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Spring/Summer 2006 News
by Michelle Berditschevsky
Another Round in the Ninth
Circuit
In late May, while a blanket of snow still covered the Medicine Lake
Highlands, our attorneys at Stanford Legal Clinics received an order
seeking additional briefing on our Ninth Circuit Court of Appeals
lawsuit challenging the Fourmile Hill geothermal project. The panel
of three judges ruling on the case specifically asked about our
argument that BLM illegally renewed the geothermal leases without
doing environmental review or consultation with Native Americans.
The judges want the attorneys' views on how the 2005 revisions to
the Geothermal Steam Act (GSA) might affect the argument. The
defendants in the case, BLM and Calpine, received similar requests
from the court.
When they were awarded in the 1980s, the leases gave geothermal
companies like Calpine full rights to explore, develop and sell
geothermal energy, with minimal environmental review and no
consultations with Native Americans. When they came up for renewal in
1998, the agencies knew that there was great public and Native
American concern about the environmental and cultural impacts on the
sacred, near pristine Medicine Lake Highlands. Our lawsuit argues that
at this point, the agencies should have taken a hard look, through
environmental review and consultations, at whether geothermal
development was even appropriate for the Medicine Lake Highlands—a
question that has never been asked.
The changes in the GSA came as a result of the Energy Act of 2005
which was designed with heavy influence by the industry to make laws
more "streamlined" for all energy developers. This is a continuation
of the Bush business-friendly policy. The outcome of the Ninth Circuit
case could still be a few months away, hard to tell….
Big Splash at Water Board
The pristine aquifer beneath the Medicine Lake Volcano feeds the
largest fresh water springs in California, the Fall River Springs,
which are among the most voluminous in the entire United States. This
was a key factor at a hearing involving Calpine Corporation’s attempt
to obtain a waste discharge permit for its geothermal projects from
the Central Valley Regional Water Board in Rancho Cordova on May 4th.
The four-hour hearing rose to dramatic intensity with testimony by the
Ecology Center and the Pit River Tribe, together with attorneys and
our hydrogeology consultant.. Our team challenged Calpine’s position
that drilling numerous wells and temperature gradient holes, that the
dumping of up to 60,000 gallons of highly toxic hydrofluoric acids
into every geothermal well, and that the piping and discharging of
effluent laden with arsenic and mercury into million-gallon sumps
would not have serious effects on surface or ground water.
It was reassuring to be finally heard after all these years. The Water
Board took these issues seriously despite Calpine, Calpine’s attorney,
and the regional Water Board staff recommending the adoption of the
permit. Board members contended that Calpine was piecemealing the
permitting process, and that the Environmental Impact Report did not
cover the grave issues.
Calpine admits plans for up to 10 power plants…
When queried by members of the Water Board who had concerns that the
project, which would produce a mere 50 megawatts of electric
production, may not warrant the impacts on such a large water source,
Calpine avowed that it could lead to development of as much as 400 to
500 megawatts in the Medicine Lake Highlands.
This translates to as many as ten power plants with associated well
fields and pipelines. The Telephone Flat project alone would cover
eight square miles of the Medicine Lake Caldera, a designated Native
American Traditional Cultural District on the National Register of
Historic Places and a popular recreational destination.
Tribal issues
The Pit River Tribe, represented by Councilman Gene Preston, stated
that "given the high risks of contaminating…the lakes, springs,
streams and underlying aquifer of the Medicine Lake Highlands, the
geothermal project under consideration is incompatible with the
state's policy to prevent degradation of surface or groundwater." He
emphasized that "the Medicine Lake Highlands’ pristine pure waters are
a key element of the area’s cultural significance… The waters are used
for ceremonial, healing and life sustaining purposes…[and] the Tribal
cultural requirement is that the waters must be pure.”
Hydrogeology speaks
Dr. Robert Curry, a hydrogeologist testifying on behalf of the Pit
River Tribe and Mount Shasta Bioregional Ecology Center, held the
audience spellbound with a power point presentation of the
characteristics of the Medicine Lake Volcano and what is known of its
underlying aquifer. He stated that it would be very difficult to
monitor any contamination that could show up in 20 to 100 years, and
that at least 85% of the Fall River Springs come from the Medicine
Lake Volcano. Besides the acidization process, another danger is that
the geothermal fluids, which are known to contain toxic substances,
can leak up along fault lines in the strata and thus potentially
contaminate the huge fresh water aquifer. He spoke about the
inadequacy of the monitoring wells, which were too shallow and
confined mainly to the project area, and so would not detect leaks or
accidents at deeper levels.
Legal matters
A legal issue of great concern to the Ecology Center and the Tribe is
the lack of environmental analysis of the use of hydrofluoric and
hydrochloric acids. The draft permit indicates that up to 60,000
gallons of acids may be injected for the purpose of dissolving
precipitated minerals from fractures in the rock strata in order to
pool the geothermal resource. Hydrofluoric acid is a highly corrosive
liquid, classified as "extremely hazardous" under the Superfund law,
and hydrochloric acid has similar hazardous properties.
"The storage, handling, injection, and discharge of this material,
therefore, poses potentially significant environmental impacts to both
humans and surface and subsurface resources in the area, including the
drinking water aquifer resources through which any deep geothermal
injection and extraction wells must pass," stated the legal testimony
of the Stanford Legal Clinic team, consisting of Deborah Sivas and
Aidan McGlaze. "Given these facts, it is astonishing that there has
never been any CEQA analysis of the proposed use of hydrofluoric or
hydrochloric acid at Well No. 31-17," the well at which this substance
would be permitted.
In the federal process, BLM has concluded that no further acidization
may take place until NEPA review is completed. However, the Assistant
Secretary of the Interior permitted acidization of one well
concurrently with the Bush administration's reversal of the original
local BLM decision to deny the Telephone Flat project.
Just like Drano
Continuing Calpine’s strategy to minimize the gravity of environmental
effects, their representative, Charlene Wardlow, likened the
acidization procedure to simply pouring Drano down a sink, to which
Peggy Risch, speaking for the Ecology Center, retorted: "I don't know
about your sink, but mine doesn't empty into one of the purest
aquifers in California." Ms. Risch also cited the failure of the
permit to involve the Department of Toxic Substances Control in the
discharging process, and that the North Coast Regional Water Board had
specifically denied the acidization process in a similar permit.
BLM state geologist Sean Hagerty admitted that acidization was very
controversial in the Medicine Lake Highlands, though the substance had
been used in a few other instances elsewhere and once in 1989 for a
well at Telephone Flat. Because of the public controversy surrounding
this procedure’s potential effects in this volcanic terrain, and
admitting that acidization had not been studied in any environmental
document, BLM had decided to limit acidization to the one well that
had been approved by DOI Assistant Secretary Rebecca Watson in 2003.
Besides acidization, Ms. Risch stated some of the Ecology Center’s
numerous other issues, including failure to do any environmental
review of underground pipelines, and the use of outdated environmental
documents to justify some of the exploration wells. Center Director
Michelle Berditschevsky added concern over Calpine’s Chapter 11
Bankruptcy and the uncertainty of the corporation’s future in covering
bonding requirements in the event of accidents and for closure of the
project.
Continuing the process in September
After discussion, some members of the Water Board recommended outright
denial of the permit. However, the consensus was to continue the issue
to a later Board agenda. At this point, it would be either the Board’s
August or the September meeting. Besides the issue of inadequate
environmental review on the acidization process, other unresolved
issues included potential lack of financial resources and need for an
adequate bonding package, as well as a better understanding of the
impacts of leaks and accidental releases, and a risk analysis to
ascertain the potential dangers to drinking water for 23 million
Californians.
We were left with the impression that this was a very different kind
of venue for Medicine Lake. The federal agencies we have been dealing
with seem more removed, and even though local officials initially
denied the Telephone Flat project, they were ultimately subject to the
Bush powers in Washington DC who reversed their decision and approved
the project. With water quality issues, the buck stops with the state
we all live and drink water in. We who live near the pristine sources
have a special responsibility.
PLEASE
TAKE ACTION!
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