Home » Consent Decree

Tag: Consent Decree

The Horseshoe Bend Water Treatment Plant, completed in 2003, captures surface water to slow the rate of fill of the Berkeley Pit lake. In the future, the plant will capture and treat water to prevent Pit water from rising further. Photo by Justin Ringsak.

Water treatment plant working as expected

The Horseshoe Bend Water Treatment Plant, completed in 2003, captures surface water to slow the rate of fill of the Berkeley Pit lake. In the future, the plant will capture and treat water to prevent Pit water from rising further. Photo by Justin Ringsak.
The Horseshoe Bend Water Treatment Plant, completed in 2003, captures surface water to slow the rate of fill of the Berkeley Pit lake. In the future, the plant will capture and treat water to prevent Pit water from rising further.

Looking northeast from the Berkeley Pit viewing stand, visitors can see one of the most important components in the future management of the Pit: the Horseshoe Bend Water Treatment Plant. Sitting on four acres near the former McQueen neighborhood, about 600 feet east of the Berkeley Pit, the treatment plant was constructed in 2002-2003. It sits on native land that is very stable, and the plant was built to withstand the maximum probable earthquake.

The facility was designed to treat up to seven million gallons per day, or about 5,000 gallons of water per minute. The facility cost approximately $18 million to build, and, depending on how much water is treated, operating expenses run about $2 million per year.

Once the Berkeley Pit water comes online, which is projected to happen in 2023, annual operation and maintenance costs could be as high as $4.5 million. Under the terms of the 2002 Consent Decree negotiated with the government, BP-ARCO and Montana Resources have agreed to provide financial assurances to pay operation and maintenance expenses in perpetuity. The two companies also paid all construction costs for the facility.

The actual construction of the treatment plant was a massive undertaking. It is estimated that workers put in 125,000 hours of total labor, and the facility also required more than 4,500 cubic yards of concrete.

The general construction contractor and subcontractors were all from Montana, with several from Butte, and, during the course of construction, they reported no safety incidents of any kind.

As per the schedule listed in the 1994 EPA Record of Decision and included in the 2002 Consent Decree, based upon current water level projections, a review of the Horseshoe Bend Water Treatment Plant design and operation would begin in 2019. Any necessary upgrades would have to be completed by 2021, two years before Pit water itself is currently projected to be pumped and treated in 2023.

In November, 2007, a performance review of the Horseshoe Bend plant was completed by Montana Resources, ARCO, and North American Water Systems, with cooperation from the Montana Bureau of Mines & Geology, the Department of Environmental Quality, and the EPA.

The performance test was undertaken to ensure that the treatment system is capable of meeting the water quality standards set in the Consent Decree for the site. For this test, only water from the Horseshoe Bend drainage was treated, as water from the Pit is not yet required to be pumped and treated at the plant.

The test began on November 18, 2007, and continued for 72 hours. All of the water quality standards for contaminants of concern were met. Additional adjustments still need to be made to address pH. For this test, the pH was kept at a high (basic or alkaline) level in order to effectively remove contaminants of concern and meet water quality standards.

The optimization of the plant in the future may result in a lower pH. Additionally, methods of adjusting the pH prior to discharge to Silver Bow Creek have been evaluated conceptually. Any method of adjusting the pH will be formally evaluated, if necessary, before any water from the plant is discharged to Silver Bow Creek.

This observation stand overlooking the Berkeley Pit is used by Montana Resources (MR) as part of their bird mitigation program.

Seasonal bird mitigation efforts ongoing

This observation stand overlooking the Berkeley Pit is used by Montana Resources (MR) as part of their bird mitigation program.
This observation stand overlooking the Berkeley Pit is used by Montana Resources (MR) as part of their bird mitigation program.

After several highly publicized incidences of bird deaths at the Berkeley Pit, a popular myth arose: migratory waterfowl are instantly killed if they land on water in the Berkeley Pit. In fact, hundreds of waterfowl land on the surface of the Berkeley Pit every month during migration seasons, and they typically fly off unharmed within a few hours, either on their own or through Montana Resource’s hazing activities, also known as the waterfowl mitigation program.

The 2002 Consent Decree recognizes that “birds exposed to Berkeley Pit water for less than 4-6 hours should not be at substantial risk.” If a bird is observed suffering from the effects of water toxicity, it is netted and brought on board the houseboat used to patrol the Pit lake. The bird is placed in a 5-gallon bucket of fresh water and brought to shore. It is then transported to a veterinarian or released into fresh water at the north end of the Yankee Doodle Tailings Pond; tailings particles settle out on the south portion of the pond, leaving clear, alkaline (or non-acidic) water in the north end which mixes with snowmelt runoff from upper drainages, resulting in very low concentrations of dissolved metals.

In November 1995, a flock of snow geese landed on the Pit lake. After several days of stormy weather and fog, 342 birds were found dead. In response to this incident, the two responsible parties for the Pit under federal Superfund law, Montana Resources and British Petroleum-Atlantic Richfield, also known as BP-ARCO, implemented a waterfowl mitigation plan, which was approved by the EPA and other agencies in May 1998. This program is aimed at locating waterfowl in the area and then inciting the birds to fly away. An observation station was set up overlooking the Pit area. This station is an enclosed building equipped with spotting scopes and spotlights for night viewing to locate, count and identify species of waterfowl on the Pit lake.

Montana Resources’ personnel make hourly observations for birds during the spring and fall migrations, while the pit is not frozen, and cut back to 5-6 observations per day during non-migratory seasons. A variety of devices are used to chase birds off the water and out of the Pit. From the observation station near the southeast rim of the Berkeley Pit, Montana Resources’ personnel use rifles and shotguns to scare birds into the air.

In addition, three Phoenix Wailers – high-tech devices that emit predator and electronic sounds – are located near the surface of the Pit lake to discourage birds from landing. A 22-foot houseboat, docked near the pump barge, is used for periodic excursions on the water to haze waterfowl that ignore other warnings. Not all types of birds react to hazing. Typically, most ducks, geese and swans will react immediately to the noises. Diver birds such as grebes and loons tend to go underwater as a natural defense mechanism when they are alarmed.

Normally, if birds are not hazed or disturbed, they leave the Pit area at nightfall. If a dead bird is found on the water or near the Pit, then the US Fish and Wildlife Service is contacted. They decide if an autopsy is necessary.

From 1995 through 2004, 75 birds were found dead. The advances made to deter migrating waterfowl from landing on the water or staying on the Pit appear to be working. Thousands of birds land and are hazed off of the Pit each year.

Though many local authorities decided that the 1995 incident was isolated and not likely to happen again with the safeguards that are in place, in October 2007, 37 birds, including ducks, geese, and one swan, were found dead at the Pit after a weekend of fog. It is unclear why mitigation activities failed to haze these birds away from the site, although the weather was almost certainly a factor. As the mitigation program continues, all involved continue to work to keep such incidents to a minimum.

The chart below, from the 2011 EPA Five Year Review Report on the site, shows Pit-related bird deaths from 2006-2009.

This chart, from the 2011 EPA Five Year Review Report on the site, shows Berkeley Pit-related bird deaths from 2006-2009.
This chart, from the 2011 EPA Five Year Review Report on the site, shows Berkeley Pit-related bird deaths from 2006-2009. Click on the image to view a larger version.
This observation stand overlooking the Berkeley Pit is used by Montana Resources (MR) as part of their bird mitigation program.

Berkeley Pit Myth Versus Fact

This observation stand overlooking the Berkeley Pit is used by Montana Resources (MR) as part of their bird mitigation program.
This observation stand overlooking the Berkeley Pit is used by Montana Resources (MR) as part of their bird mitigation program.

PitWatch Issue Volume 9, Number 2

The community has many common misconceptions about the Berkeley Pit. This section addresses a few of those most often heard false statements.

Myth:

Migratory waterfowl are instantly killed if they land on water in the Berkeley Pit.

Fact:

Hundreds of waterfowl land on the surface of the Berkeley Pit every month during the migration season, and they fly off within a few hours, either on their own or through MR’s hazing activities. The Consent Decree recognizes that “birds exposed to Berkeley Pit water for less than 4-6 hours should not be at substantial risk.”

If a bird is observed suffering from the effects of water toxicity it is netted and brought on board the houseboat used to patrol the Berkeley Pit. The bird is placed in a 5-gallon bucket of fresh water and brought to shore. It is then transported to a veterinarian or released into fresh water at the north end of Yankee Doodle Tailings Pond.

The Berkeley Pit in 1972.

Berkeley Pit Myth Versus Fact

The Berkeley Pit in 1972.

The Berkeley Pit in 1972.

PitWatch Issue Volume 9, Number 1

The community has many common misconceptions about the Berkeley Pit. This section will address a few of those most often heard false statements and try to set the record straight.

Myth:

The Pit Will Overflow.Watch Full Movie Online Streaming Online and Download

Fact:

There are two reasons why the Pit will never overflow. First, the 1994 Record of Decision and 2002 Consent Decree established the maximum level that the water will be allowed to reach to make sure the Berkeley Pit is lowest point in the cone of depression (see center graphic). Wells to monitor water levels have been set up. Failure to keep the water below the 5410′ elevation would result in steep fines for BP/Atlantic Richfield and Montana Resources. Second, the Horseshoe Bend Water Treatment Plant is already in-place and operating. It has the capacity (7 Million Gallons per Day) to treat water from the Berkeley Pit, when it becomes necessary. This will ensure the water level remains below 5,410′.

Myth:

The Horseshoe Bend Water Treatment Plant will empty the Berkeley Pit.

Fact:

In the 1994 Record of Decision, the agencies decided that it would be unfeasible for the Potentially Responsible Parties (PRP’s) to ever completely empty the Berkeley Pit. The remedy selected for the Berkeley Pit is to treat all water inflows to maintain the level below 5,410′ above sea level.

Myth:

Congress is cutting the national Superfund program and the operation of the Horseshoe Bend Water treatment Plant will be discontinued.

Fact:

The ‘Butte Mine Flooding Superfund Site’ is the responsibility of BP/Atlantic Richfield and Montana Resources. Thus, the plant will not be affected by any changes to the EPA’s Superfund Program. The legally binding Consent Decree, which was signed by the responsible parties in 2002, established the financial commitment to operate and maintain the water treatment plant in perpetuity.

Mine Flooding Consent Decree Signed by Federal Judge

Looking south toward Butte, Montana over the Berkeley Pit, from the Yankee Doodle Tailings Pond dam. Photo by Justin Ringsak.
Looking south toward Butte, Montana over the Berkeley Pit, from the Yankee Doodle Tailings Pond dam.

On August 14, 2002, U.S. District Judge Sam E. Haddon signed the Mine Flooding Consent Decree between the Atlantic Richfield Company (Arco), the Montana Resources Group (MR), the U.S. EPA, the State of Montana (DEQ) and the U.S. Department of Justice.

The Consent Decree was released for public review on March 26, 2002, with a May 4 deadline to submit public comments to the federal court. EPA and DEQ reviewed the comments submitted and in late July 2002, the Agencies submitted a report to the federal court recommending that none of the public comments warranted any changes in the Decree. Subsequently, Judge Haddon approved and signed the Consent Decree as originally drafted.

With the Consent Decree lodged in federal court as a legally binding agreement, Arco and MR proceeded with plans to build the Horseshoe Bend Water Treatment Plant. The companies are also obligated to provide annual financial statements to document their capability to pay all costs to operate and maintain the facility – including sludge disposal – in perpetuity.

The Decree also requires Arco and MR to reimburse EPA and DEQ for past costs and pay now for future oversight costs. Other obligations are to enhance the waterfowl protection program at the Berkeley Pit, to establish a groundwater control area surrounding the Berkeley, to fund the Montana Bureau of Mines and Geology to continue the mine flooding monitoring program, and to fund public education (e.g., PITWATCH).

Consent Decree (CD) for the Berkeley Pit

A Consent Decree (CD) is a legal document, approved by a judge, that formalizes an agreement reached between EPA and Potentially Responsible Parties (PRPs) through which PRPs will conduct all or part of a cleanup action at a Superfund site; cease or correct actions or processes that are polluting the environment; or otherwise comply with EPA initiated regulatory enforcement actions to resolve the contamination at the Superfund site involved. The consent decree describes the actions PRPs will take and may be subject to a public comment period.

Together with the Record of Decision and other supplementary documents, the CD governs future management of cleanup sites.

A lawsuit between the State of Montana and PRPs for Superfund sites in Butte and the Clark Fork Basin resulted in numerous CDs for different areas. The Consent Decree for the Butte Mine Flooding Operable Unit, which includes the Berkeley Pit, was published in 2002, and can be downloaded below.

2002 Consent Decree Download

Consent Decree Announced


Berkeley Pit, 2006.
Berkeley Pit, 2006. Click on the image to view a larger version.

Pitwatch Issue Volume 7, Number 1

In March 2002, the Atlantic Richfield Company (ARCO) and Montana Resources (MR) agreed to sign a Consent Decree, a legally binding document that will be entered in federal court. The Consent Decree requires these companies to reimburse EPA and DEQ for past costs, and pay now for future oversight costs. It also guarantees that these companies will perform a number of tasks and provide financial assurances to pay all costs to complete the required work.

Most importantly, the Consent Decree sets a firm schedule for Arco and MR to build a water treatment facility, and confirms their obligations to operate and maintain the facility – including sludge disposal – in perpetuity. Also included in the Consent Decree are commitments to enhance the waterfowl protection program at the Berkeley Pit, to establish a groundwater control area surrounding the Berkeley, to fund the Montana Bureau of Mines and Geology (through the EPA and DEQ) to continue the mine flooding monitoring program, and to fund public education activities (e.g., PITWATCH).

As part of the process, ten changes were made to the Record of Decision (1994). For example, changes were made to recognize new stream and discharge standards for the treated water, to allow Continental Pit water treatment in the Horseshoe Bend plant, and to allow sludge disposal in the Berkeley Pit. Another change eliminates the requirement to reevaluate treatment technologies when the water level in the Pit reaches the 5,260′ level, since the treatment plant will already be built. The Consent Decree also clarifies which cleanup tasks will be done under the Superfund program and which will be done under the State’s active mine permit reclamation program.

The Consent Decree was released on March 26, 2002 for public comment until May 4, and is expected to be finalized thereafter. Contact the Committee with any questions.