A Montana lawmaker wants to get rid of the Board of Environmental Review, calling it redundant and saying its workload could be handled better by professionals at the Department of Environmental Quality.
But those opposed to the idea say it removes a layer of public involvement in rulemaking and forces people who have a dispute with DEQ decisions to appeal to an agency they might not trust.
The board and Department of Environmental Quality were created during the 1995 Legislative session. The board has authority over the following DEQ programs, meaning its seven members have the power to write rules and/or hear appeals of the agency’s decisions concerning: air quality, water quality, public water supply/public sewage system, mined land reclamation, major facility siting, mega-landfill siting, hazardous waste, solid waste, junk vehicles, underground storage tanks and radioactive materials.
Sen. Duane Ankney, R-Colstrip, argued the 365 employees at DEQ are experts in all those fields and better suited to write rules and review appeals than the board.
“They do the work, they’re professionals,” Ankney said in support of his Senate Bill 337. “We don’t need a (seven)-member board that meets every two months to approve the work that professionals are doing.”
Under the bill, DEQ would write its own rules and still hold a public comment period to have people weigh in. In cases of disputes over department decisions, the director said appeals would be sent to him and he would assign a hearings officer.
The Board of Environmental Review costs an average of $18,954 to operate each year. The department said it could absorb all the rulemaking work under its existing staff, but it's unclear how much it would cost to hire a hearings officer for appeals.
Those who spoke in support of the bill included a former director of the Department of Natural Resources as well as those involved in the industries DEQ regulates.
Leo Berry, who was a former director of the Department of Natural Resources and commissioner of state lands, said he handled many appeals when he led the department and that system worked fine.
“I think the time has passed where you had all these boards and commissions,” he said. “I think the system will function just fine without the board.”
Bud Clinch, executive director of the Montana Coal Council, said he made two high-profile decisions when he was state commissioner of lands in the mid-1990s and those were appealed to District Courts, something he said would work for appeals now.
“When you contemplate the complexity of the issues, there is no way that a part-time citizen board can ever engage to the level necessary to understand those issues and really make technically defensible decision(s). The complexity of things today have far outgrown the ability of a seven-person citizen board to competently handle this issue.”
In opposition, Montana Environmental Information Center deputy director and lead lobbyist Anne Hedges said the bill would make DEQ both judge and jury.
“You’re giving the agency complete power and I think that’s misguided.”
Hedges questioned why Ankney brought the bill two-thirds of the way through the session and a week before the deadline to introduce bills. While she said there may be merit to eliminating involvement of the board in certain circumstances, it’s something that should be studied by lawmakers before the 2019 session.
“This is a shotgun approach to what may be conversation that could be done in the interim,” she said.
Director Tom Livers, who did not take a stance on the bill, said that the public would lose one more level of input when it comes to rulemaking and that agency legal services could handle appeals, or they could be contracted out -- something he’d prefer because of concerns over conflicts of interest.
Sen. Jill Cohenour, D-East Helena, asked Livers if it was appropriate for DEQ to be the arbiter of decisions the department makes.
Liver said he didn't have an answer but could see benefits to each approach. “I trust my ability to do that but I realize this has to be looked at irrespective of who is in the job.”
Sen. Mike Phillips, D-Bozeman, asked Ankney why he singled out the Board of Environmental Review, noting some who testified questioned the need for other state boards, of which there are roughly 160.
“Is it making a litmus test for boards going forward? Should we just get rid of them all?”