Continued from page 17 A temporary diversion dam set up last year by Atlantic Richfield Co. was not in place July 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 settling 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 [if the dam had been in place]," said Peter Nielsen of the Clark Fork Coalition, a Missoula-based conservation organization 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 kill. "All we do is go to meetings, and we express our frustrations and the meeting is adjourned and nothing 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 documented 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 effort 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 fill 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, but 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 next week." The toxic tailings have washed down Silver Bow Creek from past mining operations around Butte, accumulating in the Continued on page 20 Continued from page 19 affected area. Williams attributes the fish kill 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 trying 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 returns to its former level. "The stream had really come back well, and if you could look past some of the aesthetics (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 that 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 settling ponds. On August 25, 1989, the state Health Department issued a notice of violation and order of compliance to Arco for its responsibility 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 construction of berms to contain mining wastes present in streamside tailings just downstream from the Warm Springs pond system. DFWP's Thomas urged all concerned anglers to put their opinions on this matter 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, Wildlife and Parks, Attention: Bill Thomas, 3201 Spurgin Road, Missoula, MT 59801. The only hope for the river's fishery, and the river itself 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 HOLT 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 HR. 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. 56-185 0 - 92 - 10 One of the worst examples of this sort of abuse in my direct experience 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 politicians 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 permit ted 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. Perhaps 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 environmental laws, and the strong guidelines to the Federal Agencies which will be overseeing it. But above all, the agencies, who are after all the stewards and the representatives of the public, must in their behalf have the strong power to say where and where not mining operations shall occur on the public lands. The time has come indeed, we think it is long since past, to treat those who would gouge minerals from our land just the same as those who would cut the trees, graze the grass, or hike the trails. Thank you. [Prepared statement of Mr. Evans follows:] STATEMENT OF CROCK EVANS VICE PRESIDENT FOR NATIONAL ISSUES BEFORE THE HOUSE INTERIOR SUBCOMMITTEE ON MINING REGARDING PROPOSALS TO REFORM 1872 MINING LAW: HR 918 Thank you very much for this opportunity to testify on this extremely important subject today. The more than 600,000 members of the National Audubon Society are organized into over 500 local chapters in every part of the country, in nearly every congressional district. Many of our members have had first hand experience about the impacts of the 1872 Mining Law on public lands, and I myself personally have had an opportunity to witness both good and bad mining practices. When I was Chairman of the Natural Resource Council of America (an umbrella organization representing all of the major groups in the national environmental community) in the late 1970s, we commissioned a study to document poor mining practices, as permitted under the 1872 Mining Law. It was that experience which convinced us that if there ever is a law that needs to be changed and brought up to date in context with new times and new thinkings, it is this statute, Mr. Chairman. Many others have documented the abuses of the environment of the public lands that are unfortunately permitted, and even encouraged under this ancient law: from the fraudulent patenting of home sites in choice locations of 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 are permanent. But this situation does not have to continue. We believe that HR 918, "The Mineral Exploration and Development Act of 1991" is a good step in the right direction of comprehensive reform. For example, we strongly support the provisions which give to the Forest Service full authority over hardrock mining activities on National Forests, so that the Bureau of Land Management, with its well know slant in favor of mining nearly everywhere, no longer dictates management decisions; and we equally favor the "citizen's suit" section (202)(e) which gives the public and individual citizens the right to go to court to enforce the law if the federal agencies do not uphold it. We likewise are strongly in favor of its other measures which will stop the abuse of patenting at give-away prices, and the creation of a Hardrock Reclamation Fund to clean up environmental damage from old mines. At the same time, we are concerned that some of the provisions of HR 918 will not adequately protect the public lands. An example is Sec. 201(b)(4) |