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AMERICAN FISHERIES SOCIETY and MINERAL POLICY CENTER
TESTIMONY : 18 June 91 : 12

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CONCLUSION

Mister Chairman, reform of the 1872 Mining Law is urgently needed to protect the public interest.

H.R.918 is an important legislative beginning toward appropriate reform. However, it does not go the full distance.

H.R. 2614 is much closer to containing the necessary elements of a complete new hardrock policy system. It deserves to be adopted. I hope you will give it favorable consideration as your deliberations advance.

This is not the time to go half-way on Mining Law reform. Leaving major loopholes and gaps in new reform legislation, such as the barrier to managers' discretion to protect non-mineral values at Section 201(b) (4), would be a tragic mistake after all the personal effort and hard work this Subcommittee has invested in this issue.

I thank, and commend you, Chairman Rahall, for your diligence and leadership on this important issue. I thank you, and the Subcommittee, for allowing me to appear before you today. I would be pleased to answer any questions you may have.

Attachment: "Killing Clark Fork Browns," Fly Fisherman,

July, 1990.

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FLY
FISHERMAN

FISHER

ON OUR COVER: Emest Schwiebert nets a brown trout on an Eastern stream. Barry Beck photo.

Killing Clark Fork Browns

ONE OF THE BEST brown-trout waters in Montana was destroyed in a torrent of water filled with deadly amounts of toxic heavy metals accumulated from past mining operations near Butte, Montana. The victim, a classic stretch of the Clark Fork River, is in the westem part of the state. The results are devastating.

"We have fish dying from Warm Springs all the way to the Deer Lodge area, " said Glenn Phillips, pollution-control biologist with the Montana Department of Fish, Wildlife and Parks in Helena, immediately after the incident.

A survey following the kill revealed that a total of 5,290 fish died, including 2,270 brown trour that averaged 11 inches and three-quarters of a pound. The largest brown was two feet long. Almost 700 whitefish also were killed.

Severe thunderstorms on Wednesday, July 12, 1989 dumped more than an inch of rain on the Deer Lodge Valley in a few hours during the afternoon and evening, leading to the poisonous del. uge of discarded mine tailings in an area that is part of the site of the nation's largest Superfund cleanup. (See "Figbting for Montana's Clark Fork, by Dick Manning in the June 1988 issue of Fuy FISHERMAN. THE EDITORS.)

Recent DFWP data indicated that portions of this 17-mile stretch of water held berween 1,500 and 2,000 catchable brown trout per mile. Much of this troury-looking water is visible by

VOLUME 21. NUMBERS

motorists traveling on Interstate 90.

The tailings are a result of extensive mining operations begun in the 1860s at "the richest hill on carth" at Butte. The hill is now called the Berkeley Pit and is a mile wide and averages 1,000 feer deep. An estimated 185 million cubic yards of contaminated earth taken from the hole now rest as tailings in an area that stretches from Butte to Anaconda, some 20 miles to the wesi.

In 1954 the Anaconda Company began steps to limit downstream dis. charges, which included construction of the Warm Springs ponds. Anaconda Company ceased all operations in Montana in the mid-1970s, leaving the deadly tailings behind when it pulled up stakes. Superfund legislation in 1986 was designed to prevent the river from "running red" with toxic waste in the future.

Unfortunately, dry weather after spring runoff causes copper and zinc compounds from mine tailings to leach to the surface of streambanks, where they appear as a greenish-blue precipitate.

A modcrate amount of rain soaks the toxins back into the soil where they will not harm trout populations, but the July 12 storm was not completely absorbed by the soil and the poisons entered the river, affecting the pills of the fish and leading to a quick death by asphyxiation.

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A temporary diversion dam set up last year by Atlantic Richfield Co. was not in place Juły 12. This structure was designed to mitigate just such a disaster by diverting more than one-half of the flow loaded with tailings back to the sctiling ponds. The deadly heavy metals would then precipitate from the water to the ponds' bottoms, where they would not harm brown trout populations in the main river.

"You can't say a fish kill would not have occurred, but chances are very good it wouldn't have been as big (i the dam had been in place)," said Peter Nielsen of the Clark Fork Coalicion, a Missouls-based conservation organiza. tion that has been spearheading efforts to clean and preserve the Clark Fork

They've spent $24 million over the past years and nothing has come of it," said Dr. Herbert J. Avrutis, a retired Butte physician who is helping to monitor the extent of the fish lill. All we do is go to meetings, and we express our frustrations and the meeting is adjourned and wothing is done."

"We don't have a solution," said state Water Quality Bureau investigator Mark Kerr shortly after the kill. This is part of a big Superfund effort and where that goes, I don't know."

Seven similar kills have been documenred since 1981 with the worst two taking place in 1981 and 1987. According to Phillips, each has resulted from a similar sequence of events.

Because of the potential for future disasters, Arco proposed the diversion dam after the 1987 fish kill in a volun.tary effon aimed at preventing future poisonings

State officials expressed surprise when they discovered that the dam was not in place, and it was not until 24 hours after the kill that arco contractors began pushing the diversion dam All material into place with heavy equipment

As with any situation of this magnitude, there are two sides to the story and Bill Williams, Arco Coal Company's Montana facilities manager, gave this explanation

We are sensitive to fish kills, bur we also must wait for flows to stabilize from spring runoff so that we don't damage the stream channel or greatly increase stream turbidity while installing the diversion dam, Williams said. “The higher runoff and wetter spring this year delayed the implementation of the dam.

"Ironically, we anticipated starting construction the nen weck"

The toxic tailings have washed down Silver Bow Creek from past mining oper. ations around Butte, accumulating in the

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Continued from page 19 affected area Williams attributes the fish hill to a combination of 1988's summer drought, 1989's late spring, and the intensity of that Wednesday's storm.

Williams referred to the diversion dam as only a "band-aid measure, but said a variety of constraints imposed by Superfund regulations have slowed the creation of a permanent solution, which also requires input and agree ment with state agencies.

Meanwhile, DFWP personnel are try ing to assess the damage.

What you're talking about here is an acute situation," said DFWP Information Officer Bill Thomas. "We're attempting to document what happened. Depending upon the extent of the damage, it will be at least several years before the brown-trout population retums to its former level.

"The stream had really come back well, and if you could look past some of the acsthetics (resulting from past mining activities), this was probably one of the best stretches of browntrout water in the state."

Thomas agreed with both Nielsen and Williams chat if the diversion dam had been in place prior to the July 12 storm, much of the heavy-metals contaminate would have been shunted into sending ponds.

On August 25, 1989, the state Health Department issued a notice of violation and order of compliance to Arco for its responsibuiry in the incident.

The notice and order do not impose a penalty on the company, but Health Department Director Don Pizzini has accepted Arco's offer of $1 million to improve the river's fishery and to fund a demonstration cleanup project on mining wastes in the area.

Additionally, the company was ordered to submit a work plan for con struction of berms to contain mining wastes present in streamside railings just downstream from the Warm Springs pond system.

DFWP's Thomas urged all concerned anglers to put their opinions on this maner in writing so that the apropriate agencies and private interests can be made aware of the public's concern. Letters should be addressed to: Montana Department of Fish, WUdlife and Parks, Attention: Bi Thomas, 3201 Spurgin Road, Missoula, MT 59801.

The only hope for the river's fishery and the river icself in the long run, is to completely remove the mine tailings. That is something that individuals from Arco, state agencies, and private sportsmen's groups all agree on. JOHN Hou

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Mr. EVANS. Thank you, Mr. Chairman. I am Brock Evans, the vice president of the National Audubon Society, and my statement is on behalf of our more than 600,000 members who are organized into over 500 local chapters across the country, and our testimony is based on conclusions of many years of experience on the part of our individual members in observing how the Mining Law has worked. I should also add that it is based on my own personal experience. I am from the Pacific Northwest-a Westerner, as is Mr. Hocker-and many years of traveling through the Northwest and seeing firsthand.

I also want to join with Mr. Hocker and say thank you from the National Audubon Society for your vision and your drive which has brought us to this point. Your vision that something needed to be done to reform these laws and your drive to do something about it which has gotten us to this point. Diligence probably is the right word, and we agree with that, too.

Now, many others have documented the abuses of the environment of the public lands that are unfortunately permitted and often encouraged under this ancient law from the fraudulent patenting of home sites in choice locations on the public lands to the hundreds of streams across the West still poisoned from mine runoff, from the dozens of once pristine valleys filled with tailings to the unreclaimed open pits from past mining. The abuses are many and the scars on the land are permanent in our experience.

But this situation does not have to continue, and we believe that H.R. 918 is a good step in the right direction. In my written testimony I outline some of the provisions we strongly support such as the provision giving the Forest Service full authority over hardrock mining activities on national forests, the citizen suit provision, and the hardrock reclamation fund. At the same time, we join with some of our colleagues in expressing concern that some of the provisions of H.R. 918 will not adequately protect the public lands and should be strengthened, perhaps along the lines of some of the other provisions of H.R. 2614. I name a couple of them in my written statement. I won't go into detail here.

Particularly, I want to emphasize the one which does not let agencies deny a plan of operations if the land-use plan has been updated and is in effect, and does not specifically in its terms prevent mining even if the plan would cause great damage.

What I want to dwell on, though, for the remainder of my statement, Mr. Chairman, is what we consider to be the greatest damage to the public lands that has been accomplished by the 1872 law, and this is the absolute primacy that it gives to mining over all of the public uses of the public lands.

According to the mining in and the agencies which interpret the law, there is almost no way that an agency official responsible for good stewardship on the lands under his jurisdiction can ever deny a miner the right to mine a claim once the claim is located and is being brought to patent. Thus the history of the West in recent years is a history of bitter struggles over particularly beautiful places that also may contain some ore and where a miner has literally made these places his private property with full rights to exploit them no matter what the environmental consequences.

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One of the worst examples of this sort of abuse in my direct erperience is in the case of the proposed open pit copper mine near Image Lake in the Montana Baker-Snoqualmie National Forest in my State, Washington State. Image Lake is a little gem of a water body set into the top of a long green meadow ridge at 6,000 feet elevation, across the valley from the stunning white volcano of Glacier Peak, in the absolute center of the Glacier Peak Wilderness Area, 15 minutes from the nearest road. Some time ago, the Kennecott Copper Company located 3,000 acres worth of patented claims on a low grade body of copper ore in the area. In the mid1960's, Kennecott advanced proposals to ram a road 15 miles in through the heart of this wild place to construct an open-pit copper mine large enough to be seen from the moon, with all the towns and facilities at its base. It does not do justice to the immense damage that would have been done here to say that the area would have been completely destroyed forever.

The Forest Service did not want this to happen, Mr. Chairman, nor did environmentalists, nor did the Governor, nor did the politi. cians from the State of Washington. But, under the 1872 Mining Law, no one had any legal rights whatsoever to make any kind of balanced determination about whether the mine should be permitted or not. Only massive public pressure, accompanied by demonstrations and media attention, forced the company to back down because it did not want the adverse public exposure. But the pat ents are still out of the public domain, and thus can still be mined at any time, once the price of copper goes up. It does not matter what the public thinks or how many generations of people have loved and cherished the Image Lake country.

We believe it is this type of situation that absolutely must be changed, Mr. Chairman, if any legislation affecting the Mining Law of 1872 is to be considered truly a reform statute. Someone somewhere, Mr. Chairman, must absolutely have the right to say, "Say no." "Just because you, Mr. Miner, have located a body of ore, does not give you the absolute right to make it your private property and develop it whenever you choose." The obtaining of minerals, high grade or low grade or any grade, is only one more value to be considered when we make management decisions. Per haps this particular place is more valuable for timber harvest, or for wildlife, or for producing clean water, or even for recreation. But you shall no longer have primacy at the expense of all the other values.

So, specifically, Mr. Chairman, we urge an explicit requirement in H.R. 918 that the administering agency balance all the values in the area of the proposed plan of operations, and an explicit statement that the plan shall be denied that operating plan, that is if proceeding with the mining operation would adversely affect these other values.

We still find it amazing as we near the end of the 20th century: Mr. Chairman, that we are the only country in the developed world which not only gives away the minerals almost for free, or for free, but also gives away the land almost for free.

Mr. Chairman, the National Audubon Society strongly favors reclamation standards, adequate royalties to the public treasury for the giving away of its valuable minerals, full compliance with all

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