DEQ director defends decision

After more than 11 years of regulatory hurdles, the United States Forest Service and the Montana Department of Environmental Quality issued records of decisions for the Montanore Mine project in Lincoln County. The decisions represent a significant milestone for the long-awaited mine, but the state’s record has come under fire from both mine owners and federal elected officials.

Department of Environmental Quality director Tom Livers determined the hydrology models showed the possibility of long-term stream degradation. The uncertainty of such degradation makes it unlawful for DEQ to issue a full permit, so the department issued a record allowing for the construction and evaluation phase of the operation, but requiring additional analysis of potential stream degradation before authorizing full production.

“In MMC’s model, the construction phase was combined with the first two years of mining: modeling of activities of just the construction phase was not completed,” Livers wrote in the record of decision. “The modeled period had estimated average inflows of 450 gpm of adit water and 30 gpm of mine water... Based upon the uncertainty of the model predictions discussed previously, I am unable to determine that stream flow changes resulting from the proposed construction phase (including mining activity through project year eight) would remain in compliance with nondegradation rules.”

Because the streams in question are classified by Montana law as Outstanding Resource Waters, no permits can be legally issued which would result in any level of degradation. The issuance of a permit in violation of Montana law could jeopardize the legal position of the records of decision should future litigation challenge the validity of the permits.

“Authorizations to degrade may not be issued for state waters that are classified as outstanding resource waters,” Livers wrote.

Sen. Steve Daines, Montana’s senior senator, said he was disappointed the agency didn’t issue a full, unconditional permit for the mine.

“I am disappointed that Gov. Bullock and Montana DEQ have only issued a phased approval of the Montanore project and urge them to work with stakeholders towards a full approval so that this job-creating project can move forward without further delay,” Daines said in a Feb. 12, 2016, press release.

Mines Management chief executive officer Glenn Dobbs responded similarly to the decision, accusing Livers of allowing his personal agenda to interfere with the project and the economic well-being of Lincoln County.

“It is unfortunate that Director of DEQ, Tom Livers, has elected to mischaracterize the Records of Decision and the permitting of the project,” he said. “He has done a severe disservice to the Libby community, the State of Montana and Mines Management. We remain puzzled by his change in direction after more than 10 years of studies and development of the most sophisticated hydrology model in the mining industry, but clearly he is following his own agenda to the detriment of the regional economy of the state.”

Livers defended the decision.

“DEQ’s record of decision lays out our decision to approve the evaluation phase – this is where we have determined degradation of high-quality state waters will not occur,” Livers said Tuesday. “For anything beyond that, the information provided by the company and included in the environmental impact statement shows significant flow impacts to high-quality waters (in East Fork Rock Creek, Libby Creek and East Fork Bull River). We’ve raised these concerns with the company for years. On more than one occasion we urged MMC to model leaving larger unmined buffer zones around their fault lines. The company chose not to do that. If the company is able to provide us with more site specific data obtained during the evaluation phase, credible data could be used to supplement the hydrology model and conclude that development of the mine void as proposed would not result in the degradation of wilderness streams, or that modifications to the mining plan or other mitigations could avoid such degradation.”

Of concern to DEQ, Livers said, was signing a record of decision that took into account all applicable Montana laws. Should the department issue a permit going beyond their legal authority, he said,  it could jeopardize the legal position of the decision in future anticipated litigation.

“We are approving what we legally can based upon the information and analysis laid out in the Final Environmental Impact Statement,” he said. “We are making this decision mindful of all the laws that come into play here. Making a decision that is not mindful of all the laws that come into play would jeopardize the future validity of the project and would set our decision up for legal failure.”