Montana Department of Environmental Quality (DEQ) is proposing a new suite of rules concerning how sectors that discharge wastewater (municipalities, industry, and construction/commercial) may seek a water quality standards variance. The public comment period is open until August 22, 2022 and a public hearing is scheduled for this Thursday, August 18, 2022.
‘Variances’ are a time-limited water pollution control tool that provide a discharger the ability to temporarily receive less stringent pollution limits than it would otherwise need to achieve to protect local water quality. Variances are a creature of federal law: there are only six possible circumstances where a polluter can potentially receive a ‘variance’ or exemption from meeting pollution limits. The Environmental Protection Agency’s rules set forth baseline requirements for obtaining a variance, whereas the state of Montana is responsible for administering the application process and any other application requirements that may be additionally required under state law.
In Montana, most variance requests have addressed the municipal sector and unfortunately, most of the waterways that receive pollution discharges from our cities are polluted from those wastes. The issue in Montana is that the most common pollutant in municipal discharges, nutrients, particularly nitrogen and phosphorus, are discharged in volumes and concentrations that diminish the receiving waterways’ ability to take in such wastes while still remaining healthy. While plenty of known and proven technologies or wastewater treatment facilities upgrades exist that better protect water quality, those upgrades are often expensive and require long-term investments from municipalities. One of the six possible reasons for receiving a variances can occur when the cost of upgrading treatment works exceeds approximately 2.5% of the median household income. Generally speaking, if costs to improve treatment exceed this ratio, a municipal discharger can receive a temporary variance from meeting pollution limits and instead, is allowed to work toward the highest conditions it can meet without upgrading technology – often at the expense of local water quality.
Coming full circle, the Montana DEQ is proposing to codify both federal and state requirements for obtaining any type of variance. Waterkeeper has reviewed the proposed rule and identified three key issues:
- The proposed rule fails to clearly require that any new or renewed applications for nutrient variances rely on updated economic data to justify economic hardship. Economic hardship data was last collected in 2010 and after more than a decade and significant demographic changes it needs to be updated. The proposed rule should clearly require any applicant seeking a nutrient variance on the basis of economic hardship to show they’ve satisfied necessary criteria to be temporarily excused from their otherwise mandatory duty to protect local water quality.
- The proposed rule fails to require a variance be for the shortest time period necessary to achieve the Highest Attainable Condition, and likewise fails to require a thorough pollution control plan describing the set of activities necessary to achieve the HAC. The proposed rule should provide clear legal requirements mandating a transparent pollution control roadmap, which provides a discharger with regulatory clarity and milestones for compliance, enforcement, and continual pollution control improvement.
- The proposed rule fails to indicate how dischargers previously covered by a variance will make consistent progress improving their respective pollution control and treatment operations. A variance is intended to be a short-term exception to otherwise stringent pollution control standards with the goal of continual movement towards attaining applicable standards and reducing pollution discharges. Variances are not, however, meant to be substitute water quality standards allowing dischargers to seek – year after year – renewal of the same variance with the same terms. DEQ’s proposed rule is silent on how the Department will assure that variances are in fact meaningful tools for continually improving pollution discharges and protecting water quality, as opposed to a new regulatory scheme that sanctions exceptions which swallow the rule.
It is critical that Montana’s rules allowing exemptions from science-based water quality standards be time-limited, enforceable, and assure measurable progress in better protecting local water quality.