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Water Warriors 

by Jane Fritz


The motivation was pure and simple: All he wanted was a decent drink of water. Bill Martin left the San Francisco Bay Area for a new life in northwest Montana. Burned out from fighting environmental battles to protect California's remaining clean water, he escaped city life, bought land near Troy in Lincoln County, and built a log home along pristine Lake Creek. He got a job planting trees for the Forest Service, and the Vietnam veteran welcomed the promise of the good life. But life today, like the assurance of clean drinking water, is not that simple.


Martin soon learned that American Smelting and Refining Company (ASARCO), a multinational mining corporation from New York City, was coming to town to cash in on its mining claims in the wild Cabinet Mountains. The company proposed building a hard rock silver and copper mine and promised jobs and prosperity for a community feeling the decline of timber profits.


One problem, though: The mine's 300-plus acre tailings impoundment would be located near Lake Creek. An earthen dike would be all that would separate Lake Creek's pristine water from mining wastes. Martin wanted anonymity, not re-entry into citizen activism, but the water quality of Lake Creek, then his and his children's source of drinking water, was made vulnerable. What else could he do? He was already living in the last best place. There was nowhere else to move except deep into the study of hard rock mining issues. So Martin helped found the Cabinet Resource Group (CRG) -- a citizen watchdog on mining issues in northwestern Montana. Another activist, Cesar Hernandez, a Heron, Mont., resident from Sanders County and a friend of Martin's, eventually joined him in the cause. The group has been a thorn in ASARCO's side ever since.


That was 28 years ago. The Troy Mine was eventually built and began round-the-clock operations in 1981 until it was mothballed in 1993. Bill Martin still lives in the same place, but he says Lake Creek has changed. He claims the water quality isn't what it used to be. It doesn't support the aquatic life that it once did, and tailings sands now silt the creekbed from the days when the mine was running full throttle. And there's a lot more algae in the creek than there ever was, a sure sign of degradation. He admits that more people have moved into the area, and logging, particularly along the stream, has had a deleterious effect. Mine waste, however, is easy to spot in the streambed, he says.


"The tailings are a kind of off-white color not normally found in the soils around here. So when you see that color, you have a pretty good idea where that's coming from," Martin explains. "We've had several breaks... one dumped over 500 tons of tailings into the creek when there was a break in the pipeline from the mine down to the tailings pond. It turned the creek the color of coffee with cream in it. At other times, we've had slumps from the toe ponds, erosion coming off the face of the dike and large blowouts down by the creek. I remember one big enough to drop a Volkswagen in, and the state and the mine claimed that there was no connection."


As a forester, Martin could tell by the types and size of riparian plants growing along the stream that these were recent events.





A Replay of the CdA Watershed? -- Today Martin is a stonemason. He fashions hearths and chimneys out of the same rivette-formation quartzite that contains the copper and silver ore once mined at the Troy Mine 24 hours a day, seven days a week, for 13 years. As he stacks rocks in his yard gathered for his masonry work, he ponders the cost of building another hard rock mine in the surrounding mineral-rich mountains -- the proposed Rock Creek Mine. The amount of waste generated in hard rock mining is staggering, he says. According to Martin, when the Troy Mine was running, it gleaned nearly 15 pounds of copper and an ounce-and-a-half of silver out of a ton of rock. They were only grossing around $30 for both the silver and the copper, he says.


"They have to go through all the processing, shipping, handling; the costs are high. As building stone, I gross $140 a ton and all you have to do is pick it up and ship it somewhere." Martin wonders if it makes sense to waste another mountain to such a costly enterprise, especially when the mountain is in an official wilderness area.


Allowing mining claims to be developed in designated wilderness areas was a concession made when Congress passed the 1964 Wilderness Act. The Rock Creek Mine would be the first mine actually to be sunk deep beneath a wilderness area -- the Cabinet Mountain Wilderness -- and one of the first protected by Congress. It's also a place that Teddy Roosevelt favored for his hunting expeditions.


The Rock Creek Mine would be three times the size of ASARCO's Troy project and one of the largest silver and copper mines in North America. Its tailings impoundment and slurry line would lie adjacent to Rock Creek, home to endangered bull trout and only a quarter-mile from the Clark Fork River. Wastewater from the mine will be dumped directly into the river -- up to three millions of gallons a day. Just 25 miles downstream and across the Idaho state line is Lake Pend Oreille. Water-quality impacts from Rock Creek are a major concern for those living in the watershed. Some community leaders in Sandpoint, who worry that they're in for a replay of the Coeur d'Alene watershed's problems, say it puts their recreation-based economy squarely at risk.


ASARCO released the draft environmental impact statement (EIS) on Rock Creek 14 years ago. Martin, Hernandez, others in CRG and those not associated with the group have scrutinized the issue longer than that. Their concerns resulted in ASARCO's need for a Supplemental EIS to be issued, eliciting more public scrutiny. Their efforts also spawned the Rock Creek Alliance (RCA), an Idaho citizens' group headquartered in Sandpoint. While CRG is not against mining, per se, RCA is clearly against the permitting of the proposed mine and has brought in big-name stars like Jackson Browne and Bonnie Raitt to do benefit concerts for their cause. After years of absorbing the information in reams of documents and after spending hundreds of hours doing research and attending hearings and meetings, consuming the lives of these citizen activists, they are undaunted.


You do what you believe is necessary in order to protect water, wildlife and the land, says Hernandez. "It's been 20 years. I'll do it another 20 years. No sweat."





Familiar Faces -- Then, in 2000, ASARCO sold most of its interest in Troy and Rock Creek to a newly formed, Montana-based mining company -- Sterling Mining -- adding a mysterious dimension to the issue. Cesar Hernandez is very suspicious of why ASARCO sold out. He fears that Sterling will be the "fall guy" for ASARCO, which is teetering on the edge of bankruptcy. It would spell trouble for reclamation efforts on the Troy Mine if the smaller company can't meet state bonding requirements. Right now the Troy Mine is undergoing reclamation bond review. The bond recently was raised from $2.75 million to $10.1 million, and there's a possibility of greater increases. Sterling balked at the rise in the bond amount, but Hernandez says if the tailings impoundment failed because of structural problems, something CRG considers a possibility, then the taxpayers would probably wind up footing the bill because the costs would be too great for a small company like Sterling.


"The Montana taxpayers have been burned so many times -- enough already," says Hernandez. "You have to wonder how many times does this have to repeat itself?" And he adds that in the bonding review process for the Troy Mine, the state of Montana is not considering a worst-case scenario.


Hernandez also muses that ASARCO's divestiture could be another ENRON in the making, with big payoffs to company leaders before a corporate downfall. Sterling Mining is a new company, but the principals are no strangers to mining. The president and CEO for Sterling is Frank Duval, and Hobart Teneff is a director. They co-founded Pegasus Gold Corp. in 1974, the company that owned and operated the Zortman-Landusky Gold Mines in north-central Montana until its bankruptcy in 1998, a move that left state taxpayers with millions of dollars in cleanup and reclamation costs.


In 1988, the federal Securities and Exchange Commission (SEC) charged Duval and Teneff with violations of SEC laws during their tenure with Pegasus. The two men consented to an U.S. Court injunction permanently enjoining them from future violations. The Zortman-Landusky mines are the poster children, says Hernandez, for failed federal and state regulatory and enforcement efforts to protect both the environment and local communities from irresponsible mining. What Duval and Teneff's questionable past means for both the Troy Mine and proposed Rock Creek Mine is anybody's guess, but the opponents' fears are deepened by the company's stated mission at Rock Creek, which is to generate $1 billion in profits. Although it is a Montana company, Sterling's corporate office is located in Veradale, Wash.


Last year at Christmas, the state of Montana and the U.S. Forest Service, the permitting agencies on the proposed mine, finally gave Sterling a green light for Rock Creek to be built. A coalition of six environmental groups including CRG and RCA, as well as Noxon resident Jill Davies, immediately appealed the decision.


Then in March 2002 the official decision was surprisingly rescinded while the U.S. Fish and Wildlife Service reconsidered its biological opinion on impacts to bull trout and grizzly bears. It was a temporary setback for Sterling. Meanwhile, it gave time for the enviros to continue their fundraising efforts and to do more research. Nine months later, the Rock Creek mine is still in limbo.





Shades of Erin Brockovich -- Then several months ago, as Bill Martin tells it, a miracle happened. For years he had heard rumors about shady practices up at the mine but he was never able to get anyone to come forward and take a stand on the record. A few times he got close. Finally a whistleblower appeared whose allegations about the Troy Mine might spell trouble for the Rock Creek Project. Forrest "Jim" Meyer, a Troy resident, neighbor and former miner at ASARCO's Troy Project for almost 10 years, contacted Martin with stories alleging that the company didn't always follow the law in regards to mining wastes.


Meyer claimed that barrels of mining wastes were dumped secretly after midnight into the tailings impoundment. He also claimed seeps and blowouts in the dike of the impoundment were more common than people knew. Sometimes breaks in the dike spouted tailings that "looked like Old Faithful" with the residue ending up in Lake Creek. Like Martin, Meyer lives along Lake Creek. He, too, had noticed the changes in water quality, especially the fishing, and believes it's because of the mine. He stepped forward because he didn't want to see the same consequences for Rock Creek.


"None of us ever knew what we were burying; they never told us, but it was always at night," says Meyer. "I grew up on this creek [Lake Creek], and I care for it. [ASARCO] made promises they didn't keep. I witnessed an awful lot down there, and my coworkers have the same stories."


Meyer also claims to have discovered around a hundred barrels marked "cyanide" hidden in the woods up by the mine's boneyard. Cyanide is a substance that is not permitted to use at Troy except for a small quantity in the lab. The company has denied this allegation, but Meyer says he even took his wife up to see the stashed barrels as a witness.


Attorneys were eventually called in and CRG started looking for corroboration of Meyer's claims. With Meyer's revelations about mine activities and, in his opinion, Montana's Division of Environmental Quality's (MDEQ) inadequate monitoring of these activities, the story began to take on the theme underlying the movies A Civil Action or Erin Brockovich, that of corporate cover-up.


Then, CRG claims, another former ASARCO employee, a geo-chemist who worked in the lab at the Troy mine, came forward to corroborate some of Meyer's allegations and admitted to participating in at least one of the burials after dark. The CRG says the man wants to remain private as long as he can but will come forward publicly when the time comes.


Martin believes that with both men's testimonies, the impact of illegal activities at Troy might reverberate right into the courtroom appeal hearings on Rock Creek. Troy has always been touted as the "analog for Rock Creek," the model mine, by both the mining companies and state regulators. He says trusting the same companies and regulators to do a responsible job at Rock Creek would be foolish.


"As they say, the past is prologue. What we've seen... and we've never yet seen anything different, we can expect that this is what will continue to happen," says Martin. "We're not opposed to mining. I drive a car, and we all use minerals, but we should get them appropriately."





Letting the Courts Decide -- Neither the mining companies nor Montana DEQ have much to say about Jim Meyer's allegations.


"Anything that came in barrels got used up in the process," ASARCO's Chris Pfahl maintains, "except for oil and solvents, which were recycled off-site. There was nothing around there to be buried." Both Pfahl and Frank Duval of Sterling Mining believe CRG's legal action is "grasping at straws" because the group hates to lose the war over Rock Creek. Nevertheless, both companies will cooperate fully with agency investigators and the court.


Montana DEQ's enforcement director, John Arrigo, says that a visit to the Troy impoundment in mid-November by one of his staff garnered no evidence of buried waste. The investigator used a metal detector at several places but found no rusting barrels. Choosing test sites was essentially guesswork, since the agency really doesn't know where to look for evidence of wrongdoing. Arrigo complains that CRG and Hernandez, in particular, are withholding from DEQ helpful information such as location maps that reveal Jim Meyer's pinpointed burial sites. But neither has Arrigo's office contacted Meyer directly since the Notice of Intent to sue was issued back in September.


"Pollution is a concern and so are violations to the Clean Water Act, but I don't know if we have either here. I really don't think so," says Arrigo. He says the state is willing to go to court if need be, but he believes the agency has a good record of enforcing Montana's water quality laws regarding the Troy Mine.


It looks as if the federal and state regulators and the mining officials will soon get a chance to defend their positions before a judge. On Dec. 20, in U.S. District Court in Missoula, attorneys for CRG filed a complaint against ASARCO, Sterling and Genesis for violations against the Clean Water Act, the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The complaint charges that the mine illegally discharged unauthorized pollutants through seeps and leaks from the tailings pond into Lake and Stanley creeks, illegally disposed of solid and hazardous waste into the tailings impoundment, possibly causing "an imminent and substantial endangerment to health or the environment," and failed to notify the appropriate state and federal regulatory agencies of the dumping of hazardous and toxic materials into the tailings waste stream.


If any of these charges prove true, penalties to the companies could be in the tens of millions of dollars. Cabinet Resource Group is asking that the defendants pay fines, remediation and restoration costs of $25,000 per day for past and present activities dating back to and possibly before the mine's closure in '93.


The truth about the mine's activities will eventually be decided in court. Although nervous about being on the hot seat, Meyer says he could no longer ignore what he knew and unwittingly let happen for fear of speaking out on an issue that could have cost him his job. Meyer claims that he contacted MDEQ numerous times about the midnight burials and pollutants getting into Lake Creek, both while he worked at the mine and after it closed. The agency never responded. Finally determined to take action, in 1995, he hired a private investigator to document his claims, but the firm was reluctant to go any farther on the case because of ASARCO's stature.


Frustrated, Meyer finally filed a formal citizen complaint to DEQ in March 1996. It was answered in part by a DEQ activity report stamped "draft." To this day, Meyer says no one from DEQ has asked him to show evidence of his claims, nor has any follow-up or final report been found by the agency documenting his original complaint. After learning of CRG's opposition to the proposed Rock Creek mine, Meyer finally contacted the citizen group with his complaints.


According to Hernandez, Montana's DEQ really "dropped the ball" on Meyer's complaint about Troy Mine activities, and it's not the first time they've gone to court against ASARCO. In 1997, they filed suit under the Clean Water Act for major tailings dam blowouts that caused pollution of Lake Creek. They settled out of court with ASARCO for a half a million dollars to be spent in extensive ground well monitoring at the Troy and Rock Creek tailings pond sites. Summit Enviro-Solutions of Minneapolis did the work, which was completed last year. Its report showed a direct hydrologic connection between the tailings impoundment -- where the alleged burials took place -- and Lake Creek. Lawsuits against ASARCO are nothing new.





Appeal Happy -- Tom Reid is currently the permitting supervisor for Montana DEQ's Water Protection Bureau and the agent who dealt with Jim Meyer's 1996 complaint. He doesn't remember the details of Meyer's complaint, but does remember talking to him on the phone. After writing up a draft response, he passed it on to his supervisor. No one knows what happened after that. Meyer says that he never heard from DEQ again.


Regardless, Reid believes that over the years, regulators have never found any evidence of pollutants in Lake Creek from seeps and leakages in the tailings dam. He also thinks that comparing Troy with Rock Creek in regard to water quality issues is like comparing apples and oranges: Troy had no discharge permit, but Rock Creek does. In fact, Reid helped craft the 55-page MPDES discharge permit for Rock Creek, which was granted a year ago by the state. It will allow up to 2,500 gallons a minute of wastewater from the mine to be dumped into the Clark Fork River as effluent. And as far as the Rock Creek tailings impoundment goes, he believes using a new "paste" technology will prevent any mining wastes from leaching into Rock Creek.


Standing in a field near the proposed tailings site, Jill Davies of Noxon, Mont., is not so sure. She tries to imagine how a 300-acre impoundment that is also 300 feet tall will not negatively impact the watershed in her backyard. An activist throughout the Troy Mine process, she simply doesn't trust Sterling Mining or the regulatory agencies to protect water quality at Rock Creek. Since 1987, she has entered 15 letters into the formal EIS record about her objections to a mine at Rock Creek. Each time she cited water quality concerns, and each time her letters were never acknowledged in formal documents, something she finds shocking. Subsequently, she no longer has faith in the laws that govern hard rock mining.


Like Bill Martin, Davies has a very simple concern -- clean water. But unlike the pristine Lake Creek that Martin remembers, Davies claims that Rock Creek is already a vulnerable stream. She says it has metal concentrations that match or exceed water quality standards that impact aquatic life. And since part of the year the creek runs dry and the stream runs underground, something the old-timers in the area say never used to happen until recently, taking more water out of the stream because of mining will only exacerbate the impact on aquatic life, especially bull trout. It's why Davis appealed the Record of Decision on Rock Creek in February 2002 -- the only individual to do so -- because going forward would violate the Clean Water Act. When it comes down again, Davies plans to appeal the decision once more and at every other opportunity until they listen to her.


"It's time to forge a new direction with our need for metals in this technology-rich society, and it's not building new mines," says Davies. The answer, she says, is not litigation, but to recycle metals out of the waste stream. For example, some of the largest deposits of copper in this country are found in municipal waste dumps.


And like Davies, Martin, Hernandez and others will continue to scrutinize the remediation at the Troy Mine and the permitting process for Rock Creek. Collectively, they might find that the true costs of hard rock mining will be more than anyone, including the mining companies, can afford to pay.


"No matter what, we need to keep the water clean," Martin insists. "Water is far more precious than the minerals found in these mountains."
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