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Judge halts Colstrip mining expansion

DEQ, Westmoreland Rosebud Mining failed to address water quality, judge rules
Posted at 1:05 PM, Oct 29, 2021
and last updated 2021-10-29 15:05:09-04

A district court judge has halted plans to expand part of a coal mine near Colstrip because the state’s Department of Environmental Quality ignored state and federal rules, relied on inadequate testimony, and failed to protect an already imperiled body of water.

Judge Katherine Bidegaray said the DEQ wrongfully permitted an expansion of the Rosebud Mine, a coal strip mine that provides coal to the nearby power plant. Her ruling sends the issue back to the DEQ to re-evaluate and, for the time being, halts the expansion.

A lawyer representing the plaintiffs praised the victory and pledged to make sure the DEQ and the mining operations follow the law, reports the Daily Montanan.

“The court’s well reasoned decision concludes that DEQ’s excuses for failing to protect Montana’s water don’t, in fact, hold water,” said Shiloh Hernandez, an attorney for Earthjustice, a law firm that represented the Montana Environmental Center and the Sierra Club. “DEQ now has a second chance to follow the law. We intend to hold the agency to its legal duty.”

In her ruling, Bidegaray said that DEQ relied on testimony from a person who was not an expert, and failed to take into account that the East Fork of Armells Creek is already in violation of water quality standards, and the state cannot grant a permit for additional mining without first developing a plan to bring the creek back into compliance.

In testimony presented to the court, the DEQ admitted that coal mining was likely the source of pollution caused by total dissolved solids and the creek also has excessive salinity. According to the judge’s ruling, the state cannot issue a permit without addressing those issues. Furthermore, Bidegaray questioned the DEQ’s conclusion that while additional mining would cause similar problems for decades, if not centuries, that it wouldn’t increase the salinity or pollution more than what already exists, only extend the amount of time the pollution is present.

“If pollution from ‘successive’ mining operations will cause violations of water quality standards, DEQ must remedy those violations before permitting more mining,” Bidegaray said.

Bidegaray also said that the DEQ had shifted the burden to the Montana Environmental Information Center and the Sierra Club, the plaintiffs in the case, to prove that mining would harm the creek, rather than following the law, which states that the mining company had the burden to show that additional mining would not create more pollution.

“It is, thus, not the responsibility of the public to demonstrate that environmental harm will occur, but, instead, the duty of the applicant (Westmoreland Rosebud Mining) and the DEQ to demonstrate that environmental harm will not occur,” Bidegaray wrote.

The judge also criticized the DEQ and the mining company for relying on the testimony of an expert who was not qualified to assess aquatic biology, something both sides admit.

“It was irrational and arbitrary for the DEQ … to rely on an analysis both entities expressly found to be unacceptable and unreliable for assessing applicable water quality standards,” Bidegaray said. “While agencies have a degree of discretion in determining what evidence to rely upon, an agency may not rely on evidence that the agency itself deems inadequate.”