AGENDA
BOARD
OF ENVIRONMENTAL REVIEW
FRIDAY, JULY 27, 2007
NOTE:
Individual agenda items are not
assigned specific times. For public
notice purposes, the Board will begin the meeting no earlier than 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.
A.
REVIEW AND APPROVE MINUTES
1.
June 1, 2007, regularly scheduled
Board meeting.
II.
BRIEFING ITEMS
A.
CONTESTED CASE UPDATE
1.
Cases assigned to Hearing Officer
Katherine Orr
a.
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.
On April 27, 2007, Hearing Examiner Katherine Orr issued an Order
Requesting Status Report. On
May 16, 2007, DEQ filed a Status Report.
b.
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
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.
c. In
the matter of Violations
of the Water Quality Act by ASARCO, Inc., BER 2005-09
WQ.
A Stay of
Proceedings was issued by the Hearing Examiner on January 19, 2006, upon
notification by the Department of the bankruptcy proceeding.
d. In the matter of the
e.
In the matter of the request for
hearing of Kountry Korner Enterprises, d/b/a Kountry Korner Café, regarding
violations of the
f.
In the matter of the appeal by
Willow Creek Sewer District regarding violations of the Water Quality Act, BER
2006-13 WQ. Upon a request for
an extension, the parties have until April 13, 2007, to submit a hearing
schedule or reach settlement. On May 9, DEQ filed a Request for Extension,
which Ms. Orr granted on May 11. The
parties have until June 29, 2007, to file a pre-hearing order or settlement
documents.
g. In
the matter of the Notice of Appeal and Request for Hearing of the Citizens
Awareness Network, Women’s Voices for the Earth, and the Clark Fork Coalition
regarding DEQ’s approval of the Thompson River CO-Gen, LLC, Air Quality Permit
No. 3175-04, BER 2006-18 AQ. The
matter proceeded to hearing on May 3, 4, and 17, 2007.
Hearing Examiner Katherine Orr issued an order for the parties to submit
post-hearing proposed findings of facts and conclusions of law and post-hearing
briefs by June 29, 2007. On May 26,
the parties filed a request for extension of that deadline to August 1, 2007.
An Order Granting Extension of Time
for Filing Proposed Findings of Fact and Conclusions of Law was entered by
the Hearing Examiner on July 2, 2007. This
order extends the deadline for filing proposed finding of fact and conclusions
of law until August 1, 2007.
h.
In the matter of violations of the
Metal Mine Reclamation Act by Marty J. and Sinda M. Puryer, as individuals and
d/b/a Paul Kurth Mining, for the failure to post reclamation bond, BER 2006-21
MM. A hearing is set for July
30, 2007.
i.
In the matter of the appeal by the
City of
j.
In the matter of the appeal by the
Butte-Silver Bow Public Works Department, regarding Final MPDES Permit No.
MT0022012, BER 2006-27 WQ. An
extension was granted until July 3, 2007, to submit a hearing schedule or
settlement documents. The parties
have until August 29, 2007, to submit a hearing schedule or settlement
documents.
k.
In
the matter of violations of the Water Quality Act and the Public Water Supply
Laws by Brady County Water and Sewer District, BER 2006-29 WQ.
On May 14, DEQ filed a second Request for Extension.
On June 8, 2007, Hearing Examiner Katherine Orr granted the extension,
giving the parties until June 29, 2007, to file a proposed schedule.
m.
In the matter of violations of the Clean Air Act of
n.
In the matter of the appeal by the Missoula County Public Works
Department regarding MPDES Permit No. MT0020168 and DEQ’s response to public
comments and submitted documents regarding the permit, BER 2007-02 WQ.
On June 5, 2007, DEQ filed a second Request for Extension to file
a proposed scheduling order. Hearing
Examiner Katherine Orr granted the extension on June 15, 2007, giving the
parties until July 5, 2007 to file a pre-hearing schedule or settlement
documents.
o.
In the matter of the appeal by Jill and Joseph Slevin regarding
p.
In the matter of the request for hearing by John Pendleton regarding
alleged violations of the
B.
CASES IN LITIGATION
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).
On September 27, 2006, the Board filed a Motion
to Dismiss the Board. Flying J
filed a response opposing the Motion to Dismiss on October 12, 2006.
On November 9, 2006, the Board filed a Reply
in Support of Motion to Dismiss. On
June 25, 2007, the Court issued an Order
Denying the Board’s Motion to Dismiss and on July 6, 2007, entered an Order
Setting Briefing Schedule and Hearing Date.
Under this Order, the Petitioner is required to file all briefs on or
before August 10, 2007, and the Respondents are ordered to file their respective
responsive briefs on or before September 21, 2007.
III.
ACTION ITEMS
A.
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 17.38.101 and 106 of
the public water supply rules, in accordance with MCA, 75-6-104 and 75-6-108, to
allow the department to collect fees commensurate with the costs of engineering
plan and specification review and to clarify existing rules.
Notice
of Public Hearing on Proposed Amendment
B.
REPEAL, AMENDMENT OR ADOPTION OF FINAL RULES
1.
In the matter of the amendment of ARM 17.30.617 to designate the mainstem
Gallatin River from the Yellowstone National Park boundary to the confluence of
Spanish Creek as an Outstanding Resource Water (ORW) and to amend ARM 17.30.638
to add a new sub-section clarifying that discharges to ground water with a
direct hydrologic connection to an ORW are within the statutory mandate
prohibiting any permanent change in the water quality of an ORW resulting from
point source discharges. The Department will request that the Board issue a
notice of supplemental rulemaking to extend the comment period.
Notice of Extension of Comment Period on Proposed Amendment
C. NEW CONTESTED CASE
APPEALS
1.
In the matter of the appeal by the Town of
2.
In the matter of the appeal by
3.
In the matter of the appeal by Citizens for Clean Energy (CCE) and
Montana Environmental Information Center (MEIC) regarding Air Quality Permit No.
3423-00 issued to Southern Montana Electric (SME) for its Highwood Generation
Station, BER 2007-07 AQ. The
Board received the appeal on May 29, 2007, followed by an affidavit on June 8,
2007. On June 8, 2007, Standing
Interim Hearing Examiner Katherine Orr issued a combined First Prehearing
Order for Case Nos. 2007-06 and 2007-08.
On June 28, 2007, DEQ submitted a proposed schedule on behalf of the
parties, which included a request to combine the two cases.
The Board may appoint a permanent hearing examiner or decide to hear the
matter. (See entry III.C.2.)
4.
In the matter of violations of the Water Quality Act by North Valley
Hospital, Flathead County, BER 2007-08 WQ. The
Board received the request for hearing on June 5, 2007. Standing
Interim Hearing Examiner Katherine Orr issued a First Prehearing Order on
June 13, 2007. On July 2, 2007, DEQ
filed a Request for Extension [of time] to file a proposed schedule.
The parties have until August 29, 2007, to file a pre-hearing schedule or
settlement documents. The Board may
appoint a permanent hearing examiner or decide to hear the matter.
5.
In the matter of violations of the
6.
In the matter of violations of the
7.
In the matter of violations of the Opencut Mining Act by Big Rock,
LLC, at the Wheeler Gravel Pit, Missoula County, BER 2007-11 OC. The
Board received the request for hearing on June 22, 2007. A
First Pre-Hearing Order was issued on July 13, 2007.
The Board may appoint a permanent hearing examiner or decide to hear the
matter.
8.
In the matter of the appeal by ExxonMobil regarding its final MPDES
Permit No. MT-0028321 for its
9.
In the matter of violations of the Open Cut Mining Act by John
Schlecht, d/b/a John Schlecht Excavating, at the Schlecht Sand and Gravel Pit,
Ravalli County, BER 2007-13 OC. The
Board received the appeal on July 5, 2007. The
Board may appoint a permanent hearing examiner or decide to hear the matter.
10.
In the matter of violations of the
11.
In the matter of violation of the
Water Quality Act by Jack Mountain Estates Subdivision, Jefferson County, BER
2007-15 WQ. The Board received
the request for hearing on July 13, 2007. The
Board may appoint a permanent hearing examiner or decide to hear the matter.
D.
FINAL ACTION ON CONTESTED CASES
1.
In the matter of violations of the
Montana Strip and Underground Mine Reclamation Act by Westmoreland Mining, LLC,
d/b/a Western Energy Co., BER 2006-30 SM.
On July 16, 2007, the parties filed a Stipulation
To Dismiss and an Administrative Order
on Consent. An order to dismiss
the case will be presented for the Board’s approval.
IV.
GENERAL PUBLIC COMMENT