Montana DEQ - BER - July 21, 2006 Agenda

AGENDA
BOARD OF ENVIRONMENTAL REVIEW
FRIDAY, JULY 21, 2006
METCALF BUILDING, 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.

9:00 A.M.

BRIEFING 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 and 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 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 Hearing Examiner Tom Bowe granted the request. On August 24, 2005, Hearing Examiner Katherine Orr 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. The hearing examiner issued a Stay of Proceedings on January 19, 2006, upon the notification of the Department of the bankruptcy proceeding.
    3. 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 Katherine Orr issued an Assumption of Jurisdiction referencing the Order Staying Contested Case Proceedings.
    4. 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 Department filed a Motion to Strike Discovery, to Compel Discovery or for Sanctions on January 23, 2006. This motion was unopposed. The Hearing Examiner issued an order concerning discovery on April 21, 2006. In this order, the Respondent is ordered to answer discovery by May 5, 2006. The parties have been ordered to submit a proposed schedule for hearing and prehearing dates by May 10, 2006. Mr. Gasvoda did not respond to the Order Concerning Discovery. An Order Imposing Sanctions and Setting a Hearing Schedule was issued on June 9, 2006.
    5. In the matter of the request for hearing of Michael and Kimberly Thomas, regarding DEQ’s approval of the Blahnik Construction, Inc.’s JCSL North Gravel Pit. The Board received the request for hearing on February 17, 2006. A First Prehearing Order was issued March 8, 2006. The parties submitted a Proposed Prehearing Schedule on March 23, 2006. A hearing will be held on November 14, 2006.
    6. In the matter of the request for hearing of James McDonald, d/b/a McDonald Ready Mix, regarding violations of the Opencut Mining Act, BER 2006-05 OC. The Board received a request for hearing March 10, 2006. A First Prehearing Order was issued April 3, 2006. A proposed Scheduling Order was ordered to be produced by April 14, 2006. There will be a hearing during the week of December 11, 2006.
    7. In the matter of the request for hearing of Bruce Wood, d/b/a Big Sky Ready Mix, regarding a notice of violations of the Opencut Mining Act, BER 2006-06 OC. The Board received the request for hearing March 16, 2006. A Scheduling Order was issued on April 24, 2006. A hearing is set for November 14, 2006. The Department has filed a Motion to Dismiss or in the Alternative for Other Relief on May 5, 2006. This motion was denied on June 6, 2006.
    8. In the matter of the request for hearing of Tom and Noel Gorton, d/b/a Creston Topsoil, regarding a notice of violations of the Opencut Mining Act, BER 2006-07 OC. The Board received the request for hearing March 21, 2006. A Scheduling Order was issued on April 24, 2006. A hearing is set for December 5, 2006.
    9. In the mater of the request for hearing of Kountry Korner Enterprises, d/b/a Kountry Korner Café, regarding violations of the Montana Public Water Supply Laws, BER 2006-09 PWS. The Board received the request for hearing March 27, 2006. A Prehearing Order was issued on May 9, 2006. A Scheduling Order was issued on June 6, 2006. A hearing will be held on November 28, 2006.
    10. In the matter of the request for hearing of Thomas M. Thomas, Pointe of View Ranch, regarding a notice of violations of the Water Quality Act, BER 2006-11 WQ. The Board received the request for hearing April 26, 2006. The Board may appoint a permanent hearings examiner or decide to hear the matter. A Prehearing Order was issued on May 9, 2006. The parties were requested to submit a proposed hearing schedule.
    11. In the matter of the Montana Environmental Information Center’s appeal of Air Quality Permit No. 3182-01, issued for the Roundup Power Project, BER 2005-21 AQ. The parties were given until January 10, 2006, to submit a proposed schedule for prehearing matters and the hearing. The permittee, Bull Mountain filed a Motion to Intervene on January 9, 2006. The Hearing Officer issued a Scheduling Order on January 30, 2006. The final prehearing conference is set for May 26, 2006. The Department submitted a Motion to Dismiss on January 26, 2006. The MEIC filed an Answer Brief on February 24, 2006. Bull Mountain filed a Brief in Support of the DEQ’s Motion to Dismiss on February 24, 2006. The parties filed a Joint Stipulation to Stay Prehearing Schedule on March 6, 2006. There was a hearing on the Motion to Dismiss on March 30, 2006. The Board will be reviewing the Hearing Examiner’s proposed order addressing the Motion to Dismiss, contained in the Board packet. The parties have requested a hearing in January 2007.
2. OTHER BRIEFING ITEMS
  1. Mercury Rules
    
    The Department will briefly outline each component of the proposed mercury rule, with Board questions and discussion on each component and on the rule in general. The purpose of this discussion will be for the Board to provide the Department general direction in preparation for the Board’s action on this rule September 29.
  2. Metal Mines Reclamation Legislation
    
    The Department will provide a briefing on conceptual legislation regarding revisions to the Metal Mine Reclamation Act.
  3. Update on CBM TGechnology-Based Effluent Limits
ACTION ITEMS
1. REPEAL, AMENDMENT OR ADOPTION OF FINAL RULES:
  1. Amend rules at ARM 17.8.101, 17.8.102, 17.8.103, 17.8.302, 17.8.340, 17.8.767, 17.8.801, 17.8.802, 17.8.818, 17.8.902, 17.8.1002, 17.8.1202, and 17.8.1502, pertaining to incorporation by reference of current federal regulations and other materials into air quality rules. Presiding Officer Katherine Orr conducted the public hearing on May 11, 2006. No public comments were received. The Department recommends adoption of the amendments as proposed.
    Executive Summary
2. FINAL ACTION ON APPEALS:
  1. In the matter of the request for hearing of Scanlan Construction regarding a notice of violation of the Opencut Mining Act, BER 2006-10 OC. The Board received the request for hearing April 7, 2006. The Department filed a Motion to Dismiss and Supporting Brief on April 20, 2006. A Prehearing Order was issued May 8, 2006. On June 2, 2006, the parties submitted an Administrative Order on Consent. An order to dismiss the case will be presented to the Board.
  2. In the matter of the request for hearing of Linda Christensen regarding the Final Environmental Assessment for Russell Olsen’s proposed Paveco Gravel Pit, BER 2006-12 OC. The Board received the request for hearing on April 18, 2006. The Petitioner has filed a letter saying she does not wish to pursue the hearing. The Department moved to dismiss the case. An Order of Dismissal will be provided for the Board’s review.
  3. In the matter of the Petition for Review of Hazardous Waste Final Permit No. MTHWP-03-01 issued to Flying J Petroleum, 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. 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. The Department filed a Motion for Partial Summary Judgment on December 21, 2005. This motion was fully briefed as of January 25, 2006. Oral argument occurred April 5, 2006. A three-day hearing is scheduled for August 9-11, 2006. Exceptions have been filed to the Hearing Examiner’s proposed Order on the Motion for Partial Summary Judgment. The Board will review and approve or disapprove the Hearing Examiner’s proposed Order on the Motion for Partial Summary Judgment in the packet of materials.
  4. In the matter of the request for hearing by Bear Cub, LLC, BER 2006-02 SUB, regarding Sunrise Lots subdivision waiver denial in Missoula County. The parties have been given until February 2, 2006, to submit a proposed schedule for pre-hearing matters and the hearing. A first Scheduling Order was issued on February 8, 2006. A hearing was held on May 23, 2006, at the Missoula City-County Health Department. If exceptions are not filed, a Proposed Findings of Fact and Conclusions of Law will be submitted to the Board for approval at the July 21, 2006, meeting.
3. NEW CONTESTED CASE APPEALS:
  1. In the matter of the appeal by Willow Creek Sewer District regarding violations of the Water Quality Act, BER 2006-13 WQ. The Board received the appeal May 23, 2006. A Prehearing Order was issued on June 9, 2006. The parties have requested until July 28, 2006, to submit a schedule.
  2. In the matter of the request for hearing of Michael Golembeski regarding the permit process of the Paveco Gravel Pit, BER 2006-14 OC. The Board received the request May 26, 2006. A Prehearing Order was issued on June 9, 2006.
  3. In the matter of the request for hearing of the Teton County Airport Commission regarding violations of the Montana Underground Storage Tank Act at the Choteau Airport, BER 2006-15 UST. The Board received the request for hearing June 2, 2006. A Prehearing Order was issued on June 9, 2006. A Proposed Prehearing Schedule was submitted by the parties on June 23, 2006.
  4. In the matter of the request for hearing of U.S. Customs and Border Protection regarding a notice of violation concerning the Del Bonita Border Station, BER 2006-16 PWS. The Board received the request for hearing June 8, 2006.
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