Closer look at Montana’s I-186, measure on mining & water treatment

Posted at 10:53 PM, Oct 07, 2018
and last updated 2018-10-08 17:07:43-04

HELENA – In the upcoming election, Montana voters will consider an initiative that would require new hard rock mines to provide additional evidence their operations won’t require permanent water treatment.

Initiative 186 would require the Montana Department of Environmental Quality to deny a mine an operating permit unless the applicant shows “clear and convincing evidence” their plan will prevent water pollution, without the need for “perpetual treatment” of acid mine drainage or other contaminants.

The campaign for I-186 has been led by conservation groups. David Brooks, executive director of Montana Trout Unlimited, said his group worked with national Trout Unlimited, the Montana Environmental Information Center and Earthworks in drafting the measure.

Brooks said the initiative is an important step to protect Montana’s water quality.

“Clean water is important to aquatic and riparian and wildlife, as well as human life, public health, agriculture, ranching, outdoor recreation industry, and just our quality of life,” he said.

I-186 supporters point to cases where the state has had to pay for years of water treatment at abandoned mines. One notable example is the Zortman and Landusky mines in north-central Montana, where acidic discharge will have to be treated for the foreseeable future. Pegasus Gold, the mines’ former owner, declared bankruptcy in 1998, and the $47.5 million the company had posted in reclamation and water treatment bonds was far less than what was needed to pay the costs of cleaning up the sites.

“When mines are permitted that cause permanent water pollution and need permanent water treatment, it poses an ongoing, forever risk to clean water and ongoing expenses to the public, the state and federal government,” Brooks said. “I-186 is a simple legal solution to that.”

I-186 has drawn strong opposition from the Montana Mining Association and companies operating metal mines, which have funded the majority of the campaign against the initiative.

Dave Galt is executive director of Stop I-186 to Protect Miners and Jobs, the committee opposing the initiative. He says opponents see the measure as an attack on mining in the state.

“We think the people of Montana are being asked to vote for something that’s being sold as for clean water, and it really isn’t anything about clean water,” he said.

Galt said, if I-186 passes, it will open all future hard rock mines up to lawsuits that could delay or block their operations. He questioned whether any mine owner would be able to meet the higher evidence requirements the initiative would establish. While I-186 includes a clause saying it will not apply to mines permitted before it takes effect, he suggested there might also be challenges if current mines try to expand, since expansion requests are sometimes handled like new permits.

“You know what kind of litigation experience that we’ve had in this state to date,” he said. “These mines’ll never be permitted if they have an additional hurdle to pass and additional unclear language.”

He pointed to three specific mine proposals – the Black Butte copper project in Meagher County and the Rock Creek and Montanore mines in Northwest Montana – that he believed would be affected by I-186.

Galt admitted that there were cases in the past where the responsibility for long-term water treatment fell on the state, but he said the state Legislature has taken steps since then to tighten mine regulations and ensure that does not happen again. He also noted that much of the money the state has spent at Zortman-Landusky came from special revenue accounts, largely funded by taxes on metal mining and other extractive industries.

“I think Montana’s at a pivotal point,” he said. “We’re either going to have mining and allow it, under the most stringent mining requirements in the world or we’re not. That’s what’s at stake with I-186.”

Brooks said the opponents of I-186 are overstating the danger of litigation.

“We believe the language is as clear and convincing as the evidentiary standard that it will put in place,” he said.

He said he doesn’t expect I-186 to be a barrier to currently proposed mines, pointing to an analysis from DEQ that found no mine applications in process have proposed perpetual water treatment. He said supporters of the initiative understand the value of mining in Montana, and that they only want to make sure it doesn’t leave permanent costs behind.

“This is not an attempt at ‘gotcha lawmaking,’ where we are making a law that then we can turn into something else,” said Brooks. “This is simply about protecting clean water and requiring that our hard-rock mining be more responsible.”