A huge mining truck works at a future tailings storage facility on the East Boulder in the Custer-Gallatin National Forest (Photo by Darrell Ehrlick of the Daily Montanan)
McLEOD – It sounds about as unbelievable as it is unlikely: A 30-foot tidal wave that would crash through the East Boulder River Valley wiping out everything in its path and leaving a toxic sludge behind.
From where Leon Royer lives, he’s guessing he’d have five – but not 10 – minutes to move to higher ground, above the crest that would likely wash away his house and everything that he owns. Finding that ground wouldn’t exactly be easy, and getting notified isn’t much better because cellular phone service in this snug mountainous valley is still something in the future.
However, Royer is leading a group of residents around the Big Timber area in objecting to a planned and permitted
expansion of a tailings pond for the East Boulder mine, one of three mining complexes run by Sibayne-Stillwater in the area. Royer, a former banking executive, said he wants the mine to be successful, but not without something more than its word that the massive tailings storage facility, which stores used wastewater from the platinum and palladium mine, will not destroy his property.
Heather McDowell, an attorney and spokeswoman for Sibanye-Stillwater, told the Daily Montanan that the company’s expansion of its tailings storage facility atop the Lewis Gulch has been engineered, reviewed and permitted with the oversight of the world’s leading mining experts, and that the group of concerned residents expects an ironclad promise that no company could issue – a guarantee against an act of God, of literal Biblical proportions.
“It’s sad that we haven’t been able to work it out,” she said.
Sibayne-Stillwater Mining is one of the largest global mining corporations and boasts one of the best safety track records in the state.
McDowell said the mine has the responsibility to treat all property owners the same way – Sibanye-Stillwater can’t simply insure one group of residents, without taking the same precautions for every single person who might be affected in the case of a huge disaster. McDowell said that would take insuring nearly every property owner in Stillwater and Sweet Grass counties, an impossibility.
“We can’t insure every person downstream or along the way. We can’t treat people differently, and we can’t treat people differently just because they have expensive properties,” McDowell said.
Last week, Royer took his concerns to the Sweet Grass County Commissioners in an attempt to get them to intervene. He said the county isn’t doing enough to protect its citizens and property owners, including having more detailed emergency preparedness plans. He said that when he’s asked for specific plans to address the chance of the tailings storage facilities breaching, he was told there wasn’t anything.
When the Daily Montana asked for plans the county has prepared for a tailings facility breach, county commissioners declined, saying the plans were only in the draft phase and it would be improper to release plans that could change.
McDowell said the conflict started when the mine led a “tabletop” exercise meant to simulate what would happen in the event of a flood, including a 30-foot tall tidal wave that would sweep through the valley. Officials estimated they would have from 15 to 30 minutes until the wave would reach Big Timber and eventually spill into the Yellowstone River via the Boulder River. Along the way, residents directly in the path would have from 5 to 15 minutes to get to higher ground.
McDowell said the exercise is part of a routine to involve the county, emergency responders and residents that tests how well the system works and what needs improvement. For example, in the exercise in Sweet Grass County, emergency officials learned their communications systems need upgrading, and Cliff Brophy, disaster and emergency services coordinator, said the county is switching to a “Code Red” system.
The new system will allow the county to notify residents via text, landline, email and it still doesn’t prohibit door-to-door notification. He said one of the lessons learned in the tabletop emergency drill was that cell phone service and emergency notification is an area that can be upgraded.
Sweet Grass County Commissioners said cell phone service and reception are issues across the rural and mountain-covered county, in more than just the East Boulder Valley.
Many of the residents have moved to those places, away from busy roads or farther from services to disconnect.
“We have dead areas,” said Commissioner JV Moody. “But people choose to live there, but that’s the risk you take living there.”
Brophy said that the county’s emergency and disaster plans include a number of different scenarios from the more common wildfire or train derailment to the rarer events like a flood. In his 40 years of working disaster services in Sweet Grass and neighboring Park County, he can’t cite one time where an emergency was prompted by a tailings facility failure.
McDowell also said the key to preventing a disaster is in the engineering and planning process – something that has
taken place during a years-long process. The expanded storage facility, which is Phase Six of the mine’s expected life, has been designed to withstand two cataclysmic events simultaneously and still hold. She said the tailings facilities, which look akin to giant lakes with built up sides, are designed to withstand a flood of Biblical proportions, 29 inches of rain in a 24-hour-period, including 18 inches of snowmelt for a total of 47 inches in 24 hours. By comparison, the highest amount of rainfall ever recorded in a 24-hour period in Montana was 11.5 inches in Circle in 1921, according to the National Weather Service.
Plus, McDowell said the facilities can simultaneously withstand a magnitude 7.5 earthquake, which is larger than M7.2 earthquake in Hebgen Lake in 1959.
Those two events, which would unlikely not occur simultaneously, plus a rigorous review process, McDowell said, offer the best guarantee for the safety of property owners.
But Royer wants more: He wants the company to indemnify his property against the damage or move the tailings facility to lower ground where, if the ponds fail, it would still likely discharge toxic water from the mine waste, but wouldn’t create a tidal-wave flood.
“We can’t even buy insurance against the calamity,” Royer said.
He was so determined that he sent a certified FedEx letter to the chairman and chief executive officer of Sibanye-Stillwater, which is headquartered in South Africa, at a cost of $150.
“I tried to appeal to them. I don’t want the mine to close. I want the mine to be considerate of downstream neighbors and more responsible,” Royer said.
The Montana Department of Environmental Quality requires a bond for all tailings storage facilities, said spokeswoman Moira Davin. The $30 million reclamation bond is an amount sufficient to cover the cost of reclaiming the land within the permit area, but wouldn’t cover residents who live away from the site.
“Our engineers and the DEQ has studied the design of this and we cannot reasonably foresee this facility failing,” she said.
Paul Hawks, a rancher from Melstone, has been active with the Cottonwood Resource Council and was part of the group that helped create the Good Neighbor Agreement – the legally binding contract that obligates the mine to negotiate concerns and solve problems in concert with neighbors.
He understands the concerns of Royer and others, but he said the process and conversation go back years. He said the genesis for the group and the agreement was not to wind up in court.
“Once you’re in a courtroom, you’ve kind of lost control,” Hawks said.
Hawks said he also understands Royer wanting a guarantee, but it’s not something that states or even the federal government require and the only way to do so would be to change the laws, something probably unlikely given the current make-up of the Legislature.
The Good Neighbor Agreement is a model agreement, and a one-of-a-kind thing, Hawks said. He credits Sibayne-Stillwater with reading through it and being open to it before the company ever bought it.
“That was impressive to me,” he said.
He said that part of the reason there’s a new conflict about the tailings facility is that the mine and community – through the Good Neighbor Agreement – have done a good job of making the complex hidden and unobtrusive.
“Just driving up the valley, you wouldn’t know they’re there, so that’s may be part of it – people just don’t realize it,” Hawks said.
McDowell said the current tailings facility has been in use since 2002, and the expanded facility won’t really change the risk that has already been there for nearly two decades. In other words, the risk of a tailings facility failure hasn’t grown or diminished. Moreover, the design and permitting process is a years-long public process that began in 2014 and completed in 2020.
“Put bluntly, if (the new tailings facilities) aren’t done, we cannot operate,” she said.
Royer said he knew about the mine when he bought and built on the property, but the expansion has magnified the risk – something he said changes the situation.
“We’re not asking for money, we’re just asking for them to protect us,” Royer said.
McDowell also points to two other factors that have led to Sibanye-Stillwater creating what she said is the safest tailings facilities in the world. First, in 2015 Montana adopted new regulations for tailings facilities, which require a review by a panel of three independent expert engineers to certify the design. Also, during the design and public comment period, the Cottonwood Resource Council, which is a subdivision of the Northern Plains Resource Council, was instrumental in the planning process. She said the Good Neighbor Agreement obligated the mine to take resident input and build consensus when expanding.
McDowell said that both of these things have led to significant changes and improvements in the tailings facility that is being expanded, and that worldwide, a facility like this has never failed.
“During the comment period and in conjunction with the Good Neighbor Agreement, we made a lot of changes in the original design,” she said.
Both Royer and McDowell reference the age of Copper Kings and mining that left the state scarred with tailings waste and communities left barren because of environmental destruction. Royer worries that his property and those of his neighbors are likely to go the way of places like the Berkeley Pit unless they fight.
McDowell, a Montana native who grew up ranching, said it’s precisely because of those same historical events that have created a rigorous oversight and engineering that is built to withstand simultaneous disasters.
“Montana law is now the most robust and restrictive as far as tailings facilities in the world,” McDowell said, pointing out that the process for any permit requires environmental impact assessments, public input and rigorous oversight.
“The concerns for these have to be at the preventative level. We have an obligation to make sure that if we mine in this pristine, amazing place that our facilities are safe and stable till the act of God. I want our mining laws to be robust. And we’ve taken the time to make sure we addressed those acts which are preventable.”
She also said that moving the tailings facility to lower ground – somewhere on the valley floor – would violate the Good Neighbor Agreement the mine signed with the community in 2000, which said all mine activity would be kept above the U.S. Forest Service property. In addition, she said there’d be increased risks of spills if the waste was trucked or piped to a lower facility.
Sweet Grass County Commissioners told the Daily Montanan that beyond the emergency and disaster plans, the county has little involvement in the process, which is mostly left to the U.S. Forest Service or the state’s Department of Environmental Quality.
“I think our county attorney has looked it over and figures that the county has no role in (permits and oversight) it all,” said Sweet Grass Commissioner Bill Wallace.
Plus, they said that the full scale of Sibanye-Stillwater’s operations have been public since the late 1990s, and this phase, including the new tailings facility, was planned before many of the owners bought their property. All three county commissioners said it should have been part of the due diligence any property owner did before buying the land.
“A lot of folks bought places, and it’s incumbent on them to recognize the mine was there,” said Sweet Grass County Commission Chairwoman Melanie Roe. “This is Phase Six. This isn’t anything new.”
Royer said he and the others will continue to fight to protect their property and lives. He said the property owners can’t buy a policy against the possible breach, and the mine won’t move the tailings facility to a lower location, essentially backing him into a corner he said he’s willing to fight out of.
“They think we’re just going away, but we’re not going away,” he said.
McDowell said she’s surprised that a process this far along – that began before many people including Royer built on the land – has raised concerns. She said there’s a good reason why an insurance policy can’t be bought against the facility failing – because it would take an act of God to trigger a failure.
“As one of the original founders of the Cottonwood agreement said, ‘If we’re going to have a mine here, we’re going to have the best damn mine in the world.’ And that’s what we’ve tried to give this community,” she said. “I think that’s as close as we can get and keep up responsible rural development.”
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