DEQ Proposes New Environmental Enforcement Rules

Where enforcement of Montana’s environmental laws is concerned, everyone agrees that predictability and standardization are good things. MEIC, regulated industries, and DEQ enforcement staff all believe that enforcement rules should be written so that there are few, if any, surprises when they are implemented. It’s unfortunate, then, that DEQ’s recent package of proposed rules puts departmental discretion at the forefront, with predictability nowhere in sight.

Why is this important? Because environmental laws are only as good as their enforcement. And they can only be adequately enforced if there are appropriate rules and procedures that implement them.

DEQ administers more than a dozen different environmental laws. Each had different enforcement procedures and, in the event penalties were levied against violators, different methods for calculating those penalties. DEQ wanted to standardize these procedures and penalty factors. Consequently, two bills were passed in the 2005 legislative session, with MEIC’s qualified support, doing just that. This package of rules is the final step in implementing the changes.

Unfortunately DEQ has cast aside predictability and standardization in its proposal. Instead, the rules give DEQ an overwhelming amount of discretion, which can only serve to complicate the enforcement process and will provide no deterrent to violators.

Here are three examples.

• First, every environmental law lists a maximum daily penalty for violations. In the coal reclamation law, it’s $1,000 per day per violation; for water quality, it is $25,000 per day per violation. One major problem with these rules is how DEQ counts days. For you and I, a day is a day—24 hours. For DEQ, a day could be a week, 10 days, or even a month. So if a company violates its emission standard for sulfur dioxide for a month, DEQ may decide to assess the violator for just a single day of violation. Or they may not—we don’t know. This provision gives too much discretion for DEQ to assess penalties arbitrarily.
• Second, with these new rules DEQ will never fine a violator the maximum daily penalty. The largest fine can only be 70% of the maximum daily penalty. Even in the most egregious of circumstances—say a company willfully dumping toxic chemicals into a river used for a town’s water supply—even then DEQ would only assess a penalty of 70% of the maximum. This lessens the deterrent effect of the penalties, if not rendering the maximum meaningless.
• Finally, the rules say that if DEQ becomes aware of a violation of an environmental law—the metal mine reclamation act, for instance—it will send a violation letter to the mining company. That’s it. The rules don’t say what happens after the letter is sent, or if the company must respond to the letter. Nothing else is required from DEQ. The rules allow DEQ to issue a notice of violation, which would start the penalty process, but this allowance is couched with the legal term “may.” In other words, DEQ is not required to act.

This trend toward non-enforcement stems from a policy implemented during the Racicot administration. At that time, DEQ’s enforcement staff decided their job was not to be enforcers, as the division’s name might imply. Instead, they decided their job was “compliance assistance.” Compliance assistance was a euphemism for allowing violators to reduce the penalties against them, or having the violations dropped entirely if the company agreed to come back into compliance. Wouldn’t it be nice if you were able to talk your way out of a speeding ticket merely by promising not to speed again? Compliance assistance allowed Canyon Resources to avoid paying a fine of more than $300,000 as initially assessed, and settle for $30,000 plus the donation of some worthless mineral rights to the State.

It is this flawed policy that led directly to the new laws and to this rules package. DEQ wants wide latitude to act as it sees fit, which is not necessarily in the best interest of Montana’s environment and public health. MEIC will work to improve DEQ’s proposal so it lessens DEQ discretion and deters violators.