Judge Sherlock Revokes Revett's Wastewater Discharge Permit
Judge revokes permit because of arsenic in the groundwater.
Judge Sherlock Revokes Revett’s Wastewater Discharge Permit
In a recent court decision, Judge Sherlock, a Montana state court
judge, issued an order revoking Revett’s MPDES (Montana pollution
discharge elimination system) permit which would have allowed the
company to discharge arsenic and other pollutants into the Clark Fork
River. Judge Sherlock found the state-issued permit to be in clear
violation of Montana state law. In allowing the company to discharge
arsenic into ground waters from an unlined tailings impoundment, the
state’s permit is an unlawful violation of both the Montana
Constitution and the Montana Water Quality Act. Under the Montana Water
Quality Act, a known carcinogen, such as arsenic, cannot be discharged
at concentrations greater than those present in the receiving water (in
this case the ground water below the tailings impoundment).
The Alliance’s attorneys argued that the permit is illegal, not only because of the arsenic discharge, but because the mine’s main discharge of 3 million gallons per day is permanent and will require perpetual treatment. Under Montana’s state constitution, a clean and healthy environment is a fundamental right guaranteed to all Montana citizens. Because a perpetual discharge is a threat to this right, our attorneys argued that the state’s action in issuing the discharge permit should be held to the highest standard of review and should establish a compelling state interest. In other words, the state should provide clear and convincing evidence that the authorized discharge is not infringing on the rights of Montana citizens to a clean and healthful environment. How can a perpetual discharge of pollutants be protective?
Other arguments centered on the state’s authorization of a direct flow of untreated water containing metals into Rock Creek any time between April 1 and July 1. The state assumes there will be enough water during this time to dilute the pollution, but has no data to justify this assumption. Rock Creek is particularly vulnerable to metals pollution because of the low hardness of the water, resulting in metals being potentially more available and harmful to fish.
While Judge Sherlock revoked the permit based on the discharge of arsenic, he did not consider the constitutional argument or the legality of the discharge to Rock Creek. Instead, he requested a trial to hear additional testimony on these claims.
What is clear is that Revett cannot move forward without a wastewater discharge permit. What is not clear is how the company will deal with the arsenic discharge. Short of lining the tailings impoundment, a protective measure the state did not require because of the cost to the company, there seems to be little the company can do to eliminate the discharge. Revealingly, Revett’s Chief Engineer, Carson Rife, believes that the original data in the EIS must be in error (Bonner County Daily Bee, Mar. 28, 2006) and that further analysis by the company will demonstrate that Revett’s discharge will not increase the concentration of arsenic in receiving waters. Be assured that we plan to carefully monitor the re-write of the new MPDES permit that the company and state are currently working on.
Stay tuned for more developments in the state case.
The Alliance’s attorneys argued that the permit is illegal, not only because of the arsenic discharge, but because the mine’s main discharge of 3 million gallons per day is permanent and will require perpetual treatment. Under Montana’s state constitution, a clean and healthy environment is a fundamental right guaranteed to all Montana citizens. Because a perpetual discharge is a threat to this right, our attorneys argued that the state’s action in issuing the discharge permit should be held to the highest standard of review and should establish a compelling state interest. In other words, the state should provide clear and convincing evidence that the authorized discharge is not infringing on the rights of Montana citizens to a clean and healthful environment. How can a perpetual discharge of pollutants be protective?
Other arguments centered on the state’s authorization of a direct flow of untreated water containing metals into Rock Creek any time between April 1 and July 1. The state assumes there will be enough water during this time to dilute the pollution, but has no data to justify this assumption. Rock Creek is particularly vulnerable to metals pollution because of the low hardness of the water, resulting in metals being potentially more available and harmful to fish.
While Judge Sherlock revoked the permit based on the discharge of arsenic, he did not consider the constitutional argument or the legality of the discharge to Rock Creek. Instead, he requested a trial to hear additional testimony on these claims.
What is clear is that Revett cannot move forward without a wastewater discharge permit. What is not clear is how the company will deal with the arsenic discharge. Short of lining the tailings impoundment, a protective measure the state did not require because of the cost to the company, there seems to be little the company can do to eliminate the discharge. Revealingly, Revett’s Chief Engineer, Carson Rife, believes that the original data in the EIS must be in error (Bonner County Daily Bee, Mar. 28, 2006) and that further analysis by the company will demonstrate that Revett’s discharge will not increase the concentration of arsenic in receiving waters. Be assured that we plan to carefully monitor the re-write of the new MPDES permit that the company and state are currently working on.
Stay tuned for more developments in the state case.