Clark Fork Coalition v. Dept. of Env. Qual.

• Decision Date: 04 December 2008
• Docket Number: No. DA 06-0774.,DA 06-0774.
• Parties: CLARK FORK COALITION, Rock Creek Alliance, Inc., Cabinet Resource Group, Inc., Montana Environmental Information Center, Inc., and Trout Unlimited, Plaintiffs and Appellants, v. MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY, Defendant and Appellee.
• Court: Montana Supreme Court

197 P.3d 482

2008 MT 407

347 Mont. 197

CLARK FORK COALITION, Rock Creek Alliance, Inc., Cabinet Resource Group, Inc., Montana Environmental Information Center, Inc., and Trout Unlimited, Plaintiffs and Appellants, v. MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY, Defendant and Appellee.

No. DA 06-0774.

Supreme Court of Montana.

Argued and Submitted November 7, 2007.

Decided December 4, 2008.

For Appellants: Jack R. Tuholske (argued), Attorney at Law, Missoula, Montana, Matt Clifford (argued), Attorney at Law, Missoula, Montana, David K.W. Wilson, Jr., Attorney at Law, Helena, Montana.

For Appellee: Claudia L. Massman (argued), Special Assistant Attorney General, Helena, Montana.

Justice JOHN WARNER delivered the Opinion of the Court.

¶ 1 In 2001, the Montana Department of Environmental Quality (DEQ) issued a Montana Pollution Discharge Elimination System (MPDES) permit to Revett Silver Company authorizing Revett to discharge water into the Clark Fork River from its proposed mine, the Rock Creek Mine. The Appellants, four organizations with interests in protecting the Clark Fork River (collectively, the Coalition), brought suit against DEQ alleging, inter alia, that the MPDES permit issued to Revett violated the Montana Water Quality Act (WQA). The Coalition now appeals from an order of the First Judicial District, Lewis and Clark County, granting summary judgment to DEQ and holding that the MPDES permit issued to Revett for its proposed Outfall 001 does not violate the WQA.

ISSUES

¶ 2 We consolidate and restate the issues presented as follows:

¶ 3 1. Should this Court give deference to DEQ's interpretation of Admin. R.M. 17.30.715 in determining whether a proposed action will result in nonsignificant changes in water quality?

¶ 4 2. Does Admin. R.M. 17.30.715, as interpreted by DEQ and applied in this case, violate the nondegradation provisions of the Montana Water Quality Act?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 Revett Silver Company, formerly Sterling Mining Company, has proposed construction of the Rock Creek Mine, a silver/copper mine to be located in the Cabinet Mountains of northwestern Montana adjacent to the Cabinet Mountain Wilderness Area. Revett proposes to bore an adit, or horizontal mine shaft, for approximately three miles under the Cabinet Mountains where it will extract ore and transport it through the adit to a mill for processing. The mine's production life is anticipated to be thirty to thirty-seven years. Once the adit is completed, it will begin discharging water. According to the DEQ's analysis, the discharge of water will continue for years after the mine closes and it may well be perpetual. The discharged water is expected to contain arsenic, ammonia, nitrate-nitrogen, and heavy metals among other pollutants, which will exceed allowable water quality standards if the discharged water is not treated to remove contaminants.

¶ 6 The Clark Fork River lies southwest of the proposed mine, and Revett has proposed discharging the water from the mine into the river. Revett proposes to first transport the water to a treatment plant and, after nearly all of the pollutants are removed, put the treated water into the Clark Fork River using a diffuser which would disburse the water across the width of the river.

¶ 7 Prior to permitting Revett to conduct mining activities, DEQ prepared an Environmental Impact Statement (EIS) and a supplemental EIS. DEQ also required Revett to apply for an MPDES permit that would allow the discharge of water into the Clark Fork River.

¶ 8 On December 1, 2001, DEQ issued a Record of Decision (ROD), based on the EIS, which established the preferred alternative for the Rock Creek Mine and announced the decision that the MPDES permit would be issued as the proposed discharge of water into the Clark Fork River was deemed nonsignificant.

¶ 9 Under the permit as approved, either the Outfall 001 adit, which remains at issue in this case, would be plugged, or the water would continue to be discharged to the Clark Fork River. The ROD concedes that it is uncertain whether it is possible to plug the adit, and, if it cannot be plugged, it is unknown how long the discharge would continue after the mine is closed. Thus, on-going monitoring and treatment would be required to ensure that the water quality meets the necessary standards. The discharged water will require treatment until it stops coming out of the mountains or meets water quality standards without treatment, whenever, or if ever, that may occur. Therefore, the EIS assumes, and the ROD requires, that treatment continue in perpetuity.

¶ 10 When the ROD was issued, DEQ granted Revett an MPDES permit which authorizes discharge of treated waste water into the Clark Fork River at five different outfall points. Only the outfall designated as Outfall 001 remains at issue in this litigation. Outfall 001 would consist mainly of ground water discharged from the three mile long mine adit, domestic waste water, and storm water, as well as a smaller amount of water used to process ore. The discharges from Outfall 001 are projected to range from 4 to 2,300 gallons per minute. The MPDES permit was issued on the presumption that the ground water discharges will be perpetual and cannot be stopped once Revett bores the adit and begins mining.

¶ 11 The WQA generally requires DEQ to conduct a nondegradation review prior to issuing an MPDES permit. Nondegradation review is a rigorous process designed to examine the various alternatives available to complete a specific proposed project that will diminish water quality. The review examines social costs as well as economic costs involved in a project. It also considers whether a particular project is necessary and advisable.

¶ 12 Section 75-5-301(5)(c), MCA, provides that the Board of Environmental Review (BER) shall establish criteria for determining whether a proposed activity will result in nonsignificant changes in water quality. If a proposed activity is determined to involve only nonsignificant changes, nondegradation review is not required.

¶ 13 The statutory criteria the legislature has required BER to consider in deciding whether a proposed discharge of water is nonsignificant include: an examination of the potential for harm to human health; the quantity and the strength of the pollutant; the length of time the degradation will occur; and the character of the pollutant. Section 75-5-301(5)(c), MCA. To comply with its statutory mandate to establish criteria for determining whether a proposal will result in only nonsignificant changes in water quality, BER adopted Admin. R.M. 17.30.715.

¶ 14 Applying Admin. R.M. 17.30.715, DEQ determined that Revett's proposed discharges would result in nonsignificant degradation of the Clark Fork River. Therefore, DEQ issued the MPDES permit to Revett without conducting non-degradation review.

¶ 15 DEQ based its conclusion that the discharge would not cause significant degradation to the Clark Fork River on the information gathered in the EIS, which says that the water coming from the mine can and will be treated so that pollutants are removed before the water is discharged into the river. The EIS and the ROD also call for the construction of an evaluation adit, which will allow further evaluation of the expected levels of water pollution. This will allow for further decisions concerning the necessary water treatment required if the main ore adit is completed.

¶ 16 A complete mine closure plan has not yet been formulated. The EIS indicates that a closure plan will be formulated if and when the mine is opened and more information becomes available. However, the ROD upon which the MPDES permit was issued incorporates an initial mine closure plan, which assumes Revett will be required to treat the mine water in perpetuity.

¶ 17 On March 21, 2002, the Coalition filed an amended complaint challenging issuance of the MPDES permit. The complaint also alleged violations of the WQA and the Montana Constitution; those allegations were subsequently dismissed by stipulation and are not at issue here.

¶ 18 On August 11, 2005, the Coalition moved for partial summary judgment regarding three of the permitted outfalls, including Outfall 001. The Coalition argued that the MPDES permit for Outfall 001 was improper because, in determining that the proposed discharge was nonsignificant, and thus issuing the permit without conducting a nondegradation review, DEQ did not adequately consider the length of time the proposed discharge would last. On March 24, 2006, the District Court denied the Coalition's motion for summary judgment as to Outfall 001 and granted DEQ's motion for summary judgment concluding that it had correctly issued the MPDES permit on Outfall 001. On October 9, 2006, pursuant to stipulation, the District Court dismissed the remaining claims and entered a final judgment that the MPDES permit for Outfall 001 did not violate the WQA. The Coalition filed a timely appeal of the judgment.

STANDARDS OF REVIEW

¶ 19 Summary judgment is appropriate when there are no material facts in dispute and the movant is entitled to judgment as a matter of law. We review de novo a district court's ruling on a summary judgment motion, applying the same criteria as the district court. Mont. Trout Unlimited v. Mont. Dept. of Nat. Resources & Conserv., 2006 MT 72, ¶ 17, 331 Mont. 483, ¶ 17, 133 P.3d 224, ¶ 17. We review the district court's conclusions of law to determine if they were correct. Mont. Trout Unlimited, ¶ 17. In this case, there are no material facts at issue. While DEQ does not concede that the discharge of water from Outfall 001 containing high levels of pollutants will be perpetual, it does not dispute that the EIS and ROD assume that this will be the case. The MPDES permit was issued on such assumption.

¶ 20 An agency's interpretation of its rule is afforded great weight, and the court should defer to that interpretation unless it is...