Portland, Ore—One word would describe yesterday’s public hearing on a redrafted water quality permit:  frustration.

Three dozen stream bed miners, from all over Oregon and even as far as Florida, gathered in a small conference room in the Portland office of the Department of Environmental Quality, hoping to get some answers about proposed strictures on their business.

They didn’t get many. 

(Photo:  Johnny Kilroy)

The topic was a permit, NPDES 700-PM, covering small suction dredges and non-motorized equipment used to mine metals from stream bottoms. 

The motorized suction dredge method is obviously more vigorous than using traditional hand sluice and panning.  It has been outlawed in California, pending a review of its environmental impacts by the state Department of Fish and Game.

Oregon DEQ aims to allow the activity with a permit that effectively mitigates potential harm to stream ecology.

The permit is issued by the state to ensure that point sources of pollution (namely, dredge discharges) are in compliance with the federal Clean Water Act, Section 402, and ORS 468B.050.  July 1, 2010, the new draft will replace the one issued in 2005. 

Joan Stevens-Schwenger, Communications and Outreach Manager, who facilitated the event, welcomed everyone and said,

“Today’s meeting is an opportunity for you to hear all about the permit.”

DEQ staff kicked off the session by presenting their new, more stringent version of NPDES 700-PM.

The new draft tightens down requirements for safe operations, including new measures to prevent spillage of oils and fuels, prohibiting the use of tools to assist in moving logs and boulders in a stream, and disallowing mining operations (motorized or non-motorized) from occurring within 800 feet of each other on a given length of stream.

Plaid-clad arms folded standoffishly, heavy old work boots made thuds shifting on the floor, and the occasional het up grumble issued from the audience, which was nearly homogeneously white, middle-aged miners.

DEQ opened up the floor to comments.  They were predictably hostile, but also righteously indicting on several points.

(Photo:  Johnny Kilroy)

 

Consultation

The miners had not been consulted in the drafting of this new permit, and many felt that their expertise was ignored, and that the governing agency was trying to rush harder regulations past them, while undoing much of the work that was done five years earlier.

(James Buchal, an attorney for rural Oregonians, was a chief spokesman for the miners at the hearing.  They frequently relinquished their speaking turns to him.  Photo:  Johnny Kilroy)

 

James Buchal, an attorney for interests of rural Oregonians, said,

“The way this regulation is written, it is worthless…It is not restrictive, it is prohibitive.”

DEQ acknowledged the hurried nature of the permit, assured the mining parties that consultation would occur during the official public comment period, which begins April 22.

 

Is Turbidity a Pollutant?

Turbidity is defined by EPA as,

a principal physical characteristic of water and is an expression of the optical property that causes light to be scattered and absorbed by particles and molecules rather than transmitted in straight lines through a water sample.

There was some question as to whether or not turbidity equates to pollution.  Short answer:  Yes. 

Whether or not in-water placer mining causes significant levels of pollution is another question, worthy of study.

(A miner holds up a sample of water from a dredge site, to demonstrate its clarity.  Photo:  Johnny Kilroy.)

According to EPA, particles of turbidity can shelter micro-organisms such as Giardia and Cryptosporidium which cause illnesses and threaten the drinkability of water, and pathogens causing gastroenteritis. 

Suspended sediments are also injurious to salmonid life cycles, says a 2001 study by the University of Washington Center for Streamside Studies. 

Miners argued that turbidity is simply a visual condition of light passage, and that in-water mining does not introduce any foreign bodies into the water system. 

But the fact is that stirring up sediments, on a large scale, is indeed pollutive.  ORS 468B.005(5) defines pollution, pertaining to this permit, as follows,

“Pollution” or “water pollution” means such alteration of the physical, chemical or biological properties of any waters of the state, including change in temperature, taste, color, turbidity, silt or odor of the waters, or such discharge of any liquid, gaseous, solid, radioactive or other substance into any waters of the state, which will or tends to, either by itself or in connection with any other substance, create a public nuisance or which will or tends to render such waters harmful, detrimental or injurious to public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational or other legitimate beneficial uses or to livestock, wildlife, fish or other aquatic life or the habitat thereof.

Independent miners feel that their operations generate even less turbidity than their kids do playing in the stream beside them.  Are the kids going to get a ticket for polluting the water?  How big of a priority is it, say, compared to boating?

But with about 2000 dredge operators in Oregon, the cumulative effects on water quality should be watched.

 

Use of Machinery or Hand Tools to Alter Stream Infrastructure

DEQ suggested making this change,

 

One of the miners at the hearing was a man in his mid sixties (in fact, most of the people there looked over 50).  He can’t move a boulder like a 20-year-old can, he said, and so what will he do if a rock falls on him?  Will he be prohibited from using a 3-ton come-along device then?

On the other hand, another gentleman speculated, if someone tried to mine in a stream with a Cat loader, then that would be cause for concern.

 

Record Keeping, and…Enforcement?

Part of the permit requires that miners keep a legible daily log of their operations’ impacts, such as the lengths of turbid plumes.  Many miners criticized such self-reporting as impractical in certain circumstances (i.e. waterfalls downstream, unnavigable terrain).

One man, a disabled veteran, said that he’d be physically unable to carry out such rigorous monitoring, up and down stream banks every day.  (This raises an interesting question of how far ADA provisions are required to extend, for voluntary activities in the backcountry.)

(Photo:  Johnny Kilroy.)

 

It also has the potential for inaccuracy.  One gentleman made an enlightened reflection on the matter, saying,

“You’re allowing us to police ourselves…nobody’s going to fail.” 

Indeed, the agency confesses that

DEQ does not have sufficient field staff to inspect many mining operations at locations throughout the state…it relies on permit holders to comply with the regulations…to ensure environmental protection.  Oregon State Police have the ability to gather evidence…and issue criminal citations.

 

Does the Clean Water Act apply to such small placer mines?

Larry M. Chase is a small scale placer miner from Springfield, Oregon, and he questions the DEQ’s authority to regulate his operations with the Clean Water Act.

His operation and many others are small enough, he says, to be exempt from the purview of CWA effluent standards for gold placers.

Indeed, a 1994 Technical Resource Document by EPA, regarding gold placers, states,

Mines handling less than 1,500 cubic yards of ore per year and dredges handling less than 50,000 cubic yards annually are exempted from the effluent guidelines (40 CFR, Part 440, Subpart M 1989).

 

Current Permit May be Deemed Invalid by Court

The 700-PM is already in hot water. 

In Northwest Environmental Defense Center v. Environmental Quality Commissioner, the Northwest Environmental Defense Center and the Eastern Oregon Miners Association both litigated against it. 

NDEC thinks the permit is not tough enough, whereas EOMA is challenging DEQ’s authority to issue it at all. 

In December 2009, the Oregon Court of Appeals declared the permit invalid,

Small suction dredge mining involves discharges of dredged material (spoil and mining tailings) that are permitted by the Corps, as well as discharges of turbid wastewater that are permitted under the National Pollution Discharge Elimination System.  The 700-PM permit regulates all discharges of waste from small suction dredges, which necessarily includes the discharge of dredged material—a matter within the exclusive regulatory authority of the Corps under 33 USC § 1344.  Thus, because of its lack of specificity and consequent overbreadth, the permit exceeds EQC’s statutory authority to implement the Clean Water Act.  In Case Number A130703, OAR 340-045-033(11)(d) held invalid; Case Number A129732 dismissed as moot.

A final decision is yet to come.

 

Interested Parties

A gentleman sitting next to me asked me if I was a miner.  Nope, just a writer from Eugene.  He was surprised, and asked,

“You mean, you’ve got no vested interest in all this but you decided to drive all the way up here, just to write about it?”

Well, actually, I do have an interest.  As an Oregonian…better, as a citizen of the United States of America and frequent visitor to our wild and scenic public lands, this discussion of water use permitting does pertain to me directly.  Many of the mining claims on public lands, such as national forests and BLM lands.  Those lands are owned by every tax paying American.

Mining has been a way of life on the West coast since the mid 1800s; it is recognized by DEQ as a legal “pre-existing” use of Oregon’s waters. 

However, public land and resource management has come a long way since then, and now governs myriad “beneficial uses” of water, which may or may not conflict with individual mining operations (hence the permitting process).  In “wilderness” areas, especially, human activity is highly regulated in order to preserve pristine natural settings (e.g. no motors of any kind are allowed).

No matter whom it pisses off, this is an issue that affects all Oregonians in practice, and all Americans in principle.

(Recreation on the Rogue River, Oregon.  Photo:  NWRafting via Flickr.)

 

Follow the discussion on NPDES 700-PM

The Oregon DEQ officially begins taking public comments on the NPDES 700-PM permit on April 22, 2010.  Two more public hearings will be held by DEQ, in Pendleton and Medford. 

Check up on TENTHMIL for updates about this permit, and more to come on placer mining in the waters of Oregon.