A year ago on January 12, 1999 the Federal District Court in Portland, Oregon ruled against OHA and the Colville Confederated Tribes regarding our appeal of the Environmental Impact Statement (EIS) for the mine. We believe the District Court erred so we have asked the Ninth Circuit Court of Appeals to review the case.
Our paramount concerns are that the EIS and ROD do not comply with National Environmental Policy Act (NEPA) and the Administrative Procedures Act (APA).
OHA's appeal focuses on whether the federal government can defer analysis and consideration of environmental impacts and mitigation measures for those impacts on federal lands, to the state permitting process.
We also question whether the Forest Service's (FS) choice of the open pit alternative in the EIS complies with their own mandated regulation to "minimize adverse impacts on surface resources" when it rejected the less destructive and economically viable underground alternative in favor of the mining company's preferred open-pit alternative.
The NEPA violations can be summarized as follows: (1) failure to review at all the substantial mitigation needed to prevent the pit lake itself from violating water quality standards; (2) failure to adequately analyze the mitigation/treatment needed to prevent the water that will eventually discharge from the overflowing pit lake from violating water quality standards in receiving streams, including the failure to document the effectiveness of the numerous potential treatment methods listed in the FEIS; (3) failure to analyze plans to mitigate pollution formation and release from the waste rock dumps; (4) abdication of the duty to adequately analyze mitigation measures to future state permitting actions; and (5) for all of these fatal errors, the failure to ensure that the public and other parties (e.g., federal Environmental Protection Agency) have a full opportunity to review mitigation issues prior to the Forest Service's decision in the ROD.
The Case
The 24 hour - 7 day a week mine would be the largest mine ever proposed in the State and would have unprecedented impacts. This case raises fundamental questions about the federal government's role in protecting public lands and natural resources from one of the most, if not the most destructive, uses of public lands in the nation. The immense scale of impacts are not seriously debated in this case. What is debated is whether maximizing the profit margin for Battle Mountain can override the FS duty to protect the public lands entrusted to its care.
The EIS for the mine is a classic example of a "permit first, ask questions later" approach to NEPA that has been rejected by all levels of federal courts in the past. The excuse for the failure to collect important information, is the potential for overlapping jurisdiction between state and federal agencies. Much of the critical mitigation reviews are put off until some undetermined time in the future. The failure to examine this case to its fullest extent jeopardizes the FS responsibility to minimize adverse impacts. In addition, this violates the FS trust responsibility to the Colville Tribes.
By rejecting its own environmentally preferred mining alternative in favor of what is essentially the BMG's chosen (and much more destructive) mining method, the FS violated its duty under its Organic Administration Act to "preserve the forests from destruction." Under the Act's implementing regulations, the agency is bound to "minimize adverse impacts on National Forest System surface resources." The FS has utterly failed to meet these overarching mandates. The underground mining alternative would have eliminated the two most destructive uses of the surface, the open-pit and the two massive mine waste dumps.
Apparently, the FS and BMG's argument is that the agency's duty to "minimize adverse impacts to ... surface resources" is somehow met by choosing the alternative that literally either blows up (via blasting of the mine pit) or obliterates (under the waste dumps) those very surface resources.
Partially reducing the extreme damage caused by the company's preferred open-pit method does not equate to "minimizing" surface resource damage -- especially when the FS admits that the much-less destructive underground mining method is both economically feasible and reasonable.
In September 1999, the Pollution Control Hearings Board (PCHB) heard the oral arguments in OHA's appeal of the water quality certification under Section 401 of the Clean Water Act that the Department of Ecology (Ecology) issued to Battle Mountain (BMG).
At the hearing OHA presented evidence establishing that;
• Water in the proposed post-mining pit lake and discharges of leachate from the proposed waste rock piles will violate water quality standards;
• The proposed Crown Jewel Mine will violate Washington's anti-degradation policy by causing unmitigated direct and indirect impacts to aquatic resources; and
• Ecology's decision failed to consider alternatives identified in the FEIS during its 401 certification review, and the decision to issue only an Addendum to the EIS for the proposed perpetual pit lake treatment system violates SEPA.
"Reasonable assurance" that the mine would meet water quality standards is the criteria in the law. According to the dictionary, assure means; to make certain and put beyond doubt. Ecology appears to believe that a "good guess" based on suspect data, scant evidence, and flawed models is the equivalent.
The staff for Ecology have no experience conducting or reviewing geochemical or hydrological modeling with open pit mines or with projects the size of the proposed Crown Jewel Mine. Faced with an undisputed history of mine failures, it is simply not reasonable to approve a 401 certification based on the limited sampling and theoretical models that have been done.
Mine is predicted to violate water quality standards
According to the 401 certification:
The FEIS for the project includes a prediction that water in the filled pit lake will exceed the Washington State Freshwater Chronic and Acute Criteria for one or more toxic water pollutants.
There is no dispute that the geochemical modeling done prior to issuance of the 401 certification predicts that the proposed pit lake will exceed water quality standards. Despite these predictions, BMG disavows the geochemical modeling by arguing that it is based on "conservative" assumptions. Ecology does not have any models predicting that water quality standards can or will be met.
Dr. Ann Maest is an aqueous geochemist with 15 years experience in the fate and transport of contaminants through waters that have been extensively impacted by industrial activities such as mining testified for OHA.
Dr. Maest testified that there is a high degree of uncertainties about the chemical characterization of the predicted water quality of the pit lake and leachate from waste rock because; not enough samples were used; the tests were not long enough and; the data lacks validity. In 1994 tests were only run for 20 weeks and the figures they used for their calculations were from week 15, while the samples were still changing. This is also a significantly shorter testing period than EPA and industry standards. Recognizing this problem, longer tests were performed in 1996, 1.5 years later, on the same samples. This exceeds EPA recommended holding times by a factor of three. There do not seem to be any records to show how the samples were stored, but we do know that they were filtered.
Washington State authorizing new superfund site
It is Ecology's duty to make certain that the water quality is be protected. Instead, Ecology required only a contingent pit treatment plan. Once modeling or monitoring demonstrates that a violation will occur, BMG is afforded up to 7.5 years to install the system and eliminate the water quality exceedence. This is far from the required assurance that water quality standards will not be violated. Indeed, it is tantamount to an assurance that water quality standards will be violated. The Department of Ecology's decision to delay implementation of the pit water treatment plan until a violation has actually been detected or monitored violates the Clean Water Act.
There is no dispute that the contingent pit water treatment plan that is contemplated on Buckhorn Mountain would need to be perpetual. There is also no dispute that Ecology has never before issued a 401 certification requiring perpetual treatment. In fact, there is no evidence that Ecology has ever authorized a Clean Water Act permit of any kind, prior to the start-up of an operation, that anticipates the operation will need perpetual treatment after the operation closes. This situation is unique to BMG's proposal.
Ecology's decision sets a dangerous precedent in Washington's water quality policy. While Ecology has certainly addressed perpetual treatment in terms of Superfund clean-up sites, it is an entirely different situation where Ecology anticipates a facility becoming a Superfund site prior to start-up. Perpetuity is a long time. A facility that anticipates a need for perpetual treatment should not be permitted. The State should not be in the business of authorizing new superfund sites.
Waste rock leachate would violate water quality standards.
The proposed Crown Jewel Mine would result in the creation of two large waste rock piles. The north waste rock pile is proposed to hold approximately 53,000,000 tons of rock and cover approximately, 161 acres. The north waste rock pile is proposed in the headwaters of Nicholson Creek. The south waste rock pile is proposed to hold over 39,000,000 tons of rock and cover approximately 127 acres. Groundwater flow from the south waste rock pile go to Marias Creek.
As with the proposed pit lake geochemical modeling, geochemical modeling for discharges from the proposed waste rock also projects that the leachate will exceed state water quality standards.
According to the ' 401 certification pp. 12-13:
"The project will result in discharges from leachate from two areas of waste rock to groundwater. These discharges are predicted to exceed the state's groundwater standards for several contaminants. . . . .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."
There should be no dispute that leachate from the waste rock piles will violate water quality standards at the toe of the waste rock. Robert Barwin of Ecology apparently feels comfortable enough with the preliminary information to provide the "reasonable assurance". even though Ecology does not understand the complex hydrogeologic flow paths for the migrating leachate.
The north waste rock pile is within the surface water drainage of the Frog Pond. The groundwater flow toward the pond originates underneath the proposed waste rock pile. If leachate from the waste rock enters the groundwater, it could flow directly into the Frog Pond -- a mere 300 feet away.
To date, it has not been determined that a contaminated plume could be adequately cleaned up prior to discharging into the Frog Pond. At best, monitoring will allow Ecology to detect a contaminant plume. There is nothing in the record that provides reasonable assurance that BMG or Ecology could prevent discharge of such a plume once detected. This falls far short of the required assurance.
Washington's anti-degradation policy
The primary water quality standard invoked by impacts to aquatic resources is the anti-degradation policy. Washington's anti-degradation policy comes both from state statute and federal law. It insures that:
". . . . standards of quality established for the waters of the state would not be violated. Wastes and other materials . . . shall not be allowed to enter such waters which will reduce the existing quality thereof,. . . "
Further, U.S. Supreme Court described it as:
" . . . a policy requiring that state standards be sufficient to maintain existing beneficial uses of navigable waters, preventing their further degradation."
Consequently, in order to approve a 401 certification in compliance with the anti-degradation policy in Washington's water quality standards, the state must have reasonable assurance that existing beneficial uses are not degraded. The record before the PCHB amply demonstrates that the existing beneficial uses and the on-site aquatic resources, including headwater streams, wetlands, seeps and springs will not be protected and will be significantly degraded.
The destruction of high elevation headwater streams and wetlands is not mitigated by restoration and enhancement of off-site and out-of-kind valley bottom wetlands
Throughout the 401 review process, BMG produced numerous versions of its Aquatic Resources Mitigation Plan. While Ecology devoted a significant amount of time to reviewing and commenting on these plans, the presumption was that the mine and its related facilities were set -- Ecology did not consider alternative mine plans.
The anti-degradation policy is clear: a bright line existing - beneficial uses shall not be degraded. Yet, in this instance, Ecology has accepted that the existing beneficial uses will be destroyed. Ecology, by issuing the 401 certification, has accepted -- in its "professional judgment" -- that the destroyed beneficial uses are adequately mitigated by the off-site and out-of-kind restoration and enhancement projects. Obviously, professionals can disagree as to whether these functions are replaced. Until, and unless, Ecology develops a sufficient quantitative measurement of wetland functions, the PCHB should reject the concept of destroying headwater wetlands and streams and replacing them with wetland or stream restoration or enhancement proposals in valley bottom locations.
The off-site and out-of-kind mitigation proposed in the Aquatic Resources Mitigation Plan does not meet the criteria for allowing such mitigation established by Ecology
Even if the Board accepts the concept of off-site and out-of-kind mitigation based on professional judgment, it should review carefully the instances where Ecology allows such mitigation. The Aquatic Resources Mitigation Plan for the Crown Jewel project does not meet these criteria.
Essentially, Ecology has made a policy decision that it is acceptable to eliminate high elevation headwater streams and restore them with low elevation wetlands. This policy call, however, was made without any qualitative analysis of the rarity or occurrence of high elevation headwater streams as compared to the rarity or occurrence of low elevation, valley bottom wetlands. Off-site and out-of-kind mitigation should not have been allowed in this case. If on-site and in-kind mitigation could not be accomplished on Buckhorn Mountain, the 401 certification should have been denied.
The Aquatic Resources Mitigation Plan does not meet the "replacement ratios" established by Ecology
Again, if the Board determines that off-site and out-of-kind mitigation is appropriate for the Crown Jewel project, it should review carefully the compensatory mitigation replacement ratios established by Ecology and compare those with the replacement ratios approved in the Aquatic Resources Mitigation Plan.
The Department of Ecology improperly provides mitigation credit for uplands
The Department of Ecology is providing significant mitigation credit for enhancement and preservation of uplands. For example, Ecology is giving credit for 72 acres of uplands in Myers Creek and credit for 23.2 acres of uplands in the Pine Chee area. Nowhere in Ecology's written policy does it allow mitigation credit for protecting uplands. ( pp. 13-17, How Ecology Regulates Wetlands).
Not only does Ecology's written policy not provide for mitigation credit for uplands, but providing such credit surely violates Washington's anti-degradation policy. Taken to its logical conclusion, an applicant could simply buy 100 acres of uplands virtually anywhere, put a fence around it, and obtain mitigation credit for between five and ten acres of destroyed wetlands. Ecology does not believe it has authority to regulate the destruction of uplands at a project site nor, therefore, should it be allowed to provide mitigation credit for the protection of uplands at an off-site location.
Even if the Board determines that off-site, out-of-kind mitigation appropriate in this area, Ecology significantly inflated the available mitigation credit of the proposed Aquatic Resources Mitigation Plan. The proposed mitigation fails to satisfy Ecology's written policy establishing mitigation ratios for lost wetlands and assigns credit for mitigation in a matter not supported by any written policy. As a consequence, the Aquatic Resources Mitigation Plan fails to comply with the anti-degradation policy.