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Ochenski

Small matters, big wins: Montanans protected from tiny, deadly toxins

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Montanans have at least two great reasons to celebrate Earth Day this year. First, the Montana Board of Environmental Review just set a nationwide precedent this week by requiring regulation of tiny particulates that would be emitted by a highly controversial proposed coal-fired power plant near Great Falls. Second, a federal appeals court just ruled against the owners of a proposed cyanide-leach gold mine planned on the banks of the Blackfoot River, hopefully putting a final end to that sad episode.

The tale of the coal plant’s emissions starts back in 1997, when the Environmental Protection Agency (EPA) first listed the tiny particles, known as PM2.5 (because they are 2.5 microns or smaller), as pollutants. Unlike some of the larger and coarser particles emitted by coal-fired power plants and other industrial facilities, the minute particles find their way deep into lung tissue, where they remain forever and can cause serious health problems.

How serious? Well, consider this: Just last year the Bush EPA, which should more accurately be labeled the Environmental Pollution Agency, reviewed numerous studies and determined that the particles were far more dangerous to public health than first thought. So dangerous, in fact, that the feds cut the previous standard for the particulates in half.

Yet, in another sorry example of how the Bush administration and its coterie of industry-lobbyists-turned-regulators deal with public health threats, the EPA told states that they didn’t have to require any polluters to actually analyze or control these dangerous particulates. Instead, they could simply consider the larger particles, known as PM10 (because they’re 10 microns).

Here we are, 11 years since the federal agency charged with protecting human health and the environment knew about and decided that the smallest particulates were significant threats—but the EPA still says Montana doesn’t have to require any analysis or control of PM2.5s.

And that brings us back to the decision by the Board of Environmental Review this week, which resulted from an appeal by the Montana Information Center and a Great Falls group opposed to the proposed coal plant, Citizens for Clean Energy. As Board member Don Marble, who took part in the hearing from his hospital bed in Arizona, summed it up: “I’m tired of relying on the EPA. It’s got to be done eventually and it might as well be done in Montana and Great Falls.”

(Ironically, it was the ancillary issue of the Bush EPA’s actions on sidestepping the regulation of mercury emissions from power plants that finally pushed the Board to take action to protect the health of Montanans no matter what the feds had to say about it.)

At the Board hearing, Ken Reich, the Boston-based attorney for the power plant, argued that new requirements to control tiny particulates would add significant costs to the plant. Since this is the first time a state has taken this step, Reich told the Board: “We’re not in the world of theory here, we’re in the world of practicality.”

Reich’s comments, however, were tossed back in his face by Board member Gayle Skunkcap, who went right to the heart of the issue when he said: “If you’re not from Montana, you’re not living northeast of this power plant”—and hence, would not be harmed by the plant’s emissions.

In the end, all but one Board member voted to require that the Montana Department of Environmental Quality (DEQ) and the coal plant’s developers, Southern Montana Electric, re-open the operating permit for the proposed plant to both analyze the health impacts of the PM2.5 particulates and determine ways in which they can be controlled, handing a huge victory and a national precedent-setting decision to the people of Montana.

What was both surprising and alarming, however, is that the Schweitzer administration’s attorney for the DEQ, David Rusoff, sided with the coal plant. Saying he was “disappointed” in the Board’s vote, Rusoff warned that the move to regulate the particles could have far reaching ramifications because industries that currently emit such particles will have to consider ways to control them in the future. Rusoff’s concerns may be rooted in the Schweitzer administration’s efforts to develop coal, but it certainly leaves one wondering just whom the DEQ is working for–or protecting.

The second piece of great environmental news this week has been largely overlooked by the mainstream Montana press, but is hugely significant in its import. Canyon Resources, the company that proposed a massive open pit gold mine on the banks of the Blackfoot River more than a decade ago, claimed Montana owed it between $500 and $800 million because Montana’s citizens passed an initiative in 1998 banning new cyanide heap-leach mines. Canyon claimed the measure stopped them from realizing profits from its proposed mine, which they said constituted a “takings” of private property for which they should be compensated.

Both Montana’s District and Supreme Courts have already ruled against the mining corporation, and the U.S. Supreme Court refused to take the case under consideration. So Canyon turned to the federal Ninth Circuit Court of Appeals. But this week, that court, like all the others before, ruled that there had been no “takings” from Canyon Resources and therefore no compensation was required.

Gayle Skunkcap’s retort to the coal plant attorney holds the essence of why Montanans should rejoice in our victories this Earth Day. From our cyanide mining ban to the regulation of tiny particulates, we, the people who live downstream and downwind from polluting industries, have fought to preserve our environment and our health. Montana’s Constitution, one of the strongest in the world, guarantees every citizen a “clean and healthful” environment. These two decisions, coming back-to-back this week, enforce that guarantee.

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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