Montana SupCo halts coal field expansion near Colstrip
Darrell Ehrlick
(Daily Montanan) The Montana Supreme Court has reinstated an order that halts Westmoreland Rosebud Mining from expanding its coal mining operation near Colstrip because the state failed to properly consider expert testimony on water quality.
The decision sends the case back to the district court, the Montana Board of Environmental Review and the Montana Department of Environmental Quality for more consideration. It is a process that began in 2009 when Westmoreland Mining sought to expand the coal mining operations, which are used exclusively to fire a power plant in Colstrip.
In a largely technical opinion spanning nearly 60 pages, Montana Supreme Court Justice Mike McGrath wrote the opinion for the court, which was unanimous. It considered eight different issues on the appeal, and agreed with district court Judge Katherine Bidegaray on three issues, while sending five others back for further clarification and consideration.
Most substantially, the high court’s decision, issued Wednesday morning, said that the DEQ and the Board of Environmental Review had failed to properly consider the cumulative effects that the mine’s expansion would have on groundwater. Because of that, the court ordered the board to reconsider its decision in a way that aligned with Montana law.
The court also faulted the Board of Environmental Review for allowing the DEQ and Westmoreland to present certain information while limiting the conservation groups’ ability to do the same.
“The District Court determined that allowing DEQ and Westmoreland to present post-decisional evidence and analyses simultaneously limiting conservation groups to evidence and argument contained in their pre-decisional comments ‘created an uneven playing field’ and was plainly prejudicial,” the court said.
Much of the case focused on additional pollution that would affect the East Fork of Armell’s Creek. While experts for the DEQ and Westmoreland said that additional mining would increase pollution, they downplayed the effects, saying it would just extend the “recovery time” for reclamation, but not damage it forever. A DEQ expert testified that the increased time would be from “tens to hundreds of years.”
The Board of Environmental Review, which was called upon to adjudicate the matter when it was challenged by the environmental groups, the Montana Environmental Information Center and the Sierra Club, determined that approving the mining permit would only delay a return to the creek coming back into compliance with the law, but would not permanently prevent it from being reclaimed.
However, the Montana Supreme Court said the board had misinterpreted the law, saying that because the parties agreed that additional mining would increase pollution in the water it would likely mean violating established water quality standards. Because of that, the high court sent the decision back to the board for reconsideration.
“If the proposed mining operation will have some causal effect on water quality, DEQ cannot ignore its combination with the ‘cumulative impact’ stemming from ‘all previous, existing, and anticipated mining’ in the area in its determination of whether the proposal will lead to a violation. Thus, a proposed mining operation that will have only a small impact on a stream may still fail to be ‘designed to prevent material damage’ if other anticipated mining in the area has pushed the water body 99% of the way to a water-quality violation, and the new proposed operation’s small impact is the proverbial straw to break the water-quality camel’s back.”