Pollution Board Rules BMG Mine Plan Insufficient

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 http://www.eho.wa.gov/searchdocuments/2000%20Archive/pchb%2097-146%20final.htm

The following are some highlights from 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."

Washington State Department of Ecology announced it would NOT file an appeal of the January 19, 2000 ruling by the Pollution Control Hearings Board (PCHB) denying permits for Battle Mountain Gold Company's (BMG) proposed large open pit cyanide gold mine. BMG did file a lone appeal of the PCHB ruling in Superior Court. State Superior Court does not have a cross appeal provision so OHA, along with the Washington Environmental Council (WEC), the Center for Environmental Law & Policy and the Colville Confederated Tribes also petitioned the Court to review some of the legal issues we brought up, that the PCHB ruled against in our appeals of the water rights and water quality permits for the mine.
Even though Ecology did not appeal the PCHB ruling, they have intervened in the lawsuit in order to participate in the proceedings.

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.

The following are paragraphs from the ruling to show how strongly the Board felt in their decision:

"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."