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| Newsletter of the Okanogan Highlands Alliance |
February 1999 No.23 |
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On February 12, 1999 OHA and the Washington Environmental Council appealed Ecology's approval of a water quality Permit for Battle Mountain Gold's mine proposal. The Section 401 Certification is illegal because Ecology cannot reasonably assure, that the large open-pit cyanide-leach gold mine will meet Washington's water quality standards. The permit actually predicts that water quality standards will be violated. OHA also challenges Ecology's latest Addendum to the EIS. In it Ecology accepted BMG's plan to build a facility to treat the water that runs off the walls of the open pit and the pit lake. The lake is predicted not to meet water quality standards. The issue is that Ecology doesn't consider this possibly permanent facility on Buckhorn Mountain to have significant negative impacts. Ecology should prepare a supplemental EIS.
The proposed gold mine would have numerous known and unknown, direct and indirect discharge points to ground and surface waters. These include the following:
It is ironic that while this permit is supposed to insure our water quality will be protected, it literally states just the opposite.
The following is quoted directly from the permit: page 12 section E-
"Waste Rock Monitoring for Potential Impacts to Surface Water:The project will result in discharges of leachate from two areas of waste rock to groundwater. These discharges are predicted to exceed the state's groundwater standards for several contaminants. The Applicant has provided a report showing that all known, available, and reasonable methods of prevention, control, and treatment (AKART) will not be adequate for these discharges to meet the state's groundwater standards at the toe of the waste rock piles. The Applicant has therefore requested alternate points of compliance for the leachate to meet groundwater standards. Ecology has not yet approved the request."
The section goes on to say that several aquatic resources are identified between the waste rock piles and this "requested point of compliance", including wetlands, seeps, springs and the "frog pond".
page 13, section E continues:
"Some of the predicted contaminants in the leachate may also exceed surface water quality standards and acute or chronic criteria, as well as exceed the groundwater standards. In order to prevent impacts to these aquatic resources, the Applicant shall implement monitoring as described in the Technical Memorandum, North and South Waste Rock Facility Hydrologic Monitoring Plan for Aquatic Resources, dated January 7, 1999 (provided by the Applicant)."
Ecology's failure to protect Washington State's waters has disappointed conservationists. The decision to approve the water quality permit was made by a "management team" at Ecology over the objection of the person, who for years, was designated as the one who would make the decision. It is clear that the political deal makers at Ecology do not really understand the complexities of the mine's impacts.
Many of the documents that predict the impacts to ground and surface water are still in draft form. Some of these documents include:
On November 7 1997, the Department of Interior's Solicitor, John Leshy, with the concurrence of the Secretary of Interior, Bruce Babbit, issued a formal memorandum opinion to the Director of the Bureau of Land Management (BLM), entitled "Limitations on Patenting Millsites under the Mining Law of 1872 (Millsite Opinion)." In this opinion, the Solicitor concludes that the Mining Law prohibits the use of more than one "dependent" millsite per mining claim. The gist of the Solicitor's advice on this issue is summarized in the following from the opinion.
"Because the statute does not support issuing patents for millsite claims totaling more than five acres per placer or lode claim, the Department should reject those portions of millsite patent applications that exceed this acreage limitation. In addition, the Bureau should not approve plans of operation which rely on a greater number of millsites than the number of associate claims being developed unless the use of additional lands is obtained through other means."
According to the EIS, BMG's mine proposal has 115-120 millsite claims in association with only 10-15 mining lode claims. Acreage proposed for millsites purposes exceeds the limit of the Mining Law by roughly a factor of ten.
The Record of Decision and the EIS for BMG's mine proposal was based on the perceived "limited discretion" available to federal land managers reviewing operations with valid mining and millsite claims. The EIS based the "Purpose and Need" of the operation on the "statutory rights" of the applicant under the mining law. In this case, there is no "statutory right" to operate on invalid millsite claims. It should be noted that BMG's south waste rock dump is proposed on mining claims not millsite claims. Without evidence that a valuable mineral exists on this site, the mining claims are likely not valid and BMG holds no "rights" under the Mining Law.
In August 1998, BLM's Assistant Director of Minerals, Realty and Resource Protection issued an Instruction Memorandum (IM) to all State Directors to provide guidance in applying the Solicitor's Millsite Opinion. The IM drew a distinction that the Solicitor's Opinion does not recognize. For lands open to operation of the Mining Law, the IM provides that a plan may still be approved despite reliance on excess millsite claims if a State Director determines that such a plan "does not unacceptably conflict with other significant resources within the plan area."
BMG's mine proposal would result in unacceptable resource conflicts. OHA along with Washington Environmental Council and the Colville Environmental Protection Alliance have written to the BLM and Forest Service to explain why they cannot approve a Plan of Operation for BMG' proposed mine. The Colville Confederated Tribes have also written to the agencies on these and other the resource conflicts this mine would have with Tribal Treaty Rights and other related issues.
The Forest Service and BLM will discuss this issue with their legal council before taking future action on the plan of operations for the mine proposal. Top
Would this mine, if allowed as proposed by BMG, ever be reclaimed? The answer is no. This mine would require perpetual water treatment and perpetual controls for distributing surface water, and it would always be an open, bleeding sore on the devastated flanks of Buckhorn Mountain.
Ecology's water resource investigation determined that the mine would shift the hydraulic divide of Buckhorn Mountain to the east. This would mean that after mining more water would flow toward the east into the Toroda Creek basin, rather than the western Myers Creek basin. Because this shift would deprive senior users in Myers Creek of future water, the company has proposed drilling holes through the mountain's side and installing a pipe so that water will perpetually drip out at a level sufficient to restore the hydraulic system, in perpetuity.
During the appeal hearings before the Pollution Control Hearings Board, OHA demonstrated that during dry summer months water will also not escape to Toroda Creek in sufficient quantity. The Company's solution, not surprisingly, is to drill another hole and install a pipe and valve system on the east side of the abandoned pit lake as well.
Three years ago the FEIS predicted that the water quality of the pit lake may not meet state water quality standards. Therefore, the pit lake water, which will both naturally seep into surface and ground waters and be physically diverted through the various "mitigation" bore holes into adjacent surface waters, may not meet state standards.
Again, the Company's engineers provide a "solution." Their plan calls for the installation of a potentially permanent water treatment facility at the edge of the pit lake. This facility would be used to treat the pit lake water prior to release through seepage or through the bore holes. This facility would be required to operate continually and be maintained at least annually - in perpetuity.
Thus, at the conclusion of mining, and at conclusion of what the company calls "reclamation", this mine will require a complicated system of man-made bore holes that will discharge a carefully calculated quantity of water out of both sides of the mountain. All of these facilities would be required to operate and be maintained forever.
This brings us to the definition of "reclamation." BMG claims that it will provide a $31 million bond to make sure that the various engineered contraptions will be maintained forever. However, Washington's reclamation standard does not allow reclamation that only restores the site to a point that man-made hydraulic systems and treatment plants will be perpetually required. If BMG is allowed to develop this mine, the site and it's water conditions would never be restored to a self supporting system on a continual basis. Instead of restoring this mine site, the reclamation proposal would result in a permanent series of pipes, valves and treatment facilities on the remaining landscape of Buckhorn Mountain. Quite simply the mine would be an open-sore on the landscape of Buckhorn Mountain that would perpetually require monitoring by the State and its citizens. Top
The Department of Ecology has put BMG's interests ahead of the viability of the spotted frog.
Listed as a sensitive species in western Washington, the spotted frog is alive and thriving at present on Buckhorn Mountain. Unfortunately their happy home (the frog pond) sits between a proposed waste rock pile and BMG's proposed point of compliance for monitoring acid mine drainage from the waste rock.
OHA has always known these frogs were at risk, we even called the first rough draft of our newsletter "The Spotted Frog Report." We chose not to use the name because history has shown whenever protection of a species was used to defend the environment from destruction, those species become the target of saboteurs. Not wishing any ill will on these little amphibians we chose not to use them as our official mascot.
Part of the mitigation plan calls for moving frogs from their now healthy environment and transplanting them in manufactured wet lands in the event the frog pond dies. The FEIS estimates only moderate success for this plan.
Amphibian expert Klaus Richter has written to Ecology advising them about what's wrong with BMG's plans and studies. No data was collected on water temperature and fluctuation levels, as they pertain to the frog's reproduction schedule, for instance. Only water level and vegetation monitoring is called for in the water quality permit. The monitoring plan does not require ANY water in the frog pond from September to March.
Water quality levels for several pollutants are predicted to be in excess of state and federal limits if monitoring of waste rock piles were done at the toe of the waste rock piles. BMG has asked Ecology to approve their plan to move the point of compliance further down the gradient, hoping that the pollutant levels will be lowered by mixing with clean water along the way. The big problem with this plan is the frog pond is between the waste rock piles and the proposed point of compliance. Both surface and ground water flow directly into this pond.
BMG's experts claim the frog pond will not be affected. Carefully sidestepping the issue of how water in the frog pond is regenerated naturally, current plans call for water levels to be adjusted only during the warm months with treated pit water throughout the life of the mine. BMG and Ecology feel monitoring water levels and vegetation will be enough to protect these little creatures. This plan was approved by Ecology despite criticisms from amphibian and wetland experts.
The fate of the frog pond and wetlands are major issues in OHA's appeal of the 401/water quality permit. Will these innocent creatures be made to pay the ultimate price? Will corporate greed once again take precedent over a "lesser" life form? OHA is dedicated to saving these innocents as well as the healthy flora and fauna that now exist on Buckhorn Mountain. Top