Hecla Mining Proposes Non-Cleanup for Upper Coeur d’Alene Basin

We have obtained a copy of a cleanup counter-proposal for the upper Coeur d’Alene basin from Hecla Mining, and not surprisingly, the mining company proposes a much shorter, much cheaper, much less comprehensive, cleanup. We’re still weeding through their complicated 378-page, 10-year proposal, but based on a quick skim, we’re skeptical that their plan will meet cleanup standards in our lifetime. Or anyone’s lifetime.

As much as we are loathe to acknowledge it, the cleanup in the upper basin is still a long way from completion.  We’re not exactly happy that the EPA proposal calls for 50 to 90 years of waste cleanup and water treatment for the upper basin.  Unfortunately though, it’s probably a fair assessment of what it takes at current funding levels to clean up the Silver Valley once and for all. Hecla’s proposal — which plans only for the next 10 years and puts off major water treatment efforts – almost guarantees another lengthy EPA administrative process ten years from now.

Instead, we should just agree to get on with it. We should commit to cleaning up the Coeur d’Alene basin — completely, efficiently, to scientific-based standards, and according to the law. The mining industry’s special-interest shortcuts to the cleanup will only delay the restoration of the basin.

Your comments to EPA will help counter the mining industry delay tactics. Our friends at Idaho Conservation League have set up an easy way to send an email to EPA to support the Coeur d’Alene cleanup. Take a couple of minutes to tell EPA that you prefer a comprehensive cleanup over a half-baked one, that you prefer to finish the job rather than take half-measures with no end in sight, and that restoration of the Coeur d’Alene ecosystem is important to you, your family, and to the health of the region.

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Lead Poisoning Prevention and the Silver Valley Cleanup

It is, officially, National Lead Poisoning Prevention Week. It’s an annual coordinated concentration of education and awareness regarding lead poisoning, which is recognized by the CDC as the number one environmental health threat to children in the U.S. In most parts of the country, the focus is on deteriorating lead-based paint, which was widely used in residential housing prior to being banned in 1978.

However, in our region, we have another exposure pathway for lead poisoning — the legacy of mine waste that pollutes shorelines and waterways throughout the Coeur d’Alene basin. Because of lead and other heavy metals, an EPA cleanup has been ongoing in the Basin for a couple of decades, and a controversial proposal would have the cleanup continue in the upper basin for the next 50 to 90 years.

At hearings and public meetings on the proposed EPA cleanup plan, some residents question the need for the cleanup because the perception that there aren’t any remaining health issues in the Silver Valley.  Unfortunately, while gains have been made, threats to public health in the valley do indeed remain.  Sampling shows that contamination from heavy metals is widespread and diffuse throughout the Silver Valley, with contamination along nearly every drainage.  The Silver Valley contamination contains numerous toxic metals, most notably lead, that exceed human health criteria.  Human exposure to lead mainly comes through contact or ingestion of surface waters, inhaling dust, ingesting dust or soil.

Furthermore, while previous cleanup efforts have improved the water quality of the surface waters in the Silver Valley many stretches of those waters are still seriously impaired by heavy metals.  As EPA notes in its proposal, “[t]he risks are neither hypothetical nor potential future risks—the risks continue to exist today.”   The same is true of groundwater, which “is severely affected and contributes to surface water contamination.”

Lead poisoning is particularly insidious because the effects of lead poisoning can be subtle and indistinguishable from other common ailments.  Early symptoms include: persistent fatigue, irritability, loss of appetite, stomach discomfort/constipation, reduced attention span, and insomnia.  Prolonged or chronic exposure in adults can result in poor muscle circulation, nerve damage, increased blood pressure, and reproduced sperm count. Pregnant women are particularly susceptible to lead poisoning as it can affect fetal development (even at very low exposure levels).

Children are the most susceptible to lead poisoning for a number of reasons: children are exposed to relatively greater quantities of lead per unit of body mass; children are developing and growing; children are more likely to have nutritional deficiencies conducive to magnifying lead’s toxicological effects; and children are more likely to ingest soil, inhale dust particles, and consume water while recreating.  These are some of the reasons why lead poisoning in children remains the single most significant human health risk within the Superfund site.

For children, even very low levels of lead exposure can cause brain damage and/or mental retardation, behavioral problems, hyperactivity, and developmental delays.  Although the current lead blood level of concern for children is 10 ug/dL, recent studies indicate that there is no threshold level of safety and adverse effects of lead can occur at far lower levels.  Between 2000 and 2004, fifteen percent of children tested in the Silver Valley had blood lead levels higher than 10 ug/dL. More recent data show average levels of lead in Silver Valley children is near national averages. Although these recent averages sound promising, the number of children actually being tested is quite small. Given that there is really no safe level of lead in children, it remains clear that lead contamination levels in the Silver Valley needs to be reduced as much as practicable in order to avoid risks of cognitive and other developmental impairments in resident children.

Toxic exposure in children should not form the basis of a political debate; the debate should be scientific. And the scientific debate is long over.  Although lead and other heavy metals have been reduced, those substances still exist in the Silver Valley at levels that are hazardous to human health, particularly the health of children.  And they still flow through teh valley with each flood season. This is an ongoing problem that will not go away and will impact the Silver Valley for many years to come. So, while the EPA’s proposed cleanup plan might not be a perfect solution to the Valley’s mine waste problem, failing to act is not an option.  Postponing or avoiding the cleanup only serves to increase the potential for toxic exposures to the most vulnerable members of our communities — our children.

Jeff Briggs, our summer legal intern, contributed to this article.

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EPA Extends Basin Cleanup Comment Deadline

We heard earlier in the week that the EPA would probably be extending the comment period for cleanup proposal for the upper Coeur d’Alene Basin. Well, it is indeed true. Commenters will now have another 90 days to put their thoughts together. Here’s hoping that the comments are more carefully considered and better informed than what we heard at the public hearing and listening session these last couple of weeks.

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Crapo and Otter Hear Silver Valley Cleanup Concerns

Gov. Otter and Sen. Crapo in Kellogg last night. Photo by KEA BlackberryCam

Last night, Senator Crapo and Governor Otter hosted another round of opposition to the EPA’s proposed cleanup plan for the Silver Valley. Mostly a rerun of last week’s hearing, Hecla Mining employees, local citizens, and local politicians lined up for 90 seconds at the microphone.

The same complaints – that the cleanup will (somehow) affect mining jobs, that it is an unlimited federal program with unlimited expenditures, and that citizens need more time to digest it – were thoroughly rehashed.

Senator Crapo, in opening the session, noted that this cleanup is “as difficult as anywhere in the United States” and urged the EPA to recognize the need to “simultaneously” clean up the environment and protect the local economy and jobs. Governor Otter claimed to still be “in process” vetting the plan, but then came out with his opposition to water treatment facilities included in the EPA plan. Senator Risch and Congressman Minnick provided video feeds expressing their concern for jobs and the economy in the Silver Valley.

We agreed with Senator Crapo, though, that with a “collaborative problem-solving spirit” the necessary cleanup – required by both federal law and solid science – the proposed cleanup of the Silver Valley can proceed while protecting the local economy and responsible mining operations into the future. Otherwise, the toxic wastelands that remain in the Silver Valley will simply remain in the Silver Valley.  And despite some of the rhetoric over the last week, doing nothing is not an option.

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Hecla Mining and the Silver Valley Cleanup

Last week, in anticipation of the formal public hearing on the EPA cleanup in the Silver Valley, we received a postcard mailing purportedly from “Citizens for a Prosperous Silver Valley” critical of the EPA proposal. The return address was a box in a Coeur d’Alene UPS Store, and we couldn’t find any further information about this alleged group of so-called citizens.

Without any explanation, the postcard’s very first claim is that the “over-reaching and expensive approach will threaten hundreds of current and future mining jobs in the Silver Valley.” The postcard also calls into question the EPA plan saying “EPA wants taxpayers to buy into and pay for a massive expansion that will cost billions of dollars and take a very long time to implement.”

Coincidentally — or not — the positions on the postcard tracked those of Hecla Mining employees who turned out at the public hearing. The large Silver Valley mining concern runs the Lucky Friday mine near Mullan.

The unspoken truth is that Hecla has already been found by a federal court judge to be liable for 31% of the cleanup costs. However, Hecla has not settled this claim with EPA. So Hecla is motivated to minimize projected cleanup costs, so as to minimize their ultimate exposure.

Moreover, Hecla has been criticized for playing fast and loose with required corporate reporting of its cleanup liabilities. (See: Robert Ropetto, Silence is Golden, Leaden, and Copper: Disclosure of Material Environmental Information in the Hard Rock Mining Industry, 36-38, (2004).)

Hecla’s recent report states:

Hecla Limited currently estimates the range of its potential liability for both past costs and remediation (but not natural resource damages as discussed above) in the Basin to be $65.6 million to $93.6 million (including the potential range of liabilities of $60 million to $80 million for Basin cleanup, and  $5.6 million to $13.6 million for the United States’ past cost claims), with no amount in the range being more likely than any other at this time. Hecla Limited has accrued the minimum liability within this range, which at June 30, 2010, was $65.6 million.

The problem for Hecla, though, is that all estimates of the upper basin cleanup are nearly $1.3 billion. The lower basin cleanup has barely begun.  Also, another mining operation, ASARCO, recently settled with EPA for some $482 million. The federal judge that held Hecla responsible for 31% of the cleanup had held ASARCO liable for only 22%.

Yet, Hecla is a company that paid their CEO nearly $3 million in total compensation last year, has $197 million in cash on its balance sheet, and just posted its second highest gross profit and cash flow from operating activities in Hecla’s 119-year history. In a recent article, Hecla President and Chief Executive Officer Phillips S. Baker, Jr. said, “Our mines, operating management and orebodies combined with current prices allowed Hecla to generate an extraordinary amount of cash flow for the amount of production.” (Meanwhile Hecla’s quarterly report notes that they do not expect to contribute to the employee pension plan this year, and just recently saved $9 million on eliminating a post-retirement medical plan.)

So while the proposed EPA cleanup is, indeed, expensive, and it will, indeed, take a long time to implement, the taxpayers aren’t necessarily going to be on the hook for all the costs.  When Hecla finally pays what it owes, the taxpayer burden will be dramatically reduced.

UPDATE 2/25/2011: Hecla announced today that it has reached a tentative agreement to pay $263 million as settlement of its cleanup claims.

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A Complex Solution for the Silver Valley

H.L. Mencken once noted that “Democracy is the theory that the common people know what they want, and deserve to get it good and hard.” And with a “listening session” with Senator Crapo and Governor Otter scheduled Monday evening in Kellogg, we’re concerned for the EPA’s new cleanup plan for the Silver Valley.

In a pending amendment to EPA’s “Record of Decision” governing the Superfund cleanup, the EPA is proposing a plan to clean up more than 300 mine waste sites in the upper Coeur d’Alene basin, deal with protecting the work already completed, and treat polluted groundwater — all in an effort to bring the environment in the Silver Valley back to a functional normal.

We are preparing detailed written comments on the plan, but overall, the EPA proposal is worthy of support. It sets out, with perhaps sad and unfortunate clarity, the scope and scale of the cleanup remaining in the upper basin. Until mine sites are cleaned, contamination stabilized, and polluted groundwater dealt with, the entire basin remains an ecological disaster zone.

At a recent EPA open house and hearing, dozens of residents spoke out against the EPA cleanup plan. Many were legitimately concerned about the 50 to 90 years that it will take to complete it. Many were legitimately concerned about the short comment period EPA allowed for the complicated plan.

But because many were concerned with the continuing stigma of the Superfund designation, an “EPA go home” mentality dominated the hearing. Unfortunately, both environmental law and environmental science are going to demand a long and difficult cleanup of a huge and difficult mess.

Indeed, it is another of Mencken‘s sayings which may be more apt, namely that “For every complex problem there is an answer that is clear, simple, and wrong.” Denying the problem, postponing the solution, and failing to get on with the cleanup would be clear and simple and wrong.

The public comment period is from July 12 to August 25, 2010. Send comments via email to cdabasin@epa.gov or send it via mail to:

Coeur d’Alene Basin Team
U.S. Environmental Protection Agency
1200 6th Avenue, Suite 900, MS ECL-113
Seattle, WA 98101

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The Basin Cleanup: A Tutorial on Who Pays

As the future of the Coeur d’Alene Basin cleanup hits center stage this week, legal interns Sean Waite and Jeff Briggs supply this tutorial:

In a recent Coeur d’Alene Press editorial, and many times throughout the long history of the Coeur d’Alene basin cleanup plan, the question has been raised; “who is really going to end up paying for all this?”  While a complete response to that question can get very complicated, the underlying law provides us with a fairly straightforward answer:  those responsible for causing or contributing to the problem, i.e the mining companies, are supposed to pay. For any amount that is not recoverable, the federal Superfund program does. 

In 1980 Congress enacted the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), commonly known as Superfund.  Under CERCLA, Congress put into practice the “Polluter Pays” principle, an environmental policy that requires that the costs of pollution be borne by those who cause it.  In other words, the companies or people responsible for the contamination are the parties liable for the cost of its clean up.  Moreover, CERCLA is a strict liability statute, so an entity becomes legally obligated to cover the cost of clean upon being found as a contributor, regardless of negligence or fault. For the Coeur d’Alene basin Superfund site, a federal court has already found several companies responsible for the environmental degradation of the area, and therefore, clean up costs.

The list of companies causing or contributing to our mess includes Hecla Mining Company, ASARCO, the Coeur d’Alene Mines Corporation, and the Sunshine Mining and Refining Company.  All but Hecla Mining Company, found by the court to be 31% liable, have reached settlement agreements with the EPA.  This includes a recent $482 million payout by ASARCO, which was apportioned with 22% of the cost.  Hecla remains the sole financially-solvent company yet to settle its liability.

For any costs of the cleanup not recoverable from a polluter, CERCLA utilizes a cost-sharing mechanism.  Generally, the federal Superfund program is responsible for paying for the initial cleanup, leaving post-cleanup operation and maintenance to the states.  The federal government is not required to do a perfect job but must ensure that human health and the environment are protected.  The post -cleanup operation and maintenance of sites is crucial to ensure that the cleanup efforts provide for meaningful long term protection of human health and the environment.  

Unfortunately maintaining the Superfund program has become an unfunded mandate for the federal government.  Until 1995, Superfund cleanups were funded through both the “polluter pays” principle discussed earlier and by taxing the chemical and petroleum industries that manufacture hazardous materials that create Superfund sites.  The idea was that the Superfund tax would ensure that the polluting industries, not the general taxpayer, would be responsible for the problems they collectively create.  (The problem with relying solely upon the “polluter pays” principle is that 30% of the companies that create Superfund sites are unable to pay for their cleanup.)  However, the tax on the chemical industry expired in 1995 and has not been renewed.   Now, our federal tax dollars are used to clean up their messes.  Due to these funding issues, the Obama administration has proposed reinstating the Superfund tax on polluting industry, but there has been a decided lack of progress on this front.

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Oil Spills and Mining Messes

We continue to watch in horror as the gulf oil spill expands and consumes beaches, marshland, birds, fish, and other wildlife. Even when the spill finally stops, the gulf region is facing years and years of cleanup.

Those of us in North Idaho can relate as well as anyone south of Prince William Sound, Alaska.  Environmentally, the oil mess in the gulf is not unlike the mining mess in the Coeur d’Alene basin. Contamination spread for miles by natural currents of water. Brought on, in no small part, by under-regulated industrial operations.

Of course, the contamination of our region was decades in the making and decades ago. The cleanup here will continue for decades. Currently the EPA is considering an update to the Superfund “Record of Decision” for the upper Coeur d’Alene basin, which is intended to guide cleanup plans for the next 50 to 90 years.  (That’s right – another 50 to 90 years of cleanup in the upper basin. Meanwhile, we try to remain hopeful that the lower basin will get some attention prior to the year 2060. )  Anne Dailey, from the EPA’s office in Seattle will join us this Thursday, noon, at the Iron Horse to discuss the “ROD Amendment,” as it is called.

Our thoughts go out to our fellow Americans along the gulf of Mexico. Welcome to our world.

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Commissioners Approve Access Road Through Contaminated Flood Zone

Disappointingly bringing an end to a long process, lame-duck Commissioners Rick Currie and Rich Piazza outvoted Commissioner Todd Tondee today to approve a site-disturbance permit for a roadway through a frequently flooded, contaminated property along the Coeur d’Alene River near Medimont. The proposal, from developer / realtor John Beutler, would provide new access to an unbuilt subdivision along the River.

 Community members and environmental interests (including KEA) opposed the project as unnecessary in purpose and problematic in its design. More to the point, the County simply shouldn’t be permitting permanent roads in an area which floods frequently in non-extraordinary high-water events. Especially when such flooding brings contamination each and every time.

 Today’s final public hearing was purportedly to review information from the U.S. Army Corps of Engineers which had previously denied the project. However, the Corps had also given indications that it had done so “without prejudice” and that the developer could re-apply for approvals.  In an email released by the County, the Corps of Engineers declined to attend the County’s hearing.

 Commissioner Tondee recommended that the permit be denied as a hearing examiner had recommended. Tondee said that there was no objective information in the file regarding whether the road would contribute to additional flood damage, whether it would divert flood waters, or whether it would affect flood storage capacity. Tondee also noted that the frequent flooding would contaminate and re-contaminate the properties with toxic sediments flowing from the Silver Valley, and that such contamination would be a threat to the public’s safety.

 Commissioner Piazza voted to approve the road, and cited to a pre-decisional report from the Corps of Engineers that seemed to address some of the concerns. But that report was not available to Director Clark when he was making the decision. Moreover, the report was not part of any formal decision issued by the Corps, but a preliminary investigation.

 Commissioner Currie broke the tie, calling the proposal “an opportunity.” Currie said that he was aware of the potential for contamination issue and would agree to approval under a condition that the applicant would agree to a deed restriction which would require all future property owners to remediate their properties within two years of a flood event causing contamination. If property owners don’t comply, then the County could perform the cleanup and send a bill to the property owners.  Currie noted that the property had been subdivided long ago and that the properties could be developed “by barge, if they had to,” so the road, he speculated, could be the less intrusive option.

 It isn’t immediately clear what the “deed restrictions” would actually say, and it isn’t immediately clear whether such restrictions apply to the road alone or all the subdivision properties, and it isn’t at all clear whether such a restriction could even be enforced.

 In terms of what county commissioners are supposed to do in land use decision-making, this is one of the worst I’ve seen. This is a road that will be frequently underwater, and providing access to properties that are contaminated and will be re-contaminated over and over and over again.  

 The decision sets a terrible procedurally as well. The planning director made a decision with the information he had available to him. But when the applicant appealed to the Board of County Commissioners, they supplied pages and pages of new information. Now, there is lessened motivation for a developer to give a complete application to the Planning Department. Any facts and supporting documentation can simply wait until an appeal before the Board is taken.

 Again, another poor decision by this Board underscores the need for better and more protective ordinances, new hearing procedures, and decision-makers with a more appropriate view of protecting the health, safety, and welfare of the public they represent.

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New EPA Administrator for Our Region

We’ve been waiting quite some time for an announcement, and got the news today: EPA has announced the Obama Administration’s appointment of Dennis J. McLerran to be Regional Administrator for the region that includes Idaho.  (Region 10 is comprised of Alaska, Idaho, Oregon, Washington and Pacific Northwest Indian Country. Its headquarters is in Seattle. )

Because Idaho has declined to administer many of its own environmental programs, EPA has significant jurisdiction in our state, and the Regional Administrator is Idaho’s ultimate environmental decision-maker in many instances.  The Regional Administrator will be responsible for guiding EPA’s role in the Coeur d’Alene basin mine waste cleanup and Clean Water Act permitting. It is probably one of the most important government offices for Idaho not actually based in Idaho.

McLerran comes highly regarded, with lots of state and local government experience and a strong background in clean air.  He was Executive Director of the Puget Sound Clean Air Agency, a regional entity that adopts and enforces air quality standards in Washington. 

We look forward to meeting with the new Regional Administrator and working with him on environmental protection in North Idaho.

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