consequences of the development. The long-term engineered solutions proposed in this case are legally insufficient.”

“64.  We nonetheless conclude that § 401 Certification is unsupported by the record before the board.[2]  The only available model predicts that the pit-lake will violate water quality standards.  The contingent response to this is to construct a high-altitude water treatment plant that must be powered and maintained in perpetuity.  The long term speculative success of a permanent water treatment facility should not replace the protections afforded by our water quality laws.  Even more speculative is the projected pollution from the two waste rock facilities.  There is significant uncertainty about the characteristics of the pollution, its flow paths, rate of discharge or even the appropriate point of compliance.  It is not appropriate to issue a Certification given the lack of information about the extent and fate of contamination from the waste rock facilities…..  Under these circumstances the more appropriate conclusion is that there is presently no reasonable assurance to support a § 401 Certification.”

Commentary:

This is a great victory for the people and the environment of Washington State. The Department of Ecology was wrong in approving these permits to use and pollute water and the PCHB’s unanimous decision proves that we were right. It defied common sense to allow a multinational mining company to pollute our clean water while denying that same water to local farmers, ranchers and families. It was pure wishful thinking that this plan could pass the legal tests for protection of the environment and senior water rights. The public’s right to clean, free-flowing streams is far more important than any fly-by-night gold mine.

Since 1991 Battle Mountain Gold Co. (BMG) has been developing plans and seeking permits for an open-pit cyanide-leach gold mine on top of Buckhorn Mountain in north-central Washington.

In November 1997, the Washington Department of Ecology granted nearly 500 million gallons annually in water rights to BMG’s Crown Jewel project based on a complex “streamflow mitigation plan,” even though the regional streams fed by Buckhorn Mountain were already fully appropriated.

The water rights trial was held in May 1998, but a decision was withheld pending completion of the “Section 401” water quality certification for the project. The Section 401 permit was issued in January 1999. In that permit, the state acknowledged that the pit lake and runoff from the waste rock piles created by the mine could violate state water quality standards. Nonetheless, the state issued the permit based on that future water treatment plans would compensate for the violations.

The Section 401 certification was issued in response to the Corps of Engineers proposal to issue a dredge-and-fill permit for the project. That permit would allow the proposed mine to obliterate 4,200 lineal feet of streams and several wetlands. In response, BMG proposed a second mitigation plan, this one an “aquatic resources mitigation plan” to preserve off-site wetlands and springs. The trial on the water quality certification was held in September 1999.

Commentary:

This is a great victory for the people and the environment of Washington State. The Department of Ecology was wrong in approving these permits to use and pollute water and the PCHB’s unanimous decision proves that we were right. It defied common sense to allow a multinational mining company to pollute our clean water while denying that same water to local farmers, ranchers and families. It was pure wishful thinking that this plan could pass the legal tests for protection of the environment and senior water rights. The public’s right to clean, free-flowing streams is far more important than any fly-by-night gold mine.