Montana SupCo restores permit for mine near Smith River
Darrell Ehrlick
(Daily Montanan) The Montana Supreme Court on Monday overturned a district court decision that blocked a proposed 1,888-acre mine near Sheep Creek, which feeds into the Smith River watershed.
In a split 5-to-2 decision, Justice Beth Baker wrote for the majority of the court that the Montana Department of Environmental Quality relied on expert resources when considering the mine and remediation, and that it was not court’s role to substitute its judgment for that of the agency experts who concluded the project was safe.
Justices Ingrid Gustafson and Laurie McKinnon disagreed with the majority in their dissenting opinion.
The case focuses on familiar issues in Montana: A copper mine with the potential for devastating pollution near a beloved part of a Treasure State natural attraction, the Smith River.
At issues was whether Sandfire Resources, known as “Tintina,” are proposing the correct safety measures to ensure that the ore that’s processed is not exposed to air and water, causing oxidation which leads to toxic acid mine drainage.
The district court originally cancelled the permit issued by the Montana DEQ, saying it had failed to take proper precautions to safeguard the environment from harmful degradation. Even after the Montana Supreme Court overturned the decision, the mine is not guaranteed. Groups have also challenged the water permit issued to the mine for operations, which was filed in a different case, but could ultimately halt the project. That case is also pending before the Montana Supreme Court.
Mining waste into mining paste
Tintina proposes to handle the mining tailings, which could oxidize and transform into acid rock drainage, by mixing it into a “ultra thick” paste with cement which would be applied in thin layers, allowing it to dry.
The paste would then dry, leading to a thick concrete-like substance that would be hard to permeate, therefore unlikely to leak acidic mine drainage or oxidize because it would not be exposed to air or water. A layer of high-density plastic would also line the material, and it would be surrounded by clay and other materials that are resistant to water penetration.
The Montana Supreme Court found that the Meagher County Judge Katherine Bidegaray had incorrectly substituted her judgment, instead of deciding whether the Montana DEQ had taken sufficient steps to arrive at a sound judgment.
“Courts should not substitute their own judgment for that of the agency by asking whether the agency’s decision was the ‘correct’ one scientifically, morally or politically,” the opinion said. “Courts instead interpret the law and determine if the agency made its decision with sufficient information or if ‘the decision was so at odds with the information gathered that it could be characterized as arbitrary or the product of caprice.’”
The high court noted that the record showed that the binding materials and the approach met standards that are even higher than those set by the United Nations in an effort to eradicate mine failures.
“The binder selection and amount are site-specific,” the court said. “And that surface cemented paste tailings posed an extremely low-to-no-risk of catastrophic failure.”
While Bidegaray’s original opinion seemed to dwell on the specifics of the binder cement of the tailings and if earthquakes or water seepage posed a threat to nearby water supplies, the Supreme Court said that neither the environmental groups challenging the ruling nor the court quibbled with two other methods that would be used to help insulate against an environmental catastrophe. Those precautions include a high-density plastic liner.
“Given the … evidence, we disagree with the district court’s characterization of DEQ’s review of the issue of oxidation as random and unreasonable,” the Supreme Court said in its decision. “Again, DEQ balanced various concerns — ensuring that tailings would have time to set into a non-flowable mass and covering tailings in a timely matter to prevent exposure and oxidation.”
“The agency’s decision was ‘scientifically driven,’ informed by ‘substantial agency expertise,’ and is entitled to considerable deference.”
The groups which had originally challenged DEQ’s permit were Montana Trout Unlimited, Montana Environmental Information Center, Trout Unlimited, Earthworks and American Rivers.
“This marks another sad example of Montana’s lenient mining and permitting laws allowing for the development of a large-scale, high-risk mine to be built without proper regard for the other values of a place, including its water quality, quantity, fisher, wildlife, recreational opportunities and cultural heritage,” said David Brooks, executive director of Montana Trout Unlimited. “Fortunately, our fight to protect the Smith is not over.”