A state agency’s analysis of the methods for containing waste from a copper mine near White Sulphur Springs was adequate enough to issue a permit, and a District Court should not be allowed to substitute its judgment for that of the agency, attorneys told the Montana Supreme Court on Wednesday.
The Montana Department of Environmental Quality, Tintina Montana, Inc., the state Attorney General, Meagher and Broadwater counties are appealing to the state’s high court to reverse last year’s ruling that found DEQ erred in its scrutiny of the Black Butte Copper Project and issuing a permit.
“The only question is: Did the agency take a hard look at the project and apply its professional judgment to every issue?” said Dale Schowengerdt, representing Tintina.
Review
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DEQ sent back the mining company’s application three times for more details over the course of a review that took five years and generated 90,000 pages of documentation to support the conclusions, Schowengerdt noted. In addition, more than 40 outside experts signed off on the plan.
As a result, Tintina received approval for a 72-acre tailings facility that would store mine waste in a cement mixture that, once hardened, would prevent material from destabilizing and causing pollution. Additional tailings would be stored below ground.
“The DEQ is required to evaluate the science and weigh the evidence,” Schowengerdt said. “The courts are allowed to evaluate the process.”
In her ruling last April, however, District Court Court Judge Katherine Bidegaray found DEQ’s conclusions were unsupported. These conclusions included that the mine tailings would quickly harden into a solid mass by adding .5% of cement; that tailings would be insulated from oxygen and water that could result in degrading acidification; and tailings would not be susceptible to liquefaction due to an earthquake or mine blasting.
Defending
Attorney Jenny Harbine — representing American Rivers, Earthworks, Montana Environmental Information Center, Montana Trout Unlimited and Trout Unlimited — reiterated those concerns to the justices in defending Bidegaray’s decision. Going into detail, Harbine said the amount of cement Tintina planned to use to solidify the mine waste to avoid acidification — .5% — had never been tested, so it was uncertain whether the cement would set before other layers of tailings were added on top.
“The glaring omission on this record is whether the tailings will be sufficiently dried or set before new tailings are added in order to achieve nonflowable conditions and ultimately structural stability of the tailings facility,” Harbine said.
Jeremiah Langston, an attorney for DEQ, said the amount of cement in the tailings was moot because of all of the tailings’ other safeguards, including a dam designed to withstand a one-in-10,000 year earthquake, simultaneously with a one-in-10,000 year flood when there was a one-in-100 year snowpack.
“That’s the main thing holding back these tailings, not the tailings themselves,” he said.
Additionally, there’s a double layering of liner material to prevent seepage into the groundwater and a pumping system. The cement in the tailings only becomes important if the other measures fail, Langston said.
“Thus it cannot be contended that (cement) is the fundamental safety feature of this project,” he added.
Langston went on to argue DEQ had to balance the tailings conditions with a variety of other issues, including dust abatement, oxidation and pumpability.
“The percent of binder in this material is not a panacea,” he said. “It’s not the only thing DEQ looked at.”
In 2020, the Montana Department of Environmental Quality issued a mining permit for the first phase of the Black Butte Copper Project. The permit allows Sandfire Resources America, formerly Tintina Resources, to build roads and pads, and construct a small reservoir as it applies for future permits to tunnel underground and eventually mine and process copper-rich ore.
Questions
Justice James Rice questioned Harbine about the chances of a tailings dam failure.
“What I’m having a hard time getting my mind around with your argument is precisely, where is it that you assert that DEQ’s compliance in its analytical approach to the engineering data that’s been submitted is deficient?” Rice said.
Harbine said DEQ didn’t gather adequate information to apply its expertise to, referring to requiring an analysis of the proposed .5% cement content in the tailings or, as an alternative, requiring that Tintina’s design match the testing that it did do.
But Rice said there’s an explanation for why DEQ didn’t do the testing and that it wasn’t “arbitrary or capricious” as the plaintiffs had claimed and Judge Bidegaray found.
“Tintina’s testing showed that even with a 2% cement content tailings are susceptible to acid formation and resulting disegregation,” Harbine said.
To prevent oxidation, Tintina’s solution is to layer fresh tailings on top of other tailings every seven to 30 days, she continued. But in testing of tailings with 2% cement added, the tailings crumbled within 28 days and became acidic within two weeks.
“Testing further showed that the lower the cement content, the quicker the acid formation and disegregation occur,” Harbine said. “And despite this, Tintina never tested and DEQ never required testing of .5% cement.”
That’s because DEQ found the physical characteristics of the tailings would prevent them from forming acid, Langston countered.
Water
Concerns about water quality were also addressed, since discharge from the mine would be added to Sheep Creek, a tributary to the Smith River. The Smith is Montana’s only river requiring a permit to float during its peak season. The float is so popular the permits are awarded through an annual lottery.
Tintina is proposing to discharge as much as 398 gallons per minute into Sheep Creek. Before that, the wastewater would go through a reverse osmosis filtering process and then through an underground filtration gallery.
DEQ’s monitoring showed that nitrates, which can trigger algae growth, were present in Sheep Creek at levels higher than state standards even after mixing, Harbine said, which could harm the Smith River which already is suffering from an algae problem in summer.
To solve the issue, Tintina agreed to hold back any water releases during the summer, from July 1 through Sept. 30, Langston noted.
DEQ “didn’t contemplate this lag time problem, and its reliance on attenuation and dilution after the fact is insufficient to meet its obligations to ensure significant impacts will not occur,” Harbine said.
“If nitrogen is in excess of the standard, the only solution is to stop discharging earlier in the year,” she added. “If they do that it causes problems for their aquifer recharge under their water rights permit. It causes problems for their water balance which is part of the delicate design that Tintina’s trying to achieve to meet all of its various environmental obligations. But it was DEQ’s obligation to take this hard look, to ensure that the analysis was done, to ensure that these various design components would actually achieve the environmental protection that DEQ claims.”
‘Not required’
Yet Tintina’s attorney argued Judge Bidegaray’s District Court ruling in agreement with the environmental groups’ arguments was out of line.
“Every contention by the plaintiffs in this appeal, except for the independent review panel, is against extra-regulatory safety redundancies not required,” Schowengerdt said. “If the plaintiffs are successful, it will actually make mining less safe in Montana because no mine would ever undertake these extra precautions when they don’t have to.”
The fact that the tests were done, “should have been enough,” he added. “The problem was the district court delved into the science and instead acted like a fact-finding court rather than a reviewing court, which was its role in a case like this.”
Tintina first applied for an operating permit in 2015. The DEQ’s draft environmental impact statement generated more than 12,000 comments before the agency issued the permit in 2020. The plan calls for a 13-year production period, producing 14.5 million tons of copper ore over the mine life.
Tintina posted a $4.6 million bond to cover the reclamation costs for the first phase of construction at the Black Butte Copper Project, located about 17 miles north of White Sulphur Springs in the Little Belt Mountains.
– Tom Kuglin and the Associated Press’ reporting contributed to this story.
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