Montana DEQ - BER - September 2005 Agenda

Board of Environmental Review Agenda

AGENDA
BOARD OF ENVIRONMENTAL REVIEW
FRIDAY, SEPTEMBER 30, 2005
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.

9:00 A.M.

ADMINISTRATIVE AGENDA ITEMS
1. A. Review and approve minutes of July 29, 2005, meeting.
  Draft Minutes
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.
    4. 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 forthcoming.
    5. 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.
    6. 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.
    7. 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. On August 25, 2005, the Hearing Examiner received a Motion for Summary Judgment on the Issue of Liability and Request for Hearing. A ruling on the Motion for Summary Judgment will be forthcoming.
    8. 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. Under the scheduling order, which the Hearing Examiner, incorporated by reference in her notice of Assumption of Jurisdiction, dated August 24, 2005, all dates are retained and a Prehearing Conference is set for November 25, 2005. At the Prehearing Conference a date for the hearing will be determined.
    9. 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.
    10. 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.
    11. 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. NPRC Petition for Rulemaking regarding coalbed methane wastewater.
    2. MEIC Petition for Rulemaking regarding metal mine reclamation rules.
    3. Upper Blackfoot Mining Complex - Update.
  3. ACTION AGENDA ITEMS
    1. FINAL ACTION ON APPEALS
      1. In the matter of the application by Patty Irvine, d/b/a Marks Environmental Service, for renewal of septage disposal license (BER 2005-11 SW). DEQ denied license renewal by order dated March 29, 2005. The renewal was denied on grounds that the business is not being operated in compliance with septage disposal laws and rules. Alleged violations included the failure to maintain records, disposing of septage on land without first obtaining the written approval of the landowner and DEQ, and disposing of septage without a license. Ms. Irvine has withdrawn her appeal and there is a pending Motion to Dismiss with Prejudice filed by the Department.
      2. In the matter of Violations of the Opencut Mining Act by Century Companies, Inc. at the Bergh Pit, Plentywood, Sheridan County (BER 2005-14 OC). Request for hearing was received on June 14, 2005, on a Notice of Violation and Statement of Proposed Penalty relating to the alleged failure to complete reclamation on time. The parties requested until August 23, 2005, to pursue settlement. Standing Interim Hearing Examiner Tom Bowe granted the request. Recently appointed Hearing Examiner Katherine Orr issued an Order Assuming Jurisdiction and ordering the parties to submit a proposed scheduling order by August 31, 2005, or to indicate that settlement had been reached by that date. The parties submitted an Administrative Order on Consent on September 2, 2005.
    2. INITIATION OF RULEMAKING
      The Department will propose that the Board concur in its recommendation to initiate rulemaking to:
      1. Update rules at ARM 17.38, Subchapters 1 and 2, pertaining to public water supply systems. The changes are generally intended to update the design standards, add options for design submission that reduces costs associated with design submission, and to clarify existing rules. The changes include adopting new rules, amending existing rules, and clarifying existing language. The proposed changes are necessary to protect public health and the environment.
        Executive Summary
        Notice of_Public Hearing on Proposed Amendment
      2. Update certain water quality standards in Circular WQB-7, and update rules in ARM Title 17, Chapter 30, Subchapters 5,6,7, and 10, pertaining to mixing zones, surface water quality standards, nondegradation requirements, and ground water rules. Incorporate the updated water quality standards in Circular WQB-7 by amending ARM Title 17, Chapter 36, Subchapter 3, pertaining to subdivisions, ARM Title 17, Chapter 55, Subchapter 1, pertaining to CECRA, and ARM Title 17, Chapter 56, Subchapter 5, pertaining to underground storage tanks. The changes are primarily intended to update certain water quality standards in WQB-7 (renamed DEQ-7), incorporate DEQ-7 into the above rules, and adopt new rules for waters that may be designated as outstanding resource waters. The changes include the adoption of new rules, amending existing rules, and clarifying existing language.
        Executive_Summary
        Notice of Public Hearing on Proposed Amendment and Adoption
      3. Reinitiate a portion of previous amendment of rules at ARM Title 17, Chapter 30, Subchapter 13 pertaining to concentrated animal feeding operations (CAFOs); adopting federal Effluent Limit Guidelines as promulgated in the Code of Federal Regulations Subchapter N, Part 412 (Effluent Limits and Standards); and adopting a new Department Circular DEQ-9, which contains state technical standards for nutrient management, animal waste management system design, land application rates, and monitoring and reporting requirements as required in the revised federal regulation. A public hearing was conducted on January 14, 2005. Numerous comments were received from members of the public during and after the hearing. On February 28, 2005, the United States Court of Appeals for the Second Circuit vacated those portions of the federal rules that allow permitting authorities to issue permits without reviewing the terms of nutrient management plans, that allow authorities to issue permits that do not include the terms of the nutrient management plans and do not provide for adequate public participation, and that require large CAFOs to apply for permits based on a presumption that they are likely to have actual discharges, or otherwise demonstrate that they have no potential to discharge. The Court remanded other aspects of the federal rules to EPA for further clarification and analysis. The Department and EPA have consulted on the status of the federal rules and the Department believes it can move forward to adopt the federal rules by reference, except for the provisions vacated by the federal court. Additionally, the 2005 Legislature in passing Senate Bill 320 directed the Department to adopt federal rules contained in this notice. This amended notice of public hearing preserves the previous comments from the public and seeks comment on the proposal to go forward with the adoption of the federal CAFO rules as originally proposed, but without adopting those sections of the federal CAFO rules that were vacated by the federal court.
        Circular DEQ 9
      4. Update the State Solid Waste Management Plan. The Solid Waste Management Plan was adopted in 1994 and has not been updated since that time. Last year, the Department initiated a review of the plan. In conjunction with a task force of affected persons, and after taking public comment and holding public hearings, the Department is proposing an updated plan. The Department is requesting the Board initiate rulemaking to adopt the updated plan.
        Executive Summary
        Notice of Public Hearing on Proposed Adoption
        Draft Solid Waste Management Plan
    3. REPEAL, AMENDMENT OR ADOPTION OF FINAL RULES
      1. In the matter of the amendment of ARM 17.8.504, ARM 17.8.505 and 17.8.514 for the annual adjustment of air quality application, operation and open burning fees. Presiding Officer Katherine Orr conducted the public hearing on August 3, 2005. No public comments were received at the hearing. One public comment supporting the rule was received within the comment period. The DEQ recommends adoption of the rule amendments as proposed.
        Executive Summary
        Notice of Public Hearing on Proposed Amendment
        Notice of Adoption
        Air Quality Fee Annual Report
    4. MEIC PETITION FOR RULEMAKING (Mercury)
      On September 14, 2005, the Board received a petition from: the Montana Environmental Information Center; Montana Public Health Association; Montana Nurses' Association; Healthy Mothers, Healthy Babies, The Montana Coalition; the Northern Cheyenne Tribe; Fort Belknap Community Council; The Progressive Labor Caucus; The Montana Association of Churches; Caring for Creation Network; Montana Wildlife Federation; Montana Audubon; National Wildlife Federation; Montana Public Interest Research Group; Montana Chapter of the Sierra Club; Community Awareness Network; William & Margaret Eggers; Greg Lind, M.D.; Collette Kirchhoff, M.D.; Lori Byron, M.D.; Robert Byron, M.D.; and Cheryl Reichert, M.D., Ph.D. The petition requests that the Board initiate rulemaking to amend ARM 17.8.740 and adopt New Rule I pertaining to control of mercury emissions from facilities that combust coal to generate electricity for sale. The Board will hear presentations by the petitioners and other interested persons regarding whether the Board should deny the petition or initiate rulemaking.
      Executive Summary
      Notice of Public Hearing on Proposed Amendment and Adoption
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

NOTE: Persons with disabilities who need an accommodation in order to participate
in this meeting, should contact the Board Secretary at (406) 444-2544.