Montana DEQ - BER - !DATE! Agenda

AGENDA
BOARD OF ENVIRONMENTAL REVIEW
FRIDAY, JUNE 2, 2006
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.

NOTE START TIME: 8:00 A.M.

ADMINISTRATIVE AGENDA ITEMS
1. Review and approve minutes of March 23, 2006, regularly scheduled Board meeting.
  Draft Minutes
2. Review and approve January 10 & 11, 2006, hearings summary pertaining to metal mine reclamation rules.
  Draft Hearings Summary
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 2005-09WQ). 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.
    5. 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 is set for May 23, 2006, at the Missoula City-County Health Department.
    6. 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 during the week of November 27, 2006.
2. OTHER BRIEFING ITEMS
  1. EQC Involvement with BER Rulemakings
ACTION ITEMS
1. REPEAL, AMENDMENT OR ADOPTION OF FINAL RULES:
  1. In the matter of the amendment to ARM 17.24.116 pertaining to application requirements for operating permits under the Metal Mine Reclamation Act, as proposed in Montana Administrative Register Notice No. 17-230. This notice appeared in the September 8, 2005, Montana Administrative Register.
    Executive Summary
    Summary of Proponent's Comments
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. Amend ARM 17.8.501, 17.8.505, and 17.8.514 for the annual adjustment of air quality operation and open burning fees.
    Executive Summary
    Notice of Public Hearing on Proposed Amendment
  2. Revoke the Temporary Water Quality Standards for portions of Mike Horse Creek, Beartrap Creek and the upper Blackfoot River (ARM 17.30.630(2)) and the Board approved Implementation Plan. Asarco has not complied with most of the requirements of the temporary standards’ Implementation Plan. Based on Asarco’s lack of progress, expected continued fiscal and performance shortfalls and the Department’s review of additional relevant information, the Department recommends that the Board begin rulemaking to revoke the temporary standards.
    Executive Summary
    Notice of Public Hearing on Proposed Amendment
3. FINAL ACTION ON APPEALS:
  1. 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. The parties have signed an Administrative Order on Consent and submitted a stipulation for dismissal on March 13, 2006. An order of dismissal will be presented to the Board for approval.
  2. In the matter of the request for hearing by Oro Management, LLC, BER 2006-01 MM, regarding a challenge to the alleged violations and an assessed penalty. The parties have been given until February 2, 2006, to submit a proposed schedule for pre-hearing matters and the hearing date. The Hearing Examiner issued an Order on February 3, 2006, requesting the parties submit a proposed hearing schedule by March 22, 2006. On April 14, 2006, the parties signed an Administrative Order on Consent, a Stipulation of Dismissal and an Order of Dismissal all of which will be presented to the Board for its review.
  3. In the matter of the request for hearing of Blue Bear Minor Subdivision, Glacier County, under Mont. Code Ann. §76-4-126, BER 2006-03 SUB (EQ #06-1988). The Board received the request for hearing on February 16, 2006. A First Prehearing Order was issued March 7, 2006. The parties submitted a Stipulation for Dismissal. A proposed order will be presented for the Board’s approval.
  4. In the matter of the request for hearing of Garfield County, regarding a notice of violations of the Opencut Mining Act, BER 2006-08 OC. The Board received the request for hearing March 24, 2006. The Board may appoint a permanent hearings examiner or decide to hear the matter. A Prehearing Order was issued on April 16, 2006. The parties have submitted a Stipulation for Dismissal and a Proposed Dismissal Order.
  5. 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 alleged 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 parties were given until May 8, 2006, to submit a proposed hearing schedule or settlement document. The parties have signed an Administrative Order on Consent and a Stipulation for Dismissal and Order is included for the Board’s approval.
4. OTHER ACTION ON APPEALS
  1. 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. 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.
  2. 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.
5. NEW CONTESTED CASE APPEALS:
  1. 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. The Board may appoint a permanent hearings examiner or decide to hear the matter. A First Prehearing Order was issued April 3, 2006. A proposed Scheduling Order was ordered to be produced by April 14, 2006.
  2. 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. The Board may appoint a permanent hearings examiner or decide to hear the matter. 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.
  3. 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. The Board may appoint a permanent hearings examiner or decide to hear the matter. A Scheduling Order was issued on April 24, 2006. A hearing is set for December 5, 2006.
  4. 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. The Board may appoint a permanent hearings examiner or decide to hear the matter. A Prehearing Order was issued on May 9, 2006.
  5. 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 Board may appoint a permanent hearings examiner or decide to hear the matter. The Department filed a Motion to Dismiss and Supporting Brief on April 20, 2006. A Prehearing Order was issued May 8, 2006.
  6. 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.
  7. 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 Board may appoint a permanent hearings examiner or decide to hear the matter.
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