Water and Arsenic: which came first?

Just received word about the lawsuit decision. The judge ruled against the water staff so the company won. Following is the notice sent to me this morning by our attorney:

“Hi Mike – I received the Court’s ruling on the summary judgment – summary judgment denied, without reaching the due process issues. Judge Kennelly apparently tried to interpret the statute in a way that avoids the constitutional challenges, by suggesting that the Water Board was required to do an analysis of the violations and penalties despite the mandatory penalty language. I will scan a copy of the decision to you, in case you haven’t received a copy yet.”

Judge Kennelly wrote a very thoughtful opinion. Instead of ruling on the due process issue we raised he recognized that the water agency staff took portions of a detailed statute to justify the merits of the lawsuit. His decision thusly avoids a constitutional challenge, one we are prepared to argue.

Now the central valley water board and the Governor have the chance to look into just how the water agency staff is using statutes and regulations to levy fines, delays and causing unnecessary expenses. The water board preempted the laws as intended by the legislature. The outcome of this failed motion goes beyond our case. A challenge to Sacramento to correct draconian decisions that have hurt California, especially in the blue collar workforce is at hand.

The Grass Valley newspaper (The Union) front page article titled, “Victims or Culprits? Colfax hurt by regulation or irresponsible stewards?” contains quotes by Congressman Tom McClintock said from the House floor on December 1. The Assemblyman said, “Over the past several years, this little town has been utterly plundered by regulatory and litigatory excesses that have pushed the town to the edge of bankruptcy and ravaged families already struggling to make ends meet.” He called the practices a “unconscionable”. HELLO out there! Everyone familiar with the Sixteen to One knows this to be true. But read the following written by the Central Valley Water Board staff and presented to the full board at its December 1 public meeting. It is the staff’s exact words.

Central Valley Regional Water Quality Control Board
30 November, 1-2 December 2011 Board Meeting
Prosecution Team’s Response to Comments
Tentative Administrative Civil Liability Order for the City of Colfax Wastewater Treatment Plant Placer County

“The following are Central Valley Regional Water Quality Control Board (Central Valley Water Board) Prosecution Team responses to comments submitted interested parties regarding the tentative Administrative Civil Liability Order (ACLO) for the City of Colfax Wastewater Treatment Plant. The Advisory Team extended the public comment deadline from 6 October 2011 to 13 October 2011.

“Issue No. 4: Failure to conduct receiving water monitoring or report results
Background: MMPs do not apply to the failure to conduct monitoring or to report results. These actions are considered deficient monitoring violations or deficient reporting violations and are only subject to discretionary enforcement actions. In general, when Board staff reviews monitoring reports and discovers these types of violations, it responds by issuing an NOV. The NOV will require the discharger to describe the actions it will take to stop the violations identified by staff.

“Issue No. 5: Failure to monitor the ponds
MMPs do not apply to the failure to conduct monitoring or to report results. These actions are considered deficient monitoring violations or deficient reporting violations and are only subject to discretionary enforcement actions. In general, when Board staff reviews monitoring reports and discovers these types of violations, it responded by issuing an NOV. The NOV will require the discharger to describe the actions it will take to stop the violations identified by staff.
Prosecution Team Response: Although the MRP requires that dissolved oxygen be monitored in the groundwater, the Prosecution Team will recommend that the Permitting group remove this constituent when the permit is updated in 2012. Some consultants measure dissolved oxygen while they purge a monitoring well because it is one of several parameters which can be used to determine when formation water is being recovered. It can also be used as a surrogate for petroleum hydrocarbon contamination, but that is not a concern at this facility. It is very unusual to require that dissolved oxygen be measured in the groundwater at wastewater treatment facilities, and it is not a “waste constituent” as described in the Groundwater Limitations. Prosecution staff disagree that there was any violation to report regarding dissolved oxygen.

“Issue No. 8: Failure to monitor the groundwater
Background: MMPs do not apply to the failure to conduct monitoring. These actions are considered deficient monitoring violations and are only subject to discretionary enforcement actions. In general, when Board staff reviews monitoring reports and discovers these types of violations, it responded by issuing an NOV. The NOV will require the discharger to describe the actions it will take to stop the violations identified by staff.
Prosecution Team Response: The monthly monitoring reports indicate that wells G-001 and G-002 were dry and did not have enough groundwater to sample for the above months. There is no violation if a discharger is physically unable to collect a sample.

“Issue No. 12: Additional Enforcement should be considered
Comment No. 1: The City of Colfax has committed many violations over a period of several years: however, the Central Valley Water Board has been forgiving to a fault in the face of the numerous effluent violations with the reasons given being the small size of the City and the financial hardships it faces to deal with a complex and potentially expensive situation. (SARA) The proposed waiver of penalties is inadequate and excessive (FONF).
Prosecution Team Response: The Central valley Water Board’s ultimate goal is the prosecution of water quality and beneficial uses of water of the State. To this end, the Board uses a number of regulatory approaches to ensure compliance at hundreds of wastewater treatment plants we regulate. Board staff acknowledged that the City of Colfax has had a long history of violations; however, this has also been the case for a number of other facilities because of the Board’s limited resources and need to prioritize. Prior to 2001, the Board addressed the problems at Colfax through requirement in its NPDES permits. In 2001, the Board renewed Colfax’s NPDES permit and issued a companion CDO to bring Colfax’s discharge into compliance. Subsequent CDOs issued in 2007 and 2010 were intended to keep the City under a regulatory structure to keep it on a path to compliance in light of the unique factors and circumstances that have kept the City from achieving compliance.
In 2000, the CWC was amended to include MMPs for effluent violations. The CWC also authorized the Board to require publically owned treatment works serving a small community with financial hardship to apply MMPs towards a compliance project designed to correct violations in lieu of assessing MMPs. In 2003, the Board issued an ACLO which required Colfax to spend a total of $351,000 on a compliance project in lieu of assessing MMPs. In 2008, the Board issued an ACLO for additional effluent violations and required Colfax to spend a total of $234,000 on a compliance project. Recognizing that Colfax is a small community with financial hardship, and allowing the MMPs to be applied to the compliance projects is a practical approach taken by the Board and is specifically authorized by the Legislature.
The wastewater treatment plant did not have an effluent flow meter from 1 January 2009 through 28 July 2010. Effluent flows were estimated bases on a flow meter within the treatment plant. This was a permit violation, but is not subject to MMPs. The City is now in compliance and Prosecution staff does not recommend further discretionary enforcement actions.”

I sincerely ask that you read the staff report to the same board that seeks $2.245,000 from the mining company due to its failure to file 13 reports, which by de4finition were not required according to the actual water situation on our property. We have no effluent. The water is surface or ground water. We are small and broke. We did “fail to conduct monitoring or to report results” as the staff comments about at “Issue No. 4”. Also we had serious weather related issues to even get to Kanaka Creek. What do you get from these contradictions? What else can we do to stop this regulatory and litigatory overzealous and predatory treatment?

NOTES OF IMPORTANCE from the same report:
1. Page 2. MMPs are also assessed for failure to file a monitoring report. However MMPs are not assessed if a monitoring report is submitted but is incomplete. Our reports are filed after notice of this clause.
2. Page 2. MMPs only apply to effluent limit violations of any limit defined in the NPDES permit, including surface water, groundwater, operational, or toxicity limitations. MMM declaration states that water is groundwater or surface water and nothing is added by operator.
3. Last paragraph recognizes small and financial hardship.
4. Senate Bill No 2165 February 25, 2000, Section 1(f): For purposes of this section, a single operational upset that leads to simultaneous violations of more than one pollutant parameter shall be treated as a single violation. In other words, $3,000.

The Original Sixteen To One Mine has for years been subjected to discrimination by Water Board officials. Who will address that crime?

The bogus regulations that the AG states that have been violated by the Company were never amended when the mill was closed. This is a fact that just will not go away.

The 30 day nonsense holds no water.

It would appear that the Mine is being sued, not for legitimate reasons, but for other possible ulterior motives and, or, an issue only of who and why at the Board didn’t dot the “i’s” and cross the “t’s” in their rule book when the mill was closed.

I have full confidence that an honorable judge will clearly see what is exactly taking here by a corrupt accusing Water Board that is either acting as a rogue entity of injustice or is being used as a tool for stealing by someone behind the curtain.

The U.S. government has had a city below the Denver Airport built for their prominent members in case of a massive impending danger. My question is if mankind is threatened, where will the Sacramento politicians run for cover? Who’ve got it. Also, it doesn’t hurt having a landing strip near-by.

Hark, hark. Don Russell’s Mountain Messenger article is posted under NEWS on the FORUM. Don was in attendance at the September 23, 2011 hearing. Like most familiar with the facts of the Water agency claim for $2.14 million, he has an opinion. Like Don, his opinions are on the front page of the newspaper.

I remain confident that the water agency’s motion for summary judgment will not pass the scrutiny of the Court. I expect the ruling to be: Motion Denied.

Cautious and concerned, yes we remain until the decision is filed (the Court has 90 days to make a decision). When presented with an up front question of outcome, spectators in the courtroom said it was obvious that the Water agency loses. A defense and arguments remain; therefore, the Sixteen must have its day to challenge the facts alleged by plaintiff’s $2,145,000 claim of damages to California’s public for not filing 13 reports.

Thanks to all of you who offered your prayers and well wishes. Those voices of support make a difference in our attempt to stop a monstrous injustice.

I apologize for the delay in reporting the results. Our Internet went out Saturday. I was unable to let you know until late today. Tomorrow I’ll dig deeper into this lawsuit and tell you about the most unbelievable position that the Water Board says it has the “policy “ to not do. Friends, the public is in serious danger!

How did it go? I’ve been rooting for you!

Best of Luck today !!!!

Isn’t there some kind of statute
of limitations on the issue?
We will pray!!!

Sorry, but what do you mean by constant? The arsenical sulphides are naturally occurring. Large sono filters would take out the suspended arsenic making a very clean creek. They are passive and use no power. The filter uses gravel, wood and fine ground iron sand. Something like black sand only much finer. Cheap and very effective.

Sierra County refused to pay our invoice for the immediate mandatory reduction in a known toxic discharge-taking place on the Sixteen to One mining claim named Happy Jack. Sierra County said that California’s Water Board refused to pay for remedial work due to financial hardship. We were left in a time sensitive situation and were forced to file a claim for damages before the statue of limitations played a role. The irony is obvious. The hypocrisy of the water agency is apparent. The lack of concern for water quality is clear.

Case management meeting in Superior Court of Sierra County on April 5, 2011. Both Sierra county and the California Regional Water Board, Central Valley in Sacramento are side stepping responsibility for leaking chemically toxic fluids onto the Sixteen to One property.

The irritant with this arrogant under reach by the Water Board and Sierra County towards MTBE’s caused by Sierra County and over reach for native water caused by Mother Nature is that gasoline and diesel have proven adverse effects on water quality while the natural arsenic found in water flowing onto and through our property has never been proven to adversely effect the waters of Kanaka Creek. Gasoline not arsenic is the irritant. Is it just me or do you find this non-sensible?

PRELIMINARY ALLEGATIONS

1. Plaintiff ORIGINAL SIXTEEN TO ONE MINE, INC. is, and at all times herein mentioned was, a corporation duly organized in 1911 and existing within the State of California with its principle place of business located in Sierra County, California.
2. Plaintiff MICHAEL M MILLER is an individual and resident of Sierra County, State of California, and is suing herein in his individual capacity.
3. Plaintiffs are informed and believe and thereon allege that defendant SIERRA COUNTY is, and at all times herein mentioned was, a government entity organized and existing within the State of California with its principle place of business located in Downieville, California.
4. Plaintiffs are ignorant of the true names and capacities of defendants sued herein as Does 1 through 15, inclusive, and therefore sue these defendants by such fictitious names. Plaintiffs will amend this complaint to allege their true names and capacities when ascertained. Plaintiffs are informed and believe and thereon allege that each of the fictitiously named defendants is responsible in some manner for the occurrences herein alleged, and that plaintiffs’ damages as herein alleged were proximately caused by such defendants.
5. Original Sixteen to One Mine, Inc is informed and believes, and thereon alleges, that Does One through Seven are liable for the acts of Sierra County as its alter ego, because Does One through Seven dominated and controlled Sierra County, treated the property, good will or other assets of Sierra County as their own and failed to follow government formalities. From this point forward, any reference to Sierra County includes Does One through Seven.
6. Plaintiffs are informed and believe and thereon allege that during all times herein mentioned each of the defendants was the agent and representative of each of the remaining defendants, in suing the things herein alleged was acting within the scope of said agency, and that each of the defendants is thus jointly and severally liable for the damages suffered by plaintiffs.
7. Plaintiff ORIGINAL SIXTEEN TO ONE MINE, INC. is, and at all times herein mentioned was, the owner of mining claims known as the Happy Jack and Happy Jack Extension, located in the Alleghany Mining District, Sierra County, California.
8. Plaintiff MICHAEL M. MILLER is a licensed State of California contractor, Classification A, number 423886, business name Morning Glory Gold Mines.

INTRODUCTION

9. This action is brought, in part, pursuant to the provisions of the Porter-Cologne Water Quality Control Act (Wat. Code 13000-14958). Plaintiffs seek (1) civil damages and penalties pursuant to Water Code 13002 (e); (2) relief to halt violations of the Porter-cologne Water Quality Control Act and the Federal Water Pollution Control Act (Clean water Act ) 33 U.S.C. 1251-1387; and (3) abatement of an alleged, continuing public nuisance arising from the portal of the Happy Jack mining claim.
10. Plaintiff ORIGINAL SIXTEEN TO ONE MINE, INC. is, and at all times herein mentioned was, in various times and changing conditions operating pursuant to authority granted by the Porter-Cologne Act with regard to either mine waste or surface water drainage; however at no time prior to the discovery of toxic water from the Happy Jack was plaintiff aware of water contaminated with Methyl Tertiary Butyl Ether (MTBE) or other fossil fuels on its property.
11. Concern over water contamination caused by the gasoline additive MTBE has raised new questions concerning the desirability of using the additive as a means of producing cleaner burning fuel. MTBE is used by most refiners to produce the reformulated gasoline (RFG) required under the Clean Air Act in portions of 17 states and the District of Columbia. It is credited with producing marked reductions in carbon monoxide emissions; RFG has also reduced the volatile organic compounds that react with other pollutants to form smog. Over the last few years, however, incidents of drinking water contamination by MTBE, particularly in California, have raised concerns and led to calls for restrictions on its use. In March 1999, Governor Davis of California ordered a phase-out of MTBE use in the state by December 31, 2002. Ten other states, including New York, have subsequently enacted limits or phase-outs of the substance.
12. The main environmental risk of MTBE is that it gives water an unpleasant taste at very low concentrations, and thus can easily render large quantities of groundwater non-potable. MTBE is often introduced into water-supply aquifers by leaking underground storage tanks (USTs) at gasoline stations. Although USTs are much better constructed now than in the 1980s, accidental releases still take place because of the very large number of USTs. The high solubility and persistence of MTBE cause it to travel faster and farther than many other components of gasoline when released into an aquifer. It is also released when gasoline-containing MTBE is spilled onto the ground. Because it is water soluble, it easily moves through soil, polluting both surface and groundwater.
13. Fossil fuels such as diesel and gasoline leaked from underground storage tanks owned and controlled by Sierra County hereinafter referred to as the Alleghany Barn into an abandoned mine working hereinafter referred to as the Happy Jack.
14. The levels of pollutants are greater than what is allowed by federal or state laws as determined through water testing conducted by Sierra County and the Central Region Water Quality Control Board (CRWQCB).
15. CRWQCB requires that known pollutants such as those leaked from the Alleghany Barn receive immediate mediation in order to lessen damage to the environment or public health
16. Defendants failed to take meaningful or substantial steps necessary to reduce, contain or eliminate the pollution from the Happy Jack onto Plaintiff’s property.
17. Plaintiff Original Sixteen to One Mine, Inc entered into an agreement with Plaintiff Michael Miller to take meaningful and substantial steps necessary to reduce, contain and influence the water pollution.
18. Plaintiff Miller performed such work, which accomplished a significant and substantial reduction in water pollutant discharge according to laboratory tests conducted Sierra County and CRWQCB.
19. On February 2, 2009, Plaintiff Original Sixteen to One Mine, Inc. filed a “Claim for Money or Damaged Against the County of Sierra” with the County Clerk. On March 4, 2009, the County Clerk notified Plaintiff Original Sixteen to One that the County of Sierra rejected the claim on March 3, 2009. This lawsuit is filed timely according to the instructions of the Notice of Rejection citing Government Code Section 945.6.

Just talked with Klaus Kolb, attorney for Original Sixteen to One Mine, Inc who is defending accusations by water regulators of wrongful behavior . The Attorney General office sent Superior Court of Sierra County a Request for Dismissal of the Second, Third, Fourth and “Fifth Causes of Action in the lawsuit it filed in Sierra County. Again this dismissal is filed without prejudice.(See below)

How should we react to this second request?

The letter to Klaus also says, “Regardless of this dismissal, the Board expects Original Sixteen to One Mine, Inc. to comply with its obligations under California Water Code and the federal Clean Water Act, including submitting an appropriate report of waste discharge.”

I wonder if it would be beneficial
to file a claim with State Bar
against those CDAA attorneys.

Friends
I’ve been reviewing my early research and notes shortly after being served the lawsuit initiated by the California Regional Water Board. The research brought up many questions of fact and why the suit was filed in the first place. The California Bar Association and laws require that it is a no-no for lawyers to mislead a California judge (as Gayle Filter, former lead private prosecutor of the CDAA, did here in Sierra County). The lawsuit filed by the Attorney General has a plethora of misleading “facts”, so I continue to be confused why after further review, the referee (the Attorney General) is not eliminating them as evidence and reversing the play of the water agency.

Well, that is not the point of this short note to you, who are developing your judgments about this lawsuit. It is this note that I scrawled in a notebook of legal procedural research. I offer it with humbleness:

Don’t know what to say. Don’t know what to write.
Don’t know what to pay. Don’t know what to cite.
Don’t know what to pray. Don’t know what to fight.
Don’t know how to slay. Don’t know what is right.

Thanks for your interest and ideas are always appreciated. When environmental issues are used to hinder honest work when there is no actual evidence of environmental harm, all of us suffer the consequences of misleading the court or other responsible public servants.

“This represents overwhelming indictment of the junk science used to justify nearly two decades of water diversions.” U.S. Rep. Devin Nunes, representing California’s 21st Congressional District.

Water concerns, a topic since the 1860’s, will continue in California indefinitely. There are no solutions, only options for control. Smart, dumb, foolish, wise, sensible, ignorant, impractical, magnanimous, selfish, practical, devious, well meaning and evil minded persons are running the water show in our state. Representative Nunes wrote in the Sacramento Bee, “The science used by Delta regulators is so bad that a federal judge ruled against the government in a landmark lawsuit. Yet the environmental left continues to wage a merciless attack on water users – particularly San Joaquin Valley farmers. They are shamelessly using debunked science to advocate the forced retirement of 1.3 million acres of farmland – a land mass nearly three times as large as the state of Rhode Island.”

Farming in the Sacramento Valley has continued in my family for four generations. Now I am a gold miner and producer in the Sierra Nevada Mountains. Water is a concern. The newspapers don’t have many stories about the issues a gold miner or other natural resource providers face just to operate. California’s proven gold fields are effectively shut down. The gold miners’ numbers are reduced to a faded memory. Will our crop farmers follow the same path towards extinction?

My wonderment about articles like the recent NY Times gold story (The New York Times National Saturday, February 12,2011, page A11) centers on the reporter. Then wonderment moves to the policies of the editorial staff, publisher and finally the principles of the owners. With such inane reporting what is the rest of the paper’s usefulness or credibility? To research, write and publish current stories about the great California Sierra Nevada gold belt and not expose the reader to mining in the Alleghany Mining District is silly to say the least and vacuous to tell the truth. Does a venerable newspaper such as the NY Times condone this quality of story telling?

Mining people laugh or snicker when we read stories in the Times or most publications (story titled, “Old Mines Reopen In a New Cry of ‘Gold!’ ”). Actually we cry silently to ourselves. We are outraged about the latest television assault on our credibility. With the Discovery Channel portraying gold miners and a gold operation in Alaska on national TV as serious, it is no wonder that America is not interested in gold mining. The production of America’s bountiful natural resources located in California and other states is crippled by depictions such as these. So, why are gold miners portrayed as greedy, buffoons or uncaring rapists on mother Earth? How could any serious professional reporter or organization not uncover the Alleghany Mining District during discovery and due diligence? I am baffled. How much did the reality actors get paid for their fictional portrayal of open pit gold mining?

Enough of these questions for now. Solutions are where collective activities must focus. This is just one reason that Original Sixteen to One Mine (by the way, NY Times reporter, this California company is the oldest American owned operation in the US and its premier mine, the Sixteen to One, is the longest operating gold mine in North America. How did you miss it?) struggles to keep its company afloat in an hostile, governmental environment. It is an example of gold mining in the 21st century.

Not all mines are the same and certainly not all operators are either; however, to continually cite ‘potential’, ‘may occur’, ‘could cause’ or other unproven and usually remote or non-applicable negative environmental outcomes from mining are insulting to America. Whatever your philosophical calling, political label, economic prejudice or social outlook may be, those of us who take our work seriously and have the history and knowledge to carryout environmental responsibilities in these blue collar industries of tangible production, think about what you read and hear! Ignorance is the enemy. The pendulum is moving away from reckless account based on fear. Our current situation with unlawful treatment of surface water flowing through our property is an example of willful negligence; however it is willful negligence by our public water control agency.

In the last newsletter # 53 on December 3, 2010, I mistakenly called the upcoming motion by the Attorney General on behalf of the water agency a “summary judgment”. The pending motion is a summary adjudication and is explained in the following civil code. The newsletter is posted under ‘NEWSLETTERS’ if you want to refresh your memory.

Grounds for and effect of summary adjudication; procedure on motion.

Par. 437c(f)(1) A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause or action, an affirmative defense, a claim for damages, or an issue of duty.

(2) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. However, a party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.

Sorry, we got off track…
Which came first, arsenic or water

Is it possible to know the answer to that? Maybe from a Geologists or Chemists point of view?