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Agencies refuse to lay claim to mine cleanup responsibility.

Byline: Diane Dietz The Register-Guard


Part two of a five-part series

On a cloudy April day two years ago, Gov. Ted Kulongoski stood atop an old heap of mercury-laced tailings at the Black Butte mine in southeast Lane County and vowed to secure $8 million from the federal budget to clean up the mess.

Mercury leaching from the mine had made fish in the headwaters of the Coast Fork of the Willamette River unsafe for children to eat. The governor said cleaning up the river was his top environmental priority - "so that our children will be able to fish without worry and swim in the river without a second thought."

Kulongoski said he also would ask for $15 million to clean up the Formosa mine, whose metals-bearing acid waters have killed 18 miles of streams in Douglas County.

The governor's vow to "clean up these poisonous sites" made it seem that some of Oregon's 140 abandoned mines would get the attention they need.

But little has come to pass.

The U.S. Army Corps of Engineers rejected Kulongoski's request for grants. Kulongoski didn't reapply. He didn't even ask the Legislature to restock the state's dwindling "orphan site" fund, which is used to clean up polluted lands, including mines, when the owner is gone or unable to bear the cost.

The governor's critics are merciless.

"He said, `We're really behind cleaning it up,' and that's the last anyone has ever heard," anti-mining activist Larry Tuttle said. Politicians like to use mine sites "for a political backdrop," Tuttle said. But "nothing ever seems to happen (after) they show up for the photo op."

Kulongoski, in a tough re-election campaign this year, responds that he's been busy working on other parts of the Willamette River, such as the Portland Harbor. He recently renewed his call for federal money to clean up the Black Butte mess.

The mine isn't solely the state's responsibility, anyway, Kulongoski added.

"What I'm upset about is the federal government walking away from their Superfund site funding," he said. "That's what's actually causing this whole problem."

So it goes with abandoned metals mines across the West. The pollution is often severe and very expensive to clean up. So companies and state and federal government agencies devote a lot of effort to making sure they're not the ones pinned with the cost.

Agencies balk at cleanup

Fear of liability is clear in internal documents of the state Department of Environmental Quality and the U.S. Bureau of Land Management with regard to the Formosa mine 25 miles southeast of Roseburg.

A Canadian company, Formosa Exploration Inc., mined copper, zinc, gold and silver at the site for 2 1/2 years in the early 1990s.

Gung-ho mining and botched reclamation caused a perpetual stream of heavy-metals-laden acidic water to flow from the main mine entrance and through seeps around the mountainside, poisoning salmon streams.

The site stands out in a year when the National Marine Fisheries Service closed the salmon fishery along 700 miles of Oregon and California coastline because so many runs are depleted.

Since the early 1990s, everyone from the mining company to government agencies have balked at taking on the cleanup.

Formosa Exploration disbanded when the extent of the calamity became clear.

U.S. environmental law holds owners responsible for pollution coming from their land, but Formosa Exploration's parent company had sought to buffer itself by signing all mining claims over to the subsidiary. The parent company, Formosa Resources, is also out of business now.

In fact, company officials loaded up Formosa Exploration with environmental liabilities before shutting down the firm.

As part of its mining work, Formosa Exploration had leased 120 acres at the mining site from a Forest Grove company, Silver Butte Mining and Milling Co.

As the mining operations were faltering, Formosa Resources took over Silver Butte Mining's polluted land and shifted ownership to the collapsing subsidiary, records show.

Government agencies, after failing to pursue company executives, are maneuvering to see which public entity gets stuck with the $15 million cleanup tab.

"Obviously, nobody wants to be responsible for this," said Greg Aitken, who oversees the site for the state Department of Environmental Quality.

The U.S. Bureau of Land Management has a stake in the Formosa mine because it owns two acres over the mine and 800 feet of the now-closed workings. So is the BLM liable?

A principle in federal pollution law is: "You own it: It's your responsibility," said Roger Flynn, an attorney for the Colorado-based Western Mining Action Project. "There's no exemption for the federal government."

State officials considered bringing enforcement action against the federal government, but have not done so, state records show.

Meanwhile, the BLM is careful to stress that it should not be held liable. Here are BLM top brass instructions to BLM staff: "Given the potential ($15 million to $20 million) price tag of cleanup, it would be my expectation that BLM offices would not take any actions or make statements that might imply we accept any portion of responsibility for cleanup."

The BLM had no authority to deny Formosa Exploration permission to mine, so it can't be responsible for the mess, said Bob Hall, spokesman at the agency's Roseburg district.

Acid water from the mine flows onto agency land, so the "BLM is an injured party," Hall added.

The state DEQ oversees industrial air and water discharges on private lands. Before Formosa Exploration opened the mine, the agency reviewed the company's reclamation plan.

After Formosa abandoned the mine, DEQ officials tried to curb acid waters flowing from the mine. The effort failed.

But by trying to help, the agency may now be responsible for the cleanup under a legal principle established by the 9th U.S. Circuit Court of Appeals that holds an agency's attempts to clean up may make them liable, said Flynn, the mining attorney who also teaches at the University of Colorado School of Law.

Like the East Bay Municipal Utility District cited in the case, the DEQ was trying to clean up a mess it didn't make. No matter, the court ruled. "The case is rock solid: It just says `You touch it you own it,' ' Flynn said.

In Congress in May, the EPA proposed a package of Good Samaritan bills that would free agencies and nonprofits - those not involved with the original pollution - from liability when they tried to clean up abandoned mines.

Tuttle, the anti-mining activist, says the DEQ bears responsibility because it failed to inspect the mining operations until too late, allowing the company to wreak environmental havoc. "Had they been up there every three months or so, they might have been able to cut back the potential risk," he said. "They could have perhaps shut it down quickly enough to avoid the catastrophic effect that it had."

Douglas County Commissioner Doug Robertson points a finger at the DEQ and the state Department of Geology and Mineral Industries, which issued Formosa its operating permit.

"If you're looking for somebody to blame, look at the people who directed mine owners on how to deal with the problem," he said.

"The mine owners did what they were directed to do and the result was very bad. The responsibility, from our perspective, is on the agencies that directed how the mine would be cleaned up," he said.

Douglas County has taken unusual steps to ensure it doesn't become liable: The county paid back property taxes on the site on behalf of the defunct Formosa Exploration. Otherwise, state law would have required the county to foreclose and take possession of the mine site.

The county would be content to pay the taxes in perpetuity, Robertson said. "We don't own it. We're going to make sure we don't own it," he said. "I can assure you the county doesn't have money (for a cleanup), and we're not going to step up."


SUNDAY: The Formosa mine in Douglas County is an old-style mining mess that was created barely a decade ago by foreign investors.

TODAY: Federal and state officials and private companies work hard to avoid being pinned with the cost of cleaning up Oregon's numerous polluted metals mines.

TUESDAY: The abandoned Black Butte mine has been contaminating Cottage Grove Lake with mercury for decades, making fish unsafe for children to eat.

WEDNESDAY: A state effort to study and remediate widespread arsenic and mercury mining waste in the city of Sutherlin dies for lack of money.

THURSDAY: Soaring metals prices could spark a resurgence in metals mining in Oregon. Are regulators prepared?
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Article Details
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Title Annotation:Environment
Publication:The Register-Guard (Eugene, OR)
Date:Jun 26, 2006
Previous Article:BOOK NOTES.
Next Article:Pollution-fighting funds are starved of cash.

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