High Court: DEQ must reevaluate Cabinet Mountains mine pollution

In 1989, Noranda had applied to build a tunnel to discharge water into Libby Creek, which is critical bull trout habitat. It requested authorization from the Board of Health and Environmental Sciences to discharge water that would exceed state water quality standards. (Earthworks photo)

The state of Montana will have to reassess the potential discharge from the proposed Montanore Mine before granting a permit allowing the mine to pollute the streams of the Cabinet Mountains, according to a court ruling.

After sorting through a bureaucratic jumble of water assessments, pollution permits and law that spanned three decades, the Montana Supreme Court on Tuesday backed a district judge’s ruling that the Department of Environmental Quality was wrong to use a 1992 state board decision to support subsequent pollution permits issued to two different companies.

The three environmental groups that filed the original lawsuit against DEQ three years ago said it was a win for clean water.

“Hecla’s claims that it would bring modern, environmentally-friendly mining to Montana ring hollow when the company has to rely on water pollution standards that haven’t passed muster since the 1990s,” said Earthjustice attorney Katherine O’Brien. “The Court’s decision rightly protects those irreplaceable waters by holding the company accountable to 21st century Montana law.”

The Montanore Minerals Corporation, a Hecla Mining Co. subsidiary, wants to dig a copper and silver mine below the Cabinet Mountain Wilderness that runs from north of Noxon and the Clark Fork River to just west of Libby.

Environmental groups oppose it and the related Rock Creek Mine because they could pollute multiple streams with copper, zinc, chromium, iron, manganese, ammonia, sediment, and other pollutants that are harmful or toxic to aquatic life. The streams are designated under Montana law as “high quality” waters and are some of the last bastions of threatened bull trout.

“The Supreme Court’s decision prevents Montanore from unnecessarily polluting Montana streams with mine pollution. Modern mines need to meet modern standards, not those that applied nearly three decades ago,” said Bonnie Gestring, Earthworks Northwest Program director.

In 2004, the parent company of Montanore Minerals Corporation took over the mine area that the Noranda Minerals Corporation started exploring in 1989.

In 1989, Noranda had applied to build a tunnel to discharge water into Libby Creek, which is critical bull trout habitat, and requested authorization from the Board of Health and Environmental Sciences to discharge water that would exceed state water quality standards. The Board had that authority prior to 1993 when the Legislature strengthened the state’s nondegradation policy.

As metal prices dropped, Noranda stopped building the tunnel in 1991 due to elevated nitrate concentrations in the stream water. In June 1992, the state of Montana sued Noranda after the federal Environmental Protection Agency said the company had violated the Clean Water Act in Libby Creek.

But that didn’t stop the Board of Health and Environmental Sciences process, and the Board issued a final decision in November 1992 allowing Noranda to degrade the surface and ground water quality in exchange for anticipated economic benefits. The provisions were to “remain in effect during the operational life of this mine and for so long thereafter as necessary.”

But when the state won its lawsuit in May 1993, Noranda was required to apply for Pollution Discharge Elimination System permit, which falls under the Clean Water Act and Montana’s Water Quality Act. Based on the Board decision, Noranda finally got that permit in 1997, which allowed pollution to be discharged in three locations on Libby Creek.

The Cabinet Mountains Wilderness. (Laura Lundquist/Missoula Current)

No pollution discharge was reported after 1998, and four years later, Noranda said it was pulling out and wouldn’t need its permits. DEQ required Noranda to keep its the Pollution Discharge permit because the company hadn’t completed its reclamation work yet so pollution could still result.

Then in 2004, Montanore Minerals Corporation showed up and submitted a plan to reopen Noranda’s mine. So in 2006, DEQ renewed the Pollution Discharge Elimination System permit it had issued to Noranda.

Montanore reopened the tunnel and, in 2010, applied for a new pollution permit for two discharge locations on Libby Creek and three new ones: two on Poorman Creek and one on Ramsay Creek. DEQ approved Montanore’s application in 2017.

Shortly there after, the Montana Environmental Information Center, Earthworks and Save Our Cabinets sued, saying, among other things, that DEQ had based its approval on the 1992 Board of Health and Environmental Sciences, which was no longer valid, and should have done a separate analysis.

Both the district court and the Montana Supreme Court agreed, saying that Noranda abandoned and started to reclaim the mine in 2002. So the permit, which was based on the more lenient 1992 Board decision, should have expired. It was still active when Montanore took over only because DEQ had insisted it remain valid during reclamation.

“It would be absurd to interpret the (Board’s) Order’s ‘as necessary’ language to include Noranda’s abandonment of the project and nearly-complete reclamation work to extend to (Montanore’s) proposed new mine project,” Justice Ingrid Gustafson wrote for the majority. Citing Montana’s Constitutional right to a clean and healthful environment, she added that, “DEQ’s use of an expired 1992 (Board) Order to sidestep Montana’s enhanced nondegredation policy, in effect since 1993, in issuing the 2017 permit was unlawful and rightly rejected by the District Court.”

But Justice Jim Rice didn’t agree.

He cautioned that the issue of the Board’s decision and the resulting permits was just a small detail among all the other aspects of the lawsuit, so it had barely been argued and maybe should be heard again. He also pointed out that opponents had failed to bring up the issue of the 1992 Board decision in 2006 when DEQ issued the first permit to Montanore.

“To permit a challenge now upon an issue that could have been raised in 2006, even if meritorious, results in the loss of 14 years of effort, a tremendous waste, and demonstrates the necessity of proper application of the governing rules and of waiver,” Rice wrote.

The Montanore Mine may still become a reality. However, DEQ must first conduct a full water degradation review and determine if Montanore Minerals Corporation’s permit is justified.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.