Montana's top bench blocks mine pollution permit

by KEITH KINNAIRD
News editor | November 21, 2020 1:00 AM

SANDPOINT — The Montana Supreme Court is ordering the state to conduct a fresh review of a pollution permit sought by developers of the proposed Montanore Mine.

The state's top bench ruled in a split decision Tuesday that the Montana Department of Environmental Quality relied on an expired discharge permit dating back to 1992 when it issued a 2017 permit for the copper and silver mining project in Lincoln and Sanders counties. The decision remands the permit back to Montana DEQ for further review.

The original developers of the project, Noranda Minerals Corp., sought authorization to lower ambient surface and groundwater quality in mine discharges by relying on a clause in a non-degredation policy which allows reduced water quality if a project has beneficial economic and social impacts.

However, Noranda subsequently ceased construction of an evaluation adit due to elevated nitrate concentrations in surface water and slumping metal prices. The company was subsequently forced to obtain another discharge permit after the state and the U.S. Environmental Protection Agency accused the company of violating the Clean Water Act at Libby Creek.

Noranda advised Montana DEQ and the U.S. Forest Service that it was relinquishing federal approval to develop the mine in 2002 and asked for the discharge permit to be terminated, but DEQ denied the request because reclamation of the project was still underway.

Mines Management Inc. acquired the project with the intent of developing the mine and obtained a new discharge permit in 2017, prompting environmental groups to file suit in state court over the reliance on the 1992 permit. The litigation caused the permit to be invalidated because the operational life of the mine ceased when Noranda abandoned the project and relinquished its federal mining authorization and began reclamation.

The state and DEQ argued on appeal that the operational life of the mine never ended, although the supreme court found this position to be incorrect.

"Without the relevant permits to operate a mine, which Noranda voluntarily gave up, it is abundantly clear that the mine could no longer be considered 'operational' in any sense," Justice Ingrid Gustafson said in the 24-page ruling.

Justices Mike McGrath, Beth Baker and Dirk Sandefur concurred. Justice Jim Rice, however, dissented. Rice said the issue of DEQ's reliance on the original permit could — and should — have been challenged after its renewal in 2006.

"It was not challenged then, and therefore, it appears the issue is being challenged here 14 years too late," wrote Rice.

Katherine O'Brien, an Earthjustice attorney who represented the groups who represented conservation groups in the litigation, said the ruling protects pristine streams and throws water on claims by the project's current owner, Hecla Mining Co., that it would bring modern, environmentally friendly mining to Montana.

"The court's decision rightly protects those irreplaceable waters by holding the company accountable to 21st century Montana law," O'Brien said.

Mary Costello, executive director of Save Our Cabinets, also cheered the ruling.

"Our heritage of spectacular public lands and clean water are part of what makes Montana so unique," she said. "This decision affirms that the federal and state laws enacted to protect these irreplaceable resources must be followed by everyone."

A message seeking comment from Hecla was not immediately returned on Thursday.

Keith Kinnaird can be reached at kkinnaird@bonnercountydailybee.com