Out with Opper: Disarray, dysfunction plague state's DEQ

For the third time in as many weeks, Montana’s Department of Environmental Quality (DEQ) has been the subject of investigation by Legislative Auditors and once again has been found woefully inadequate in its mission to protect Montana’s environment. Given the agency’s obvious disarray and dysfunction, the time has come to demand the resignation of DEQ Director Richard Opper.

The first audit, in June, was a scathing rebuke of the Opencut Mine Program, which is responsible for both issuing permits and overseeing operations such as gravel pits. That investigation found the agency to be totally incompetent in handling the permitting processes, including official files missing documentation necessary to issue opencut mining permits; an informal application process for permit applicants and department personnel; a backlog of pending permit applications while program staff drafted application documents for mine operators; incomplete information to effectively manage the program; no identification of performance measures essential to a results-oriented system; and preferential treatment for some applicants when program personnel processed applications because "there are no formal priorities for processing applications."  

Meanwhile, a lack of communication between DEQ and the Department of Revenue resulted in the non-collection of the Resource Indemnity and Groundwater Assessment Tax (RIGWAT) that is "a primary source of program funding."

Unfortunately, the audit’s findings came too late to save Montana’s environment, as a month earlier district courts ruled that DEQ had to immediately issue permits—with no environmental analysis—because the agency was so far behind the required statutory deadlines and had a huge backlog of pending applications.

Also in June came the audit of the state’s mini-Superfund program, which is intended to clean up hundreds of hazardous waste sites scattered across Montana that are not big enough to merit listing as federal Superfund sites, but that still pose significant threats to human health and the environment.

Again, the audit’s 60 pages of findings were nothing less than damning, leading off with: "The state superfund program appears to have little management guidance for staff to develop
and implement a work plan of action…[T]he supervisor…is actively involved in the daily work of the section, but appears to receive little guidance from department management on how to set work priorities, measure project impact, or adjust program operations to deliver services more effectively." It concluded, "Department long-term cleanup strategy appears unplanned."

These well-documented sites include Burlington-Northern fueling facilities in Whitefish, Helena, Missoula, Essex, Butte, Havre and Billings; a 140-acre PCE solvent plume in Billings that has polluted groundwater beneath 400 homes; the Bitterroot Valley Sanitary landfill where lab wastes and chemicals have leached into groundwater residential wells; and dozens of old mines, mills, refineries and chemical processing facilities. Most have had little or no mitigation and continue to pollute our environment.

Just this week, a memo from state Deputy Auditor Angie Grove outlines DEQ’s utter inability to effectively manage the Water Protection Bureau’s surface and groundwater discharge permit process despite both internal (2004) and contracted (2006) reviews whose recommendations have not been implemented.

The bureau is supposed to be managing and overseeing all pollutant discharges from such sources as mines and wastewater treatment plants, as well as pesticide, construction, storm water and concentrated animal feed operations. But DEQ is doing such a poor job that the EPA has threatened to pull the state’s authority to regulate ground and surface water, and the funding that goes with it.  

The EPA says the problem has persisted for at least five years and has earned Montana the dubious distinction of being the "worst program in the six-state region." In a letter from the EPA to Opper in February, Stephen Tuber, EPA’s assistant regional administrator, summed it up in six words: "water quality is not being protected."

A stunning 48 percent of discharge permits are expired, yet continue to discharge pollutants into the state’s ground and surface waters. By design, the law requires periodic re-evaluation of the discharge permits because new laws and regulations often find earlier limits on certain pollutants were too high and therefore are in need of new, safer limits. But thanks to overwhelming incompetence in both management and function, DEQ can’t even monitor, much less re-evaluate the pollution discharges. Moreover, since DEQ has no effective monitoring program, which allows a 25 percent cut in annual fees to those meeting discharge reduction goals, the agency simply issues across-the-board fee reductions to all permit holders—both negating its mission and reducing its own funding source.

The Town of Whitefish, for instance, was issued its wastewater discharge permit in 1996 using "efficiency-based standards." The permit was supposed to be re-issued in 2001, but was not. In 2007, Whitefish finally got the new permit with standards that include limits for water color, turbidity, heat, pH, pollutant levels, etc., which are not being met by the existing facility and, consequently, those pollutants simply go into the area’s once-pristine surface and groundwater.

Nor, once again, is the agency meeting its statutory deadlines, almost ensuring that those businesses awaiting action on their permit applications will follow the gravel pit operators into court to get their permits. In the meantime, as the memo notes: "For governments, this can mean the inability to ensure local water resources are protected from the effects of toxic materials."

It couldn’t be clearer that the time has come for Opper to resign.

Where the responsibility ultimately resides, however, is with Gov. Brian Schweitzer, who claims to be "clean and green," but in the face of overwhelming evidence, appears to be neither.

Although Schweitzer recently told reporters he didn’t want to be Vice President because "he was too busy running the state," it’s painfully obvious from DEQ’s debacle that he may have meant "running around the state."

No one, it seems, is running DEQ. No one is protecting our environment from toxic pollution, and no one, despite Schweitzer’s crowing about his "restoration economy," is cleaning up the existing hazardous waste sites. Simply put, Montanans—and future generations of Montanans—deserve better.

Helena’s George Ochenski rattles the cage of the political establishment as a political analyst for the Independent. Contact Ochenski at opinion@missoulanews.com.
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