Montana DEQ - BER - December 2005 Agenda

Board of Environmental Review Agenda

AGENDA
BOARD OF ENVIRONMENTAL REVIEW
THURSDAY & FRIDAY, DECEMBER 1 & 2
METCALF BUILDING, CONFERENCE ROOM 111
1520 EAST SIXTH AVENUE, HELENA, MONTANA

NOTE: Individual agenda items are not assigned specific times. For public notice purposes, the Board will begin the meeting at the time specified. However, the Board might not address the specific agenda items in the order they are scheduled. Persons with disabilities who need an accommodation in order to participate in this meeting, should contact the Board Secretary at (406) 444-2544.

December 1
1:30 P.M.

CBM RULEMAKING HEARING
The Board will hold a hearing to take written and oral comment on proposed amendments to ARM 17.30.670 and 17.30.1202 pertaining to nondegradation requirements for electrical conductivity and sodium adsorption ratio and definitions for technology-based effluent limitations and the adoption of new water quality Rules I through X pertaining to minimum technology-based controls and treatment requirements for the coal bed methane industry.
GENERAL PUBLIC COMMENT
Under this item, members of the public may comment on any public matter within the jurisdiction of the Board that is not otherwise on the agenda of the meeting. Individual contested case proceedings are not public matters on which the public may comment.

December 2
9:00 A.M.

ADMINISTRATIVE AGENDA ITEMS
1. Review and approve minutes of September 30, 2005, meeting.
2. Set 2006 Meeting Schedule; Budget Information.
BRIEFING AGENDA ITEMS
1. CONTESTED CASE UPDATE:
  1. Cases assigned to Hearing Officer Katherine Orr
    1. In the matter of CR Kendall Corporation’s request for a hearing to appeal DEQ’s decision to deny a minor permit amendment under the Metal Mine Reclamation Act (BER 2002-09 MM). The Hearing Examiner, upon request of the parties, has vacated the hearing schedule placed the case on hold until further notice of one or more of the parties or upon initiative of the Hearing Examiner.
    2. In the matter of the Petition for Review of Hazardous Waste Final Permit No. MTHWP-03-01 issued to Flying J Petroleums, Inc. (BER 2003-14 HW). Flying J has requested a hearing under the Montana Hazardous Waste Act to review the final decision of DEQ to issue a Hazardous Waste Final Permit to Flying J for its former refinery located near Cut Bank. Counsel for the parties stipulated to a stay of contested case proceedings while they discussed the terms of an order that could resolve this case. However, the case was not settled and the parties proposed a schedule for contested case proceedings. On April 5, 2005, the Hearing Examiner issued a scheduling order. The final prehearing conference was set for January 10, 2006. On August 23, 2005, the Hearing Examiner, Katherine Orr, issued a notice of Assumption of Jurisdiction retaining all deadlines except the discovery deadline, which was extended until October 25, 2005.
    3. In the matter of Violations of the Montana Water Quality Act by the City of Lewistown Wastewater Treatment Plant (BER 2004-15 WQ). On October 20, 2004, the Board received a letter from the City Manager of Lewistown appealing assessment of $11,608 in administrative penalties for violations of the Water Quality Act. On September 21, 2004, DEQ had issued an Administrative Penalty Order for six discharges of sewage into Big Spring Creek. The parties proposed a schedule for contested case proceedings on March 1, 2005, and the Hearing Examiner issued a scheduling order. The final Prehearing Conference was set for October 12, 2005. The parties have requested a stay of proceedings pending settlement discussions. The interim dates in the scheduling order have been vacated by the Hearing Examiner, Katherine Orr until October 7, 2005. The Hearing Examiner has requested the parties to file a proposed scheduling order by November 15, 2005. It is expected that the parties will ask for an extension to finalize the details of a supplemental environmental project (SEP).
    4. In the Matter of Violations of the Montana Water Quality Act by Bar S Livestock, Inc., Toole County, Montana (BER-2005-06 WQ). Bar S Livestock, Inc. requested a hearing on the Notice of Violation and Administrative Compliance and Penalty Order issued by DEQ relating to the alleged failure of Bar S Livestock, Inc. to comply with the requirements of the general permit for the CAFO it operates near Shelby. The parties agreed on a schedule. Upon written request of the parties dated August 10, 2005, the scheduling order has been vacated by Hearing Examiner, Katherine Orr, pending settlement discussions up to October 7, 2005. At this time, the case will be submitted as settled or a revised hearing schedule will be developed. On October 7, 2005, the parties requested that they be given more time to finalize the settlement documents. The Hearing Examiner have given the parties until December 7, 2005 to do this.
    5. In the matter of Violations of the Water Quality Act by ASARCO, Inc., (BER 2005-09 WQ). The Board received a request for hearing regarding an Administrative Penalty Order issued by DEQ for the alleged failure to pay annual permit fees on the MGWPCS permit for discharges from the Paymaster Mine Adit located in Lewis and Clark County. DEQ claims ASARCO should have paid permit fees for a permit that ASARCO argues should have been terminated in 2002. The parties requested until July 19, 2005, to submit a schedule or settlement papers and the Hearing Examiner granted the request. On August 24, 2005, the Hearing Examiner issued a notice of Assumption of Jurisdiction and upon review of the Department’s proposed hearing schedule, set a date for a Prehearing Conference of December 14, 2005 at which time a date for the hearing will be determined.
    6. In the matter of Violations of the Montana Operator Certification and Public Water Supply Laws by Richard Kelly at the Ten Mile-Pleasant Valley Lagoons, Lewis and Clark County (BER 2005-13 PWS). The Board received a request for hearing on May 17, 2005, regarding the Notice of Violation and Administrative Compliance and Penalty Order issued by DEQ for the alleged operation of a public sewage system without a certified operator. Under the scheduling order, the final prehearing conference was set for November 7, 2005. A pre-hearing conference was held on November 14, 2005 and a contested case hearing has been set for November 22, 2005.
    7. In the matter of the issuance of the Air Quality Permit for the Roundup Power Project, Permit No. 3182-00 (BER 2003-04 AQ). On June 6, 2005, the Montana Supreme Court remanded an appeal to the District Court. On June 15, 2005, the district Court remanded the case to the Board. The Board was to decide whether to make a new decision based on the record or to receive additional evidence. On July 29, 2005, the Board issued an Order Staying Contested Case Proceedings indefinitely. On August 24, 2005, Hearing Examiner issued an Assumption of Jurisdiction referencing the Order Staying Contested Case Proceedings.
2. OTHER BRIEFING ITEMS
  1. TMDL Update
    Executive Summary
ACTION AGENDA ITEMS
1. REPEAL, AMENDMENT OR ADOPTION OF FINAL RULES:
  1. Amend ARM 17.8.759 pertaining to review of permit applications and extending public comment periods. Presiding Officer Katherine Orr conducted the public hearing on October 3, 2005. Several interested parties submitted written public comments. The Department has prepared a draft final notice modifying the proposed amendments by incorporating some of the public comments, and recommends adoption of the proposed amendments with the modifications.
    
    Executive Summary
    Notice of Public Hearing on Proposed Amendment
    Notice of Amendment
  2. Amend ARM 17.8.743 and adopt New Rules I through VI pertaining to air quality permit applications and air emission control requirements for certain oil or gas well facilities. Presiding Officer Katherine Orr conducted the public hearing on October 4, 2005. Several interested parties submitted written public comments. The Department has prepared a draft final notice modifying the proposed amendments by incorporating some of the public comments, and recommends adoption of the proposed amendments with the modifications.
    
    Executive Summary
    Notice of Public Hearing on Proposed Amendment and Adoption
    Notice of Amendment and Adoption
2. INITIATION OF RULEMAKING AND APPOINTMENT OF HEARING OFFICER:
  The Department will propose that the Board concur in its recommendation to initiate rulemaking to:
  1. Update rules adopted under the Metal Mine Reclamation Act (ARM 17.24.101, et seq.) and the Strip and Underground Mine Reclamation Act (ARM 17.24.301, et seq.) to HB 428 and 429 enacted by the 2005 Montana Legislature. HB 428 streamlines and makes uniform the enforcement procedures applicable to state mining laws, including the Metal Mine Reclamation Act and the Strip and Underground Mine Reclamation Act. HB 429 amended sixteen environmental laws, including the Metal Mine Reclamation Act and the Strip and Underground Mine Reclamation Act, to provide standardized penalty factors that must be considered in determining a penalty in an enforcement action.
    Executive Summary
    Notice of Public Hearing on Proposed Amendment, Repeal and Adoption
  2. Amend ARM 17.8.504, 17.8.505, and 17.8.744 and adopt New Rules I through IX to establish a registration system for certain facilities that presently require an air quality permit. The proposed new rules would establish a general registration system and would establish rules that apply the system to oil and gas well facilities.
    Executive Summary
    Notice of Public Hearing on Proposed Amendment, Repeal and Adoption
  3. Amend ARM Title 17, Chapter 8, subchapters 8 and 9 to adopt federal reforms to the New Source Review permitting regulations as set forth in 40 CFR 51.165 and 40 CFR 51.166. Portions of the federal rules vacated or remanded by the DC Circuit Court of Appeals Ruling of June 24, 2005, are not included in the proposal.
    Executive Summary
    Notice of Public Hearing on Proposed Amendment, Repeal and Adoption
3. FINAL ACTION ON APPEALS:
  1. In the matter of Violations of the Opencut Mining Act by Kenneth Mikesell, d/b/a Mikesell Gravel Mine, Meagher County (BER 2005-10 OC). DEQ issued a notice of violation, statement of proposed penalty, and cessation and abatement order for mining outside the permitted boundary. Under the scheduling order, the final prehearing conference was set for October 3, 2005. On August 24, 2005, the Hearing Examiner, Katherine Orr issued a notice of Assumption of Jurisdiction. The parties submitted a Stipulation for Dismissal on October 24, 2005.
  2. In the matter of the notice of Violation of the Opencut Mining Act by Mickelson Rock Products, LLC at the Tricon Pit #2, Mineral County (BER 2005-12 OC). DEQ issued a notice of violation and statement of proposed penalty for alleged mining without a permit. On October 19, 2005 the parties submitted an Administrative Order on Consent.
  3. In the matter of Violations of the Montana Public Water Supply Laws by Darwin Simac d/b/a Jackson Creek Saloon, Montana City, Jefferson County (BER 2005-05 PWS). The Board received a request for hearing on January 31, 2005, regarding a Notice of Violation and Administrative Compliance and Penalty Order for various alleged violations of the Montana Public Water Supply Laws. The parties agreed on a schedule. Under the scheduling order, a hearing was held on August 23, 2005, before the Hearing Examiner, Katherine Orr. An Order of Recommended Findings of Fact and Conclusions of Law will be issued for the Board’s review prior to the December 2, 2005 meeting.
  4. In the matter of the Denial of the Approval of Subdivision Plans of Sunnyside Orchards #1, Block 6, Lots 29, 30 and 31, Ravalli County, EQ # 05-2598 (BER 2005-15-SUB). On June 29, the Board received a letter from Cleatus Johnson, a subdivision applicant, appealing the denial of his subdivision application for failure to submit adequate application information. Hearing Examiner Katherine Orr issued a First Prehearing Order on August 17, 2005, requesting the parties to propose a hearing schedule by August 29, 2005. Upon application to the Hearing Examiner, the parties have until September 19, 2005 to submit a proposed pre-hearing and hearing schedule. On September 16, 2005 the parties requested an additional 60 days until November 18, 2005 to submit an agreed schedule. The parties have been ordered to submit a proposed pre-hearing and hearing schedule by November 18, 2005. The appellant has withdrawn his appeal and the Board will be evaluating an Order of Dismissal.
4. NEW CONTESTED CASE APPEALS:
  1. In the matter of the request for hearing of Jay Gasvoda, d/b/a Gasvoda Construction, BER 2005-17 OC, regarding the Notice of Violation and Statement of Proposed Penalty issued by DEQ on September 14, 2005. On October 6, 2005, the Board received the appeal letter from Mr. Gasvoda appealing the issuance of a Notice of Violation and Statement of Proposed Penalty concerning an opencut mining operation. A First Prehearing Order was issued on November 7, 2005. The parties have until November 18, 2005 to propose a hearing schedule.
  2. In the matter of the appeal by the Town of Ennis, BER 2005-18 WQ, regarding MPDES Permit No. MT0030732. On October 6, 2005, the Board received notice from Ralph Hernandez, Mayor, that the Town of Ennis appeals its MPDES permit for its wastewater discharge system, which was recently issued by DEQ. A First Prehearing Order was issued on November 7, 2005. The parties have until November 18, 2005 to propose a hearing schedule.
  3. In the matter of the appeal by Westmorland Resources Inc., BER 2005-19 SM (strip mining), appealing the issuance of a Notice of Violation and Statement of Proposed Penalty. A First Prehearing Order will be issued prior to the Board hearing.
GENERAL PUBLIC COMMENT
Under this item, members of the public may comment on any public matter within the jurisdiction of the Board that is not otherwise on the agenda of the meeting. Individual contested case proceedings are not public matters on which the public may comment.
ADJOURNMENT

December 1 1:30 P.M.

December 2 9:00 A.M.

December 1
1:30 P.M.

December 2
9:00 A.M.