Admission of waste dumping at Troy mine fuels debate

By MICHAEL MOORE of the Missoulian

Environmental group wants investigation; Asarco says no laws were broken

When the Cabinet Resource Group sued Asarco last December, the central allegation was that Asarco had buried barrels of waste at the tailings impoundment of its copper and silver mine outside Troy.

By Feb. 28, CRG's attorneys had made their first discovery requests and asked the company to admit or deny the allegations of barrel dumping.

"Admit that Asarco and/or its agents deposited barrels into the tailings pond and impoundment dike at the Troy Mine during the period the Troy Mine was operating," CRG attorneys Bill Rossbach and Tim Bechtold wrote in their "Request for Admission No. 1."

On April 2, Asarco responded to the request: "Deny."

Plain and simple.

In May, CRG went back to court and asked for approval to go onto the mine site and "employ geophysical investigation techniques at the Troy Mine to locate barrels in the impoundment and dike and prove that defendant had indeed deposited barrels in the impoundment."

Asarco eventually agreed, and in mid-July a company called Echotech Geophysical ventured onto the impoundment and went to work. The company's report, which cannot be made public until later this week, was filed with the Cabinet Resource Group in September.

While Echotech was analyzing its results and producing its report, CRG's attorneys informed Asarco attorneys John P. Davis and Lee Bruner that they wanted to depose Lee McKinney, a former manager of the mine's mill. That deposition took months to arrange, but in late October McKinney eventually told CRG's attorneys that barrels had, in fact, been "deposited" in the impoundment (see special section). McKinney claimed the barrels contained flocculant, a relatively benign polymer used in the tailings process.

On Thursday, CRG's attorneys filed a motion in federal court alleging that Asarco had been less than diligent in trying to determine whether the group's claims were true. In his motion, Bechtold asked that Asarco be required to pay the costs of the Echotech work, along with attorneys' fees, required to prove the dumping aspect of CRG's claim against the company.

"Only after (CRG) had devoted time and expense to prove Asarco had indeed deposited barrels in the impoundment, Asarco amended its response to admit that it deposited barrels in the impoundment," Bechtold wrote in his motion.

In his request for costs, Bechtold said Asarco's attorneys failed to make a "reasonable inquiry" into CRG's claim, in part by failing to get in touch with McKinney, whose job included management of the tailings impoundment. McKinney, along with many other former mine employees, had been listed by CRG as a possible witness and was, of course, well known to Asarco, considering his 26-year employment with the company, Bechtold alleged.

"... Plaintiff listed many people with knowledge of its claims in its disclosures, and Asarco should have at least contacted the people Plaintiff listed for information about the alleged dumping, particularly those people who were Asarco managers," Bechtold wrote.

Had Asarco contacted McKinney early and learned of the barrel dumps, the Cabinet Resource Group would not have been in the position of hiring Echotech to prove what Asarco continued to deny, Bechtold wrote.

"The Court should find that an appropriate sanction here is to reimburse (CRG) the costs it incurred in conducting the geophysical investigation, together with attorney's fees," Bechtold wrote.

Asarco has not yet had a chance to respond to Bechtold's motion. Asarco's attorneys, who work for the Butte law firm of Poore, Roth and Robinson, were out of town Thursday and Friday and did not return messages left by the newspaper.

The sanction request is but the latest turn in a decades-long battle between Asarco, a once-dominant company now owned by a Mexican mining conglomerate, and the Cabinet Resource Group, a citizens group that formed in response to Asarco plans to mine Mount Vernon.

The current case involves allegations that Asarco disposed of industrial degreasers, solvents and other substances in the Troy mine's tailings impoundment, which holds more than 33 million tons of waste rock crushed at the mine. By doing so, the company violated federal environmental laws, including the Clean Water Act, CRG alleges.

Asarco maintains no federal laws were broken, despite its admission about the barrels.

Reporter Michael Moore can be reached at 523-5252 or 370-3330, or by e-mail at mmoore@missoulian.com