Board of Environmental Review

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The documents from past Board meetings are maintained on DEQ's website for three years as a convenience to those who may be interested in past agendas. If you wish to review documents from more than three years prior, please contact the Board Secretary.

DEQ Programs with Board Authority

Air Quality

The Board has the authority and duty to hold hearings involving:

1. appeals of preconstruction and operating permit decisions, fee determinations, and noncompliance orders;
2. requests for variances from emission restrictions;
3. approval of local air pollution control programs; and
4. emergency orders.

Water Quality

The Board has the authority to hear appeals of:

1. Department permit decisions;
2. Department decisions on requirements for authorization to degrade; and
3. administrative orders issued by the Department as a result of violations of The Act.

Approval of Local Water Quality Control Program - A local water quality district may adopt a local water quality control program only with approval of the Board.

Public Water Supply / Public Sewage System

No public water supply or sewage system (generally defined as systems serving at least 15 families or 25 persons) may be constructed or altered without approval of the Department.

The Board may issue orders to implement the law.

The Board hears appeals of administrative orders issued by the Department.

Mined Land Reclamation

The Board conducts contested case hearings when Department decisions are disputed.

Major Facility Siting Act

This Act requires that persons who wish to construct certain electricity generator plants, transmission lines, pipelines, and coal gasification facilities, must obtain a certificate of environmental compatibility and public need before commencing construction of the facility.

The Board has exclusive authority to grant or deny application for a certificate of environmental compatibility and public need and applications to amend a certificate. This includes authority to place conditions on the approval.

The Board and the Department have the duty to monitor compliance with a certificate.

Both the Board and the Department have authority to enforce the Act and provisions of certificates.

Hazardous Waste

Variances - The Board has authority to consider requests for variances from the hazardous waste provisions of the Montana Hazardous Waste and Underground Storage Tank Act and rules adopted under the authority of that Act. Hearings - The Board has authority to conduct hearings:

1. to review Department decisions to deny, revoke, or modify a hazardous waste management facility permit when requested by the permittee or permit applicant;
2. to review Department administrative orders when requested by the person named in the order;
3. regarding alleged violations of the hazardous waste laws with the Department requires the alleged violator to appear before the Board.

Solid Waste

Solid Waste Management Plan - The Board has authority to approve and adopt the state solid waste management plan developed by the Department. Variances - The Board has authority to consider requests for variances from rules adopted under the authority of the Solid Waste Management Act. Appeals and Hearings - The Board has authority to:

1. consider appeals of decisions by local health officers to not validate solid waste management system licenses;
2. conduct hearings to review Department decisions to deny or revoke a solid waste management system license;
3. conduct hearings to review Department administrative orders when requested by the person named in the order; and
4. conduct hearings regarding alleged violations of the solid waste laws when the Department requires the alleged violator to appear before the Board.

Junk Vehicles

The Board conducts hearings to review Department decisions to issue, deny, or revoke a motor vehicle wrecking facility license.

Underground Storage Tanks

There are three legislative acts pertaining to underground storage tanks. First, they are regulated under the hazardous waste laws (see above); second, persons who install, modify, or close underground storage tanks are required to be licensed by the Department; and third, the Department and the Petroleum Tank Release Compensation Board administer a program to fund cleanups of releases from certain storage tanks, including underground storage tanks. The Board's sole function in the installer law is to hold hearings and review Department enforcement orders. The Board has no function in the release compensation program.

Radioactive Waste

Hearings - The Board has authority to hold hearings on:

1. decisions of the Department to grant, suspend, revoke, or amend a license to use, manufacture, produce, or possess radioactive materials;
2. granting of exceptions to rules regulating radioactive materials; and
3. Department enforcement determinations.

Programs with no Board Authority

The following is a list of some of the environmental programs in which the Board has no statutory authority and the administering agency:

Many different laws allow a person to request a contested case hearing with the Board. A person’s right to appeal, or seek review of, a decision of the Department of Environmental Quality varies with the subject matter and the specific terms of the applicable statute. Pertinent statutes include the following:

Board Policies & Procedures

• BER.2002.01.01 - Effective Feb. 8, 2018 - Policy on Submitting Information Informally and Formally to the Montana Board of Environmental Review (.PDF)

Frequently Asked Questions

How does a person aggrieved by a decision of the Department of Environmental Quality seek relief?

Under Montana law, some, but not all, decisions of the Department of Environmental Quality can be administratively appealed to the Board of Environmental Review, which conducts a contested case proceeding.

What is a contested case?

A contested case is a proceeding before an agency (not a court) in which a determination of legal rights, duties, or privileges of a party is required by law to be made after an opportunity for hearing. Laws specifically pertaining to contested case procedures are in Montana Code Annotated, Title 2, chapter 4, part 6. The goal of the Board of Environmental Review is to provide fair and timely contested case hearings.

How does a person request a contested case hearing?

The process varies, depending on the statute that applies. Generally the request must be in writing and must be made within a time period specified in the applicable statute and must be made by a person adversely affected by the challenged decision. The person requesting the contested case hearing should read and comply with the applicable statute to ensure that the appeal is properly and timely filed.

What procedures apply to contested cases?

The Board of Environmental Review has adopted the Attorney General’s model procedural rules, which are published in the Administrative Rules of Montana. The specific rules for contested cases are 1.3.211 through 1.3.225. The general provisions, rules 1.3.230 through 1.3.233, also apply to contested cases.

Are contested case procedures similar to the procedures that apply in civil suits in Montana district courts?

Yes, the procedures are similar. Instead of a judge, a hearing examiner, who is a lawyer appointed by the Board of Environmental Review, regulates the course of contested case proceedings. Some of the Attorney General’s model rules incorporate the Montana Rules of Civil Procedure, which are in Title 25, chapter 20 of the Montana Code Annotated. For example, 1.3.217, which is Model Rule 13, generally follows the discovery rules that apply to civil suits, and 1.3.232, which is Model Rule 27, generally provides that all motions and pleadings will be served in accordance with the Montana Rules of Civil Procedure.

Besides the person requesting the hearing and the Department of Environmental Quality, who else may be a party in a contested case before the Board of Environmental Review?

In cases involving permitting decisions, in which the person requesting the hearing is not the permit applicant, the permit applicant will be notified of the request for hearing and may become a party (intervene) in the contested case by complying with the hearing examiner’s prehearing order. When the permit applicant timely complies with the hearing examiner’s order, a motion to intervene is not required. The hearing examiner’s order will usually contain a paragraph similar to the following example: A copy of this order is being provided to counsel for the permit applicant. No separate motion to intervene is required if the permit applicant complies with this order and proposes a schedule for further proceedings after consultation with the other parties. The permit applicant shall be considered to have intervened in these contested case proceedings by timely submitting a proposed schedule.

How long does the contested case process take?

The goal of the Board of Environmental Review is that hearings be held within 120 days of the request for hearing. Where the parties agree on a faster or slower schedule, the hearing examiner will normally approve their agreed schedule. If a party requests that the Board of Environmental Review hear the case, instead of a hearing examiner appointed by the Board, the time needed to bring the case to hearing may exceed 120 days.

How is a schedule for a contested case established?

After a hearing is requested, the Standing Interim Hearing Examiner issues a prehearing order that is mailed to the parties and, if a permit applicant is not a party, to the permit applicant. The order will give the parties about two weeks to consult with each other and propose an agreed schedule to the hearing examiner. If the parties are unable to agree on a schedule, the hearing examiner will set a schedule for the contested case.

Suppose that a hearing is requested on February 1 and the parties are not able to agree on a schedule by the February 15 deadline set in the hearing examiner’s prehearing order. What would a typical scheduling order provide?

Here is an example scheduling order, based upon the dates suggested in the question. The following schedule is set:

1. No later than February 28: disclosure by each party to the other parties of: (a) the name and address of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, and (b) a copy of, or a description by category and location of, all documents and tangible things that are in the possession, custody, or control of the disclosing party and that the disclosing party may use to support its claims or defenses.
2. No later than March 7: joinder/intervention of additional parties.
3. No later than April 14: completion of discovery. Discovery requests should be served at least 30 days prior to that date in order to allow sufficient time for responses to be filed by the date for completion of discovery.
4. No later than April 22: submission of any motions and briefs in support.
5. No later than May 7, 2002: sub mission of answer/response briefs.
6. No latter than May 14: submission of reply briefs, exchange of lists of witnesses, and copies of documents that each party intends to offer at the hearing.
7. May 22, at 9 a.m.: pursuant to Mont. Code Ann. § 2-4-611, a prehearing conference shall be held by telephone. The hearing examiner shall initiate the telephone conference. The purpose of the prehearing conference is to consider simplification of facts and issues by consent of the parties, hear argument on any outstanding motions, and confirm a schedule for further proceedings, including the date, time, and place of hearing.
8. June 1, beginning at 9 a.m.: contested case hearing.
9. If this schedule becomes unworkable for any party, that person should consult with the other party and propose a revised schedule upon which the parties agree.

May a party file documents with the hearing examiner by email or facsimile?

Yes. The Board follows the Attorney General’s model rules of procedure. Model Rule 27, which is Administrative Rule of Montana 1.3.232, generally provides that papers may be served in accordance with the Montana Rules of Civil Procedure. Rule 5(e) of the Montana Rules of Civil Procedure allows the filing of papers by facsimile or other electronic means, provided that the original document is filed within five business days of the receipt of the facsimile or electronic copy.

How are papers filed with the Board?

By providing them to the Secretary, Board of Environmental Review, Department of Environmental Quality, Metcalf Building, 1520 East Sixth Avenue, P.O. Box 200901, Helena, MT 59620-0901. The facsimile number is (406) 444-4386. The email address is: deqbersecretary@mt.gov. If papers are submitted by email, the preferred software is Microsoft Word 6.0, or later.