Gold mine rejected by state board

Ruling may sink project backed by Gorton and Department of Ecology

Thursday, January 20, 2000

By ROBERT McCLURE, SEATTLE POST-INTELLIGENCER REPORTER

Comparing plans for a gold mine in north-central Washington to "entering a busy interstate highway on an exit ramp against traffic," the state Pollution Control Hearings Board yesterday shot down the controversial project.

The decision represents a big victory for Washington environmentalists and the Colville Indian Tribes. It is a major setback for Houston-based Battle Mountain Gold and the state Department of Ecology, which had approved the project and argued for it before the hearings board.

The company's plan for the mine at Buckhorn Mountain in Okanogan County, which the company called the Crown Jewel Mine, had previously seemed unstoppable. It had garnered approval from several agencies, including Ecology, whose director called it one of the most-studied environmental permits in state history.

The company even received help in Washington, D.C., when Sen. Slade Gorton, R-Wash., last spring rushed a provision into an unrelated emergency funding bill to aid refugees in Kosovo. Gorton's work relieved Battle Mountain from restrictions on the use of federal land for the proposed mine.

The state's quasi-judicial pollution board, though, ruled yesterday that Battle Mountain's plans to protect the environment "suffer from serious omissions and flaws." The board, appointed by the governor, termed the plan "too speculative and error-ridden."

Battle Mountain would have to fork over millions of dollars to the state to cover cleanup costs, but that bond does not relieve the Department of Ecology of its responsibility to carefully review the project, the board ruled.

Relying on the bond money to fix environmental problems "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 board's ruling said.

Rachael Paschal, a Spokane public-interest water lawyer representing the Washington Environmental Council and a citizens group called the Okanogan Highlands Association, praised the board for persevering in an incredibly complicated case.

"There were some technically complex issues involved, and they understood exactly what we were arguing," she said.

The case turned on two key issues. The first was how Battle Mountain would assure that enough water would remain in the already overcommitted creeks in the area. The state proposed to grant the firm almost 500 million gallons annually in new water rights.

Battle Mountain's plan to make up for this, Paschal said, was a "speculative, Rube Goldberg" arrangement. It involved the construction of a reservoir, pumping water up the mountain and then returning some of it through quarter-mile-long holes drilled in the mountain. The water would have to be treated to remove pollution -- forever, which the pollution board found problematic.

Just prior to the hearing before the pollution board, the company changed its plan for replacing the water, demonstrating "substantial uncertainty" about whether the plan would work, the pollution board ruled.

"At the 11th hour, they admitted: 'We got it wrong,'" said Stephen Suagee, attorney for the Colville tribes. "Then they changed it and said, 'This time we got it right. Trust us.'"

The other key issue was water pollution.

After the company dug a pit 800 feet deep -- 350 feet below the water table -- the pit would fill up with water containing an undetermined level of acids and metals leached from the soil.

Battle Mountain did simulated tests on the water's pollution levels, but the tests lasted only 15 weeks, when in fact the pit would be there forever, the board pointed out.

Also, the huge piles of rock dug out of the pit -- some 92 million tons covering nearly half a square mile -- would surely pollute underground water, which would eventually flow into nearby wetlands, the board found.

Battle Mountain Gold was "surprised and disappointed and outraged," said firm spokesman Les Van Dyke, "given the amount of work that's been done not only by Battle Mountain, but also by all the agencies that have been involved."

"We have generated massive amounts of paperwork, literally filling rooms, studying every possible aspect of this and finding it to meet the criteria," Van Dyke said.

He said the company's board of directors would decide whether to appeal.

"I can't speak for the board, but certainly we have a history of appealing (similar decisions) and we have been successful."

Jay Manning, an attorney who represented the Department of Ecology in arguing that the mine should be allowed, said, "I'd be amazed if they didn't appeal."

However, Manning said he practiced before the pollution board and a sister panel for 15 years before leaving to go into private practice last year, and when it comes to appeals, the boards are "overturned quite infrequently."

A major reason for that, he said, is the complexity of the cases.

"The cases tend to be complicated, with sets of difficult facts, and those boards over time have come to have a fairly high level of expertise in the relatively arcane areas they practice in," he said.

If the case were appealed, it would go before a Superior Court judge. But that judge would review only the board's legal conclusions. He or she would not, except in extraordinary circumstances, delve into the factual issues that formed the meat of the decision yesterday.

Joan Marchioro, an assistant attorney general representing Ecology, said she had not had time to read the decision carefully. "We need to take a look at how they got to their conclusion and consider whether to appeal," she said.

Suagee, the Colville tribes' attorney, called the ruling "unexpected good news." The tribes had opposed the project partly because they have hunting and fishing rights on the mountain.

"They had a lot of momentum behind it and a lot of money behind it," Suagee said.

"Here we finally got some important issues in front of a body with some technical expertise and essentially out of the the line of political fire ... . and they found this plan wanting."

P-I reporter Robert McClure can be reached at 206-448-8092 or robertmcclure@seattle-pi.com

Here is the link to the article in the Post Intelligencer newspaper.

http://www.seattle-pi.com/local/mine20.shtml 

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