Audits Reveal DEQ Inadequacies

(September 2008)  Three recent audits conducted by the Montana Legislative Auditor have exposed serious problems with core programs at the Department of Environmental Quality (DEQ).  The auditors examined the State’s Superfund, Opencut Mining, and Water Quality Protection programs and found all of them to be seriously wanting.  The water quality program is in such shambles that the legislative auditors decided performing an audit at this time would not be useful and postponed it for two years in the hope that the bureau will be back on track by then.

Richard Opper, the agency director, has consistently stated that the problems are budgetary.  He says the agency simply does not have enough staff to keep up with the workload in these programs.  However, he has routinely told the press that DEQ is in a “belt-tightening session” and he is not planning to request any additional funds from the 2009 Legislature.

He says this despite an estimated $400 million surplus in the State’s general fund.  Gov. Brian Schweitzer promised during his 2004 campaign to improve management of State government.  After nearly four years in office, these audit results would indicate otherwise.  Here is a rundown of some of DEQ’s problems, program by program.

Opencut (Gravel) Mining Program

The highest profile failure at DEQ has occurred in the gravel mine permitting program.  A legislative audit of the bureau exposed serious defects in its management.  The defense proffered by Opper was that the bureau simply doesn’t have enough employees to do the job.  Again, not one new position is being sought in the administration’s next budget.

The Helena district court judge who wrote one of the rulings ordering DEQ to issue gravel pit permits has now reconsidered his ruling.  After being asked by Gallatin Valley residents Kathy Brekke and Jody Gryder to allow them to intervene in the case and raise constitutional issues the State failed to discuss, Judge Jeffrey Sherlock instead issued a stay of his original ruling so that the residents could appeal his first order to the Montana Supreme Court.

In his stay, Sherlock gave the agency a tongue-lashing.  Describing the confusing situation created by the State’s failure to raise pertinent legal issues he wrote (in part): 

All of this presents the Court with a serious conundrum.  It appears that the DEQ is doggedly refusing to do anything to review the permits.  The DEQ has not only violated the legislature’s mandate … but it has not even bothered to start the environmental assessment process.  Further, it has not even extended the time period involved, nor has it issued findings that would allow it to withhold the requested permits.  Instead, the DEQ merely states that it is understaffed and cannot get the work done.  However (State law) allows the DEQ, potentially, to avoid issuing a permit under MEPA by making a written finding as set forth in that statute.  The DEQ has not even bothered to make such a finding.  One might suggest more is expected of an eponymous agency created to ensure environmental quality.

State Superfund Program

Montana’s State superfund program (known by the acronym CECRA, which stands for Comprehensive Environmental Cleanup and Responsibility Act) was created in 1985 for the purpose of addressing sites contaminated with hazardous or deleterious substances that were not being addressed by Federal Superfund activities.  The passage of the law was one of MEIC’s major achievements during the 1980s.

The program prioritizes toxic waste sites by the threat they pose to human health and the environment.  It is then supposed to identify the polluters if they are known, and take the appropriate steps to make the responsible parties clean up the site.  In the rare instance when there is not a responsible party, the program can utilize a variety of State funds to pay for the cleanup.

The legislative auditors found serious flaws in the program’s operations.  Here are some excerpts from the audit report:

Additional resources would provide the department the ability to conduct site assessments to identify contaminants, assess risk to human health and the environment, identify responsible parties, and begin enforcement and cleanup activities....There are highly contaminated sites where the department either has not performed a complete investigation to identify responsible parties, where thorough investigation has been unable to identify responsible parties, or where parties are unable or unwilling to conduct or pay for remediation.  These state superfund sites pose or may pose immediate or significant threat to human health and the environment and the department lacks financial resources to undertake remedial actions.  The lack of financial resources restricts the department’s ability to investigate, identify, and notify responsible parties; conduct site investigations to determine the full nature and extent of contamination; perform risk assessment and feasibility studies to evaluate cleanup options; select a preferred cleanup option; and implement cleanup.  Some specific examples of such sites include:

• Billings PCE site.  Involves a 140-acre solvent plume of this cancer-causing dry cleaning chemical in the groundwater beneath more than 400 homes.  Listed as a high priority site, the department does not have resources to even begin remedial actions.  As a result, the department has requested the U.S. EPA to address the site.  Estimated cost to remediate this site is $7 million.
• Burlington Northern Fueling Facility, Helena.  Here there are multiple toxic contaminants in the groundwater and soils that have migrated to residential neighborhoods.  Listed as a high priority site, the department does not have resources to require BN to begin to remediate the site.  Estimated costs are not available.
• Bitterroot Valley Sanitary Landfill.  This is an inactive landfill where laboratory wastes were dumped along with other chemicals that have now leached into residential wells.  Listed as a maximum priority site, no remedial action is currently underway due to lack of staff.  Estimated cost to finish remediation of this site is $956,000.
• KRY Facility, Kalispell.  This site involves three facilities located close to the Stillwater River and nearby residential areas.  Two are listed as a high priority and the third as medium.  Groundwater contamination from each is commingled in the shallow aquifer.  Estimated cost of the proposed cleanup is $28.5 million.  The department has limited resources to remediate this site without relying almost completely on the responsible parties.

The department is not bringing actions against all responsible parties to recover costs as required by law and has rarely pursued cost recovery through legal action.

Because of its funding limitations, DEQ can essentially only address those CECRA sites where there are responsible parties willing to do the work or to reimburse the department for its costs.  In reality there are only a few such sites, so the Superfund sites the department is working on are not necessarily those with the highest threat to human health and the environment.

Even though the two most recent legislatures appropriated some additional funds to the program, most of it was one-time-only funding that provided only short-term solutions.  Because there is no permanent long-term source of revenue to allow DEQ to remediate sites when polluters are unable and/or unwilling, those polluters’ sites continue to escape cleanup while the rascals go free.

Water Protection Bureau

After its initial investigations revealed another program in massive disarray, the legislative auditors chose, instead of conducting a full-blown audit, to write a “memorandum” to document the many problems with the program, planning to return in two years to see if the promised changes had been made.

The most alarming finding was that 90 of 172 pollution permits issued by the State have expired.  Under both State and federal law, the permit holders are allowed to continue discharging wastewater under their old requirements so long as they have applied for another permit.  There is no deadline for the State to act.

Discharge permits are required for all sources of wastewater, including sewage treatment plants and mines.  The permits must be regularly renewed in order to comply with new standards set by federal regulators based on the most current scientific information and technology.

Deputy legislative auditor Angie Grove told the Great Falls Tribune that the audit assessment found several deficiencies in the Water Protection Bureau’s permitting process that led to the backlog.  Those deficiencies range from management and staffing problems to inadequate policies and procedures to handle the permitting workload.

This backlog has not escaped the notice of the U.S. Environmental Protection Agency, the federal agency with ultimate authority to enforce the water pollution control laws.

Julie DalSoglio, deputy director of the EPA Region 8 office in Montana, told the Tribune that the bureau has caused EPA “major concern” for at least five years.

According to DalSoglio, Montana’s backlog of permits is by far the highest in the six-state EPA region, which includes Montana, North Dakota, South Dakota, Wyoming, Colorado, and Utah.

Earlier this year, a high-ranking EPA official wrote a stinging letter to Opper.  In it EPA assistant regional administrator Steven Tuber excoriated DEQ for its attempt to change the previously agreed-to goals for 2008 compliance in order to create the appearance of progress.  “Water quality is not being protected,” wrote Tuber.

DEQ said it needed to complete a permit writer’s manual, update bureau databases, update the program’s administrative rules, and fill staff vacancies.  These are the same excuses advanced in 2003 when the EPA approved additional grant funding for the completion of the manual, which has yet to be finished.

DalSoglio contends that DEQ has taken positive steps in recent months that indicate the agency is serious about addressing the problems with the water quality permitting process.

Jenny Chambers replaced Bonnie Lovelace as chief of the Water Protection Bureau in April and she claims to be taking steps to rectify the situation.

“I’m looking at how we can move this program forward in the future,” Chambers told the Tribune.  “We need to develop a database system where we’re able to track what’s going on.” Following Opper’s directive, Chambers announced that she will not request any additional resources from the 2009 Legislature.

Chambers said she expects to see a reduction in the backlog as new policies are implemented in the coming year, and she said she hopes to be caught up in five to seven years.