Don Russell's, owner and editor of The Mountain Messenger, perspective of the Central Valley Water Quality Control Board hearing in Sacramento. Published March 14, 2002.
ALLEGHANY? At a civil hearing held Friday, March 1 in Sacramento, the Central Valley Water Quality Control Board forbid the Sixteen to One mine to allow water to drain through the mine, demanded $60,000 worth of annual water monitoring, hugely more expensive permit fees, and sent the case to the Attorney General's office. Only at the beginning of the Sacramento meeting did the water board inform mine CEO Mike Miller the charges being preferred would not be criminal.
To most sitting in the hearing room, it sounded suspiciously like the death knell of the financially strapped historic mining company. Miller is not so pessimistic; he is delighted at the inclusion of the Attorney General in the procedures.
"I'm confident that in a setting where the accuser is not also the judge, we will get a fair hearing. In a venue where witnesses face a penalty for perjury, I'm sure the water board staff will be unable to distort the record and their case as they have," Miller enthused.
The Central Valley Water Quality Control Board wasn't the least bit interested in hearing Sixteen to One President Mike Miller's vision of environmentally conscious mining in Sierra County. The board was barely tolerant of Miller's rhapsody of his work on the Sierra County Planning Commission, developing a general plan that protected both the environment and industry.
They didn't bat an eye when Nevada County's leading environmentalist organization retracted their demand for criminal sanctions on the mine, requesting instead a postponement until more a appropriate permit could be designed.
The water board members certainly didn't want to hear that their staff had mis-stated data, hidden or lost mine documentation and had not done their requisite work for the past four years.
The Central Valley Water Quality Control Board explained up front it is not funded to solve water quality issues: it is only funded for enforcement actions. So no one was particularly surprised when the board adopted its staff's recommendations: to require more paperwork which can be policed from a bureaucrat's desk in Sacramento.
Nevertheless, it became clear during the hearing that the Water Board's own record for policing and processing paperwork varies from spotty to negligent. In fact, the whole hearing was spawned by the Water Board's inability or refusal to comply with the law.
For over four years, the Sixteen has petitioned the Water Board for a new permit. Despite a series of letters, phone calls and even personal visits to the Sacramento office, the state agency refused to respond. Various engineers for the mine have explained in writing that the mine no longer uses the milling process for which it was permitted. The mine no longer uses water to process ore. As a result, its effluent is a tiny fraction of that for which the permit was written.
To boot, that permit expired in 1998. When the permit expired, the Sixteen informed the Water Board it would no longer be testing the processing water, as there was none.
For four years, the Central Valley Water Quality Control Board ignored the Sixteen's petitions and pleas. "We have been back-logged," a board functionary explained. "We're finally getting around to the Sixteen to One's permit."
It dealt with the mine's requests by compiling a litany of alleged abuses: the failure to continue to monitor the stream after the permit expired, the mine's alleged refusal to pay a $20,000 fine levied following the Flood of '97 when flood waters carried sand into Kanaka Creek, and a new charge of dumping arsenic into the watercourse.
The Water Board staff successfully avoided questions about their own failings by painting Miller as an arrogant despoiler of drinking water willing to sacrifice the health of the state with a single-minded greed for gold. The board dismissed Miller's opening request for a postponement. Miller explained he had been notified the board was contemplating criminal charges, and consequently designed his presentation to the board with that in mind. Criminal and civil cases have different rules and different penalties. Furthermore, Miller pointed out, he had just been given 139 pages of documentation he had never seen before." There's nothing new in there," a staff member told the board. That explanation was sufficient for the board.
Miller, in his enthusiasm over the Sixteen and his vision of the mine as a centerpiece in an environmentalists' Garden of Eden fantasy, rarely impresses regulating bodies more interested in extracting money from alleged polluters. His attempts to sell a Sierra County way of life evidently prevent him from coldly enumerating facts to contradict the bureaucrats' conclusions.
The mine cannot afford, Miller claims, to hire a person with those skills. One such person did testify for the mine, however. Former mine engineer Jason Burke, after calmly explaining the new processes used, in high dudgeon chastised water board staff for lying about the data he, personally, had overseen collecting and forwarded to the state. "I just saw this chart for the first time, today. This is a slur on my professional abilities, my professional ethics and my personal integrity," Burke told the board. He pointed out the board's key chart "proving" the mine's refusal to submit monitoring data had omitted reams of documentation he had provided.
The board dismissed that complaint, noting the data was five years old and no one had complained earlier. Burke went on to document the fallacies of the board's assumptions: the water draining from the mine does not constitute 30% of Kanaka Creek; the level of arsenic in that mine water is barely above natural water in the area; that current government arsenic standards are lower than those now imposed on the mine.
No matter. Anyone familiar with such regulatory bodies understands the board members are political appointees: rubber stamps pulling down well over $100,000 a year and fundamentally ignorant of the industries they are charged to oversee. Under Miller's questioning, it became painfully evident the board members had not read the documents presented them. "Not to worry," insists Miller. "This is just one of a series of bullets aimed at us. I really believe they are trying to shut down this mine, but we're beginning an aggressive campaign to force some responsibility from these regulating bodies. We're going to win. The alternative is 'rural cleansing, and a backhanded takeover of the nation's mineral wealth by the government."
Owner and Editor of The Mountain Messenger, California's Oldest Weekly Newspaper, Downieville, California