in Pend Oreille County
The following is a chronological list of events leading up to the Selling of Public Property to HiTest Sands, Inc., a Silicon Smelter Manufacturing Industry in Edmonton, Alberta, Canada, by POC Public Utilities District #1. The property was purchased by HiTest Sands for the proposed purpose of building a 2 stack, $300 million Silicon Smelter facility.
Spring 2015 PUD receives from HiTest a request to “prepare a proposal for power sales to the smelter.”
Jan, 2016 HiTest approaches State Rep. Shelly Short “about locating a smelter in Northwest Alloy site in Addy.”
May 11, 2016 Glen Nenema, Chairman, Kalispel Business Council to Michelle Pirzadeh, Acting Administrator, Region 10, Environmental Protection Agency, requesting from EPA “approval of our proposal to re-designate the lands within the exterior boundaries of the original Kalispel Indian Reservation a Class I area under the Clean Air Act’s Prevention of Significant Deterioration (PSD) program….due to an imminent threat and consistent with the Tribe’s longstanding efforts to protect our home from environmental pollution.”
May 12, 2016 “Concerned citizens of Golden, B.C. and Area A” lodge a protest over the promotion of this silicon smelter without “a critical analysis of its potential on the environment and tourism and recreation industries.”
Jul 6, 2016 “announced that it has completed the purchase of the Horse Creek Mineral Lease…in Golden, British Columbia, a Silica ore mine containing 99.82% Si02 purity.”
Aug 19, 2016 WA Department of Commerce announces “that a new $300 million silicon smelting facility proposed for Usk, WA has been designated a “Project of Statewide Significance and will receive $300,000 in economic assistance through Pend Oreille Economic Development Council.”
Aug 24, 2016 HiTest Land, Inc. rejects British Columbia’s offer to “process the silica sand that is mined in the region due to higher electrical prices, construction costs and Golden’s remote location, which made the site not economically viable.”
Sep 7, 2016 Notice of Sale, Surplus Real Estate Properties for Sale, Public Utility District No.1 of Pend Oreille County. Three tax parcels equally 172.47 acres located about one-half mile south of the Newport City limits. Fair Market value: $245,000.
Nov, 2016 Pend Oreille County receives $250,000 grant from the WA State Dept. of Commerce for advanced planning of the Proposed HiTest site south of Usk.”
Nov 14, 2016 POC Commissioners’ letter to Mr. Jayson Tymko, CEO, HiTest Sand, Inc. “Our entire community, especially the Kalispel Tribe is very anxious to learn more about the facility and the sooner we can start to answer their questions the better….As you proceed, we would like to reaffirm our commitment of October 12th to assist you in any way we can with planning, design, and permitting of your project.” (this letter was in reference to the Usk site).
Feb 1, 2017 HiTest Sand will not be building a $300 million smelter in Pend Oreille County. HiTest smelter going to Addy.”
Feb, 2017 Kalispel Indian Reservation Prevention of Significant Deterioration Program: Class 1 Redesignation Technical Report, Usk, WA prepared by Ridolfi Environment is completed.
Jun 7, 2017 PUD’s “Willenbrock says HiTest is looking at a site south of Newport on land owned by the PUD and Pend Oreille County.
Jun 14, 2017 “Jayson Tympko, president of HiTest Sands, Inc.,…was in Newport Monday, June 12th.” Met in the Newport Miner office with Commissioner Mike Manus, Gregg Dohrn, Sen. Shelly Short and publisher Michelle Nedved.
Jun 20, 2017 Pend Oreille County, Newport, WA Resolution No. 2017-22. “The Pend Oreille County Treasurer is authorized to sell Assessor’s Parcel No. 19182 by direct negotiations with the Pend Oreille County PUD no later than August 15, 2017, for a minimum price equal to the total appraised value.”
July 5, 2017 HiTest a Canadian Company receives $300,000.00 from the EDC.
July 11, 2017 The Pend Oreille County signs the 2017-26 Amendment to sell the County property
Aug 2,2017 The Pend Oreille County Public Utility District (PUD) buys the County property.
Sep 18, 2017 HiTest gives the Pend Oreille County Public Utility District $300,000 for the Public property the PUD paid $693,560.00 for.
by Jeff Amy, The Associated Press
Jackson, Mississippi — The legal fight over a silicon metal plant being built in northeast Mississippi is expanding.Steelmaker Nucor Corp. wants to intervene on the side of those who say the state improperly issued an air pollution permit to Mississippi Silicon. And the plaintiffs, who were already suing Mississippi Silicon, served notice Nov. 14 that they plan to include the Mississippi Department of Environmental Quality as well.
A hearing set for Tuesday was cancelled after U.S. District Judge Sharion Aycock recused herself. She assigned U.S. District Judge Debra Brown to take over the case.
Suing in this case are 16 Front Street LLC and C. Richard Cotton of Saltillo. 16 Front Street is a subsidiary of Miami-based Globe Specialty Metals that was incorporated Oct. 6, the day the suit was filed. Cotton is a writer who says the plant’s pollution would hurt his enjoyment of area parks and lakes.
Globe has sued in three other jurisdictions. Though other American companies refine silicon metal for their own use, Globe’s four plants are the only domestic producers for commercial markets.
The $200 million plant would employ 200 people, making silicon metal that would be used in making aluminum, chemicals and cars. The plant is under construction and is supposed to be complete sometime in 2016.
Rima Holdings USA owns 80 percent of Mississippi Silicon and is an affiliate of Brazil’s Rima Industrial SA. The remainder is owned by investors led by John Correnti. He led construction of what is now the Steel Dynamics mill in Columbus.
Those plaintiffs argue that Mississippi Silicon’s air pollution permit is faulty because Mississippi didn’t allow a full 30 days for comment and didn’t hold a public hearing. They claim there were 29 days at best to comment, and less time actually, because documents didn’t arrive at the Burnsville library until later. They also argue those materials didn’t state the true level of Mississippi Silicon’s pollution.
MDEQ, which can be included in the suit after 60 days’ notice, disputes those claims.
MDEQ spokesman Robbie Wilbur wrote in an email that the agency had met the legal requirements for public notice about the Mississippi Silicon permit so all who wished would have “adequate opportunity” for comment.
Mississippi Silicon CFO John Lalley said in a statement that under Clean Air Act citizen suits, MDEQ can’t be dragged into the litigation.
The plaintiffs also claim the state and Mississippi Silicon conspired to illegally shorten comments to prevent objections from Nucor, pointing to an MDEQ email. Its Alabama subsidiary, Nucor Steel Decatur, asked to enter the suit Nov. 21.
“Mississippi Silicon and MDEQ believed, rightfully so, that Nucor might exercise its statutory right to comment on the proposed permit, something which they desired to avoid, and worked to curtail and frustrate the (Clean Air Act) public participation mandate,” Nucor wrote in court papers.
Steven Rowland, an environmental manager, said Nucor wants to comment because its Decatur facility will be downwind of Mississippi Silicon. He said that means pollution from Tishomingo County could hurt Nucor’s ability to emit more pollution if it expands in Decatur.
Mississippi Silicon opposes Nucor’s intervention, saying the steel company isn’t part of the lawsuit. Mississippi Silicon said Nucor asked to enter at the last possible moment, in a delay that “reeks of gamesmanship.” Nucor objected to the Big River Steel mill that a Correnti-led group is building in Arkansas.
“Nucor’s action is in keeping with the company’s ongoing harassment of projects involving Mr. John Correnti, the man who successfully brought the steel industry to Mississippi, but left Nucor in 1999,” Lalley said. “Nucor’s lawsuit is simply a futile attempt to delay Mississippi Silicon’s project and to stop the economic benefits it brings to Tishomingo County.”
Another main driver for the reduced revenues is the continued disruption of the solar grade polysilicon market, which has been exacerbated by the expiration of the 2015 FIT in China. This has negatively affected the entire value chain and largely explains why REC Silicon posted Q3 EBITDA at minus $7.9 million.
Earlier this year REC Silicon was forced to shut down its remaining Fluidized Bed Reactor (FBR) polysilicon production lines in Washington, having earlier severely scaled back production of the technology. Capacity utilization at the site is now just 50%.
Now, further cost-cutting measures are afoot, not least the 70 job loses confirmed at Washington’s Moses Lake facility.
“We have been successful in maintaining sufficient liquidity during this period of market disruption,” said REC Silicon CEO Tore Torvund. “Because of our efforts to control costs, I expect REC Silicon to remain a low cost leader in the polysilicon industry, even at reduced prices.”
However, despite such relatively naked optimism, the CEO’s additional comments cast a pall over the Q3 report. Torvund remarked that he sees no end in sight for the U.S.-China solar silicon trade row, which levies a 25% tariff on polysilicon products from U.S. producers. “It is difficult to find a solution with so many parties involved, and the U.S. election coming up. We are not very optimistic to find a solution to the trade war in the short term but we are working on it.”
The CEO added that REC Silicon is planning for there “not to be a resolution” to the trade war, stressing that around 80% of the company’s market is affected.
The Environment Agency of Iceland has received numerous points and complaints about both smoke and burning smell from the Silicon metal factory in Helguvik in the past weeks. The factory is located on the southwest corner of Iceland, on the Reykjanes peninsula just outside of the municipality of Reykjanestown. The Agency has been looking into the case and gone on spontaneous inspection tours to obtain more detailed information.
The factory was started up on 11 November by United Silicon, it’s the first of it’s kind in Iceland and among the biggest one in the world. The Environment Agency of Iceland gave permission for the factory and has the role of inspecting it´s operation. The people living in Reykjanestown are understandably very concerned. The whole town is sometimes submerged in smoke, depending on wind direction and the cloths of the townspeople smell as if they’re all standing by bonfire and some have sought the help of doctors because of burning sensation in their lungs.
The people of the town are now raising questions about who and how the air pollution calculations and predictions were made. The name of a Danish company, COWI consulting group has been removed from the records at their own request as the one conducting the environmental assessments, so the townspeople are left with a report stating that air polluting was to be under limits but no one wants to stand by that report which now seems to be anonymous according to a report by Stundin news outlet. The Environment Agency of Iceland is looking into the case.
Featuring images is from IAV’s website
Understanding the Whatcom County vs. Hirst, Futurewise, et al. decision
Although the legislature debated solutions to address the impacts from the Hirst decision during the 2017 session, they were unable to reach an agreement on legal changes and did not pass any related legislation. We’ll continue providing assistance to property owners, local governments, businesses and others who seek information on the use of exempt wells.
In October 2016, a Washington State Supreme Court decision changed how counties decide to approve or deny building permits that use wells for a water source.
In the Whatcom County vs. Hirst, Futurewise, et al. decision (often referred to as the Hirst decision), the court ruled that the county failed to comply with the Growth Management Act (GMA) requirements to protect water resources. The ruling requires the county to make an independent decision about legal water availability.
- Building Permits and Wells: Changes due to a recent court case – January 2017
- Domestic Water Availability Maps – Whatcom, Skagit and Pierce counties
BackgroundWe protect rivers and streams across the state by creating instream flow rules, which set the amount of water necessary for protecting fish, wildlife and recreation. In 1985, we adopted an instream flow rule for the Nooksack River (WAC 173-501) in Whatcom County. This rule closed most streams in the watershed to new water right permits but allowed landowners to use permit-exempt wells in most of the area. Whatcom County’s development regulations followed our instream flow rule.
A reliable, year-round supply of water is necessary for new homes or developments. Before the Oct. 6, 2016, court decision, many counties relied on what the Department of Ecology said about whether year-round water was available. This court decision changes that – counties now have to make their own decisions about whether there is enough water, physically and legally, to approve a building permit that would rely on a well.
ImpactsThe case directly relates to Whatcom County but appears to set legal precedent that applies in other counties where there are instream flow rules that were not intended to regulate permit-exempt water uses. It is unclear how the decision affects areas of the state where there are no instream flow rules. Counties are working to review the decision and what it means for them. Contact your county’s building, planning or health departments if you have questions about how the Hirst decision may affect you.
- Science has shown that rivers and streams are generally connected to groundwater. The Washington State Supreme Court said that water is not legally available if a new well would impact a protected river or stream, or an existing senior water right.
- If your county determines that water is not legally available for your new use, the county would not be able to approve your building permit – even if you have already drilled a well.
- We are providing technical assistance to counties as they determine their next steps. Our priority will be to provide information about the status of stream closures and instream flows.
- Anyone with questions about how the decision affects them should contact their county government.
Questions and answers
I want to build using a well – what do I do now?We recommend you start by talking with your county. Each county is interpreting and applying the court case differently.
- Some counties have issued temporary laws restricting building that relies on groundwater wells.
- Some areas of the state remain unaffected by the court decision. This may change over time as counties begin to enact new ordinances.
If you live in an area affected by the new requirements from the court’s decision:
- You may be able to prove your well won’t affect protected rivers and streams or senior water rights. This would require a hydrogeological analysis, which can be expensive.
- You may be able to mitigate, or offset, the impact of your well on protected rivers and streams. However, mitigation options are limited in many parts of the state.
- You may be able to use rainwater collection, trucked water or cisterns as other potential sources of water.
Talk with your county’s building, planning or health departments to find out if any of these options are available.
Where is water available for new homes in Whatcom and other counties?For detailed information, contact your county’s building, planning or health departments. Upon request of county government staff, we are creating interactive maps to assist them in determining legal domestic water availability in their communities. The maps show where water is closed to new uses and areas where instream flows are not being met, based on our analyses. The maps are intended to be general guidance.
- Domestic Water Availability Maps Whatcom, Skagit and Pierce counties
What is an instream flow rule?An instream flow rule is a regulation adopted in the Washington Administrative Code to protect rivers, streams and other water bodies. The legislature directed us through state law to protect and preserve instream resources. One of the ways we fulfill this mandate is to set instream flows in rule.
- Instream flows are the stream flow levels that will protect and preserve instream resources and values. Once established in a rule, an instream flow is a water right for the stream and the resources that depend on it. It has a priority date like any other water right. Currently, there are 26 instream flow rules in our state.
- Instream flow rules also establish closures, meaning we determined that water is not available from certain waterbodies. Closures can be year-round or seasonal.
- Instream flow rules do not affect existing (senior) water rights, rather, they protect the river from future withdrawals. Setting instream flows does not put water in streams.
Counties with Instream Flow Rules – December 2016
Why do some instream flow rules govern permit-exempt wells but others don’t?We began adopting instream flow rules in 1976. Rules that were adopted before 2001 do not specifically govern permit-exempt uses of groundwater. This is the case with the Nooksack River rule in Whatcom County.
The instream flow rules developed since 2000 are much more comprehensive than their counterparts in the 1970s and early 1980s. These newer rules address the use of permit-exempt groundwater.
What about permit-exempt wells that started being used after an instream flow rule was established?We view the court’s decision as going into effect starting on the date of the decision. Anyone who intends to develop their property, including those landowners who have a well but haven’t yet obtained a building permit, should contact their county to determine how the county is responding to the court decision.
What counts as a permit-exempt use of groundwater?You need a water right permit or certificate from Ecology before withdrawing groundwater, but there are four exceptions for small uses:
- Providing water for livestock (no gallon per day limit)
- Watering a non-commercial lawn or garden one-half acre in size or less (no gallon per day limit, however limited to reasonable use)
- Providing water for a single home or groups of homes (limited to 5,000 gallons per day)
- Providing water for industrial purposes, including irrigation (limited to 5,000 gallons per day but no acre limit)
Although these permit-exempt uses don’t require a water right permit, you are still subject to state water law.
What is mitigation?Mitigation is offsetting water use to neutralize impact on protected water bodies. For example, mitigation could be offsetting the adverse impacts of a new withdrawal with an equal quantity of water from a water right that is senior to the instream flow rule. Water banks are used for mitigation in some parts of the state, but this option is not available everywhere. Recent Washington State Supreme Court cases have reduced our ability to find mitigation solutions.
Talk to your county about potential mitigation options in your area.
If I already drilled a well but haven’t yet built on my property, can I use that groundwater?There are no restrictions on a property owner’s ability to drill a well. However, drilling a new well does not guarantee legal access to water. And, under the Hirst decision, counties may not be able to issue a building permit for legal use of a well if that use would impair an instream flow. Even those who already have a well on their property may not be able to build a home using that well.
Talk to your county building, planning or health departments if you have questions about drilling or using a new well.
What is my county doing? What is Ecology doing?Your county may now be responsible for making their own water availability decision when considering a building permit. Contact your county’s building, planning or health departments to learn about:
- Possible impacts to building plans
- Water availability
- Mitigation options
We are working with counties and the Washington Association of Counties as they process the decision and determine their next steps. We will continue to provide technical assistance to counties to support their water availability decisions. Contact us to learn about:
- Protecting rivers and streams
- Water right permits
- Uses of water for which you don’t need a water right
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