Excerpts from Judge Allan regarding BMG motion

Reprinted from The Buckhorn Bulletin, Newsletter of the Okanogan Highlands Alliance

VERBATUM EXCERPTS OF PROCEEDINGS REGARDING JUDGE'S ORAL DECISION

(From Judge Allan in Chelan County Superior Court February 9, 2001, regarding BMG /Newmont Mining Company's motion for partial summary judgment on the Pollution Control Hearings Board's decision.)

Judge Allan:

The question is: is a 401 certification proper when it simply defers the issue of a decision on the discharge of water until the NPDES process, regardless of the information the Department of Ecology has about a particular project.

 A slight broader view in this particular case is looking at the information that was known to the department of Ecology: Did the Department of Ecology have reasonable assurances that this project would comply with applicable water standards? In that context, the court would look more broadly at the facts of the case and see what was before the Dept. of Ecology before it issued the 401.

 I won't save the surprise; I am going to deny the motion of summary judgment for Battle Mountain Gold. This is why.

 First of all, looking at the narrow focus, whether the Department of Ecology can do what it did, really amounts to: Can the Department say we have reasonable assurances that a particular project will comply with the water standards, because we are going to make them comply with water standards; and two, to this court, that approach begs the question of what the reasoning was by the Department of Ecology to allow such approach, which seems to the court to render meaningless any 401certification which address issues of discharged water ….if the court were to allow such approach, the Department of Ecology would never have to engage in any substantive analysis of a project prior to issuing a 401 and simply refer to those to the NPDES. It does not appear to the court that that's not what the statue indicates. If the court is to give meaning to the statute, it seems something more is required.

 A second reason or basis for the court's decision in that regard relates quite frankly to this idea of snowballing…the court is concerned that the momentum of a project of this magnitude would be difficult for any agency to resist if the approach is taken that the project developer here, Battle Mountain Gold Company, gets to go ahead and build the whole thing, standing, waiting with the finger on the start button, and then have some person at the Department of Ecology or some group of people at the Pollution Control Hearings Board be allowed to say: we know you've been allowed to spend millions and millions and millions of dollars and we cant let you do it.

 The second viewpoint, that is, the broader viewpoint of the facts that were before the court, viewing towards the respondent, the court has jotted down a list of critical facts. Those are as follows: That the discharges, direct discharges, are predicted to exceed state water quality limits; the known reasonable available method of control would not be adequate to regulate such discharges; that the Department of Ecology has not completed its review or analysis of the information related to the direct discharge issues and water quality; and quite frankly the court viewed with some significance the testimony of Mr. Luster, who as the court understands, was assigned to prepare the section 401 decision in this case.

 A portion of his testimony was available to the court, which indicated he did not believe that he had an option to deny the 401 certification… That testimony indicates to the court that perhaps already persons charged with evaluating this project at the Department of Ecology were feeling the pressure of the momentum of the project.