Court: DEQ can enter Zortman-Landusky mine to clean ‘disturbances’
Darrell Ehrlick
(Daily Montanan) In a move that officials said will protect nearly $100 million of money spent to clean up the decades-long toxic effects of gold mine waste near the Fort Belknap Indian community, the Montana Department of Environmental Quality on Monday announced that a Phillips County judge said the state could immediately begin clean-up efforts after the owner of the site disturbed the area with eight different unauthorized mining explorations.
Zortman-Landusky mine owner Luke Ployhar is accused of eight separate mining violations at the former mining site, which has also been the site of a huge remediation project that will likely last forever.
The Pegasus Gold Corporation went bankrupt more than 20 years ago, leaving state and federal officials to deal with the toxic effects of cyanide leaching techniques, which collected gold while leaving an environmental catastrophe behind. Officials with the state have said that because of the geology of the area, water remediation will likely be needed indefinitely to protect the Fort Belknap Indian Community.
The Montana DEQ had issued Ployhar, the mine property’s current owner, citations and fines totaling more than $500,000 for unauthorized mining projects around the site. In June, the Fort Belknap Indian Community, along with three conservation groups, also filed with the district court to intervene in the issue.
“While DEQ needs to remediate the site, we had hoped it could be resolved through a reclamation plan with the property owner,” said DEQ Mining Bureau Chief Dan Walsh. “Unfortunately, we were not able to resolve it directly with the property owner and had to seek a preliminary injunction. We are looking forward to reclaiming the land and protecting the remedy that is in place at this site.”
The DEQ has also filed for penalties and a permanent order from the court to stop future activities and order penalties. A future court date by Phillips County District Court Judge Yvonne Laird has not been set.
However, the judge’s order, issued last week, grants DEQ the right to enter the property and begin remediation.
The controversy dates back several years when Ployhar used a lapse or oversight by the federal government in which it did not renew land protections for a small period of time to attempt to restart limited mining activities on the site. The loophole has since been closed and mining activities at the Zortman-Landusky site are barred for nearly two decades – the maximum allowed by federal law. However, Montana DEQ said that because Ployhar had filed his claims legally during the narrow time the mining moratorium had lapsed, it would consider any mining exploration permit, but not without those requests addressing how to protect the fragile environment and the millions of dollars that had been spent to clean the toxic acid mine drainage, which has taken more than $80 million, according to state calculations, and will require at least $24 million of ongoing mitigation.
However, Montana DEQ noted that in August 2021, Ployhar and his associate, Owen Voight, created eight “disturbances” at the former mining site.
“Defendants did not have exploration licenses, operating permits or post performance bonds,” said a court filing in the case.
The DEQ provided the court and the Daily Montanan with records which amounted to multiple attempts to contact, understand and remedy the problems from Ployhar.
Ployhar’s attorney has not responded to repeated requests for interview about these disturbances when contacted by the Daily Montanan.
“Ployhar has also indicated that he intends to conduct reclamation that has not been approved by DEQ and limit DEQ’s access to the disturbances,” the court records show. “Without proper reclamation of these disturbances through necessary oversight and approval by DEQ as required under the Metal Mine Reclamation Act, there is substantial risk that acid rock drainage from the previously reclaimed Zortman mine could infiltrate the groundwater, resulting in irreparable injury to the surrounding Zortman community.”
The state regulators discovered the eight locations where Ployhar had restarted some mining exploration. In March 2022, the DEQ was conducting “routine imagery check” of the properties when it identified seven “disturbances,” including one at the Alabama/Ruby adit portals (entrances) which he had previously discussed with DEQ officials. According to court documents, they advised him not to do so and he had not submitted any exploration license applications and no bonds.
The next month, Ployhar said the disturbances were for developing “several campground sites that will contain cabin, recreation vehicle and tent sites.” However, DEQ officials noted that Ployhar “did not provide any information or documentation to corroborate its claim that disturbances were created for developing campground sites.”
When officials from the DEQ went on site earlier this month, the disturbance at the Ruby/Alabama site was 0.42 acres and 23 feet deep, according to court documents.
In May 2022, DEQ found evidence of a formerly closed mine entrance, called “Pink Eye” which had “materials removed” and the opening had been “altered.”
The DEQ also noted that location was part of an area where Ployhar and Voigt had submitted an application for exploration but withdrew it, but not before Voigt had informed DEQ that he “obtained gold assay results from.”
“A cart was also observed within (the area) for rock to be hauled out of the tunnel to the surface,” court documents said.
Court documents detail the disturbances and why the DEQ pushed to gain access to the site as soon as possible.
“Specifically, backfilling and capping were compromised by the activity undertaken at the site with vegetation, soil and capping material removed and no corresponding salvage of the topsoil or protective steps to address water impacts,” the DEQ attorneys claim. “The disturbances create a substantial risk that untreated water from the Zortman mine will further impact groundwater and impact downstream surface water.”
The DEQ issued fines to Ployhar and his mining company, Blue Arc, for $516,567.
In March 2023, in the midst of fines and investigations, a letter from Ployhar’s attorney said it would begin mining reclamation which said, “DEQ’s participation/supervision will not be necessary.” The letter also suspended “any prior permissions for access to the property granted to DEQ, the tribes, or other organizations,” and would only allow access that was specified in the 2001 purchase agreement.
DEQ hydrogeologist Wayne Jepson told the court at a hearing that the DEQ was increasingly concerned about water at the site that would not be treated because of the carefully-designed water system that had been adapted and engineered during the course of more than 20 years. Scientists and engineers designed the mine site, assuming that nothing would be disturbed.
“Jepson testified that the disturbances create substantial uncertainty about the efficacy of the water collection and treatments system that could result in irreparable harm to the state if left unreclaimed,” the court documents said.
Jepson explained that by disrupting the current drainage system, water can infiltrate deeper into bedrock, jeopardizing water supplies, while other water may bypass the current system.
“If any further excavation into this area occurs, Jepson testified there is a substantial likelihood of this infrastructure being damaged,” the court record shows. “Jepson also testified that infiltrating water can now more easily bypass the water treatment facilities as well which cause an increased risk of formation of acid mine drainage reaching the water supplies of Zortman and the Fort Belknap Indian Community.”