Dave Hutchins Looks at the Technical Impracticability Waiver For BPSOU Surface Water

Dave Hutchins - KBMF

For the last few weeks I have been reporting on the EPA’s proposed plan for amendments to the Record of Decision on Butte Priority Soils. I’ve told you about some of the details and the community concerns, and this week I’ll continue with a major component, the waiving of surface water quality standards. I attended a presentation on the plan by Joe Griffin last week to learn more and hear what the community had to say. Joe is well versed in this subject, he is a hydrologist and was the DEQ lead on Superfund in Butte for years.

The EPA has said the fundamental change proposed to the record of decision is the technical impracticability waver to the surface water standard within the Operable Unit. A change of this magnitude is what triggered the amendment process we are now witnessing, here’s Joe

JG: “The proposed plan was required….explanation of significant difference.”

So, what does that mean, technical impracticability. The EPA say “Impracticable means an action or activity cannot be done with technical and engineering resources. It is ‘Impossible to carry out.’” There have been other TI waivers in our area, the Berkeley pit for instance. The EPA granted a waiver for the pit saying it could not reasonably be reclaimed and instead would be treated forever. So, TI wavers don’t typically absolve the responsible party, they define a new cleanup protocol that is attainable but still protective. Here’s Joe on the surface water waiver:

JG: “What are we talking about with technical impracticability in this instance...laregly just dissolved.”

As you can see, these standards are complicated. Not only are the state and federal standard treated differently, they are based on a few factors including the flow and the hardness. They are designed to be protective of aquatic life, and fish are more tolerant of contaminants like copper for short durations or in harder water. The 2006 Record of Decision aimed to meet the more stringent state standard for surface water through remediation efforts.

JG: “So, what did the ROD say…retention or detention ponds.”

And retention ponds are a major component of the plan moving forward. The proposed plan calls for several in the Upper Silver Bow Creek corridor that will passively treat most of the stormwater from the hill. There are already a few of these on the hill, including the CB9 retention basin on Missoula gulch, which has been working for years. These basins have proven very effective at removing metals, especially the suspended particulate fraction.

The EPA has made the case for the TI waver in an in-depth evaluation, a 3000-page document that defines the problem and models various solutions.

JG: “They took a statistical…ultimately they said, we’re not gonna get there.”

So the proposed plan would waive the state standard for copper and zinc in wet weather flow conditions in favor of the federal standard. These waivers are predicated on ARCO’s agreement to build the retention ponds among other storm water remediation efforts. There is also the possibility of waiving standards for other metals and flow conditions after all of these efforts have been explored.

It appears that all of the Superfund parties are on board with this waiver. EPA, ARCO, Butte Silver Bow, and even Montana DEQ are saying this is agreeable. Joe and other experts have said it is reasonable and even necessary. But citizen’s have voiced concerns.

Many in the public have sought clarity, it is a complex issue and technical documents in the thousands of pages are difficult to wade through. It’s particularly hard to understand when the defining standard, to be protective of the environment, seems to have a nebulous definition. Many experts agree the federal surface water standards are protective, but community members question the wisdom of accepting a less stringent standard.

Some have questioned the concept of technical impracticability, itself. Jon Mcee, a member of the BNRDC, brought up the waiver for the alluvial aquifer impacted by the Parrot tailings.

JM: “The base assumptions of the…we just moved some dirt.”

Others have questioned what they see as a major oversight in the TI evaluation. The Record of Decision defines contingencies for this scenario, if surface water standards cannot be met storm water would be captured and treated or diluted.

JG: “The ROD said…lime treatment plant to treat that water.”

But these alternatives were not part of the evaluation and were simply dismissed without discussion. Now the proposed plan removes these contingencies from the ROD all together.

ARCO representative Josh Bryson cautioned against challenging the proposed plan. He pointed out that 80% of the hill is private property and municipal infrastructure, and if a Consent Decree could not be reached, Butte Silver Bow and the tax payers could be held liable for a majority of the contamination.

So, the waiving of surface water standards will probably remain a contentious issue throughout the process. Remember, we are more than half way through the public comment period on the proposed plan, it ends on June 11th. There will be an opportunity to ask questions and make comments at a public meeting this Thursday, May 23rd at 6pm at the Montana Tech Auditorium.

I’m Dave Hutchins reporting for KBMF