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Agenda Packet BOARD OF ENVIRONMENTAL REVIEW FEBRUARY 26, 2021 9:00 am DEQ ZOOM CONFERENCE ---------------------------------------------------- NOTE: Board members, the Board attorney, and secretary will be participating electronically. Interested persons, members of the public, and the media are welcome to attend via Zoom or telephonically. Members of the public and press also may join Board members with prior arrangement. Contact information for Board members is available on the Board’s Website (http://deq.mt.gov/DEQAdmin/ber/board). The Board will make reasonable accommodations for persons with disabilities who wish to participate in this meeting. Please contact the Interim Board Secretary by e-mail at [email protected], no less than 24 hours prior to the meeting to advise her of the nature of the accommodation needed. 9:00 AM I. MEMBER ORIENTATION A. ONBOARDING INFORMATION FOR INCOMING MEMBERS The Board has four newly appointed members. 1. How the agency interacts with the Board - Deputy Director George Mathieus 2. Legal duties and authority of the Board - Katherine Orr & Sarah Clerget 3. Administrative matters - Interim Board Secretary Joyce Wittenberg II. ACTION ITEMS A. NEW CONTESTED CASES 1. In the matter of notice of contest and request for hearing by Talen Montana, LLC, regarding the selection of a remedy and setting of financial assurance for the Colstrip Steam Electric Station Units 1 & 2, BER 2020-07 MFSA/WQA. The Board received the appeal December 17, 2020. The Board can decide to assign a hearings examiner for procedural issues in this case, hear the case itself, or assign a hearing examiner for the totality of the case. 2. In the matter of the Notice of Appeal and request for hearing regarding DEQ’s approval of Riverside Contracting, Inc.’s Opencut Mining Permit #3234 (Arrow Creek Site) by multiple appellants, BER 2020-08 OC. The Board received the appeal December 23, 2020. The Board can decide to assign a hearings examiner for procedural issues in this case, hear the case itself, or assign a hearing examiner for the totality of the case. 3. In the matter of the notice of appeal and request for hearing (by “Conservation Groups”) regarding DEQ’s issuance of a final Section 401 Water Quality Certification, #MT4011079 to Transcanada Keystone Pipeline LP for the Keystone XL Pipeline Project, BER 2021-01 WQ. The Board received the appeal January 4, 2021. The Board can decide to assign a hearings examiner for procedural issues in this case, hear the case itself, or assign a hearing examiner for the totality of the case. P.O. Box 200901 I Helena, MT 59620-0901 I (406) 444-2544 I www.deq.mt.gov 4. In the matter of the Indigenous Environmental Network’s and North Coast Rivers Alliance’s appeal of the Montana Department of Environmental Quality’s final determination to issue a 401 Water Quality Certification for the Keystone XL Pipeline, DEQ Application No. MT4011079, BER 2021-02 WQ. The Board received the appeal February 1, 2021. The Board can decide to assign a hearings examiner for procedural issues in this case, hear the case itself, or assign a hearing examiner for the totality of the case. III. 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 for the meeting. Individual contested case proceedings are not public matters on which the public may comment. IV. ADJOURNMENT BER Agenda Page 2 of 2 February 26, 2021 001 002 003 004 005 006 007 008 009 010 011 012 013 014 015 016 017 018 019 020 021 022 023 024 025 026 027 028 029 030 031 032 033 034 035 036 037 038 039 040 041 042 043 044 045 046 047 048 049 050 051 052 053 054 055 056 057 058 059 060 061 062 063 064 065 066 067 068 069 070 071 072 073 074 075 076 077 078 079 080 081 082 083 084 085 086 087 088 089 090 091 092 093 094 095 096 097 098 099 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 Board of Environmental Review Memo TO: Sarah Clerget, Hearing Examiner Board of Environmental Review FROM: Joyce Wittenberg, Board Secretary [interim/acting] P.O. Box 200901 Helena, MT 59620-0901 DATE: December 17, 2020 SUBJECT: Board of Environmental Review Case No. BER 2020-07 MFSA/WQA BEFORE THE BOARD OF ENVIRONMENTAL REVIEW OF THE STATE OF MONTANA IN THE MATTER OF: NOTICE OF CONTEST AND REQUEST FOR HEARING BY TALEN MONTANA, LLC, REGARDING Case No. BER 2020-07 MFSA/WQA THE SELECTION OF A REMEDY AND SETTING OF FINANCIAL ASSURANCE FOR THE COLSTRIP STEAM ELECTRIC STATION UNITS 1 & 2 BY THE MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY. On December 17, 2020, the BER has received the attached request for hearing via email. Please serve copies of pleadings and correspondence on me and on the following DEQ representatives in this case. Edward Hayes Terri Mavencamp, Bureau Chief Legal Counsel Contaminated Site Clean-Up Bureau Department of Environmental Quality Department of Environmental Quality P.O. Box 200901 P.O. Box 200901 Helena, MT 59620-0901 Helena, MT 59620-0901 [email protected] [email protected] Nicholas Whitaker Jenny Chambers, Administrator Legal Counsel Waste Management & Remediation Division Department of Environmental Quality Department of Environmental Quality P.O. Box 200901 P.O. Box 200901 Helena, MT 59620-0901 Helena, MT 59620-0901 [email protected] [email protected] Attachments Filed with the MONTANA BOARD OF ENVIRONMETNAL REVIEW December 17, 2020 jw Filed with the MONTANA BOARD OF ENVIRONMETNAL REVIEW December 17, 2020 jw BEFORE THE BOARD OF ENVIRONMENTAL REVIEW OF THE STATE OF MONTANA In the matter of the selection of a NOTICE OF CONTEST AND remedy and setting of financial REQUEST FOR HEARING BY assurance for the Colstrip Steam TALEN MONTANA, LLC Electric Station Units 1 & 2 by the Montana Department of Environmental Quality Notice of Contest and Request for Hearing 1. Talen Montana, LLC (“Talen Montana” or “Contester”) contests the Montana Department of Environmental Quality’s (“MDEQ” or “Department”) November 17, 2020 selection of a remedy for the Colstrip Steam Electric Station (“CSES”) Units 1 & 2 Stage One Evaporation Pond (“SOEP”) and Stage Two Evaporation Pond (“STEP”) and MDEQ’s related demand for $285,438,000.00 in financial assurance. These decisions are contained in a November 17, 2020 cover letter from MDEQ to Gordon Criswell (“November 17 MDEQ Letter,” attached as Exhibit 1) and decision document entitled “DEQ’s approval of the Units 1 & 2 Stage I and II Evaporation Ponds, Revised Remedy Evaluation – Integrated Report, and the Integrated Report Addendum (Remedy Evaluation Report) and selection of a remedial alternative for the Units 1 & 2 SOEP and STEP area” (“Remedy Decision Document,” attached as Exhibit 2). 1 2. MDEQ’s remedy selection and financial assurance directives contained in the November 17 MDEQ Letter and Remedy Decision Document were rushed decisions that failed to properly account for the risks to human health and the environment posed by MDEQ’s selected remedy, failed to consider compliance with state and federal law, failed to comply with the administrative order on consent between MDEQ and Talen Montana, and were generally arbitrary, capricious, and abuses of discretion. 3. The November 17 MDEQ Letter, the Remedy Decision Document, and the decisions contained therein prejudice the substantial rights of Contester. 4. These remedy selection and financial assurance decisions violate constitutional and statutory provisions, exceed the authority of MDEQ and the Board of Environmental Review (“Board”), are made upon unlawful procedure, are affected by other errors of law, are clearly erroneous in view of reliable, probative, and substantial evidence to be adduced on the record in this contest proceeding, are arbitrary and capricious, and are characterized by an abuse of discretion and/or a clearly unwarranted exercise of discretion. MCA 2-4-704(2). 5. The relevant facts and specific deficiencies that Talen Montana has identified to date are set forth in this Notice of Contest. Talen Montana specifically reserves the right to amend this Notice of Contest should additional relevant facts be 2 ascertained during discovery before the Board, during dispute resolution (see Paragraphs 55-57), or otherwise. 6. As discussed in further detail in Paragraphs 77-79 below, Talen Montana is filing this Notice of Contest today to preserve its rights in the event that the Board determines that the November 17 MDEQ Letter and the Remedy Decision Document constitute a “final decision” of the Department. On December 17, 2020, Talen Montana initiated dispute resolution proceedings with MDEQ regarding both the November 17 MDEQ Letter and the Remedy Decision Document and is contemporaneously filing a request to stay proceedings related to this Notice of Contest pending the outcome of dispute resolution with the Department. Statement of Relevant Background and Facts A. The CSES Facility and MFSA Certificate 7. CSES Units 1 & 2 are located in Section 34, Township 2 North, Range 41 East, Rosebud County, Montana. Units 1 & 2 ceased operation in early 2020. 8. CSES Units 1 & 2 are collocated with Units 3 & 4. 9. Talen Montana is the operator and co-owner of CSES Units 1 & 2, as well as Units 3 & 4. Puget Sound Energy, Inc. (“PSE”) is a co-owner of all four units, and additional entities also co-own Units 3 & 4. 10. CSES Units 3 & 4 are subject to a certificate issued under the Major Facility Siting Act, MCA 75-20-101 et seq. (“MFSA”). The MFSA certificate as 3 originally issued in 1976 incorporated the findings of the Board of Health and Environmental Science (“BHES Findings”) and the Board of Natural Resources and Conservation (“BNRC Findings”) (collectively attached as Exhibit 3).
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