by Jane Fritz

Under the cover of darkness, using a bulldozer, a crew of workers from a silver and copper mine in Troy, Mont., buries dozens of 55-gallon drums of hazardous waste into the mine's tailings impoundment area. The impoundment has no liner to protect it from polluting groundwater, so in time the barrels rust and start leaking. Their toxic contents eventually seep into adjacent Lake Creek, a mountain stream bordered by homes. Over the years, Lake Creek's residents find that some days the water is off-color and tastes funny. Now and then it's the color of morning coffee with cream. People wonder if the fish they catch are safe to eat. Some worry that mine wastes are polluting the Kootenai River.

Is this scenario fact or fiction? Lake Creek resident Bill Martin of Troy says it will be up to the courts to decide.

Martin is also a spokesman for the Cabinet Resource Group (CRG), an environmental group in northwestern Montana that for 25 years has been a citizen watchdog on local mining activities. The group recently filed a formal notice of their intent to sue the U.S. Environmental Protection Agency (EPA) for failure to regulate hazardous waste disposal at the Troy mine, which has been inactive since 1993.

The CRG complaint filed in Denver, Colo., claims that at least two former mine workers at Troy have admitted to dumping barrels of industrial waste in the tailings pond -- at night, to avoid raising suspicions as to their contents. The metal drums containing various chemicals allegedly were buried in the dike's retaining walls and within the impoundment area. The burial locations are presently being mapped out for CRG.

Martin says that if the allegations of these "midnight burials" are true, they could constitute serious violations of the Clean Water Act and two other major environmental laws -- the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Penalties to the companies would be significant, but Martin says the real victims of such activities will have been unsuspecting downstream water users like himself. The group will ask the court to order EPA to research mine documents and to use ground-penetrating radar to locate and remove the buried waste.

Chris Pfahl, the closed mine manager for American Smelting and Refining Company (ASARCO), the former Troy mine owner, says not only are these allegations false and ridiculous, he believes they are something CRG fabricated because "they hate the Troy mine so much and because they are desperately trying to kill Rock Creek." Once owned by ASARCO and modeled after Troy, the proposed Rock Creek mine would be three times the size and tunneled under the Cabinet Mountain Wilderness near Noxon, Mont. For years, it has been a major environmental issue for residents of Sandpoint, as the Clark Fork River drains Rock Creek and empties into Lake Pend Oreille, which could be contaminated if the mining waste were somehow to escape. The Rock Creek Mine has been permitted by the state of Montana but not yet built.

The Troy mine complex was designed and built by ASARCO and operated between 1981 and 1993 until plummeting silver prices mothballed the operation ahead of schedule. More than 300 workers lost their jobs as a result. For now, a skeleton crew maintains the facility, but it's questionable whether the mine will ever reopen.

Once a huge, multinational mining corporation based in New York City, ASARCO was bought out by Grupo Mexico in 1999. It is now a subsidiary of that Mexican corporation and a shadow of its former self. Today ASARCO's Superfund sites are numerous and its liabilities are in the billions of dollars. Consequently, the company has been forced to sell mining assets to survive.

In October 2000, ASARCO sold its interests in Troy and Rock Creek to a new company, Sterling Mining. Sterling created "a wholly owned subsidiary" -- Genesis Mining -- to run them. It's left many in CRG wondering about the real motives of such corporate maneuvering. The group's members fear either an Enron-like fiasco or one similar to W. R. Grace's vermiculite mine in Libby, Mont., where environmental damage is dramatic and taxpayers foot the bill for expensive cleanups after corporate bankruptcies. A few months ago, the U.S. Justice Department filed suit against ASARCO for liquidating too many of its assets. W. R. Grace did the same thing just before it declared bankruptcy because it was rife with huge liabilities from asbestos claims. According to Pfahl, the federal government and ASARCO are negotiating a settlement, but CRG officials still wonder if bankruptcy isn't right around the corner.

The Missoula-based Cabinet Resource Group believes ASARCO has one more similarity to W. R. Grace and its asbestos problems in Libby -- that of lax public regulators.

According to CRG, one of the whistleblowers claims that Montana's Department of Environmental Quality (DEQ) was contacted numerous times about the midnight burials while the man worked at the mine and after it closed. The agency never responded. He was so determined that he hired a private investigator to document his claims. Then he filed a formal citizen complaint to DEQ in March 1996; it was answered only by a DEQ activity report stamped "draft." (No final report has ever been found). No field follow-up was made by the agency to check out the buried waste allegation, either in 1996 or anytime since. After learning of CRG's opposition to the proposed Rock Creek Mine, the worker finally contacted the environmental group with his complaints. Then another worker came forward to corroborate the allegations.

According to Cesar Hernandez, a board member of CRG, it's not the first time the Montana DEQ has "dropped the ball" at Troy. This is the third occasion that CRG has interceded with DEQ to protect public health and the environment, he says. In 1997, CRG filed suit under the Clean Water Act for pollution of Lake Creek and 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 ponds. 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.

Next, in 1998, CRG alerted DEQ to lead contamination in the heart of downtown Troy at the railroad load-out dock. The agency worked with ASARCO to clean it up to levels of lead comparable to those found at mine sites -- much higher than they ought to be in a residential area, says Hernandez. "Kids still ride their bikes through the area."

Hernandez says the latest revelations again paint DEQ as a failed public regulator. "We simply don't trust them," he says.

But John Arrigo, director of the DEQ's enforcement division, which responds to thousands of citizen complaints, says CRG is only playing political games by not giving DEQ more specific details of the allegations. The agency will investigate the claims, but because the Troy mine impoundment area is more than 300 acres in size, Arrigo says, "it would be like looking for a needle in a haystack. We have to focus our limited resources on the significant issues. We are trying to do our jobs, but they [CRG] are not helping us," says Arrigo.

Hernandez says that until they go to court in December, CRG will protect the identities of the two whistleblowers.

Both ASARCO and the new mine owner, Sterling, agree with the agency that CRG's withholding information is counterproductive. Sterling CEO Frank Duval says that his company will cooperate fully with the EPA in releasing its waste management records during the investigation. Yet both companies don't give CRG's threat to sue much merit. They see it as a grasping-at-straws effort to try to keep the Troy mine from reopening and Rock Creek from being built.

"Have at it. Let them prove their case," says ASARCO's Pfahl. "We'll be ready for them."

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