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17.30.101   PURPOSE AND POLICY
(1) The purpose of this subchapter is to establish procedures and criteria concerning applications for state water quality certifications submitted to the department pursuant to section 401 of the federal Clean Water Act, 33 USC section 1341, as amended.

(2) It is the policy of the board that the department shall ensure that any activity that requires a federal license or permit and that may result in a discharge to state waters shall fulfill the requirements of ARM Title 17, chapter 30 and thereby also fulfill the requirements of 33 USC sections 1311-1313, 1316, and 1317.

History: 75-5-401, MCA; IMP, 75-5-402, 75-5-403, MCA; NEW, 1991 MAR p. 2033, Eff. 11/1/91; TRANS, from DHES, 1996 MAR p. 1499.

17.30.102   DEFINITIONS
In this subchapter the following terms have the meanings indicated below and are supplemental to the definitions in 75-5-103, MCA:

(1) "Applicant" means a person who applies for a license or permit issued by an agency of the federal government to conduct an activity that may result in discharge into state waters.

(2) "Licensing or permitting agency" means an agency of the federal government to which application is made for a license or permit to conduct an activity which may result in a discharge into state waters.

(3) "Regional administrator" means the administrator of Region VIII of the US environmental protection agency.

(4) "Discharge" means the injection, deposit, dumping, spilling, leaking, placing, or failure to remove, of any pollutant so that it or any constituent of the pollutant may enter into state waters.

History: 75-5-401, MCA; IMP, 75-5-402, 75-5-403, MCA; NEW, 1991 MAR p. 2033, Eff. 11/1/91; TRANS, from DHES, 1996 MAR p. 1499.

17.30.103   APPLICATION FOR CERTIFICATION

(1) A person may not conduct or commence construction for any activity requiring state water quality certification under 33 USC section 1341, as amended, unless the department has issued certification, issued with conditions, or waived certification under this subchapter.

(2) An application for state water quality certification under this subchapter is not deemed complete until the permit fee required under ARM 17.30.201 is remitted to the department.

(3) The applicant, the licensing or permitting agency, or the regional administrator (under 40 CFR 121.13) shall submit to the department a complete description of the activity for which certification is sought, including:

(a) the name and address of the applicant;

(b) a description of the facility or activity and of any discharge which may result from the facility or activity including, but not limited to:

(i) the volume of the discharge;

(ii) the biological, chemical, physical, and radiological characteristics of the discharge;

(iii) a description of the existing environment at the site of the discharge;

(iv) the size of the area affected;

(v) the location or locations at which the discharge may enter state waters; and

(vi) any environmental impact assessment, information, maps, and photographs which have been provided to the licensing or permitting agency;

(c) a description of the function and operation of equipment, facilities, activities, or practices to minimize or to treat wastes or other effluents which may be discharged, including the degree of treatment expected to be attained;

(d) the date or dates on which the activity is proposed to begin and end, if known, and the date or dates on which the discharge will take place; and

(e) a description of the methods being used or proposed to monitor the quality and characteristics of the discharge and the operation of equipment, facilities, or activities employed in the treatment or control of pollutants.

(4) The department may exempt an applicant from the information requirements of (3)(b), (c), and (e) of this rule, if the applicant's federal permit application is to the United States Army Corps of Engineers under section 404 of the federal Clean Water Act, 33 USC 1344, as amended, and the federal permit application provides the information required under these sections.

(5) The department shall review the application for completeness within 30 days of receipt of the application. If the application is not complete, the department shall notify the applicant of any additional materials reasonably necessary for review of the application.

(6) The applicant shall submit in timely fashion, at any time during the review process, any new information or modifications of the facility or activity which are pertinent to the department's certification responsibilities.

(7) An application is deemed complete if the applicant has provided all information included in (3), and the fee required in (2).

 

History: 75-5-401, MCA; IMP, 75-5-402, MCA; NEW, 1991 MAR p. 2033, Eff. 11/1/91; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2018 MAR p. 2517, Eff. 12/22/18.

17.30.105   DEPARTMENT CERTIFICATION OPTIONS
(1) Except as provided in (2) , the department shall take one of the following actions upon completing its review of an application for certification submitted under this subchapter:

(a) deny certification for any activity which the department finds will result in a discharge that will violate any effluent limitation or water quality standard stated in or developed pursuant to ARM Title 17, chapter 30;

(b) issue certification for any activity which the department finds will not result in a discharge that will violate any effluent limitation or water quality standard stated in or developed pursuant to ARM Title 17, chapter 30; or

(c) issue conditional certification for any activity that with the conditions imposed will not result in a discharge that will violate any effluent limitation or water quality standard stated in or developed pursuant to ARM Title 17, chapter 30.

(2) The department may waive certification if the department finds that the activity will:

(a) cause minimal or no impacts to the quality of state waters; or

(b) require an application for a Montana pollutant discharge elimination system permit under ARM Title 17, chapter 30, subchapter 13, a Montana groundwater pollution control system permit under ARM Title 17, chapter 30, subchapter 10, a short-term exemption from water quality standards under 75-5-308, MCA, or a short-term narrative water quality standard under 75-5-318, MCA.

History: 75-5-401, MCA; IMP, 75-5-402, 75-5-403, MCA; NEW, 1991 MAR p. 2033, Eff. 11/1/91; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1999 MAR p. 2256, Eff. 10/8/99.

17.30.106   TENTATIVE DETERMINATION BY THE DEPARTMENT

(1) The department shall, within 30 days of receipt of a completed application, notify the applicant, the federal permitting or licensing agency, and the regional administrator of its tentative determination to either issue, issue with conditions, or deny certification.

(2) The department's tentative determination must be in writing and shall explain the reasons for denying, issuing, or conditionally issuing certification.

(3) Notification of the department's tentative determination must include:

(a) the name and address of the applicant; and

(b) a statement that the department has either:

(i) examined the complete application, specifically identifying the number or code affixed to the application, and based its determination upon an evaluation of the information contained in the application that is relevant to water quality; or

(ii) examined the application and other information furnished by the applicant sufficient to permit the department to reach its decision.

(4) If a tentative issue of certification or conditional certification is made, the notification must also contain:

(a) a statement that there is reasonable assurance the facility's or activity's construction and operation will not result in a violation of effluent limits or water quality standards; and

(b) a statement of conditions which the department deems necessary for allowing the discharge, including:

(i) necessary monitoring requirements; and

(ii) the applicant will be required to allow the department reasonable entry and access to the discharge site in order to inspect the discharge for compliance with the certification requirements applicable to the facility or activity.

(5) If the department denies certification, the notification of tentative determination must include a statement explaining why the activity or permit will result in discharge of pollutants to state waters and detailing the effluent limits or water quality standards that will be violated.

(6) Where a notice is issued by the department under ARM 17.30.108, the notification of tentative determination must include a statement that, unless a written request for a hearing is filed with the department within 15 days after publication of public notice, the department's decision will become final without public hearing.

(7) The notification may also include other information as the department determines to be appropriate.

 

History: 75-5-401, MCA; IMP, 75-5-402, MCA; NEW, 1991 MAR p. 2033, Eff. 11/1/91; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2018 MAR p. 2517, Eff. 12/22/18.

17.30.108   PUBLIC NOTICE AND FINAL DETERMINATION BY THE DEPARTMENT

(1) Except as provided in (6) of this rule, the department shall provide public notice of the department's tentative determination. The department shall mail the notice to:

(a) the applicant;

(b) federal, state, and local government agencies with jurisdiction over the location of the proposed discharge;

(c) affected states; and

(d) any person on request.

(2) In addition, the department shall publish a legal notice for 2 consecutive weeks on the department's web page. The department may include additional notice which may involve:

(a) posting in the post office and public places of the municipality nearest the premises of the proposed activity;

(b) posting near the entrance to the applicant's premises and in nearby places; or

(c) any other notice that the department considers reasonable to encourage public participation in the decision.

(3) Notice under (1) and (2) of this rule shall contain the information required under ARM 17.30.106(3).

(4) If there is significant public interest in a proposed action under this rule, the department shall set a public hearing, which must be scheduled not less than 30 days after the hearing has been given public notice pursuant to (1) and (2) of this rule.

(5) The deadline for written comment is 30 days from the date of issuance of the public notice pursuant to (1) and (2) or, if a public hearing is conducted pursuant to (4) of this rule, 14 days after the date of the hearing.

(6) The requirements of this section are met if an application for a permit under 33 USC 1344 is given public notice by the United States Army Corps of Engineers, the public notice contains a statement referencing the department's certification responsibility under section 401 of the federal Clean Water Act, 33 USC section 1341, and the department has received a complete application under ARM 17.30.103.

(7) The department shall make its final decision within a reasonable amount of time, not to exceed one year after the close of the comment period, as determined pursuant to (5), if the project requires public notice under 33 USC section 1344, as amended, within a reasonable amount of time, not to exceed one year after the close of the comment period set by the United States Army Corps of Engineers pursuant to (6).

 

History: 75-5-401, MCA; IMP, 75-5-402, MCA; NEW, 1991 MAR p. 2033, Eff. 11/1/91; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2018 MAR p. 2517, Eff. 12/22/18.

17.30.109   APPEAL TO THE BOARD

(1) Within 30 days after the date of final action by the department under ARM 17.30.108, the applicant or any person or entity whose substantial interests are adversely affected by the action may appeal the department's action to the board. The appeal must be in writing and set forth the positions of the appealing party, the basis for the appeal, and the alleged errors of fact or law that were made by the department.

(a) Upon filing of an appeal under this section, the board shall appoint a hearing examiner.

(b) A hearing conducted under this section must be conducted pursuant to the contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, MCA.

(2) If a decision of the department made under ARM 17.30.108 undergoes review by the board under this section, the department shall notify the licensing or permitting agency that certification is suspended for the period in which the department's decision is under review by the board.

(3) The final decision of the board is judicially reviewable as provided under the Montana Administrative Procedure Act, Title 2, chapter 4, part 7, MCA.

 

History: 75-5-401, MCA; IMP, 75-5-402, 75-5-403, MCA; NEW, 1991 MAR p. 2033, Eff. 11/1/91; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2018 MAR p. 2517, Eff. 12/22/18.

17.30.201   PERMIT APPLICATION, DEGRADATION AUTHORIZATION, AND ANNUAL PERMIT FEES

(1) The purpose of this rule is to provide fee schedules for use in determining fees to be paid to the department under 75-5-516, MCA. The types of fees provided under this rule are:

(a) application fees for individual permits (Schedule I.A);

(b) application fees for non-storm water general permits (Schedule 1.B);

(c) application fees for storm water general permits (Schedule 1.C);

(d) application fees for other activities (Schedule 1.D);

(e) degradation authorization fees (Schedule II);

(f) annual fees for individual permits (Schedule III.A);

(g) annual fees for non-storm water permits (Schedule III.B); and

(h) annual fees for storm water general permits (Schedule III.C).

(2) For purposes of this rule, the definitions contained in ARM Title 17, chapter 30, subchapter 10 and subchapter 13 are incorporated by reference. The following definitions also apply in this rule:

(a) "domestic waste" means wastewater from bathrooms, kitchens, and laundry;

(b) "flow rate" means the maximum flow during a 24-hour period, expressed in gallons per day (gpd);

(c) "industrial waste," as defined in 75-5-103, MCA, means a waste substance from the process of business or industry or from the development of any natural resource, together with any sewage that may be present;

(d) "major permit" means a Montana pollutant discharge elimination system permit for a facility that is designated by the department as a major facility pursuant to ARM Title 17, chapter 30, subchapter 13;

(e) "minor permit" means a Montana pollutant discharge elimination system permit for a facility that is not designated by the department as major pursuant to ARM Title 17, chapter 30, subchapter 13;

(f) "multi-county," for pesticide permit fee purposes, means the general permit authorizing pesticide application within multiple contiguous counties, not to exceed 20, as identified by the applicant;

(g) "municipal separate storm sewer system" means a conveyance or system of conveyances, including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains, that discharges to surface waters and is owned or operated by the state of Montana, a governmental subdivision of the state, a district, association, or other public body created by or pursuant to Montana law, including special districts such as sewer districts, flood control districts, drainage districts and similar entities, and designated and approved management agencies under section 208 of the federal Clean Water Act, which has jurisdiction over disposal of sewage, industrial wastes, storm water, or other wastes, and is:

(i) designed or used for collecting or conveying storm water;

(ii) not a combined sewer; and

(iii) not part of a publicly owned treatment works (POTW) as defined in ARM Title 17, chapter 30, subchapter 13;

(h) "new permit" means a permit for a facility or activity that does not have an effective permit;

(i) "non-traditional MS4" means a system similar to separate storm sewer systems in municipalities, such as systems at military bases, large educational, hospital, or prison complexes, and highways and other thoroughfares. The term does not include separate storm sewers in very discrete areas, such as individual buildings;

(j) "other wastes," as provided in 75-5-103, MCA, means garbage, municipal refuse, decayed wood, sawdust, shavings, bark, lime, sand, ashes, offal, night soil, oil, grease, tar, heat, chemicals, dead animals, sediment, wrecked or discarded equipment, radioactive materials, solid waste, and all other substances that may pollute state waters;

(k) "outfall" means a disposal system through which effluent or waste leaves the facility or site;

(l) "pesticide" means:

(i) a substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest;

(ii) any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant; and

(iii) any nitrogen stabilizer, except that the term "pesticide" shall not include any article that is a "new animal drug" within the meaning of section 201(w) of the federal Food, Drug, and Cosmetic Act, 21 U.S.C. 321(w), that has been determined by the United States Secretary of Health and Human Services not to be a new animal drug by a regulation establishing conditions of use for the article, or that is an animal feed within the meaning of section 201(x) of 21 U.S.C. 321(x) bearing or containing a new animal drug. The term "pesticide" does not include liquid chemical sterilant products (including any sterilant or subordinate disinfectant claims on such products) for use on a critical or semi-critical device, as defined in section 201 of the federal Food, Drug, and Cosmetic Act, 21 U.S.C. 321. For purposes of the preceding sentence, the term "critical device" includes any device that is introduced directly into the human body, either into or in contact with the bloodstream or normally sterile areas of the body, and the term "semi-critical device" includes any device that contacts intact mucous membranes but that does not ordinarily penetrate the blood barrier or otherwise enter normally sterile areas of the body.

(m) "renewal permit" means a permit for an existing facility that has an effective discharge permit;

(n) "single county," for pesticide permit fee purposes, means the general permit authorizing pesticide application within one county; and

(o) "threshold," for pesticide permit fee purposes, means the area of surface water that is impacted annually by pesticide treatment, as designated in the Pesticide General Permit for specific pattern uses.

(3) A person who applies for a permit, certificate, license, notice of intent, plan review, waiver, determination of significance, or other authorization required by rule under 75-5-201, 75-5-301, or 75-5-401, MCA, or for a modification or renewal of any of these authorizations, shall pay to the department an application fee as determined under (6).

(4) A person whose activity requires an application to degrade state waters under 75-5-303, MCA, and ARM Title 17, chapter 30, subchapter 7 shall submit a degradation authorization fee with the application, as determined under (7).

(5) A person who holds a permit, certificate, license, or other authorization required by rule under 75-5-201 or 75-5-401, MCA, shall pay to the department an annual permit fee as determined under (8).

(6) The fee schedules for new or renewal applications for, or modifications of, a Montana pollutant discharge elimination system permit under ARM Title 17, chapter 30, subchapter 11 or 13, a Montana ground water pollution control system permit under ARM Title 17, chapter 30, subchapter 10, or any other authorization under 75-5-201, 75-5-301, or 75-5-401, MCA, or rules promulgated under these authorities, are set forth below as Schedules I.A, I.B, I.C, and I.D. Fees must be paid in full at the time of submission of the application. For new applications under Schedule I.A, the annual fee from Schedule III.A for the first year must also be paid at the time of application. For new applications under Schedule I.B and I.C, the annual fee is included in the new permit amount and covers the annual fee for the calendar year in which the permit coverage becomes effective.

(a) Under Schedules I.A and I.B, the department shall assess a fee for each outfall, except that MS4 permit fees under Schedule I.A are based on population as provided in (6)(h). An application fee for multiple outfalls is not required if there are multiple outfalls from the same source that have similar effluent characteristics, unless the discharges are to different receiving waters or stream segments, or result in multiple or variable (flow dependent) effluent limits or monitoring requirements.

(b) For purposes of (6) and (7), if a resubmitted application contains substantial changes or deficiencies requiring significant additional review, the department shall require an application resubmittal fee under Schedule I.D. The resubmittal fee must be paid before any further review is conducted. The department shall give written notice of the assessment within 30 days after receipt of the resubmittal and provide for appeal as specified in (11). If the department does not receive a response to a deficiency notice within one year, the applicant shall submit a new application and associated fees in order for application processing to continue.

(c) The department may assess an administrative processing fee under Schedule I.D when a permittee makes substantial alterations or additions, requiring significant additional review, to a sediment control plan, waste management plan, nutrient management plan, pesticide management plan, or storm water pollution prevention plan.

(d) Application fees are nonrefundable except, as required by 75-5-516(1)(d), MCA, if the permit or authorization is not issued the department shall return a portion of the application fee based on avoided enforcement costs. The department shall return 25% of the application fee if the application is withdrawn or if the department waives federal Clean Water Act section 401 certification within 30 days after submittal.

(e) Facilities with an expired permit must pay the new permit application fee for individual permit coverage as specified in Schedule I.A.

(f) Applications for new permits or permit renewals for sources that constitute a new or increased source, as defined in ARM 17.30.702(17), must pay a significance determination fee for each outfall in addition to the application fee.

(g) Discharges composed entirely of storm water from industrial activities or from mining and oil and gas activities, as defined in ARM 17.30.1105, may be incorporated into a permit application submitted under Schedule I.A. The application fee for each storm water outfall must be submitted to the department with the application.

(h) The application fee for an individual permit for a municipal separate storm sewer system (MS4) is determined by population based on the latest decennial census from the United States Census Bureau. Applications for MS4 permits with co-permittees will receive a 10% reduction in the application fee.

 

Schedule I.A Application Fee for Individual Permits

 

Category

Renewal Fee

New Permit

Fee

 

Publicly owned treatment works - major permit

$ 4,800

$ 5,000

Privately owned treatment works - major permit

5,000

5,000

Publicly owned treatment works - minor permit

1,500

2,500

Privately owned treatment works - minor permit

3,000

4,200

Ground water permit, domestic wastes flow rate - gallons per day

 

 

       0-10,000 gpd

1,200

2,500

       10,001 to 30,000 gpd

1,500

2,500

       more than 30,000 gpd

2,500

4,000

Ground water permit, industrial, or other wastes

 

 

       0-1,000 gpd

1,000

1,500

       1,001 to 5,000 gpd

1,500

2,500

       5,001 to 10,000 gpd

2,500

3,500

       more than 10,000 gpd

4,800

5,000

Concentrated animal feeding operation permit

600

600

Storm water permit construction, industrial, and
mining, oil, and gas activities
2,000
3,200
Traditional storm water municipal separate storm
sewer system (MS4) permit
           population greater than 50,000
9,000
11,000
           population 10,000 to 50,000
7,000
9,000
           population less than 10,000
6,000
8,000
Non-traditional MS4 permit
5,000
7,000
Other MS4 permits
4,000
5,000
Significance determination
4,000
5,000
Storm water outfall - (integrated)
1,000
1,500

 

Schedule I.B Application Fee for Non-Storm Water General Permits

 

Category
Renewal Fee
New Permit
Fee
(includes
initial annual
fee)  
Concentrated animal feeding operation
$ 600
$ 1,200
Construction dewatering
400
900
Fish farms
600
1,200
Produced water
900
1,200
Suction dredge
           resident of Montana
           nonresident of Montana
25
100
 
50
200
Sand and gravel
900
1,200
Domestic sewage treatment lagoon
800
1,200
Disinfected water
800
1,200
Petroleum cleanup
800
1,200
Pesticides
           single county - less than threshold
           multi-county - less than threshold
           single county - greater than threshold
           multi-county - greater than threshold
25
50
250
600
 
50
100
500
1,200
Ground water remediation or dewatering
800
1,400
Ground water potable water treatment facilities
800
1,400
Other general permit, not listed above
600
1,200

 

(i) Application fees in Schedule I.C for authorizations under the general permit for storm water associated with construction activities are based on the total acreage of disturbed land. Renewal application fees will not be required during the general permit renewal cycle, unless the authorization has been in effect for more than four years.

(j) Application fees in Schedule I.C for authorizations under the general permits for storm water associated with industrial activities and mining, oil, and gas activities are based on the total size of the regulated facility or activity in acres.

(k) Application fees in Schedule I.C for authorizations under a general permit for a municipal separate storm sewer system (MS4) are determined by population based on the latest decennial census from the United States Census Bureau. Applications for MS4 permit coverage with co-permittees will receive a 10% reduction in the application fee.

(l) Modifications to authorizations under the general permit for storm water associated with construction activities will be processed under Schedule I.D as a minor modification if the modification is submitted within six months after the date of issuance of the authorization. Modifications, except for name changes, submitted six months or more after issuance of the authorization will be processed under Schedule I.C as a new permit application.

(m) Modifications, except for name changes, to authorizations under a general permit other than the general permit for storm water associated with construction activities must be processed under Schedule 1.B and I.C as a renewed application.

(n) A facility with a construction storm water no-exposure certification from the department must apply for and receive a new certification every five years in order to maintain a no-exposure status.

 

Schedule I.C Application Fee for Storm Water General Permits

 

Category
Renewal
Amount
New Permit
Amount
(includes
initial annual
fee)  
Storm water associated with construction
           1 to 5 acres
           more than 5 acres, up to 10 acres
           more than 10 acres, up to 25 acres
           more than 25 acres, up to 100 acres
           more than 100 acres
 
$ 900
1,000
1,200
2,000
3,500
 
$ 900
1,000
1,200
2,000
3,500
Storm water associated with industrial activities
           small - 5 acres or less
           medium - more than 5 acres, up to 20 acres
           large - more than 20 acres
 
1,200
1,500
1,800
 
1,500
1,800
2,000

Storm water associated with mining, oil, and gas
           small - 5 acres or less
           medium - more than 5 acres, up to 20 acres
           large - more than 20 acres
 
1,200
1,500
1,800
 
1,500
1,800
2,000
Traditional storm water municipal separate
storm sewer system (MS4)
           population greater than 50,000 population
           10,000 to 50,000
           population less than 10,000
   
7,000
6,000
5,000
   
10,000
8,000
6,000
County MS4 permit
4,000
5,000
Non-traditional MS4 permit
2,000
3,000
Storm water no-exposure certification
            required once every five years
300
500
Storm water construction waiver
400

 

(o) The minimum application fee under Schedule I.D for federal Clean Water Act section 401 certification is $400 or 1% of the gross value of the proposed project, whichever is greater, and the maximum fee may not exceed $20,000. If a fee is submitted for a 401 certification and the department waives certification, without review, because the project will require a department permit or authorization identified in ARM 17.30.105(2)(b), the department will credit the fee towards the cost of the applicable permit or authorization.

 

Schedule I.D Application Fee for Other Activities

 

Category
Amount  
Short-term water quality standard, turbidity "318
authorization"
$ 250
Short-term water quality standard, remedial activities
and pesticide application "308 authorization"
250
Federal Clean Water Act section 401 certification See ARM 17.30.201(6)(o)
Review plans and specifications to determine if permit
is necessary, pursuant to 75-5-402(2), MCA
2,000
Major modification Renewal fee from Schedule
I.A
Minor modification, includes transfer of ownership 500
Resubmitted application fee 500
Administrative processing fee 500

 

(7) The fee schedule for new or renewal authorizations to degrade state waters under ARM Title 17, chapter 30, subchapter 7 is set forth in Schedule II. Payment of the degradation authorization fee is due upon submittal of the applications. For the domestic sewage treatment and industrial activity categories, the department shall assess a fee for each outfall. If an application for authorization to degrade state waters is denied, the department shall return 15% of the fee submitted.

 

Schedule II Review of Authorizations to Degrade

 

Category  
Amount
Domestic sewage treatment
$5,000
Industrial activity
5,000

 

(8) The annual permit fees are set forth in Schedules III.A, III.B, and III.C. No annual fee is required for activities listed in Schedule I.D.

(a) Under Schedules III.A and III.B, the department shall assess a fee for each outfall, except that MS4 permit fees under Schedule III.A are based on population as determined by the latest decennial census from the United States Census Bureau. An annual fee for multiple outfalls is not required if there are multiple outfalls from the same source that have similar effluent characteristics, unless the discharges are to different receiving waters or stream segments, or the discharges result in multiple or variable (flow dependent) effluent limits or monitoring requirements. For ground water permits, the department shall assess a fee based on the annual average daily flow in gallons per day for each outfall.

 

Schedule III.A Annual Fee for Individual Permits

 

Category
Minimum Fee
Fee Per Million
Gallons of
Effluent per
Day (MGD)  
Publicly owned treatment works - major permit
$ 3,000
$ 3,000
Privately owned treatment works - major permit
3,000
3,000
Publicly owned treatment works - minor permit
1,500
3,000
Privately owned treatment works - minor permit
           discharge of non-contact cooling water
           only
1,500
800
3,000
800

Ground water permit, domestic wastes
annual average daily flow - gallons per day

3,000

           0 to 10,000 gpd
1,300
           10,001 to 30,000 gpd
2,000
           more than 30,000 gpd
3,000
Ground water permit, industrial, or other wastes

3,000

           0 to 1,000 gpd
2,000
           1,001 to 5,000 gpd
2,500
           5,001 to 10,000 gpd
2,800
           more than 10,000 gpd
3,000
Concentrated animal feeding operation permit
600
Storm water permit construction, industrial, and
mining, oil, and gas activities
2,000
Traditional storm water municipal separate
storm sewer system (MS4) permit
           population greater than 50,000
           population 10,000 to 50,000
           population less than 10,000
3,000
2,500
2,000
Non-traditional MS4 permit
1,500
Other MS4 permits
1,500
Storm water outfall - (integrated)
1,000

 

Schedule III.B Annual Fee for Non-Storm Water General Permits

 

Category
Amount
Concentrated animal feeding operation
$600
Construction dewatering
450
Fish farms
450
Produced water
750
Portable suction dredges
resident of Montana
nonresident of Montana
25
100
Sand and gravel production
750
Domestic sewage treatment lagoon
850
Disinfected water
750
Petroleum cleanup
750

Pesticides
           single county - less than threshold
           multi-county - less than threshold single
           county - greater than threshold
           multi-county - greater than threshold
25
50
250
600
Ground water remediation or dewatering
800
Potable water treatment facilities
800
Other general permit, not listed above
800

 

(b) Annual fees in Schedule III.C for authorizations under the general permit for storm water associated with construction activities are based on the total acreage of disturbed land.

(c) Annual fees in Schedule III.C for authorizations under the general permits for storm water associated with industrial activities and for mining, oil, and gas activities are based on the total size of the regulated facility or activity in acres.

(d) Annual fees in Schedule III.C for authorizations under the general permit for municipal separate storm sewer systems (MS4s) are determined by population in an urbanized area as defined by the United States Census Bureau. The fees must be based on the latest available decennial census data.

 

Schedule III.C Annual Fee for Storm Water General Permits

 

Category
Amount  
Storm water associated with construction
           1 to 5 acres
           more than 5 acres, up to 10 acres
           more than 10 acres, up to 25 acres
           more than 25 acres, up to 100 acres
           more than 100 acres
$ 650
750
1,150
1,800
2,800
Storm water associated with industrial activities
           small - 5 acres or less
           medium - more than 5 acres, up to 20 acres
           large - more than 20 acres
1,000
1,200
1,500
Storm water associated with mining, oil, and gas
           small - 5 acres or less
           medium - more than 5 acres, up to 20 acres
           large - more than 20 acres
1,000
1,200
1,500
Traditional storm water municipal separate storm sewer system
(MS4)
          population greater than 50,000
          population 10,000 to 50,000
          population less than 10,000
5,000
4,000
2,500
County MS4 permit
1,200
Non-traditional MS4 permit
1,200

 

(e) A facility that maintains compliance with permit requirements, including effluent limitations and reporting requirements, as determined by the previous year's discharge and compliance monitoring data, is entitled to a 25 percent reduction in its annual permit fee. A new permittee is not eligible for fee reduction in its first year of operation. A permittee that is under a formal enforcement order providing a compliance schedule for correction of permit violations is not eligible for a fee reduction until the violations are corrected. A permittee with a violation of any permit requirement during the previous year is not eligible for fee reduction.

(f) The annual permit fee is assessed for each calendar year or portion of the calendar year in which the permit is effective.

(9) If a person who is assessed a renewal or annual fee under this rule fails to pay the fee within 90 days after the due date for payment, the department may:

(a) impose an additional assessment consisting of 20 percent of the fee plus interest on the required fee beginning the first day after the payment is due. Interest must be computed at the rate of 12 percent per year, established under 15-1-216(4), MCA; or

(b) suspend the processing of the renewal application for a permit or authorization or, if the nonpayment involves an annual permit fee, suspend the permit, certificate, license, or other authorization for which the fee is required. The department may lift the suspension at any time up to one year after the suspension occurs if the holder has paid all outstanding fees, including all penalties, assessments, and interest imposed under this rule.

(10) The department shall give written notice to each person assessed a fee under this rule of the amount of the fee that is assessed and the basis for the department's calculation of the fee. The fee is due 30 days after the date of the written notice. The fee must be paid by a check, money order, or electronic transfer payable to the state of Montana, Department of Environmental Quality. The fee also may be paid on line at the e-bill payment service site.

(11) Persons assessed a fee under this rule may appeal the department's fee assessment to the board within 20 days after receiving written notice of the department's fee determination. The appeal to the board must include a written statement detailing the reasons why the permit holder or applicant considers the department's fee assessment to be erroneous or excessive.

(a) If part of the department's fee assessment is not in dispute in an appeal, the undisputed portion of the fee must be paid to the department upon written request of the department.

(b) The contested case provisions of the Montana Administrative Procedure Act, provided for in Title 2, chapter 4, part 6, MCA, apply to a hearing before the board under this rule.

History: 75-5-516, MCA; IMP, 75-5-516, MCA; NEW, 1994 MAR p. 672, Eff. 2/25/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 382, Eff. 2/15/02; AMD, 2009 MAR p. 2462, Eff. 12/25/09; AMD, 2011 MAR p. 909, Eff. 5/27/11; AMD, 2014 MAR p. 1815, Eff. 8/8/14.

17.30.301   POLICY
(1) The provisions of this subchapter are adopted as a model rule which the department is required to adopt by 75-7-401 , MCA. The model rule is designed to enable counties to protect water quality and aquatic ecosystems by reducing the amount of phosphorus entering natural lakes.
History: 75-7-401, MCA; IMP, 75-7-401, MCA; NEW, 1986 MAR p. 1464, Eff. 8/29/86; TRANS, from DHES, 1996 MAR p. 1499.

17.30.302   DEFINITIONS
In this subchapter the following terms have the meanings indicated below:

(1) "Chemical water conditioner" means a water softening chemical or other substance containing phosphorus which is intended to treat water for use in machines for washing laundry.

(2) "Commercial establishment" means any premises used for the purpose of carrying on or exercising any trade, business, profession, vocation, or commercial or charitable activity, including but not limited to laundries, hospitals, hotels, motels, and food or restaurant establishments.

(3) "Household cleaning product" means any product including but not limited to soaps and detergents, used for domestic or commercial cleaning purposes, including but not limited to the cleaning of fabrics, dishes, food utensils, and household and commercial premises. Household cleaning product does not mean foods, drugs, cosmetics, or personal care items such as toothpaste, shampoo, or hand soap.

(4) "Person" means any individual, proprietor of a commercial establishment, corporation, municipality, the state or any department, agency, or subdivision of the state, and any partnership, unincorporated association, or other legal entity.

(5) "Phosphorus" means elemental phosphorus.

(6) "Trace quantity" means an incidental amount of phosphorus which is not part of the household cleaning product formulation, and is present only as a consequence of manufacturing, and does not exceed 0.5% of the content of the product by weight expressed as elemental phosphorus.

History: 75-7-401, MCA; IMP, 75-7-401, MCA; NEW, 1986 MAR p. 1464, Eff. 8/29/86; TRANS, from DHES, 1996 MAR p. 1499.

17.30.303   PROHIBITIONS AND EXCEPTIONS
(1) No household cleaning product may be distributed, sold, offered, or exposed for sale if it contains phosphorus in concentrations in excess of a trace quantity, except that no dishwashing detergent may be distributed, sold, offered, or exposed for sale if it contains phosphorus in excess of 8.7% by weight expressed as elemental phosphorus.

(2) No chemical water conditioner which contains more than 20% phosphorus by weight may be distributed, sold, offered, or exposed for sale.

(3) The following cleaning agents and other products containing phosphorus are exempt from the provisions of this rule:

(a) those used in food or beverage processing, or used by health care services and facilities;

(b) those used by commercial establishments, and those used for industrial processes or for cleaning food and beverage processing equipment, medical or surgical equipment, or dairy equipment; and

(c) those used for agricultural operations.

History: 75-7-401, MCA; IMP, 75-7-401, MCA; NEW, 1986 MAR p. 1464, Eff. 8/29/86; TRANS, from DHES, 1996 MAR p. 1499.

17.30.501   PURPOSE
(1) The purpose of this subchapter is to implement 75-5-301 (4) , MCA, which requires the board to adopt rules governing the granting of mixing zones consistent with the provisions of 75-5-302 through 75-5-307 and 80-15-201 , MCA.
History: 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499.

17.30.502   DEFINITIONS

The following definitions, in addition to those in 75-5-103 , MCA, and ARM Title 17, chapter 30, subchapters 6 and 7, apply throughout this subchapter:

(1) "Acute toxicity" means a condition in which ambient water concentrations exceed the applicable acute aquatic life standards given in department Circular DEQ-7.

(2) "Chronic toxicity" means a condition in which ambient water concentrations exceed the applicable chronic aquatic life standards given in department Circular DEQ-7.

(3) "Constructed wetland" means a wetland intentionally designed, constructed and operated for the primary purpose of wastewater or stormwater treatment or environmental remediation.

(4) "Currently available data" means data that is readily available to the department at the time a decision is made. It does not mean new data to be obtained as a result of departmental efforts or required of the applicant.

(5) "Human health standard" means the parameters listed as human health standards in department Circular DEQ-7.

(6) "Mixing zone" is defined in 75-5-103 , MCA, and also means a limited area of a surface water body or a portion of an aquifer, where initial dilution of a discharge takes place and where water quality changes may occur and where certain water quality standards may be exceeded.

(7) "Nearly instantaneous mixing zone" means an area where dilution of a discharge to water by the receiving water occurs at a nearly instantaneous rate, with the result that its boundaries are either at the point of discharge or are within two stream widths downstream of the point of discharge.

(8) "Narrative standards" means those parameters listed as narrative standards in department Circular DEQ-7.

(9) "Numeric acute standards" means the parameters listed as acute aquatic life standards in department Circular DEQ-7.

(10) "Numeric chronic standards" means the parameters listed as chronic aquatic life standards in department Circular DEQ-7.

(11) "Standard mixing zone" means a mixing zone that meets the requirements of ARM 17.30.516 and 17.30.517 and involves less data collection and demonstration than required for a source specific mixing zone.

(12) "Wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.

(13) "Zone of influence" means the area under which a well can be expected to remove water.

(14) The board adopts and incorporates by reference Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" (June 2019 edition), which establishes numeric water quality standards for toxic, carcinogenic, bioconcentrating, nutrient, radioactive, and harmful parameters. Copies of Department Circular DEQ-7 are available from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

 

History: 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1998 MAR p. 2487, Eff. 9/11/98; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2003 MAR p. 217, Eff. 2/14/03; AMD, 2004 MAR p. 725, Eff. 4/9/04; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2008 MAR p. 946, Eff. 5/9/08; AMD, 2010 MAR p. 1796, Eff. 8/13/10; AMD, 2012 MAR p. 2060, Eff. 10/12/12; AMD, 2017 MAR p. 602, Eff. 5/13/17; AMD, 2019 MAR p. 826, Eff. 6/22/19.

17.30.505   GENERAL CONSIDERATIONS FOR MIXING ZONE DESIGNATIONS
(1) After an assessment of information received from the applicant concerning the biological, chemical, and physical characteristics of the receiving water, as specified in ARM 17.30.506 or as requested by the department, the department will determine the applicability of a mixing zone and, if applicable, its size, configuration, and location. In defining a mixing zone, the department will consider the following principles:

(a) Mixing zones may be granted for individual parameters present in a discharge.

(b) For new or increased sources, changes in water quality at the boundary of a mixing zone must be nonsignificant as defined by ARM Title 17, chapter 30, subchapter 7, unless the change in water quality is authorized by the department pursuant to 75-5-303 , MCA.

(c) For sources discharging under a permit issued by the department prior to April 29, 1993, any mixing zone allowed under the permit will remain in effect until renewal. Upon renewal, any previously allowed mixing zone will be designated in the renewed permit, unless there is evidence that the previously allowed mixing zone will impair existing or anticipated uses.

(d) In accordance with 75-5-306 , MCA, it is not necessary that industrial wastes, sewage, or other wastes, as defined in 75-5-103 , MCA, be treated to a purer condition than the natural condition of the receiving water as long as the minimum treatment requirements are met and provided all reasonable land, soil, and water conservation practices have been applied.

(e) Estimated parameter levels in the mixing zone area will be calculated, unless the department determines that monitoring is necessary due to the potential harm to the impacted water and its beneficial uses.

(f) In granting a mixing zone, the department may impose conditions as necessary to comply with the requirements of this subchapter.

(2) Where the department determines that allowing a mixing zone at a given level for a parameter would threaten or impair existing beneficial use pursuant to this subchapter, discharge limitations will be modified as necessary to prevent the interference with or threat to the beneficial use. If necessary, these modifications may require achieving applicable numeric water quality criteria at the end-of-pipe for the parameter so that no mixing zone will be necessary or granted.

History: 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499.

17.30.506   WATER QUALITY ASSESSMENT
(1) No mixing zone will be granted if it would threaten or impair existing beneficial uses. Before any mixing zone is allowed, the applicant must provide information, as requested by the department, to determine whether a mixing zone will be allowed as well as the conditions which should be applied.

(2) In making its determination, the department will consider the following factors:

(a) Biologically important areas: the presence of fish spawning areas or shallow water nursery areas within the proposed mixing zone or a "shore hugging" effluent plume in an aquatic life segment will support a finding that the mixing zone may be inappropriate during the spawning or nursery periods.

(b) Drinking water or recreational activities: the existence of a drinking water intake, a zone of influence around a drinking water well or a well used for recreational purposes, or a recreational area within or immediately adjacent to the proposed mixing zone will support a finding that a mixing zone is not appropriate. For purposes of these rules, "recreational" refers to swimming and "recreational area" refers to a public beach or swimming area, including areas adjacent to streams or lakes.

(c) Attraction of aquatic life to the effluent plume: where currently available data support a conclusion that fish or other aquatic life would be attracted to the effluent plume, resulting in adverse effects such as acute or chronic toxicity, it may be appropriate to adjust a given mixing zone for substances believed to cause the toxic effects.

(d) Toxicity/persistence of the substance discharged: where a discharge of a parameter is at a concentration that is both toxic and persistent, it may be appropriate to deny a mixing zone. Toxicity and persistence will be given added weight to deny a mixing zone where the parameter is expected to remain biologically available and where a watershed-based solution has not been implemented. For ground water, this factor will also be considered in areas where the parameter may remain in the ground water for a period of years after the discharge ceases.

(e) Passage of aquatic organisms (including access to tributaries) : where currently available data indicate that a mixing zone would inhibit migration of fish or other aquatic species, no mixing zone may be allowed for the parameters that inhibit migration. In making this determination, the department will consider whether any parameter in the effluent plume will block migration into tributary segments.

(f) Cumulative effects of multiple mixing zones: in some cases, the existence of multiple or overlapping mixing zones may threaten or impair the existing uses of the receiving water, so that any additional mixing zone will be limited or denied for the parameter of concern.

(g) Aquifer characteristics: when currently available data indicate that the movement of ground water or pollutants within the subsurface cannot be accurately predicted, such as the movement of ground water through fractures, and also indicate that this unpredictability might result in adverse impacts due to a particular concentration of a parameter in the mixing zone, it may be appropriate to deny the mixing zone for the parameter of concern.

(h) Ground water discharges to surface water: In the case of a discharge to ground water which in turn discharges to surface water within a reasonably short time or distance, the mixing zone may extend into the surface water, and the same considerations which apply to setting mixing zones for direct discharges to surface water will apply in determining the allowability and extent of the mixing zone in the surface water.

(i) Discharges to intermittent and ephemeral streams: the "natural condition" of these waters during periods of no flow will be the average quality that occurs during periods when flow is present. If a proposed discharge occurs when there is no flow, the quality of the discharge must be at or better than this quality. If variations in seasonal stream flow are known and a mixing zone is limited to use during periods when dilution is available, such a mixing zone may be allowed by the department.

History: 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499.

17.30.507   SPECIFIC RESTRICTIONS FOR SURFACE WATER MIXING ZONES

(1) Mixing zones for surface waters are subject to the following water quality standards:

(a) narrative water quality standards, standards for harmful substances, numeric acute and chronic standards for aquatic life; standards in Department Circular DEQ-12A; and standards based on human health must not be exceeded beyond the boundaries of the surface water mixing zone;

(b) acute standards for aquatic life for any parameter may not be exceeded in any portion of a mixing zone, unless the department specifically finds that allowing minimal initial dilution will not threaten or impair existing beneficial uses.

(2) Discharges to wetlands (other than constructed wetlands) will not be granted a mixing zone for parameters for which the state has adopted numeric acute or chronic standards for aquatic life or for human health in the surface water quality standards, unless the following can be demonstrated to the satisfaction of the department:

(a) the standards referenced in (1) will not be exceeded beyond the boundaries of the mixing zone;

(b) existing beneficial uses will not be threatened or harmed; and

(c) the conditions in 75-5-303(3), MCA, are met.

(3) For discharges to surface water that first pass through the ground, such as discharges from infiltration systems or land application areas, the surface water mixing zone begins at the most upstream point of discharge into the receiving surface water. If the discharge continues to occur downstream beyond a distance equal to 10 times the stream width measured at the upstream discharge point at low flow, a standard mixing zone will not be granted.

History: 75-5-301, MCA; IMP, 75-5-301, 75-5-313, MCA; NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2014 MAR p. 1815, Eff. 8/8/14.

17.30.508   SPECIFIC RESTRICTIONS FOR GROUND WATER MIXING ZONES
(1) Mixing zones for ground water are to be limited and comply with the following water quality standards:

(a) Human health based ground water standards must not be exceeded beyond the boundaries of the mixing zone.

(2) No mixing zone for ground water will be allowed if the zone of influence of an existing drinking water supply well will intercept the mixing zone.

History: 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499.

17.30.515   DEPARTMENT PROCEDURES
(1) The department will determine whether a mixing zone is appropriate for a particular discharge during the department's permit, permit renewal, approval, order, or authorization review process pursuant to the rules in this subchapter. The department may determine that:

(a) no mixing zone shall be granted;

(b) the standard mixing zone applied for is appropriate;

(c) the source specific mixing zone applied for is appropriate; or

(d) an alternative or modified mixing zone, as defined by the department, is appropriate.

(2) A person applying to the department for a mixing zone must indicate the type of mixing zone applied for and supply sufficient detail for the department to make a determination regarding the authorization of the mixing zone under the rules of this subchapter.

(3) A source specific mixing zone may not be used unless approved by the department.

(4) In making a determination of nonsignificance under the rules in ARM Title 17, chapter 30, subchapter 7, a person may use a standard mixing zone without approval from the department or request that the department specifically designate a mixing zone, which may be either a standard or source specific mixing zone.

(5) Department determinations regarding mixing zones will be accomplished within the time frames required for the underlying permit, approval, or authorization, and the applicant will be notified of that determination according to those same requirements. In all other cases, department determinations will be made and the applicant notified within 30 days after receipt of a complete application.

(6) After receiving notification of the department's determination the applicant may:

(a) accept the department's determination;

(b) modify the proposed mixing zone and reapply; or

(c) appeal the department's decision pursuant to any applicable provision of law.

History: 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499.

17.30.516   STANDARD MIXING ZONES FOR SURFACE WATER

(1) If a discharge to surface water is small in comparison to the volume of the receiving water or if the mixing is nearly instantaneous and the parameter(s) of concern will not threaten or impair existing uses as determined under ARM 17.30.506, a standard mixing zone may be used.

(2) A standard surface water mixing zone will not be granted for a new or increased discharge to a lake or wetland.

(3) Facilities that meet the terms and conditions in (a) through (e) qualify for a standard mixing zone as follows:

(a) Facilities that discharge a mean annual flow of less than one million gallons per day (MGD) to a stream segment with a dilution ratio greater than or equal to 100:1. For purposes of this procedure, the stream dilution ratio is defined as the seven-day, ten-year (7Q10) low flow of the stream segment without the discharge, divided by the mean annual flow of the discharge. In this case discharge limitations will be based on dilution with the 7Q10.

(b) Facilities that discharge a mean annual flow less than one MGD to a stream segment with a dilution less than 100:1. In cases where dilution is less than 100:1, discharge limitations will be based on dilution with 25 percent of the 7Q10.

(c) Facilities that discharge to surface waters through the ground may qualify for a standard surface water mixing zone.

(d) Facilities whose discharge results in a nearly instantaneous mixing zone. Discharge limitations shall be based on dilution with the seven-day, ten-year low flow of the receiving water except as limited by consideration of the factors listed in ARM 17.30.506. For surface waters, nearly instantaneous mixing will be assumed when there is an effluent diffuser which extends across the entire stream width (at low flow), or when the mean daily flow of the discharge exceeds the seven-day, ten-year low flow of the receiving water. A discharge may also be considered nearly instantaneous if the discharger so demonstrates in accordance with a study plan approved by the department. For the purposes of this demonstration nearly instantaneous mixing will be assumed when there will be not more than a ten percent difference in bank-to-bank concentrations at a downstream distance less than two stream/river widths.

(e) Facilities that discharge the parameters found in Department Circular DEQ-12A to surface water. Discharge limitations must be based on dilution with the entire seasonal 14-day, five-year (seasonal 14Q5) low flow of the receiving water without the discharge.

(4) The length of a standard mixing zone for flowing surface water, other than a nearly instantaneous mixing zone, must not extend downstream more than the one-half mixing width distance or extend downstream more than ten times the stream width, whichever is more restrictive. For purposes of making this determination, the stream width as well as the discharge limitations are considered at the 7Q10 or seasonal 14Q5 low flow. The seasonal 14Q5 low flow may be used only in conjunction with base numeric nutrient standards in Department Circular DEQ-12A. The recommended calculation to be used to determine the one-half mixing width distance downstream from a stream bank discharge is described below.

(a) A1/2 = [0.4(W/2)2V]/L, where:

(i) A1/2 = one-half mixing width distance;

(ii) W = width in feet at the 7Q10 or seasonal 14Q5;

(iii) V = velocity of the stream at the 7Q10 or seasonal 14Q5 downstream of the discharge (in ft/second);

(iv) L = lateral dispersion coefficient for the 7Q10 or seasonal 14Q5 downstream of the discharge (in ft2/second), where:

(b) L = CDU, where:

(i) C = channel irregularity factor immediately downstream of the discharge, where:

(A) C = 0.1 for straight, rectangular streams;

(B) C = O.3 for channelized streams;

(C) C = 0.6 for natural channels with moderate meandering;

(D) C = 1.0 for streams with significant meandering; and

(E) C = 1.3 for streams with sharp 90º or more bends;

(ii) D = average water depth at the 7Q10 or seasonal 14Q5 downstream of the discharge (in feet);

(iii) U = shear velocity (in ft/sec), where:

(c) U = (32.2DS)1/2, where:

(i) 32.2 is the acceleration due to gravity (32.2 ft/sec2);

(ii) D = average water depth at the 7Q10 or seasonal 14Q5 downstream of the discharge (in feet); and

(iii) S = slope of the channel downstream of the discharge (feet/feet).

(5) Monitoring may be required at the downgradient boundary of a surface water mixing zone only when there is a site-specific, impact-related reason to require such monitoring.

(6) A standard surface water mixing zone may be modified by the department on a case-by-case basis depending upon existing uses, flow regime, and the configuration of the stream channel. Where currently available data indicates that modifying a standard mixing zone would threaten or impair existing beneficial uses under ARM 17.30.506, the facility will not qualify for this modification procedure.

History: 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2014 MAR p. 1815, Eff. 8/8/14.

17.30.517   STANDARD MIXING ZONES FOR GROUND WATER
(1) The following criteria apply to determine which discharges qualify for a standard ground water mixing zone:

(a) A standard ground water mixing zone is generally applicable in unconfined aquifers, but may not be appropriate for semi-confined or confined aquifers or in aquifers where ground water moves through fractures.

(b) Disposal systems that discharge to ground water through infiltration, drainfields, injection through a disposal well, leakage from an impoundment, seepage from a land application area, or other methods may qualify for a standard mixing zone.

(c) To determine if the discharge qualifies for a standard ground water mixing zone, the person proposing the discharge must estimate the anticipated concentration of pollutants at the downgradient boundary of the mixing zone (aquatic life standards do not apply in ground water) . If the estimated concentration meets the nonsignificance criteria at the boundary of the mixing zone, as specified in ARM Title 17, chapter 30, subchapter 7, the discharge qualifies for a standard mixing zone.

(d) The estimation required in (c) , must be based on a calculation of the volume of water moving through a standard cross-section of aquifer. The calculated volume of water moving through the aquifer cross-section is hypothetically mixed with the known volume and concentration of the discharge to determine the resulting concentration at the boundary of the mixing zone. The recommended method to determine the resulting concentration at the boundary of a standard ground water mixing zone is described below:

(i) Computations of the volume of ground water available for mixing are based on the equation: Q = KIA, where:

(A) Q = volume of flow;

(B) K = hydraulic conductivity;

(C) I = gradient; and

(D) A = aquifer cross-section area.

(ii) Values for hydraulic conductivity (K) and gradient (I) may be obtained from field observations or estimated from other sources.

(iii) A specific depth and width are necessary to determine the aquifer cross-section area (A) for a standard mixing zone. The aquifer cross-section area prescribed by the following lengths is used as the area (A) in the equation:

(A) The depth of a standard ground water mixing zone extends from the top of the water table beneath the source down to 15 feet below the water table.

(B) The width of a standard mixing zone is equal to the width of the source plus the distance determined by the tangent of 5º times the length of the mixing zone on both sides of the source.

(iv) It is assumed that mixing between the discharge and the receiving ground water is complete at the aquifer cross-section area at the standard distance downgradient from the source.

(v) It is also assumed that pollutants discharged from the source do not change in volume or concentration as they migrate through the unsaturated zone down to the water table.

(vi) The concentration of the parameter in the ground water must be measured to determine the existing load present in the ground water. The calculated volume of ground water with a measured concentration is hypothetically mixed with the known volume and concentration of the discharge using the following procedure:

(A) Volume of ground water times the concentration of the parameter = existing load;

(B) Volume of discharge times the concentration of the parameter = waste load; and

(C) (Existing load + waste load) /total volume = resulting concentration.

(vii) If the resulting concentration does not exceed the nonsignificance criteria specified in ARM Title 17, chapter 30, subchapter 7, for new or increased sources at the mixing zone boundary, a standard mixing zone may be granted.

(viii) The downgradient boundary of the standard mixing zone extends:

(A) 100 feet for a single family septic system drainfield in towns or subdivisions where individual lots are less than two acres in size;

(B) 200 feet for a single family septic system in subdivisions of five to 10 acres where lots are two acres in size or larger;

(C) For subdivisions with centralized water service, to the exterior boundaries of the contiguous surrounding undeveloped land, if development of that land is prohibited in perpetuity and title evidence of this fact is provided to the department.

(D) 500 feet for any other source of waste discharging into ground water.

(ix) Monitoring may be required at the downgradient boundary of the mixing zone to measure compliance for a ground water mixing zone established for other than a single family septic system drainfield, if there is an overriding site-specific impact-related reason to require monitoring and the mixing zone is within 500 feet of surface water, another ground water mixing zone, or a drinking water well, or if there is some other overriding site-specific, impact-related reason to require monitoring.

History: 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499.

17.30.518   SOURCE SPECIFIC MIXING ZONES
(1) If adequate information regarding stream flow or ground water flow is not available or if a standard mixing zone is not applicable or desired by the applicant, an applicant may request a source specific mixing zone.

(2) A source specific surface or ground water mixing zone will only be granted after the applicant demonstrates to the department that the requested mixing zone will comply with the requirements of ARM 17.30.506 and 17.30.507 and the provisions of 75-5-303 , MCA.

(3) For lakes, the area of a mixing zone must not exceed 5% of the area of the lake or extend more than a 200 foot radius from the discharge, whichever is more restrictive.

(4) For source specific mixing zones in other surface water, the applicant shall provide information adequate to demonstrate to the department that the requirements of 75-5-301 (4) , MCA, are satisfied. In addition, the applicant shall present a discussion of the mixing zone in the context of the restrictions and general considerations specified in ARM 17.30.506, and information addressing the following items, as applicable:

(a) quantity, toxicity, and persistence of the pollutant;

(b) rate of flow;

(c) volume of flow;

(d) concentration of pollutants within the mixing zone;

(e) length of time pollutants will be present;

(f) proposed boundaries of the mixing zone;

(g) potential impacts to water uses;

(h) potential compliance monitoring;

(i) contingency plan if pollutants migrate beyond the mixing zone at concentrations greater than the allowed limits; and

(j) specific explanation as to why the proposed mixing zone is the smallest practicable size and why it will have a minimum practicable effect on water users.

(5) For source specific mixing zones in ground water the applicant shall provide information adequate to demonstrate to the department that the requirements of 75-5-301 (4) , MCA, are satisfied. In addition, the applicant shall present a discussion of the mixing zone in the context of the restrictions and general considerations specified in ARM 17.30.506, and information addressing the following items, as applicable:

(a) quantity, toxicity, and persistence of the pollutant;

(b) water-bearing characteristics of subsurface materials;

(c) rate and direction of ground water flow;

(d) pollutant migration;

(e) volume of ground water and area available for mixing;

(f) concentration of pollutants within the mixing zone;

(g) length of time pollutants will be present;

(h) proposed boundaries of the mixing zone;

(i) potential impacts to water uses;

(j) compliance monitoring;

(k) contingency plan if pollutants migrate beyond the mixing zone at concentrations greater than the allowed limits; and

(l) specific explanation as to why the proposed mixing zone is the smallest practicable size and why it will have a minimum practicable effect on water users.

History: 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499.

17.30.601   POLICY
(1) The following standards are adopted to conserve water by protecting, maintaining, and improving the quality and potability of water for public water supplies, wildlife, fish and aquatic life, agriculture, industry, recreation, and other beneficial uses.
History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; TRANS, from DHES, 1996 MAR p. 1499.

17.30.602   DEFINITIONS

In this subchapter the following terms have the meanings indicated below and are supplemental to the definitions given in 75-5-103, MCA:

(1) "Bioconcentrating parameters" means the parameters listed in department Circular DEQ-7 which have a bioconcentration factor greater than 300.

(2) "Carcinogenic parameters" means the parameters categorized as carcinogens in department Circular DEQ-7.

(3) "Chlorophyll a" means the mass of chlorophyll a pigment after correction for phaeophytins.

(4) "Conduit" means any artificial or natural duct, either open or closed, capable of conveying liquids or pollutants.

(5) "Conventional water treatment" means in order of application the processes of coagulation, sedimentation, filtration, and disinfection. If determined necessary by the department it also includes taste and odor control and lime softening.

(6) "Dewatered stream" means a perennial or intermittent stream from which water has been removed for one or more beneficial uses.

(7) "Electrical conductivity (EC)" means the ability of water to conduct an electrical current at 25ºC. The electrical conductivity of water represents the amount of total dissolved solids in the water and is expressed as microSiemens/centimeter (µS/cm) or micromhos/centimeter (µmhos/cm) or equivalent units and is corrected to 25ºC.

(8) "Discharge" means the injection, deposit, dumping, spilling, leaking, placing, or failing to remove any pollutant so that it or any constituent thereof may enter into state waters, including ground water.

(9) "EPA" means the US Environmental Protection Agency.

(10) "Ephemeral stream" means a stream or part of a stream which flows only in direct response to precipitation in the immediate watershed or in response to the melting of a cover of snow and ice and whose channel bottom is always above the local water table.

(11) "Geometric mean" means the value obtained by taking the Nth root of the product of the measured values where zero values for measured values are taken to be the detection limit.

(12) "Harmful parameters" means parameters listed as harmful in department Circular DEQ-7.

(13) "Intermittent stream" means a stream or reach of a stream that is below the local water table for at least some part of the year, and obtains its flow from both surface run-off and ground water discharge.

(14) "Mixing zone" is defined in 75-5-103, MCA, and also means a limited area of a surface water body or a portion of an aquifer, where initial dilution of a discharge takes place and where water quality changes may occur and where certain water quality standards may be exceeded.

(15) "MPDES" means the Montana pollutant discharge elimination system.

(16) "NPDES" means the national pollutant discharge elimination system.

(17) "Naturally occurring" means conditions or material present from runoff or percolation over which man has no control or from developed land where all reasonable land, soil and water conservation practices have been applied. Conditions resulting from the reasonable operation of dams in existence as of July 1, 1971, are natural.

(18) "Nonpoint source" means the source of pollutants which originates from diffuse runoff, seepage, drainage, or infiltration.

(19) "Outstanding resource water" or "ORW" has the meaning set out in 75-5-103, MCA.

(20) "Pesticide" means insecticides, herbicides, rodenticides, fungicides, or any substance or mixture of substances intended for preventing, destroying, controlling, repelling, altering life processes, or mitigating any insects, rodents, nematodes, fungi, weeds, and other forms of plant or animal life.

(21) "Phaeophytins" means the degradation products of chlorophyll.

(22) "Pollutants" means sewage, industrial wastes, and other wastes as those terms are defined in 75-5-103, MCA.

(23) "Reasonable land, soil, and water conservation practices" means methods, measures, or practices that protect present and reasonably anticipated beneficial uses. These practices include, but are not limited to, structural and nonstructural controls and operation and maintenance procedures. Appropriate practices may be applied before, during, or after pollution-producing activities.

(24) "Seasonal lake or pond" means a natural depression in the land surface that periodically holds water from precipitation or snow and ice melt in the immediate watershed.

(25) "Sodium adsorption ratio (SAR)" means a value representing the relative amount of sodium ions to the combined amount of calcium and magnesium ions in water using the following formula: SAR = [Na]/(([Ca]+[Mg])/2)½, where all concentrations are expressed as milliequivalents of charge per liter.

(26) "Secondary contact recreation" means activities in or on the water where the potential for immersion or ingestion of water is low, such as wading or boating.

(27) "Sediment" means solid material settled from suspension in a liquid; mineral or organic solid material that is being transported or has been moved from its site of origin by air, water, or ice and has come to rest on the earth's surface, either above or below sea level; or inorganic or organic particles originating from weathering, chemical precipitation, or biological activity. 

(28) "Semi-permanent lake or pond" means a natural depression in the land surface, not including reservoirs, that receives ground water in addition to precipitation runoff from the immediate watershed, and occasionally goes dry.

(29) "Settleable solids" means inorganic or organic particles that are being transported or have been transported by water from the site or sites of origin and are settled or are capable of being settled from suspension.

(30) "Sewer" means a pipe or conduit that carries wastewater or drainage water.

(31) "Surface waters" means any waters on the earth's surface including, but not limited to, streams, lakes, ponds, and reservoirs; and irrigation and drainage systems discharging directly into a stream, lake, pond, reservoir, or other surface water. Water bodies used solely for treating, transporting, or impounding pollutants shall not be considered surface water.

(32) "Steady state" means, for the purposes of ARM 17.30.632, conditions whereby there are no activities resulting in new, increasing, or changing selenium loads to the lake or river aquatic ecosystem, and selenium concentrations in fish living in the aquatic ecosystem have stabilized.

(33) "Storm sewer" or "storm drain" means a pipe or conduit that carries storm water and surface water and street washings.

(34) "Total nitrogen" means the sum of all nitrate, nitrite, ammonia, and organic nitrogen, as N, in an unfiltered water sample. Total nitrogen in a sample may also be determined by the persulfate digestion or as the sum of total kjeldahl nitrogen plus nitrate plus nitrite.

(35) "Total phosphorus" means the sum of orthophosphates, polyphosphates, and organically bound phosphates, as P, in an unfiltered water sample. Total phosphorus may also be determined directly by persulfate digestion.

(36) "Toxic parameters" means those parameters listed as toxins in department Circular DEQ-7.

(37) "True color" means the color of water from which the turbidity has been removed.

(38) "Turbidity" means a condition in water or wastewater caused by the presence of suspended matter resulting in the scattering and absorption of light rays.

(39) "Use attainability analysis" means a scientific assessment and analysis of the factors affecting the attainment of a use(s). Information that may be used include chemical, physical and biological data, as well as photo documentation and comparison to reference conditions, that are of sufficient detail to accurately portray the level and potential level of use support of a waterbody. The use attainability analysis is required by the US EPA according to 40 CFR 131.10(g), (h) and (j).

(40) "DEQ-7" means the department circular that is adopted and incorporated by reference in ARM 17.30.619 and is entitled "Montana Numeric Water Quality Standards." This circular establishes water quality standards for toxic, carcinogenic, bioconcentrating, radioactive, and harmful parameters, and also establishes human health-based water quality standards for the following specific nutrients with toxic effects:

(a) nitrate;

(b) nitrate + nitrite; and

(c) nitrite.

(41) "DEQ-12A" means the department circular that is adopted and incorporated by reference in ARM 17.30.619 and is entitled "Montana Base Numeric Nutrient Standards." This circular contains numeric water quality standards for total nitrogen and total phosphorus in surface waters.

(42) "DEQ-12B" means the department circular that is adopted and that is entitled "Montana Base Numeric Nutrient Standards Variances." This circular describes procedures for receiving a variance from the standards and will document recipients of individual variances.  

 

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, 75-5-313, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1988 MAR p. 1191, Eff. 6/10/88; AMD, 1988 MAR p. 2221, Eff. 10/14/88; AMD, 1992 MAR p. 2064, Eff. 9/11/92; AMD, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1999 MAR p. 94, Eff. 1/15/99; AMD, 1999 MAR p. 2257, Eff. 10/8/99; AMD, 1999 MAR p. 2275, Eff. 10/8/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2002 MAR p. 2196, Eff. 8/16/02; AMD, 2003 MAR p. 779, Eff. 4/25/03; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2012 MAR p. 2060, Eff. 10/12/12; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2020 MAR p. 2336, Eff. 12/25/20.

17.30.603   APPLICATION AND COMPOSITION OF SURFACE WATER QUALITY STANDARDS
(1) The standards in this subchapter are adopted to establish maximum allowable changes in surface water quality and to establish a basis for limiting the discharge of pollutants which affect prescribed beneficial uses of surface waters.

(2) The surface water quality standards are composed of all rules of this subchapter.

(3) The provisions of ARM 17.30.635 through 17.30.637, 17.30.640, 17.30.641, 17.30.645, and 17.30.646 apply to all surface waters unless they conflict with ARM 17.30.620 through 17.30.629 in which case the requirements of ARM 17.30.620 through 17.30.629 prevail.

(4) The standards of this subchapter are applicable where these standards are or would be violated by discharges to ground water.

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1992 MAR p. 2064, Eff. 9/11/92; TRANS, from DHES, 1996 MAR p. 1499.

17.30.606   STREAM CLASSIFICATION
(1) Before streams are classified or standards established or modified, the board shall hold a public hearing.

(a) Notice of the hearing specifying the waters concerned and the classification, standards or modification of them shall be published at least once a week for three consecutive weeks in a daily newspaper of general circulation in the area affected.

(b) Notice shall also be mailed directly to persons the department believes may be affected by the proposed action.

(c) The water pollution control advisory council shall be given not less than 30 days prior to first publication to comment on the proposed action.

(d) The general rules of procedure found in ARM 17.4.101 relating to rulemaking will be followed.

History: 75-5-201, MCA; IMP, 75-5-307, MCA; Eff. 12/31/72; TRANS, from DHES, 1996 MAR p. 1499.

17.30.607   WATER-USE CLASSIFICATIONS--CLARK FORK COLUMBIA RIVER DRAINAGE EXCEPT THE FLATHEAD AND KOOTENAI RIVER DRAINAGES

(1) The water-use classifications adopted for the Clark Fork of the Columbia River drainage are as follows:

(a) Clark Fork River drainage except waters listed in (1)(a)(i) through (xv) B-1

(i) Warm Springs drainage to Meyer's Dam near Anaconda A-1

(ii) Hearst Lake drainage to the Lower Hearst Inlet (approximately at latitude 46.1013, longitude -113.0665) and Fifer Gulch drainage to the Anaconda city limits. (Anaconda municipal water supply) A-Closed

(iii) Silver Bow Creek (mainstem) from the confluence of Blacktail Creek to Warm Springs Creek I

(The concentrator tailings pond and Silver Bow Creek drainage from this pond downstream to Blacktail Creek and the tailings ponds at Warm Springs have no classification.)

(iv) Yankee Doodle Creek drainage to and including Moulton reservoir (approximately at latitude 46.0901, longitude -112.5092) A-Closed

(v) Basin Creek drainage to and including the South Butte water supply reservoir (approximately at latitude 45.8543, longitude -112.5454) A-Closed

(vi) Clark Fork River (mainstem) from Warm Springs Creek to Cottonwood Creek (near Deer Lodge) C-2

(vii) Clark Fork River (mainstem) from Cottonwood Creek to the Little Blackfoot River C-1

(viii) Tin Cup Joe Creek drainage to the Deer Lodge water supply intake (approximately at latitude 46.3892, longitude -112.8543) A-Closed

(ix) Georgetown Lake and tributaries above Georgetown Dam (headwaters of Flint Creek drainage) A-1

(x) Fred Burr Lake and headwaters from source to the outlet of the lake (Philipsburg water supply at approximate latitude 46.3096, longitude -113.1746) A-Closed

(xi) South Boulder Creek drainage to the Philipsburg water supply intake (approximately at latitude 46.3447, longitude -113.2266) A-1

(xii) Rattlesnake Creek drainage to the Missoula water supply intake (approximately at latitude 46.9149, longitude -113.9638) A-Closed

(xiii) Packer and Silver Creek drainage (tributaries to the St. Regis River) to the Saltese water supply intake A-1

(xiv) Ashley Creek drainage to the Thompson Falls water supply intake (approximately at latitude 47.6066, longitude -115.3) A-Closed

(xv) Pilgrim Creek drainage to the Noxon water supply intake (approximately at latitude 47.9906, longitude -115.7747) A-1

 

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1988 MAR p. 1191, Eff. 6/10/88; AMD, 1994 MAR p. 3099, Eff. 12/9/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.608   WATER-USE CLASSIFICATIONS--FLATHEAD RIVER DRAINAGE

(1) The water-use classifications adopted for the Flathead River are as follows:

(a) Flathead River drainage above Flathead Lake except waters listed in (1)(a)(i) through (viii) B-1

(i) Essex Creek drainage to the Essex water supply intake (approximately at latitude 48.2668, longitude -113.639) A-Closed

(ii) Stillwater River (mainstem) from Logan Creek to the Flathead River B-2

(iii) Whitefish Lake and its tributaries A-1

(iv) Whitefish River (mainstem) from the outlet of Whitefish Lake to the Stillwater River B-2

(v) Haskill Creek drainage to the Whitefish water supply intake (approximately at latitude 48.4584, longitude -114.3054) A-1

(vi) Ashley Creek (mainstem) from Smith Lake to bridge crossing on the airport road about one mile south of Kalispell B-2

(vii) Ashley Creek (mainstem) from bridge crossing on airport road to the Flathead River C-2

(viii) The mainstems of the north and middle forks of the Flathead River above their junction A-1

(b) Flathead Lake north of the Flathead Indian Reservation and waters of its tributaries from Flathead River inlet to U.S. Highway 93 bridge at Polson that lie outside of the Flathead Indian Reservation boundary except Swan River as listed in (1)(b)(i), but including Swan Lake proper and Lake Mary Ronan proper A-1

(i) Swan River drainage (except Swan Lake proper) B-1

(c) Waters outside of the Flathead Indian Reservation that are tributary to the Flathead River drainage below the highway bridge at Polson to confluence with Clark Fork River except the Little Bitterroot River mainstem listed in (1)(c)(i) and including the Flathead River drainage west of the Flathead Indian Reservation boundary B-1

(i) Little Bitterroot River (mainstem) from Hubbart Reservoir dam to the Flathead Indian Reservation boundary B-2

 

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1982 MAR p. 1745, Eff. 10/1/82; AMD, 1984 MAR p. 1802, Eff. 12/14/84; AMD, 1988 MAR p. 1191, Eff. 6/10/88; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.609   WATER-USE CLASSIFICATIONS--KOOTENAI RIVER DRAINAGE

(1) The water-use classifications adopted for the Kootenai River are as follows:

(a) All waters except those listed in (1)(a)(i) through (iv) B-1

(i) Deep Creek drainage (tributary to the Tobacco River) to the Fortine water supply intake (approximately at latitude 48.7631, longitude -114.8980) A-1

(ii) Rainy Creek drainage to the W.R. Grace Company water supply intake (approximately at latitude 48.4485, longitude -115.4203) A-1

(iii) Rainy Creek (mainstem) from the W.R. Grace Company water supply intake (approximately at latitude 48.4485, longitude -115.4203) to the Kootenai River C-1

(iv) Flower Creek drainage to the Libby water supply intake (approximately at latitude 48.356, longitude -115.5676) A-1

 

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.610   WATER-USE CLASSIFICATIONS--MISSOURI RIVER DRAINAGE EXCEPT YELLOWSTONE, BELLE FOURCHE, AND LITTLE MISSOURI RIVER DRAINAGES

(1) The water-use classifications adopted for the Missouri River are as follows:

(a) Missouri River drainage to and including the Sun River drainage except tributaries listed in (1)(a)(i) through (xiii) B-1

(i) East Gallatin River (mainstem) from Montana Highway No. 411 (Spring Hill Road, approximately at latitude 45.7256, longitude -111.0666) crossing to Dry Creek about five miles east of Manhattan B-2

(ii) Lyman Creek (approximately at latitude 45.7305, longitude -110.9839) and Sourdough (Bozeman) Creek (approximately at latitude 45.5987, longitude -111.0266) drainages to the Bozeman water supply intakes A-Closed

(iii) Hyalite Creek drainage to the Bozeman water supply intake (approximately at latitude 45.5618, longitude -111.0709) A-1

(iv) Big Hole River drainage to Butte Water Company intake (approximately at latitude 45.7645, longitude -112.7872) above Divide A-1

(v) Rattlesnake Creek drainage to the Dillon water supply intake (approximately at latitude 45.2442, longitude -112.7953) A-1

(vi) Indian Creek drainage to the Sheridan water supply intake (approximately at latitude 45.4787, longitude -112.1592) A-1

(vii) Basin Creek drainage to the Basin water supply intake (approximately at latitude 46.2820, longitude -112.2730) A-1

(viii) McClellan Creek drainage to the East Helena water supply intake (approximately at latitude 46.551, longitude -111.8964) A-1

(ix) Prickly Pear Creek (mainstem) from the Montana Highway No. 433 crossing about one mile northwest of East Helena to Lake Helena I

(x) Ten Mile Creek drainage to the Helena water supply intake (approximately at latitude 46.5731, longitude -112.2145) A-1

(xi) Willow Creek drainage to the White Sulphur Springs water supply intake (approximately at latitude 46.5191, longitude -110.8119) A-Closed

(xii) Muddy Creek mainstem (tributary of Sun River) I

(xiii) Sun River (mainstem) from Muddy Creek to the Missouri River B-3

(b) Missouri River drainage from Sun River to Rainbow Dam B-2

(c) Missouri River drainage from Rainbow Dam in Great Falls to the Marias River except waters listed in (1)(c)(i) through (iv) B-3

(i) Belt Creek drainage to and including Otter Creek drainage except portion of O'Brien Creek listed in (1)(c)(i)(A) B-1

(A) O'Brien Creek drainage to the Neihart water supply intake (approximately at latitude 46.9147, longitude -110.7322) A-1

(ii) Belt Creek (mainstem) from Otter Creek to the Missouri River B-2

(iii) Tributaries to Belt Creek from Otter Creek to the Missouri River B-1

(iv) Highwood and Shonkin Creek drainages B-1

(d) Marias River drainage except waters on the Blackfeet Indian Reservation and the tributaries and segments listed in (1)(d)(i) through (vi) B-2

(i) Cutbank Creek drainage except waters listed in (1)(d)(i)(A) B-1

(A) Cutbank Creek (mainstem) from Old Maids Coulee near Cut Bank to Two Medicine Creek B-2

(ii) Two Medicine Creek drainage to the Blackfeet Indian Reservation boundary except for the waters listed in (1)(d)(ii)(A) and (B) B-1

(A) Midvale Creek drainage to the Blackfeet Indian Reservation boundary A-Closed

(B) Summit Creek drainage to the Summit water supply intake (approximately at latitude 48.3184, longitude -113.3527) A-Closed

(iii) Dry Fork Marias River (mainstem) from Highway 91 crossing near Conrad to Marias River and all adjoining tributaries B-3

(iv) Teton River drainage to and including Deep Creek near Choteau B-1

(v) Marias River mainstem from Tiber Dam to the county road crossing in section 11, T29N, R5E B-1

(vi) Teton River below Interstate 15 B-3

(e) Missouri River drainage from Marias River to Fort Peck Dam except waters listed in (1)(e)(i) through (v) C-3

(i) Missouri River (mainstem) from Marias River to Fort Peck Dam B-3

(ii) Eagle Creek drainage to but excluding Dog Creek B-1

(iii) Judith River drainage except waters listed in (i)(e)(iii)(A) through (D) B-1

(A) Judith River (mainstem) from Big Spring Creek to the Missouri River B-2

(B) Sage Creek drainage below U.S. Highway 87 C-3

(C) Wolf Creek drainage below U.S. Highway 87 C-3

(D) Tributaries to Judith River from Big Spring Creek to the Missouri River C-3

(iv) Musselshell River drainage to Deadman's Basin diversion canal above Shawmut except for the water listed in (1)(e)(v)(A) B-1

(A) Musselshell River (mainstem) from Hopley Creek to Deadman's Basin Diversion Canal near Shawmut B-2

(v) Musselshell River drainage below Deadman's Basin diversion canal above Shawmut except for the waters listed in (1)(e)(v)(A) through (D) C-3

(A) Deadman's Basin Reservoir B-1

(B) Careless and Swimming Woman Creek drainage above their confluence north of Ryegate B-1

(C) Flatwillow Creek drainage above U.S. Highway 87 crossing south of Grassrange B-2

(D) South Willow Creek drainage above county road bridge in T10N, R24E, section 7 B-1

(f) Missouri River drainage from Fort Peck Dam to the Milk River B-2

(g) Milk River drainage from the International Boundary to the Missouri River except waters within tribal boundaries and the tributaries listed in (1)(g)(i) through (iv) B-3

(i) Sage Creek drainage to the section line between sections 1 and 12 T36N R5E B-1

(ii) Big Sandy Creek drainage from the Rocky Boy's Indian Reservation boundary to Town of Big Sandy infiltration wells (approximately at latitude 48.1831, longitude -110.0851) B-1

(iii) Beaver, Little Box Elder and Clear Creek (drainage near Havre) B-1

(iv) Peoples Creek drainage and the South Fork of Peoples Creek drainage except waters within the Fort Belknap Indian Reservation B-1

(h) Missouri River drainage from Milk River to North Dakota boundary except tribal waters and waters listed in (1)(h)(i) through (iii) C-3

(i) Missouri River (mainstem) from Milk River to North Dakota boundary B-3

(ii) Antelope Creek drainage near Antelope B-3

(iii) Poplar River drainage to the Fort Peck Indian Reservation boundary B-2

 

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1982 MAR p. 1745, Eff. 10/1/82; AMD, 1984 MAR p. 1802, Eff. 12/14/84; AMD, 1988 MAR p. 1191, Eff. 6/10/88; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1998 MAR p. 2489, Eff. 9/11/98; AMD, 2002 MAR p. 1314, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2008 MAR p. 948, Eff. 5/9/08; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.611   WATER-USE CLASSIFICATION--YELLOWSTONE RIVER DRAINAGE

(1) The water-use classifications adopted for the Yellowstone River are as follows:

(a) Yellowstone River drainage to the Laurel water supply intake (approximately at latitude 45.6545, longitude -108.7590) B-1

(b) Yellowstone River drainage from the Laurel water supply intake (approximately at latitude 45.6545, longitude -108.7590) to the Billings water supply intake (approximately at latitude 45.7745, longitude -108.4778) except waters on the Crow Indian Reservation and the tributaries listed in (1)(b)(i) through (iii) B-2

(i) Clarks Fork of the Yellowstone River drainage from source up to and including Jack Creek near Bridger B-1

(ii) Mainstem of the Clarks Fork of the Yellowstone River from Jack Creek to the Yellowstone River B-2

(iii) Tributaries to the Clarks Fork Yellowstone River from Jack Creek to the Yellowstone River except the portion of West Fork of Rock Creek listed in (1)(b)(iii)(A) B-1

(A) West Fork of Rock Creek drainage to the Red Lodge water supply intake (approximately at latitude 45.1593, longitude -109.2779) A-1

(c) Yellowstone River drainage from the Billings water supply intake to the North Dakota state line excluding waters on the Crow Indian Reservation and the Northern Cheyenne Indian Reservation and including the Big Horn River drainage except the waters listed in (1)(c)(i) through (vii) C-3

(i) Yellowstone River mainstem B-3

(ii) Pryor Creek drainage outside the Crow Indian Reservation boundary B-1

(iii) Big Horn drainage above but excluding Williams Coulee near Hardin and excluding waters within the Crow Indian Reservation B-1

(iv) Big Horn River mainstem from the Crow Indian Reservation boundary to Yellowstone River B-2

(v) Tongue River (mainstem) from the western crossing of the Wyoming boundary and the Tongue River Reservoir to Prairie Dog Creek (approximately at latitude 45.2692, longitude -106.6243) B-2

(vi) Tongue River mainstem from Prairie Dog Creek to Yellowstone River B-3

(vii) Fox Creek drainage near Sidney B-2

 

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1988 MAR p. 1191, Eff. 6/10/88; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.612   WATER-USE CLASSIFICATIONS--LITTLE MISSOURI RIVER DRAINAGE--BELLE FOURCHE DRAINAGE

(1) The water-use classifications adopted for all waters in the Little Missouri and Belle Fourche drainages are  ...................................................................................................................................  C-3

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; TRANS, from DHES, 1996 MAR p. 1499.

17.30.613   WATER-USE CLASSIFICATIONS--HUDSON BAY DRAINAGE

 The water-use classifications for the Hudson Bay drainage are:

(1) All waters outside Glacier National Park  .............................................................  B-1

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; TRANS, from DHES, 1996 MAR p. 1499.

17.30.614   WATER-USE CLASSIFICATIONS--NATIONAL PARK, WILDERNESS AND PRIMITIVE AREA WATERS

water-use classifications for all national park, wilderness and primitive area waters are as follows:

(1) All waters even if classifications listed in ARM 17.30.607 through 17.30.613 imply or state otherwise  .............................................................................................................................................   A-1

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; TRANS, from DHES, 1996 MAR p. 1499.

17.30.615   WATER-USE CLASSIFICATIONS AND DESCRIPTIONS - CONSTRUCTED DITCHES, SEASONAL AND SEMI-PERMANENT LAKES, AND EPHEMERAL STREAMS

(1) The water-use classifications for waters in constructed irrigation ditches and drain ditches that are state waters as defined in 75-5-103 , MCA, and the water-use classification for waters in ephemeral streams and seasonal and semi-permanent lakes and ponds are as follows:

(a) waters in constructed irrigation and drain ditches that contain controlled flows of surface water and are de-watered during the non-irrigation season  ............................................  D-1

(b) waters in constructed irrigation and drain ditches that contain controlled flows of surface water mixed with ground water  ............................................................................................  D-2

(c) ephemeral streams including ephemeral streams with flows that are periodically augmented by discharges from point sources  ..................................................................  E-1

(d) ephemeral streams with flows that are augmented by continuous discharges from point sources ................................................................................................................................... E-2

(e) seasonal lakes and ponds  ................................................................................  E-3

(f) semi-permanent lakes and ponds, not including reservoirs, that have an electrical conductivity (EC) less than 7,000 µS/cm  ...........................................................................  E-4

(g) semi-permanent lakes and ponds, not including reservoirs, that seasonally have an EC equal to or greater than 7,000 µS/cm  ................................................................................  E-5

(h) streams with low or sporadic flow that, because of natural hydro-geomorphic and hydrologic conditions, are not able to support fish  ............................................................  F-1

(2) Prior to reclassifying a specific water body classified in ARM 17.30.607 through 17.30.614 under one of the water-use classifications identified in (1) (a) through (h) and before the U.S. Environmental Protection Agency's approval of the water body's revised classification, a use attainability analysis must be conducted in accordance with 40 CFR 131.10(g) , (h) , and (j) .

History: 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 2002 MAR p. 2196, Eff. 8/16/02; AMD, 2004 MAR p. 725, Eff. 4/9/04; AMD, 2006 MAR p. 528, Eff. 2/24/06.

17.30.616   WATER-USE CLASSIFICATION AND DESCRIPTIONS FOR PONDS AND RESERVOIRS CONSTRUCTED FOR THE DISPOSAL OF COAL BED METHANE WATER

This rule has been repealed.

History: 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 2003 MAR p. 1274, Eff. 6/27/03; REP, 2012 MAR p. 2060, Eff. 10/12/12.

17.30.617   OUTSTANDING RESOURCE WATERS -- DESIGNATION

(1) All state surface waters located wholly within the boundaries of designated national parks or wilderness areas as of October 1, 1995, are outstanding resource waters (ORWs) . Other state waters may be designated an ORW by the board following the procedures in 75-5-316 , MCA, subject to approval by the legislature.

History: 75-5-301, 75-5-316, MCA; IMP, 75-5-316, MCA; NEW, 2006 MAR p. 528, Eff. 2/24/06.

17.30.618   NATURAL AND NONANTHROPOGENIC WATER QUALITY STANDARDS

(1) Named waterbodies, waterbody segments, or waterbodies within geographic regions listed below have natural or nonanthropogenic concentrations for one or more parameters that exceed the applicable standards. For these waterbodies, the standards specified in (2) supersede the otherwise applicable water quality standards found elsewhere in state law.

(2) No person may violate the numeric water quality standards identified below:

(a) Mainstem Yellowstone River Nonanthropogenic Standards. Water quality standards for human health for total recoverable arsenic (CASRN number 7440-38-2). Average arsenic concentrations during a calendar year may not exceed the standards, and downstream water quality and applicable beneficial uses shall continue to be maintained. The standards, specified by segment, are as follows:

(i) From the Montana/Wyoming border (44.9925, -110.5172) to the mouth of Mill Creek (45.4165, -110.6548): 28 µg/L;

(ii) From the mouth of Mill Creek (45.4165, -110.6548) to the mouth of the Boulder River (45.8530, -109.9247): 22 µg/L;

(iii) From the mouth of the Boulder River (45.8530, -109.9247) to the mouth of the Stillwater River (45.6399, -109.2829): 16 µg/L; and

(iv) From the mouth of the Stillwater River (45.6399, -109.2829) to the mouth of the Clarks Fork of the Yellowstone River (45.6510, -108.7145): 13 µg/L.

(3) Named waterbodies, waterbody segments, or waterbodies within geographic regions specified in (2) have no assimilative capacity for the applicable natural or nonanthropogenic standards. Therefore, the department may not grant a mixing zone under ARM Title 17, chapter 30, subchapter 5 for these waterbodies and the specified standards.

 

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-222, 75-5-306, MCA; NEW, 2020 MAR p. 1618, Eff. 8/29/20.

17.30.619   INCORPORATIONS BY REFERENCE

(1) The board adopts and incorporates by reference the following state and federal requirements and procedures as part of Montana's surface water quality standards:

(a) Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" (June 2019 edition), which establishes numeric water quality standards for toxic, carcinogenic, bioconcentrating, radioactive, and harmful parameters and also establishes human health-based water quality standards for the following specific nutrients with toxic effects:

(i) nitrate;

(ii) nitrate + nitrite; and

(iii) nitrite;

(b) the Water Quality Standards Handbook, Second Edition, EPA-823-B-94-005a, August 1994, that sets forth procedures for development of site-specific criteria;

(c) 40 CFR Part 136 (July 1, 2015), which establishes guidelines and procedures for the analysis of pollutants;

(d) 40 CFR 131.10(g), (h) and (j) (2000), which establishes criteria and guidelines for conducting a use attainability analysis;

(e) Department Circular DEQ-12A, entitled "Montana Base Numeric Nutrient Standards" (July 2014 edition), which establishes numeric water quality standards for total nitrogen and total phosphorus in surface waters; and

(f) the provision in ARM 17.30.1350(1) that authorizes compliance schedules contained in the Montana Pollutant Discharge Elimination System Permit regulations.

(2) If a court of competent jurisdiction declares 75-5-313, MCA, or any portion of that statute invalid, or if the United States Environmental Protection Agency disapproves 75-5-313, MCA, or any portion of that statute, under 30 CFR 131.21, or if rules adopted pursuant to 75-5-313(6) or (7), MCA, expire and general variances are not available, then (1)(e) and all references to DEQ-12A, base numeric nutrient standards and nutrient standards variances in ARM 17.30.201, 17.30.507, 17.30.516, 17.30.602, 17.30.622 through 17.30.629, 17.30.635, 17.30.702, and 17.30.715 are void, and the narrative water quality standards contained in ARM 17.30.637 are the standards for total nitrogen and total phosphorus in surface water, except for the Clark Fork River, for which the standards are the numeric standards in ARM 17.30.631.

(3) Copies of the materials listed in (1) may be obtained from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

 

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, 75-5-313, MCA; NEW, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2002 MAR p. 2196, Eff. 8/16/02; AMD, 2003 MAR p. 217, Eff. 2/14/03; AMD, 2004 MAR p. 725, Eff. 4/9/04; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2008 MAR p. 946, Eff. 5/9/08; AMD, 2010 MAR p. 1796, Eff. 8/13/10; AMD, 2012 MAR p. 2060, Eff. 10/12/12; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2017 MAR p. 602, Eff. 5/13/17; AMD, 2019 MAR p. 826, Eff. 6/22/19.

17.30.620   SPECIFIC SURFACE WATER QUALITY STANDARDS--GENERAL
(1) Specific surface water quality standards, along with general provisions in ARM 17.30.635 through 17.30.637, 17.30.640, 17.30.641, 17.30.645, and 17.30.646, protect the beneficial water uses set forth in the water-use descriptions for the following classifications of water.

(2) Standards for Escherichia coli bacteria are based on a minimum of five samples obtained during separate 24-hour periods during any consecutive 30-day period analyzed by the most probable number or equivalent membrane filter methods.

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2006 MAR p. 528, Eff. 2/24/06.

17.30.621   A-CLOSED CLASSIFICATION STANDARDS

(1) Waters classified A-Closed are to be maintained suitable for drinking, culinary, and food processing purposes after simple disinfection. Water quality is to be maintained suitable for swimming, recreation, growth, and propagation of fishes and associated aquatic life, although access restrictions to protect public health may limit actual use of A-Closed waters for these uses.

(2) Public access and activities such as livestock grazing and timber harvest are to be controlled by the utility owner under conditions prescribed and orders issued by the department.

(3) No person may violate the following specific water quality standards for waters classified A-Closed:

(a) The geometric mean number of Escherichia coli bacteria may not exceed 32 colony forming units per 100 milliliters and 10 percent of the samples may not exceed 64 colony forming units per 100 milliliters during any 30-day period. Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b).

(b) No change from naturally occurring dissolved oxygen levels is allowed.

(c) No change from natural pH is allowed.

(d) No increase above naturally occurring turbidity is allowed except as permitted in 75-5-318, MCA.

(e) No increase above naturally occurring water temperature is allowed.

(f) No increases are allowed above naturally occurring concentrations of sediment or suspended sediment (except as permitted in 75-5-318, MCA), settleable solids, oils, or floating solids, which will or are likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, welfare, livestock, wild animals, birds, fish, or other wildlife.

(g) No increase in true color is allowed.

(h) No increases of carcinogenic, bioconcentrating, toxic or harmful parameters, pesticides, and organic and inorganic materials, including heavy metals, above naturally occurring concentrations, are allowed.

(i) No increase in radioactivity above natural background levels is allowed.

 

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1988 MAR p. 1191, Eff. 6/10/88; AMD, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.622   A-1 CLASSIFICATION STANDARDS

(1) Waters classified A-1 are to be maintained suitable for drinking, culinary and food processing purposes after conventional treatment for removal of naturally present impurities.

(2) Water quality must be maintained suitable for bathing, swimming, and recreation; growth and propagation of salmonid fishes and associated aquatic life, waterfowl and furbearers; and agricultural and industrial water supply.

(3) No person may violate the following specific water quality standards for waters classified A-1:

(a) The geometric mean number of Escherichia coli bacteria may not exceed 32 colony forming units per 100 milliliters and 10 percent of the samples may not exceed 64 colony forming units per 100 milliliters during any 30-day period if resulting from domestic sewage. Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b).

(b) Dissolved oxygen concentration must not be reduced below the applicable standards given in department Circular DEQ-7.

(c) Induced variation of hydrogen ion concentration (pH) within the range of 6.5 to 8.5 must be less than 0.5 pH unit. Natural pH outside this range must be maintained without change. Natural pH above 7.0 must be maintained above 7.0.

(d) No increase above naturally occurring turbidity or suspended sediment is allowed except as permitted in 75-5-318, MCA.

(e) A 1ºF maximum increase above naturally occurring water temperature is allowed within the range of 32ºF to 66ºF; within the naturally occurring range of 66ºF to 66.5ºF, no discharge is allowed which will cause the water temperature to exceed 67ºF; and where the naturally occurring water temperature is 66.5ºF or greater, the maximum allowable increase in water temperature is 0.5ºF. A 2ºF-per-hour maximum decrease below naturally occurring water temperature is allowed when the water temperature is above 55ºF. A 2ºF maximum decrease below naturally occurring water temperature is allowed within the range of 55ºF to 32ºF.

(f) No increases are allowed above naturally occurring concentrations of sediment or suspended sediment (except as permitted in 75-5-318, MCA), settleable solids, oils, or floating solids, which will or are likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, welfare, livestock, wild animals, birds, fish, or other wildlife.

(g) True color must not be increased more than two color units above naturally occurring color.

(h) Concentrations of carcinogenic, bioconcentrating, toxic, radioactive, nutrient, or harmful parameters may not exceed the applicable standards set forth in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A.

(i) Dischargers issued permits under ARM Title 17, chapter 30, subchapter 13, shall conform with ARM Title 17, chapter 30, subchapter 7, the nondegradation rules, and may not cause receiving water concentrations to exceed the applicable standards contained in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A when stream flows equal or exceed the design flows specified in ARM 17.30.635(2).

(j) If site-specific criteria for aquatic life are adopted using the procedures given in 75-5-310, MCA, the criteria shall be used as water quality standards for the affected waters and as the basis for permit limits instead of the applicable standards in Department Circular DEQ-7.

(k) In accordance with 75-5-306(1), MCA, it is not necessary that wastes be treated to a purer condition than the natural condition of the receiving water as long as the minimum treatment requirements, adopted pursuant to 75-5-305, MCA, are met.

 

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1984 MAR p. 1802, Eff. 12/14/84; AMD, 1988 MAR p. 1191, Eff. 6/10/88; AMD, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 1999 MAR p. 94, Eff. 1/15/99; AMD, 1999 MAR p. 2257, Eff. 10/8/99; AMD, 1999 MAR p. 2275, Eff. 10/8/99; AMD, 2002 MAR p. 1089, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.623   B-1 CLASSIFICATION STANDARDS

(1) Waters classified B-1 are to be maintained suitable for drinking, culinary, and food processing purposes, after conventional treatment; bathing, swimming, and recreation; growth and propagation of salmonid fishes and associated aquatic life, waterfowl and furbearers; and agricultural and industrial water supply.

(2) No person may violate the following specific water quality standards for waters classified B-1:

(a) Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b). The water quality standard for Escherichia coli bacteria (E-coli) varies according to season, as follows:

(i) from April 1 through October 31, the geometric mean number of E-coli may not exceed 126 colony forming units per 100 milliliters and 10 percent of the total samples may not exceed 252 colony forming units per 100 milliliters during any 30-day period; and

(ii) from November 1 through March 31, the geometric mean number of E-coli may not exceed 630 colony forming units per 100 milliliters and 10 percent of the samples may not exceed 1,260 colony forming units per 100 milliliters during any 30-day period.

(b) Dissolved oxygen concentration must not be reduced below the applicable standards given in department Circular DEQ-7.

(c) Induced variation of hydrogen ion concentration (pH) within the range of 6.5 to 8.5 must be less than 0.5 pH unit. Natural pH outside this range must be maintained without change. Natural pH above 7.0 must be maintained above 7.0.

(d) The maximum allowable increase above naturally occurring turbidity is five nephelometric turbidity units except as permitted in 75-5-318, MCA.

(e) A 1ºF maximum increase above naturally occurring water temperature is allowed within the range of 32ºF to 66ºF; within the naturally occurring range of 66ºF to 66.5ºF, no discharge is allowed which will cause the water temperature to exceed 67ºF; and where the naturally occurring water temperature is 66.5ºF or greater, the maximum allowable increase in water temperature is 0.5ºF. A 2ºF per-hour maximum decrease below naturally occurring water temperature is allowed when the water temperature is above 55ºF. A 2ºF maximum decrease below naturally occurring water temperature is allowed within the range of 55ºF to 32ºF. This applies to all waters in the state classified B-1 except for Prickly Pear Creek from McClellan Creek to the Montana Highway No. 433 crossing where a 2ºF maximum increase above naturally occurring water temperature is allowed within the range of 32ºF to 65ºF; within the naturally occurring range of 65ºF to 66.5ºF, no discharge is allowed which will cause the water temperature to exceed 67ºF; and where the naturally occurring water temperature is 66.5ºF or greater, the maximum allowable increase in water temperature is 0.5ºF.

(f) No increases are allowed above naturally occurring concentrations of sediment or suspended sediment (except as permitted in 75-5-318, MCA), settleable solids, oils, or floating solids, which will or are likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, welfare, livestock, wild animals, birds, fish, or other wildlife.

(g) True color must not be increased more than five color units above naturally occurring color.

(h) Concentrations of carcinogenic, bioconcentrating, toxic, radioactive, nutrient, or harmful parameters may not exceed the applicable standards set forth in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A.

(i) Dischargers issued permits under ARM Title 17, chapter 30, subchapter 13, shall conform with ARM Title 17, chapter 30, subchapter 7, the nondegradation rules, and may not cause receiving water concentrations to exceed the applicable standards specified in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A when stream flows equal or exceed the design flows specified in ARM 17.30.635(2).

(j) If site-specific criteria for aquatic life are adopted using the procedures given in 75-5-310, MCA, the criteria shall be used as water quality standards for the affected waters and as the basis for permit limits instead of the applicable standards in Department Circular DEQ-7.

(k) In accordance with 75-5-306(1), MCA, it is not necessary that wastes be treated to a purer condition than the natural condition of the receiving water as long as the minimum treatment requirements, adopted pursuant to 75-5-305, MCA, are met.

 

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, 75-5-313, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1982 MAR p. 1746, Eff. 10/1/82; AMD, 1984 MAR p. 1802, Eff. 12/14/84; AMD, 1988 MAR p. 1191, Eff. 6/10/88; AMD, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 1999 MAR p. 94, Eff. 1/15/99; AMD, 1999 MAR p. 2257, Eff. 10/8/99; AMD, 1999 MAR p. 2275, Eff. 10/8/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.624   B-2 CLASSIFICATION STANDARDS

(1) Waters classified B-2 are to be maintained suitable for drinking, culinary, and food processing purposes, after conventional treatment; bathing, swimming, and recreation; growth and marginal propagation of salmonid fishes and associated aquatic life, waterfowl and furbearers; and agricultural and industrial water supply.

(2) No person may violate the following specific water quality standards for waters classified B-2:

(a) Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b). The water quality standard for Escherichia coli bacteria (E-coli) varies according to season, as follows:

(i) from April 1 through October 31, the geometric mean number of E-coli may not exceed 126 colony forming units per 100 milliliters and 10 percent of the total samples may not exceed 252 colony forming units per 100 milliliters during any 30-day period; and

(ii) from November 1 through March 31, the geometric mean number of E-coli may not exceed 630 colony forming units per 100 milliliters and 10 percent of the samples may not exceed 1,260 colony forming units per 100 milliliters during any 30-day period.

(b) Dissolved oxygen concentration must not be reduced below the applicable standards given in department Circular DEQ-7.

(c) Induced variation of hydrogen ion concentration (pH) within the range of 6.5 to 9.0 must be less than 0.5 pH unit. Natural pH outside this range must be maintained without change. Natural pH above 7.0 must be maintained above 7.0.

(d) The maximum allowable increase above naturally occurring turbidity is 10 nephelometric turbidity units except as permitted in 75-5-318, MCA.

(e) A 1ºF maximum increase above naturally occurring water temperature is allowed within the range of 32ºF to 66ºF; within the naturally occurring range of 66ºF to 66.5ºF, no discharge is allowed which will cause the water temperature to exceed 67ºF; and where the naturally occurring water temperature is 66.5ºF or greater, the maximum allowable increase in water temperature is 0.5ºF. A 2ºF per-hour maximum decrease below naturally occurring water temperature is allowed when the water temperature is above 55ºF. A 2ºF maximum decrease below naturally occurring water temperature is allowed within the range of 55ºF to 32ºF.

(f) No increases are allowed above naturally occurring concentrations of sediment or suspended sediment (except as permitted in 75-5-318, MCA), settleable solids, oils, or floating solids which will or are likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, welfare, livestock, wild animals, birds, fish, or other wildlife.

(g) True color must not be increased more than five color units above naturally occurring color.

(h) Concentrations of carcinogenic, bioconcentrating, toxic, radioactive, nutrient, or harmful parameters may not exceed the applicable standards set forth in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A.

(i) Dischargers issued permits under ARM Title 17, chapter 30, subchapter 13, shall conform with ARM Title 17, chapter 30, subchapter 7, the nondegradation rules, and may not cause receiving water concentrations to exceed the applicable standards specified in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A when stream flows equal or exceed the design flows specified in ARM 17.30.635(2).

(j) If site-specific criteria for aquatic life are adopted using the procedures given in 75-5-310, MCA, the criteria shall be used as water quality standards for the affected waters and as the basis for permit limits instead of the applicable standards in Department Circular DEQ-7.

(k) In accordance with 75-5-306(1), MCA, it is not necessary that wastes be treated to a purer condition than the natural condition of the receiving water as long as the minimum treatment requirements, adopted pursuant to 75-5-305, MCA, are met.

 

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, 75-5-313, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1982 MAR p. 1746, Eff. 10/1/82; AMD, 1984 MAR p. 1802, Eff. 12/14/84; AMD, 1988 MAR p. 1191, Eff. 6/10/88; AMD, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 1999 MAR p. 94, Eff. 1/15/99; AMD, 1999 MAR p. 2257, Eff. 10/8/99; AMD, 1999 MAR p. 2275, Eff. 10/8/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.625   B-3 CLASSIFICATION STANDARDS

(1) Waters classified B-3 are to be maintained suitable for drinking, culinary, and food processing purposes, after conventional treatment; bathing, swimming, and recreation; growth and propagation of non-salmonid fishes and associated aquatic life, waterfowl and furbearers; and agricultural and industrial water supply.

(2) No person may violate the following specific water quality standards for waters classified B-3:

(a) Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b). The water quality standard for Escherichia coli bacteria (E-coli) varies according to season, as follows:

(i) from April 1 through October 31, the geometric mean number of E-coli may not exceed 126 colony forming units per 100 milliliters and 10 percent of the total samples may not exceed 252 colony forming units per 100 milliliters during any 30-day period; and

(ii) from November 1 through March 31, the geometric mean number of E-coli may not exceed 630 colony forming units per 100 milliliters and 10 percent of the samples may not exceed 1,260 colony forming units per 100 milliliters during any 30-day period.

(b) Dissolved oxygen concentration must not be reduced below the applicable standards specified in department Circular DEQ-7.

(c) Induced variation of hydrogen ion concentration (pH) within the range of 6.5 to 9.0 must be less than 0.5 pH unit. Natural pH outside this range must be maintained without change. Natural pH above 7.0 must be maintained above 7.0.

(d) The maximum allowable increase above naturally occurring turbidity is 10 nephelometric turbidity units except as permitted in 75-5-318, MCA.

(e) A 3ºF maximum increase above naturally occurring water temperature is allowed within the range of 32ºF to 77ºF; within the naturally occurring range of 77ºF to 79.5ºF, no thermal discharge is allowed which will cause the water temperature to exceed 80ºF; and where the naturally occurring water temperature is 79.5ºF or greater, the maximum allowable increase in water temperature is 0.5ºF. A 2ºF per-hour maximum decrease below naturally occurring water temperature is allowed when the water temperature is above 55ºF. A 2ºF maximum decrease below naturally occurring water temperature is allowed within the range of 55ºF to 32ºF.

(i) These allowable increases apply to all waters in the state classified B-3, except for the mainstem of the Yellowstone River from the Billings water supply intake to the water diversion at Intake, where a 3ºF maximum increase above naturally occurring water temperature is allowed within the range of 32ºF to 79ºF; within the range of 79ºF to 81.5ºF, no thermal discharge is allowed which will cause the water temperature to exceed 82ºF; and where the naturally occurring water temperature is 81.5ºF or greater, the maximum allowable increase in water temperature is 0.5ºF.

(ii) From the water diversion at Intake to the North Dakota state line, a 3ºF maximum increase above naturally occurring water temperature is allowed within the range of 32ºF to 82ºF; within the range of 82ºF to 84.5ºF, no thermal discharge is allowed which will cause the water temperature to exceed 85ºF; and where the naturally occurring water temperature is 84.5ºF or greater, the maximum allowable increase in water temperature is 0.5ºF.

(f) No increases are allowed above naturally occurring concentrations of sediment or suspended sediment (except as permitted in 75-5-318, MCA), settleable solids, oils, or floating solids, which will or are likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, welfare, livestock, wild animals, birds, fish, or other wildlife.

(g) True color must not be increased more than five color units above naturally occurring color.

(h) Concentrations of carcinogenic, bioconcentrating, toxic, radioactive, nutrient, or harmful parameters may not exceed the applicable standards set forth in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A.

(i) Dischargers issued permits under ARM Title 17, chapter 30, subchapter 13, shall conform with ARM Title 17, chapter 30, subchapter 7, the nondegradation rules, and may not cause receiving water concentrations to exceed the applicable standards specified in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A when stream flows equal or exceed the design flows specified in ARM 17.30.635(2).

(j) If site-specific criteria for aquatic life are adopted using the procedures given in 75-5-310, MCA, the criteria shall be used as water quality standards for the affected waters and as the basis for permit limits instead of the applicable standards specified in Department Circular DEQ-7.

(k) In accordance with 75-5-306(1), MCA, it is not necessary that wastes be treated to a purer condition than the natural condition of the receiving water as long as the minimum treatment requirements, adopted pursuant to 75-5-305, MCA, are met.

 

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, 75-5-313, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1982 MAR p. 1746, Eff. 10/1/82; AMD, 1984 MAR p. 1802, Eff. 12/14/84; AMD, 1988 MAR p. 1191, Eff. 6/10/88; AMD, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 1999 MAR p. 94, Eff. 1/15/99; AMD, 1999 MAR p. 2257, Eff. 10/8/99; AMD, 1999 MAR p. 2275, Eff. 10/8/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.626   C-1 CLASSIFICATION STANDARDS

(1) Waters classified C-1 are to be maintained suitable for bathing, swimming, and recreation; growth and propagation of salmonid fishes and associated aquatic life, waterfowl and furbearers; and agricultural and industrial water supply.

(2) No person may violate the following specific water quality standards for waters classified C-1:

(a) Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b). The water quality standard for Escherichia coli bacteria (E-coli) varies according to season, as follows:

(i) from April 1 through October 31, the geometric mean number of E-coli may not exceed 126 colony forming units per 100 milliliters and 10 percent of the total samples may not exceed 252 colony forming units per 100 milliliters during any 30-day period; and

(ii) from November 1 through March 31, the geometric mean number of E-coli may not exceed 630 colony forming units per 100 milliliters and 10 percent of the samples may not exceed 1,260 colony forming units per 100 milliliters during any 30-day period.

(b) Dissolved oxygen concentration must not be reduced below the applicable standards given in department Circular DEQ-7.

(c) Induced variation of hydrogen ion concentration (pH) within the range of 6.5 to 8.5 must be less than 0.5 pH unit. Natural pH outside this range must be maintained without change. Natural pH above 7.0 must be maintained above 7.0.

(d) The maximum allowable increase above naturally occurring turbidity is five nephelometric turbidity units except as permitted in 75-5-318, MCA.

(e) A 1ºF maximum increase above naturally occurring water temperature is allowed within the range of 32ºF to 66ºF; within the naturally occurring range of 66ºF to 66.5ºF, no discharge is allowed which will cause the water temperature to exceed 67ºF; and where the naturally occurring water temperature is 66.5ºF or greater, the maximum allowable increase in water temperature is 0.5ºF. A 2ºF per-hour maximum decrease below naturally occurring water temperature is allowed when the water temperature is above 55ºF. A 2ºF maximum decrease below naturally occurring water temperature is allowed within the range of 55ºF to 32ºF.

(f) No increases are allowed above naturally occurring concentrations of sediment or suspended sediment (except as permitted in 75-5-318, MCA), settleable solids, oils, or floating solids, which will or are likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, welfare, livestock, wild animals, birds, fish, or other wildlife.

(g) True color must not be increased more than five color units above naturally occurring color.

(h) Concentrations of carcinogenic, bioconcentrating, toxic, radioactive, nutrient, or harmful parameters may not exceed the applicable standards specified in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A.

(i) Dischargers issued permits under ARM Title 17, chapter 30, subchapter 13, shall conform with ARM Title 17, chapter 30, subchapter 7, the nondegradation rules, and may not cause receiving water concentrations to exceed the applicable standards specified in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A when stream flows equal or exceed the design flows specified in ARM 17.30.635(2).

(j) If site-specific criteria for aquatic life are adopted using the procedures given in 75-5-310, MCA, the criteria shall be used as water quality standards for the affected waters and as the basis for permit limits instead of the applicable standards in Department Circular DEQ-7.

(k) In accordance with 75-5-306(1), MCA, it is not necessary that wastes be treated to a purer condition than the natural condition of the receiving water as long as the minimum treatment requirements, adopted pursuant to 75-5-305, MCA, are met.

 

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, 75-5-313, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1982 MAR p. 1746, Eff. 10/1/82; AMD, 1984 MAR p. 1802, Eff. 12/14/84; AMD, 1988 MAR p. 1191, Eff. 6/10/88; AMD, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 1999 MAR p. 94, Eff. 1/15/99; AMD, 1999 MAR p. 2257, Eff. 10/8/99; AMD, 1999 MAR p. 2275, Eff. 10/8/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.627   C-2 CLASSIFICATION STANDARDS

(1) Waters classified C-2 are to be maintained suitable for bathing, swimming, and recreation; growth and marginal propagation of salmonid fishes and associated aquatic life, waterfowl and furbearers; and agricultural and industrial water supply.

(2) No person may violate the following specific water quality standards for waters classified C-2:

(a) Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b). The water quality standard for Escherichia coli bacteria (E-coli) varies according to season, as follows:

(i) from April 1 through October 31, the geometric mean number of E-coli may not exceed 126 colony forming units per 100 milliliters and 10 percent of the total samples may not exceed 252 colony forming units per 100 milliliters during any 30-day period; and

(ii) from November 1 through March 31, the geometric mean number of E-coli may not exceed 630 colony forming units per 100 milliliters and 10 percent of the samples may not exceed 1,260 colony forming units per 100 milliliters during any 30-day period.

(b) Dissolved oxygen concentration must not be reduced below the applicable standards given in department Circular DEQ-7. These levels apply to all waters in the state classified C-2 except for Ashley Creek below the bridge crossing on Airport Road where the dissolved oxygen concentrations may not be reduced below five mg/l from October 1 through June 1, nor below three mg/l from June 2 through September 30.

(c) Induced variation of hydrogen ion concentration (pH) within the range of 6.5 to 9.0 must be less than 0.5 pH unit. Natural pH outside this range must be maintained without change. Natural pH above 7.0 must be maintained above 7.0.

(d) The maximum allowable increase above naturally occurring turbidity is 10 nephelometric turbidity units except as permitted in 75-5-318, MCA.

(e) A 1ºF maximum increase above naturally occurring water temperature is allowed within the range of 32ºF to 66ºF; within the naturally occurring range of 66ºF to 66.5ºF, no discharge is allowed which will cause the water temperature to exceed 67ºF; and where the naturally occurring water temperature is 66.5ºF or greater, the maximum allowable increase in water temperature is 0.5ºF. A 2ºF per-hour maximum decrease below naturally occurring water temperature is allowed when the water temperature is above 55ºF. A 2ºF maximum decrease below naturally occurring water temperature is allowed within the range of 55ºF to 32ºF.

(f) No increases are allowed above naturally occurring concentrations of sediment or suspended sediment (except as permitted in 75-5-318, MCA, settleable solids, oils, or floating solids, which will or are likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, welfare, livestock, wild animals, birds, fish, or other wildlife.

(g) True color must not be increased more than five color units above naturally occurring color.

(h) Concentrations of carcinogenic, bioconcentrating, toxic, radioactive, nutrient, or harmful parameters may not exceed the applicable standards specified in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A.

(i) Dischargers issued permits under ARM Title 17, chapter 30, subchapter 13, shall conform with ARM Title 17, chapter 30, subchapter 7, the nondegradation rules, and may not cause receiving water concentrations to exceed the applicable standards specified in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A when stream flows equal or exceed the design flows specified in ARM 17.30.635(2).

(j) If site-specific criteria for aquatic life are adopted using the procedures given in 75-5-310, MCA, the criteria shall be used as water quality standards for the affected waters and as the basis for permit limits instead of the applicable standards in Department Circular DEQ-7.

(k) In accordance with 75-5-306(1), MCA, it is not necessary that wastes be treated to a purer condition than the natural condition of the receiving water as long as the minimum treatment requirements, adopted pursuant to 75-5-305, MCA, are met.

 

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, 75-5-313, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1982 MAR p. 1746, Eff. 10/1/82; AMD, 1984 MAR p. 1802, Eff. 12/14/84; AMD, 1988 MAR p. 1191, Eff. 6/10/88; AMD, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 1999 MAR p. 94, Eff. 1/15/99; AMD, 1999 MAR p. 2257, Eff. 10/8/99; AMD, 1999 MAR p. 2275, Eff. 10/8/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.628   I CLASSIFICATION STANDARDS

(1) The goal of the state of Montana is to have these waters fully support the following uses: drinking, culinary, and food processing purposes after conventional treatment; bathing, swimming, and recreation; growth and propagation of fishes and associated aquatic life, waterfowl, and furbearers; and agricultural and industrial water supply. An analysis will be performed for each of these waters during each triennial standards review period to determine the factors preventing or limiting attainment of the designated uses listed herein. Based on these analyses, the specific standards listed below will be adjusted to reflect any improvements which have occurred in water quality as a result of water quality control of nonpoint-source pollution.

(2) No person may violate the following specific water quality standards for waters classified I:

(a) Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b). The water quality standard for Escherichia coli bacteria (E-coli) varies according to seasons as follows:

(i) from April 1 through October 31, the geometric mean number of E-coli may not exceed 126 colony forming units per 100 milliliters and 10 percent of the total samples may not exceed 252 colony forming units per 100 milliliters during any 30-day period; and

(ii) from November 1 through March 31, the geometric mean number of E-coli may not exceed 630 colony forming units per 100 milliliters and 10 percent of the samples may not exceed 1,260 colony forming units per 100 milliliters during any 30-day period.

(b) Dissolved oxygen concentration must not be reduced below the applicable standards given in department Circular DEQ-7.

(c) Hydrogen ion concentration must be maintained within the range of 6.5 to 9.5.

(d) Except as permitted in 75-5-318, MCA, no increase in naturally occurring turbidity is allowed which will or is likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, welfare, livestock, wild animals, birds, fish, or other wildlife.

(e) No increase in naturally occurring temperature is allowed which will or is likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, welfare, livestock, wild animals, birds, fish, or other wildlife.

(f) No increases are allowed above naturally occurring concentrations of sediment or suspended sediment (except as permitted in 75-5-318, MCA), and settleable solids, oils, or floating solids, which will or are likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, welfare, livestock, wild animals, birds, fish, or other wildlife.

(g) No increase in naturally occurring true color is allowed which will or is likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, welfare, livestock, wild animals, birds, fish, or other wildlife.

(h) No discharges of toxic, carcinogenic, or harmful parameters may commence or continue which lower, or are likely to lower, the overall water quality of these waters.

(i) As the quality of these waters improves due to control of nonpoint sources, point-source dischargers will be required to improve the quality of their discharges following the MPDES rules (ARM Title 17, chapter 30, subchapter 13).

(j) Beneficial uses are considered supported when the concentrations of toxic, carcinogenic, nutrient or harmful parameters in these waters do not exceed the applicable standards specified in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A when stream flows equal or exceed the flows specified in ARM 17.30.635(2) or, alternatively, for aquatic life when site-specific criteria are adopted using the procedures given in 75-5-310, MCA. The limits shall be used as water quality standards for the affected waters and as the basis for permit limits instead of the applicable standards in Department Circular DEQ-7.

(k) Limits for toxic, carcinogenic, or harmful parameters in new discharge permits issued pursuant to the MPDES rules (ARM Title 17, chapter 30, subchapter 13) are the larger of the applicable standards specified in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A, site-specific standards, or one-half of the mean in-stream concentrations immediately upstream of the discharge point.

 

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, 75-5-313, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1982 MAR p. 1746, Eff. 10/1/82; AMD, 1988 MAR p. 1191, Eff. 6/10/88; AMD, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 1999 MAR p. 94, Eff. 1/15/99; AMD, 1999 MAR p. 2257, Eff. 10/8/99; AMD, 1999 MAR p. 2275, Eff. 10/8/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.629   C-3 CLASSIFICATION STANDARDS

(1) Waters classified C-3 are to be maintained suitable for bathing, swimming, and recreation, and growth and propagation of non-salmonid fishes and associated aquatic life, waterfowl, and furbearers. The quality of these waters is naturally marginal for drinking, culinary, and food processing purposes, agriculture, and industrial water supply.

(2) No person may violate the following specific water quality standards for waters classified C-3:

(a) Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b). The water quality standard for Escherichia coli bacteria (E-coli) varies according to season, as follows:

(i) from April 1 through October 31, the geometric mean number of E-coli may not exceed 126 colony forming units per 100 milliliters and 10 percent of the total samples may not exceed 252 colony forming units per 100 milliliters during any 30-day period; and

(ii) from November 1 through March 31, the geometric mean number of E-coli may not exceed 630 colony forming units per 100 milliliters and 10 percent of the samples may not exceed 1,260 colony forming units per 100 milliliters during any 30-day period.

(b) Dissolved oxygen concentration must not be reduced below the applicable standards specified in department Circular DEQ-7.

(c) Induced variation of hydrogen ion concentration (pH) within the range of 6.5 to 9.0 must be less than 0.5 pH unit. Natural pH outside this range must be maintained without change. Natural pH above 7.0 must be maintained above 7.0.

(d) The maximum allowable increase above naturally occurring turbidity is 10 nephelometric turbidity units, except as permitted in 75-5-318, MCA.

(e) A 3ºF maximum increase above naturally occurring water temperature is allowed within the range of 32ºF to 77ºF; within the range of 77ºF to 79.5ºF, no thermal discharge is allowed which will cause the water temperature to exceed 80ºF; and where the naturally occurring water temperature is 79.5ºF or greater, the maximum allowable increase in water temperature is 0.5ºF. A 2ºF per-hour maximum decrease below naturally occurring water temperature is allowed when the water temperature is above 55ºF. A 2ºF maximum decrease below naturally occurring water temperature is allowed within the range of 55ºF to 32ºF.

(f) No increases are allowed above naturally occurring concentrations of sediment or suspended sediment (except as permitted in 75-5-318, MCA), settleable solids, oils or floating solids, which will or are likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, welfare, livestock, wild animals, birds, fish, or other wildlife.

(g) True color must not be increased more than five color units above naturally occurring color.

(h) Concentrations of carcinogenic, bioconcentrating, toxic, radioactive, nutrient, or harmful parameters may not exceed the applicable standards set forth in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A.

(i) Dischargers issued permits under ARM Title 17, chapter 30, subchapter 13, shall conform with ARM Title 17, chapter 30, subchapter 7, the nondegradation rules, and may not cause receiving water concentrations to exceed the applicable standards specified in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A when stream flows equal or exceed the design flows specified in ARM 17.30.635(2).

(j) If site-specific criteria for aquatic life are adopted using the procedures given in 75-5-310, MCA, the criteria shall be used as water quality standards for the affected waters and as the basis for permit limits instead of the applicable standards specified in Department Circular DEQ-7.

(k) In accordance with 75-5-306(1), MCA, it is not necessary that wastes be treated to a purer condition than the natural condition of the receiving water as long as the minimum treatment requirements, adopted pursuant to 75-5-305, MCA, are met.

 

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, 75-5-313, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1982 MAR p. 1746, Eff. 10/1/82; AMD, 1984 MAR p. 1802, Eff. 12/14/84; AMD, 1988 MAR p. 1191, Eff. 6/10/88; AMD, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 1999 MAR p. 94, Eff. 1/15/99; AMD, 1999 MAR p. 2257, Eff. 10/8/99; AMD, 1999 MAR p. 2275, Eff. 10/8/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2012 MAR p. 2060, Eff. 10/12/12; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.630   TEMPORARY WATER QUALITY STANDARDS

(1) Following are the temporary water quality standards and related provisions for New World Mining District:

(a) The goal of the state of Montana is to have these waters support the uses listed for waters classified B-1 at ARM 17.30.623(1). The standards for the parameters listed in this rule temporarily modify the specific standards for those parameters provided in ARM 17.30.623 for each of the water bodies listed below, until the temporary standards expire or are terminated by the board. The standards for parameters not listed in this rule are the specific standards listed in ARM 17.30.623. The existing uses of the water bodies listed below must be maintained during the period that these temporary standards are in effect. No increase from existing conditions for any of the parameters that have been temporarily modified (no decrease for pH) is allowed at any point in the affected stream segments. The numerical standards for specific parameters listed below apply only at the downstream end of the stream segment. The requirements of ARM 17.30.623 apply to the waters listed in this rule except where those requirements conflict with the temporary standards listed below.

(b) The temporary standards for these stream segments are effective June 4, 1999.

(c) Temporary water quality standards for Daisy Creek, from its headwaters to its confluence with the Stillwater River in the Yellowstone River Drainage, are as follows. No increase from existing conditions (no decrease for pH) is allowed at any point in Daisy Creek for any of the following parameters. These standards are in effect until June 4, 2019. Metals standards are in terms of micrograms per liter (µg/liter) total recoverable concentrations and pH standards are in standard units (su).

 

Parameter

In Daisy Creek at its confluence with the Stillwater River, the following standards shall not be exceeded more than 3% of the time.

µg/liter

Aluminum 9,510.
Cadmium 4.
Copper 3,530.
Iron 6,830.
Manganese 1,710.
Zinc 540.
pH must be maintained above 4.6 su.

(d) Temporary water quality standards for a headwater portion of the Stillwater River, a tributary of the Yellowstone River, from Daisy Creek to the Absaroka-Beartooth wilderness boundary, are as follows. No increase from existing conditions (no decrease for pH) is allowed at any point in this reach of the Stillwater River for any of the following parameters. These standards are in effect until June 4, 2019. Metals standards are in terms of micrograms per liter (µg/liter) total recoverable concentrations and pH standards are in standard units (su).

 

 

Parameter

In the Stillwater River at the Absaroka-Beartooth wilderness boundary, the following standards shall not be exceeded more than 3% of the time.

µg/liter

Aluminum 670.
Copper 200.
Iron 1,320.
Lead 13.
Manganese 86.
Zinc 49.
pH must be maintained above 5.5 su.

 

(e) Temporary water quality standards for Fisher Creek, from its headwaters to its confluence with Lady of the Lake Creek, the headwaters of the Clark's Fork of the Yellowstone River, are as follows. No increase from existing conditions (no decrease for pH) is allowed at any point in Fisher Creek for any of the following parameters. These standards are in effect until June 4, 2019. Metals standards are in terms of micrograms per liter (µg/liter) total recoverable concentrations and pH standards are in standard units (su).

 

Parameter

In Fisher Creek at its confluence with the Lady of the Lake Creek, the following standards shall not be exceeded more than 3% of the time.

µg/liter

Aluminum  470.
Copper  110.
Iron 750.
Lead 2.
Manganese  82.
Zinc  44.
pH

must be maintained above 5.7 su.

History: 75-5-201, 75-5-312, MCA; IMP, 75-5-312, MCA; NEW, 1999 MAR p. 1218, Eff. 6/4/99; AMD, 2000 MAR p. 1317, Eff. 5/26/00; AMD, 2006 MAR p. 3072, Eff. 12/22/06; AMD, 2014 MAR p. 681, Eff. 4/11/14.

17.30.631   NUMERIC ALGAL BIOMASS AND NUTRIENT STANDARDS

(1) No person may violate the numeric water quality standards identified below.

(2) The numeric nutrient and standing crop of benthic algae water quality standards for the mainstem Clark Fork River from below the Warm Springs Creek confluence (N46º11'17", W112º46'03") to the confluence with the Flathead River (N47º21'45", W114º46'43") are as follows:

(a) In the mainstem Clark Fork River from below the Warm Springs Creek confluence (N46º11'17", W112º46'03") to the confluence with the Blackfoot River (N46º52'19", W113º53'35") the numeric water quality standards for Total Nitrogen, Total Phosphorus, and benthic algal chlorophyll a, applicable from June 21 to September 21, are as follows:

(i) Parameter

Concentration

Total Phosphorus as P

20 µg/L

Total Nitrogen as N

300 µg/L

 

(ii) Parameter

Density

(Summer mean) - Benthic algal chlorophyll a

100 mg/square meter

(Maximum) - Benthic algal chlorophyll a

150 mg/square meter

 

(b) In the Clark Fork River from the confluence with the Blackfoot River (N46º52'19", W113º53'35") to the confluence with the Flathead River (N47º21'45", W114º46'43") the numeric water quality standards for Total Nitrogen, Total Phosphorus, and benthic algal chlorophyll a, applicable from June 21 to September 21, are as follows:

(i) Parameter

Concentration

Total Phosphorus as P

39 µg/L

Total Nitrogen as N

300 µg/L

 

(ii) Parameter

Density

(Summer mean) - Benthic algal chlorophyll a

100 mg/square meter

(Maximum) - Benthic algal chlorophyll a

150 mg/square meter

 

History: 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 2002 MAR p. 2196, Eff. 8/16/02.

17.30.632   SELENIUM STANDARDS FOR LAKE KOOCANUSA AND THE KOOTENAI RIVER

(1) For Lake Koocanusa and the Kootenai River mainstem, the standards specified in (6) and (7) supersede the otherwise applicable water quality standards found elsewhere in state law.

(2) Numeric selenium standards for Lake Koocanusa and the Kootenai River mainstem from the US-Canada international boundary to the Montana-Idaho border are expressed as both fish tissue and water column concentrations. When the aquatic ecosystem is in steady state and selenium data is available for both fish tissue and the water column, the fish tissue standards supersede the water column standard. When the aquatic ecosystem is in non-steady state, both the fish tissue and water column standards apply. The numeric selenium standards apply to the lake, to the river, or to both, as provided in this rule.

(3) As of December 25, 2020, Lake Koocanusa and the Kootenai River aquatic ecosystems are in non-steady state. The department will reassess the status of these aquatic systems triennially and amend this rule to reflect any change.

(4) The water column standards are derived from modeling selenium bioaccumulation in fish tissue and reflect criteria that protect the aquatic life beneficial use. Permit conditions and limits developed from the water column standards comply with the fish tissue standards.

(5) No person may violate the numeric water quality standards in (6) through (7).

(6) Fish tissue standards will be instantaneous measurements not to be exceeded. Fish tissue sample results shall be reported as a single value representing an average of individual fish samples or a composite sample, each option requiring a minimum number of five individuals from the same species. Fish tissue standards are applicable to tissues of fish in Lake Koocanusa from the US-Canada international boundary to the Libby Dam and in the mainstem Kootenai River from the outflow below the Libby Dam to the Montana-Idaho border. Egg/ovary tissue standards supersede any muscle or whole-body standards, as well as the water column standards in (7), when fish egg/ovary samples are available and when the aquatic ecosystem is in steady state. When fish egg/ovary samples are unavailable, and the aquatic ecosystem is in steady state, fish muscle or whole-body standards supersede the water column standards in (7).

 

Fish Tissue

Selenium Concentration

Eggs/Ovaries

15.1 mg/kg dry weight (dw)

Muscle

11.3 mg/kg dw

Whole Body

8.5 mg/kg dw

 

(7) Water column standards are the numeric standards for total dissolved selenium computed as a 30-day average, and shall not be exceeded more than once in 3 years, on average.

(a) Lake Koocanusa from the US-Canada international boundary to the Libby Dam: 0.8 µg/L.

(b) Kootenai River mainstem from the outflow below the Libby Dam to the Montana-Idaho border: 3.1 µg/L.  

 

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 2020 MAR p. 2336, Eff. 12/25/20.

17.30.635   GENERAL TREATMENT STANDARDS

(1) The degree of waste treatment required to restore and maintain the quality of surface waters shall be based on the surface water quality standards and the following:

(a) the state's policy of nondegradation of existing high water quality as described in 75-5-303, MCA;

(b) present and anticipated beneficial uses of the receiving water;

(c) the quality and nature of the flow of the receiving water;

(d) the quantity and quality of the sewage, industrial waste or other waste to be treated; and

(e) the presence or absence of other sources of pollution on the same watershed.

(2) For design of disposal systems, stream flow dilution requirements must be based on the minimum consecutive seven-day average flow which may be expected to occur on the average of once in ten years. When dilution flows are less than the above design flow at a point discharge, the discharge is to be governed by the permit conditions developed for the discharge through the waste discharge permit program. If the flow records on an affected surface water are insufficient to calculate a ten-year seven-day low flow, the department shall determine an acceptable stream flow for disposal system design. For total nitrogen and total phosphorus, the stream flow dilution requirements must be based on the seasonal 14Q5, which is the lowest average 14 consecutive day low flow, occurring from July through October, with an average recurrence frequency of once in five years.

(3) Where the department has determined that the disposal of sewage may adversely affect the quality of a lake or other state waters, the department may require additional information and data concerning such possible effects. Upon review of such information the department may impose specific requirements for sewage treatment and disposal as are necessary and appropriate to assure compliance with the Water Quality Act, Title 75, chapter 5, MCA.

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1982 MAR p. 1746, Eff. 10/1/82; AMD, 1984 MAR p. 1802, Eff. 12/14/84; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2012 MAR p. 2060, Eff. 10/12/12; AMD, 2014 MAR p. 1815, Eff. 8/8/14.

17.30.636   GENERAL OPERATION STANDARDS
(1) Owners and operators of water impoundments that cause conditions harmful to prescribed beneficial uses of state water shall demonstrate to the satisfaction of the department that continued operations will be done in the best practicable manner to minimize harmful effects. New water impoundments must be designed to provide temperature variations in discharging water that maintain or enhance the existing propagating fishery and associated aquatic life. As a guide, the following temperature variations are recommended: continuously less than 40ºF during the months of January and February, and continuously greater than 44ºF during the months of June through September.
History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; EMERG, AMD, 1997 MAR p. 1588, Eff. 9/9/97.

17.30.637   GENERAL PROHIBITIONS
(1) State surface waters must be free from substances attributable to municipal, industrial, agricultural practices or other discharges that will:

(a) settle to form objectionable sludge deposits or emulsions beneath the surface of the water or upon adjoining shorelines;

(b) create floating debris, scum, a visible oil film (or be present in concentrations at or in excess of 10 milligrams per liter), or globules of grease or other floating materials;

(c) produce odors, colors, or other conditions as to which create a nuisance or render undesirable tastes to fish flesh or make fish inedible;

(d) create concentrations or combinations of materials which are toxic or harmful to human, animal, plant, or aquatic life; and

(e) create conditions which produce undesirable aquatic life.

(2) No wastes may be discharged and no activities conducted such that the wastes or activities, either alone or in combination with other wastes or activities, will violate, or can reasonably be expected to violate, any of the standards.

(3) Until such time as minimum stream flows are established for dewatered streams, the minimum treatment requirements for discharges to dewatered receiving streams must be no less than the minimum treatment requirements set forth in ARM 17.30.1203.

(4) Treatment requirements for discharges to ephemeral streams must be no less than the minimum treatment requirements set forth in ARM 17.30.1203. Ephemeral streams are subject to ARM 17.30.635 through 17.30.637, 17.30.640, 17.30.641, 17.30.645, and 17.30.646 but not to the specific water quality standards of ARM 17.30.620 through 17.30.629.

(5) Pollution resulting from storm drainage, storm sewer discharges, and non-point sources, including irrigation practices, road building, construction, logging practices, over-grazing, and other practices must be eliminated or minimized as ordered by the department.

(6) Application of pesticides in or adjacent to state surface waters must be in compliance with the labeled direction, and in accordance with provisions of the Montana Pesticides Act (Title 80, chapter 8, MCA) and the Federal Environmental Pesticides Control Act (7 USC 136, et seq., (Supp. 1973) as amended). Excess pesticides and pesticide containers must not be disposed of in a manner or in a location where they are likely to pollute surface waters.

(7) No pollutants may be discharged and no activities may be conducted which, either alone or in combination with other wastes or activities, result in the total dissolved gas pressure relative to the water surface exceeding 110% of saturation.

History: 75-5-201, 75-5-301, 75-6-112, MCA; IMP, 75-5-301, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1988 MAR p. 1191, Eff. 6/10/88; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 1999 MAR p. 2256, Eff. 10/8/99; AMD, 2012 MAR p. 2060, Eff. 10/12/12.

17.30.638   OUTSTANDING RESOURCE WATERS -- PROHIBITIONS

(1) Any new or increased point source discharge that would result in a permanent change in water quality is prohibited.

History: 75-5-301, 75-5-316, MCA; IMP, 75-5-316, MCA; NEW, 2006 MAR p. 528, Eff. 2/24/06.

17.30.640   MIXING ZONE

This rule has been repealed.

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1992 MAR p. 2064, Eff. 9/11/92; TRANS, from DHES, 1996 MAR p. 1499; REP, 1996 MAR p. 1854, Eff. 7/4/96.

17.30.641   SAMPLING METHODS

(1) Water quality monitoring, including methods of sample collection, preservation, and analysis used to determine compliance with the standards must be in accordance with 40 CFR Part 136 (July 1, 2015) or other method allowed by the department.

 

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2008 MAR p. 946, Eff. 5/9/08; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.645   RADIOLOGICAL CRITERIA

This rule has been repealed.

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1988 MAR p. 1191, Eff. 6/10/88; AMD, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; REP, 2016 MAR p. 517, Eff. 3/19/16.

17.30.646   BIOASSAYS

(1) Bioassay tolerance concentrations must be determined using the latest available research results for the materials, by bioassay tests procedures for simulating actual stream conditions as set forth in 40 CFR Part 136 (July 1, 2015). Any bioassay studies made must be made using a representative sensitive local species and life stages of economic or ecological importance, except that other species whose relative sensitivity is known may be used when there is difficulty in providing the more sensitive species in sufficient numbers or when such species are unsatisfactory for routine confined bioassays. All bioassay methods and species selections must be approved by the department.

 

History: 75-5-201, 75-5-301, MCA; IMP, 75-5-301, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1988 MAR p. 1191, Eff. 6/10/88; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2008 MAR p. 946, Eff. 5/9/08; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.650   D-1 CLASSIFICATION STANDARDS

(1) Waters classified D-1 are to be maintained suitable for agricultural purposes and secondary contact recreation.

(2) No person may violate the following specific water quality standards for waters classified D-1:

(a) the designated uses of a receiving water body under a different classification must be fully maintained;

(b) the geometric mean number of Escherichia coli bacteria may not exceed 630 colony forming units per 100 milliliters and 10 percent of the samples may not exceed 1,260 colony forming units per 100 milliliters during any 30-day period. Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b).

(3) The narrative standards in ARM 17.30.637(1)(d) and (2) that pertain to aquatic life do not apply. 

 
History: 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 2002 MAR p. 2196, Eff. 8/16/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.651   D-2 CLASSIFICATION STANDARDS

(1) Waters classified D-2 are to be maintained suitable for agricultural purposes and secondary contact recreation. Because of conditions resulting from flow regulation, maintenance of the ditch or geomorphological and riparian habitat conditions, the quality of these waters is marginally suitable for aquatic life.

(2) No person may violate the following specific water quality standards for waters classified D-2:

(a) the aquatic life standards for priority pollutants listed in DEQ-7;

(b) the aquatic life standards for ammonia and other non-priority pollutants listed in DEQ-7, unless those standards are modified or removed based upon a use attainability analysis developed for a specific water body;

(c) the designated uses of a receiving water body under a different classification must be fully maintained;

(d) the geometric mean number of Escherichia coli bacteria may not exceed 630 colony forming units per 100 milliliters and 10 percent of the samples may not exceed 1,260 colony forming units per 100 milliliters during any 30-day period. Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b).

 

History: 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 2002 MAR p. 2196, Eff. 8/16/02; AMD, 2004 MAR p. 725, Eff. 4/9/04; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.652   E-1 CLASSIFICATION STANDARDS

(1) Waters classified E-1 are to be maintained suitable for agricultural purposes, secondary contact recreation and wildlife.

(2) No person may violate the following specific water quality standards for waters classified E-1:

(a) the designated uses of a receiving water body under a different classification must be fully maintained;

(b) the geometric mean number of Escherichia coli bacteria may not exceed 630 colony forming units per 100 milliliters and 10 percent of the samples may not exceed 1,260 colony forming units per 100 milliliters during any 30-day period. Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b).

(3) The narrative standards in ARM 17.30.637(1)(d) and (2) that pertain to aquatic life do not apply.

History: 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 2002 MAR p. 2196, Eff. 8/16/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.653   E-2 CLASSIFICATION STANDARDS

(1) Waters classified E-2 are to be maintained suitable for agricultural purposes, secondary contact recreation, and wildlife. Because of habitat, low flow, hydro-geomorphic and other physical conditions these waters are marginally suitable for aquatic life.

(2) No person may violate the following specific water quality standards for waters classified E-2:

(a) the aquatic life standards for priority pollutants listed in DEQ-7;

(b) the aquatic life standards for ammonia and other non-priority pollutants listed in DEQ-7, unless those standards are modified or removed based upon a use attainability analysis developed for a specific water body;

(c) the designated uses of a receiving water body under a different classification must be fully maintained;

(d) the geometric mean number of Escherichia coli bacteria may not exceed 630 colony forming units per 100 milliliters and 10 percent of the samples may not exceed 1,260 colony forming units per 100 milliliters during any 30-day period. Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b).

History: 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 2002 MAR p. 2196, Eff. 8/16/02; AMD, 2004 MAR p. 725, Eff. 4/9/04; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.654   E-3 CLASSIFICATION STANDARDS

(1) Waters classified E-3 are to be maintained suitable for agricultural purposes, secondary contact recreation, and wildlife.

(2) No person may violate the following specific water quality standards for waters classified E-3:

(a) the geometric mean number of Escherichia coli bacteria may not exceed 630 colony forming units per 100 milliliters and 10 percent of the samples may not exceed 1,260 colony forming units per 100 milliliters during any 30-day period. Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b); and

(b) the designated uses of a receiving water body under a different classification must be fully maintained.

(3) The narrative standards in ARM 17.30.637(1)(d) and (2) that pertain to aquatic life do not apply.

History: 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 2002 MAR p. 2196, Eff. 8/16/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.655   E-4 CLASSIFICATION STANDARDS

(1) Waters classified E-4 are to be maintained suitable for aquatic life, agricultural purposes, secondary contact recreation, and wildlife.

(2) No person may violate the following specific water quality standards for waters classified E-4:

(a) the acute and chronic aquatic life standards in DEQ-7 apply;

(b) the designated uses of a receiving water body under a different classification must be fully maintained;

(c) the geometric mean number of Escherichia coli bacteria may not exceed 630 colony forming units per 100 milliliters and 10 percent of the samples may not exceed 1,260 colony forming units per 100 milliliters during any 30-day period. Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b).

History: 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 2002 MAR p. 2196, Eff. 8/16/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.656   E-5 CLASSIFICATION STANDARDS

(1) Waters classified E-5 are to be maintained suitable for agricultural purposes, secondary contact recreation, saline tolerant aquatic life, and wildlife.

(2) No person may violate the following specific water quality standards for waters classified E-5:

(a) the designated uses of a receiving water body under a different classification must be fully maintained;

(b) the geometric mean number of Escherichia coli bacteria may not exceed 630 colony forming units per 100 milliliters and 10 percent of the samples may not exceed 1,260 colony forming units per 100 milliliters during any 30-day period. Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b).

(3) Changes in the water quality must support existing and designated uses.


History: 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 2002 MAR p. 2196, Eff. 8/16/02; AMD, 2004 MAR p. 725, Eff. 4/9/04; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.657   F-1 CLASSIFICATION STANDARDS

(1) Waters classified F-1 are to be maintained suitable for secondary contact recreation, wildlife and aquatic life not including fish.

(2) No person may violate the following specific water quality standards for waters classified F-1:

(a) the aquatic life standards for priority pollutants listed in DEQ-7;

(b) the aquatic life standards for ammonia and other non-priority pollutants listed in DEQ-7, unless those standards are modified or removed based upon a use attainability analysis developed for a specific water body;

(c) the designated uses of a receiving water body under a different classification must be fully maintained;

(d) the geometric mean number of Escherichia coli bacteria may not exceed 630 colony forming units per 100 milliliters and 10 percent of the samples may not exceed 1,260 colony forming units per 100 milliliters during any 30-day period. Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b).

History: 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 2002 MAR p. 2196, Eff. 8/16/02; AMD, 2004 MAR p. 725, Eff. 4/9/04; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.658   G-1 CLASSIFICATION STANDARDS

This rule has been repealed.

History: 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 2003 MAR p. 1274, Eff. 6/27/03; AMD, 2006 MAR p. 528, Eff. 2/24/06; REP, 2012 MAR p. 2060, Eff. 10/12/12.

17.30.660   NUTRIENT STANDARDS VARIANCES

(1) A person may apply to the department for a nutrient standards variance at any time following the board's adoption of base numeric nutrient standards. In addition to this rule, variances are subject to the procedures and requirements contained in Department Circular DEQ-12B (November 2019 edition).

(2) An application for a general variance must provide information demonstrating that the wastewater treatment facility meets the requirements of Department Circular DEQ-12B (November 2019 edition). The decision to grant the general variance must be reflected in the permit that is made available for public comment.

(3) An application for an individual variance must adequately demonstrate that there are no reasonable alternatives that eliminate the need for a variance and that attainment of the base numeric nutrient standards is precluded due to economic impacts or limits of technology, or both. If the demonstration relies upon economic impacts, the department shall consider any guidance developed by the department and the nutrient work group, as provided in 75-5-313(2), MCA.

(4) The department may approve the adoption of an individual variance that specifies interim effluent limits different from those contained in general variance limits contained in Department Circular DEQ-12B (November 2019 edition), if water quality modeling demonstrates that greater emphasis on the reduction of one nutrient may achieve similar water quality and biological improvements as would the equal reduction of both nitrogen and phosphorus. The variance must provide effluent limits that reflect the lowest effluent concentration that is feasible based on achieving the highest attainable condition for the receiving water. A person shall submit the proposed effluent limits and supporting data in an application for an individual nutrient variance under (3). A person who has an individual variance with effluent limits that are based on this section shall, in each subsequent triennial review of those limits conducted pursuant to 75-5-313(7), MCA, collect and submit water quality data to demonstrate whether the biological status of the receiving water continues to justify those effluent limits.

(5) The department shall review each application for an individual variance to determine whether a reasonable alternative, such as trading, a permit compliance schedule, a general variance, reuse, recharge, or land application would eliminate the need for an individual variance. If the department makes a preliminary finding that a reasonable alternative to approving an individual variance is available, the department shall consult with the applicant prior to making a final decision to approve or deny the individual variance.

(6) If, after consultation with the applicant, the department determines that no reasonable alternative to an individual variance exists, the department shall determine whether the information provided by the applicant pursuant to (3) adequately demonstrates that attaining the base numeric nutrient standards is not feasible. If the department finds that attaining the base numeric nutrient standards is not feasible, the department shall approve an individual variance, which will become effective and incorporated into the applicant's permit only after adoption by the department in a formal rulemaking proceeding.

(7) A variance is not needed in situations where a person complies with the waste load allocation established in an approved TMDL.

(8) The department adopts and incorporates by reference Department Circular DEQ-12B, entitled "Nutrient Standards Variances" (November 2019 edition), which provides procedures and requirements for nutrient standards variances. Copies of Department Circular DEQ-12B are available at the Department of Environmental Quality, 1520 East 6th Avenue, P.O. Box 200901, Helena, MT 59620-0901.

(9) If a court of competent jurisdiction determines that the United States Environmental Protection Agency's October 31, 2017 approval of the general variance is valid and lawful, then the incorporations by reference of the November 2019 edition of Department Circular DEQ-12B contained in this rule shall be void, and the May 2018 edition of Department Circular DEQ-12B shall contain the applicable general variance. If such contingency occurs, all references to the November 2019 edition of Department Circular DEQ-12B contained in this rule shall be stricken and shall be considered as replaced with the May 2018 edition.

 

History: 75-5-313, MCA; IMP, 75-5-313, MCA; NEW, 2014 MAR p. 1805, Eff. 8/8/14; AMD, 2017 MAR p. 871, Eff. 6/24/17; AMD, 2018 MAR p. 1110, Eff. 6/9/18; AMD, 2019 MAR p. 2100, Eff. 11/23/19.

17.30.661   VARIANCE FROM STANDARD FOR WATER BODY CONDITIONS

(1) The department may grant to a permittee a variance from a water quality standard if the department determines in writing that the following conditions are met:

(a) the standard is more stringent than the quality of the receiving water;

(b) the condition in (a) exists because of anthropogenic contributions of the pollutant to the water body;

(c) the condition in (a) cannot reasonably be expected to be remediated during the permit term for which the variance is sought;

(d) the discharge to which the variance would apply would not materially contribute to the condition in (a); and

(e) one of the demonstrations provided at 40 CFR 131.14(b)(2)(i)(A)(1), which is by this reference adopted and incorporated into this rule, applies.

(2) To obtain a variance, a permittee shall submit to the department an application that:

(a) identifies the pollutant for which the variance is sought;

(b) identifies the permittee by name, address, and telephone number;

(c) identifies the receiving water body;

(d) demonstrates to the department's satisfaction that the requirements of (1) are met; and

(e) proposes, with supporting documentation, a variance level that is:

(i) the highest attainable interim standard in the receiving stream;

(ii) the interim effluent condition that reflects the greatest pollutant reduction that is achievable; or

(iii) if no additional feasible pollutant control technology can be identified, the interim standard or effluent condition that reflects the greatest pollutant reduction achievable with the pollutant control technologies installed at the time the variance is submitted. For a variance under this paragraph (2)(e)(iii), the permittee shall prepare and implement a pollutant minimization plan that contains a structured set of activities to improve processes and pollutant controls that will prevent and reduce pollutant loading.

(3) The department shall review each application to determine whether a reasonable alternative is in place that would eliminate the need for the variance, including:

(a) a permit compliance schedule;

(b) reuse;

(c) a TMDL for the pollutant where the permittee is meeting the established waste load allocation; or

(d) other department actions.

(4) If the department makes a preliminary finding that a reasonable alternative to approving a variance is available, the department shall consult with the applicant prior to making a decision regarding the variance.

(5) If the department determines that no reasonable alternative to a variance exists, the department shall determine whether the information provided by the applicant meets the requirements of (1) and (2). If the department finds that the requirements of (1) and (2) are met, and that a variance is needed, the department shall approve the variance after conducting a hearing following no less than 45 days' notice to the public. All written or oral public comments related to the variance shall be presented to the department during this public comment period.

(6) Within 30 days after approval of the variance, the department shall submit the variance and any supporting documentation and analysis to EPA. The variance is not approved for federal Clean Water Act purposes until EPA notifies the department that the variance complies with the federal Clean Water Act, 33 USC 1251, et seq.

(7) The variance may be used to develop MPDES permit limits. A permit incorporating a variance issued by the department under this rule is subject to ARM Title 17, chapter 30, subchapter 13. The department shall review the variance five years from the date the department issues a final discharge permit incorporating the variance.

(8) The variance must be reviewed by the department every five years to reevaluate the conditions in (2)(e). Based on this review, the department may terminate, continue, or modify the variance. In order to continue or modify the variance, the permittee shall provide information demonstrating compliance with (1) and (2). In cases where water quality in the receiving stream has improved during the term of the variance, DEQ shall consider the ambient upstream condition of the waterbody, as characterized for the previous two years, in determining an appropriate variance level under (2)(e).

(9) Based on the review conducted under (8), the department may approve the variance, with any modifications after public comment and public hearing under (5). Within 30 days after department approval of the variance, the department shall submit the variance and any supporting analysis to EPA. The variance is not approved for federal Clean Water Act purposes until EPA notifies the department that the variance complies with the federal Clean Water Act, 33 USC 1251, et seq.

(10) A copy of 40 CFR 131.14(b)(2)(i)(A)(1) may be obtained from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59601-0901.

 

History: 75-5-222, MCA; IMP, 75-5-222, MCA; NEW, 2018 MAR p. 830, Eff. 4/28/18.

17.30.670   NUMERIC STANDARDS FOR ELECTRICAL CONDUCTIVITY (EC) AND SODIUM ADSORPTION RATIO (SAR)
(1) No person may violate the numeric water quality standards or the criteria for determining nonsignificant changes in water quality identified in (2) through (6) .

(2) The numeric standards for electrical conductivity (EC) and sodium adsorption ratio (SAR) for the mainstems of Rosebud Creek, the Tongue, Powder, and Little Powder rivers from November 1 through March 1 are as follows:

(a) for Rosebud Creek and the Tongue River, the monthly average numeric water quality standard for EC is 1500 µS/cm and no sample may exceed an EC value of 2500 µS/cm. The monthly average numeric water quality standard for SAR is 5.0 and no sample may exceed an SAR value of 7.5; and

(b) for the Powder River and the Little Powder River, the monthly average numeric water quality standard for EC is 2500 µS/cm and no sample may exceed an EC value of 2500 µS/cm. The monthly average numeric water quality standard for SAR is 6.5 and no sample may exceed an SAR value of 9.75.

(3) The numeric standards for EC and SAR for the mainstems of Rosebud Creek, the Tongue, Powder, and Little Powder rivers from March 2 through October 31 are as follows:

(a) for Rosebud Creek and the Tongue River, the monthly average numeric water quality standard for EC is 1000 µS/cm and no sample may exceed an EC value of 1500 µS/cm. The monthly average numeric water quality standard for SAR is 3.0 and no sample may exceed an SAR value of 4.5; and

(b) for the Powder River and Little Powder River, the monthly average numeric water quality standard for EC is 2000 µS/cm and no sample may exceed an EC value of 2500 µS/cm. The monthly average numeric water quality standard for SAR is 5.0 and no sample may exceed an SAR value of 7.5.

(4) For all tributaries and other surface waters in the Rosebud Creek, Tongue, Powder, and Little Powder river watersheds, the monthly average numeric water quality standard for EC is 500 µS/cm and no sample may exceed an EC value of 500 µS/cm. The monthly average numeric water quality standard for SAR from March 2 through October 31 is 3.0 and no sample may exceed an SAR value of 4.5. The monthly average numeric water quality standard for SAR from November 1 through March 1 is 5.0 and no sample may exceed an SAR value of 7.5.

(5) For the Tongue River Reservoir, the monthly average numeric water quality standard for EC is 1000 µS/cm and no sample may exceed an EC value of 1500 µS/cm. The monthly average numeric water quality standard for SAR is 3.0 and no sample may exceed an SAR value of 4.5.

(6) EC and SAR are harmful parameters for the purposes of the Montana Water Quality Act, Title 75, chapter 5, MCA.

History: 75-5-301, 75-5-303, MCA; IMP, 75-5-301, 75-5-303, MCA; NEW, 2003 MAR p. 779, Eff. 4/25/03; AMD, 2006 MAR p. 1733, Eff. 5/19/06.

17.30.701   PURPOSE
(1) The purpose of this subchapter is to prohibit degradation of high quality state waters, except in certain limited circumstances, by implementing the nondegradation policy set forth in 75-5-303 , MCA, and providing criteria and procedures for:

(a) determining which activities will degrade high quality waters;

(b) department review and decision making;

(c) determining the required water quality protection practices if degradation is authorized; and

(d) public review and appeal of department decisions.

History: 75-5-301, 75-5-303, MCA; IMP, 75-5-301, MCA; NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499.

17.30.702   DEFINITIONS

The following definitions, in addition to those in 75-5-103, MCA, apply throughout this subchapter (Note: 75-5-103, MCA, includes definitions for "base numeric nutrient standards," "degradation," "existing uses," "high quality waters," "mixing zone," and "parameter"):

(1) "Bioconcentrating parameters" means the parameters listed in department Circular DEQ-7 which have a bioconcentration factor greater than 300.

(2) "Carcinogenic parameters" means the parameters listed as carcinogens in department Circular DEQ-7.

(3) "Degradation" is defined in 75-5-103, MCA, and also means any increase of a discharge that exceeds the limits established under or determined from a permit or approval issued by the department prior to April 29, 1993.

(4) "Existing water quality" means the quality of the receiving water, including chemical, physical, and biological conditions immediately prior to commencement of the proposed activity or that which can be adequately documented to have existed on or after July 1, 1971, whichever is the highest quality.

(5) "Ground water" means water occupying the voids within a geologic stratum and within the zone of saturation.

(6) "Harmful parameters" means the parameters listed as harmful in department Circular DEQ-7.

(7) "Highest statutory and regulatory requirements" means all applicable effluent limitations, water quality standards, permit conditions, water quality protection practices, or reasonable land, soil, and water conservation practices. It also means compliance schedules or corrective action plans for the protection of water issued under order of a court, department, or board of competent jurisdiction.

(8) "High quality waters" is defined in 75-5-103(13), MCA, and does not include Class I surface waters (ARM 17.30.628) or Class III or Class IV ground waters (ARM 17.30.1006(3) through (4)).

(9) "Level 1a treatment" means a subsurface wastewater treatment system (SWTS) that:

(a) removes at least 50 percent, but less than 60 percent, of total nitrogen as measured from the raw sewage load to the system; or

(b) discharges a total nitrogen effluent concentration of greater than 24 mg/L, but not greater than 30 mg/L. The term does not include treatment systems for industrial waste. A level 1a designation allows the use of 30 mg/L nitrate (as N) as the nitrate effluent concentration for mixing zone calculations.

(10) "Level 1b treatment" means a SWTS that:

(a) removes at least 34 percent, but less than 50 percent, of total nitrogen as measured from the raw sewage load to the system; or

(b) discharges a total nitrogen effluent concentration of greater than 30 mg/L, but not greater than 40 mg/L. The term does not include treatment systems for industrial waste. A level 1b designation allows the use of 40 mg/L nitrate (as N) as the nitrate effluent concentration for mixing zone calculations.

(11) "Level 2 treatment" means a SWTS that:

(a) removes at least 60 percent of total nitrogen as measured from the raw sewage load to the system; or

(b) discharges a total nitrogen effluent concentration of 24 mg/L or less. The term does not include treatment systems for industrial waste.

(12) "Load" means the mass of a parameter per unit of time.

(13) "Management or conservation practice" means a measure to control or minimize pollution of ground and surface waters from a nonpoint source. Examples of such measures include, but are not limited to, revegetation of disturbed soil, grazing management to prevent overgrazing, contour farming, strip farming, protection of riparian areas, drainage control, and impoundments which detain surface runoff or irrigation return water for sediment control.

(14) "Mixing zone" is defined in 75-5-103, MCA, and also means a limited area of a surface water body or a portion of an aquifer, where initial dilution of a discharge takes place and where water quality changes may occur and where certain water quality standards may be exceeded.

(15) "Montana pollutant discharge elimination system" or "MPDES" means the permit system developed by the state of Montana for controlling the discharge of pollutants from point sources into state waters, pursuant to ARM Title 17, chapter 30, subchapter 13.

(16) "Montana ground water pollution control system" or "MGWPCS" means the permit system developed by the state of Montana for controlling the discharge of pollutants into state ground water, pursuant to ARM Title 17, chapter 30, subchapter 10.

(17) "New or increased source" means an activity resulting in a change of existing water quality occurring on or after April 29, 1993. The term does not include the following:

(a) sources from which discharges to state waters have commenced or increased on or after April 29, 1993, provided the discharge is in compliance with the conditions of, and does not exceed the limits established under or determined from, a permit or approval issued by the department prior to April 29, 1993;

(b) nonpoint sources discharging prior to April 29, 1993;

(c) withdrawals of water pursuant to a valid water right existing prior to April 29, 1993; and

(d) activities or categories of activities causing nonsignificant changes in existing water quality pursuant to ARM 17.30.670, 17.30.715, 17.30.716, or 75-5-301(5)(c), MCA.

(18) "Nonpoint source" means a diffuse source of pollutants resulting from the activities of man over a relatively large area, the effects of which normally must be addressed or controlled by a management or conservation practice.

(19) "Outstanding resource waters" or "ORW" has the meaning set out in 75-5-103, MCA.

(20) "Permit" means either an MPDES permit or an MGWPCS permit.

(21) "Reporting values (RRV)" means the detection level that must be achieved in reporting surface water or ground water monitoring or compliance data to the department unless otherwise specified in a permit, approval, or authorization issued by the department. The RRV is the board's best determination of a level of analysis that can be achieved by the majority of commercial, university, or governmental laboratories using EPA approved methods or methods approved by the department. The RRV is listed in Department Circular DEQ-7, Department Circular DEQ-12A, and in the definition of "total inorganic phosphorus."

(22) "Surface waters" means any water on the earth's surface including, but not limited to, streams, lakes, ponds, and reservoirs and irrigation drainage systems discharging directly into a stream, lake, pond, reservoir, or other water on the earth's surface. Water bodies used solely for treating, transporting, or impounding pollutants are not considered surface water for the purposes of this subchapter.

(23) "Total nitrogen" means the sum of all nitrate, nitrite, ammonia, and organic nitrogen, as N, in an unfiltered water sample. Total nitrogen in a sample may also be determined by persulfate digestion, or as the sum of total kjeldahl nitrogen plus nitrate plus nitrite.

(24) "Total phosphorus" means the sum of orthophosphates, polyphosphates, and organically bound phosphates, as P, in an unfiltered water sample. Total phosphorus may also be determined directly by persulfate digestion.

(25) "Toxic parameters" means the parameters listed as toxic in department Circular DEQ-7.

(26) "Trigger values" means the values listed as trigger values in department Circular DEQ-7 for parameters categorized as toxic, and are used to determine if proposed activities will cause degradation.

(27) The board adopts and incorporates by reference:

(a) Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" (June 2019 edition), which establishes numeric water quality standards for toxic, carcinogenic, bioconcentrating, radioactive, and harmful parameters and also establishes human health-based water quality standards for the following specific nutrients with toxic effects:

(i) nitrate;

(ii) nitrate + nitrite; and

(iii) nitrite;

(b) Department Circular DEQ-12A, entitled "Montana Base Numeric Nutrient Standards" (December 2013 edition), which establishes numeric water quality standards for total nitrogen and total phosphorus in surface waters;

(c) Department Circular DEQ-4, entitled "Montana Standards for Subsurface Wastewater Treatment Systems" (2013 edition), which establishes technical standards for construction of subsurface wastewater treatment systems; and

(d) 40 CFR Part 136 (July 1, 2015) which contains guidelines establishing test procedures for the analysis of pollutants.

(e) Copies of this material may be obtained from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

 

History: 75-5-301, 75-5-303, MCA; IMP, 75-5-303, MCA; NEW, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1999 MAR p. 94, Eff. 1/15/99; AMD, 1999 MAR p. 2257, Eff. 10/8/99; AMD, 1999 MAR p. 2275, Eff. 10/8/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2003 MAR p. 217, Eff. 2/14/03; AMD, 2004 MAR p. 725, Eff. 4/9/04; AMD, 2004 MAR p. 1384, Eff. 6/18/04; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2008 MAR p. 946, Eff. 5/9/08; AMD, 2009 MAR p. 1786, Eff. 10/16/09; AMD, 2010 MAR p. 1796, Eff. 8/13/10; AMD, 2012 MAR p. 2060, Eff. 10/12/12; AMD, 2013 MAR p. 2081, Eff. 11/15/13; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2017 MAR p. 602, Eff. 5/13/17; AMD, 2019 MAR p. 826, Eff. 6/22/19.

17.30.705   NONDEGRADATION POLICY--APPLICABILITY AND LEVEL OF PROTECTION
(1) The provisions of this subchapter apply to any activity of man resulting in a new or increased source which may cause degradation.

(2) Department review of proposals for new or increased sources will determine the level of protection required for the impacted water as follows:

(a) For all state waters, existing and anticipated uses and the water quality necessary to protect those uses must be maintained and protected.

(b) For high quality waters, degradation may be allowed only according to the procedures in ARM 17.30.708. These rules apply to any activity that may cause degradation of high quality waters, for any parameter, unless the changes in existing water quality resulting from the activity are determined to be nonsignificant under ARM 17.30.670, 17.30.715, or 17.30.716. If degradation of high quality waters is allowed, the department will assure that within the United States Geological Survey hydrologic unit upstream of the proposed activity, there shall be achieved the highest statutory and regulatory requirements for all point and nonpoint sources. This assurance will be achieved through ongoing administration by the department of mandatory programs for control of point and nonpoint discharges.

(c) For outstanding resource waters, no degradation is allowed and no permanent change in the quality of outstanding resource waters resulting from a new or increased point source discharge is allowed.

(3) The department will comply with the provisions of the Montana Environmental Policy Act in the implementation of this subchapter.

History: 75-5-301, 75-5-303, MCA; IMP, 75-5-303, MCA; NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2000 MAR p. 843, Eff. 3/31/00; AMD, 2006 MAR p. 528, Eff. 2/24/06.

17.30.706   INFORMATIONAL REQUIREMENTS FOR NONDEGRADATION SIGNIFICANCE/AUTHORIZATION REVIEW
(1) Any person proposing an activity that may cause degradation is responsible for compliance with 75-5-303 , MCA. Except as provided in (2) , a person may:

(a) determine for themselves, using the standards contained in ARM 17.30.715 and 17.30.716, that the proposed activity will not cause significant changes in water quality as defined in ARM 17.30.705; or

(b) submit an application to the department pursuant to (3) , for the department to make the determination.

(2) The department will determine whether a proposed activity may cause degradation based on information submitted by the applicant for all activities that are permitted, approved, licensed, or otherwise authorized by the department. If the department determines that additional information is necessary to determine whether the activity is nonsignificant according to criteria established by the board, the department may require the applicant to provide the information in (3) (a) through (e) .

(3) Any person proposing an activity that may cause degradation and is not an activity included under (2) may complete a department "Application for Determination of Significance." Information required for the application includes, but is not limited to:

(a) quantity and concentration of the parameters expected to change as a result of the proposed activity;

(b) length of time that the water quality is expected to be changed;

(c) character of the discharge;

(d) an analysis of the existing water quality of the receiving water, and any other downstream or downgradient waters which may be reasonably expected to be impacted, including natural variations and fluctuations in the parameter(s) which may change as a result of the proposed activity; or

(e) proposed water quality protection practices.

(4) The department will review an "Application for Determination of Significance" submitted under (3) and make a determination whether the proposed change in water quality is nonsignificant according to ARM 17.30.715 or 17.30.716 within 60 days of receipt of the completed application.

(5) Whenever the department determines that a proposed activity will not result in degradation, the department may require monitoring to verify compliance with this subchapter and 75-5-303 , MCA.

(6) Whenever the department determines that a proposed activity will result in degradation, the applicant shall complete an application to degrade state waters if the applicant decides to proceed with the proposed activity as planned. The department will not begin review of the application until the required fee has been paid to the department.

(7) In order to provide the information that is required for the department to determine whether or not degradation is necessary because there are no economically, environmentally, and technologically feasible alternatives to the proposed activity that would result in no degradation, an application to degrade state waters shall include, but not be limited to, the following, when applicable:

(a) a complete description of the proposed activity;

(b) the proposed effluent or discharge limitation(s) ;

(c) a statement of reasons for the proposed effluent or discharge limitation(s) ;

(d) an analysis of alternatives to the proposed activity, consistent with accepted engineering principles, demonstrating there are no economically, environmentally, and technologically feasible alternatives that are less-degrading or non-degrading. The analysis must be limited to only those alternatives that would accomplish the proposed activity's purpose;

(e) an analysis of the existing water quality of the receiving water and any other downstream or downgradient waters which may be impacted, including natural variations and fluctuations in the water quality parameter(s) for which an authorization to degrade is requested;

(f) the concentration, likely environmental fate, biological effects, and load for each parameter in the discharge likely to degrade existing water quality;

(g) the distribution of existing flows and their expected frequency;

(h) an analysis demonstrating the expected surface or ground water quality for all alternatives considered in (d) ;

(i) an analysis of the ground water flow system, including water-bearing characteristics of subsurface materials, rate and direction of ground water flow, and an evaluation of surface and ground water interaction;

(j) data concerning cumulative water quality effects of existing and authorized activities;

(k) a proposed monitoring and reporting plan that will determine the actual water quality changes.

(8) An applicant must demonstrate that the proposed activity will result in important economic or social development that exceeds the costs to society of allowing the proposed change in water quality.

(a) Factors to be addressed in the application may include, but are not limited to, the positive and negative effects of the following:

(i) allowing the proposed change in water quality;

(ii) employment considering the existing level of employment, unemployment, and wage levels in the area (i.e., increasing, maintaining, or avoiding a reduction in employment) ;

(iii) the fiscal status of the local, county, or state government and local public schools;

(iv) the local or state economies (i.e., increased or reduced diversity, multiplier effects) ;

(v) social or historical values;

(vi) public health;

(vii) housing (i.e., availability and affordability) ;

(viii) existing public service systems and local educational systems; or,

(ix) correction of an environmental or public health problem.

(b) Factors included in the demonstration required in (8) (a) must be quantified whenever this can be done reliably and cost-effectively. Other factors, which cannot be quantified, may be represented by an appropriate unit of measurement. If the department determines that more information is required, the department may require additional information from the applicant or seek such additional information from other sources.

(9) To determine whether or not existing and anticipated uses will be fully protected, the department shall require the following information:

(a) a showing that the change will not result in violations of Montana water quality standards outside of a mixing zone; and

(b) an analysis of the impacts of the proposed water quality changes on the existing and anticipated uses of the impacted state water.

(10) To demonstrate the least degrading water quality protection practices will be fully implemented prior to, during, and after the proposed activity, the applicant shall provide to the department a complete description and schedule for implementation of the water quality protection practices associated with the proposed activity and a viable plan showing the ability to implement the water quality protection practices.

(11) Any application submitted pursuant to this subchapter must comply with the signature and certification requirements of ARM 17.30.1323.

(12) The department shall notify the applicant in writing within 60 days after receipt of an application to degrade state waters that the application does or does not contain all the information necessary for the department's nondegradation review. If the information from the supplemental submittal and any subsequent supplemental submittal is inadequate, the department shall notify the applicant in writing, within 30 days after receipt of the supplemental submittal, what additional information must be submitted. In any review subsequent to the first, the department may not make a determination of incompleteness on the basis of a deficiency which could have been noted in the first review.

(13) The board adopts and incorporates by reference ARM 17.30.1323, as amended on February 14, 2003, which sets forth signature and certification requirements for MPDES permit applications. A copy of ARM 17.30.1323 may be obtained from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

History: 75-5-301, 75-5-303, MCA; IMP, 75-5-303, MCA; NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 1274, Eff. 6/27/03; AMD, 2006 MAR p. 528, Eff. 2/24/06.

17.30.707   DEPARTMENT PROCEDURES FOR NONDEGRADATION REVIEW
(1) Upon a determination by the department that an application to degrade state waters required under this rule is complete, the department will prepare a preliminary decision either authorizing degradation or denying the application to degrade according to the procedures in ARM 17.30.708.

(2) An application to degrade state waters will be denied unless the applicant has affirmatively demonstrated and the department finds, based on a preponderance of evidence, the proposed activity to be in full compliance with 75-5-303 , MCA, using the standards set out in (3) through (6) . The department shall consider an analysis by the applicant and any substantive relevant information either submitted by the public or otherwise available.

(3) To determine that degradation is necessary because there are no economically, environmentally, and technologically feasible alternatives to the proposed activity that would result in no degradation, the department shall consider the following:

(a) The department will determine the economic feasibility of the alternative water quality protection practices by evaluating the cost effects of the proposed alternatives on the economic viability of the project and on the applicant by using standard and accepted financial analyses.

(b) In order to determine the environmental feasibility of an alternative, the department will consider whether such alternative practices are available and will compare the overall environmental impacts of the various alternatives and the commitment of resources necessary to achieve the alternatives.

(c) In order to determine technological feasibility of an alternative, the department will consider whether such alternative practices are available and consistent with accepted engineering principles.

(4) (a) To determine that the proposed activity will result in important economic or social development that exceeds the benefit to society of maintaining existing high-quality waters and exceeds the costs to society of allowing degradation of high-quality waters, the department must find that the proposed activity will provide important economic or social development which outweighs any cost to society of allowing the proposed change in water quality. In making its determination, the department may consider factors that include, but are not limited to, the following:

(i) effects on the state or local community resulting from increased employment opportunities considering the existing level of employment, unemployment, and wage levels in the area;

(ii) effects on the state or local economies;

(iii) effects on the fiscal status of the local, county or state governments and local public schools;

(iv) effects on the local or state economies (i.e., increased or reduced diversity, multiplier effects) ;

(v) effects on social or historical values;

(vi) effects on public health;

(vii) effects on housing (i.e., availability and affordability) ;

(viii) effects on existing public service systems and local educational systems; or,

(ix) correction of an environmental or public health problem.

(b) In making the determination required in (a) , the department must weigh any costs associated with the loss of high quality waters against any social or economic benefits demonstrated by the applicant. The department may also consider as a cost to society any identified and/or quantifiable negative social or economic effects resulting from the proposed activity.

(5) To determine that existing and anticipated uses of the receiving waters will be fully protected and that water quality standards will not be violated as a result of the proposed degradation, the department shall consider all available information.

(6) In order to authorize degradation under this rule, the department must determine that the least degrading water quality protection practices determined by the department to be economically, environmentally, and technologically feasible will be implemented prior to, during, and after the proposed activity until the degradation no longer occurs.

(7) The department shall make its preliminary decision either authorizing degradation or denying the application to degrade within 180 days after receipt of a complete application from the applicant. This time period may be extended upon agreement of the applicant or whenever an environmental impact statement must be prepared pursuant to Title 75, chapter 1, parts 1 and 2, MCA.

(8) To the maximum extent possible, the department will coordinate any application to degrade state waters with the permitting and approval requirements of other laws or programs administered by the department or by any other local, state, or federal agency.

History: 75-5-301, 75-5-303, MCA; IMP, 75-5-303, MCA; NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499.

17.30.708   DEPARTMENT PROCEDURES FOR ISSUING PRELIMINARY AND FINAL DECISIONS REGARDING AUTHORIZATIONS TO DEGRADE
(1) A preliminary decision to deny or authorize degradation must be accompanied by a statement of basis for the decision and, if applicable, a detailed statement of conditions imposed upon any authorization to degrade.

(2) The preliminary decision must include the following information, if applicable:

(a) a description of the proposed activity;

(b) the level of protection required, e.g., for high-quality waters;

(c) a determination that degradation is or is not necessary based on the availability of economically, environmentally and technologically feasible alternatives that will prevent degradation;

(d) a determination of economic or social importance;

(e) a determination that all existing and anticipated uses will or will not be fully protected;

(f) the amount of allowed degradation;

(g) a description of the required water quality protection practices;

(h) a description of all monitoring and reporting requirements; and

(i) a specific identification of any mixing zone the department proposes to allow.

(3) A statement of basis for the decision must be prepared for every preliminary decision. In general, the statement of basis must briefly set forth the principal facts and significant factual, legal, methodological, or policy questions considered in preparing the authorization. The statement of basis must include, when applicable:

(a) a description of the proposed activity which is the subject of the authorization;

(b) the type and quantity of degradation which will result if the proposed activity is authorized;

(c) a summary of the basis for the conditions imposed in any preliminary decision, including references to applicable statutory or regulatory provisions;

(d) a summary and analysis of alternatives to the proposed activity;

(e) a description of the procedures for reaching a final decision on the draft authorization including:

(i) the beginning and ending dates of the comment period and the address where comments will be received;

(ii) procedures for requesting a hearing; and

(iii) any other procedures by which the public may participate in the final decision;

(f) name and telephone number of a person to contact for additional information; and

(g) reasons supporting the preliminary decision.

(4) The preliminary decision, accompanying statement of basis, and, if applicable, the statement of conditions imposed, must be publicly noticed and made available for public comment for at least 30 days but not more than 60 days prior to a final decision. In providing public notice, the department shall comply with the following:

(a) procedures for public notice set forth in ARM 17.30.1372; and

(b) procedures for the distribution of information set forth in ARM 17.30.1041.

(5) During the public comment period any interested person may submit written comments on the preliminary decision and may request a public hearing. A request for a public hearing must be in writing and must state the nature of the issues proposed to be raised in the hearing. The department shall hold a hearing if it determines that there may be a significant degree of public interest in the preliminary decision. Any public hearing conducted under this subsection is not a contested case hearing under the provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, MCA.

(6) Within 60 days after the close of the public comment period, the department shall issue a final decision accompanied by a statement of basis for the decision and, if applicable, a statement of conditions. The final decision and statement of basis will be prepared according to the requirements of (2) and (3) . In addition, the statement of basis for a final decision must include the following:

(a) which provisions, if any, of the preliminary decision have been changed in the final decision and the reasons for the change; and

(b) a description and response to all substantive comments on the preliminary decision raised during the public comment period or during any hearing.

(7) Upon issuing a final decision, the department shall notify the applicant and each person who has submitted written comments or requested notice of that decision. The notice must include reference to the procedures for appealing the decision. The final decision is effective upon issuance.

(8) The board hereby adopts and incorporates by reference ARM 17.30.1372, which sets forth procedures for issuing public notices of MPDES permit applications and hearings, and ARM 17.30.1041 which sets forth requirements for distribution and copying of public notices and permit applications. Copies of ARM 17.30.1372 and 17.30.1041 may be obtained from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

History: 75-5-301, 75-5-303, MCA; IMP, 75-5-303, MCA; NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2006 MAR p. 528, Eff. 2/24/06.

17.30.715   CRITERIA FOR DETERMINING NONSIGNIFICANT CHANGES IN WATER QUALITY

(1) The following criteria will be used to determine whether certain activities or classes of activities will result in nonsignificant changes in existing water quality due to their low potential to affect human health or the environment. These criteria consider the quantity and strength of the pollutant, the length of time the changes will occur, and the character of the pollutant. Except as provided in (2), changes in existing surface or ground water quality resulting from the activities that meet all the criteria listed below are nonsignificant, and are not required to undergo review under 75-5-303, MCA:

(a) activities that would increase or decrease the mean monthly flow of a surface water by less than 15 percent or the seven-day ten-year low flow by less than 10 percent;

(b) discharges containing carcinogenic parameters or parameters with a bioconcentration factor greater than 300 at concentrations less than or equal to the concentrations of those parameters in the receiving water;

(c) discharges containing toxic parameters, which will not cause changes that equal or exceed the trigger values in Department Circular DEQ-7. Whenever the change exceeds the trigger value, the change is not significant if the resulting concentration outside of a mixing zone designated by the department does not exceed 15 percent of the lowest applicable standard;

(d) changes in the concentration of nitrate in ground water which will not cause degradation of surface water if the sum of the predicted concentrations of nitrate at the boundary of any applicable mixing zone will not exceed the following values:

(i) 7.5 mg/L for nitrate sources other than domestic sewage;

(ii) 5.0 mg/L for domestic sewage effluent discharged from a conventional septic system;

(iii) 7.5 mg/L for domestic sewage effluent discharged from a septic system using level two treatment, as defined in ARM 17.30.702; or

(iv) 7.5 mg/L for domestic sewage effluent discharged from a conventional septic system in areas where the ground water nitrate level exceeds 5.0 mg/L primarily from sources other than human waste.

For purposes of this subsection (d), the word "nitrate" means nitrate as nitrogen; and

(e) changes in concentration of total inorganic phosphorus in ground water if water quality protection practices approved by the department have been fully implemented and if an evaluation of the phosphorus adsorptive capacity of the soils in the area of the activity indicates that phosphorus will be removed for a period of 50 years prior to a discharge to any surface waters;

(f) changes in the quality of water for any harmful parameter, nutrients listed at ARM 17.30.631, and parameters listed in Department Circular DEQ-12A, except as specified in (1)(g), for which water quality standards have been adopted other than carcinogenic, bioconcentrating, or toxic parameters, in either surface or ground water, if the changes outside of a mixing zone designated by the department are less than ten percent of the applicable standard and the existing water quality level is less than 40 percent of the standard;

(g) for nutrients in domestic sewage effluent discharged from a septic system that does not require an MPDES or MGWPCS permit, except as specified in (1)(d) and (e), which will not cause changes that equal or exceed the trigger values in Department Circular DEQ-7. Whenever the change exceeds the trigger value, the change is not significant if the changes outside of a mixing zone designated by the department are less than ten percent of the applicable standard and the existing water quality level is less than 40 percent of the standard;

(h) changes in the quality of water for any parameter for which there are only narrative water quality standards if the changes will not have a measurable effect on any existing or anticipated use or cause measurable changes in aquatic life or ecological integrity.

(2) Notwithstanding compliance with the criteria of (1), the department may determine that the change in water quality resulting from an activity which meets the criteria in (1) is degradation based upon the following:

(a) cumulative impacts or synergistic effects;

(b) secondary byproducts of decomposition or chemical transformation;

(c) substantive information derived from public input;

(d) changes in flow;

(e) changes in the loading of parameters;

(f) new information regarding the effects of a parameter; or

(g) any other information deemed relevant by the department and that relates to the criteria in (1).

(3) The department may determine that a change in water quality resulting from an activity or category of activities is nonsignificant based on information submitted by an applicant that demonstrates conformance with the guidance found in 75-5-301(5)(c), MCA. In making a determination under this subsection, the department shall allow for public comment prior to a decision pursuant to the public notice procedures in ARM 17.30.1372.

(4) If a court of competent jurisdiction declares 75-5-313, MCA, or any portion of that statute invalid, or if the United States Environmental Protection Agency disapproves 75-5-313, MCA, or any portion of that statute under 30 CFR 131.21, or if rules adopted pursuant to 75-5-313(6) or (7), MCA, expire and general variances are not available, then the significance criteria contained in (1)(g) are the significance criteria for total nitrogen and total phosphorus in surface water.

 

History: 75-5-301, 75-5-303, MCA; IMP, 75-5-303, MCA; NEW, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1040, Eff. 6/16/95; AMD, 1995 MAR p. 2256, Eff. 10/27/95; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2003 MAR p. 217, Eff. 2/14/03; AMD, 2004 MAR p. 725, Eff. 4/9/04; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.716   CATEGORIES OF ACTIVITIES THAT CAUSE NONSIGNIFICANT CHANGES IN WATER QUALITY
(1) In addition to the activities listed in 75-5-317 , MCA, the categories or classes of activities that are identified in this rule have been determined by the department to cause changes in water quality that are nonsignificant due to their low potential for harm to human health or the environment and their conformance with the guidance found in 75-5-301 , MCA.

(2) Except as provided in (5) , a subsurface wastewater treatment system (SWTS) that meets all of the criteria in (2) (a) and falls within one of the categories in (2) (b) is nonsignificant.

(a) The SWTS, including primary and replacement drainfields must meet all of the following criteria:

(i) the drainfield must be 1,000 feet or more (400 feet or more for lots that meet the criteria in (2) (b) (iv) ) from the nearest downgradient high quality state surface water that might be impacted. This distance may be reduced by 50% (to 500 and 200 feet, respectively) if the drainfield is pressure-dosed;

(ii) if the drainfield is not pressure-dosed:

(A) the soil percolation rate must be between 16 and 50 minutes per inch, if a percolation test has been conducted for the drainfield; and

(B) the natural soil beneath the absorption trench must contain at least six feet of very fine sand, sandy clay loam, clay loam, or silty clay loam;

(iii) the SWTS must serve no more than two single-family residences, or must serve a facility that produces non-residential, non-industrial wastewater with a wastewater design flow of 700 gallons per day or less;

(iv) there must be only one SWTS receiving wastewater from the lot;

(v) the SWTS must be located on the lot where wastewater is produced;

(vi) the SWTS must meet the current design standards defined in ARM Title 17, chapter 36, subchapter 3 and department Circular DEQ-4; and

(vii) for lots smaller than 20 acres, and for lots 20 acres and larger on which the drainfield is 500 feet or less from the downgradient property boundary, the background nitrate (as N) concentration in the shallowest ground water must be less than two mg/L.

(A) The department may require multiple ground water samples over a specified time period to determine whether seasonal variation of ground water nitrate concentrations may affect compliance with this requirement.

(b) The SWTS must fall within one of the following five categories:

(i) for category one:

(A) the lot size is two acres or larger;

(B) the percolation rate is 16 minutes per inch or slower, if a percolation test has been conducted for the drainfield;

(C) the natural soil beneath the absorption trench contains at least six feet of very fine sand, sandy clay loam, or finer soil; and

(D) the depth to bedrock and seasonally high ground water is eight feet or greater;

(ii) for category two:

(A) the drainfield is pressure-dosed;

(B) the lot size is two acres or larger;

(C) the percolation rate is six minutes per inch or slower, if a percolation test has been conducted for the drainfield;

(D) the natural soil beneath the absorption trench contains at least six feet of medium sand, sandy loam, or finer soil; and

(E) the depth to bedrock and seasonally high ground water is 12 feet or greater;

(iii) for category three:

(A) the drainfield is pressure-dosed;

(B) the lot size is one acre or larger;

(C) the subdivision consists of five lots or fewer;

(D) there is no existing or approved SWTS within 500 feet of the subdivision boundaries;

(E) the percolation rate is six minutes per inch or slower, if a percolation test has been conducted for the drainfield;

(F) the natural soil beneath the absorption trench contains at least six feet of medium sand, sandy loam, or finer soil; and

(G) the depth to bedrock and ground water is 100 feet or greater;

(iv) for category four:

(A) the total number of subdivision lots that were reviewed pursuant to 76-4-101 et seq., MCA, and were created in a county during the previous 10 state fiscal years is fewer than 150; and

(B) the lot is not within one mile of the city limits of an incorporated city or town with a population greater than 500 as determined by the most recent census; or

(v) for category five:

(A) the SWTS is a level II system;

(B) the lot size is two acres or larger;

(C) the bottom of the drainfield absorption trenches is not more than 18 inches below ground surface; and

(D) the depth to limiting layer (based on test pit data) is greater than six feet below ground surface.

(3) A mixing zone is not required for SWTSs that meet the criteria in this rule. However, SWTS drainfields must be located so that there is a 100-foot setback between existing and approved water supply wells and the boundaries of a 100-foot mixing zone that is provisionally designated for purposes of applying this setback.

(4) The department may require that on-site information be provided to verify any of the criteria required in this rule.

(5) Notwithstanding an activity's designation as nonsignificant in this rule, the department may review the activity for significance under the criteria in ARM 17.30.715(1) based upon the following:

(a) cumulative impacts or synergistic effects;

(b) secondary byproducts of decomposition or chemical transformation;

(c) substantive information derived from public input;

(d) changes in flow;

(e) changes in the loading of parameters;

(f) new information regarding the effects of a parameter; or

(g) any other information deemed relevant by the department and that relates to the criteria in ARM 17.30.715(1) .

(6) The department may determine that the categorical exclusion in (2) does not apply to lots within a specific geographic area. This determination must be based upon information submitted in a petition demonstrating that the categorical exclusions should not apply within that area.

(a) A petition submitted under this rule may be considered only if it is submitted by a local governing body, a local department or board of health, a local water quality district, or by either 10% or 20, whichever is fewer, of the landowners (or persons with a contract interest in land) within the affected geographic area.

(b) A petition submitted under this rule must contain the following information:

(i) a legal description of the petition area, which is the geographic area within which the categorical exclusions would not apply;

(ii) a detailed description of the soils, geology, and hydrogeology of the area described in (6) (b) (i) ;

(iii) a current listing from a title insurance company of the names and addresses of all persons who either own or have a contract interest in land within the petition area; and

(iv) data from ground water samples taken from wells that withdraw water from the uppermost aquifer underlying the petition area or from wells that withdraw water from the uppermost aquifer underlying an area within the same or adjacent county with similar climatic, soil, geologic, and hydrogeologic conditions and a density of individual sewage systems similar to that allowed in (2) (b) . The ground water data must demonstrate that one of the following conditions is met:

(A) nitrate as nitrogen concentrations exceed 5.0 mg/L in ground water samples from more than 25% of at least 30 wells that are not located within a standard mixing zone, as defined in ARM 17.30.517(1) (d) (viii) , for a septic system; or

(B) data from ground water samples collected at least three years apart from the same 15 wells indicate a statistically significant increase of greater than 1.0 mg/L in nitrate as nitrogen concentrations in the uppermost aquifer.

(c) Within 90 days after receipt of the information required in (6) (b) , the department shall issue a preliminary decision as to whether the petitioner has satisfied the requirements in (6) (b) , and describe the reasons for either granting or denying the petition. The preliminary decision must be mailed to the petitioner and to all landowners or persons with a contract interest in land within the petition area and must include the following information:

(i) a description of the petition area;

(ii) a summary of the basis for the preliminary decision including any modifications to the boundaries of the petition area;

(iii) a description of the procedures for public participation and of the opportunity to comment prior to the department's final decision on the petition;

(iv) the ending dates of the comment period and the address where comments will be received;

(v) procedures for requesting a hearing; and

(vi) the name and telephone number of a person to contact for additional information.

(d) Within 60 days after the close of the public comment period, the department shall issue a final decision and provide written notice of its decision to the petitioner and to each person who submitted written comments. The final decision must set forth the department's reasons for granting or denying the petition and must include a response to all substantive comments received by the department during the public comment period or during any hearing.

History: 75-5-301, 75-5-303, MCA; IMP, 75-5-303, 75-5-317, MCA; NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1997 MAR p. 2071, Eff. 11/18/97; AMD, 1998 MAR p. 936, Eff. 4/17/98; AMD, 2003 MAR p. 2274, Eff. 10/17/03; AMD, 2004 MAR p. 2579, Eff. 10/22/04; AMD, 2006 MAR p. 528, Eff. 2/24/06.

17.30.717   IMPLEMENTATION OF WATER QUALITY PROTECTION PRACTICES
(1) The owner of a new or increased source for which no water quality protection practices are approved by the department must design and submit a viable plan for implementation of the necessary water quality protection practices for department review, modification, and approval prior to implementation.
History: 75-5-301, 75-5-303, MCA; IMP, 75-5-303, 75-5-317, MCA; NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499.

17.30.718   CRITERIA FOR NUTRIENT REDUCTION FROM SUBSURFACE WASTEWATER TREATMENT SYSTEM (SWTS)
(1) This rule describes the information that must be submitted to obtain a department classification of a SWTS as level 1a, level 1b, or level 2, as those terms are defined in ARM 17.30.702. The nitrogen treatment efficiency that a SWTS is granted under this rule may be used as the effluent concentration in mixing zone calculations.

(2) A person seeking classification of a SWTS as level 1a, level 1b, or level 2 must submit the following background information to the department regarding the SWTS, in addition to any other information the department determines is necessary to verify the long-term treatment capabilities of the system:

(a) a description of the technology utilized by the system and the system components;

(b) engineering details regarding component sizes and materials specifications. Components include, but are not limited to, tanks, pumps, piping, control panels, and treatment media;

(c) operation and maintenance requirements;

(d) a description of the long-term reliability of the system components;

(e) a description of the installation process; and

(f) information verifying the reliability of the SWTS manufacturer and vendor. At a minimum, the vendor or manufacturer must either:

(i) have maintained an office in Montana for the past five years with a significant portion of its business related to design, construction, or installation of SWTSs; or

(ii) demonstrate an equivalent level of experience and reliability in Montana.

(3) A person seeking classification of a SWTS as level 1a, level 1b, or level 2 must submit monitoring information as provided in this section. The department may require additional information (particularly for technologies not included in department Circular DEQ-4) if necessary to verify the long-term reliable treatment capabilities of the system.

(a) The following background information must be submitted for each system monitored:

(i) system address (including legal description) ;

(ii) system start-up date;

(iii) description of current and historical system use, particularly during the performance monitoring period; and

(iv) monitoring data collected prior to and after the required performance monitoring period.

(b) For a SWTS that uses the effluent total nitrogen concentration to determine treatment efficiency, the monitoring must be from at least six systems. For a SWTS that uses the percent total nitrogen removed from measured raw sewage to determine treatment efficiency, the monitoring must be from at least three systems.

(c) For each SWTS that is monitored, at least one representative sample of raw sewage must be collected and analyzed for nitrate (as N) , nitrite (as N) , ammonia (as N) , total kjeldahl nitrogen (TKN) (as N) , biological oxygen demand (BOD) , and total suspended solids (TSS) . This information will be used to determine the raw sewage strength, which must not exceed residential strength. Chemical characterization of raw sewage must be based on one of the following representative samples:

(i) if the septic tank or other initial tank is used only for primary treatment of the sewage, the sample should be collected from that tank;

(ii) if the septic tank or other initial tank is used for treatment beyond primary treatment, the sample should be collected prior to start-up of the SWTS from that tank; or

(iii) another department-approved location.

(d) Each SWTS must be monitored for one year. At least one SWTS must be monitored for at least two years.

(e) Sampling frequency must be at least monthly (or equivalent frequency as approved by the department) during the winter months (November through April) , and at least quarterly during the summer months (May through October) . At least 50% of the monitoring data from each SWTS must be collected during the winter months.

(f) Each effluent sample must be analyzed for nitrate (as N) , nitrite (as N) , ammonia (as N) , TKN (as N) , BOD, TSS, and flow. If influent monitoring is conducted, each influent sample must be analyzed for TKN (as N) or total nitrogen. If the SWTS is experiencing significant infiltration and inflow, the department may require that influent samples be collected and analyzed during each effluent monitoring event to determine an accurate representation of the nitrogen-reducing capabilities of the system.

(g) Monitored SWTSs must be in Montana or located in a climate similar to Montana.

(h) The arithmetic mean of the available data will be used to determine compliance with this rule.

(i) All water analyses, except for temperature, must be conducted according to an EPA-approved method by an independent laboratory. Temperature measurements must be conducted on-site.

(j) The department may waive specific requirements in this rule if:

(i) the monitoring data are substantially equivalent to those requirements; or

(ii) the SWTS uses a proven nutrient reduction technology listed in DEQ-4 with proprietary variations.

(4) The results from a SWTS that is tested under the EPA/National Science Foundation (NSF) environmental technology verification (ETV) program may be used to demonstrate compliance with the requirements in (3) .

(5) In response to a request for classification of a SWTS as level 1a, level 1b, or level 2, the department may, after evaluating the SWTS under the criteria in this rule:

(a) approve the request;

(b) approve the request with modifications or conditions;

(c) deny the request; or

(d) deny the request pending submittal of additional information.

(6) If a SWTS that is classified as level 1a, level 1b, or level 2 is modified, the department may require that the SWTS be re-evaluated under the criteria in this rule.

(7) If subsequent data indicate that a SWTS classified under this rule is not reliable or cannot meet required nutrient reductions, the department may rescind the classification.

(8) All SWTSs classified as a level 1a, level 1b, or level 2 must have an operation and maintenance (O&M) contract in perpetuity for each system installed. The O&M contract will be required in the subdivision approval, or as a deed restriction if a subdivision plat approval is not required for the property. O&M must be conducted by the system manufacturer, an approved vendor, or other qualified personnel. The SWTS vendor or manufacturer must offer an O&M plan that meets the requirements of this section and the requirements in department Circular DEQ-4. At a minimum, the O&M contract must include:

(a) an on-site inspection of all the major components of the SWTS twice a year for the first two years after use of the system begins, and annually thereafter. Inspections of suspended growth systems must be twice as frequent. Inspection items must include verifying proper operation of the visual/audible alarm system required in (9) and determining whether any water treatment devices have been added, modified, or removed from the water system that discharges to the SWTS; and

(b) annual effluent sampling and analysis for nitrate (as N) , nitrite (as N) , ammonia (as N) , TKN (as N) , BOD, TSS, fecal coliform, specific conductance, and temperature. Effluent sampling must be conducted after all treatment is complete, but before discharge to the absorption area. All monitoring data collected from a type of SWTS may be requested by the department if the department has reason to believe that a type of SWTS that has been approved as a nutrient-reducing system is not meeting the required treatment efficiencies.

(9) All SWTSs classified as level 1a, level 1b, or level 2 must have the following features:

(a) a visual and/or audible alarm warning that indicates if a hydraulic malfunction is occurring in any portion of the treatment system prior to the absorption system; and

(b) a physical barrier that prevents the discharge of wastewater to the absorption system if a hydraulic malfunction is occurring in any portion of the treatment system prior to the absorption system.

History: 75-5-301, 75-5-303, MCA; IMP, 75-5-303, MCA; NEW, 2004 MAR p. 1384, Eff. 6/18/04.

17.30.1001   DEFINITIONS

The following definitions, in addition to those in 75-5-103, MCA, apply throughout this subchapter:

(1) "Beneficial use" means a use of ground water designated under the appropriate classification in ARM 17.30.1006.

(2) "DEQ-7" means Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" (October 2012 edition), which establishes water quality standards for toxic, carcinogenic, radioactive, bioconcentrating, nutrient, and harmful parameters.

(a) The board adopts and incorporates by reference Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" (October 2012 edition), which establishes water quality standards for toxic, carcinogenic, bioconcentrating, nutrient, radioactive, and harmful parameters.

(3) "Discharge" means the addition of any pollutant to waters of the state.

(4) "Discharge limitations" means limitations imposed on the design or operation of a source to control the entry of pollutants into ground water.

(5) "Existing source" means a source which is or has been in operation or on which construction has commenced on October 29, 1982.

(6) "Ground water" means water occupying the voids within a geologic stratum and within the zone of saturation.

(7) "Mixing zone" means a portion of ground water to which pollutants are discharged and in which otherwise applicable ground water standards may be exceeded.

(8) "Montana ground water quality standards" means the standards for ground water quality set forth in ARM 17.30.1006.

(9) "Montana pollutant discharge elimination system (MPDES)" means the system developed by the state of Montana for issuing permits for the discharge of pollutants from point sources into state surface waters pursuant to ARM Title 17, chapter 30, subchapter 12.

(10) "MGWPCS" means the Montana ground water pollution control system established in this subchapter.

(11) "MPDES permit" means any permit issued by the department pursuant to ARM Title 17, chapter 30, subchapter 13 to regulate the discharge of pollutants from point sources into state surface waters.

(12) "Nonpoint source" means a diffuse source of pollutants resulting from the activities of man over a relatively large area, the effects of which normally must be addressed or controlled by a management practice rather than by an engineered containment or structure.

(13) "Owner or operator" means any person who owns, leases, operates, controls, or supervises a source discharging pollutants to ground waters.

(14) "Reclaimed wastewater" is defined in 75-6-102, MCA.

(15) "Source" means any sewage system, treatment works, point source, disposal system, concentration of pollutants, or pond containing process wastes or pollutants used, employed, or operated so that the same results or under normal operating conditions may reasonably be expected to result in the discharge of pollutants to ground waters of the state.

(16) "UIC program" means the underground injection control program established in compliance with the federal Safe Drinking Water Act, 42 USCA 300f, et seq.

(17) "Unrestricted reclaimed wastewater" means wastewater that is treated to the standards for Class A-1 or Class B-1 reclaimed wastewater, as set forth in Appendix B of Department Circular DEQ-2, entitled "Montana Department of Environmental Quality Design Standards for Public Sewage Systems" (May 2012 edition).

(a) The board adopts and incorporates by reference Department Circular DEQ-2, entitled "Department of Environmental Quality Design Standards for Public Sewage Systems" (May 2012 edition). Copies are available from the Department of Environmental Quality, Technical and Financial Assistance Bureau, P.O. Box 200901, Helena, MT 59620-0901.

 

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-301, 75-5-401, MCA; NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1997 MAR p. 402, Eff. 2/25/97; AMD, 1999 MAR p. 94, Eff. 1/15/99; AMD, 1999 MAR p. 2257, Eff. 10/8/99; AMD, 1999 MAR p. 2275, Eff. 10/8/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2003 MAR p. 217, Eff. 2/14/03; AMD, 2004 MAR p. 725, Eff. 4/9/04; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2008 MAR p. 946, Eff. 5/9/08; AMD, 2010 MAR p. 1796, Eff. 8/13/10; AMD, 2012 MAR p. 2060, Eff. 10/12/12; AMD, 2012 MAR p. 2067, Eff. 10/12/12.

17.30.1001   DEFINITIONS

The following definitions, in addition to those in 75-5-103, MCA, apply throughout this subchapter:

(1) "Beneficial use" means a use of ground water designated under the appropriate classification in ARM 17.30.1006.

(2) "DEQ-7" means Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" (June 2019 edition), which establishes numeric water quality standards for toxic, carcinogenic, radioactive, bioconcentrating, nutrient, and harmful parameters.

(a) The board adopts and incorporates by reference Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" (June 2019 edition), which establishes numeric water quality standards for toxic, carcinogenic, bioconcentrating, nutrient, radioactive, and harmful parameters.

(3) "Discharge" means the addition of any pollutant to waters of the state.

(4) "Discharge limitations" means limitations imposed on the design or operation of a source to control the entry of pollutants into ground water.

(5) "Existing source" means a source which is or has been in operation or on which construction has commenced on October 29, 1982.

(6) "Ground water" means water occupying the voids within a geologic stratum and within the zone of saturation.

(7) "Mixing zone" means a portion of ground water to which pollutants are discharged and in which otherwise applicable ground water standards may be exceeded.

(8) "Montana ground water quality standards" means the standards for ground water quality set forth in ARM 17.30.1006.

(9) "Montana pollutant discharge elimination system (MPDES)" means the system developed by the state of Montana for issuing permits for the discharge of pollutants from point sources into state surface waters pursuant to ARM Title 17, chapter 30, subchapter 12.

(10) "MGWPCS" means the Montana ground water pollution control system established in this subchapter.

(11) "MPDES permit" means any permit issued by the department pursuant to ARM Title 17, chapter 30, subchapter 13 to regulate the discharge of pollutants from point sources into state surface waters.

(12) "Nonpoint source" means a diffuse source of pollutants resulting from the activities of man over a relatively large area, the effects of which normally must be addressed or controlled by a management practice rather than by an engineered containment or structure.

(13) "Owner or operator" means any person who owns, leases, operates, controls, or supervises a source discharging pollutants to ground waters.

(14) "Reclaimed wastewater" is defined in 75-6-102, MCA.

(15) "Source" means any sewage system, treatment works, point source, disposal system, concentration of pollutants, or pond containing process wastes or pollutants used, employed, or operated so that the same results or under normal operating conditions may reasonably be expected to result in the discharge of pollutants to ground waters of the state.

(16) "UIC program" means the underground injection control program established in compliance with the federal Safe Drinking Water Act, 42 USCA 300f, et seq.

(17) "Unrestricted reclaimed wastewater" means wastewater that is treated to the standards for Class A-1 or Class B-1 reclaimed wastewater, as set forth in Appendix B of Department Circular DEQ-2, entitled "Montana Department of Environmental Quality Design Standards for Public Sewage Systems" (2016 edition).

(a) The board adopts and incorporates by reference Department Circular DEQ-2, entitled "Department of Environmental Quality Design Standards for Public Sewage Systems" (2016 edition). Copies are available from the Department of Environmental Quality, Technical and Financial Assistance Bureau, P.O. Box 200901, Helena, MT 59620-0901.

 

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-301, 75-5-401, MCA; NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1997 MAR p. 402, Eff. 2/25/97; AMD, 1999 MAR p. 94, Eff. 1/15/99; AMD, 1999 MAR p. 2257, Eff. 10/8/99; AMD, 1999 MAR p. 2275, Eff. 10/8/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2003 MAR p. 217, Eff. 2/14/03; AMD, 2004 MAR p. 725, Eff. 4/9/04; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2008 MAR p. 946, Eff. 5/9/08; AMD, 2010 MAR p. 1796, Eff. 8/13/10; AMD, 2012 MAR p. 2060, Eff. 10/12/12; AMD, 2012 MAR p. 2067, Eff. 10/12/12; AMD, 2016 MAR p. 1008, Eff. 6/4/16; AMD, 2017 MAR p. 602, Eff. 5/13/17; AMD, 2019 MAR p. 826, Eff. 6/22/19.

17.30.1001   DEFINITIONS

The following definitions, in addition to those in 75-5-103, MCA, apply throughout this subchapter:

(1) "Beneficial use" means a use of ground water designated under the appropriate classification in ARM 17.30.1006.

(2) "DEQ-7" means Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" (June 2019 edition), which establishes numeric water quality standards for toxic, carcinogenic, radioactive, bioconcentrating, nutrient, and harmful parameters.

(a) The board adopts and incorporates by reference Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" (June 2019 edition), which establishes numeric water quality standards for toxic, carcinogenic, bioconcentrating, nutrient, radioactive, and harmful parameters.

(3) "Discharge" means the addition of any pollutant to waters of the state.

(4) "Discharge limitations" means limitations imposed on the design or operation of a source to control the entry of pollutants into ground water.

(5) "Existing source" means a source which is or has been in operation or on which construction has commenced on October 29, 1982.

(6) "Ground water" means water occupying the voids within a geologic stratum and within the zone of saturation.

(7) "Mixing zone" means a portion of ground water to which pollutants are discharged and in which otherwise applicable ground water standards may be exceeded.

(8) "Montana ground water quality standards" means the standards for ground water quality set forth in ARM 17.30.1006.

(9) "Montana pollutant discharge elimination system (MPDES)" means the system developed by the state of Montana for issuing permits for the discharge of pollutants from point sources into state surface waters pursuant to ARM Title 17, chapter 30, subchapter 12.

(10) "MGWPCS" means the Montana ground water pollution control system established in this subchapter.

(11) "MPDES permit" means any permit issued by the department pursuant to ARM Title 17, chapter 30, subchapter 13 to regulate the discharge of pollutants from point sources into state surface waters.

(12) "Nonpoint source" means a diffuse source of pollutants resulting from the activities of man over a relatively large area, the effects of which normally must be addressed or controlled by a management practice rather than by an engineered containment or structure.

(13) "Owner or operator" means any person who owns, leases, operates, controls, or supervises a source discharging pollutants to ground waters. 

(14) "Reclaimed wastewater" is defined in 75-6-102, MCA.

(15) "Source" means any sewage system, treatment works, point source, disposal system, concentration of pollutants, or pond containing process wastes or pollutants used, employed, or operated so that the same results or under normal operating conditions may reasonably be expected to result in the discharge of pollutants to ground waters of the state.

(16) "UIC program" means the underground injection control program established in compliance with the federal Safe Drinking Water Act, 42 USCA 300f, et seq.

(17) "Unrestricted reclaimed wastewater" means wastewater that is treated to the standards for Class A-1 or Class B-1 reclaimed wastewater, as set forth in Appendix B of Department Circular DEQ-2, entitled "Montana Department of Environmental Quality Design Standards for Public Sewage Systems" (2018 edition).

(a) The board adopts and incorporates by reference Department Circular DEQ-2, entitled "Department of Environmental Quality Design Standards for Public Sewage Systems" (2018 edition). Copies are available from the Department of Environmental Quality, Engineering Bureau, P.O. Box 200901, Helena, MT 59620-0901.

 

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-301, 75-5-401, MCA; NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1997 MAR p. 402, Eff. 2/25/97; AMD, 1999 MAR p. 94, Eff. 1/15/99; AMD, 1999 MAR p. 2257, Eff. 10/8/99; AMD, 1999 MAR p. 2275, Eff. 10/8/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2003 MAR p. 217, Eff. 2/14/03; AMD, 2004 MAR p. 725, Eff. 4/9/04; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2008 MAR p. 946, Eff. 5/9/08; AMD, 2010 MAR p. 1796, Eff. 8/13/10; AMD, 2012 MAR p. 2060, Eff. 10/12/12; AMD, 2012 MAR p. 2067, Eff. 10/12/12; AMD, 2016 MAR p. 1008, Eff. 6/4/16; AMD, 2017 MAR p. 602, Eff. 5/13/17; AMD, 2019 MAR p. 826, Eff. 6/22/19; AMD, 2019 MAR p. 836, Eff. 6/22/19.

17.30.1002   CLASSIFICATION OF GROUND WATER

This rule has been repealed.

History: 75-5-201, MCA; IMP, 75-5-301, MCA; NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, 1996 MAR p. 1499; REP, 1999 MAR p. 94, Eff. 1/15/99.

17.30.1003   GROUND WATER QUALITY STANDARDS

This rule has been repealed.

History: 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 1982 MAR p. 1937, Eff. 10/29/82; AMD, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, 1996 MAR p. 1499; REP, 1999 MAR p. 94, Eff. 1/15/99.

17.30.1005   APPLICABILITY OF GROUND WATER STANDARDS AND BASIS FOR CLASSIFICATIONS
(1) The standards in ARM 17.30.1006 establish the maximum allowable changes in ground water quality and are the basis for limiting discharges to ground water.

(2) The ground water standards may be exceeded within a mixing zone established pursuant to ARM 17.30.501 through 17.30.518.

(3) It is not necessary to treat discharges to a purer condition than the natural condition of the receiving water, within the meaning of 75-5-306 , MCA.

(4) The classifications of ground water are based on natural specific conductance as specified in ARM 17.30.1006.

History: 75-5-301, 80-15-105, 80-15-201, MCA; IMP, 75-5-301, 80-15-201, MCA; NEW, 1999 MAR p. 94, Eff. 1/15/99.

17.30.1006   CLASSIFICATIONS, BENEFICIAL USES, AND SPECIFIC STANDARDS FOR GROUND WATERS
(1) Class I ground waters are those ground waters with a natural specific conductance less than or equal to 1,000 microSiemens/cm at 25ºC.

(a) The quality of Class I ground water must be maintained so that these waters are suitable for the following beneficial uses with little or no treatment:

(i) public and private water supplies;

(ii) culinary and food processing purposes;

(iii) irrigation;

(iv) drinking water for livestock and wildlife; and

(v) commercial and industrial purposes.

(b) Except as provided in ARM 17.30.1005(2) , a person may not cause a violation of the following specific water quality standards in Class I ground water:

(i) the human health standards for ground water listed in DEQ-7;

(ii) for concentrations of parameters for which human health standards are not listed in DEQ-7, no increase of a parameter to a level that renders the waters harmful, detrimental, or injurious to the beneficial uses listed for Class I water. The department may use any pertinent credible information to determine these levels; and

(iii) no increase of a parameter that causes a violation of the nondegradation provisions of 75-5-303 , MCA.

(2) Class II ground waters are those ground waters with a natural specific conductance that is greater than 1,000 and less than or equal to 2,500 microSiemens/cm at 25ºC.

(a) The quality of Class II ground water must be maintained so that these waters are at least marginally suitable for the following beneficial uses:

(i) public and private water supplies;

(ii) culinary and food processing purposes;

(iii) irrigation of some agricultural crops;

(iv) drinking water for livestock and wildlife; and

(v) most commercial and industrial purposes.

(b) Except as provided in ARM 17.30.1005(2) , a person may not cause a violation of the following specific water quality standards for Class II ground water:

(i) the human health standards for ground water listed in DEQ-7;

(ii) for concentrations of parameters for which human health standards are not listed in DEQ-7, no increase of a parameter to a level that renders the waters harmful, detrimental, or injurious to the beneficial uses listed for Class II water. The department may use any pertinent credible information to determine these levels; and

(iii) no increase of a parameter that causes a violation of the nondegradation provisions of 75-5-303 , MCA.

(3) Class III ground waters are those ground waters with a natural specific conductance that is greater than 2,500 and less than or equal to 15,000 microSiemens/cm at 25ºC.

(a) The quality of Class III ground water must be maintained so that these waters are at least marginally suitable for the following beneficial uses:

(i) irrigation of some salt tolerant crops;

(ii) some commercial and industrial purposes;

(iii) drinking water for some livestock and wildlife; and

(iv) drinking, culinary, and food processing purposes where the specific conductance is less than 7,000 microSiemens/cm at 25ºC.

(b) Except as provided in ARM 17.30.1005(2) , a person may not cause a violation of the following specific water quality standards for Class III ground water:

(i) the human health standards listed in DEQ-7, except that the nitrate nitrogen and nitrate plus nitrite nitrogen standards listed in DEQ-7 do not apply to ground waters with a specific conductance equal to or greater than 7,000 microSiemens/cm at 25ºC. The nitrate nitrogen and nitrate plus nitrite nitrogen standards for these waters are each 50 mg/l; and

(ii) for concentrations of parameters for which human health standards for ground water are not listed in DEQ-7, no increase of a parameter to a level that renders the waters harmful, detrimental, or injurious to the beneficial uses listed for Class III water. The department may use any pertinent credible information to determine these levels.

(c) The nondegradation provisions of 75-5-303 , MCA, do not apply to Class III ground water.

(4) Class IV ground waters are those ground waters with a natural specific conductance greater than 15,000 microSiemens/cm at 25oC.

(a) The quality of Class IV ground waters must be maintained so that they are suitable for some industrial and commercial uses.

(b) Except as provided in (5) and ARM 17.30.1005(2) , a person may not cause a violation of the following specific water quality standards for Class IV ground water:

(i) the human health standards for parameters categorized as carcinogens in DEQ-7;

(ii) for concentrations of parameters in DEQ-7 which are not listed as carcinogens, no increase of a parameter to a level that would adversely affect existing beneficial uses. The nitrate nitrogen and nitrate plus nitrite nitrogen standards are each 50 mg/l;

(iii) for concentrations of parameters for which human health standards are not listed in DEQ-7, no increase of a parameter to a level that would adversely affect existing beneficial uses. The department may use any pertinent credible information to determine these levels.

(c) The nondegradation provisions of 75-5-303 , MCA, do not apply to Class IV ground water.

(5) For Class III or IV waters, where it can be demonstrated to the satisfaction of the department that the field hydraulic conductivity is less than 0.1 feet per day in an affected or potentially affected ground water zone, the nitrate nitrogen and nitrate plus nitrite nitrogen standards in (3) (b) (i) and (4) (b) (ii) do not apply, provided that all existing and anticipated uses of the ground waters are protected.

(6) The ground water quality standards for metal parameters are based on the dissolved portion (after filtration through a 0.45 micron filter) of the contaminant in the ground water. The ground water quality standards for other parameters in department Circular DEQ-7 are based upon unfiltered samples. For inorganic parameters, compliance with standards based on filtered samples must be assumed if analyses using the total recoverable method demonstrates compliance with the numerical standards.

History: 75-5-301, 80-15-105, 80-15-201, MCA; IMP, 75-5-301, 80-15-201, MCA; NEW, 1999 MAR p. 94, Eff. 1/15/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2003 MAR p. 217, Eff. 2/14/03; AMD, 2004 MAR p. 1617, Eff. 4/9/04; AMD, 2006 MAR p. 528, Eff. 2/24/06.

17.30.1007   SAMPLE COLLECTION, PRESERVATION, AND ANALYSIS METHODS

(1) Methods of sample collection, preservation, and sample analysis used to determine compliance with the standards in this subchapter must be in accordance with 40 CFR Part 136 "Guidelines Establishing Test Procedures for the Analysis of Pollutants" (July 2015), or the following:

(a) EPA-SW-846, Third Edition (November 1986), as amended by Updates I (July 1992), II (September 1994), IIA (August 1993), IIB (January 1995), and III (December 1996), and IIIA (May 1999) "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods";

(b) EPA-600/R-95/131 (August 1995), "Methods for the Determination of Organic Compounds in Drinking Water", Supplement III;

(c) EPA-600/R-93/100 (August 1993), "Methods for the Determination of Inorganic Substances in Environmental Samples";

(d) EPA-600/R-94/111 (May 1994), "Methods for the Determination of Metals in Environmental Samples," Supplement I; or;

(e) methods specifically approved by the department in a permit, license, authorization, or approval provided for by statute or rule.

(2) Analyses of parameters to determine compliance with ground water standards must comply with the required reporting values given in DEQ-7.

(3) The board adopts and incorporates by reference the following publications:

(a) EPA-SW-846, [Third Edition (November 1986), as amended by Updates I (July, 1992), II (September 1994), IIA (August 1993), IIB (January 1995), and III (December 1996)], "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods";

(b) EPA-600/R-95/131 (August 1995), "Methods for the Determination of Organic Compounds in Drinking Water", Supplement III;

(c) EPA-600/R-93/100 (August 1993), "Methods for the Determination of Inorganic Substances in Environmental Samples"; and

(d) EPA-600/R-94/111 (May 1994), "Methods for the Determination of Metals in Environmental Samples", Supplement I.

(4) Copies of the publications in (3)(a) through (d) are available at the Department of Environmental Quality, 1520 East Sixth Avenue, P.O. Box 200901, Helena, MT 59620-0901.

 

History: 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 1999 MAR p. 94, Eff. 1/15/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2003 MAR p. 217, Eff. 2/14/03; AMD, 2004 MAR p. 725, Eff. 4/9/04; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2008 MAR p. 946, Eff. 5/9/08; AMD, 2017 MAR p. 602, Eff. 5/13/17.

17.30.1010   MIXING ZONE
(1) Discharges of pollutants to ground waters may be granted a mixing zone by the department, provided the mixing zone is specifically identified and conforms with the requirements and procedures of ARM Title 17, chapter 30, subchapter 5.

(2) The board hereby adopts and incorporates by reference ARM Title 17, chapter 30, subchapter 5, which establishes requirements and procedures for the granting or denying of mixing zones by the department.

History: 75-5-301, MCA; IMP, 75-5-301, MCA; NEW, 1982 MAR p. 1937, Eff. 10/29/82; AMD, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1011   NONDEGRADATION
(1) Any ground water whose existing quality is higher than the established groundwater quality standards for its classification must be maintained at that high quality in accordance with 75-5-303 , MCA, and ARM Title 17, chapter 30, subchapter 7.
History: 75-5-301, 75-5-303, MCA; IMP, 75-5-303, MCA; NEW, 1982 MAR p. 1937, Eff. 10/29/82; AMD, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1022   EXCLUSIONS FROM PERMIT REQUIREMENTS

(1) In addition to the permit exclusions identified in 75-5-401, MCA, the following activities or operations are not subject to the permit requirements of ARM 17.30.1023, 17.30.1024, 17.30.1030 through 17.30.1033, 17.30.1040, and 17.30.1041:

(a) motor vehicle wrecking facilities and county motor vehicle graveyards licensed pursuant to Title 75, chapter 10, MCA;

(b) sources that obtain an MPDES permit pursuant to ARM Title 17, chapter 30, subchapter 13;

(c) public sewage systems that were reviewed and approved by the department prior to May 1, 1998, under Title 75, chapter 6, and ARM 17.38.101. However, this exclusion does not apply to systems with a design capacity greater than 5000 gallons per day, if the operator of the system requests a modification after May 1, 1998, or if the department determines that operation of the system has caused a violation of a statute or rule administered by the department after May 1, 1998;

(d) public sewage systems with a design capacity less than 5000 gallons per day, that are reviewed and approved by the department after May 1, 1998, under Title 75, chapter 6, MCA, and ARM 17.38.101;

(e) multi-family sewage disposal systems reviewed and approved by the department under Title 76, chapter 4, MCA, and multi-family sewage disposal systems reviewed and approved by a local government under Title 76, chapter 3, MCA, after May 1, 1998. However, this exclusion does not apply to aerobic package plant systems, mechanical treatment plants, and nutrient removal systems, which require a high degree of operation and maintenance, or systems which require monitoring pursuant to ARM 17.30.517(1)(d)(ix);

(f) multi-family sewage disposal systems reviewed and approved by the Department of Public Health and Human Services under Title 50, chapters 50, 51, and 52, MCA, and multi-family sewage disposal systems reviewed and approved by local boards of health under Title 50, chapter 2, MCA, after May 1, 1998. However, this exclusion does not apply to aerobic package plant systems, mechanical treatment plants, and nutrient removal systems, which require a high degree of operation and maintenance, or systems which require monitoring pursuant to ARM 17.30.517(1)(d)(ix);

(g) public sewage systems that apply reclaimed wastewater at agronomic rates to land as a method of disposal and that have been reviewed and approved by the department under Title 75, chapter 6, MCA, and ARM 17.38.101;

(h) public sewage systems that discharge unrestricted reclaimed wastewater and that have been reviewed and approved under Title 75, chapter 6, MCA, and ARM 17.38.101. Discharges of unrestricted reclaimed wastewater excluded under this rule remain subject to the monitoring and reporting requirements imposed as a condition of approval under ARM 17.38.101(8)(c).

(2) Notwithstanding the exclusions set forth in (1), all sources are subject to the provisions of ARM 17.30.1001 through 17.30.1003, 17.30.1010, 17.30.1011, and 17.30.1045. Furthermore, any excluded source which the department determines may be causing or is likely to cause violations of ground water quality standards may be required to submit monitoring information pursuant to 75-5-602, MCA.

History: 75-5-401, MCA; IMP, 75-5-401, 75-5-602, MCA; NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 1997 MAR p. 402, Eff. 2/25/97; AMD, 1998 MAR p. 1164, Eff. 5/1/98; AMD, 2012 MAR p. 2067, Eff. 10/12/12.

17.30.1023   PERMIT APPLICATIONS
(1) The owner or operator of any existing source not excluded under ARM 17.30.1022 discharging pollutants into state ground waters shall file an MGWPCS permit application within one year of October 29, 1982.

(2) The owner or operator of any source with an MGWPCS permit who proposes any modification, subsequent to October 29, 1982, which the department determines may result in violation of existing permit conditions shall file a new completed MGWPCS permit application no less than 180 days prior to the day on which it is desired to commence operation of the modified discharge.

(3) The owner or operator of any proposed source not excluded under ARM 17.30.1022 which may discharge pollutants into state ground waters shall file a completed MGWPCS permit application no less than 180 days prior to the day on which it is desired to commence operation of the source.

(4) All applications for an MGWPCS permit must be submitted on forms obtained from the department and must contain the following information as deemed necessary by the department:

(a) a specific site plan, indicating topography;

(b) location of treatment works and disposal systems;

(c) location of adjacent state surface waters;

(d) list of surface owners and lessees of land within one mile of the proposed source;

(e) location of water supply wells and springs within one mile;

(f) description of waste or process solutions to be contained on site; and

(g) information describing existing ground water quality and uses within one mile of the site.

(5) The department may require the submission of additional data and information with any MGWPCS permit application where warranted by the potential impacts of a source including, but not limited to, the following:

(a) specific design conditions and process descriptions, proposed alternatives, soil conditions, descriptions in areas proposed for location of treatment ponds and land disposal, geological conditions, ground water characteristics, local hydrogeology, discussion of potential for and measures to be taken for emergency and accidental spills, chemical and physical characteristics of process water and wastewater, nature of proposed pond sealants and linings.

(b) for industrial wastes, waste flow diagrams showing water and material balances, chemical additions, and waste volumes and concentrations before and after treatment including, but not limited to, oil and other floating material, biochemical oxygen demand, settleable and suspended solids, acids, alkalies, dissolved salts, organic materials, toxic materials, compounds producing taste and odor in water, and colored materials and dyes.

(c) proposed measures to be taken to provide alternative water supplies or treatment in the event any domestic, municipal, agricultural, or commercial/industrial well is adversely affected by the operation of the source; and

(d) a written evaluation of alternative disposal practices for maximization of environmental protection.

(6) Operators who have submitted permit applications for ground water discharge sources to the department under the MPDES permit program will be deemed to have complied with the requirements of this rule.

History: 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1024   REVIEW PROCEDURES
(1) No application will be processed by the department until all of the requested information is supplied and the application is complete. The department shall make a determination of the completeness of the information within 30 calendar days of receipt of an application.

(2) After receipt of a MGWPCS permit application and requested supplemental information, the department shall make a tentative determination with respect to issuance or denial of an MGWPCS permit. The tentative determination must be based on compliance or noncompliance with the requirements of this subchapter and Title 75, chapter 5, MCA.

(3) After making the tentative determination, the department shall take the following action:

(a) If the determination is to deny an MGWPCS permit, the department shall give written notice of the denial to the applicant, including a statement of reasons for the denial.

(b) If the determination is to issue an MGWPCS permit, the department shall prepare a draft MGWPCS permit, which must include the following:

(i) proposed discharge limitations and conditions;

(ii) monitoring and reporting requirements if any;

(iii) necessary schedules of compliance, including interim dates and requirements for meeting proposed discharge limitations or other special conditions.

(4) A public notice of every completed MGWPCS permit application must be circulated by the department in accordance with the procedures described in ARM 17.30.1040 to inform the public of the proposed discharge and of the tentative determination.

(5) The department shall provide a period of not less than 30 days following the date of the public notice during which time any person may submit written views or request a public hearing on the tentative determination. Any request for a public hearing must indicate the interest of the party filing the request and the reasons why a hearing is warranted.

(6) The department may hold a hearing on its own initiative or when it determines good cause exists to hold such a hearing upon request of any person. Public notice of a public hearing on a tentative determination must be given in accordance with ARM 17.30.1040.

(7) If a public hearing is not held pursuant to (6) , the department shall, within 30 days after termination of the comment period provided for in (5) , make a final determination on issuance or denial of an MGWPCS permit. All written comments submitted during the 30-day comment period must be retained by the department and considered in the formation of the final determination.

(8) If a public hearing is held on the tentative determination, the department shall make its final determination on the MGWPCS permit application within 60 days following the hearing. All comments recorded during the public hearing and written comments submitted during the 30-day comment period required in (5) must be retained by the department and considered in the formation of the final determination.

(9) After making the final determination on an MGWPCS permit application the department shall issue an MGWPCS permit or give written notice to the applicant of the department's decision to deny, including notice to the applicant of its right to appeal the denial to the board.

History: 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1030   GENERAL PERMIT CONDITIONS
All issued MGWPCS permits must contain general conditions including but not limited to, the following:

(1) All discharges of pollutants into state ground waters authorized by an MGWPCS permit must be consistent with the conditions of the permit; any sewerage system, treatment works or disposal system expansions, production increases or process modifications which may result in new or increased discharges of pollutants into state ground waters in violation of permit conditions must be reported to the department. After review of this information, the department will determine whether submission of a new or modified MGWPCS permit application is necessary.

(2) The discharge of pollutants to state ground waters more frequently than or at a level in excess of that identified and authorized by an MGWPCS permit is a violation of the conditions of the permit.

(3) An MGWPCS permit may be modified, suspended, or revoked in whole or in part during its term under provisions of 75-5-403 and 75-5-404 , MCA, for cause including, but not limited to, any of the following:

(a) violation of any conditions of the permit;

(b) obtaining an MGWPCS permit by misrepresentation or failure to disclose fully all relevant facts;

(c) a change in any condition or a violation of ground water standards or degradation of high quality ground waters caused by the discharge that requires either a temporary or permanent reduction or elimination of the authorized discharge; or

(d) a failure or refusal by the permittee to comply with the requirements of 75-5-602 , MCA.

(4) The department shall notify the permittee of any tentative determination that a permit should be modified pursuant to this section. The department shall provide a period of not less than 30 days following such notification during which time the permittee may submit its views regarding the tentative determination, which shall be considered in the formation of a final determination. The permittee may appeal any permit modification to the board of environmental review pursuant to 75-5-403 , MCA.

History: 75-5-401, MCA; IMP, 75-5-401, 75-5-403, 75-5-404, MCA; NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1031   SPECIAL PERMIT CONDITIONS
All issued MGWPCS permits must contain special conditions which will assure compliance with the ground water quality standards, giving consideration to the economics of waste treatment and prevention. These conditions may include, but are not limited to, the following:

(1) Authorization of discharges of pollutants into state ground waters.

(2) Discharge limitations and, if necessary, compliance schedules on each authorized discharge of pollutants into state ground waters.

(3) The basis of calculation of discharge limitations.

(4) The prohibition of certain discharges without prior approval from the department.

(5) Self-monitoring requirements for each authorized discharge including, but not limited to, the following:

(a) monitoring well configuration;

(b) pollutants to be monitored;

(c) frequency of monitoring, recording, and reporting;

(d) analytical and sampling methods to be utilized by the permittee;

(e) recording and reporting procedures to be utilized by the permittee; and

(f) procedures for reporting other considerations having an effect on authorized discharges or that may affect any of the conditions of the permit;

(g) the permittee will be required to maintain self-monitoring records for a minimum of three years.

(6) Procedures to be used to alleviate ground water pollution if pollution in violation of permit conditions or ground water standards is detected.

History: 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1032   DURATION OF PERMIT
(1) Every permit issued under this subchapter must have a fixed term not to exceed ten years.
History: 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1033   REISSUANCE OF PERMITS
(1) Any permittee who wishes to continue to discharge after the expiration date of his MGWPCS permit must request reissuance of his permit at least 90 days prior to its date of expiration.

(2) The request for reissuance of an MGWPCS permit must be in letter form and contain as a minimum the following information:

(a) the number of the issued MGWPCS permit and date of its issuance; and

(b) any past, present, or future changes in the quantity or quality of the authorized discharge not reflected in the conditions and terms of the issued MGWPCS permit.

(3) The department shall review each request for reissuance of an MGWPCS permit in light of the existing MGWPCS permit, information provided by the permittee with the request for reissuance, and other information available to the department to insure that the following conditions exist:

(a) That the permittee is in compliance with or has substantially complied with all the conditions and terms of the expiring MGWPCS permit.

(b) That the discharge is consistent with applicable discharge limitations and compliance schedules and ground water quality standards.

(c) That the department has up-to-date information on the permittee's production levels and waste treatment practices and the quantity, quality, and frequency of the permittee's discharge.

(4) Following the review of the request for reissuance of an MGWPCS permit and any other supplemental information requested by the department, the department shall make a tentative determination to reissue or refuse to reissue an MGWPCS permit.

(5) The processing procedures for MGWPCS permit applications described in ARM 17.30.1024(4) through (9) will apply to the reissuance of an MGWPCS permit.

History: 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1040   PUBLIC NOTICE
(1) Public notice of every completed MGWPCS application must be mailed to any person upon request and must be circulated within the geographic area of the proposed discharge. Circulation may include any of the following:

(a) posting in the post office and public places of the municipality nearest the premises of the applicant in which the discharge is located;

(b) posting near the entrance to the applicant's premises and in nearby places; or

(c) publishing in local newspapers and periodicals, or if appropriate, in a daily newspaper of general circulation.

(2) Public notice of any public hearing held pursuant to this subchapter must be circulated at least 30 days in advance of the hearing and at least as widely as was the notice for the MGWPCS application. Circulation must include at least the following:

(a) publication of notice in at least one newspaper of general circulation;

(b) distribution of notice to all persons and agencies receiving a copy of the notice for the MGWPCS application; and

(c) distribution to any person or group upon request.

History: 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1041   DISTRIBUTION OF INFORMATION
(1) The following governmental agencies must be included on a mailing list for public notice of MGWPCS applications and are exempted from a copying fee where copies of a draft permit, fact sheet, or any related documents are requested:

(a) United States Environmental Protection Agency;

(b) United States Bureau of Land Management;

(c) United States Bureau of Reclamation;

(d) United States Soil Conservation Service;

(e) United States Forest Service;

(f) United States Geological Survey;

(g) Montana Department of Natural Resources and Conservation;

(h) Montana Bureau of Mines and Geology;

(i) Montana Department of Fish, Wildlife and Parks;

(j) Montana Department of Agriculture;

(k) Montana Environmental Quality Council;

(l) any state or federal agency requesting an opportunity to participate in the MGWPCS permit review process;

(m) local health authorities in the county in which the source is located.

(2) Any state whose waters may be affected by the issuance of an MGWPCS permit shall be provided a copy, upon request, of the MGWPCS application, draft permit, or any related documents.

(3) Upon request, the department shall add the name of any person or group to a mailing list to receive copies of notices for all MGWPCS applications.

(4) Interested parties may request or inspect a copy of the draft MGWPCS permit, or any related documents. A reasonable copying fee will be charged for any of the aforementioned documents. The copying fee for the documents relating to any particular MGWPCS application will be included as part of the notice of application. A request for MGWPCS application documents will not be processed unless payment of the stated copying fee is included with the request.

(5) The department shall provide facilities for the inspection of all information relating to MGWPCS applications and forms, except reports, papers, or information determined to be confidential in accordance with 75-5-105 , MCA. A copying machine will be available to provide copies of this information at a reasonable fee.

History: 75-5-401, MCA; IMP, 75-5-105, 75-5-401, MCA; NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1042   GENERAL PERMITS
(1) The department may issue general MGWPCS permits pursuant to the provisions of ARM 17.30.1030.
History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1984 MAR p. 1804, Eff. 12/14/84; TRANS, from DHES, and AMD, 1996 MAR p. 1499.

17.30.1045   EMERGENCY POWERS OF THE DEPARTMENT

(1) This rule is applicable to spills or unanticipated discharges of pesticides, herbicides, other toxic substances or any other materials that would lower the quality of any ground waters of the state below Montana ground water quality standards.

(2) The owner, operator, or person responsible for a spill or unanticipated discharge must notify the department as soon as possible by contacting the Montana Disaster and Emergency Services 24-hour duty officer [(406)324-4777], and provide all relevant information about the spill.

(3) Pursuant to 75-5-621 and 75-5-622 , MCA, and depending on the severity of the spill or accidental discharge, the department may require the owner or operator to:

(a) take immediate remedial measures;

(b) monitor the direction, depth and rate of movement of any contaminated ground waters and of the spilled or discharged material;

(c) determine the probable impact, including the duration of impact, on existing water supply wells, springs, and anticipated future beneficial uses of the ground water supply impacted;

(d) determine the probable impact, including the duration of impact, on surface waters that may be affected by contaminated ground waters; or

(e) provide alternate water supplies to existing water uses disrupted by the spill or unanticipated discharge.

 

History: 75-5-201, MCA; IMP, 75-5-621, 75-5-622, MCA; NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1101   PURPOSE AND SCOPE
(1) This subchapter is intended to be applied together with ARM Title 17, chapter 30, subchapters 12 and 13 to establish a system for regulating discharges of potential pollutants from point source discharges of storm waters into surface waters.  This subchapter and subchapter 13 of ARM Title 17, chapter 30, which regulate storm water discharges through Montana pollutant discharge elimination system (MPDES) general permits, permit authorizations, and notices of intent, are intended to be compatible with the national pollutant discharge elimination system (NPDES) as established by the United States environmental protection agency pursuant to section 402 of the federal Clean Water Act (CWA) , 33 USC 1251, et seq.  Except as expressly modified in this subchapter, all requirements in ARM Title 17, chapter 30, subchapters 12 and 13 remain effective pertaining to point source discharges of storm water.

(2) The rules in this subchapter pertain to point source discharges of storm water that do not contain routine process wastewater and that do not contain non-storm water discharges except for the potential non-storm water discharges from MS4s that are listed in ARM 17.30.1111(6) (c) (iii) .  ARM Title 17, chapter 30, subchapter 13 contains additional requirements pertaining to point source discharges of storm water that routinely contain process wastewater or non-storm water discharges (other than the potential non-storm water discharges for MS4s listed in ARM 17.30.1111(6) (c) (iii) ) that are regulated using an individual MPDES permit.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 2003 MAR p. 219, Eff. 2/14/03.

17.30.1102   DEFINITIONS
In this subchapter, the following terms have the meanings or interpretations indicated below and shall be used in conjunction with and are supplemental to those definitions contained in 75-5-103, MCA. If not defined in this rule, terms used in this subchapter have the meanings set out in the definitions in ARM Title 17, chapter 30, subchapter 13.

(1) "Best management practices (BMPs) " means schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of state waters.  BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.

(2) "Discharge of a pollutant" and "discharge of pollutants" each means any addition of any pollutant or combination of pollutants to state waters from any point source. This definition includes additions of pollutants into water of the state from surface runoff that is collected or channeled by man and discharges through pipes, sewers, or other conveyances owned by a state, municipality, or other person that do not lead to a treatment works.  This term does not include the addition of pollutants by an indirect discharger.

(3) "Discharge monitoring report (DMR) " means the department uniform form for the reporting of self-monitoring results by permittees.

(4) "Facility or activity" means any MPDES point source or any other facility or activity (including land or appurtenances thereto) that is subject to regulation under the MPDES program.

(5) "Final stabilization" means the time at which all soil-disturbing activities at a site have been completed and a vegetative cover has been established with a density of at least 70% of the pre-disturbance levels, or equivalent permanent, physical erosion reduction methods have been employed.  Final stabilization using vegetation must be accomplished using seeding mixtures or forbs, grasses, and shrubs that are adapted to the conditions of the site.  Establishment of a vegetative cover capable of providing erosion control equivalent to pre-existing conditions at the site will be considered final stabilization.

(6) "General permit" means an MPDES permit issued under ARM 17.30.1341 authorizing a category of discharges under the Act within a geographical area.

(7) "Illicit discharge" means any discharge to a municipal separate storm sewer that is not composed entirely of storm water except discharges pursuant to an MPDES permit (other than the MPDES permit for discharges from the municipal separate storm sewer) and discharges resulting from fire fighting activities.

(8) "Infiltration" means water other than wastewater that enters a sewer system (including sewer service connections and foundation drains) from the ground through such means as defective pipes, pipe joints, connections, or manholes.  Infiltration does not include inflow.

(9) "Inflow" means water other than wastewater that enters a sewer system (including sewer service connections) from sources including, but not limited to, roof leaders, cellar drains, yard drains, area drains, drains from springs and swampy areas, manhole covers, cross connections between storm sewers and sanitary sewers, catch basins, cooling towers, storm waters, surface runoff, street wash waters, or drainage.  Inflow does not include infiltration.

(10) "Major municipal separate storm sewer outfall" or "major outfall" means a municipal separate storm sewer outfall that discharges from a single pipe with an inside diameter of 36 inches or more or its equivalent (discharge from a single conveyance other than circular pipe which is associated with a drainage area of more than 50 acres) ; or, for municipal separate storm sewers that receive storm water from lands zoned for industrial activity (based on comprehensive zoning plans or the equivalent) , an outfall that discharges from a single pipe with an inside diameter of 12 inches or more or from its equivalent (discharge from other than a circular pipe associated with a drainage area of two acres or more) .

(11) "Montana pollutant discharge elimination system (MPDES) " means the system developed by the board and department for issuing permits for the discharge of pollutants from point sources into state waters.  The MPDES is specifically designed to be compatible with the federal NPDES program established and administered by the EPA.

(12) "MS4" means a municipal separate storm sewer system.

(13) "Municipal separate storm sewer" means a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains) that discharges to surface waters and is:

(a) owned or operated by the state of Montana, a governmental subdivision of the state, a district, association, or other public body created by or pursuant to Montana law, including special districts such as sewer districts, flood control districts, drainage districts and similar entities, and designated and approved management agencies under section 208 of the federal Clean Water Act, which has jurisdiction over disposal of sewage, industrial wastes, storm water, or other wastes, and is:

(i) designed or used for collecting or conveying storm water;

(ii) not a combined sewer; and

(iii) not part of a publicly owned treatment works (POTW) as defined in ARM Title 17, chapter 30, subchapter 13.

(14) "Outfall" means a point source, as defined in this subchapter, at the point where a municipal separate storm sewer discharges to surface waters.  The term does not include open conveyances connecting two municipal separate storm sewers, or pipes, tunnels or other conveyances that connect segments of the same stream or other surface waters and that are used to convey surface waters.

(15) "Overburden" means any material of any nature, consolidated or unconsolidated, that overlies a mineral deposit or economically mineable geologic material (e.g., coal) , excluding topsoil or similar naturally occurring surface materials that are not disturbed by mining operations.

(16) "Owner or operator" is defined at 75-5-103, MCA.

(17) "Permit" means an authorization or license issued by EPA or an approved state to implement the requirements of this rule and 40 CFR Parts 123 and 124.  The term includes an NPDES general permit (ARM 17.30.1341) .  The term does not include any permit that has not yet been the subject of final agency action, such as a "draft permit" or a "proposed permit".

(18) "Point source" means any discernible, confined, or discrete conveyance including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel or other floating craft, from which pollutants are or may be discharged.  This term does not include return flows from irrigated agriculture or agricultural storm water runoff.

(19) "Pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal, and agricultural wastes discharged into water.  The terms "sewage," "industrial waste," and "other wastes" as defined in 75-5-103, MCA, are interpreted as having the same meaning as pollutant.

(20) "Process wastewater" means any water that, during manufacturing or processing, comes into direct contact with or results from the production or use of any raw material, intermediate product, finished product, byproduct, or waste product.

(21) "Runoff coefficient" means the fraction of total rainfall that will appear at a conveyance as runoff.

(22) "Site" means the land or water area where any facility or activity is physically located or conducted, including adjacent land used in connection with the facility or activity.

(23) "Small municipal separate storm sewer system" means:

(a) small MS4s, and portions of them, that are located in the following urbanized areas in Montana as determined by the latest decennial census by the United States census bureau:

(i) the city of Billings and Yellowstone County;   

(ii) the city of Missoula and Missoula County; and

(iii) the city of Great Falls and Cascade County;

(b) the following small MS4s serving a population of at least 10,000 as determined by the latest decennial census by the United States census bureau and that are located outside of an urbanized area:

(i) MS4s located in the city of Bozeman;

(ii) MS4s located in the city of Butte;

(iii) MS4s located in the city of Helena; and

(iv) MS4s located in the city of Kalispell;

(c) MS4s designated by the department pursuant to ARM 17.30.1107; and

(d) systems similar to separate storm sewer systems in municipalities, such as systems at military bases, large educational, hospital or prison complexes, and highways and other thoroughfares.   The term does not include separate storm sewers in very discrete areas, such as individual buildings.

(24) "Small MS4" means a small municipal separate storm sewer system.

(25) "Source" means any building, structure, facility, or installation from which there is or may be a discharge of pollutants.

(26) "State waters" is defined at 75-5-103, MCA.

(27) "Storm water" means storm water runoff, snow melt runoff, and surface runoff and drainage.

(28) "Storm water discharge associated with construction activity" means a discharge of storm water from construction activities including clearing, grading, and excavation that result in the disturbance of equal to or greater than one acre of total land area.   For purposes of these rules, construction activities include clearing, grading, excavation, stockpiling earth materials, and other placement or removal of earth material performed during construction projects.   Construction activity includes the disturbance of less than one acre of total land area that is a part of a larger common plan of development or sale if the larger common plan will ultimately disturb one acre or more.

(a) Regardless of the acreage of disturbance resulting from a construction activity, this definition includes any other discharges from construction activity designated by the department pursuant to ARM 17.30.1105(1 ) ( f) .

(b) For construction activities that result in disturbance of less than five acres of total land area, the acreage of disturbance does not include routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original purpose of the facility.

(c) For construction activities that result in disturbance of five acres or more of total land area, this definition includes those requirements and clarifications stated in (29) (a) , (b) , (d) and (e) .

(29) "Storm water discharge associated with industrial activity" means a discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant.

(a) For the categories of industries identified in this definition, the term includes, but is not limited to, storm water discharges from industrial plant yards; immediate access roads and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility; material handling sites; refuse sites; sites used for the application or disposal of process wastewaters (as defined in this subchapter) ; sites used for the storage and maintenance of material handling equipment; sites used for residual treatment, storage, or disposal; shipping and receiving areas; manufacturing buildings; storage areas (including tank farms) for raw materials, and intermediate and final products; and areas where industrial activity has taken place in the past and significant materials remain and are exposed to storm water.

(b) For the categories of industries identified in (e) (ix) of this definition, the term includes only storm water discharges from all the areas (except access roads and rail lines) that are listed in the previous sentence where material handling equipment or activities, raw materials, intermediate products, final products, waste materials, by-products, or industrial machinery are exposed to storm water.

(c) For the purposes of this definition, material handling activities include the storage, loading and unloading, transportation, or conveyance of any raw material, intermediate product, finished product, by-product, or waste product.  The term excludes areas located on plant lands separate from the plant's industrial activities, such as office buildings and accompanying parking lots as long as the drainage from the excluded areas is not mixed with storm water drained from the above described areas.

(d) Industrial facilities (including industrial facilities that are federally, state, or municipally owned or operated that meet the description of the facilities listed in (e) (i) through (ix) and (30) ) include those facilities designated under the provisions of ARM 17.30.1105(1) (f) .

(e) The following categories of facilities are considered to be engaging in "industrial activity" for the purposes of this definition:

(i) facilities subject to storm water effluent limitations guidelines, new source performance standards, or toxic pollutant effluent standards under 40 CFR subchapter N (except facilities with toxic pollutant effluent standards that are exempted under category (e) (ix) of this definition) ;

(ii) facilities classified as standard industrial classifications 24 (except 2434) , 26 (except 265 and 267) , 28 (except 283) , 29, 311, 32 (except 323) , 33, 3441, 373;

(iii) hazardous waste treatment, storage, and disposal facilities, including those that are operating under interim status or a permit under subtitle C of the federal Resource Conservation and Recovery Act (RCRA) ;

(iv) landfills, land application sites, and open dumps that receive or have received any industrial wastes (waste that is received from any of the facilities described under this definition, or under the definitions of "storm water discharge associated with mining and oil and gas activities," and "storm water discharge associated with construction activity" that will result in construction-related disturbance of five acres or more of total land area) including those that are subject to regulation under subtitle D of RCRA;

(v) facilities involved in the recycling of materials, including metal scrapyards, battery reclaimers, salvage yards, and automobile junkyards including, but not limited to, those classified as standard industrial classification 5015 and 5093;

(vi) steam electric power generating facilities, including coal handling sites;

(vii) transportation facilities classified as standard industrial classifications 40, 41, 42 (except 4221-25) , 43, 44, 45, and 5171, which have vehicle maintenance shops, equipment cleaning operations, or airport deicing operations.  Only those portions of a facility that are involved in vehicle maintenance

(including vehicle rehabilitation, mechanical repairs, painting, fueling, and lubrication) , equipment cleaning operations, airport deicing operations, or that are otherwise identified under this definition are associated with industrial activity;

(viii) treatment works treating domestic sewage or any other sewage sludge or wastewater treatment device or system, which is used in the storage, treatment, recycling, or reclamation of municipal or domestic sewage, including land dedicated to the disposal of sewage sludge that is located within the confines of the facility, and which has a design flow of 1.0 mgd or more or is required to have an approved pretreatment program under 40 CFR Part 403.  Not included are farm lands, domestic gardens, and lands used for sludge management where sludge is beneficially reused and that are not physically located in the confines of the facility, and areas that are in compliance with section 405 of the federal Clean Water Act; and

(ix) facilities under standard industrial classifications 20, 21, 22, 23, 2434, 25, 265, 267, 27, 283, 285, 30, 31 (except 311) , 323, 34 (except 3441) , 35, 36, 37 (except 373) , 38, 39, and 4221-25, (and which are not otherwise included within (e) (i) through (e) (viii) of this definition) .

(30) "Storm water discharge associated with mining and oil and gas activity" means the same as the definition for "storm water discharges associated with industrial activity" except that the term pertains only to discharges from facilities classified as standard industrial classifications 10 through 14 (mineral industry) that discharge storm water contaminated by contact with or that has come into contact with, any overburden, raw material, intermediate products, finished products, byproducts, or waste products located on the site of such operations.  Such facilities include active and inactive mining operations (except for areas of coal mining operations no longer meeting the definition of a reclamation area under 40 CFR 434.11(1) because the performance bond issued to the facility by the appropriate SMCRA authority has been released, and except for areas of non-coal mining operations that have been released from applicable state or federal reclamation requirements after December 17, 1990) ; and oil and gas exploration, production, processing, or treatment operations; and transmission facilities.  "Inactive mining operations" are mining sites that are not being actively mined but that have an identifiable owner/operator, but do not include sites where mining claims are being maintained prior to disturbances associated with the extraction, beneficiation, or processing of mined materials, nor sites where minimal activities are undertaken for the sole purpose of maintaining a mining claim.

(31) "Storm water pollution prevention plan (SWPPP) " means a document developed to help identify sources of pollution potentially affecting the quality of storm water discharges associated with a facility or activity, and to ensure implementation of measures to minimize and control pollutants in storm water discharges associated with a facility or activity.  The department determines specific requirements and information to be included in a SWPPP based on the type and characteristics of a facility or activity, and on the respective MPDES permit requirements.

(32) "Surface waters" means any waters on the earth's surface including, but not limited to, streams, lakes, ponds, and reservoirs, and irrigation and drainage systems discharging directly into a stream, lake, pond, reservoir, or other surface water.  Water bodies used solely for treating, transporting, or impounding pollutants shall not be considered surface water.

(33) "Total maximum daily load" or "TMDL" is defined at 75-5-103, MCA.

(34) "Uncontrolled sanitary landfill" means a landfill or open dump, whether in operation or closed, that does not meet the requirements for runon or runoff controls established pursuant to subtitle D of the Montana Solid Waste Disposal Act.

(35) "Waste load allocation" means the portion of a receiving water's loading capacity that is allocated to one of its existing or future point sources.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 2003 MAR p. 219, Eff. 2/14/03.

17.30.1105   PERMIT REQUIREMENT
(1) Any person who discharges or proposes to discharge storm water from a point source must obtain coverage under an MPDES general permit or another MPDES permit for discharges:

(a) associated with construction activity;

(b) associated with industrial activity;

(c) associated with mining and oil and gas activity;

(d) from small municipal separate storm sewer systems that are identified in ARM 17.30.1102 or designated pursuant to ARM 17.30.1107;

(e) for which the department determines that storm water controls are needed based on wasteload allocations that are part of TMDLs that address the pollutants of concern; and

(f) that the department determines are contributing to a violation of a water quality standard or are significant contributors of pollutants to surface waters.

(2) For point source discharges of storm water identified in (1) (a) through (f) that are routinely composed entirely of storm water, authorization under an MPDES general permit must be obtained pursuant to this subchapter, unless the discharge is covered under an individual MPDES permit that is issued pursuant to ARM Title 17, chapter 30, subchapter 13 to the same owner or operator for other point source discharges.

(3) For point source discharges of storm water identified in (1) (a) through (f) that are not routinely composed of storm water, and that routinely discharge pollutants, coverage under an individual MPDES storm water permit or under an MPDES general permit must be obtained pursuant to ARM Title 17, chapter 30, subchapter 13.

(4) Any person who discharges or proposes to discharge storm water combined with municipal sewage from a point source shall obtain MPDES permits in accordance with the procedures set out in ARM Title 17, chapter 30, subchapter 13 and is not subject to the provisions of this subchapter.

(5) The department may waive the permit requirements in this subchapter for a storm water discharge associated with construction activity that disturbs less than five acres of total land area if either of the following two conditions exist:

(a) the value of the rainfall erosivity factor ("R" in the revised universal soil loss equation) is less than five during the period of construction activity.  The period of construction activity extends through to final stabilization.  The rainfall erosivity factor must be determined using a state-approved method.  The owner or operator must certify to the department that the construction activity will take place only during a period when the value of the rainfall erosivity factor is less than five.  If unforeseeable conditions occur that are outside of the control of the waiver applicant, and which will extend the construction activity beyond the dates initially applied for, the owner or operator shall reapply for the waiver or obtain authorization under the general permit for storm water discharges associated with construction activity.  The waiver reapplication or notice of intent must be submitted within two business days after the unforeseeable condition becomes known; or

(b) storm water controls are not needed based on a TMDL approved or established by EPA that addresses the pollutants of concern or, for non-impaired waters that do not require TMDLs, an equivalent analysis that determines allocations for construction sites disturbing less than five acres of total land area for the pollutants of concern or that determines that such allocations are not needed to protect water quality based on consideration of existing in-stream concentrations, expected growth in pollutant contributions from all sources, and a margin of safety.  For the purposes of this rule, pollutants of concern include sediment, or a parameter that addresses sediment (such as total suspended solids, turbidity or siltation) , and any other pollutant that has been identified as a cause of impairment of any water body that will receive a discharge from the construction activity.  The operator shall certify to the department that the construction activity will take place, and that storm water discharges will occur, within the drainage area addressed by the TMDL or equivalent analysis.

(6) Prior to October 1, 1994, discharges composed entirely of storm water are not required to obtain an MPDES permit except for:

(a) discharges with respect to which an individual MPDES permit has been issued prior to February 4, 1987; and

(b) discharges listed in (1) (a) , (b) , (c) , and (f) , except that, for discharges listed in (1) (a) , this requirement applies only to storm water discharges associated with construction activity that will result in construction-related disturbance of five acres or more of total land area.

(7) For storm water discharges designated by the department under (1) (e) and (f) , the owner or operator shall apply for a permit within 180 days of receipt of the department's notice of designation, unless the department grants a later date.

(8) Except as provided in (9) , if not authorized under a storm water general permit, a permit application or notice of intent must be submitted to the department for stormwater discharges existing as of October 1, 1992, that are associated with:

(a) industrial activity;

(b) mining and oil and gas activity; and

(c) construction activity that will result in construction-related disturbances of five acres or more of total land area and for which storm water discharges are not authorized by a storm water general permit.

(9) For discharges identified in (8) (a) through (c) that are not authorized by a general or individual MPDES permit, and which are from a facility, other than an airport, powerplant, or uncontrolled sanitary landfill, that is owned or operated by a municipality with a population of under 100,000, the permit requirements in this subchapter are effective beginning March 10, 2003.

(10) The eligibility of an owner or operator of a discharge from an MS4 for funding under Title II, Title III, or Title VI of the federal Clean Water Act shall not be affected by the regulation or nonregulation of the MS4 under this subchapter.

(11) A person may petition the department to require an MPDES permit for a discharge that is composed entirely of storm water that contributes to a violation of a water quality standard or is a significant contributor of pollutants to surface waters.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 2003 MAR p. 219, Eff. 2/14/03.

17.30.1106   EXCLUSIONS

(1) In addition to the exclusions stated in ARM 17.30.1310, the following storm water discharges do not require MPDES permits:

(a) point source discharges of storm water to ground water as provided in 75-5-401(5)(g), MCA;

(b) existing or new discharges composed entirely of storm water from oil or gas exploration, production, processing, or treatment operations, or transmission facilities, unless the operation or facility:

(i) has had, at any time since November 16, 1987, a discharge of storm water resulting in the discharge of a reportable quantity for which notification is or was required pursuant to 40 CFR 110.6, 40 CFR 117.21, or 40 CFR 302.6; or

(ii) contributes to a violation of a water quality standard;

(c) existing or new discharges of storm water runoff from mining operations, from oil and gas exploration, production, processing, treatment operations, or transmission facilities, if such existing or new discharges are composed entirely of flows which are from conveyances or systems of conveyances including, but not limited to, pipes, conduits, ditches, and channels, used for collection and conveying precipitation runoff and which have not come into contact with any overburden, raw material, intermediate products, finished product, byproduct, or waste products located on the site of such operation. For purposes of this rule only, "oil and gas exploration, production, processing, treatment operations or transmission facilities" means all field activities or operations associated with exploration, production, processing, or treatment operations or transmission facilities, including activities necessary to prepare a site for drilling and for the movement and placement of drilling equipment, whether or not such field activities or operations may be considered to be construction activity.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 2003 MAR p. 219, Eff. 2/14/03; AMD, 2014 MAR p. 3056, Eff. 12/25/14.

17.30.1107   DESIGNATION PROCEDURES: SMALL MS4S
(1) For purposes of this rule, "designation" means a determination by the department that an MS4 is subject to the permit requirements of this subchapter.

(2) The department shall designate an MS4 other than those identified in ARM 17.30.1102(23) if a discharge from the MS4 results in, or has the potential to result in, exceedances of water quality standards, including impairment of designated uses, or has other significant water quality impacts, including habitat and biological impacts.  In making a designation under this subsection, the department shall:

(a) consider whether the MS4:

(i) has discharges to a listed impaired waterbody that is on the most recent 303(d) list;

(ii) has high growth or growth potential;

(iii) has high population density;

(iv) is contiguous to an urbanized area; and

(v) is a significant contribution of pollutants to surface waters; and

(b) place a high priority on evaluating small MS4s that have a combined permanent and seasonal population of over 10,000, as determined by the latest decennial census by the United States census bureau plus the number of commercially advertised bedroom accommodations that will allow for an overnight stay, as listed through the chamber of commerce, or any local resort or property management company.

(3) The department shall designate an MS4 other than those identified in ARM 17.30.1102(23) if the MS4 contributes substantially to the pollutant loadings of a physically interconnected municipal separate storm sewer that is a regulated small MS4 under these rules.

(4) The department may designate an MS4 other than those identified in ARM 17.30.1102(23) pursuant to the criteria in ARM 17.30.1105(1) (e) or (f) .

(5) The department may designate discharges from municipal separate storm sewers on a system-wide or on a jurisdiction-wide basis.  In making its designation the department may consider the following factors:

(i) the location of the discharge with respect to surface waters;

(ii) the size of the discharge;

(iii) the quantity and nature of the pollutants discharged to surface waters; and

(iv) other relevant factors.

(6) Upon petition, the department may designate an MS4 under the appropriate criteria in these rules.  The department shall make a final determination on a petition to designate a small MS4 within 180 days after receipt of the petition.

(7) An MS4 may petition the department to reduce the census estimates of the population served by the MS4 to account for storm water discharges to combined sewers, as defined in 40 CFR 35.2005(b) (11) , that are treated in a publicly owned treatment works.  In municipalities in which combined sewers are operated, the census estimates of population may be reduced in proportion to the fraction, based on estimated lengths, of the length of combined sewers over the sum of the length of combined sewers and municipal separate storm sewers.  The MS4 shall submit the MPDES permit number associated with each discharge point and a map indicating areas served by combined sewers and the location of any combined sewer overflow discharge point.

(8) The department may re-evaluate its designation of an MS4 if circumstances change or if new information becomes available.

(9) The department may waive the permit requirements of this subchapter for an MS4 identified in ARM 17.30.1102(23) if the MS4 demonstrates to the department that the MS4 has existing storm water quality control programs that are equivalent to the six minimum control measures set out in ARM 17.30.1111.

(10) The department may waive the permit requirements of this subchapter for an MS4, which would otherwise be regulated because it is located within an urbanized area, if the MS4 serves a population of under 1,000 and both of the following criteria are met:

(a) discharges from the MS4 are not contributing substantially to the pollutant loadings of a physically interconnected regulated MS4; and

(b) storm water controls are not needed for the MS4 based on wasteload allocations that are part of an EPA-approved or established TMDL that addresses the pollutants of concern.

(11) The department may waive the permit requirements of this subchapter for an MS4, which would otherwise be regulated because it is located within an urbanized area, if the MS4 serves a population of between 1,000 and 10,000 and both of the following criteria are met:

(a) the department has evaluated all surface waters, including small streams, tributaries, lakes, and ponds, that receive a discharge from the MS4 and has determined that storm water controls are not needed based on wasteload allocations that are part of an EPA-approved or established TMDL that addresses the pollutants of concern or, if a TMDL has not been developed or approved, an equivalent analysis that determines sources and allocations for the pollutants of concern;

(i) for purposes of this subsection, pollutants of concern include biochemical oxygen demand (BOD) , sediment or a parameter that addresses sediment (such as total suspended solids, turbidity, or siltation) , pathogens, oil and grease, and any pollutant that has been identified as a cause of impairment of any water body that will receive a discharge from the MS4; and

(b) the department has determined that current and future discharges from the MS4 do not have the potential to result in exceedances of water quality standards, including impairment of designated uses, or other significant water quality impacts, including habitat and biological impacts.

(12) The department shall at least once every five years review all waivers granted under this rule to determine whether any of the information required for granting the waiver has changed.  The department shall consider a petition to review a waiver if the petitioner provides evidence that the information required for granting the waiver has substantially changed.

(13) The department may designate an MS4 for which the permit requirement is waived under this rule if circumstances change or new information becomes available.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 2003 MAR p. 219, Eff. 2/14/03.

17.30.1110   APPLICATION PROCEDURES: GENERAL
(1) This rule does not apply to storm water discharges associated with construction activity.  The application procedures for such discharges are set out in ARM 17.30.1115.

(2) When a facility or activity is owned by one person but is operated by another person, it is the operator's duty to obtain a permit.

(3) Any person proposing a new point source discharge of storm water shall submit a complete application, as provided in (5) , at least 30 days before the date on which the discharge is to commence, unless permission for a later date has been granted by the department.  Persons proposing a new discharge are encouraged to submit their applications well in advance of the 30-day requirement to avoid delay.

(4) Permittees of point source discharges of storm water with currently effective authorizations under a general permit shall submit a new application 30 days before the existing permit expires.  The department may extend this deadline but may not extend it beyond the permit expiration date.

(5) The department may not issue an authorization under a general permit until it has received a complete application.

(a) An application for authorization under a general permit is complete when the department receives:

(i) a department application form, with the information required in (6) , and a completed SWPPP.  Both the application and SWPPP must be signed as provided in ARM 17.30.1323; and

(ii) the permit fee required in ARM 17.30.201.

(b) The completeness of any application for a permit must be judged by the department independently of the status of any other permit application or permit for the same facility or activity.

(c) A SWPPP is not required for small MS4s.

(6) Applicants shall provide the following information to the department, using the application form provided by the department:

(a) a description of the nature of the business or activity that requires authorization for a point source discharge of storm water under an MPDES general permit;

(b) the name and mailing address of the owner or operator;

(c) the location of the facility or activity for which the application is submitted;

(d) a facility or activity contact person and telephone number;

(e) for industrial or mining and oil and gas activities, the standard industrial classification (SIC) codes that best reflect the principal products or services provided by the facility;

(f) a description of point source discharges of storm water including an indication of drainage patterns and receiving surface waters;

(g) a listing of all permits and construction approvals received or applied for from state or federal regulatory agencies;

(h) a copy of a USGS topographic quadrangle map extending one mile beyond the property boundaries of the point source discharge of storm water, depicting the facility or activity boundaries and major drainage patterns and receiving surface waters;

(i) the signature of the certifying official under ARM 17.30.1323; and

(j) any other information requested by the department.

(7) Applicants shall submit to the department a copy of the facility or activity SWPPP that provides all information requested under the SWPPP requirements as stated in the respective general permit.

(8) Applicants shall submit to the department a certification that all point source discharges of storm water have been tested or evaluated for the presence of non-storm water discharges (other than the potential non-storm water discharges for MS4s listed in ARM 17.30.1111(6) (c) (iii) ) that are not covered by an MPDES permit.  If storm water sampling and analytical testing was performed as a basis for this certification, the certification must include a description of any analytical test method used, the date of any testing, and the on-site drainage points that were sampled.  If a contract laboratory or consulting firm performed analyses that generated quantitative data upon which conclusions and resultant determinations are based for regulated point source discharges of storm water and potential pollutant concentrations, the identity of each laboratory or firm and the analyses performed must be provided.

(9) In addition to the information reported on the application form, applicants shall provide to the department, at its request, such other information as the department determines is reasonably necessary to assess the discharges of the facility and to determine whether to authorize the discharge under an MPDES individual or general permit.

(10) Applicants shall keep records of all data used to complete permit applications and any supplemental information submitted under this subchapter for a period of at least three years from the date the application is signed.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 2003 MAR p. 219, Eff. 2/14/03.

17.30.1111   APPLICATION PROCEDURES, PERMIT REQUIREMENTS: SMALL MS4S

(1) Owners or operators of small MS4s shall apply for authorization under an MPDES permit as provided in ARM 17.30.1110 and this rule.

(a) For small MS4s in existence on February 14, 2003, the permit requirements in this subchapter are effective beginning March 10, 2003.

(b) The owner or operator of a small MS4 that is designated after February 14, 2003 by the department under ARM 17.30.1107 shall apply for authorization within 180 days of notice by the department, unless the department grants a later date.

(2) Small MS4s shall complete an application for authorization in accordance with the requirements in ARM 17.30.1110. The application must also include the following information:

(a) a description of the BMPs that the MS4 will implement for each of the six storm water minimum control measures set out in (6) ;

(b) identification of the measurable goals for each of the BMPs including, as appropriate, the months and years in which the MS4 will undertake required actions, including interim milestones and the frequency of the action; and

(c) the person or persons responsible for implementing or coordinating the storm water management program.

(3) A small MS4 may file its own application or may jointly submit an application with other municipalities or governmental entities. If a small MS4 intends to share responsibilities for meeting the minimum control measures with other municipalities or governmental entities, the small MS4 shall submit an application that describes which minimum control measures it will implement and identify the entities that will implement the other minimum control measures within the area served by the small MS4.

(4) The general permit may include other steps necessary to obtain permit authorization.

(5) The MPDES permit for small MS4s must require at a minimum that MS4s develop, implement, and enforce a storm water management program designed to reduce the discharge of pollutants from the MS4 to the maximum extent practicable (MEP) , to protect water quality, and to satisfy the appropriate water quality requirements of the federal Clean Water Act. The storm water management program must include the minimum control measures described in (6) .

(a) For purposes of this rule, narrative effluent limitations requiring implementation of BMPs are the most appropriate form of effluent limitations when designed to satisfy technology requirements (including reductions of pollutants to the maximum extent practicable) and to protect water quality. Implementation of BMPs consistent with the provisions of the storm water management program required pursuant to this rule and the provisions of the permit shall constitute compliance with the standard of reducing pollutants to the maximum extent practicable. The department shall specify a time period of up to five years from the date of the permit or permit authorization for the MS4 to develop and implement the program.

(6) Minimum control measures include, but are not limited to:

(a) public education and outreach on storm water impacts. A small MS4 shall implement a public education program to distribute educational materials to the community or conduct equivalent outreach activities about the impacts of storm water discharges on water bodies and the steps that the public can take to reduce pollutants in storm water runoff;

(b) public involvement/participation. A small MS4 shall, at a minimum, comply with state and local public notice requirements when implementing a public involvement/ participation program;

(c) illicit discharge detection and elimination measures that must include the following:

(i) a small MS4 shall develop, implement and enforce a program to detect and eliminate illicit discharges into the small MS4;

(ii) a small MS4 shall:

(A) develop, if not already completed, a storm sewer system map, showing the location of all outfalls and the names and locations of all outfall receiving waters;

(B) to the extent allowable under state or local law, effectively prohibit, through ordinance or other regulatory mechanism, non-storm water discharges (other than the potential non-storm water discharges for MS4s listed in ARM 17.30.1111(6) (c) (iii) ) into the MS4 and implement appropriate enforcement procedures and actions;

(C) develop and implement a plan to detect and address non-storm water discharges, including illegal dumping, to the MS4; and

(D) inform public employees, businesses, and the general public of hazards associated with illegal discharges and improper disposal of waste;

(iii) a small MS4 shall address the following categories of non-storm water discharges or flows (i.e., illicit discharges) only if it identifies them as significant contributors of pollutants to the MS4:

(A) water line flushing, landscape irrigation, diverted stream flows, rising ground waters, uncontaminated ground water infiltration (as defined in ARM 17.30.1102(8) ) , uncontaminated pumped ground water, discharges from potable water sources, foundation drains, air conditioning condensation, irrigation water, springs, water from crawl space pumps, footing drains, lawn watering, individual residential car washing, flows from riparian habitats and wetlands, dechlorinated swimming pool discharges, and street wash water;

(B) discharges or flows from fire fighting activities are excluded from the effective prohibition against non-storm water and need only be addressed where they are identified as significant sources of pollutants to surface waters;

(d) construction site storm water runoff control measures including:

(i) a small MS4 shall develop, implement, and enforce a program to reduce pollutants in any storm water runoff to the MS4 from construction activities that result in a land disturbance of greater than or equal to one acre. Reduction of storm water discharges from construction activity disturbing less than one acre must be included in the program if that construction activity is part of a larger common plan of development or sale that would disturb one acre or more. If the department waives requirements for a construction site in accordance with ARM 17.30.1105(5) , the small MS4 is not required to develop, implement, or enforce a program to reduce pollutant discharges from such sites;

(ii) the development and implementation of, at a minimum:

(A) an ordinance or other regulatory mechanism to require erosion and sediment controls, as well as sanctions to ensure compliance, to the extent allowable under state or local law;

(B) requirements for construction site operators to implement appropriate erosion and sediment control BMPs;

(C) requirements for construction site operators to control waste such as discarded building materials, concrete truck washout, chemicals, litter, and sanitary waste at the construction site that may cause adverse impacts to water quality;

(D) procedures for site plan review that incorporate consideration of potential water quality impacts;

(E) procedures for receipt and consideration of information submitted by the public; and

(F) procedures for site inspection and enforcement of control measures;

(e) post-construction storm water management in new development and redevelopment. A small MS4 shall:

(i) develop, implement, and enforce a program to address storm water runoff from new development and redevelopment projects that disturb greater than or equal to one acre, including projects less than one acre that are part of a larger common plan of development or sale, that discharge into the MS4. The program must ensure that controls are in place that would prevent or minimize water quality impacts;

(ii) develop and implement strategies that include a combination of structural and non-structural BMPs appropriate for the community;

(iii) develop and implement an ordinance or other regulatory mechanism to address post-construction runoff from new development and redevelopment projects to the extent allowable under state or local law; and

(iv) ensure adequate long-term operation and maintenance of BMPs;

(f) pollution prevention and good housekeeping measures for municipal operations. A small MS4 shall develop and implement an operation and maintenance program that includes a training component and has the goal of preventing or reducing pollutant runoff from municipal operations. Using training materials that are available from EPA, the state of Montana, or other organizations, the program must include employee training to prevent and reduce storm water pollution from activities such as park and open space maintenance, fleet and building maintenance, new construction and land disturbances, and storm water system maintenance.

(7) A small MS4 may share the responsibility to implement the minimum control measures with another entity in order to satisfy their MPDES permit obligations to implement a minimum control measure.

(a) Shared responsibility is allowed only if:

(i) the other entity implements the control measure;

(ii) the particular control measure, or component thereof, is at least as stringent as the corresponding MPDES permit requirement; and

(iii) the other entity agrees to implement the control measure on behalf of the owners or operators of the regulated small MS4.

(b) In the reports submitted under (14) , the owners or operators must specify that they are relying on another entity to satisfy some of their permit obligations, unless the other entity is responsible to file the reports.

(c) The MS4 remains responsible for compliance with its permit obligations if the other entity fails to implement the control measure (or component thereof) . The MS4 should enter into a legally binding agreement with the other entity in order to minimize uncertainty about compliance with the MPDES permit.

(8) The department may specify in an MPDES permit that another governmental entity is responsible for implementing one or more of the minimum control measures for a small MS4. If the department does so, the MS4 is not required to include such minimum control measures in its storm water management program. The department may modify an MPDES permit or permit authorization to require an MS4 to implement a minimum control measure if the other entity fails to implement it.

(9) If a qualifying local program requires a small MS4 to implement one or more of the six minimum control measures of this rule, the department may include conditions in the MPDES permit or permit authorization that direct the MS4 to follow that qualifying program's requirements rather than the minimum control measures requirements of this rule. A "qualifying local program" is a local municipal storm water management program that imposes the relevant minimum control measures stated in (6) .

(10) A small MS4 is not required to meet any measurable goals identified in its application in order to demonstrate compliance with the minimum control measures in (6) (c) through (f) if EPA or the department has not provided a menu of BMPs that addresses each such minimum measure. In that event, the MS4 shall comply with other requirements of the general permit, including good faith implementation of BMPs designed to comply with the minimum control measures.

(11) The department may include, in an authorization issued to a small MS4, limitations that are more stringent than those contained in the general permit. Such limitations must be based on a TMDL or equivalent analysis that determines such limitations are needed to protect water quality.

(12) A small MS4 shall evaluate program compliance, the appropriateness of its identified BMPs, and progress towards achieving its identified measurable goals.

(13) A small MS4 shall keep records required by the MPDES permit for at least three years and shall provide its records to the department upon request. Records, including a description of the storm water management program, must be made available to the public at reasonable times during regular business hours. Provisions for the confidentiality of records are stated in ARM 17.30.1321.

(14) Unless a small MS4 relies on another entity to satisfy its MPDES permit obligations under (7) , the MS4 shall submit annual reports to the department for the first permit term. For subsequent permit terms, the MS4 shall submit reports in years two and four unless the department requires more frequent reports. The annual report must:

(a) describe the status of compliance with permit conditions, the appropriateness of the identified BMPs, and progress towards achieving the identified measurable goals for each of the minimum control measures;

(b) include information collected and analyzed, including monitoring data, if any, during the reporting period;

(c) summarize the storm water activities that the MS4 plans to undertake during the next reporting cycle;

(d) describe changes in any identified BMPs or measurable goals for any of the minimum control measures; and

(e) notify the department if the MS4 is relying on another governmental entity to satisfy some of its permit obligations.

(15) The department may issue permits for small MS4s that are designated under ARM 17.30.1107 on a system-wide basis, jurisdiction-wide basis, watershed basis, or other appropriate basis, or may issue permits for individual discharges.

(16) An owner or operator of a small municipal separate storm sewer system may petition the department to require a separate MPDES permit for any discharge into the small municipal separate storm sewer system.

(17) When, for the discharges listed in (1) , more than one operator discharges storm water through a non-municipal or nonpublicly owned separate storm sewer system, the department may either issue a single permit to all dischargers as co-permittees, or issue separate permits to each discharger on the system. If the department issues a single permit to all dischargers on the system, each co-permittee shall be responsible only for the portion of the discharge under its ownership or control.

(a) This subsection applies to storm water discharges associated with industrial, mining, oil and gas, and construction activity that will result in construction-related disturbance of five acres or more of total land area.

(b) If there is more than one operator of a single system of such non-municipal conveyances, all operators of storm water discharges must submit applications.

(18) Each permit covering more than one operator must identify the effluent limitations, or other permit conditions if any, that apply to each operator.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 2003 MAR p. 219, Eff. 2/14/03.

17.30.1115   NOTICE OF INTENT PROCEDURES: CONSTRUCTION ACTIVITY
(1) A person who discharges or proposes to discharge storm water associated with construction activity shall submit to the department a notice of intent (NOI) as provided in this rule.

(a) The NOI must be signed by the owner of the project or by the operator, or by both the owner and the operator if both have responsibility to ensure that daily project activities comply with the SWPPP and other general permit conditions.  If more than one operator is responsible for compliance with the SWPPP and general permit each operator shall sign the NOI.

(i) persons signing an NOI shall comply with the permit application signature requirements set out in ARM 17.30.1323.

(b) For storm water discharges associated with construction activity that result in construction-related disturbance of less than five acres of total land area, the permit requirements in this subchapter are effective beginning March 10, 2003.

(2) An NOI must be completed on an NOI form developed by the department.  The NOI must be completed in accordance with the requirements stated in the general permit, and must include the legal name and address of the operators, the facility name and address, the type of facility or discharges, and the receiving surface waters.

(a) An NOI must include a narrative description of:

(i) the location (including a map) and the nature of the construction activity;

(ii) the total area of the site and the area within the site that is expected to undergo excavation during the life of the permit;

(iii) proposed measures, including BMPs, to control pollutants in storm water discharges during construction, including a brief description of applicable local erosion and sediment control requirements;

(iv) proposed measures to control pollutants in storm water discharges that will occur after construction operations have been completed, including a brief description of applicable local erosion and sediment control requirements;

(v) for a storm water discharge that will result in construction-related disturbance of five acres or more of total land area, an estimate of the runoff coefficient of the site and the increase in impervious area after the construction addressed in the permit application is completed, the nature of fill material and existing data describing the soil or the quality of the discharge; and

(vi) the name of the receiving surface waters.

(3) An NOI must be accompanied by a SWPPP, which must be completed in accordance with the requirements identified in the general permit including the following:

(a) the SWPPP must be signed by all signatories to the NOI; and

(b) the SWPPP must require the identification and assessment of potential pollutant sources that could be exposed to storm water runoff, and must contain provisions to implement BMPs, in accordance with the general permit.

(4) Authorization to discharge under the general permit is effective upon receipt by the department of a complete notice of intent and SWPPP, together with the permit fee, by the date on which construction-related disturbance is initiated.

(5) The department may include, in the general permit for storm water discharges associated with construction activity, conditions that incorporate by reference qualifying local erosion and sediment control program requirements.  A "qualifying local erosion and sediment control program" is one that includes the elements listed in (6) and all additional requirements necessary to achieve the applicable technology-based standards of best available technology (BAT) and best conventional technology (BCT) .  If a qualifying local program does not include one or more of the elements in (6) , then the department shall include those elements as conditions in the permit.

(6) A qualifying local erosion and sediment control program includes requirements for construction site operators to:

(a) implement appropriate erosion and sediment control BMPs;

(b) control waste such as discarded building materials, concrete truck washout, chemicals, litter, and sanitary waste at the construction site that may cause adverse impacts to water quality;

(c) develop and implement a SWPPP.  A SWPPP includes site descriptions, descriptions of appropriate control measures, copies of approved local requirements, maintenance procedures, inspection procedures, and identification of non-storm water discharges; and

(d) submit a site plan for review that incorporates consideration of potential water quality impacts.

(7) Permittees shall keep records of all data used to complete the NOI and SWPPP and any supplemental information submitted under this subchapter for a period of at least three years from the date the NOI is signed.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 2003 MAR p. 219, Eff. 2/14/03.

17.30.1116   INDUSTRIAL NO-EXPOSURE CERTIFICATION

(1) Discharges composed entirely of storm water are not regulated as discharges associated with industrial activity or discharges associated with mining and oil and gas activity if there is no exposure of industrial materials and activities to rain, snow, snowmelt, and/or runoff, and the discharger satisfies the conditions in this rule.

(a) For purposes of this rule, "no exposure" means that all industrial materials and activities are protected by a storm-resistant shelter to prevent exposure to rain, snow, snowmelt, and/or runoff.  Industrial materials or activities include, but are not limited to, material handling equipment or activities, industrial machinery, raw materials, intermediate products, byproducts, final products, or waste products.  Material handling activities include the storage, loading and unloading, transportation, or conveyance of any raw material, intermediate product, final product, or waste product.

(2) To qualify for the exclusion in this rule, the owner or operator of the discharge must:

(a) except as provided in (3) , provide a storm-resistant shelter to protect industrial materials and activities from exposure to rain, snow, snowmelt, and/or runoff;

(b) complete and sign, in accordance with ARM 17.30.1323, a certification form developed by the department that indicates there are no discharges of storm water contaminated by exposure to industrial materials and activities from the entire facility, except as provided in (3) ;

(c) submit the signed certification to the department once every five years;

(d) allow the department to inspect the facility to determine compliance with the no-exposure conditions;

(e) allow the department to make no-exposure inspection reports available to the public upon request; and

(f) for facilities that discharge through an MS4, submit a copy of the certification of no exposure to the MS4 operator, and allow inspection and public reporting by the MS4 operator.

(3) A storm resistant shelter is not required for:

(a) drums, barrels, tanks and similar containers that are tightly sealed, if the containers are not deteriorated and do not leak.  For purposes of this rule, "sealed" means banded or otherwise secured and without operational taps or valves; or

(b) final products, other than products that would be mobilized in storm water discharge (e.g., rock salt) .

(4) The exclusion in this rule is subject to the following limitations:

(a) the exclusion is not available for storm water discharges associated with construction activity as defined in this subchapter;

(b) the exclusion is available on a facility-wide basis only, not for individual outfalls.  If a facility has some discharges of storm water that would otherwise be no-exposure discharges, permit requirements should be adjusted accordingly;

(c) if circumstances change and industrial materials or activities become exposed to rain, snow, snowmelt, and/or runoff, the conditions for this exclusion no longer apply.  In such cases, the discharge becomes subject to enforcement for unpermitted discharge.  Any conditionally exempt discharger who anticipates changes in circumstances should apply for and obtain permit authorization prior to the change of circumstances; and

(d) the department may deny an exclusion under this rule if it determines that the discharge causes, has a reasonable potential to cause, or contributes to a violation of a water quality standard, including designated uses.

(5) A no-exposure certification must contain the following information, at a minimum, to aid the department in determining whether a facility qualifies for the no-exposure exclusion:

(a) the legal name, address and phone number of the discharger;

(b) the facility name and address, the county name, and the township, range, section and 1/4 section where the facility is located;

(c) certification that none of the following materials or activities are, or will be in the foreseeable future, exposed to precipitation:

(i) use, storage or cleaning of industrial machinery or equipment, and areas where residuals from such activities remain and are exposed to storm water;

(ii) materials or residuals on the ground or in storm water inlets from spills/leaks;

(iii) materials or products from past industrial activity;

(iv) material handling equipment, except for adequately maintained vehicles;

(v) materials or products during loading/unloading or transporting activities;

(vi) materials or products stored outdoors, except final products intended for outside use (e.g., new cars) , if exposure to storm water does not result in the discharge of pollutants;

(vii) materials contained in open, deteriorated or leaking storage drums, barrels, tanks and similar containers;

(viii) materials or products handled/stored on roads or railways owned or maintained by the discharger;

(ix) waste material, except waste in covered, non-leaking containers (e.g., dumpsters) ;

(x) application or disposal of process wastewater, unless otherwise permitted; and

(xi) particulate matter or visible deposits of residuals from roof stacks/vents not otherwise regulated, i.e., under an air quality control permit, and evident in the storm water outflow;

(d) the following certification statement, which must be signed in accordance with the signatory requirements of ARM 17.30.1323:  "I certify under penalty of law that I have read and understand the eligibility requirements for claiming a condition of "no exposure" and obtaining an exclusion from MPDES storm water permitting; and that there are no discharges of storm water contaminated by exposure to industrial activities or materials from the industrial facility identified in this document (except as allowed under ARM 17.30.1116(3) ) .  I understand that I am obligated to submit a no-exposure certification form once every five years to the department and, if requested, to the operator of the local MS4 into which this facility discharges (where applicable) .  I understand that I must allow the department, or MS4 operator where the discharge is into the local MS4, to perform inspections to confirm the condition of no exposure and to make such inspection reports publicly available upon request.  I understand that I must obtain coverage under an MPDES permit prior to any point source discharge of storm water from the facility.  I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gathered and evaluated the information submitted.  Based upon my inquiry of the person or persons who manage the system, or those persons directly involved in gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete.  I am aware there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 2003 MAR p. 219, Eff. 2/14/03.

17.30.1117   TRANSFER OF PERMIT COVERAGE
(1) General permit authorizations and NOIs for storm water discharges regulated under this subchapter are not transferable to a new owner or operator, including when the name and/or legal ownership of a party changes, unless the new or revised owner or operator of a facility or activity submits a new application or NOI form, a revised SWPPP if necessary, and other revised documents or information that are necessary to indicate the current conditions or status. Persons requesting transfer of general permit coverage must comply with the application procedures stated in the respective general permit and must pay a fee. If the new permittee develops a new SWPPP, the new permittee shall implement the old SWPPP until the new SWPPP is developed and implemented.
History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 2003 MAR p. 219, Eff. 2/14/03.

17.30.1201   PURPOSE AND SCOPE
(1) The purpose of this subchapter is to establish effluent limitations and standards, treatment requirements, standards of performance, and other requirements for point sources discharging wastes into state surface waters. These requirements, together with the rules in subchapter 13, are adopted to discharge the responsibilities of the board under Title 75, chapter 5, parts 3 and 4, Montana Code Annotated, the Montana Water Quality Act, to adopt effluent limitations and standards, standards of performance, and treatment requirements for permits issued to point sources discharging into state surface waters. These requirements are adopted in a manner that implements the national pollutant discharge elimination system (NPDES) established under sections 301, 302, 304, 306, 307, 316, 318, and 402 of the federal Clean Water Act.
History: 75-5-304, MCA; IMP, 75-5-304, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2011 MAR p. 2131, Eff. 10/14/11.

17.30.1202   DEFINITIONS

The following definitions, in addition to those in 75-5-103, MCA, apply throughout this subchapter:

(1) "Alternative effluent limitations" means all effluent limitations or standards of performance for the control of the thermal component of any discharge which are established under section 316(a) of the federal Clean Water Act and this subchapter.

(2) "Annual mean flow" means the average of daily flows over a calendar year. Historical data, up to ten years, must be used where available.

(3) "Applicable standards and limitations" is defined in ARM 17.30.1304.

(4) "Balanced, indigenous community" means a biotic community typically characterized by diversity, the capacity to sustain itself through cyclic changes, presence of necessary food chain species, and a lack of domination by pollution-tolerant species. Such a community may include historically non-native species introduced in connection with a program of wildlife management and species whose presence or abundance results from substantial, irreversible environmental modifications. Normally, however, such a community will not include species whose presence or abundance is attributable to the introduction of pollutants that will be eliminated by compliance by all sources with section 301(b)(2) of the federal Clean Water Act, and may not include species whose presence or abundance is attributable to alternative effluent limitations imposed pursuant to section 316(a) of the federal Clean Water Act.

(5) "Board" means the Montana Board of Environmental Review established by 2-15-3502, MCA.

(6) "Closed-cycle recirculating system" means a system designed, using minimized makeup and blowdown flows, to withdraw water from a natural or other water source to support contact and/or noncontact cooling uses within a facility. The water is usually sent to a cooling canal or channel, lake, pond, or tower to allow waste heat to be dissipated to the atmosphere and then is returned to the system. Some facilities divert the waste heat to other process operations. New source water (make-up water) is added to the system to replenish losses that have occurred due to blowdown, drift, and evaporation.

(7) "Conventional pollutant" means the following list of pollutants:

(a) biochemical oxygen demand (BOD);

(b) total suspended solids (nonfilterable) (TSS);

(c) pH;

(d) fecal coliform; and

(e) oil and grease.

(8) "Cooling water" means water used for contact or noncontact cooling, including water used for equipment cooling, evaporative cooling tower makeup, and dilution of effluent heat content. The intended use of the cooling water is to absorb waste heat rejected from the process or processes used, or from auxiliary operations on the facility's premises. Cooling water that is used in a manufacturing process, either before or after it is used for cooling, is considered process water for the purposes of calculating the percentage of a new facility's intake flow that is used for cooling purposes in ARM 17.30.1211(6).

(9) "Cooling water intake structure" means the total physical structure and any associated constructed waterways used to withdraw cooling water from state surface water. The cooling water intake structure extends from the point at which water is withdrawn from the surface water source up to, and including, the intake pumps.

(10) "Department" means the Montana Department of Environmental Quality established by 2-15-3501, MCA.

(11) "Design intake flow" means the value assigned, during the facility's design, to the total volume of water withdrawn from a source waterbody over a specific time period.

(12) "Design intake velocity" means the value assigned, during the design of a cooling water intake structure, to the average speed at which intake water passes through the open area of the intake screen, or other device, against which organisms might be impinged or through which they might be entrained.

(13) "Effluent limitation" means any restriction or prohibition imposed by the department on quantities, discharge rates, and concentrations of chemical, physical, biological, and other constituents that are discharged from point sources, other than new sources, into state surface waters, including schedules of compliance.

(14) "Effluent limitations guidelines" means a regulation published by EPA in 40 CFR Chapter I, Subchapter N, pursuant to the requirements in section 304(b) of the federal Clean Water Act to adopt or revise effluent limitations.

(15) "Effluent standard" is defined in 75-5-103, MCA, and is synonymous with the term "effluent limitation," as defined in this subchapter, with the exception that it does not include a schedule of compliance.

(16) "Entrainment" means the incorporation of all life stages of fish and shellfish with intake water flow entering and passing through a cooling water intake structure and into a cooling water system.

(17) "EPA" means the United States Environmental Protection Agency.

(18) "Existing facility" means any facility that is not a new facility.

(19) "Existing source" is defined in ARM 17.30.1304.

(20) "Federal Clean Water Act" means the federal legislation at 33 USC 1251, et seq.

(21) "Freshwater river or stream" means a lotic (free-flowing) system that does not receive significant inflows of water from oceans or bays due to tidal action. For the purposes of this subchapter, a flow-through reservoir with a retention time of seven days or less will be considered a freshwater river or stream.

(22) "Hazardous substance" means any element or compound designated by EPA pursuant to section 311(b)(2)(A) of the federal Clean Water Act and listed in 40 CFR 116.4.

(23) "Hydraulic zone of influence" means that portion of the source waterbody hydraulically affected by the cooling water intake structure withdrawal of water.

(24) "Impingement" means the entrapment of all life stages of fish and shellfish on the outer part of an intake structure or against a screening device during periods of intake water withdrawal.

(25) "Lake or reservoir" means any inland body of open water with some minimum surface area free of rooted vegetation and with an average hydraulic retention time of more than seven days. Lakes or reservoirs might be natural water bodies or impounded streams, usually fresh, surrounded by land or by land and a man-made retainer (e.g., a dam). Lakes or reservoirs might be fed by rivers, streams, springs, and/or local precipitation. Flow-through reservoirs with an average hydraulic retention time of seven days or less should be considered a freshwater river or stream.

(26) "Maximize" means to increase to the greatest amount, extent, or degree reasonably possible.

(27) "Minimize" means to reduce to the smallest amount, extent, or degree reasonably possible.

(28) "MPDES" means the Montana pollutant discharge elimination system developed by the Board of Environmental Review and the Department of Environmental Quality for issuing permits for the discharge of pollutants from point sources into state waters.

(29) "Natural thermal stratification" means the naturally occurring division of a waterbody into horizontal layers of differing densities as a result of variations in temperature at different depths.

(30) "New facility" means any building, structure, facility, or installation that meets the definition of a "new source'' or "new discharger'' in ARM 17.30.1304 and that is a greenfield or stand-alone facility, commences construction after January 17, 2002, and uses either a newly constructed cooling water intake structure, or an existing cooling water intake structure whose design capacity is increased to accommodate the intake of additional cooling water. New facilities include only "greenfield'' and "stand-alone'' facilities. A greenfield facility is a facility that is constructed at a site at which no other source is located, or that totally replaces the process or production equipment at an existing facility. A stand-alone facility is a new, separate facility that is constructed on property where an existing facility is located and whose processes are substantially independent of the existing facility at the same site. New facility does not include new units that are added to a facility for purposes of the same general industrial operation (for example, a new peaking unit at an electrical generating station).

(a) Examples of "new facilities'' include, but are not limited to, the following scenarios:

(i) A new facility is constructed on a site that has never been used for industrial or commercial activity. It has a new cooling water intake structure for its own use;

(ii) A facility is demolished and another facility is constructed in its place. The newly constructed facility uses the original facility's cooling water intake structure, but modifies it to increase the design capacity to accommodate the intake of additional cooling water;

(iii) A facility is constructed on the same property as an existing facility, but is a separate and independent industrial operation. The cooling water intake structure used by the original facility is modified by constructing a new intake bay for the use of the newly constructed facility or is otherwise modified to increase the intake capacity for the new facility.

(b) Examples of facilities that would not be considered a "new facility'' include, but are not limited to, the following scenarios:

(i) A facility in commercial or industrial operation is modified and either continues to use its original cooling water intake structure or uses a new or modified cooling water intake structure.

(ii) A facility has an existing intake structure. Another facility (a separate and independent industrial operation), is constructed on the same property and connects to the facility's cooling water intake structure behind the intake pumps, and the design capacity of the cooling water intake structure has not been increased. This facility would not be considered a "new facility'' even if routine maintenance or repairs that do not increase the design capacity were performed on the intake structure.

(31) "New source" is defined in ARM 17.30.1304.

(32) "Publicly owned treatment works" (POTW) is defined in ARM 17.30.1304.

(33) "Representative important species" means species that are representative, in terms of biological needs, of a balanced, indigenous community of shellfish, fish, and wildlife in the body of water into which a discharge of heat is made.

(34) "Source water" means the state waterbody (state surface waters) from which the cooling water is withdrawn.

(35) "Standard of performance" is defined in 75-5-103, MCA.

(36) "Toxic pollutant" means any pollutant designated by EPA under section 307(a)(1) of the federal Clean Water Act and listed in 40 CFR 401.15.

(37) "Variance" means any mechanism or provision under sections 301 or 316 of the federal Clean Water Act, or in the applicable "effluent limitations guidelines," which allows modification to, or waiver of, the generally applicable effluent limitation requirements or time deadlines. This includes provisions that allow the establishment of alternative limitations based on fundamentally different factors or on sections 301(c), 301(g), or 316(a) of the federal Clean Water Act.

(38) The board adopts and incorporates by reference the following federal regulations as part of the MPDES:

(a) 40 CFR 401.15 (July 1, 2010), which identifies the list of toxic pollutants designated pursuant to section 307(a)(1) of the federal Clean Water Act.

(b) 40 CFR 116.4 (July 1, 2010), which identifies elements and compounds designated as hazardous substances pursuant to section 311(b)(2)(A) of the federal Clean Water Act.

(c) Copies of these federal regulations may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena, MT 59620.

 

History: 75-5-304, MCA; IMP, 75-5-304, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2011 MAR p. 2131, Eff. 10/14/11; AMD, 2020 MAR p. 1879, Eff. 10/24/20.

17.30.1203   CRITERIA AND STANDARDS FOR IMPOSING TECHNOLOGY-BASED TREATMENT REQUIREMENTS IN MPDES PERMITS - VARIANCE PROCEDURES

(1) Technology-based treatment requirements under section 301(b) of the federal Clean Water Act represent the minimum level of control that must be imposed in MPDES permits. Unless a more stringent effluent limitation applies under ARM 17.30.1344, permits issued by the department must contain the applicable technology-based treatment requirements provided in (2) and (3), according to the applicable deadlines.

(2) For POTWs, effluent limitations must be based upon secondary treatment as defined in 40 CFR Part 133, from date of permit issuance.

(3) For dischargers other than POTWs except as provided in ARM 17.30.1340(5), effluent limitations must require:

(a) the best practicable control technology currently available (BPT) in accordance with the following schedules:

(i) for effluent limitations promulgated under section 304(b) of the federal Clean Water Act after January 1, 1982, and requiring a level of control substantially greater or based on fundamentally different control technology than under permits for an industrial category issued before such date, compliance is required as expeditiously as practicable, but in no case later than March 31, 1989;

(ii) for effluent limitations established on a case-by-case basis based on best professional judgment (BPJ) under (5) in a permit issued after February 4, 1987, compliance is required as expeditiously as practicable, but in no case later than March 31, 1989;

(iii) for all other BPT effluent limitations compliance is required from the date of permit issuance.

(b) for conventional pollutants, the best conventional pollutant control technology (BCT) in accordance with the following schedule:

(i) for effluent limitations promulgated under section 304(b) of the federal Clean Water Act, compliance is required as expeditiously as practicable, but in no case later than such limitations are promulgated, and in no case later than March 31, 1989;

(ii) for effluent limitations established on a case-by-case basis based on BPJ under (5) in a permit issued after February 4, 1987, compliance is required as expeditiously as practicable, but in no case later than March 31, 1989.

(c) for all toxic pollutants identified in 40 CFR 401.15, the best available technology economically achievable (BAT) in accordance with the following schedule:

(i) for effluent limitations promulgated under section 304(b) of the federal Clean Water Act, compliance is required as expeditiously as practicable, but in no case later than March 31, 1989;

(ii) for permits issued on a case-by-case basis based on BPJ under (5) after February 4, 1987, compliance is required as expeditiously as practicable, but in no case later than March 31, 1989.

(d) for all pollutants which are neither toxic nor conventional pollutants, effluent limitations based on BAT in accordance with the following schedule:

(i) for effluent limitations promulgated under section 304(b) of the federal Clean Water Act, compliance is required as expeditiously as practicable, but in no case later than March 31, 1989;

(ii) for permits issued on a case-by-case basis based on BPJ under (5) after February 4, 1987, establishing BAT effluent imitations, compliance is required as expeditiously as practicable, but in no case later than March 31, 1989.

(4) The following variances from technology-based treatment requirements may be applied for and incorporated into MPDES permits:

(a) for dischargers other than POTWs, a variance from effluent limitations promulgated under sections 301 and 304 of the federal Clean Water Act based on fundamentally different factors in accordance with 40 CFR Part 125, Subpart D;

(b) for dischargers other than POTWs, a water quality related variance from BAT for certain nonconventional pollutants under section 301(g) of the federal Clean Water Act; and

(c) a thermal variance from BPT, BCT, and BAT under section 316(a) of the federal Clean Water Act in accordance with ARM 17.30.1210.

(5) Technology-based treatment requirements may be imposed through one of the following methods provided in (a) through (c):

(a) application of EPA-promulgated effluent limitations guidelines for dischargers by category or subcategory. These effluent limitations are not applicable to the extent that they have been remanded or withdrawn. However, in the case of a court remand, determinations underlying effluent limitations must be binding in permit issuance proceedings where those determinations are not required to be reexamined by a court remanding the regulations. In addition, dischargers may seek fundamentally different factors variances from these effluent limitations pursuant to 40 CFR, Part 125, Subpart D;

(b) on a case-by-case basis using BPJ to the extent that EPA-promulgated effluent limitations are inapplicable. The permit writer shall apply the appropriate factors listed in (6) and shall consider:

(i) the appropriate technology for the category or class of point sources of which the applicant is a member, based upon all available information; and

(ii) any unique factors relating to the applicant.

(c) through a combination of the methods described in (a) and (b). Where promulgated effluent limitations guidelines only apply to certain aspects of the discharger's operation, or to certain pollutants, other aspects or activities are subject to regulation on a case-by-case basis in order to carry out the provisions of the federal Clean Water Act;

(d) limitations developed under (6)(b) may be expressed, where appropriate, in terms of toxicity (e.g., "the LC50 for fat head minnow of the effluent from outfall 001 shall be greater than 25%''), provided that the limits reflect the appropriate requirements (for example, technology-based or water quality-based standards) of the federal Clean Water Act.

(6) In setting case-by-case limitations pursuant to (5), the permit writer shall consider the following factors:

(a) for BPT requirements:

(i) the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application;

(ii) the age of equipment and facilities involved;

(iii) the process employed;

(iv) the engineering aspects of the application of various types of control techniques;

(v) process changes; and

(vi) non-water quality environmental impact (including energy requirements).

(b) for BCT requirements:

(i) the reasonableness of the relationship between the costs of attaining a reduction in effluent and the effluent reduction benefits derived;

(ii) the comparison of the cost and level of reduction of such pollutants from the discharge from publicly owned treatment works to the cost and level of reduction of such pollutants from a class or category of industrial sources;

(iii) the age of equipment and facilities involved;

(iv) the process employed;

(v) the engineering aspects of the application of various types of control techniques;

(vi) process changes; and

(vii) non-water quality environmental impact (including energy requirements).

(c) for BAT requirements:

(i) the age of equipment and facilities involved;

(ii) the process employed;

(iii) the engineering aspects of the application of various types of control techniques;

(iv) process changes;

(v) the cost of achieving such effluent reduction; and

(vi) non-water quality environmental impact (including energy requirements).

(7) Technology-based treatment requirements are applied prior to or at the point of discharge.

(8) Technology-based treatment requirements cannot be satisfied through the use of "non-treatment'' techniques such as flow augmentation and in-stream mechanical aerators. However, these techniques may be considered as a method of achieving water quality standards on a case-by-case basis when:

(a) the technology-based treatment requirements applicable to the discharge are not sufficient to achieve the standards;

(b) the discharger agrees to waive any opportunity to request a variance under section 301(c), (g), or (h) of the federal Clean Water Act; and

(c) the discharger demonstrates that such a technique is the preferred environmental and economic method to achieve the standards after consideration of alternatives such as advanced waste treatment, recycle and reuse, land disposal, changes in operating methods, and other available methods.

(9) Technology-based effluent limitations must be established under this rule for solids, sludges, filter backwash, and other pollutants removed in the course of treatment or control of wastewaters in the same manner as for other pollutants.

(10) The department may set a permit limit for a conventional pollutant at a level more stringent than the best conventional pollution control technology BCT, or a limit for a nonconventional pollutant which must not be subject to modification under section 301(c) or (g) of the federal Clean Water Act where:

(a) effluent limitations guidelines specify the pollutant as an indicator for a toxic pollutant; or

(b) the limitation reflects BAT-level control of discharges of one or more toxic pollutants that are present in the waste stream, and a specific BAT limitation upon the toxic pollutant(s) is not feasible for economic or technical reasons;

(c) the permit identifies which toxic pollutants are intended to be controlled by use of the limitation; and

(d) the fact sheet required by ARM 17.30.1371 sets forth the basis for the limitation, including a finding that compliance with the limitation will result in BAT-level control of the toxic pollutant discharges identified in (c), and a finding that it would be economically or technically infeasible to directly limit the toxic pollutant(s).

(11) The department may set a permit limit for a conventional pollutant at a level more stringent than BCT when:

(a) effluent limitations guidelines specify the pollutant as an indicator for a hazardous substance; or

(b) the limitation reflects BAT-level control of discharges, or an appropriate level determined under section 301(c) or (g) of the federal Clean Water Act, of one or more hazardous substance(s) that are present in the waste stream, and a specific BAT or other appropriate limitation upon the hazardous substance(s) is not feasible for economic or technical reasons;

(c) the permit identifies which hazardous substances are intended to be controlled by use of the limitation; and

(d) the fact sheet required by ARM 17.30.1371 sets forth the basis for the limitation, including a finding that compliance with the limitations will result in BAT-level (or other appropriate level) control of the hazardous substances discharges identified in (c), and a finding that it would be economically or technically infeasible to directly limit the hazardous substance(s).

(e) Hazardous substances that are also toxic pollutants are subject to (10).

(12) The department may not set a more stringent limit under the preceding sections if the method of treatment required to comply with the limit differs from that which would be required if the toxic pollutant(s) or hazardous substance(s) controlled by the limit were limited directly.

(13) Toxic pollutants identified under (10) remain subject to the requirements of ARM 17.30.1343(1)(a) (notification of increased discharges of toxic pollutants above levels reported in the application form).
(14) The board adopts and incorporates by reference the following federal regulations as part of the MPDES:

(a) 40 CFR Part 133 (July 1, 2010), which sets forth the level of effluent quality attainable through the application of secondary treatment or equivalent treatment for POTWs;

(b) 40 CFR Part 125, Subpart D (July 1, 2010), which sets forth criteria and standards for determining fundamentally different factors under section 301 of the federal Clean Water Act;

(c) 40 CFR 401.15 (July 1, 2010), which is a list of toxic pollutants identified by EPA under section 307(a)(1) of the federal Clean Water Act.

(d) Copies of these federal regulations may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena, MT 59620.

 

History: 75-5-304, MCA; IMP, 75-5-304, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2011 MAR p. 2131, Eff. 10/14/11; AMD, 2020 MAR p. 1879, Eff. 10/24/20.

17.30.1206   TOXIC POLLUTANT EFFLUENT STANDARDS

(1) This rule is applicable to owners or operators of facilities specified in 40 CFR Part 129 that discharge into state surface waters.

(2) The effluent standards or prohibitions for toxic pollutants established in 40 CFR Part 129 shall be applicable to the sources and pollutants set forth in 40 CFR Part 129, and may be incorporated into any MPDES permit, renewed MPDES permit, or permit modification, in accordance with the provisions of 40 CFR Part 129.

(3) The effluent standards and prohibitions established in 40 CFR Part 129 apply to the following toxic pollutants:

(a) Aldrin, which means the compound aldrin as identified by the chemical name, 1,2,3,4,10,10-hexachloro-1,4,4a,5,8,8a-hexahydro-1,4 -endo-5,8-exo-dimethanonaphthalene and Dieldrin, which means the compound dieldrin as identified by the chemical name 1,2,3,4,10,10-hexachloro-6,7-epoxy-1,4,4a,5,6,7,8,8a-octahydro-1,4-endo-5,8-exo-dimethanonaphthalene;

(b) DDT, which means the compounds DDT, DDD, and DDE as identified by the chemical names: (DDT)-1,1,1-trichloro-2,2-bis(p-chlorophenyl) ethane and someo,p'-isomers; (DDD) or (TDE)-1,1-dichloro-2,2-bis(p-chlorophenyl) ethane and some o,p'-isomers; and (DDE)-1,1-dichloro-2,2-bis(p-chlorophenyl) ethylene;

(c) Endrin, which means the compound as identified by the chemical name 1,2,3,4,10,10-hexachloro-6,7-epoxy-1,4,4a,5,6,7,8,8a-octahydro-1,4-endo-5,8-endodimethanonaphthalene;

(d) Toxaphene, which means a material consisting of technical grade chlorinated camphene having the approximate formula of C10 H10 Cl8 and normally containing 67-69 percent chlorine by weight;

(e) Benzidine, which means the compound benzidine and its salts as identified by the chemical name 4,4'-diaminobiphenyl;

(f) Polychlorinated biphenyls (PCBs), which means a mixture of compounds composed of the biphenyl molecule which has been chlorinated to varying degrees.

(4) The board adopts and incorporates by reference 40 CFR Part 129 (July 1, 2010), which establishes toxic effluent standards pursuant to section 307 of the federal Clean Water Act, as part of the MPDES A copy of the incorporated federal regulation may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena, MT 59620.

History: 75-5-304, MCA; IMP, 75-5-304, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2011 MAR p. 2131, Eff. 10/14/11.

17.30.1207   EFFLUENT LIMITATIONS AND STANDARDS OF PERFORMANCE

(1) Permits issued to point source dischargers, other than POTWs, must include effluent limitations or standards of performance applicable to the point source that are set forth in 40 CFR Chapter I, Subchapter N, as provided below:

(a) for existing sources, effluent limitations representing the degree of effluent reduction attainable by the application of:

(i) the best practicable control technology currently achievable (BPT) for all pollutants;

(ii) the best available technology economically achievable (BAT) for toxic and nonconventional pollutants; and

(iii) the best conventional pollutant control technology (BCT) for conventional pollutants;

(b) for new sources, new source performance standards (NSPS) reflecting the best available demonstrated control technology, processes, operating methods, or other alternatives, including, where practicable, a standard permitting no discharge.

(2) The department shall ensure that the applicable effluent limitations or standards of performance set forth in 40 CFR Chapter I, Subchapter N, are included in any new MPDES permit, renewed MPDES permit, or permit modification issued in accordance with ARM Title 17, chapter 30, subchapter 13.

(3) The board adopts and incorporates by reference 40 CFR Chapter I, Subchapter N (except 40 CFR Part 403) (July 1, 2010), which sets forth federal effluent limitations and standards for existing sources and standards of performance for new sources, which are promulgated by EPA under sections 301, 304(b), 306(b), and 316(b) of the federal Clean Water Act. 40 CFR Part 403, which is excluded from this incorporation by reference, sets forth general pretreatment requirements for new and existing sources. A copy of the incorporated federal regulations may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena, MT 59620.

History: 75-5-304, MCA; IMP, 75-5-304, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2011 MAR p. 2131, Eff. 10/14/11.

17.30.1208   HAZARDOUS SUBSTANCES

This rule has been repealed.

History: 75-5-304, MCA; IMP, 75-5-304, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; REP, 2011 MAR p. 2131, Eff. 10/14/11.)

17.30.1209   SECONDARY TREATMENT

This rule has been repealed.

History: 75-5-304, MCA; IMP, 75-5-304, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; REP, 2011 MAR p. 2131, Eff. 10/14/11.

17.30.1210   CRITERIA AND STANDARDS FOR DETERMINING ALTERNATIVE EFFLUENT LIMITATIONS FOR THERMAL DISCHARGES

(1) Thermal discharge effluent limitations or standards established in permits may be less stringent than those required by applicable standards and limitations, if the discharger demonstrates to the satisfaction of the department that such effluent limitations are more stringent than necessary to assure the protection and propagation of a balanced, indigenous community of shellfish, fish, and wildlife in and on the body of water into which the discharge is made. This demonstration must show that the alternative effluent limitation desired by the discharger, considering the cumulative impact of its thermal discharge together with all other significant impacts on the species affected, will assure the protection and propagation of a balanced indigenous community of shellfish, fish, and wildlife in and on the body of water into which the discharge is to be made.

(2) In determining whether or not the protection and propagation of the affected species will be assured, the department may consider any information contained or referenced in any applicable thermal water quality criteria and thermal water quality information published by the EPA under section 304(a) of the federal Clean Water Act, or any other information the department deems relevant.

(3) Existing dischargers may base their demonstration upon the absence of prior appreciable harm in lieu of predictive studies. Any such demonstrations must show:

(a) that no appreciable harm has resulted from the normal component of the discharge, taking into account the interaction of such thermal component with other pollutants and the additive effect of other thermal sources to a balanced, indigenous community of shellfish, fish, and wildlife in and on the body of water into which the discharge has been made; or

(b) that, despite the occurrence of such previous harm, the desired alternative effluent limitations, or appropriate modifications thereof, will nevertheless assure the protection and propagation of a balanced, indigenous community of shellfish, fish, and wildlife in and on the body of water into which the discharge is made.

(4) In determining whether or not prior appreciable harm has occurred under (3)(a), the department shall consider the length of time that the applicant has been discharging and the nature of the discharge.

(5) Any initial application for a variance from thermal effluent limitations pursuant to section 316(a) of the federal Clean Water Act must include the following early screening information:

(a) description of the alternative effluent limitation requested;

(b) a general description of the method by which the discharger proposes to demonstrate that the otherwise applicable thermal discharge effluent limitations are more stringent than necessary;

(c) a general description of the type of data, studies, experiments, and other information which the discharger intends to submit for the demonstration; and

(d) such data and information as may be available to assist the department in selecting the appropriate representative important species.

(6) After submitting the early screening information under (5), the discharger shall consult with the department at the earliest practicable time, but not later than 30 days after the application is filed, to discuss the discharger's early screening information. Within 60 days after the application is filed, the discharger shall submit for department approval a detailed plan of study that the discharger will undertake to support its demonstration for a variance under section 316(a). The discharger shall specify the nature and extent of the following type of information to be included in the plan of study: biological, hydrographical, and meteorological data; physical monitoring data; engineering or diffusion models; laboratory studies; representative important species; and other relevant information. In selecting representative important species, special consideration must be given to species mentioned in applicable water quality standards. After the discharger submits its detailed plan of study, the department shall either approve the plan or specify any necessary revisions to the plan. The discharger shall provide any additional information or studies that the department subsequently determines are necessary to support the demonstration, including such studies or inspections as may be necessary to select representative important species. The discharger may provide any additional information or studies that the discharger feels are appropriate to support the demonstration.

(7) Any discharger that intends to apply for a renewal of a section 316(a) thermal variance must notify the department of its intent in writing. Within 60 days after receipt of the notification, the department shall request that the discharger include in its renewal application only such information described in (5) and (6) that the department determines is necessary to evaluate the request.

(8) In making the demonstration, the discharger shall consider any information or guidance published by EPA to assist in making such demonstrations.

(9) If an applicant desires a ruling on a section 316(a) variance before the ruling on any other necessary permit terms and conditions, it shall make such request upon filing its application under (5). This request must be granted or denied at the discretion of the department.

(10) At the expiration of the permit, any discharger holding a thermal variance must support the continuation of the variance with studies based on the discharger's actual operation experience.

History: 75-5-305, 75-5-401, MCA; IMP, 75-5-305, 75-5-401, MCA; NEW, 2011 MAR p. 2131, Eff. 10/14/11.

17.30.1211   TECHNOLOGY-BASED REQUIREMENTS FOR COOLING WATER INTAKE STRUCTURES FOR NEW FACILITIES
(1) The purpose of this rule is to establish technology-based requirements that apply to the location, design, construction, and capacity of the cooling water intake structures at new facilities. This rule implements section 316(b) of the federal Clean Water Act for new facilities. These requirements are implemented through MPDES permits.

(2) Section 316(b) of the federal Clean Water Act provides that any standards established pursuant to sections 301 or 306 of the federal Clean Water Act and applicable to a point source must require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.

(3) New facilities that do not meet the threshold requirements regarding amount of water withdrawn or percentage of water withdrawn for cooling water purposes in (4) must meet requirements determined on a case-by-case, best professional judgment (BPJ) basis. The owner or operator of a new facility that does not meet the threshold requirements in (4) must submit the application information required in 40 CFR 122.21(r).

(4) This rule applies to a new facility if it:

(a) is a point source that uses or proposes to use a cooling water intake structure;

(b) has at least one cooling water intake structure that uses at least 25 percent of the water it withdraws for cooling purposes as specified in (6); and

(c) has a design intake flow greater than two million gallons per day (MGD).

(5) Use of a cooling water intake structure includes obtaining cooling water by any sort of contract or arrangement with an independent supplier, or multiple suppliers, of cooling water if the supplier or suppliers withdraw(s) water from state surface waters. Use of cooling water does not include obtaining cooling water from a public water system or the use of treated effluent that otherwise would be discharged to a state surface water. This provision is intended to prevent circumvention of these requirements by creating arrangements to receive cooling water from an entity that is not itself a point source.

(6) The threshold requirement that at least 25 percent of water withdrawn be used for cooling purposes must be measured on an average monthly basis. A new facility meets the 25 percent cooling water threshold if, based on the new facility's design, any monthly average over a year for the percentage of cooling water withdrawn is expected to equal or exceed 25 percent of the total water withdrawn.

(7) The owner or operator of a new facility that will withdraw equal to or greater than ten MGD shall comply with either the requirements of (9) or the following:

(a) reduce the facility's intake flow, at a minimum, to a level commensurate with that which can be attained by a closed-cycle recirculating cooling water system;

(b) design and construct each cooling water intake structure at the facility to a maximum through-screen design intake velocity of 0.5 feet per second;

(c) design and construct the cooling water intake structure at the facility such that the total design intake flow from all cooling water intake structures at the facility meets the following requirements:

(i) for cooling water intake structures located in a freshwater river or stream, the total design intake flow must be no greater than five percent of the source water annual mean flow;

(ii) for cooling water intake structures located in a lake or reservoir, the total design intake flow must not disrupt the natural thermal stratification or turnover pattern, where present, of the source water except in cases where the disruption is determined to be beneficial to the management of fisheries for fish and shellfish by any fishery management agency;

(d) select and implement design and construction technologies or operational measures for minimizing the impingement mortality of fish and shellfish if:

(i) there are threatened, endangered, or otherwise protected federal, state, or tribal species, or critical habitat for these species, within the hydraulic zone of influence of the cooling water intake structure;

(ii) based on information submitted by any fishery management agency or other relevant information, there are migratory and/or sport or commercial species of impingement concern to the department that pass through the hydraulic zone of influence of the cooling water intake structure; or

(iii) it is determined by the department, based on information submitted by any fishery management agency or other relevant information, that the proposed facility, after meeting the technology-based performance requirements in (7)(a), (b), and (c), would still contribute unacceptable stress to the protected species, critical habitat of those species, or species of concern;

(e) select and implement design and construction technologies or operational measures for minimizing entrainment of entrainable life stages of fish and shellfish if:

(i) there are threatened, endangered, or otherwise protected federal, state, or tribal species, or critical habitat for these species, within the hydraulic zone of influence of the cooling water intake structure; or

(ii) based on information submitted by any fishery management agency or other relevant information, there are or would be undesirable cumulative stressors affecting entrainable life stages of species of concern to the department and the department determines that the proposed facility, after meeting the technology-based performance requirements in (7)(a), (b), and (c), would still contribute unacceptable stress to the protected species, critical habitat of those species, or these species of concern;

(f) submit the application information required in 40 CFR 122.21(r) and ARM 17.30.1212(2);

(g) implement the monitoring requirements specified in 40 CFR 125.87; and

(h) implement the recordkeeping requirements in 40 CFR 125.88.

(8) The owner or operator of a new facility that will withdraw equal to or greater than 2 MGD and less than ten MGD, and that chooses not to comply with (7), shall comply with either the requirements of (9) or the following:

(a) design and construct each cooling water intake structure at the facility to a maximum through-screen design intake velocity of 0.5 feet per second;

(b) design and construct the cooling water intake structure at the facility such that the total design intake flow from all cooling water intake structures at the facility meets the following requirements:

(i) for cooling water intake structures located in a freshwater river or stream, the total design intake flow must be no greater than five percent of the source water annual mean flow;

(ii) for cooling water intake structures located in a lake or reservoir, the total design intake flow must not disrupt the natural thermal stratification or turnover pattern, where present, of the source water except in cases where the disruption is determined to be beneficial to the management of fisheries for fish and shellfish by any fishery management agency;

(c) select and implement design and construction technologies or operational measures for minimizing the impingement mortality of fish and shellfish if:

(i) there are threatened, endangered, or otherwise protected federal, state, or tribal species, or critical habitat for these species, within the hydraulic zone of influence of the cooling water intake structure;

(ii) based on information submitted by any fishery management agency or other relevant information, there are migratory and/or sport or commercial species of impingement concern to the department that pass through the hydraulic zone of influence of the cooling water intake structure; or

(iii) it is determined by the department, based on information submitted by any fishery management agency or other relevant information, that the proposed facility, after meeting the technology-based performance requirements in (8)(a) and (b), would still contribute unacceptable stress to the protected species, critical habitat of those species, or species of concern;

(d) select and implement design and construction technologies or operational measures that minimize entrainment of entrainable life stages of fish and shellfish;

(e) submit the application information required in 40 CFR 122.21(r) and ARM 17.30.1212(2)(b), (c), (d);

(f) implement the monitoring requirements specified in 40 CFR 125.87; and

(g) implement the recordkeeping requirements specified in 40 CFR 125.88.

(9) The owner or operator of a new facility that will withdraw equal to or greater than two MGD, and that chooses not to comply with (7) or (8), shall comply with the following:

(a) demonstrate to the department that the technologies employed will reduce the level of adverse environmental impact from the cooling water intake structure located at the facility to a level comparable to that which would be achieved if the facility implemented the requirements of (7)(a) and (b). This demonstration must include a showing that the impacts to fish and shellfish, including important forage and predator species, within the watershed will be comparable to those that would result if the facility implemented the requirements of (7)(a) and (b). This showing may include consideration of impacts other than impingement mortality and entrainment, including measures that will result in increases in fish and shellfish, but it must demonstrate comparable performance for species that the department identifies as species of concern. In identifying such species, the department may consider information provided by any fishery management agency along with data and information from other sources;

(b) design and construct the cooling water intake structure such that the total design intake flow from all cooling water intake structures at the facility meet the following requirements:

(i) for cooling water intake structures located in a freshwater river or stream, the total design intake flow must be no greater than five percent of the source water annual mean flow; and

(ii) for cooling water intake structures located in a lake or reservoir, the total design intake flow must not disrupt the natural thermal stratification or turnover pattern, where present, of the source water except in cases where the disruption is determined to be beneficial to the management of fisheries for fish and shellfish by any fishery management agency;

(c) submit the application information required in 40 CFR 122.21(r) and ARM 17.30.1212(3);

(d) implement the monitoring requirements specified in 40 CFR 125.87; and

(e) implement the recordkeeping requirements specified in 40 CFR 125.88.

(10) In addition to the technology-based requirements of (7), (8), and (9), the owner or operator of a new facility must comply with any more stringent requirements relating to the location, design, construction, and capacity of a cooling water intake structure or monitoring requirements that the department determines are reasonably necessary to comply with applicable water quality standards adopted by the board pursuant to 75-5-301 and 75-5-303, MCA.

(11) The board adopts and incorporates by reference the following federal regulations as part of the MPDES:

(a) 40 CFR 125.87 (July 1, 2010), which sets forth monitoring requirements for new facilities with cooling water intake structures;

(b) 40 CFR 125.88 (July 1, 2010), which sets forth record and reporting requirements for new facilities with cooling water intake structures; and

(c) 40 CFR 122.21(r) (July 1, 2010), which sets forth application requirements for new facilities with cooling water intake structures.

(d) Copies of these federal regulations may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena, MT 59620.

 

 

 

History: 75-5-305, 75-5-401, MCA; IMP, 75-5-305, 75-5-401, MCA; NEW, 2011 MAR p. 2131, Eff. 10/14/11.

17.30.1212   INFORMATION REQUIREMENTS FOR COOLING WATER INTAKE STRUCTURES FOR NEW FACILITIES
(1) The owner or operator of a new facility with cooling water intake structures shall submit to the department a statement specifying its intent to comply with the technology-based requirements in either (7), (8), or (9) of ARM 17.30.1211.

(2) The owner or operator of a new facility that chooses to comply with the requirements of either (7) or (8) of ARM 17.30.1211 shall, in addition to meeting the application requirements of 40 CFR 122.21(r), collect and submit to the department the following information, when applying for a new or reissued permit, to demonstrate compliance with (7) or (8) of ARM 17.30.1211. (The information required under (a) applies only to an owner or operator that chooses to comply with (7) of ARM 17.30.1211):

(a) flow reduction information demonstrating a reduction in flow to a level that is commensurate with that which can be attained by a closed-cycle recirculating cooling water system, including:

(i) a narrative description of the facility's system that has been designed to reduce the facility's intake flow to a level commensurate with that which can be attained by a closed-cycle recirculating cooling water system and any engineering calculations, including documentation demonstrating that make-up and blowdown flows have been minimized; and

(ii) if the flow reduction requirement is met entirely, or in part, by reusing or recycling water withdrawn for cooling purposes in subsequent industrial processes, documentation that the amount of cooling water that is not reused or recycled has been minimized;

(b) velocity information demonstrating that the facility complies with the requirement to meet a maximum through-screen design intake velocity of no more than 0.5 feet per second at each cooling water intake structure as required in (7)(b) and (8)(a) of ARM 17.30.1211, including:

(i) a narrative description of the design, structure, equipment, and operation used to meet the velocity requirement; and

(ii) design calculations showing that the velocity requirement will be met at minimum ambient source water surface elevations, based on best professional judgment using available hydrological data, and maximum head loss across the screens or other device;

(c) source waterbody flow information demonstrating that the facility's cooling water intake structure meets the flow requirements in (7)(c) and (8)(b) of ARM 17.30.1211, including:

(i) for cooling water intake structures located in a freshwater river or stream, the annual mean flow and any supporting documentation and engineering calculations to show that the facility's cooling water intake structure meets the flow requirements; and

(ii) for cooling water intake structures located in a lake or reservoir, a narrative description of the waterbody thermal stratification and any supporting documentation and engineering calculations to show that the natural thermal stratification and turnover pattern will not be disrupted by the total design intake flow. In cases where the disruption is determined to be beneficial to the management of fisheries for fish and shellfish, supporting documentation and a written concurrence from any fisheries management agency with responsibility for fisheries potentially affected by the facility's cooling water intake structure(s); and

(d) a design and construction technology plan demonstrating compliance with (7)(d) and (e) or (8)(c) and (d) of ARM 17.30.1211, including:

(i) information to demonstrate whether or not the facility meets the criteria of (7)(d) and (e) or (8)(c) and (d) of ARM 17.30.1211;

(ii) delineation of the hydraulic zone of influence for the facility's cooling water intake structure; and

(iii) new facilities required to install design and construction technologies and/or operational measures must develop a plan explaining the technologies and measures that have been selected based on information collected for the source water biological baseline characterization required by 40 CFR 122.21(r)(3). (Examples of appropriate technologies include, but are not limited to, wedgewire screens, fine mesh screens, fish handling and return systems, barrier nets, aquatic filter barrier systems, and similar technologies. Examples of appropriate operational measures include, but are not limited to, seasonal shutdowns or reductions in flow, continuous operations of screens, and similar measures.) The plan must contain the following information:

(A) a narrative description of the design and operation of the design and construction technologies, including fish-handling and return systems, that will be used to maximize the survival of those species expected to be most susceptible to impingement, including species-specific information that demonstrates the efficacy of the technology;

(B) a narrative description of the design and operation of the design and construction technologies that will be used to minimize entrainment of those species expected to be the most susceptible to entrainment, including species-specific information that demonstrates the efficacy of the technology; and

(C) design calculations, drawings, and estimates to support the descriptions provided in (2)(d)(iii)(A) and (B).

(3) The owner or operator of a new facility that chooses to comply with (9) of ARM 17.30.1211 shall, in addition to meeting the application requirements of 40 CFR 122.21(r), collect and submit to the department the following information, when applying for a new or reissued permit, to demonstrate compliance with (9) of ARM 17.30.1211:

(a) source waterbody flow information to demonstrate that the facility's cooling water intake structure meets the source waterbody requirements in (9)(b) of ARM 17.30.1211:

(i) for cooling water intake structures located in a freshwater river or stream, the annual mean flow and any supporting documentation and engineering calculations to show that the facility's cooling water intake structure meets the flow requirements; and

(ii) for cooling water intake structures located in a lake or reservoir, a narrative description of the waterbody thermal stratification, and any supporting documentation and engineering calculations to show that the natural thermal stratification and turnover pattern will not be disrupted by the total design intake flow. In cases where the disruption is determined to be beneficial to the management of fisheries for fish and shellfish, supporting documentation and a written concurrence from any fisheries management agency with responsibility for fisheries potentially affected by the facility's cooling water intake structure(s);
(b) a comprehensive demonstration study to characterize the source water baseline in the vicinity of the cooling water intake structure(s), to characterize operation of the cooling water intake(s), and to confirm that the technology(ies) proposed and/or implemented for the facility's cooling water intake structure reduce the impacts to fish and shellfish to levels comparable to those achieved by implementing the requirements of (7)(a) and (b) in ARM 17.30.1211. To meet the "comparable level" requirement, the owner or operator shall demonstrate that:

(i) there is a reduction in both impingement mortality and entrainment of all life stages of fish and shellfish to 90 percent or greater of the reduction that would be achieved through (7)(a) and (b) of ARM 17.30.1211; or

(ii) if the demonstration includes consideration of impacts other than impingement mortality and entrainment, that the measures taken will maintain the fish and shellfish in the waterbody at a level substantially similar to that which would be achieved through (7)(a) and (b) of ARM 17.30.1211;

(c) a plan containing a proposal for how information will be collected to support the comprehensive demonstration study required in (3)(b). The plan must include:

(i) a description of the proposed and/or implemented technology(ies) to be evaluated in the study;

(ii) a list and description of any historical studies characterizing the physical and biological conditions in the vicinity of the proposed or actual intakes and their relevancy to the proposed study. If an owner or operator proposes to rely on existing source waterbody data, it must be no more than five years old, and the owner or operator must demonstrate that the existing data are sufficient to develop a scientifically valid estimate of potential impingement and entrainment impacts and provide documentation showing that the data were collected using appropriate quality assurance and quality control procedures;

(iii) any public participation or consultation with federal or state agencies undertaken in developing the plan; and

(iv) a sampling plan for data that will be collected using actual field studies in the source waterbody. The sampling plan must document all methods and quality assurance procedures for sampling and data analysis. The proposed sampling and data analysis methods must be appropriate for a quantitative survey and must be based on consideration of methods used in other studies performed in the source waterbody. The sampling plan must include:

(A) a description of the study area, including the area of influence of the cooling water intake structure and at least 100 meters beyond;

(B) taxonomic identification of the sampled or evaluated biological assemblages, including all life stages of fish and shellfish; and

(C) a description of all sampling and data analysis methods; and

(d) documentation of the results of the comprehensive demonstration study required in (3)(b), including:

(i) a source water biological study, which must include:

(A) a taxonomic identification and characterization of aquatic biological resources including:

(I) a summary of historical and contemporary aquatic biological resources;

(II) determination and description of the target populations of concern (those species of fish and shellfish and all life stages that are most susceptible to impingement and entrainment); and

(III) a description of the abundance and temporal/spatial characterization of the target populations based on the collection of multiple years of data to capture the seasonal and daily activities (such as, spawning, feeding, and water column migration) of all life stages of fish and shellfish found in the vicinity of the cooling water intake structure;

(B) an identification of all threatened or endangered species that might be susceptible to impingement and entrainment by the proposed cooling water intake structure(s); and

(C) a description of additional chemical, water quality, and other anthropogenic stresses on the source waterbody;

(ii) an evaluation of potential cooling water intake structure effects, which must include:

(A) calculations of the reduction in impingement mortality and entrainment of all life stages of fish and shellfish that would need to be achieved by the technologies that have been selected to implement and to meet requirements under (9) of ARM 17.30.1211. In order to do the calculation, the owner or operator shall determine the reduction in impingement mortality and entrainment that would be achieved by implementing the requirements of (7)(a) and (b) of ARM 17.30.1211 at the facility; and

(B) an engineering estimate of efficacy for the proposed or implemented technologies used to minimize impingement mortality and entrainment of all life stages of fish and shellfish and maximize survival of impinged life stages of fish and shellfish. The estimate of efficacy must include a demonstration that the proposed or implemented technologies reduce impingement mortality and entrainment of all life stages of fish and shellfish to a comparable level to that which would be achieved if the requirements in (7)(a) and (b) of ARM 17.30.1211 were implemented. The efficacy projection must also include a site-specific evaluation of the technology's suitability for reducing impingement mortality and entrainment based on the results of the source water biological study described in (3)(d)(i). The efficacy estimates may be determined based on case studies that have been conducted in the vicinity of the cooling water intake structure or site-specific technology prototype studies;

(iii) an evaluation of proposed restoration measures, if the owner or operator proposes to use restoration measures to maintain the fish and shellfish as allowed in (9)(a) of ARM 17.30.1211. The evaluation must include the following:

(A) information and data to show coordination with the appropriate fishery management agency(ies); and

(B) a plan that provides a list of the measures proposed to be implemented and an explanation of how the owner or operator will demonstrate and continue to ensure that the proposed restoration measures will maintain the fish and shellfish in the waterbody to a substantially similar level to that which would be achieved through (7)(a) and (b) of ARM 17.30.1211; and

(iv) a verification monitoring plan that must include:

(A) a plan to conduct, at a minimum, two years of monitoring to verify the full-scale performance of the proposed or implemented technologies and operational measures. The verification plan must begin at the start of operations of the cooling water intake structure and continue for a sufficient period of time to demonstrate that the facility is reducing the level of impingement and entrainment to the level documented in (3)(d)(ii). The plan must describe the frequency of monitoring and the parameters to be monitored. The department will use the verification monitoring to confirm that the facility is meeting the level of impingement mortality and entrainment reduction required in (9) of ARM 17.30.1211; and

(B) a plan to conduct monitoring to verify that the restoration measures will maintain the fish and shellfish in the waterbody to a substantially similar level as that which would be achieved through (7)(a) and (b) of ARM 17.30.1211.

(4) The department shall review the materials submitted by an owner or operator of a new facility with cooling water intake structures and impose appropriate requirements and conditions in permits to ensure compliance with ARM 17.30.1211, in accordance with 40 CFR 125.89.

(5) The board adopts and incorporates by reference the following federal regulations as part of the MPDES:

(a) 40 CFR 125.89 (July 1, 2010), which sets forth procedures and requirements for imposing permit conditions for new facilities with cooling water intake structures; and

(b) 40 CFR 122.21(r) (July 1, 2010), which sets forth application requirements for new facilities with cooling water intake structures.

(c) Copies of these federal regulations may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena, MT 59620.

History: 75-5-305, 75-5-401, MCA; IMP, 75-5-305, 75-5-401, MCA; NEW, 2011 MAR p. 2131, Eff. 10/14/11.

17.30.1213   ALTERNATIVE REQUIREMENTS FOR COOLING WATER INTAKE STRUCTURES FOR NEW FACILITIES
(1) Any interested person may request that alternative requirements less stringent than those required in ARM 17.30.1211(7) through (10) be imposed in a permit. The department may establish alternative requirements less stringent than the requirements of ARM 17.30.1211(7) through (10) only if:

(a) there is an applicable requirement under ARM 17.30.1211(7) through (10);

(b) the department determines that data specific to the facility indicate that compliance with the requirement at issue would result in compliance costs wholly out of proportion to the costs EPA considered in establishing the requirement at issue or would result in significant adverse impacts on local air quality, significant adverse impacts on local water resources other than impingement or entrainment, or significant adverse impacts on local energy markets;

(c) the alternative requirement requested is no less stringent than justified by the wholly out of proportion costs or the significant adverse impacts on local air quality, significant adverse impacts on local water resources other than impingement or entrainment, or significant adverse impacts on local energy markets; and

(d) the alternative requirement will ensure compliance with other applicable provisions of the Montana Water Quality Act, Title 75, chapter 5, MCA, and the federal Clean Water Act.

(2) The burden is on the person requesting the alternative requirement to demonstrate that alternative requirements should be authorized.

History: 75-5-305, 75-5-401, MCA; IMP, 75-5-305, 75-5-401, MCA; NEW, 2011 MAR p. 2131, Eff. 10/14/11.

17.30.1214   TECHNOLOGY-BASED REQUIREMENTS FOR COOLING WATER INTAKE STRUCTURES FOR EXISTING FACILITIES
(1) The purpose of this rule is to establish technology-based requirements that apply to the location, design, construction, and capacity of the cooling water intake structures at existing facilities. This rule implements section 316(b) of the federal Clean Water Act for existing facilities. These requirements are implemented through MPDES permits.

(2) Section 316(b) of the federal Clean Water Act provides that any standards established pursuant to section 301 and 306 of the federal Clean Water Act and applicable to point sources shall require that the location, design, construction, and capacity of the cooling water intake structure reflect the best technology available for minimizing adverse environmental impact.

(3) Existing facilities with cooling water intake structures that are not subject to technology-based requirements under ARM 17.30.1211 must meet the requirements of section 316(b) of the federal Clean Water Act, as determined by the department on a case-by-case, best professional judgment (BPJ) basis.

History: 75-5-305, 75-5-401, MCA; IMP, 75-5-305, 75-5-401, MCA; NEW, 2011 MAR p. 2131, Eff. 10/14/11.

17.30.1301   PURPOSE AND SCOPE
(1) The purpose of this subchapter, taken together with subchapters 11, 12, and 14, is to establish and implement one common system for issuing permits for point sources discharging pollutants into state waters, and is intended to allow the board and department to administer a pollutant discharge permit system which is compatible with the national pollutant discharge elimination system as established by the U.S. Environmental Protection Agency pursuant to section 402 of the federal Clean Water Act, 33 USC 1251, et seq.
History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 220, Eff. 2/14/03.

17.30.1302   CONFLICTING PROVISIONS; SEVERABILITY
(1) The provisions of the MPDES rules are to be construed as being compatible with and complementary to each other. In the event that any of these rules are found by a court of competent jurisdiction to be contradictory, the more stringent provisions shall apply.

(2) In the event that any provision of these rules is found to be invalid by a court of competent jurisdiction, the remaining MPDES rules shall not be affected or diminished thereby.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1303   INCORPORATIONS BY REFERENCE

This rule has been repealed.

History: 75-5-304, MCA; IMP, 75-5-304, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 2003 MAR p. 220, Eff. 2/14/03; AMD, 2006 MAR p. 532, Eff. 2/24/06; AMD, 2007 MAR p. 201, Eff. 2/9/07; REP, 2012 MAR p. 2604, Eff. 12/21/12.

17.30.1304   DEFINITIONS

In this subchapter, the following terms have the meanings or interpretations indicated below and shall be used in conjunction with and are supplemental to those definitions contained in 75-5-103, MCA.

(1) "Act" means the Montana Water Quality Act, Title 75, chapter 5, MCA.

(2) "Administrator" means the administrator of the United States Environmental Protection Agency.

(3) "Animal feeding operation" means:

(a) a lot or facility (other than an aquatic animal production facility) where the following conditions are met:

(i) animals (other than aquatic animals) have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period; and

(ii) crops, vegetation forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility.

(b) Two or more animal feeding operations under common ownership are considered, for the purposes of these rules, to be a single animal feeding operation if they adjoin each other or if they use a common area or system for the disposal of wastes.

(4) "Applicable standards and limitations" means all state, interstate, and federal standards and limitations to which a "discharge" or a related activity is subject under the federal Clean Water Act, including "effluent limitations," water quality standards, standards of performance, toxic effluent standards or prohibitions, "best management practices," and pretreatment standards.

(5) "Application" means the department's standard form for applying for a permit including any additions, revisions, or modifications to the forms.

(6) "Aquaculture project" means a defined managed water area which uses discharges of pollutants into that designated area for the maintenance or production of harvestable freshwater plants or animals.

(7) "Aquatic animal production facility" means a hatchery, fish farm, or similar operation.

(8) "Average monthly discharge limitation" means the highest allowable average of daily discharges over a calendar month, calculated as the sum of all daily discharges measured during a calendar month divided by the number of daily discharges measured during that month.

(9) "Average weekly discharge limitation" means the highest allowable average of daily discharges over a calendar week, calculated as the sum of all daily discharges measured during a calendar week divided by the number of daily discharges measured during that week.

(10) "Best management practices" ("BMPs") means schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of state waters. BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.

(11) "Board" means the Montana Board of Environmental Review established by 2-15-3502, MCA.

(12) "Bypass" means the intentional diversion of waste streams from any portion of a treatment facility.

(13) "Concentrated animal feeding operation" (CAFO) is defined in 75-5-801, MCA.

(14) "Continuous discharge" means a discharge which occurs without interruption throughout the operating hours of the facility, except for infrequent shutdowns for maintenance, process changes, or other similar activities.

(15) "Conventional pollutant" is defined in ARM 17.30.1202.

(16) "Cooling water" is defined in ARM 17.30.1202.

(17) "Cooling water intake structure" is defined in ARM 17.30.1202.

(18) "Daily discharge" means the discharge of a pollutant measured during a calendar day or any 24-hour period that reasonably represents the calendar day for purposes of sampling. For pollutants with limitations expressed in units of mass, the daily discharge is calculated as the total mass of the pollutant discharged over the day. For pollutants with limitations expressed in other units of measurement, the daily discharge is calculated as the average measurement of the pollutant over the day.

(19) "Department" means the Montana Department of Environmental Quality established by 2-15-3501, MCA.

(20) "Direct discharge" means the discharge of a pollutant.

(21) "Discharge," when used without qualification, means the discharge of a pollutant.

(22) "Discharge of a pollutant" and "discharge of pollutants" each means any addition of any pollutant or combination of pollutants to state waters from any point source. This definition includes additions of pollutants into water of the state from: surface runoff which is collected or channelled by man; discharges through pipes, sewers, or other conveyances owned by a state, municipality, or other person which do not lead to a treatment works. This term does not include an addition of pollutants by any "indirect discharger."

(23) "Discharge monitoring report" ("DMR") means the department uniform form for the reporting of self-monitoring results by permittees.

(24) "Draft permit" means a document prepared under ARM 17.30.1364 indicating the department's tentative decision to issue or deny, modify, revoke and reissue, terminate, or reissue a permit. A notice of intent to terminate a permit and a notice of intent to deny a permit, as discussed in ARM 17.30.1365, are types of draft permits. A denial of a request for modification, revocation and reissuance, or termination, as discussed in ARM 17.30.1363 is not a draft permit. A proposed permit is not a draft permit.

(25) "Effluent limitation" is defined in ARM 17.30.1202.

(26) "Effluent limitations guidelines" means a regulation published by the administrator under 40 CFR chapter 1, subchapter N, pursuant to section 304(b) of the federal Clean Water Act to adopt or revise effluent limitations.

(27) "Effluent standards" is defined in 75-5-103, MCA, and is synonymous with the term "effluent limitation," as defined in ARM 17.30.1202, with the exception that it does not include a schedule of compliance.

(28) "Entrainment" means the incorporation of all life stages of fish and shellfish with intake water flow entering and passing through a cooling water intake structure and into a cooling water system.

(29) "EPA" means the United States Environmental Protection Agency.

(30) "Existing source" means any source which is not a new source or a new discharger.

(31) "Facilities or equipment" means buildings, structures, process or production equipment, or machinery which form a permanent part of the new source and which will be used in its operation, if these facilities or equipment are of such value as to represent a substantial commitment to construct. It excludes facilities or equipment used in connection with feasibility, engineering, and design studies regarding the source or water pollution treatment for the source.

(32) "Facility or activity" means any MPDES point source or any other facility or activity (including land or appurtenances thereto) that is subject to regulation under the MPDES program.

(33) "Federal Clean Water Act" means the federal legislation at 33 USC 1251, et seq.

(34) "General permit" means an MPDES permit issued under ARM 17.30.1341 authorizing a category of discharges under the Act within a geographical area.

(35) "Hazardous substance" means any element or compound designated by EPA pursuant to section 311(b)(2)(a) of the federal Clean Water Act and listed in 40 CFR 116.4.

(36) "Impingement" means the entrapment of all life stages of fish and shellfish on the outer part of an intake structure or against a screening device during periods of intake water withdrawal.

(37) "Indirect discharger" means a non-domestic discharger introducing pollutants to a publicly owned treatment works.

(38) "Log sorting and log storage facilities" means facilities whose discharges result from the holding of unprocessed wood, for example, logs or round wood with bark or after removal of bark held in self-contained bodies of water (mill ponds or log ponds) or stored on land where water is applied intentionally on the logs (wet decking).

(39) "Major facility" means any MPDES facility or activity classified as such by the department in conjunction with the regional administrator.

(40) "Maximum daily discharge limitation" means the highest allowable daily discharge.

(41) "Montana pollutant discharge elimination system" (MPDES) means the system developed by the board and department for issuing permits for the discharge of pollutants from point sources into state waters. The MPDES is specifically designed to be compatible with the federal NPDES program established and administered by the EPA.

(42) "MPDES form" means any issued MPDES permit and any uniform form developed for use in the MPDES and prescribed in rules adopted by the board, including MPDES forms, MPDES permit applications, and MPDES reporting forms.

(43) "Municipality" means a city, town, county, district, association, or other public body created by or pursuant to state law and having jurisdiction over discharge of pollutants or a designated and approved management agency under section 1288 of the federal Clean Water Act.

(44) "National pollutant discharge elimination system" (NPDES) means national program for issuing, modifying, revoking and reissuing, terminating, monitoring and enforcing permits, and imposing and enforcing pretreatment requirements, under sections 307, 402, 318, and 405 of the federal Clean Water Act. The term includes "approved program."

(45) "New discharger" means any building structure, facility, or installation:

(a) from which there is or may be a discharge of pollutants;

(b) that did not commence the discharge of pollutants at a particular site prior to August 13, 1979;

(c) which is not a new source; and

(d) which has never received a finally effective MPDES permit for discharges at that site. This definition includes an indirect discharger which commences discharging into state waters after August 13, 1979.

(46) "New facility" is defined in ARM 17.30.1202.

(47) "New source" means any building, structure, facility, or installation from which there is or may be a discharge of pollutants, the construction of which commenced:

(a) after promulgation of standards of performance under section 306 of the federal Clean Water Act which are applicable to such source;

(b) after proposal of standards of performance in accordance with section 306 of the federal Clean Water Act which are applicable to such source, but only if the standards are promulgated in accordance with section 306 within 120 days of their proposal; or

(c) after the publication of proposed pretreatment standards under section 307(c) of the federal Clean Water Act which will be applicable to such source if such standards are thereafter promulgated with that section, provided that:

(i) the building, structure, facility, or installation is constructed at a site at which no other source is located;

(ii) the building, structure, facility, or installation totally replaces the process or production equipment that causes the discharge of pollutants at an existing source; or

(iii) the production or wastewater generating processes of the building, structure, facility, or installation are substantially independent of an existing source at the same site. In determining whether these are substantially independent, factors such as the extent to which the new facility is integrated with the existing plant, and the extent to which the new facility is engaged in the same general type of activity as the existing source should be considered.

(d) construction on a site at which an existing source is located results in a modification rather than a new source if the construction does not create a new building, structure, facility, or installation meeting the criteria of (c)(ii) or (iii) but otherwise alters, replaces, or adds to existing process or production equipment.

(e) construction of a new source as defined under this section has commenced if the owner or operator has:

(i) begun, or caused to begin as part of a continuous on-site construction program;

(A) any placement, assembly, or installation of facilities or equipment; or

(B) significant site preparation work including clearing, excavation, or removal of existing buildings, structures, or facilities which is necessary for the placement, assembly, or installation of new source facilities or equipment; or

(ii) entered into a binding contractual obligation for the purchase of facilities or equipment which are intended to be used in its operation within a reasonable time. Options to purchase or contracts which can be terminated or modified without substantial loss, and contracts for feasibility, engineering, and design studies do not constitute a contractual obligation under this section.

(48) "Owner or operator" means any person who owns, leases, operates, controls, or supervises a point source.

(49) "Permit" means an authorization or license issued by EPA or an "approved state" to implement the requirements of this rule and 40 CFR Parts 123 and 124. "Permit" includes an NPDES "general permit" (ARM 17.30.1341). Permit does not include any permit which has not yet been the subject of final agency action, such as a "draft permit" or a "proposed permit."

(50) "Person" means any individual, partnership, firm, association, state, interstate body, municipality, public or private corporation, subdivision, or agency of the state, trust, estate, federal agency, or any other legal entity, or an agent or employee thereof.

(51) "Pesticide discharges from pesticide application" means the discharges that result from the application of biological pesticides, and the application of chemical pesticides that leave a residue, from point sources into surface water. In the context of this definition, this does not include agricultural storm water discharges and return flows from irrigated agriculture.

(52) "Pesticide residue" means that portion of a pesticide application that is discharged from a point source into surface water and no longer provides pesticidal benefits. It also includes any degradates of the pesticide.

(53) "Point source" means any discernible, confined, or discrete conveyance, including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel, or other floating craft, from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture or agricultural storm water runoff.

(54) "Pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal, and agricultural wastes discharged into water. The terms "sewage," "industrial waste," and "other wastes" as defined in 75-5-103, MCA, are interpreted as having the same meaning as pollutant.

(55) "Pretreatment standards" means the standards promulgated by the EPA and set forth in 40 CFR Part 403 and 40 CFR chapter 1, subchapter N.

(56) "Primary industry category" means any industry category listed in Appendix A of 40 CFR Part 122.

(57) "Privately owned treatment works" means any device or system which is:

(a) used to treat wastes from any facility whose operator is not the operator of the treatment works; and

(b) not a publicly owned treatment works.

(58) "Process wastewater" means any water which, during manufacturing or processing, comes into direct contact with or results from the production or use of any raw material, intermediate product, finished product, byproduct, or waste product.

(59) "Proposed permit" means an MPDES permit prepared after the close of the public comment period (and, when applicable, any public hearing) which is sent to the department for review before final issuance by the department. A proposed permit is not a draft permit.

(60) "Publicly owned treatment works" (POTW) means any device or system used in the treatment (including recycling and reclamation) of municipal sewage or industrial wastes of a liquid nature which is owned by a state or municipality. This definition includes:

(a) sewers, pipes, or other conveyances only if they convey wastewater to a POTW providing treatment; and

(b) a city, town, county, district, or other political subdivision created by or under state law, that has jurisdiction over indirect discharges to and the discharges from a treatment works.

(61) "Recommencing discharger" means a source which recommences discharge after terminating operations.

(62) "Regional administrator" means the administrator of Region VIII of EPA, which has jurisdiction over federal water pollution control activities in the state of Montana.

(63) "Rock crushing and gravel washing facilities" means facilities which process crushed and broken stone, gravel, and riprap.

(64) "Schedule of compliance" means a schedule of remedial measures included in a permit, including an enforceable sequence of interim requirements (for example, actions, operations, or milestone events) leading to compliance with the Act and requirements thereunder.

(65) "Severe property damage" means substantial physical damage to property, damage to the treatment facilities which causes them to become inoperable, or substantial and permanent loss of natural resources which can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production.

(66) "Sewage sludge" means the solids, residues, and precipitate separated from or created in sewage by the unit processes of a publicly owned treatment works. "Sewage" as used in this definition means any wastes, including wastes from humans, households, commercial establishments, industries, and storm water runoff, that are discharged to or otherwise enter a publicly owned treatment works.

(67) "Sewage system" means any device for collecting or conducting sewage, industrial wastes, or other wastes to an ultimate disposal point.

(68) "Silvicultural point source" means any discernible, confined, and discrete conveyance related to:

(a) rock crushing and gravel washing (defined in (51)), or

(b) log sorting or log storage facilities (defined in (29)) which is operated in connection with silvicultural activities and from which pollutants are discharged into state waters. The term does not include non-point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff. However, some of these activities (such as stream crossing for roads) may involve point source discharges of dredged or fill material which may require a section 404 permit under the federal Clean Water Act.

(69) "Site" means the land or water area where any facility or activity is physically located or conducted, including adjacent land used in connection with the facility or activity.

(70) "Source" means any building, structure, facility, or installation from which there is or may be a discharge of pollutants.

(71) "Source water" means the state water body (state surface waters) from which the cooling water is drawn.

(72) "State waters" means any body of water, irrigation system, or drainage system, either surface or underground. This subchapter does not apply to irrigation waters where the waters are used up within the irrigation system and said waters are not returned to any other state waters.

(73) "Storm water" is defined in ARM 17.30.1102.

(74) "Storm water discharge associated with an industrial activity" is defined in 40 CFR 122.26(b)(14).

(75) "Storm water discharge associated with small construction activity" is defined in 40 CFR 122.26(b)(15).

(76) "Total dissolved solids" means the total dissolved (filterable) solids as determined by use of the method specified in 40 CFR Part 136.

(77) "Toxic pollutant" means any pollutant designated by EPA under section 307(a)(1) of the federal Clean Water Act and listed in 40 CFR 401.15.

(78) "Treatment works" means any works installed for treating or holding sewage, industrial wastes, or other wastes.

(79) "Upset" means an exceptional incident in which there is unintentional and temporary noncompliance with technology-based permit effluent limitations because of factors beyond the reasonable control of the permittee. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.

(80) "Variance" is defined in ARM 17.30.1202.

(81) "Whole effluent toxicity" means the aggregate toxic effect of an effluent measured by a toxicity test.


History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 220, Eff. 2/14/03; AMD, 2012 MAR p. 2604, Eff. 12/21/12; AMD, 2020 MAR p. 1879, Eff. 10/24/20.

17.30.1310   EXCLUSIONS

(1) The following discharges do not require MPDES permits:

(a) discharges of dredged or fill material into waters of the United States that are regulated under section 404 of the federal Clean Water Act;

(b) the introduction of sewage, industrial wastes, or other pollutants into publicly owned treatment works by indirect dischargers. Plans or agreements to switch to this method of disposal in the future do not relieve dischargers of the obligation to have and comply with permits until all discharges of pollutants to state waters are eliminated (see also ARM 17.30.1350(2)). This exclusion does not apply to the introduction of pollutants to privately owned treatment works or to other discharges through pipes, sewers, or other conveyances owned by a state, municipality, or other party not leading to treatment works;

(c) any discharge in compliance with the instructions of an on-scene coordinator pursuant to 40 CFR Part 300, et seq. (The National Oil and Hazardous Substances Pollution Plan) or 33 CFR Parts 153-157 (Pollution by Oil and Hazardous Substances);

(d) any introduction of pollutants from non point-source agricultural and silvicultural activities, including storm water runoff from orchards, cultivated crops, pastures, range lands, and forest lands, but not discharges from concentrated animal feeding operations as defined in ARM 17.30.1304(15), discharges from concentrated aquatic animal production facilities as defined in ARM 17.30.1331(1), discharges to aquaculture projects as defined in ARM 17.30.1304(5), and discharges from silvicultural point sources as defined in ARM 17.30.1304(65);

(e) return flows from irrigated agriculture;

(f) discharges into a privately owned treatment works, except as the department may otherwise require under ARM 17.30.1344; and

(g) discharges from a water transfer. Water transfer means an activity that conveys or connects waters of the state without subjecting the transferred water to intervening industrial, municipal, or commercial use. This exclusion does not apply to pollutants introduced by the water transfer activity itself to the water being transferred.

 

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 2012 MAR p. 2604, Eff. 12/21/12.

17.30.1311   PROHIBITIONS
No permit may be issued:

(1) when the conditions of the permit do not provide for compliance with the applicable requirements of the Act, or rules adopted under the Act;

(2) when the applicant is required to obtain a state or other appropriate certification under section 401 of the federal Clean Water Act and that certification has not been obtained or waived;

(3) by the department where the regional administrator has objected to issuance of the permit under 40 CFR 123.44;

(4) when the imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected states;

(5) for the discharge of any radiological, chemical, or biological warfare agent or high-level radioactive waste;

(6) for any discharge inconsistent with a plan or plan amendment approved under section 208(b) of the federal Clean Water Act;

(7) to a new source or a new discharger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards. The owner or operator of a new source or new discharger proposing to discharge into a water segment which does not meet applicable water quality standards or is not expected to meet those standards even after the application of the effluent limitations required by ARM 17.30.1201 and 17.30.1203, and for which the state or interstate agency has performed a pollutants load allocation for the pollutant to be discharged, shall demonstrate, before the close of the public comment period, that:

(a) there are sufficient remaining pollutant load allocations to allow for the discharge; and

(b) the existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1312   EFFECT OF PERMIT
(1) Except for any toxic effluent standards and prohibitions applicable under ARM 17.30.1206, compliance with a permit during its term constitutes compliance, for purposes of enforcement, with all applicable effluent standards. However, a permit may be modified, revoked and reissued, or terminated during its term for cause as set forth in ARM 17.30.1361 and 17.30.1363.

(2) The issuance of a permit does not convey any property rights of any sort, or any exclusive privilege.

(3) The issuance of a permit does not authorize any injury to persons or property or invasion of other private rights, or any infringement of state or local law or regulations.

History: 75-5-201, 75 5 401, MCA; IMP, 75 5 401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1313   CONTINUATION OF EXPIRING PERMITS
(1) The conditions of an expired permit continue in force until the effective date of a new permit if:

(a) the permittee has submitted a timely application under ARM 17.30.1322, which is a complete application for a new permit;

(b) the department, through no fault of the permittee, does not issue a new permit with an effective date under ARM 17.30.1378 on or before the expiration date of the previous permit.

(2) Permits continued under this rule remain fully effective and enforceable until the effective date of a new permit.

(3) When the permittee is not in compliance with the conditions of the expiring or expired permit the department may choose to do any or all of the following:

(a) initiate enforcement action based upon the permit which has been continued;

(b) issue a notice of intent to deny the new permit under ARM 17.30.1370(2) ;

(c) issue a new permit under ARM 17.30.1370 with appropriate conditions; or

(d) take other actions authorized by the MPDES rules.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1321   CONFIDENTIALITY OF INFORMATION
(1) In accordance with 75-5-105 , MCA, any information concerning sources of pollution that is furnished to the board or department or which is obtained by either of them is a matter of public record and open to public use, provided that trade secrets may be maintained or be confidential if so determined by a court of competent jurisdiction.

(2) Claims of confidentiality for the following information must be denied:

(a) the name and address of any permit applicant or permittee; and

(b) permit applications, permits, and effluent data.

(3) Subject to (1) , information required by MPDES application forms provided by the department under ARM 17.30.1322 may not be claimed confidential, including information submitted on the forms themselves and any attachments used to supply information required by the forms.

History: 75-5-201, 75-5-105, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1322   APPLICATION FOR A PERMIT

(1) Any person who discharges or proposes to discharge pollutants and who does not have an effective permit, except persons covered by general permits under ARM 17.30.1341, excluded under ARM 17.30.1310, or a user of a privately owned treatment works unless the department requires otherwise under ARM 17.30.1344, shall submit a complete application to the department in accordance with this rule and ARM 17.30.1364 and 17.30.1365, 17.30.1370 through 17.30.1379, and 17.30.1383.

(a) All applicants for MPDES permits shall submit applications on department permit application forms. More than one application form may be required from a facility depending on the number and types of discharges or outfalls found there. Application forms may be obtained by contacting the Water Protection Bureau at (406) 444-5546; Department of Environmental Quality, Water Protection Bureau, 1520 East Sixth Avenue, P.O. Box 200901, Helena, MT 59620-0901; or on the department's web site at http://deq.mt.gov/default.mcpx.

(b) All applicants, other than publicly owned treatment works (POTWs), shall submit Form 1.

(c) Applicants for new and existing POTWs shall submit the information required in (12) using Form 2A.

(d) Applicants for concentrated animal feeding operations or concentrated aquatic animal production facilities shall submit Form 2B.

(e) Applicants for existing industrial facilities, including manufacturing facilities, commercial facilities, mining activities, and silvicultural activities, shall submit Form 2C.

(f) Applicants for new industrial facilities that discharge process wastewater shall submit Form 2D.

(g) Applicants for new and existing industrial facilities that discharge only non-process wastewater shall submit Form 2E.

(h) Applicants for new and existing facilities, whose discharge is composed entirely of storm water associated with industrial activity, shall submit Form 2F, unless exempted by (11)(b) through (d). If the discharge is composed of storm water and non-storm water, the applicant shall also submit Forms 2C, 2D, and/or 2E, as appropriate, in addition to Form 2F.

(i) Applicants for new cooling water intake structures shall submit the information required in (17) in addition to any forms required in (e) through (g).

(2) When a facility or activity is owned by one person but is operated by another person, it is the operator's duty to obtain a permit.

(3) Any person proposing a new discharge shall submit an application at least 180 days before the date on which the discharge is to commence, unless permission for a later date has been granted by the department. Persons proposing a new discharge are encouraged to submit their applications well in advance of the 180-day requirement to avoid delay. See also (13) through (15) requiring time frames where a variance may be available.

(4) Any permittee with a currently effective permit shall submit a new application at least 180 days before the expiration date of the existing permit, unless permission for a later date has been granted by the department. The department may not grant permission for applications to be submitted later than the expiration date of the existing permit.

(5) The department may not issue a permit before receiving a complete application for a permit except for MPDES general permits. An application for a permit is complete when the department receives an application form and any supplemental information which are completed to the department's satisfaction. The completeness of any application for a permit must be judged independently of the status of any other permit application or permit for the same facility or activity.

(6) All applicants for MPDES permits, other than POTWs, shall provide the following information to the department, using the department's application Form 1. Additional information required of applicants is set forth in (7) through (17):

(a) the activities conducted by the applicant which require it to obtain an MPDES permit;

(b) name, mailing address, and location of the facility for which the application is submitted;

(c) up to four standard industrial category (SIC) codes and up to four North American Industry Classification System (NAICS) codes which best reflect the principal products or services provided by the facility;

(d) the operator's name, address, telephone number, electronic mail address, ownership status, and status as federal, state, private, public, or other entity;

(e) whether the facility is located on Indian lands; 

(f) a listing of all permits or construction approvals received or applied for under any of the following programs:

(i) hazardous waste management program under the Resource Conservation and Recovery Act of 1976 (42 USC 6901, et seq.) (RCRA);

(ii) underground injection control (UIC) program under the federal Safe Drinking Water Act (SDWA);

(iii) MPDES program under the federal Clean Water Act;

(iv) prevention of significant deterioration (PSD) program under the Montana Clean Air Act;

(v) nonattainment program under the Montana Clean Air Act;

(vi) national emission standards for hazardous pollutants (NESHAPS) preconstruction approval under the Montana Clean Air Act;

(vii) ocean dumping permits under the Marine Protection Research and Sanctuaries Act;

(viii) dredge or fill permits under section 404 of the federal Clean Water Act; and

(ix) other relevant state or federal environmental permits;

(g) a topographic map, or other map if a topographic map is unavailable, extending one mile beyond the property boundaries of the source, depicting:

(i) the facility and each of its intake and discharge structures;

(ii) each of its hazardous waste treatment, storage, or disposal facilities;

(iii) each well where fluids from the facility are injected underground; and

(iv) those wells, springs, other surface water bodies, and drinking water wells listed in public records or otherwise known to the applicant in the map area;

(h) a brief description of the nature of the business;

(i) an indication of whether the facility uses cooling water and the source of the cooling water; and

(j) an indication of whether the facility is requesting any of the variances at (13), if known at the time of the application.

(7) Existing manufacturing, commercial, mining, and silvicultural dischargers applying for MPDES permits, except for those facilities subject to the requirements of (8), shall provide the following information to the department, using application forms provided by the department:

(a) the latitude and longitude of the outfall to the nearest 15 seconds and the name of the receiving water;

(b) a line drawing of the water flow through the facility with a water balance, showing operations contributing wastewater to the effluent and treatment units. Similar processes, operations, or production areas may be indicated as a single unit, labeled to correspond to the more detailed identification under (c). The water balance must show approximate average flows at intake and discharge points and between units, including treatment units. If a water balance cannot be determined (for example, for certain mining activities), the applicant may provide instead a pictorial description of the nature and amount of any sources of water and any collection and treatment measures; 

(c) a narrative identification of each type of process, operation, or production area that contributes wastewater to the effluent for each outfall, including process wastewater, cooling water, and storm water runoff; the average flow that each process contributes; and a description of the treatment the wastewater receives, including the ultimate disposal of any solid or fluid wastes other than by discharge. Processes, operations, or production areas may be described in general terms (for example, "dye-making reactor," "distillation tower"). For a privately owned treatment works, this information must include the identity of each user of the treatment works. The average flow of point sources composed of storm water may be estimated. The basis for the rainfall event and the method of estimation must be indicated;

(d) if any of the discharges described in (c) are intermittent or seasonal, a description of the frequency, duration, and flow rate of each discharge occurrence (except for storm water runoff, spillage, or leaks);

(e) if an effluent guideline adopted under ARM 17.30.1207 applies to the applicant and is expressed in terms of production (or other measure of operation), a reasonable measure of the applicant's actual production reported in the units used in the applicable effluent guideline. The reported measure must reflect the actual production of the facility as required by ARM 17.30.1345;

(f) if the applicant is subject to any present requirements or compliance schedules for construction, upgrading, or operation of waste treatment equipment, an identification of the abatement requirement, a description of the abatement project, and a listing of the required and projected final compliance dates;

(g) information on the effluent characteristics of pollutants specified in this subsection, except information on storm water discharges that is specified in (11)(b), must be provided according to the following: 

(i) when "quantitative data" for a pollutant are required, the applicant shall collect a sample of effluent and analyze it for the pollutant in accordance with analytical methods approved under 40 CFR Part 136, unless use of another method is required for the pollutant under 40 CFR subchapter N. When no analytical method is approved under Part 136 or required under subchapter N, the applicant may use any suitable method, but shall provide a description of the method. When an applicant has two or more outfalls with substantially identical effluents, the department may allow the applicant to test only one outfall and report that the quantitative data also apply to the substantially identical outfalls. The requirements in (vi), (vii), and (viii), that state that an applicant shall provide quantitative data for certain pollutants known or believed to be present, do not apply to pollutants present in a discharge solely as the result of their presence in intake water; however, an applicant shall report such pollutants as present. Grab samples must be used for pH, temperature, cyanide, total phenols, residual chlorine, oil and grease, and fecal coliform, including Escherichia coli (E-coli). For all other pollutants, a 24-hour composite sample, using a minimum of four grab samples, must be used, unless specified otherwise at 40 CFR Part 136. However, a minimum of one grab sample may be taken for effluents from holding ponds or other impoundments with a retention period greater than 24 hours. In addition, for discharges other than storm water discharges, the department may waive composite sampling for any outfall for which the applicant demonstrates that the use of an automatic sampler is infeasible and that the minimum of four grab samples will be a representative sample of the effluent being discharged. Results of analyses of individual grab samples for any parameter may be averaged to obtain the daily average. Grab samples that are not required to be analyzed immediately (see Table II at 40 CFR 136.3(e)) may be composited in the laboratory, provided that container, preservation, and holding time requirements are met (see Table II at 40 CFR 136.3 (e)) and that sample integrity is not compromised by compositing; 

(ii) for storm water discharges, all samples must be collected from the discharge resulting from a storm event that is greater than 0.1 inch and at least 72 hours from the previously measurable (greater than 0.1 inch rainfall) storm event. Where feasible, the variance in the duration of the event and the total rainfall of the event should not exceed 50 percent from the average or median rainfall event in that area. For all applicants, a flow-weighted composite must be taken for either the entire discharge or for the first three hours of the discharge. The flow-weighted composite sample for a storm water discharge may be taken with a continuous sampler or as a combination of a minimum of three sample aliquots taken in each hour of discharge for the entire discharge or for the first three hours of the discharge, with each aliquot being separated by a minimum period of 15 minutes. However, a minimum of one grab sample may be taken for storm water discharges from holding ponds or other impoundments with a retention period greater than 24 hours. For a flow-weighted composite sample, only one analysis of the composite of aliquots is required. For storm water discharge samples taken from discharges associated with industrial activities, quantitative data must be reported for the grab sample taken during the first 30 minutes, or as soon thereafter as practicable, of the discharge for all pollutants specified in (11)(e). For all storm water permit applicants taking flow-weighted composites, quantitative data must be reported for all pollutants specified in (11)(e) except pH, temperature, cyanide, total phenols, residual chlorine, oil and grease, fecal coliform, and fecal streptococcus. The department may allow or establish appropriate site-specific sampling procedures or requirements, including sampling locations, the season in which the sampling takes place, the minimum duration between the previous measurable storm event and the storm event sampled, the minimum or maximum level of precipitation required for an appropriate storm event, the form of precipitation sampled (snow melt or rain fall), protocols for collecting samples under 40 CFR Part 136, and additional time for submitting data on a case-by-case basis. An applicant is expected to "know or have reason to believe'' that a pollutant is present in an effluent based on an evaluation of the expected use, production, or storage of the pollutant, or on any previous analyses for the pollutant. For example, any pesticide manufactured by a facility may be expected to be present in contaminated storm water runoff from the facility;

(iii) every applicant shall report quantitative data for every outfall for the following pollutants:

(A) biochemical oxygen demand;

(B) chemical oxygen demand;

(C) total organic carbon;

(D) total suspended solids;

(E) ammonia (as N);

(F) temperature (both winter and summer); and

(G) pH;

(iv) the department may waive the reporting requirements for individual point sources or for a particular industry category for one or more of the pollutants listed in the above subsection if the applicant has demonstrated that such a waiver is appropriate because information adequate to support issuance of a permit can be obtained with less stringent requirements;

(v) each applicant with processes in one or more primary industry category (see Appendix A of 40 CFR Part 122) contributing to a discharge shall report quantitative data for the following pollutants in each outfall containing process wastewater:

(A) the organic toxic pollutants in the fractions designated in Table I of Appendix D of 40 CFR Part 122 for the applicant's industrial category or categories unless the applicant qualifies as a small business under (7)(h). Table II of Appendix D of 40 CFR Part 122 lists the organic toxic pollutants in each fraction. The fractions result from the sample preparation required by the analytical procedure which uses gas chromatography/mass spectrometry. A determination that an applicant falls within a particular industrial category for the purposes of selecting fractions for testing is not conclusive as to the applicant's inclusion in that category for any other purposes; and

(B) the pollutants listed in Table III of Appendix D of 40 CFR Part 122 (the toxic metals, cyanide, and total phenols);

(vi) each applicant shall indicate whether it knows or has reason to believe that any of the pollutants in Table IV of Appendix D of 40 CFR Part 122 (certain conventional and nonconventional pollutants) is discharged from each outfall. If an applicable effluent limitations guideline either directly limits the pollutant or, by its express terms, indirectly limits the pollutant through limitations on an indicator, the applicant shall report quantitative data. For every pollutant discharged which is not so limited in an effluent limitations guideline, the applicant shall either report quantitative data or briefly describe the reasons the pollutant is expected to be discharged;

(vii) each applicant shall indicate whether it knows or has reason to believe that any of the pollutants listed in Table II or Table III of Appendix D of 40 CFR Part 122 (the toxic pollutants and total phenols) for which quantitative data are not otherwise required under (7)(g)(v), is discharged from each outfall. For every pollutant expected to be discharged in concentrations of ten ppb or greater, the applicant shall report quantitative data. For acrolein, acrylonitrile, 2,4-dinitrophenol, and 2-methyl 4,6-dinitrophenol, where any of these four pollutants are expected to be discharged in concentrations of 100 ppb or greater, the applicant shall report quantitative data. For every pollutant expected to be discharged in concentrations less than ten ppb, or in the case of acrolein, acrylonitrile, 2,4-dinitrophenol, and 2-methyl 4,6-dinitrophenol, in concentrations less than 100 ppb, the applicant shall either submit quantitative data or briefly describe the reasons the pollutant is expected to be discharged. An applicant qualifying as a small business under (7)(h) is not required to analyze for pollutants listed in Table II of Appendix D of 40 CFR Part 122 (the organic toxic pollutants);

(viii) each applicant shall indicate whether it knows or has reason to believe that any of the pollutants in Table V of Appendix D of 40 CFR Part 122 (certain hazardous substances and asbestos) are discharged from each outfall. For every pollutant expected to be discharged, the applicant shall briefly describe the reasons the pollutant is expected to be discharged, and report any quantitative data it has for any pollutant;

(ix) each applicant shall report qualitative data, generated using a screening procedure not calibrated with analytical standards, for 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) if it:

(A) uses or manufactures 2,4,5-trichlorophenoxy acetic acid (2,4,5-T); 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5-TP); 2-(2,4,5-trichlorophenoxy) ethyl 2,2-dichloropropionate (Erbon); O,O-dimethyl O-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel); 2,4,5-trichlorophenol (TCP); or hexachlorophene (HCP); or

(B) knows or has reason to believe that TCDD is or may be present in an effluent;

(x) where quantitative data are required in (7)(g)(i) through (ix), existing data may be used, if available, in lieu of sampling done solely for the purpose of application, provided that:

(A) all data requirements are met; sampling was performed, collected, and analyzed no more than four and one-half years prior to submission;

(B) all data are representative of the discharge; and

(C) all available representative data are considered in the values reported;

(h) an applicant which qualifies as a small business under one of the following criteria is exempt from the requirements in (7)(g)(v)(A) or (vi) to submit quantitative data for the pollutants listed in Table II of Appendix D of 40 CFR Part 122 (the organic toxic pollutants):

(i) for coal mines, a probable total annual production of less than 100,000 tons per year;

(ii) for all other applicants, gross total annual sales averaging less than $100,000 per year (in second quarter 1980 dollars);

(i) a listing of any toxic pollutant which the applicant currently uses or manufactures as an intermediate or final product or byproduct. The department may waive or modify this requirement for any applicant if the applicant demonstrates that it would be unduly burdensome to identify each toxic pollutant and the department has adequate information to issue the permit;

(j) an identification of any biological toxicity tests which the applicant knows or has reason to believe have been made within the last three years on any of the applicant's discharges or on a receiving water in relation to a discharge;

(k) if a contract laboratory or consulting firm performed any of the analyses required by (7)(g), the identity of each laboratory or firm and the analyses performed;

(l) in addition to the information reported on the application form, applicants shall provide to the department, at its request, such other information as the department may reasonably require to assess the discharges of the facility and to determine whether to issue an MPDES permit. The additional information may include additional quantitative data and bioassays to assess the relative toxicity of discharges to aquatic life and requirements to determine the cause of the toxicity.

(8) Except for storm water discharges, all manufacturing, commercial, mining, and silvicultural dischargers applying for MPDES permits that discharge only non-process wastewater not regulated by an effluent limitations guideline or new source performance standard shall provide the following information to the department, using application forms provided by the department:

(a) outfall number, latitude, and longitude to the nearest 15 seconds, and the name of the receiving water;

(b) date of expected commencement of discharge (for new dischargers); 

(c) an identification of the general type of waste discharged, or expected to be discharged upon commencement of operations, including sanitary wastes, restaurant or cafeteria wastes, or noncontact cooling water; an identification of cooling water additives (if any) that are used or expected to be used upon commencement of operations, along with their composition if existing composition is available;

(d) quantitative data for the pollutants or parameters listed below, unless testing is waived by the department. The quantitative data may be data collected over the past 365 days, if they remain representative of current operations, and must include maximum daily value, average daily value, and number of measurements taken. The applicant shall collect and analyze samples in accordance with 40 CFR Part 136. Grab samples must be used for pH, temperature, oil and grease, total residual chlorine, and fecal coliform, including E-coli. For all other pollutants, a 24-hour composite sample, using a minimum of four grab samples, must be used, unless specified otherwise at 40 CFR Part 136. For a composite sample, only one analysis of the composite aliquots is required. New dischargers shall include estimates for the pollutants or parameters listed below, instead of actual sampling data, along with the source of each estimate. All levels must be reported or estimated as concentration and as total mass, except for flow, pH, and temperature.

(i) The requirements of (d) apply to:

(A) biochemical oxygen demand (BOD5);

(B) total suspended solids (TSS);

(C) fecal coliform (if believed present or if sanitary waste is or will be discharged);

(D) total residual chlorine (if chlorine is used);

(E) oil and grease;

(F) chemical oxygen demand (COD) (if noncontact cooling water is or will be discharged);

(G) total organic carbon (TOC) (if noncontact cooling water is or will be discharged);

(H) ammonia (as N);

(I) discharge flow;

(J) pH;

(K) temperature (winter and summer); and

(L) any pollutant not listed above, if the pollutant is present in the effluent and regulated by a state-adopted water quality standard;

(ii) The department may waive the testing and reporting requirements for any of the pollutants or flow listed in (i) if the applicant submits a request for such a waiver before or with the application that demonstrates that information adequate to support issuance of a permit can be obtained through less stringent requirements.

(iii) If the applicant is a new discharger, the applicant shall complete forms provided by the department by providing quantitative data in accordance with (d) no later than two years after commencement of discharge. However, the applicant need not complete those portions of the forms requiring tests that the applicant has already performed and reported under the discharge monitoring requirements of the MPDES permit.

(iv) The requirements of (d) and (d)(iii), that an applicant shall provide quantitative data or estimates of certain pollutants, do not apply to pollutants present in a discharge solely as a result of their presence in intake water. However, an applicant shall report such pollutants as present. Net credit may be provided for the presence of pollutants in intake water if the requirements of ARM 17.30.1345(9) are met;

(e) a description of the frequency of flow and duration of any seasonal or intermittent discharge (except for storm water runoff, leaks, or spills);

(f) a brief description of any treatment system used or to be used;

(g) any additional information the applicant wishes to be considered, such as influent data for the purpose of obtaining "net" credits pursuant to ARM 17.30.1345(9); and

(h) the signature of the certifying official under ARM 17.30.1323.

(9) New and existing concentrated animal feeding operations (CAFOs), defined in ARM 17.30.1304, and concentrated aquatic animal production facilities, defined in ARM 17.30.1331(1), shall provide the following information to the department, using application Form2B:

(a) for CAFOs:

(i) the name of the owner or operator;

(ii) the facility location and mailing addresses;

(iii) latitude and longitude of the production area (entrance to production area);

(iv) a topographic map of the geographic area in which the CAFO is located showing the specific location of the production area, in lieu of the requirements of (6)(g);

(v) specific information about the number and type of animals, whether in open confinement or housed under roof (beef cattle, broilers, layers, swine weighing 55 pounds or more, swine weighing less than 55 pounds, mature dairy cows, dairy heifers, veal calves, sheep and lambs, horses, ducks, turkeys, other);

(vi) the type of containment and storage (anaerobic lagoon, roofed storage shed, storage ponds, underfloor pits, above ground storage tanks, below ground storage tanks, concrete pad, impervious soil pad, other) and total capacity for manure, litter, and process wastewater storage (tons/gallons);

(vii) the total number of acres under control of the applicant available for land application of manure, litter, or process wastewater;

(viii) estimated amounts of manure, litter, and process wastewater generated per year (tons/gallons);

(ix) estimated amounts of manure, litter, and process wastewater transferred to other persons per year (tons/gallons); and

(x) a nutrient management plan that at a minimum satisfies the requirements specified in ARM 17.30.1343(1)(c), including, for all CAFOs subject to 40 CFR Part 412, subpart C or subpart D, the requirements of 40 CFR 412.4(c), as applicable; and

(b) for concentrated aquatic animal production facilities:

(i) the maximum daily and average monthly flow from each outfall;

(ii) the number of ponds, raceways, and similar structures;

(iii) the name of the receiving water and the source of intake water;

(iv) for each species of aquatic animals, the total yearly and maximum harvestable weight; and

(v) the calendar month of maximum feeding and the total mass of food fed during that month.

(10) New manufacturing, commercial, mining, and silvicultural dischargers applying for MPDES permits (except for new discharges of facilities subject to the requirements of (8) or new discharges of storm water associated with industrial activity that are subject to the requirements of (11)) shall provide the following information to the department, using application forms provided by the department:

(a) the latitude and longitude to the nearest 15 seconds, and the name of the receiving water;

(b) the expected date of commencement of discharge;

(c) a description of the treatment that the wastewater will receive, along with all operations contributing wastewater to the effluent, average flow contributed by each operation, and the ultimate disposal of any solid or liquid wastes not discharged;

(i) a line drawing of the water flow through the facility with a water balance as described in (7)(b);

(ii) if any of the expected discharges will be intermittent or seasonal, a description of the frequency, duration, and maximum daily flow rate of each discharge occurrence (except for storm water runoff, spillage, or leaks);

(d) if a new source performance standard promulgated under section 306 of the federal Clean Water Act or an effluent limitation guideline applies to the applicant and is expressed in terms of production (or other measure of operation), a reasonable measure of the applicant's expected actual production reported in the units used in the applicable effluent guideline or new source performance standard as required by ARM 17.30.1345(2)(b) for each of the first three years. Alternative estimates may also be submitted if production is likely to vary; 

(e) the requirements in (8)(d), that an applicant shall provide estimates of certain pollutants expected to be present, do not apply to pollutants present in a discharge solely as a result of their presence in intake water; however, an applicant shall report such pollutants as present. Net credits may be provided for the presence of pollutants in intake water if the requirements of ARM 17.30.1345(9) are met. All levels (except for discharge flow, temperature, and pH) must be estimated as concentration and as total mass.

(i) Each applicant shall report estimated daily maximum, daily average, and source of information for each outfall for the pollutants or parameters in (ii). The department may waive the reporting requirements for any of these pollutants and parameters if the applicant submits a request for such a waiver before or with his application that demonstrates that information adequate to support issuance of the permit can be obtained through less stringent reporting requirements.

(ii) The requirements of (e)(i) apply to:

(A) biochemical oxygen demand (BOD);

(B) chemical oxygen demand (COD);

(C) total organic carbon (TOC);

(D) total suspended solids (TSS);

(E) flow;

(F) ammonia (as N);

(G) temperature (winter and summer);

(H) pH; and

(I) any pollutant not listed above, if the pollutant is present in the effluent and regulated by a state-adopted water quality standard.

(iii) Each applicant shall report estimated daily maximum, daily average, and source of information for each outfall for the following pollutants, if the applicant knows or has reason to believe they will be present or if they are limited by an effluent limitation guideline or new source performance standard either directly or indirectly through limitations on an indicator pollutant: all pollutants in Table IV of Appendix D of 40 CFR Part 122 (certain conventional and nonconventional pollutants).

(iv) Each applicant shall report estimated daily maximum, daily average, and source of information for the following pollutants if he knows or has reason to believe that they will be present in the discharges from any outfall:

(A) the pollutants listed in Table III of Appendix D of 40 CFR Part 122 (the toxic metals, in the discharge from any outfall: total cyanide and total phenols); and

(B) the organic toxic pollutants in Table II of Appendix D of 40 CFR Part 122 (except bis (chloromethyl) ether, dichlorofluoromethane, and trichlorofluoromethane). This requirement is waived for applicants with expected gross sales of less than $100,000 per year for the next three years, and for coal mines with expected average production of less than 100,000 tons of coal per year. 

(v) The applicant is required to report that 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) may be discharged if he uses or manufactures one of the following compounds, or if he knows or has reason to believe that TCDD will or may be present in an effluent:

(A) 2,4,5-trichlorophenoxy acetic acid (2,4,5-T) (CAS #93-76-5);

(B) 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5-TP) (CAS #93-72-1);

(C) 2-(2,4,5-trichlorophenoxy) ethyl 2,2-dichloropropionate (Erbon) (CAS #136-25-4);

(D) O,O-dimethyl O-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel) (CAS #299-84-3);

(E) 2,4,5-trichlorophenol (TCP) (CAS #95-95-4); or

(F) hexachlorophene (HCP) (CAS #70-30-4).

(vi) Each applicant shall report any pollutants listed in Table V of Appendix D of 40 CFR Part 122 (certain hazardous substances) if the applicant believes they will be present in any outfall (no quantitative estimates are required unless they are already available).

(vii) No later than 24 months after the commencement of discharge from the proposed facility, the applicant is required to complete and submit forms prescribed by the department. However, the applicant need not complete those portions of the forms requiring tests which he has already performed and reported under the discharge monitoring requirements of his MPDES permit;

(f) each applicant shall report the existence of any technical evaluation concerning his wastewater treatment, along with the name and location of similar plants of which he has knowledge;

(g) any optional information the permittee wishes to have considered; and

(h) the signature of the certifying official under ARM 17.30.1323.

(11) Dischargers of storm water associated with industrial activity or with small construction activity that are required to obtain an individual permit or any other discharge of storm water that the department is evaluating for designation under ARM 17.30.1105(1)(f) and is not a municipal storm sewer, shall submit an MPDES permit application in accordance with the requirements of (6)(a) through (h), as modified and supplemented by the provisions of this section.

(a) Except as provided in (b) through (d), the operator of a storm water discharge associated with industrial activity that is required to obtain an individual permit shall provide:

(i) a site map showing topography (or indicating the outline of drainage areas served by the outfall(s) covered in the application if a topographic map is unavailable) of the facility including:

(A) each of its drainage and discharge structures;

(B) the drainage area of each storm water outfall;

(C) paved areas and buildings within the drainage area of each storm water outfall;

(D) each past or present area used for outdoor storage or disposal of significant materials;

(E) each existing structural control measure to reduce pollutants in storm water runoff; 

(F) materials loading and access areas;

(G) areas where pesticides, herbicides, soil conditioners, and fertilizers are applied;

(H) each of its hazardous waste treatment, storage, or disposal facilities (including each area not required to have a RCRA permit that is used for accumulating hazardous waste under 40 CFR 262.34);

(I) each well where fluids from the facility are injected underground; and

(J) springs and other surface water bodies that receive storm water discharges from the facility;

(ii) an estimate of the area of impervious surfaces (including paved areas and building roofs), the total area drained by each outfall (within a mile radius of the facility), and a narrative description of the following:

(A) significant materials that in the three years prior to the submittal of this application have been treated, stored, or disposed in a manner to allow exposure to storm water;

(B) method of treatment, storage, or disposal of such materials;

(C) materials management practices employed, in the three years prior to the submittal of this application, to minimize contact by these materials with storm water runoff;

(D) materials loading and access areas;

(E) the location, manner, and frequency in which pesticides, herbicides, soil conditioners, and fertilizers are applied;

(F) the location and a description of existing structural and non-structural control measures to reduce pollutants in storm water runoff; and

(G) a description of the treatment the storm water receives, including the ultimate disposal of any solid or fluid wastes other than by discharge;

(iii) a certification that all outfalls that should contain storm water discharges associated with industrial activity have been tested or evaluated for the presence of non-storm water discharges that are not covered by an MPDES permit. Tests for such non-storm water discharges may include smoke tests, fluorometric dye tests, analysis of accurate schematics, as well as other appropriate tests. The certification must include a description of the method used, the date of any testing, and the on-site drainage points that were directly observed during a test;

(iv) existing information regarding significant leaks or spills of toxic or hazardous pollutants at the facility that have taken place within the three years prior to the submittal of this application;

(v) quantitative data based on samples collected during storm events and collected in accordance with (7)(g)(ii) from all outfalls containing a storm water discharge associated with industrial activity for the following parameters:

(A) any pollutant limited in an effluent guideline to which the facility is subject;

(B) any pollutant listed in the facility's MPDES permit for its process wastewater, if the facility is operating under an existing MPDES permit;

(C) oil and grease, pH, biochemical oxygen demand, chemical oxygen demand, total suspended solids, total phosphorus, total Kjeldahl nitrogen, and nitrate plus nitrite nitrogen;

(D) any information on the discharge required under (7)(g)(vi) through (viii); 

(E) flow measurements or estimates of the flow rate, the total amount of discharge for the storm event(s) sampled, and the method of flow measurement or estimation; and

(F) the date and duration (in hours) of the storm event(s) sampled, rainfall measurements or estimates of the storm event (in inches) that generated the sampled runoff, and the duration between the storm event sampled and the end of the previous measurable (greater than 0.1 inch rainfall) storm event (in hours);

(vi) operators of a discharge that is composed entirely of storm water are exempt from the requirements of (7)(b), (c), (d), and (e), and (g)(iii), (iv), (v), and (ix);

(vii) operators of new sources or new discharges, as defined in ARM 17.30.1304, that are composed in part or entirely of storm water shall include estimates for the pollutants or parameters listed in (v) instead of actual sampling data, along with the source of each estimate. Operators of new sources or new discharges composed in part or entirely of storm water shall provide quantitative data for the parameters listed in (v) within two years after commencement of discharge, unless such data has already been reported under the monitoring requirements of the MPDES permit for the discharge. Operators of a new source or new discharge that is composed entirely of storm water are exempt from the requirements of (10)(c)(i) and (ii) and (e).

(b) An operator of an existing or new storm water discharge associated with industrial activity solely under the definition in 40 CFR 122.26(b)(14)(x) or associated with small construction activity solely under the definition in ARM 17.30.1304, is exempt from the requirements of (7) and (11)(a). Such operator shall provide a narrative description of:

(i) the location, including a map, and the nature of the construction activity;

(ii) the total area of the site and the area of the site that is expected to undergo excavation during the life of the permit;

(iii) proposed measures, including best management practices, to control pollutants in storm water discharges during construction, including a brief description of applicable state and local erosion and sediment control requirements;

(iv) proposed measures to control pollutants in storm water discharges that will occur after construction operations have been completed, including a brief description of applicable state or local erosion and sediment control requirements;

(v) an estimate of the runoff coefficient of the site and the increase in impervious area after the construction addressed in the permit application is completed, the nature of fill material and existing data describing the soil or the quality of the discharge; and

(vi) the name of the receiving water.

(c) The operator of an existing or new discharge composed entirely of storm water from an oil or gas exploration, production, processing, or treatment operation, or transmission facility is not required to submit a permit application in accordance with (a), unless the facility:

(i) has had a discharge of storm water resulting in the discharge of a reportable quantity for which notification is or was required pursuant to 40 CFR 117.21 or 40 CFR 302.6 at any time since November 16, 1987;

(ii) has had a discharge of storm water resulting in the discharge of a reportable quantity for which notification is or was required pursuant to 40 CFR 110.6 at any time since November 16, 1987; or

(iii) contributes to a violation of a water quality standard.

(d) The operator of an existing or new discharge composed entirely of storm water from a mining operation is not required to submit a permit application unless the discharge has come into contact with any overburden, raw material, intermediate product, finished product, byproduct, or waste product located on the site of such operations.

(e) Applicants shall provide such other information the department may reasonably require under (7)(l) to determine whether to issue a permit and may require any facility subject to (11)(b) to comply with (11)(a).

(12) Unless otherwise indicated, all new and existing publicly owned treatment works (POTWs) and other dischargers designated by the department, shall provide, at a minimum, the information in (a) through (h) to the department, using Form 2A. Permit applicants shall submit all information available at the time of permit application. The information may be provided by referencing information previously submitted to the department. The department may waive any requirement of (a) through (h), if the department has access to substantially identical information. The department may also waive any requirement of (a) through (h) that is not of material concern for a specific permit, if approved by EPA. The waiver request to the EPA must include the department's justification for the waiver. The EPA's disapproval of the proposed waiver does not constitute final agency action, but does provide notice to the department and permit applicant that EPA may object to any MPDES permit issued in the absence of the required information.

(a) All applicants shall provide the following basic information:

(i) name, mailing address, and location of the facility for which the application is submitted;

(ii) name, mailing address, telephone number, and electronic mail address of the applicant and indication as to whether the applicant is the facility's owner, operator, or both;

(iii) identification of all environmental permits or construction approvals received or applied for, including dates, under any of the following programs:

(A) hazardous waste management program under the Resource Conservation and Recovery Act (RCRA), Subpart C;

(B) underground injection control program under the Safe Drinking Water Act (SDWA);

(C) MPDES program under the Clean Water Act (CWA);

(D) dredge or fill permits under section 404 of the CWA; and

(E) other relevant environmental permits, including state permits; 

(iv) the name and population of each municipal entity served by the facility, including unincorporated connector districts. The applicant shall indicate whether each municipal entity owns or maintains the collection system and whether the collection system is separate sanitary or combined storm and sanitary, if known;

(v) information concerning whether the facility is located in Indian country and whether the facility discharges to a receiving stream that flows through Indian country;

(vi) the facility's design flow rate (the wastewater flow rate the plant was built to handle), annual average daily flow rate, and maximum daily flow rate for each of the previous three years;

(vii) identification of type(s) of collection system(s) used by the treatment works (i.e., separate sanitary sewers or combined storm and sanitary sewers) and an estimate of the percent of sewer line that each type comprises;

(viii) the following information for outfalls that discharge to state surface water and other discharge or disposal methods:

(A) for effluent discharges to state surface waters, the total number and types of outfalls (e.g., treated effluent, combined sewer overflows, bypasses, constructed emergency overflows);

(B) for wastewater discharged to surface impoundments:

(I) the location of each surface impoundment;

(II) the average daily volume discharged to each surface impoundment; and

(III) whether the discharge is continuous or intermittent;

(C) for wastewater applied to the land:

(I) the location of each land application site;

(II) the size of each land application site, in acres;

(III) the average daily volume applied to each land application site, in gallons per day; and

(IV) whether land application is continuous or intermittent;

(D) for effluent sent to another facility for treatment prior to discharge:

(I) the means by which the effluent is transported;

(II) the name, mailing address, contact person, phone number, and electronic mail address of the organization transporting the discharge, if the transport is provided by a party other than the applicant;

(III) the name, mailing address, contact person, phone number, electronic mail address, and MPDES permit number (if any) of the receiving facility; and

(IV) the average daily flow rate from this facility into the receiving facility, in millions of gallons per day; and

(E) for wastewater disposed of in a manner not included in (a)(viii)(A) through (D) (e.g., underground percolation, underground injection):

(I) a description of the disposal method, including the location and size of each disposal site, if applicable;

(II) the annual average daily volume disposed of by this method, in gallons per day; and

(III) whether disposal through this method is continuous or intermittent. 

(ix) An indication of whether the applicant is operating under or requesting to operate under a variance as specified at (14), if known at the time of application.

(b) All applicants with a design flow greater than or equal to 0.1 million gallons per day shall provide the following additional information:

(i) the current average daily volume of inflow and infiltration, in gallons per day, and steps the facility is taking to minimize inflow and infiltration;

(ii) a topographic map (or other map if a topographic map is unavailable) extending at least one mile beyond property boundaries of the treatment plant, including all unit processes, and showing:

(A) the treatment plant area and unit processes;

(B) the major pipes or other structures through which wastewater enters the treatment plant and the pipes or other structures through which treated wastewater is discharged from the treatment plant. Outfalls from bypass piping must be included, if applicable;

(C) each well where fluids from the treatment plant are injected underground;

(D) wells, springs, and other surface water bodies listed in public records or otherwise known to the applicant within 1/4 mile of the treatment works' property boundaries;

(E) sewage sludge management facilities (including on-site treatment, storage, and disposal sites); and

(F) the location at which waste classified as hazardous under RCRA enters the treatment plant by truck, rail, or dedicated pipe;

(iii) a process flow diagram or schematic, which includes:

(A) a diagram showing the processes of the treatment plant, including all bypass piping and all backup power sources or redundancy in the system. This includes a water balance showing all treatment units, including disinfection, daily average flow rates at influent and discharge points, and approximate daily flow rates between treatment units; and

(B) a narrative description of the diagram; and

(iv) information regarding scheduled improvements and the schedule of implementation, which includes the following:

(A) the outfall number of each outfall affected;

(B) a narrative description of each required improvement;

(C) scheduled or actual dates of completion for the following:

(I) commencement of construction;

(II) completion of construction;

(III) commencement of discharge; and

(IV) attainment of operational level; and

(D) a description of permits and clearances concerning other state or federal requirements. 

(c) Each applicant shall provide the following information for each outfall, including bypass points, through which effluent is discharged, as applicable:

(i) a description of each outfall that includes the following information:

(A) outfall number;

(B) county, city, or town in which outfall is located;

(C) latitude and longitude, to the nearest second;

(D) distance from shore and depth below surface;

(E) average daily flow rate, in million gallons per day;

(F) the following information for each outfall with a seasonal or periodic discharge:

(I) number of times per year the discharge occurs;

(II) duration of each discharge;

(III) flow of each discharge; and

(IV) months in which discharge occurs; and

(G) whether the outfall is equipped with a diffuser and the type (e.g., high-rate) of diffuser used;

(ii) a description of receiving waters that includes the following information, if known for each outfall through which effluent is discharged to state surface waters:

(A) name of receiving water;

(B) name of United States Geological Survey eight-digit hydrologic unit code and state water body identification code; and

(C) critical flow of receiving stream and total hardness of receiving stream at critical low flow (if applicable); and

(iii) a description of treatment system, including the following information describing the treatment provided for discharges from each outfall to state water:

(A) the highest level of treatment (e.g., primary, equivalent to secondary, secondary, advanced, other) that is provided for the discharge for each outfall and:

(I) design biochemical oxygen demand or carbonaceous oxygen demand removal (percent);

(II) design suspended solids removal (percent); and, where applicable,

(III) design phosphorus removal (percent);

(IV) design nitrogen removal (percent); and

(V) any other removals that an advanced treatment system is designed to achieve; and

(B) a description of the type of disinfection used and whether the treatment plant dechlorinates (if disinfection is accomplished through chlorination).

(d) As specified in (i) through (ix), all applicants shall submit to the department effluent monitoring information for samples taken from each outfall through which effluent is discharged to state surface waters. The department may allow applicants to submit sampling data for only one outfall, on a case-by-case basis, where the applicant has two or more outfalls with substantially identical effluent. The department may also allow applicants to composite samples from one or more outfalls that discharge into the same mixing zone. For POTWs applying prior to commencement of discharge, data shall be submitted no later than 24 months after the commencement of discharge.

(i) All applicants shall sample and analyze for the following pollutants:

(A) biochemical oxygen demand or carbonaceous oxygen demand;

(B) fecal coliform;

(C) design flow rate;

(D) pH;

(E) temperature (winter and summer); and

(F) total suspended solids.

(ii) All applicants with a design flow greater than or equal to 0.1 million gallons per day shall sample and analyze for the pollutants listed below. Facilities that do not use chlorine for disinfection, do not use chlorine elsewhere in the treatment process, and have no reasonable potential to discharge chlorine in their effluent are not required to analyze for chlorine:

(A) ammonia (as N);

(B) chlorine (total residual, TRC);

(C) nitrate/nitrite;

(D) Kjeldahl nitrogen;

(E) oil and grease;

(F) phosphorus; and

(G) total dissolved solids.

(iii) The following applicants shall sample and analyze for the pollutants listed in Appendix J, Table 2 of 40 CFR Part 122, and for any other pollutants for which the board has established water quality standards applicable to the receiving waters:

(A) all POTWs with a design flow rate equal to or greater than one million gallons per day;

(B) all POTWs with approved pretreatment programs or POTWs required to develop a pretreatment program; and

(C) other POTWs, as required by the department.

(iv) The department may require sampling for additional pollutants, as appropriate, on a case-by-case basis.

(v) Applicants shall provide data from a minimum of three samples taken within four and one-half years prior to the date of the permit application. Samples must be representative of the seasonal variation in the discharge from each outfall. Existing data may be used, if available, in lieu of sampling done solely for the purpose of this application. The department may require additional samples, as appropriate, on a case-by-case basis.

(vi) All existing data for pollutants specified in (i) through (iv) that is collected within four and one-half years of the application must be included in the pollutant data summary submitted by the applicant. If, however, the applicant samples for a specific pollutant on a monthly or more frequent basis, it is only necessary, for such pollutant, to summarize all data collected within one year of the application.

(vii) Applicants shall collect samples of effluent and analyze such samples for pollutants in accordance with analytical methods approved under 40 CFR Part 136 unless an alternative is specified in the existing MPDES permit. When analysis of pH, temperature, cyanide, total phenols, residual chlorine, oil and grease, fecal coliform (including E. coli), or volatile organics is required by (i) through (iii), grab samples must be collected for those pollutants. For all other pollutants, 24-hour composite samples must be used. For a composite sample, only one analysis of the composite of aliquots is required.

(viii) The effluent monitoring data provided must include at least the following information for each parameter:

(A) maximum daily discharge expressed as concentration or mass, based upon actual sample values;

(B) average daily discharge for all samples, expressed as concentration or mass, and the number of samples used to obtain this value;

(C) the analytical method used; and

(D) the minimum detection limit (MDL) or minimum level (ML) for the analytical method used.

(ix) Unless otherwise required by the department, metals must be reported as total recoverable.

(e) All applicants shall provide an identification of any whole effluent toxicity tests conducted during the four and one-half years prior to the date of the application on any of the applicant's discharges or on any receiving water near the discharge. For POTWs applying prior to commencement of discharge, data shall be submitted no later than 24 months after the commencement of discharge.

(i) As specified in (ii) through (viii), the following applicants shall submit to the department the results of valid whole effluent toxicity tests for acute or chronic toxicity for samples taken from each outfall through which effluent is discharged to surface waters, except for combined sewer overflows:

(A) all POTWs with design flow rates greater than or equal to one million gallons per day;

(B) all POTWs with approved pretreatment programs or POTWs required to develop a pretreatment program; and

(C) other POTWs, as required by the department, based on consideration of the following factors:

(I) the variability of the pollutants or pollutant parameters in the POTW effluent (based on chemical-specific information, the type of treatment plant, and types of industrial contributors);

(II) the ratio of effluent flow to receiving stream flow;

(III) existing controls on point or non-point sources, including total maximum daily load calculations for the receiving stream segment and the relative contribution of the POTW;

(IV) receiving stream characteristics, including possible or known water quality impairment, a water designated as an outstanding natural resource water; and

(V) other considerations (including, but not limited to, the history of toxic impacts and compliance problems at the POTW) that the department determines could cause or contribute to adverse water quality impacts.

(ii) Where the POTW has two or more outfalls with substantially identical effluent discharging to the same receiving stream segment, the department may allow applicants to submit whole effluent toxicity data for only one outfall on a case-by-case basis. The department may also allow applicants to composite samples from one or more outfalls that discharge into the same mixing zone.

(iii) Each applicant required to perform whole effluent toxicity testing pursuant to (i) shall provide:

(A) results of a minimum of four quarterly tests for a year, from the year preceding the permit application; or

(B) results from four tests performed at least annually in the four and one-half-year period prior to the application, provided the results show no appreciable toxicity using a safety factor determined by the department.

(iv) Applicants shall conduct tests with multiple species (no less than two species, e.g., fish, invertebrate, plant) and test for acute or chronic toxicity, depending on the range of receiving water dilution. Applicants shall conduct acute or chronic testing based on the following dilutions:

(A) acute toxicity testing if the dilution of the effluent is greater than 100:1 at the edge of the mixing zone;

(B) acute or chronic toxicity testing if the dilution of the effluent is between 10:1 and 100:1 at the edge of the mixing zone; and

(C) chronic testing if the dilution of the effluent is less than 10:1 at the edge of the mixing zone.

(v) Each applicant required to perform whole effluent toxicity testing pursuant to (i) shall provide the number of chronic or acute whole effluent toxicity tests that have been conducted since the last permit reissuance.

(vi) Applicants shall provide the results using the form provided by the department, or test summaries if available and comprehensive, for each whole effluent toxicity test conducted pursuant to (i) for which such information has not been reported previously to the department.

(vii) Whole effluent toxicity testing conducted pursuant to (i) must be conducted using methods approved under 40 CFR Part 136.

(viii) For whole effluent toxicity data submitted to the department within four and one-half years prior to the date of the application, applicants shall provide the dates on which the data were submitted and a summary of the results.

(ix) Each POTW required to perform whole effluent toxicity testing pursuant to (i) shall provide any information on the cause of toxicity and written details of any toxicity reduction evaluation conducted, if any whole effluent toxicity test conducted within the past four and one-half years revealed toxicity. 

(f) Applicants shall submit the following information about industrial discharges to the POTW:

(i) number of significant industrial users (SIUs) and non-significant categorical industrial users (NSCIUs), including SIUs and NSCIUs that truck or haul waste, discharging to the POTW; and

(ii) POTWs with one or more SIUs shall provide the following information for each SIU, as defined at ARM 17.30.1402, that discharges to the POTW:

(A) name and mailing address;

(B) description of all industrial processes that affect or contribute to the SIU's discharge;

(C) principal products and raw materials of the SIU that affect or contribute to the SIU's discharge;

(D) average daily volume of wastewater discharged, indicating the amount attributable to process flow and non-process flow;

(E) whether the SIU is subject to local limits;

(F) whether the SIU is subject to categorical standards, and if so, under which category(ies) and subcategory(ies); and

(G) whether any problems at the POTW (e.g., upsets, pass through, interference) have been attributed to the SIU in the past four and one-half years.

(iii) The information required in (i) and (ii) may be waived by the department for POTWs with pretreatment programs if the applicant has submitted either of the following that contain information substantially identical to that required in (i) and (ii):

(A) an annual report submitted within one year of the application; or

(B) a pretreatment program.

(g) POTWs receiving Resource Conservation and Recovery Act (RCRA), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or RCRA corrective action wastes or wastes generated at another type of cleanup or remediation site shall provide the following information:

(i) if the POTW receives, or has been notified that it will receive, by truck, rail, or dedicated pipe any wastes that are regulated as RCRA hazardous wastes pursuant to 40 CFR Part 261, the applicant shall report the following:

(A) the method by which the waste is received (i.e., whether by truck, rail, or dedicated pipe); and

(B) the hazardous waste number and amount received annually of each hazardous waste;

(ii) if the POTW receives, or has been notified that it will receive, wastewaters that originate from remedial activities, including those undertaken pursuant to CERCLA and sections 3004(u) or 3008(h) of RCRA, the applicant shall report the following:

(A) the identity and description of the site(s) or facility(ies) at which the wastewater originates;

(B) the identities of the wastewater's hazardous constituents, as listed in Appendix VIII of 40 CFR Part 261, if known; and

(C) the extent of treatment, if any, the wastewater receives or will receive before entering the POTW; and

(iii) applicants are exempt from the requirements of (ii) if they receive no more than 15 kilograms per month of hazardous wastes, unless the wastes are acute hazardous wastes as specified in 40 CFR 261.30(d) and 261.33(e). 

(h) Each applicant with combined sewer systems shall provide the following information:

(i) a map indicating the location of the following:

(A) all combined sewer overflow (CSO) discharge points;

(B) sensitive use areas potentially affected by CSOs (e.g., beaches, drinking water supplies, shellfish beds, sensitive aquatic ecosystems, and outstanding national resource waters); and

(C) waters supporting threatened and endangered species potentially affected by CSOs;

(ii) a diagram of the combined sewer collection system that includes the following information:

(A) the location of major sewer trunk lines, both combined and separate sanitary;

(B) the locations of points where separate sanitary sewers feed into the combined sewer system;

(C) in-line and off-line storage structures;

(D) the locations of flow-regulating devices; and

(E) the locations of pump stations;

(iii) the following information for each CSO discharge point (outfall) covered by the permit application:

(A) outfall number;

(B) county, city, or town in which each outfall is located;

(C) latitude and longitude, to the nearest second;

(D) distance from shore and depth below surface;

(E) whether the applicant monitored any of the following in the past year for this CSO:

(I) rainfall;

(II) CSO flow volume;

(III) CSO pollutant concentrations;

(IV) receiving water quality; or

(V) CSO frequency; and

(F) the number of storm events monitored in the past year;

(iv) the following information about CSO overflows from each outfall:

(A) the number of events in the past year;

(B) the average duration per event, if available;

(C) the average volume per CSO event, if available; and

(D) the minimum rainfall that caused a CSO event, if available, in the last year;

(v) the following information about receiving waters:

(A) name of receiving water;

(B) name of watershed/stream system and the United States Soil Conservation Service watershed (14-digit) code, if known; and

(C) name of the United States Geological Survey hydrologic cataloging unit (eight-digit) code and the state water body identification code, if known; and

(vi) a description of any known water quality impacts on the receiving water caused by the CSO (e.g., permanent or intermittent beach closings, permanent or intermittent shellfish bed closings, fish kills, fish advisories, other recreational loss, or exceedance of any applicable water quality standard).

(i) All applicants shall provide the name, mailing address, telephone number, electronic mail address, and responsibilities of all contractors responsible for any operational or maintenance aspects of the facility.

(j) All applications shall be signed by a certifying official in compliance with ARM 17.30.1323.

(13) A discharger that is not a publicly owned treatment works (POTW) may request a variance from otherwise applicable effluent limitations under any of the following statutory or regulatory provisions within the times specified below:

(a) A request for a variance based on the presence of "fundamentally different factors" from those on which the effluent limitations guideline was based must explain how the requirements of the applicable regulatory and statutory criteria have been met, and must be filed with the department:

(i) by the close of the public comment period under ARM 17.30.1372, if the request is for a variance from best practicable control technology currently available (BPT); or

(ii) by no later than 180 days after the date on which an effluent limitation is published in the federal register, if the request involves a variance from best available technology economically achievable (BAT), best conventional pollutant control technology (BCT), or both of them.

(b) A request for a variance from the best available technology (BAT) requirements for federal Clean Water Act section 301(b)(2)(F) pollutants (commonly called "nonconventional" pollutants) pursuant to section 301(c) of the federal Clean Water Act because of the economic capability of the owner or operator, or pursuant to section 301(g) of the federal Clean Water Act because of certain environmental considerations, when those requirements were based on effluent limitation guidelines, must be made by:

(i) submitting an initial request to the department, stating the name of the discharger, the permit number, the outfall number(s), the applicable effluent guideline, and whether the discharger is requesting a federal Clean Water Act section 301(c) or 301(g) modification or both. This request must have been filed not later than:

(A) September 25, 1978, for a pollutant which is controlled by a BAT effluent limitation guideline promulgated before December 27, 1977; or

(B) 270 days after promulgation of an applicable effluent limitation guideline for guidelines promulgated after December 27, 1977; and

(ii) submitting a completed request no later than the close of the public comment period under ARM 17.30.1372 demonstrating that the requirements of ARM 17.30.1375 and the applicable requirements of 40 CFR Part 125 have been met. Notwithstanding this provision, the complete application for a request under section 301(g) of the federal Clean Water Act must be filed before the department must make a decision;

(iii) requests for variance from effluent limitations not based on effluent limitations guidelines need only comply with (ii) and need not be preceded by an initial request under (i).

(c) A modification under the federal Clean Water Act section 302(b)(2) of requirements under section 302(a) for achieving water quality related effluent limitations may be requested no later than the close of the public comment period under ARM 17.30.1372 on the permit from which the modification is sought.

(d) A variance under the federal Clean Water Act section 316(a) for the thermal component of any discharge must be filed with a timely application for a permit under this subchapter, except that if thermal effluent limitations are established under federal Clean Water Act section 402(A)(1) or are based on water quality standards the request for a variance may be filed by the close of the public comment period under ARM 17.30.1372.

(14) A discharger that is a publicly owned treatment works (POTW) may request a variance from otherwise applicable effluent limitations under federal Clean Water Act section 302(b)(2) of the requirements under section 302(a) for achieving water quality based effluent limitations no later than the close of the public comment period under ARM 17.30.1372 on the permit from which the modification is sought.

(15) Notwithstanding the time requirements in (13) and (14):

(a) the department may notify a permit applicant before a draft permit is issued under ARM 17.30.1370 that the draft permit will likely contain limitations eligibility for variances. In the notice the department may require that the applicant, as a condition of consideration of any variance request, submit an explanation of how the requirements of ARM 17.30.1203(4) applicable to the variance have been met. The department may require submission of the explanation within a specified reasonable time after receipt of the notice. The notice may be sent before the permit application has been submitted. The draft or final permit may contain the alternative limitations that may become effective upon final grant of the variance; and specified reasonable time after receipt of the notice. The notice may be sent before the permit application has been submitted. The draft or final permit may contain the alternative limitations that may become effective upon final grant of the variance; and

(b) a discharger who cannot file a timely complete request required under (13)(b)(ii) or (iii) may request an extension. The extension may be granted or denied at the discretion of the department. Extensions may not be more than six months in duration. 

(16) Applicants shall keep records of all data used to complete permit applications and any supplemental information submitted under this subchapter for a period of at least three years from the date the application is signed.

(17) New facilities with new or modified cooling water intake structures, as defined in ARM 17.30.1202, shall submit to the department for review the information required in this section as part of their application. Requests for alternative requirements under ARM 17.30.1213 must be submitted with the facility's permit application required by ARM 17.30.1322. All applicants shall provide the following information:

(a) source water physical data, which includes:

(i) a narrative description and scaled drawings showing the physical configuration of all source water bodies used by the facility, including areal dimensions, depths, salinity and temperature regimes, and other documentation that supports a determination of the water body type where each cooling water intake structure is located;

(ii) identification and characterization of the source water body's hydrological and geomorphological features, as well as the methods used to conduct any physical studies to determine the intake's area of influence within the water body and the results of such studies; and

(iii) locational maps;

(b) cooling water intake structure data, which includes:

(i) a narrative description of the configuration of each of the facility's cooling water intake structures and where they are located in the water body and in the water column;

(ii) latitude and longitude in degrees, minutes, and seconds for each of the cooling water intake structures;

(iii) a narrative description of the operation of each of the facility's cooling water intake structures, including design intake flows, daily hours of operation, number of days of the year in operation and seasonal changes, if applicable;

(iv) a flow distribution and water balance diagram that includes all sources of water to the facility, recirculating flows, and discharges; and

(v) engineering drawings of the cooling water intake structures; and

(c) a source water baseline biological characterization including information required to characterize the biological community in the vicinity of the cooling water intake structures and to characterize the operation of the cooling water intake structures. The department may also use this information in subsequent permit renewal proceedings to determine if the facility's design and construction technology plan, as required in ARM 17.30.1213, should be revised. This supporting information must include existing data (if they are available). However, supplemental data using newly conducted field studies may also be submitted at the discretion of the applicant. The following information must be submitted:

(i) a list of the data in (ii) through (vi) that are not available and efforts made to identify sources of the data;

(ii) a list of species (or relevant taxa) for all life stages and their relative abundance in the vicinity of the cooling water intake structures; 

(iii) identification of the species and life stages that would be most susceptible to impingement and entrainment. Species evaluated should include the forage base as well as those most important in terms of significance to commercial and recreational fisheries;

(iv) identification and evaluation of the primary period of reproduction, larval recruitment, and period of peak abundance for relevant taxa;

(v) data representative of the seasonal and daily activities (e.g., feeding and water column migration) of biological organisms in the vicinity of the cooling water intake structures;

(vi) identification of all threatened, endangered, and other protected species that might be susceptible to impingement and entrainment at the cooling water intake structures;

(vii) documentation of any public participation or consultation with federal or state agencies undertaken in development of the plan; and

(viii) if information is submitted to supplement the information requested in (i) with data collected using field studies, supporting documentation for the source water baseline biological characterization must include a description of all methods and quality assurance procedures for sampling, and data analysis including a description of the study area, taxonomic identification of sampled and evaluated biological assemblages (including all life stages of fish and shellfish), and sampling and data analysis methods. The sampling and/or data analysis methods used must be appropriate for a quantitative survey and based on consideration of methods used in other biological studies performed within the same source water body. The study area should include, at a minimum, the area of influence of the cooling water intake structure.

(18) The board adopts and incorporates by reference the following federal regulations as part of the Montana pollutant discharge elimination system. Copies of these federal regulations may be obtained from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

(a) 40 CFR Part 136 (July 1, 2015), which sets forth guidelines establishing test procedures for the analysis of pollutants;

(b) Appendix A to 40 CFR Part 122 (July 1, 2011), which sets forth a list of primary industrial categories;

(c) Appendix D to 40 CFR Part 122 (July 1, 2011), which sets forth NPDES permit application testing requirements;

(d) Appendix J to 40 CFR Part 122 (July 1, 2011), which sets forth NPDES permit testing requirements for publicly owned treatment works;

(e) 40 CFR Part 125 (July 1, 2011), which sets forth criteria for extending compliance dates and for determining the availability of a variance;

(f) 40 CFR Part 412 (July 1, 2011), which sets forth effluent guidelines and standards for concentrated animal feeding operations.


History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 648, Eff. 2/14/03; AMD, 2006 MAR p. 532, Eff. 2/24/06; AMD, 2012 MAR p. 2604, Eff. 12/21/12; AMD, 2017 MAR p. 602, Eff. 5/13/17; AMD, 2020 MAR p. 1879, Eff. 10/24/20.

17.30.1323   SIGNATORIES TO PERMIT APPLICATIONS AND REPORTS

(1) All permit applications must be signed as follows:

(a) for a corporation, by a responsible corporate officer. A responsible corporate officer means:

(i) a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy- or decision-making functions for the corporation; or

(ii) the manager of one or more manufacturing, production, or operating facilities employing more than 250 persons or having gross annual sales or expenditures exceeding $25 million (in second-quarter 1980 dollars) , if authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures.

(b) for a partnership or sole proprietorship, by a general partner or the proprietor, respectively; or

(c) for a municipality, state, federal, or other public agency, by either a principal executive officer or ranking elected official. A principal executive officer of a federal agency includes:

(i) the chief executive officer of the agency; or

(ii) a senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency.

(2) All reports required by permits and other information requested by the department must be signed by a person described in (1) or by a duly authorized representative of that person. A person is a duly authorized representative only if:

(a) the authorization is made in writing by a person described in (1) ;

(b) the authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity such as the position of plant manager, operator of a well or a well field, superintendent, position of equivalent responsibility, or an individual or position having overall responsibility for environmental matters for the company (a duly authorized representative may thus be either a named individual or any individual occupying a named position) ;

(c) the written authorization is submitted to the department.

(3) If an authorization under (2) is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization satisfying the requirements of (2) must be submitted to the department prior to or together with any reports, information, or applications to be signed by an authorized representative.

(4) Any person signing a document under (1) or (2) shall make the following certification:

 I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 220, Eff. 2/14/03.

17.30.1330   CONCENTRATED ANIMAL FEEDING OPERATIONS

(1) Concentrated animal feeding operations (CAFOs), as defined in 75-5-801, MCA, or designated in accordance with (5) through (7), are point sources subject to the MPDES requirements as provided in this rule. Once an animal feeding operation is defined as a CAFO for at least one type of animal, the MPDES requirements for CAFOs apply with respect to all animals in confinement at the operation and all manure, litter, and process wastewater generated by those animals or the production of those animals, regardless of the type of animal.

(2) A CAFO must not discharge a pollutant to state surface waters unless the discharge is authorized under an MPDES permit. In order to obtain authorization under an MPDES permit, the CAFO owner or operator must either apply for an individual permit or submit a notice of intent for coverage under a general permit.

(3) An application for an individual permit must include the information specified in ARM 17.30.1322(9). A notice of intent to be covered under a general permit must include the information specified in ARM 17.30.1322(9) and 40 CFR 122.28(b).

(4) CAFOs that meet the requirements of 40 CFR Part 412 must be authorized by the department under a general permit, unless the department discovers site-specific information that indicates a general permit is not sufficiently protective of water quality during its review under (8). If the department determines that a general permit is not sufficient to protect water quality, the department shall require an individual permit for the CAFO.

(5) On a case-by-case basis, the department may designate any animal feeding operation as a concentrated animal feeding operation upon determining that it is a significant contributor of pollution to state waters. In making this designation the department shall consider the following factors:

(a) the size of the animal feeding operation and the amount of wastes reaching state waters;

(b) the location of the animal feeding operation relative to state waters;

(c) the means of conveyance of animal wastes and process waste waters into state waters;

(d) the slope, vegetation, rainfall, and other factors affecting the likelihood or frequency of discharge of animal wastes and process waste waters into state waters; and

(e) other relevant factors.

(6) No animal feeding operation with less than the numbers of animals set forth in 40 CFR Part 122.23 may be designated as a CAFO unless:

(a) pollutants are discharged into state waters through a manmade ditch, flushing system, or other similar manmade device; or

(b) pollutants are discharged directly into state waters which originate outside of the facility and pass over, across, or through the facility or otherwise come into direct contact with the animals confined in the operation.

(7) A permit application is not required from a concentrated animal feeding operation designated under this rule until the department has conducted an on-site inspection of the operation and determined that the operation should and could be regulated under the permit program.

(8) The department shall review notices of intent submitted by CAFO owners for coverage under a general permit according to the procedures in 40 CFR 122.23(h)(1).

(9) The discharge of manure, litter, or process wastewater from a CAFO's land application area to state surface waters is subject to MPDES requirements, except where the discharge is an agricultural storm water discharge, as defined in 40 CFR 122.23(e).

(10) The board adopts and incorporates by reference the following federal regulations, which may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena, MT 59620:

(a) 40 CFR 122.23 (except 40 CFR 122.23(d), (f), (g), (i), and (j)) (July 1, 2012), which specifies permit application requirements, definitions, and procedures for issuing individual or general permits to CAFOs.

(b) 40 CFR 122.28(b)(2)(vii) (July 1, 2012), which sets forth informational requirements for notices of intent submitted by CAFOs.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2006 MAR p. 532, Eff. 2/24/06; AMD, 2007 MAR p. 201, Eff. 2/9/07; AMD, 2013 MAR p. 529, Eff. 4/12/13.

17.30.1331   CONCENTRATED AQUATIC ANIMAL PRODUCTION FACILITIES AND AQUACULTURE PROJECTS

(1) "Concentrated aquatic animal production facility" means a hatchery, fish farm, or other facility which meets the criteria in Appendix C of 40 CFR Part 122, or which the department designates under (3).

(2) Concentrated aquatic animal production facilities, as defined in this rule, are point sources subject to the MPDES permit program.

(3) On a case-by-case basis, the department may designate any warm or cold water aquatic animal production facility as a concentrated animal production facility upon determining that it is a significant contributor of pollution to state waters. In making this designation the department shall consider the following factors:

(a) the location and quality of the receiving state waters;

(b) the holding, feeding, and production capacities of the facility;

(c) the quantity and nature of the pollutants reaching state waters; and

(d) other relevant factors.

(4) A permit application is not required from a concentrated aquatic animal production facility designated under this rule until the department has conducted an on-site inspection of the facility and has determined that the facility should and could be regulated under the permit program.

(5) Discharges into aquaculture projects, as defined in ARM 17.30.1304(5) , are subject to the MPDES permit program through 33 USC 1318, and in accordance with 40 CFR Part 125, subpart B (July 1, 1991).

(a) "Designated project area" means the portions of the waters of Montana within which the permittee or permit applicant plans to confine the cultivated species, using a method, plan, or operation (including, but not limited to, physical confinement) which, on the basis of reliable scientific evidence, is expected to ensure that specific individual organisms comprising an aquaculture crop will enjoy increased growth attributable to the discharge of pollutants, and be harvested within a defined geographic area.

(6) The board hereby adopts and incorporates herein by reference Appendix C of 40 CFR Part 122 which is an appendix to a federal agency rule setting forth criteria for determining whether a facility or operation merits classification as a concentrated aquatic animal production facility.

 

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2020 MAR p. 1879, Eff. 10/24/20.

17.30.1332   STORM WATER DISCHARGES

This rule has been repealed.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; REP, 2003 MAR p. 220, Eff. 2/14/03.

17.30.1333   SILVICULTURAL ACTIVITIES
(1) Silvicultural point sources, as defined in ARM 17.30.1304(56) , are point sources subject to the MPDES permit program.
History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1334   TECHNICAL STANDARDS FOR CONCENTRATED ANIMAL FEEDING OPERATION

(1) The owner or operator of a CAFO as defined in ARM 17.30.1330 that is subject to the requirements of 40 CFR 412 Subparts C or D shall develop and implement a nutrient management plan (NMP) in accordance with the requirements of this rule and 40 CFR 122.42(e). The NMP must address the form, source and amount of nutrients, and the timing and method of application for all manure, litter, and other process wastewater that is applied to land under the ownership or operational control of the CAFO.

(2) For purposes of this rule, the following terms have the meaning and interpretations as indicated below and are supplemental to the definitions contained in ARM 17.30.1304:

(a) "expected crop yield" means the estimated crop yield, expressed as bushels per acre or tons per acre, in a future year based on one of the following:

(i) if historic crop yield data are available, the expected crop yield must be based on the average of at least three years of previous crop yield data (past average yield) using the formula: estimated crop yield = 1.05 X past average yield; or

(ii) if historic crop data are unavailable, expected crop yield must be based on realistic yield goals determined from other sources and described in the facility's NMP;

(b) "field" means an area of land that is capable of supporting vegetation and is homogeneous with respect to crop or cover type where manure is to be applied and is under the control of a CAFO owner or operator;

(c) "manure" means manure, litter, or process wastewater, including bedding, compost, and raw materials or other materials comingled with manure or set aside for disposal;

(d) "multiyear phosphorus application" means phosphorus applied to a field in excess of the crop needs for that year;

(e) "Olsen soil test" means the concentration of phosphorus in the soil as determined by the Olsen sodium-bicarbonate extraction in accordance with method code 4D5 in United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), Soil Survey Laboratory Methods Manual, Soil Survey Investigations Report No. 42, Version 4.0, November 2004;

(f) "process wastewater" means water directly or indirectly used in the operation of a CAFO for any or all of the following:

(i) spillage or overflow from animal or poultry watering systems;

(ii) washing, cleaning, or flushing pens, barns, manure pits, or other CAFO facilities;

(iii) direct contact swimming, washing, or spray cooling of animals;

(iv) dust control; or

(v) any water that comes into contact with any raw materials, products, or byproducts including manure, litter, feed, milk, eggs, or bedding;

(g) "site vulnerability rating" means the narrative description of a field for phosphorus loss as determined by Table 4 (Site/Field Vulnerability to Phosphorus Loss) in United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), No. 80.1 Nutrient Management, Agronomy Technical Note MT-77 (revision 3), January 2006; and

(h) "total phosphorus index value" means the sum of the weighted risk factors for a field as determined by Table 3 (Phosphorus Index Assessment) in United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), No. 80.1 Nutrient Management, Agronomy Technical Note MT-77 (revision 3), January 2006.

(3) Except as provided in (10), application rates for manure applied to each field must be determined based on the criteria given in (a) through (c).

(a) The CAFO shall complete a field-specific assessment to determine the appropriate basis (nitrogen- or phosphorus-based) for application of plant nutrients. The field-specific assessment for CAFOs applying manure on fields that are located in a watershed that is listed as impaired for nutrients (total phosphorus or total nitrogen) must follow the method listed in (i). The field-specific assessment for CAFOs applying manure on fields that are not located in a watershed that is listed as impaired for nutrients (total phosphorus or total nitrogen) may follow the procedures in either (i) or (ii).

(i) The field-specific assessment must be based on the phosphorus index assessment method described in United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), No. 80.1 Nutrient Management, Agronomy Technical Note MT-77 (revision 3), January 2006. The nutrient application basis is determined as follows:

(A) nitrogen-based application, if the site vulnerability rating is low (total phosphorus index value is less than 11);

(B) phosphorus-based, if the site vulnerability rating is medium (total phosphorus index value is between 11 and 21);

(C) phosphorus-based application up to crop removal, if the site vulnerability rating is high (total phosphorus index value is between 22 and 43); or

(D) no application, if the site vulnerability rating is rated as very high (total phosphorus index value is greater than 43).

(ii) The field-specific assessment must be based on a representative soil sample, as described in (5), using the Olsen soil test method. The nutrient application basis is determined as follows:

(A) nitrogen-based application, if the Olsen phosphorus soil test is less than 25 mg/L;

(B) phosphorus-based application, if the Olsen phosphorus soil test is greater than 25.1 mg/L and less than 100 mg/L;

(C) phosphorus-based up to crop removal, if the Olsen phosphorus soil test is greater than 100.1 mg/L and less than 150.0 mg/L;

(D) no application, if the Olsen phosphorus soil test is greater than 150 mg/L.

(b) The CAFO shall complete a nutrient need analysis for each crop to determine the acceptable amounts of nitrogen and phosphorus to be applied to the field based on the appropriate basis (nitrogen- or phosphorus-based application) as determined in (a). The nutrient needs must be determined based on Montana State University Extension Service Publication 161, Fertilizer Guidelines for Montana Crops or other relevant sources. For crops not listed in Bulletin 161, the department may approve a fertilizer application rate provided by the local county extension service or other qualified source. The CAFO must identify the source of the nutrient needs analysis in the nutrient management plan.

(c) The CAFO shall complete a nutrient budget based on the nutrient needs of the crop as determined in (b) that accounts for all sources of nutrients available to the crop. Other sources that must be addressed where applicable include those in (i) through (vi).

(i) The nitrogen needs determined in (b) must be reduced based on nitrogen fixation credits if a legume crop was grown in the field in the previous year. Nitrogen reduction for annual legume crops is ten pounds per acre and for perennial legumes is 50 pounds per acre, unless appropriate justification is given showing a lower rate is appropriate, but not less than 35 pounds per acre for all perennial legumes except black medic and annual sweet clover, for which the rate is not less than 15 pounds per acre, and lentils and chick peas, for which the rate is not less than 30 pounds per acre.

(ii) The nitrogen needs determined in (b) must be reduced based on nitrogen residuals from past manure applications based on nitrogen mineralization rates given in Schedule I.

 

Schedule I. Nitrogen Mineralization Rates

Type of Wastes

First Year(1) Second Year
Fresh poultry manure 0.90 0.02
Fresh swine manure 0.75 0.04
Fresh cattle manure 0.70 0.04
Fresh sheep and horse manure 0.60 0.06
Liquid manure, covered tank 0.65 0.05
Liquid manure, storage pond 0.65 0.05
Solid manure, stack 0.60 0.06
Solid manure, open pit 0.55 0.05
Manure pack, roofed 0.50 0.05
Manure pack, open feedlot 0.45 0.05
Storage pond effluent 0.40 0.06
Oxidation ditch effluent 0.40 0.06
Aerobic lagoon effluent 0.40 0.06
Anaerobic lagoon effluent 0.30 0.06

 

(1) If irrigated, reduce first year mineralization by 0.05.

 

(iii) The nitrogen needs determined in (b) must be reduced based on any nutrients provided by commercial fertilizer, irrigation water, or other sources. The CAFO shall provide the basis for the nutrients adjustments on the NMP.

(iv) Nitrogen availability may be adjusted to reflect the method of application given in Schedule II. For phosphorus-based application, the nitrogen availability is 1.0.

 

Schedule II. Nitrogen Availability and Loss by Method of Application

 

Application Method

Loss Factor
Injection (sweep) 0.90
Injection (knife) 0.95
Broadcast (incorporated within 12 hours) 0.7
Broadcast (incorporated after 12 hours but before four days) 0.6

 

Broadcast (incorporated after four days) 0.5
Sprinkling 0.75

 

(v) The nutrient budget must be completed on forms provided by the department.

(vi) If after the first three years of implementing the NMP the yield does not average at least 80 percent of the planned expected crop yield, the NMP must be amended to be consistent with the documented yield levels unless sufficient justification for the use of the higher yield is approved by the department. The amendment must be submitted as an amendment in accordance with ARM 17.30.1365.

(4) Manure that is land applied must be sampled at least once per year and analyzed for total nitrogen (as N), ammonium nitrogen (as NH4-N), total phosphorus (as P2O5), total potassium (as K2O), and percent dry matter solids). Except for percent dry matter, the results of this analysis must be expressed as pounds per 1,000 gals for liquid wastes and pounds per ton for solid manure. The sample must be representative of the manure that is to be applied to a field and must be collected and analyzed in accordance with (a) and (b).

(a) Solid manure must be sampled from at least ten different locations (subsamples) within the material to be applied from a depth of at least 18 inches below the surface. Subsamples must be thoroughly mixed in a clean receptacle and a sample of the mixed material must be collected and placed in a sealable plastic bag or other sample container approved by the analytical laboratory. The sample must be identified with the name, source, and date. The sample must be cooled to four degrees centigrade and analyzed within seven days or frozen at minus 18 degrees centigrade for up to six months or as directed by the analytical laboratory specified in (6).

(b) Liquid manure must be agitated for a minimum of four hours prior to sample collection or until thoroughly mixed. A minimum of five one-quart subsamples must be collected from different locations in the storage facility. The subsamples must be collected from the liquid manure at a depth of least 12 inches below the surface. The subsamples must be combined into a single container and thoroughly mixed. A sample for laboratory analysis must be collected from the composited subsamples and placed into a clean one-quart plastic bottle or other sample container approved by the analytical laboratory. The sample must be identified with the name, source, and date. The sample container must not be completely filled. The sample must be cooled to four degrees centigrade and analyzed within seven days, or frozen at minus 18 degrees centigrade for up to six months or as directed by the analytical laboratory specified in (6).

(5) Each field where manure is to be land applied must be sampled at least once every five years in accordance with the procedure given in (a) through (d).

(a) A minimum of ten individual core samples must be composited to formulate a composite sample for the field. Core sampling in fields with significant landscape variation, including soil type, slope, degree of erosion, drainage, historic usage, or other factors, must be collected from each unit in proportion to the relative abundance in terms of total area. Uniform fields may be sampled in a simple random, stratified random, or systematic pattern following the guidance sources listed below. Individual core samples must be composited and thoroughly mixed in a clean plastic container except that core samples collected at different depths must be kept separate. Alternative soil sampling procedures are given in the following:

(i) United States Department of Agriculture (USDA), Natural Resource Conservation Service (NRCS), Sampling Soils for Nutrient Management – Manure Resource Series, MT, April 2007; and

(ii) Montana State University Extension, MontGuide, Interpretation of Soil Test Reports for Agriculture, MT200702AG, July 2007.

(b) The composite soil sample for phosphorus analysis must be collected from a depth of zero to six inches below the surface and analyzed for phosphorus using the Olsen soil test method. Results must be reported as mg/kg phosphorus and pounds per acre.

(c) Composite soil samples for nitrogen analysis must be collected from a depth of zero to six inches below the surface and analyzed for total nitrogen (as N) and nitrate (as N). A second composite sample must be collected at a depth of six to 24 inches and analyzed for nitrate (as N) only. Samples must be analyzed in accordance with method code 4H2a1-3 in United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), Soil Survey Laboratory Methods Manual, Soil Survey Investigations Report No. 42, Version 4.0, November 2004. Results must be reported as mg/kg total nitrogen and pounds per acre.

(6) Analytical laboratories approved for manure and soil testing are given in Montana State University Extension Service Publication 4449-1, Soil Sampling and Laboratory Selection, June 2005.

(7) Manure must be applied to fields at times and under conditions that will hold the nutrients in place for crop growth and protect surface and ground water using best management practices described in the nutrient management plan. The intended target spreading dates must be included in the NMP. Manure must not be land-applied under the following conditions:

(a) on land that is flooded or saturated with water;

(b) during or within 36 hours of a rainfall event that exceeds four hours in duration or 0.25 inches or more of precipitation; or

(c) to frozen or snow-covered ground (winter application), except for fields meeting the following criteria:

(i) the application area must be at least 300 feet from lakes, streams, intermittent streams, irrigation canals and ditches, open intake structures, property lines, and road right-of-ways;

(ii) permanent vegetative cover or standing stubble with crop residue greater than 50 percent; and

(iii) land slope of the field must not exceed the following criteria:

(A) six percent for application of solid manure (total solids content greater than 15 percent); or

(B) three percent for application of slurry or liquid waste (total solids content of 15 percent or less).

(8) If winter application is proposed, the CAFO must identify fields suitable for winter application in the nutrient management plan and application rates for manure must not exceed those identified in the nutrient budget as determined in (3)(c).

(9) Manure application rates and procedures must be consistent with the capabilities, including capacity and calibration range, of application equipment.

(a) For an existing CAFO, the NMP must include a statement indicating that the existing equipment has been calibrated to ensure delivery of the application rates described in the plan and has the capacity to meet those rates. The CAFO shall maintain the supporting documentation on site and shall make this information available to the department upon request.

(b) For proposed operations, or when it is not feasible to calibrate the equipment or verify its capacity at planning time, the operator shall perform this application equipment verification prior to the first application of manure. The information required in (a) must be maintained on site and incorporated into any subsequent amendment of the NMP. The CAFO shall maintain the supporting documentation on site and shall make this information available to the department upon request.

(c) If a commercial hauler is used, the hauler shall be responsible for ensuring that the equipment is capable of complying with the application rate in the NMP. The CAFO shall maintain the supporting documentation on site and shall make this information available to the department upon request.

(10) A multiyear phosphorus application is allowed for fields that require a nitrogen-based application based on a site-specific assessment (site vulnerability rating less than 22) as described in (3). When such application is made, the following conditions apply:

(a) the application may not exceed the recommended nitrogen application rate during the years of application which may include a calculation for fertilizer inefficiencies or the estimated nitrogen removal in harvested plant biomass during the year of application when there is no recommended nitrogen application;

(b) conservation practices must be included in the NMP and implemented to minimize the risk of phosphorus loss from the field; and

(c) no additional manure may be applied to the field until the phosphorus applied in the single application has been removed through plant harvest.

(11) As an alternative to the manure application rates based on the criteria given in (3), the CAFO may develop application rates for manure based on United States Department of Agriculture (USDA), Natural Resource Conservation Service (NRCS), Conservation Practice Standard, Code 590 (November 2006), provided that the following conditions are met:

(a) a field-specific assessment of the potential for nitrogen and phosphorus transport from the field to surface waters must be conducted;

(b) the form, source, amount, timing, and method of application of manure and any other nutrients to each field must be based on realistic production goals, and minimizing nitrogen and phosphorus movement to surface water must be addressed;

(c) the appropriate flexibilities for the CAFO must be maintained to implement a multiyear phosphorus application as described in (9);

(d) manure must be sampled a minimum of once annually for nitrogen and phosphorus and must be analyzed based on procedures and methods given in (4) and (5);

(e) soil must be analyzed a minimum of once every three years for phosphorus content;

(f) the results of the manure and soil sampling analysis must be used in determining manure application rates; and

(g) the nutrient budget must be completed on forms provided by the department.

(12) The board adopts and incorporates by reference the following, which may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena, MT 59620-0901, or on the department's web site at http://deq.mt.gov/default.mcpx.

(a) United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), No. 80.1 Nutrient Management Agronomy Technical Note MT-77 (revision 3), (January 2006);

(b) United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), Method 4D5 (Olsen Sodium-Bicarbonate Extraction), Soil Survey Laboratory Methods Manual, Soil Survey Investigations Report No. 42, Version 4.0, (November 2004);

(c) United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), Sampling Soils for Nutrient Management – Manure Resource Series, MT, (April 2007);

(d) Montana State University Extension, MontGuide, Interpretation of Soil Test Reports for Agriculture, MT200702AG, (July 2007);

(e) Montana State University Extension Service Publication 4449-1, Soil Sampling and Laboratory Selection, (June 2005); and

(f) United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), Conservation Practice Standard, Nutrient Management, Code 590, (November 2006).

(13) CAFO sewage lagoons must meet the setbacks established in ARM 17.30.1702.

 

History: 75-5-201, 75-5-401, 75-5-802, MCA; IMP, 75-5-201, 75-5-401, 75-5-802, MCA; NEW, 2013 MAR p. 529, Eff. 4/12/13; AMD, 2019 MAR p. 836, Eff. 6/22/19.

17.30.1340   NEW SOURCES AND NEW DISCHARGERS

(1) Except as otherwise provided in an applicable new source performance standard, a source is a new source if it meets the definition of new source in ARM 17.30.1304, and:

(a) it is constructed at a site at which no other source is located; or

(b) it totally replaces the process or production equipment that causes the discharge of pollutants at an existing source; or

(c) its processes are substantially independent of an existing source at the same site. In determining whether these processes are substantially independent, the department shall consider such factors as the extent to which the new facility is integrated with the existing plant; and the extent to which the new facility is engaged in the same general type of activity as the existing source.

(2) A source meeting the requirements of (1)(a), (b), or (c) is a new source only if a new source performance standard is independently applicable to it. If there is no such independently applicable standard, the source is a new discharger. (See ARM 17.30.1304.)

(3) Construction on a site at which an existing source is located results in a modification subject to ARM 17.30.1361 rather than a new source (or a new discharger) if the construction does not create a new building, structure, facility, or installation meeting the criteria of (1)(b) or (c) but otherwise alters, replaces, or adds to existing process or production equipment.

(4) Construction of a new source as defined under ARM 17.30.1304 has commenced if the owner or operator has:

(a) begun, or caused to begin as part of a continuous on-site construction program:

(i) any placement, assembly, or installation of facilities or equipment; or

(ii) significant site preparation work including clearing, excavation, or removal of existing buildings, structures, or facilities which is necessary for the placement, assembly, or installation of new source facilities or equipment; or

(b) entered into a binding contractual obligation for the purchase of facilities or equipment which are intended to be used in its operation within a reasonable time. Options to purchase or contracts which can be terminated or modified without substantial loss, and contracts for feasibility, engineering, and design studies do not constitute a contractual obligation under this rule.

(5) Except as provided in (6), any new discharger, the construction of which commenced after October 18, 1972, or new source which meets the applicable promulgated new source performance standards before the commencement of discharge, may not be subject to any more stringent new source performance standards or to any more stringent technology-based standards under ARM 17.30.1207 for the soonest ending of the following periods:

(a) ten years from the date that construction is completed;

(b) ten years from the date the source begins to discharge process or other non-construction related wastewater; or

(c) the period of depreciation or amortization of the facility for the purposes of section 167 or 169 (or both) of the Internal Revenue Code of 1954.

(6) The protection from more stringent standards of performance afforded by (5) does not apply to:

(a) additional or more stringent permit conditions which are not technology based; for example, conditions based on water quality standards, or toxic effluent standards or prohibitions under ARM 17.30.1206; or

(b) additional permit conditions in accordance with 40 CFR 125.3 controlling toxic pollutants or hazardous substances which are not controlled by new source performance standards. This includes permit conditions controlling pollutants other than those identified as toxic pollutants or hazardous substances when control of these pollutants has been specifically identified as the method to control the toxic pollutants or hazardous substances.

(7) When an MPDES permit issued to a source with a "protection period" under (5) of this rule expires on or after the expiration of the protection period, that permit must require the owner or operator of the source to comply with the requirements of section 301 of the federal Clean Water Act and any other then-applicable requirements of the Act immediately upon the expiration of the protection period. No additional period for achieving compliance with these requirements may be allowed except when necessary to achieve compliance with requirements promulgated less than three years before the expiration of the protection period.

(8) The owner or operator of a new source, a new discharger which commenced discharge after August 13, 1979, or a recommencing discharger, shall install and have in operating condition, and shall "start-up" all pollution control equipment required to meet the conditions of its permits before beginning to discharge. Within the shortest feasible time (not to exceed 90 days) , the owner or operator shall meet all permit conditions. The requirements of this rule do not apply if the owner or operator is issued a permit containing a compliance schedule under ARM 17.30.1350(1)(b) .

(9) After the effective date of new source performance standards, it is unlawful for any owner or operator of any new source to operate the source in violation of those standards applicable to the source.

 

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2020 MAR p. 1879, Eff. 10/24/20.

17.30.1341   GENERAL PERMITS

(1) The department may issue general permits for the following categories of point sources which the board has determined are appropriate for general permitting under the criteria listed in 40 CFR 122.28 as stated in ARM 17.30.1105:

(a) cofferdams or other construction dewatering discharges;

(b) ground water pump test discharges;

(c) fish farms;

(d) placer mining operations;

(e) suction dredge operations using suction intakes no larger than four inches in diameter;

(f) oil well produced water discharges for beneficial use;

(g) animal feedlots;

(h) domestic sewage treatment lagoons;

(i) sand and gravel mining and processing operations;

(j) point source discharges of storm water;

(k) treated water discharged from petroleum cleanup operations;

(l) discharges from public water supply systems, as determined under Title 75, chapter 6, MCA;

(m) discharges to wetlands that do not contain perennial free surface water;

(n) discharges from road salting operations;

(o) asphalt plant discharges;

(p) discharges of hydrostatic testing water;

(q) discharges of noncontact cooling water;

(r) swimming pool discharge;

(s) septic tank pumper disposal sites; and

(t) pesticide application.

(2) Although MPDES general permits may be issued for a category of point sources located throughout the state, they may also be restricted to more limited geographical areas.

(3) Prior to issuing a MPDES general permit, the department shall prepare a public notice which includes the equivalent of information listed in ARM 17.30.1372(6) and shall publish the same as follows:

(a) prior to publication, notice to the U.S. Environmental Protection Agency;

(b) direct mailing of notice to the Water Pollution Control Advisory Council and to any persons who may be affected by the proposed general permit;

(c) publication of notice in a daily newspaper in Helena and in other daily newspapers of general circulation in the state or affected area;

(d) after publication, a hearing must be held and a 30-day comment period allowed as provided in ARM 17.30.1372 through 17.30.1377 and 17.30.1383.

(4) A person owning or proposing to operate a point source who wishes to operate under a MPDES general permit shall complete a standard MPDES application or notice of intent form available from the department for the particular general permit. Except for notices of intent, the department shall, within 30 days of receiving a completed application, either issue to the applicant an authorization to operate under the MPDES general permit, or shall notify the applicant that the source does not qualify for authorization under a MPDES general permit, citing one or more of the following reasons as the basis for denial:

(a) the specific source applying for authorization appears unable to comply with the following requirements:

(i) effluent standards, effluent limitations, standards of performance for new sources of pollutants, toxic effluent standards and prohibitions, and pretreatment standards;

(ii) water quality standards established pursuant to 75-5-301, MCA;

(iii) prohibition of discharge of any radiological, chemical, or biological warfare agent or high-level radioactive waste;

(iv) prohibition of any discharge which the secretary of the army acting through the chief of engineers finds would substantially impair anchorage and navigation;

(v) prohibition of any discharges to which the regional administrator has objected in writing;

(vi) prohibition of any discharge which is in conflict with a plan or amendment thereto approved pursuant to section 208(b) of the federal Clean Water Act; and

(vii) any additional requirements that the department determines are necessary to carry out the provisions of 75-5-101, et seq., MCA.

(b) the discharge is different in degree or nature from discharges reasonably expected from sources or activities within the category described in the MPDES general permit;

(c) an MPDES permit or authorization for the same operation has previously been denied or revoked;

(d) the discharge sought to be authorized under a MPDES general permit is also included within an application or is subject to review under the Major Facility Siting Act, 75-20-101, et seq., MCA;

(e) the point source will be located in an area of unique ecological or recreational significance. Such determination must be based upon considerations of Montana stream classifications adopted under 75-5-301 , MCA, impacts on fishery resources, local conditions at proposed discharge sites, and designations of wilderness areas under 16 USC 1132 or of wild and scenic rivers under 16 USC 1274.

(5) Where authorization to operate under a MPDES general permit is denied, or a notice of intent under ARM 17.30.1115 is not applicable, the department shall proceed, unless the application or notice of intent is withdrawn, to process the application or notice of intent through the individual MPDES permit requirements under this subchapter.

(6) Every MPDES general permit must have a fixed term not to exceed five years. Except as provided in (10) , every authorization to operate under a MPDES general permit expires at the same time the MPDES general permit expires.

(7) Where authorization to operate under a MPDES general permit is issued to, or a notice of intent received from, a point source covered by an individual MPDES permit, the department shall, upon issuance of the authorization to operate or receipt of the notice of intent under the MPDES general permit, terminate the individual MPDES permit for that point source.

(8) Any person authorized or eligible to operate under a MPDES general permit may at any time apply for an individual MPDES permit according to the procedures in this subchapter. Upon issuance of the individual MPDES permit, the department shall terminate any MPDES general permit authorization or notice of intent held by such person.

(9) The department, on its own initiative or upon the petition of any interested person, may modify, suspend, or revoke in whole or in part a MPDES general permit or an authorization or notice of intent to operate under a MPDES general permit during its term in accordance with the provisions of ARM 17.30.1361 for any cause listed in ARM 17.30.1361 or for any of the following causes:

(a) the approval of a water quality management plan containing requirements applicable to point sources covered in the MPDES general permit;

(b) determination by the department that the discharge from any authorized source is a significant contributor to pollution as determined by the factors set forth in 40 CFR 122.26(c) (2) ; or

(c) a change in the availability of demonstrated technology or practices for the control or abatement of pollutants applicable to a source or to a category of sources;

(d) occurrence of one or more of the following circumstances:

(i) violation of any conditions of the permit; or

(ii) obtaining an MPDES permit by misrepresentation or failure to disclose fully all relevant facts;

(iii) a change in any condition that requires either a temporary or permanent reduction or elimination of the authorized discharge; or

(iv) a failure or refusal by the permittee to comply with the requirements of 75-5-602, MCA.

(10) The department may reissue an authorization to operate under a MPDES general permit provided that the requirements for reissuance of MPDES permits specified in ARM 17.30.1322 are met.

(11) The department shall maintain and make available to the public a register of all sources and activities authorized to operate, or with notices of intent to discharge, under each MPDES general permit including the location of such sources and activities, and shall provide copies of such registers upon request.

(12) A concentrated animal feeding operation (CAFO) owner or operator may be authorized to discharge under a general permit only in accordance with the process described in 40 CFR 122.23(h).

(13) The board adopts and incorporates by reference the following federal regulations, which may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena, MT 59620-0901:

(a) 40 CFR 122.28 (July 1, 2012), which sets forth criteria for selecting categories of point sources appropriate for general permitting;

(b) 40 CFR 124.10(d)(1) (July 1, 2012), which sets forth minimum contents of public notices; and

(c) 40 CFR 122.23(h) (July 1, 2012), which sets forth procedures for CAFOs seeking coverage under a general permit.

 

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1999 MAR p. 1661, Eff. 7/23/99; AMD, 2003 MAR p. 220, Eff. 2/14/03; AMD, 2011 MAR p. 909, Eff. 5/27/11; AMD, 2013 MAR p. 529, Eff. 4/12/13; AMD, 2020 MAR p. 1879, Eff. 10/24/20.

17.30.1342   CONDITIONS APPLICABLE TO ALL PERMITS

The following conditions apply to all MPDES permits. Additional conditions applicable to MPDES permits are set forth in ARM 17.30.1344. All conditions applicable to MPDES permits must be incorporated into the permits either expressly or by reference. If incorporated by reference, a specific citation to these rules must be given in the permit.

(1) The permittee shall comply with all conditions of this permit. Any permit noncompliance constitutes a violation of the Act and is grounds for enforcement action; for permit termination, revocation and reissuance, or modification; or denial of a permit renewal application.

(a) The permittee shall comply with effluent standards or prohibitions established under ARM 17.30.1206 for toxic pollutants within the time provided in the rules that establish these standards or prohibitions, even if the permit has not yet been modified to incorporate the requirement.

(b) The Act provides that any person who violates a permit condition is subject to a civil penalty not to exceed $10,000 per day of such violation. Any person who willfully or negligently violates a permit condition is subject to a fine not to exceed $25,000 per day of violation or imprisonment for not more than one year, or both.

(2) If the permittee wishes to continue an activity regulated by this permit after the expiration date of this permit, the permittee shall first apply for and obtain a new permit.

(3) It may not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit.

(4) The permittee shall take all reasonable steps to minimize or prevent any discharge in violation of this permit which has a reasonable likelihood of adversely affecting human health or the environment.

(5) The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by the permittee to achieve compliance with the conditions of this permit. Proper operation and maintenance also includes adequate laboratory controls and appropriate quality assurance procedures. This provision requires the operation of backup or auxiliary facilities or similar systems which are installed by a permittee only when the operation is necessary to achieve compliance with the conditions of the permit.

(6) This permit may be modified, revoked and reissued, or terminated for cause. The filing of a request by the permittee for a permit modification, revocation and reissuance, or termination, or a notification of planned changes or anticipated noncompliance does not stay any permit condition.

(7) This permit does not convey any property rights of any sort, or any exclusive privilege.

(8) The permittee shall furnish to the department, within a reasonable time, any information which the department may request to determine whether cause exists for modifying, revoking and reissuing, or terminating this permit or to determine compliance with this permit. The permittee shall also furnish to the department upon request, copies of records required to be kept by this permit.

(9) The permittee shall allow the department, or an authorized representative, upon the presentation of credentials and other documents as may be required by law, to:

(a) enter upon the permittee's premises where a regulated facility or activity is located or conducted, or where records must be kept under the conditions of this permit;

(b) have access to and copy, at reasonable times, any records that must be kept under the conditions of this permit;

(c) inspect at reasonable times any facilities, equipment (including monitoring and control equipment) , practices, or operations regulated or required under this permit; and

(d) sample or monitor at reasonable times, for the purposes of assuring permit compliance or as otherwise authorized by the Act, any substances or parameters at any location.

(10) Monitoring and records:

(a) Samples and measurements taken for the purpose of monitoring must be representative of the monitored activity.

(b) The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation, copies of all reports required by this permit, and records of all data used to complete the application for this permit, for a period of at least three years from the date of the sample, measurement, report or application. This period may be extended by request of the department at any time.

(c) Records of monitoring information must include:

(i) the date, exact place, and time of sampling or measurements;

(ii) the individual(s) who performed the sampling or measurements;

(iii) the date(s) analyses were performed;

(iv) the individual(s) who performed the analyses;

(v) the analytical techniques or methods used; and

(vi) the results of such analyses.

(d) Monitoring must be conducted according to test procedures approved under 40 CFR Part 136, unless other test procedures have been specified in this permit.

(11) All applications, reports, or information submitted to the department must be signed and certified. (See ARM 17.30.1323.)

(12) Reporting requirements:

(a) The permittee shall give notice to the department as soon as possible of any planned physical alterations or additions to the permitted facility. Notice is required only when:

(i) the alteration or addition to a permitted facility may meet one of the criteria for determining whether a facility is a new source in ARM 17.30.1340(2); or

(ii) the alteration or addition could significantly change the nature or increase the quantity of pollutants discharged. This notification applies to pollutants which are subject neither to effluent limitations in the permit, nor to notification requirements under ARM 17.30.1343(1)(a).

(b) The permittee shall give advance notice to the department of any planned changes in the permitted facility or activity which may result in noncompliance with permit requirements.

(c) This permit is not transferable to any person except after notice to the department. The department may require modification or revocation and reissuance of the permit to change the name of the permittee and incorporate such other requirements as may be necessary under the Act. (See ARM 17.30.1360; in some cases, modification or revocation and reissuance is mandatory.)

(d) Monitoring results must be reported at the intervals specified elsewhere in this permit.

(i) Monitoring results must be reported on a discharge monitoring report (DMR).

(ii) If the permittee monitors any pollutant more frequently than required by the permit, using test procedures approved under 40 CFR 136 or as specified in the permit, the results of this monitoring must be included in the calculation and reporting of the data submitted in the DMR.

(iii) Calculations for all limitations which require averaging of measurements must utilize an arithmetic mean unless otherwise specified by the department in the permit.

(e) Reports of compliance or noncompliance with, or any progress reports on, interim and final requirements contained in any compliance schedule of this permit must be submitted no later than 14 days following each schedule date.

(f) Twenty-four hour reporting:

(i) The permittee shall report any noncompliance which may endanger health or the environment. Any information must be provided orally within 24 hours from the time the permittee becomes aware of the circumstances. A written submission must also be provided within five days of the time the permittee becomes aware of the circumstances. The written submission must contain a description of the noncompliance and its cause; the period of noncompliance, including exact dates and times, and if the noncompliance has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent reoccurrence of the noncompliance.

(ii) The following must be included as information which must be reported within 24 hours under this rule:

(A) any unanticipated bypass which exceeds any effluent limitation in the permit (see ARM 17.30.1342(7));

(B) any upset which exceeds any effluent limitation in the permit; and

(C) violation of a maximum daily discharge limitation for any of the pollutants listed by the department in the permit to be reported within 24 hours (see ARM 17.30.1344 and 40 CFR 122.44(g)).

(iii) The department may waive the written report on a case-by-case basis for reports under (ii) above if the oral report has been received within 24 hours.

(g) The permittee shall report all instances of noncompliance not reported under (a), (d), (e), and (f), at the time monitoring reports are submitted. The reports must contain the information listed in (f).

(h) Where the permittee becomes aware that it failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to the department, it shall promptly submit such facts or information.

(13) Other noncompliance:

(a) The permittee may allow any bypass to occur which does not cause effluent limitations to be exceeded, but only if it also is for essential maintenance to assure efficient operation. These bypasses are not subject to the provisions of (b) and (c).

(b) If the permittee knows in advance of the need for a bypass, it shall submit prior notice to the department, if possible at least 10 days before the date of the bypass. The permittee shall submit notice of an unanticipated bypass as required in (12)(f) (24-hour notice).

(c) Bypass is prohibited, and the department may take enforcement action against a permittee for bypass, unless:

(i) bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;

(ii) there were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate backup equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance; and

(iii) the permittee submitted notices as required under (c).

(d) The department may approve an anticipated bypass, after considering its adverse effects, if the department determines that it will meet the three conditions listed above in (c)(i).

(14) Upset Conditions:

(a) Effect of an upset: An upset constitutes an affirmative defense to an action brought for noncompliance with such technology-based permit effluent limitations if the requirements of (b) are met. No determination made during administrative review of claims that noncompliance was caused by upset, and before an action for noncompliance, is final administrative action subject to judicial review.

(b) Conditions necessary for demonstration of an upset: A permittee who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that:

(i) an upset occurred and that the permittee can identify the cause(s) of the upset;

(ii) the permitted facility was at the time being properly operated;

(iii) the permittee submitted notice of the upset as required in (12)(f)(ii)(B) (24-hour notice); and

(iv) the permittee complied with any remedial measures required under (4).

(c) Burden of proof: In any enforcement proceeding the permittee seeking to establish the occurrence of an upset has the burden of proof.

(15) The board adopts and incorporates by reference:

(a) 40 CFR Part 136, which is a series of federal agency rules setting forth guidelines establishing test procedures for the analysis of pollutants; and

(b) 40 CFR 122.44(g), which is a federal agency rule requiring 24-hour notice of any violation of maximum daily discharge limits.  

 

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2020 MAR p. 1879, Eff. 10/24/20.

17.30.1343   ADDITIONAL CONDITIONS APPLICABLE TO SPECIFIC CATEGORIES OF MPDES PERMITS

(1) The following conditions, in addition to those set forth in ARM 17.30.1342, apply to all MPDES permits within the categories specified below:

(a) All existing manufacturing, commercial, mining, and silvicultural dischargers, in addition to the reporting requirements under ARM 17.30.1342(12) , shall notify the department as soon as they know or have reason to believe:

(i) That any activity has occurred or will occur which would result in the discharge on a routine or frequent basis, of any toxic pollutant which is not limited in the permit, if that discharge will exceed the highest of the following "notification levels":

(A) 100 micrograms per liter;

(B) 200 micrograms per liter for acrolein and acrylonitrile; 500 micrograms per liter for 2,4-dinitrophenol and for 2-methyl-4,6-dinitrophenol; and one milligram per liter for antimony;

(C) five times the maximum concentration value reported for that pollutant in the permit application in accordance with ARM 17.30.1322(7) (g) ; or

(D) the level established by the department in accordance with ARM 17.30.1344(6) .

(ii) That any activity has occurred or will occur which would result in any discharge, on a non-routine or infrequent basis, of a toxic pollutant which is not limited in the permit, if that discharge will exceed the highest of the following "notification levels":

(A) 500 micrograms per liter;

(B) one milligram per liter for antimony;

(C) 10 times the maximum concentration value reported for that pollutant in the permit application in accordance with ARM 17.30.1322(7) (g) ; or

(D) the level established by the department in ARM 17.30.1344, in accordance with 40 CFR 122.44(f) .

(b) All POTW's shall provide adequate notice to the department of the following:

(i) any new introduction of pollutants into the POTW from an indirect discharger which would be subject to the effluent limits or standards of performance adopted and set forth in ARM 17.30.302 if it were directly discharging those pollutants; and

(ii) any substantial change in the volume or character of pollutants being introduced into that POTW by a source introducing pollutants into the POTW at the time of issuance of the permit.

(iii) For purposes of this rule, adequate notice must include information on:

(A) the quality and quantity of effluent introduced into the POTW; and

(B) any anticipated impact of the change on the quantity or quality of effluent to be discharged from the POTW.

(c) Any permit issued to a concentrated animal feeding operation (CAFO) must include the requirements specified in 40 CFR 122.42(e). In general, the requirements in that federal regulation include:

(i) a requirement to implement a nutrient management plan that contains best management practices necessary to meet the requirements of 40 CFR 122.42(e)(1) and any applicable effluent limitations in 40 CFR Part 412;

(ii) recordkeeping and reporting requirements;

(iii) requirements relating to the transfer of manure or process wastewater to other persons;

(iv) a requirement to include specific terms in the nutrient management plan and a duty to comply with those terms; and

(v) requirements relating to changes in a nutrient management plan.

(2) The board adopts and incorporates by reference the following federal regulations, which may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena, MT 59620-0901:

(a) 40 CFR 122.44(f) (July 1, 2012), which sets forth "notification levels" for dischargers of pollutants that may be inserted in a permit upon a petition from the permittee or upon the initiative of the department;

(b) 40 CFR Part 412 (July 1, 2012), which establishes the effluent limitation guidelines and best management practices for CAFOs; and

(c) 40 CFR 122.42(e) (July 1, 2012), which establishes additional permit conditions for CAFOs.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2006 MAR p. 532, Eff. 2/24/06; AMD, 2013 MAR p. 529, Eff. 4/12/13.

17.30.1344   ESTABLISHING LIMITATIONS, STANDARDS, AND OTHER PERMIT CONDITIONS

(1) In addition to the conditions established under ARM 17.30.1342, 17.30.1343, 17.30.1346, 17.30.1350, and 17.30.1351, each MPDES permit must include conditions meeting the requirements stated in 40 CFR 122.43, 122.44, 124.56, and 124.57 (July 1, 1991).

(2) The board hereby adopts and incorporates herein by reference:

(a) 40 CFR 122.43 (July 1, 1991), which is a federal rule that establishes applicable permit conditions in general;

(b) 40 CFR 122.44 (July 1, 1991), which is a federal agency rule setting forth additional permit conditions which may be applicable to a point source. Such conditions include technology-based and water-quality-based standards, toxic and pretreatment standards, reopener clause, reporting and monitoring requirements, permit duration and reissuance, test methods, best management practices, conditions concerning sewage sludge, privately owned treatment works, and conditions imposed in EPA grants to POTW's;

(c) 40 CFR 124.56 (July 1, 1991), which describes requirements for fact sheets;

(d) 40 CFR 124.57 (July 1, 1991), which describes the public notice that must be provided for draft permits;

(e) 40 CFR chapter 1, subchapter N, (July 1, 1991), which sets forth federal effluent limitations and standards and new source performance standards;

(f) 40 CFR Part 125 (July 1, 1991), which states standards and criteria for the national point discharge elimination system;

(g) 40 CFR Part 129 (July 1, 1991), which describes toxic effluent pollutant standards; and

(h) 40 CFR Part 133, (July 1, 1991), which sets forth requirements for secondary treatment regulation.

(i) Copies of the above listed materials are available from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

 

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2020 MAR p. 1879, Eff. 10/24/20.

17.30.1345   CALCULATING MPDES PERMIT CONDITIONS

(1) All permit effluent limitations, standards, and prohibitions must be established for each outfall or discharge point of the permitted facility, except as otherwise provided under ARM 17.30.1344 (40 CFR 122.44(k)) (BMP's where limita­tions are infeasible) and (10) (limitations on internal waste streams).

(2) Production-based limitations.

(a) In the case of POTW's, permit limitations, standards, or prohibitions must be calculated based on design flow.

(b) Except in the case of POTW's, or as provided in (3), calculation of any permit limitations, standards, or prohibitions which are based on production (or other measure of operation) must be based not upon the designed production capacity but rather upon a reasonable measure of actual production of the facility. For new sources or new dischargers, actual production must be estimated using projected production. The time period of the measure of production must correspond to the time period of the calculated permit limitations; for example, monthly production must be used to calculate average monthly discharge limitations.

(3) The department may include a condition establishing alternate permit limitations, standards, or prohibitions based upon anticipated increased (not to exceed maximum production capability) or decreased production levels.

(4) If the department establishes permit conditions under (3):

(a) The permit must require the permittee to notify the department at least two business days prior to a month in which the permittee expects to operate at a level higher than the lowest production level identified in the permit. The notice must specify the anticipated level and the period during which the permittee expects to operate at the alternate level. If the notice covers more than one month, the notice must specify the reasons for the anticipated production level increase. New notice of discharge at alternate levels is required to cover a period or production level not covered by prior notice or, if during two consecutive months otherwise covered by a notice, the production level at the permitted facility does not in fact meet the higher level designated in the notice.

(b) The permittee shall comply with the limitations, standards, or prohibitions that correspond to the lowest level of production specified in the permit, unless the permittee has notified the department under (a), in which case the permittee shall comply with the lower of the actual level of production during each month or the level specified in the notice.

(c) The permittee shall submit with the DMR the level of production that actually occurred during each month and the limitations, standards, or prohibitions applicable to that level of production.

(5) All permit effluent limitations, standards, or prohibitions for a metal must be expressed in terms of "total recoverable metal" as defined in 40 CFR Part 136 unless:

(a) an applicable effluent standard or limitation has been promulgated under the Act and specifies the limitation for the metal in the dissolved or valent or total form; or

(b) in establishing permit limitations on a case-by-case basis under ARM 17.30.1203, it is necessary to express the limitation on the metal in the dissolved or valent or total form to carry out the provisions of the Act; or

(c) all approved analytical methods for the metal inherently measure only its dissolved form (e.g., hexavalent chromium).

(6) For continuous discharges all permit effluent limitations, standards, and prohibitions, including those necessary to achieve water quality standards, must unless impracticable be stated as:

(a) maximum daily and average monthly discharge limitations for all dischargers other than publicly owned treatment works; and

(b) average weekly and average monthly discharge limitations for POTW's.

(7) Discharges which are not continuous, as defined in ARM 17.30.1304(12), must be particularly described and limited, considering the following factors, as appropriate:

(a) frequency (for example, a batch discharge must not occur more than once every three weeks);

(b) total mass (for example, not to exceed 100 kilograms of zinc and 200 kilograms of chromium per batch discharge);

(c) maximum rate of discharge of pollutants during the discharge (for example, not to exceed two kilograms of zinc per minute); and

(d) prohibition or limitation of specified pollutants by mass, concentration, or other appropriate measure (for example, must not contain at any time more than 0.1 mg/l zinc or more than 250 grams (1/4 kilogram) of zinc in any discharge).

(8) Mass limitations:

(a) All pollutants limited in permits must have limitations, standards, or prohibitions expressed in terms of mass except:

(i) for pH, temperature, radiation, or other pollutants which cannot appropriately be expressed by mass;

(ii) when applicable standards and limitations are expressed in terms of other units of measurement; or

(iii) if in establishing permit limitations on a case-by-case basis under 40 CFR 125.3, limitations expressed in terms of mass are infeasible because the mass of the pollutant discharged cannot be related to a measure of operation (for example, discharges of total suspended solids (TSS) from certain mining operations), and permit conditions ensure that dilution will not be used as a substitute for treatment.

(b) Pollutants limited in terms of mass additionally may be limited in terms of other units of measurement, and the permit must require the permittee to comply with both limitations.

(9) Pollutants in intake water:

(a) Upon request of the discharger, technology-based effluent limitations or standards must be adjusted to reflect credit for pollutants in the discharger's intake water if:

(i) the applicable effluent limitations and standards contained in 40 CFR chapter 1, subchapter N, specifically provide that they must be applied on a net basis; or

(ii) the discharger demonstrates that the control system it proposes or uses to meet applicable technology-based limitations and standards would, if properly installed and operated, meet the limitations and standards in the absence of pollutants in the intake waters.

(b) Credit for generic pollutants such as biochemical oxygen demand (BOD) or total suspended solids (TSS) should not be granted unless the permittee demonstrates that the constituents of the generic measure in the effluent are substantially similar to the constituents of the generic measure in the intake water or unless appropriate additional limits are placed on process water pollutants either at the outfall or elsewhere.

(c) Credit may be granted only to the extent necessary to meet the applicable limitation or standards, up to a maximum value equal to the influent value. Additional monitoring may be necessary to determine eligibility for credits and compliance with permit limits.

(d) Credit may be granted only if the discharger demonstrates that the intake water is drawn from the same body of water into which the discharge is made. The department may waive this requirement if it finds that no environmental degradation will result.

(e) This rule does not apply to the discharge of raw water clarifier sludge generated from the treatment of intake water.

(10) Internal waste streams:

(a) When permit effluent limitations or standards imposed at the point of discharge are impractical or infeasible, effluent limitations or standards for discharges of pollutants may be imposed on internal waste streams before mixing with other waste streams or cooling water streams. In those instances, the monitoring required by ARM 17.30.1344, in accordance with 40 CFR 122.44(i), must also be applied to the internal waste streams.

(b) Limits on internal waste streams may be imposed only when the fact sheet under ARM 17.30.1371 sets forth the exceptional circumstances which make such limitations necessary, such as when the final discharge point is inaccessible (for example, under 10 meters of water), the wastes at the point of discharge are so diluted as to make monitoring impracticable, or the interferences among pollutants at the point of discharge would make detection or analysis impracticable.

(11) Permit limitations and standards concerning disposal of pollutants into wells, POTW's, or by land application must be calculated as provided in ARM 17.30.1354.

(12) The board adopts and incorporates by reference:

(a) 40 CFR 122.44(j)(2), which is a federal agency rule setting forth a requirement for the submittal by a publicly owned treatment work (POTW) of a local pretreatment program;

(b) 40 CFR 122.45(b)(2)(ii)(A) which is a federal agency rule setting forth the availability of alternate permit limitations, standards, or prohibitions based on varying production levels;

(c) 40 CFR 136, which is a series of federal agency rules setting forth guidelines for testing procedures for the analysis of pollutants;

(d) 40 CFR 125.3, which is a federal agency rule setting forth technology-based treatment requirements for point source dischargers;

(e) 40 CFR chapter 1, subchapter N, which is a series of federal agency rules setting forth effluent guidelines and standards for point source dischargers; and

(f) 40 CFR 122.44(i), which is a federal agency rule setting forth monitoring requirements for point source dischargers. 

 

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2020 MAR p. 1879, Eff. 10/24/20.

17.30.1346   DURATION OF PERMITS

(1) MPDES permits are effective for a fixed term not to exceed five years.

(2) Except as provided in ARM 17.30.1313, the term of a permit may not be extended by modification beyond the maximum duration specified in this rule.

(3) The department may issue any permit for a duration that is less than the full allowable term under this rule.

(4) A permit may be issued to expire on or after the statutory deadline set forth in section 301(b) (2)(A), (C), and (E) of the federal Clean Water Act (July 1, 1984), if the permit includes effluent limitations to meet the requirements of sections 301(b) (2)(A), (C), (D), (E), and (F) of the federal Clean Water Act, whether or not applicable effluent limitations guidelines have been promulgated or approved.

(5) A determination that a particular discharger falls within a given industrial category for purposes of setting a permit expiration date under (4) is not conclusive as to the discharger's inclusion in that industrial category for any other purposes, and does not prejudice any rights to challenge or change that inclusion at the time that a permit based on that determination is formulated.

(6) The board adopts and incorporates by reference sections 301(b)(2) (A), (C), (E), and (F) of the federal Clean Water Act, 33 USC 1251, et seq., which set forth deadlines for achieving effluent limitations and treatment of toxic pollutants.

 

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2020 MAR p. 1879, Eff. 10/24/20.

17.30.1350   SCHEDULES OF COMPLIANCE

(1) The permit may, when appropriate, specify a schedule of compliance leading to compliance with the Act and rules adopted thereunder.

(a) Any schedules of compliance under this rule must require compliance as soon as possible, but not later than any applicable statutory deadline under the Act or under the federal Clean Water Act.

(b) The first MPDES permit issued to a new source or a new discharger must contain a schedule of compliance only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised after commencement of construction but less than three years before commencement of the relevant discharge. For recommencing dischargers, a schedule of compliance must be available only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised less than three years before recommencement of discharge.

(c) Except as provided in (2)(a)(ii), if a permit establishes a schedule of compliance which exceeds one year from the date of permit issuance, the schedule must set forth interim requirements and the dates for their achievement.

(i) The time between interim dates may not exceed one year.

(ii) If the time necessary for completion of any interim requirement (such as the construction of a control facility) is more than one year and is not readily divisible into stages for completion, the permit must specify interim dates for the submission of reports of progress toward completion of the interim requirements and indicate a projected completion date.

(d) The permit must be written to require that no later than 14 days following each interim date and the final date of compliance, the permittee shall notify the department in writing of its compliance or noncompliance with the interim or final requirements, or submit progress reports if (c)(ii) is applicable.

(2) An MPDES permit applicant or permittee may cease conducting regulated activities (by terminating of direct discharge for MPDES sources) rather than continuing to operate and meet permit requirements as follows:

(a) If the permittee decides to cease conducting regulated activities at a given time within the term of a permit which has already been issued:

(i) the permit may be modified to contain a new or additional schedule leading to timely cessation of activities; or

(ii) the permittee shall cease conducting permitted activities before noncompliance with any interim or final compliance schedule requirement already specified in the permit.

(b) If the decision to cease conducting regulated activities is made before issuance of a permit whose term includes the termination date, the permit must contain a schedule leading to termination which will ensure timely compliance with applicable requirements no later than the statutory deadline.

(c) If the permittee is undecided whether to cease conducting regulated activities, the department may issue or modify a permit to contain two schedules as follows:

(i) both schedules must contain an identical interim deadline requiring a final decision on whether to cease conducting regulated activities no later than a date which ensures sufficient time to comply with applicable requirements in a timely manner if the decision is to continue conducting regulated activities;

(ii) one schedule must lead to timely compliance with applicable requirements, no later than the statutory deadline;

(iii) the second schedule must lead to cessation of regulated activities by a date which ensures timely compliance with applicable requirements no later than the statutory deadline;

(iv) each permit containing two schedules must include a requirement that after the permittee has made a final decision under (i) it shall follow the schedule leading to compliance if the decision is to continue conducting regulated activities, and follow the schedule leading to termination if the decision is to cease conducting regulated activities.

(d) The applicant's or permittee's decision to cease conducting regulated activities must be evidenced by a firm public commitment satisfactory to the department, such as a resolution of the board of directors of a corporation.

 

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2020 MAR p. 1879, Eff. 10/24/20.

17.30.1351   REQUIREMENTS FOR RECORDING AND REPORTING OF MONITORING RESULTS
(1) All permits must specify:

(a) requirements concerning the proper use, maintenance, and installation, when appropriate, of monitoring equipment or methods (including biological monitoring methods when appropriate) ;

(b) required monitoring including type, intervals, and frequency sufficient to yield data which are representative of the monitored activity including, when appropriate, continuous monitoring;

(c) applicable reporting requirements based upon the impact of the regulated activity and as specified in ARM 17.30.1344. Reporting may be no less frequent than specified in that rule.

(2) The department may require monitoring of storm water discharges at a facility or activity covered under an MPDES general permit. Such requirements may include storm water sampling, analytical testing, evaluation of monitoring results, recording, and reporting. Monitoring requirements identified by the department must be stated in the MPDES general permit, except that the department may require a discharger to comply with monitoring requirements in addition to those in the general permit.

(3) For storm water discharges that are associated with industrial, mining, oil and gas, and construction activity and that are subject to an effluent limitation guideline, the department shall establish case-by-case requirements to report monitoring results. Such reporting must have a frequency dependent on the nature and effect of the discharge, but the frequency may in no case be less than once a year.

(4) For storm water discharges that are associated with industrial, mining, oil and gas, and construction activity with construction-related disturbance of five acres or more of total land area and that are not subject to an effluent limitation guideline, the department shall establish case-by-case requirements to report monitoring results.

(a) Such reporting must have a frequency dependent on the nature and effect of the discharge, and the permit for the discharge must, at a minimum, require that the discharger:

(i) conduct an annual inspection of the facility site to identify areas contributing to the regulated storm water discharge and to evaluate whether measures to reduce pollutant loadings identified in a storm water pollution prevention plan are adequate and properly implemented in accordance with the terms of the permit;

(ii) maintain for a period of three years a record summarizing the results of inspections; and

(iii) certify that the facility is in compliance with the plan and the permit, or identify any incidents of non-compliance.

(b) Reports and certifications required under this rule must be signed in accordance with ARM 17.30.1323.

(c) Permits for storm water discharges from inactive mining operations may, if annual inspections are impracticable, require certification once every three years by a registered professional engineer that the facility is in compliance with the permit, or alternative requirements.

(5) Permits that do not require the submittal of monitoring result reports at least annually must require that the permittee report at least annually all instances of noncompliance not reported under ARM 17.30.1342(12) .

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 220, Eff. 2/14/03.

17.30.1354   DISPOSAL OF POLLUTANTS INTO WELLS, INTO PUBLICLY OWNED TREATMENT WORKS, OR BY LAND APPLICATION

(1) When part of a discharger's process wastewater is not being discharged into state waters or contiguous zone because it is disposed into a well, into a POTW, or by land application thereby reducing the flow or level of pollutants being discharged into state waters, applicable effluent standards and limitations for the discharge in an MPDES permit must be adjusted to reflect the reduced raw waste resulting from such disposal. Effluent limitations and standards in the permit must be calculated by one of the following methods:

(a) If none of the waste from a particular process is discharged into state waters, and effluent limitations guidelines provide separate allocation for wastes from that process, all allocations for the process must be eliminated from calculation of permit effluent limitations or standards.

(b) In all cases other than those described in (a) , effluent limitations must be adjusted by multiplying the effluent limitation derived by applying effluent limitation guidelines to the total waste stream by the amount of wastewater flow to be treated and discharged into state waters, and dividing the result by the total wastewater flow. Effluent limitations and standards so calculated may be further adjusted under 40 CFR Part 125, subpart D, to make them more or less stringent if discharges to wells, publicly owned treatment works, or by land application change the character or treatability of the pollutants being discharged to receiving waters. This method may be algebraically expressed as:

 

 
P = E x N
   T
where P is the permit effluent limitation, E is the limitation derived by applying effluent guidelines to the total waste-stream, N is the wastewater flow to be treated and discharged to state waters, and T is the total wastewater flow.

(2) Section (1) does not apply to the extent that promulgated effluent limitations guidelines:

(a) control concentrations of pollutants discharged but not mass; or

(b) specify a different specific technique for adjusting effluent limitations to account for well injection, land application, or disposal into POTW's.

(3) Section (1) does not alter a discharger's obligation to meet any more stringent requirements established under ARM 17.30.1342, 17.30.1343, and 17.30.1344.

(4) The board adopts and incorporates by reference 40 CFR Part 125, subpart D, which is a series of federal agency rules setting forth criteria and standards for determining eligibility for a variance from effluent limitations based on fundamentally different factors (FDF).

 

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2020 MAR p. 1879, Eff. 10/24/20.

17.30.1360   TRANSFER OF PERMITS
(1) Except as provided in (2) , a permit may be transferred by the permittee to a new owner or operator only if the permit has been modified or revoked and reissued (under ARM 17.30.1361(2) (b) ) , or a minor modification made (under ARM 17.30.1362(4) ) , to identify the new permittee and incorporate such other requirements as may be necessary under the Act.

(2) As an alternative to transfers under (1) , any MPDES permit may be automatically transferred to a new permittee if:

(a) the current permittee notifies the department at least 30 days in advance of the proposed transfer date in (b) ;

(b) the notice includes a written agreement between the existing and new permittees containing a specific date for transfer of permit responsibility, coverage, and liability between them; and

(c) the department does not notify the existing permittee and the proposed new permittee of his or her intent to modify or revoke and reissue the permit. A modification under this rule may also be a minor modification under ARM 17.30.1362. If this notice is not received, the transfer is effective on the date specified in the agreement mentioned in (b) .

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1361   MODIFICATION OR REVOCATION AND REISSUANCE OF PERMITS

(1) When the department receives any information (for example, inspects the facility, receives information submitted by the permittee as required in the permit (see ARM 17.30.1342) , receives a request for modification or revocation and reissuance under ARM 17.30.1365, or conducts a review of the permit file) it may determine whether or not one or more of the causes listed in (2) and (3) for modification or revocation and reissuance or both exist. If cause exists, the department may modify or revoke and reissue the permit accordingly, subject to the limitations of ARM 17.30.1365(4) (c) , and may request an updated application if necessary. When a permit is modified, only the conditions subject to modification are reopened. If a permit is revoked and reissued, the entire permit is reopened and subject to revision and the permit is reissued for a new term. See ARM 17.30.1365(4) (b) . If cause does not exist under this rule or ARM 17.30.1362, the department may not modify or revoke and reissue the permit. If a permit modification satisfies the criteria in ARM 17.30.1362 for "minor modifications" the permit may be modified without a draft permit or public review. Otherwise, a draft permit must be prepared and other procedures in ARM 17.30.1364, 17.30.1365, 17.30.1370 through 17.30.1379, 17.30.1383, and 17.30.1384 followed.

(2) The following are causes for modification but not revocation and reissuance of permits except when the permittee requests or agrees:

(a) when there are material and substantial alterations or additions to the permitted facility or activity that occurred after permit issuance which justify the application of permit conditions that are different or absent in the existing permit. Certain reconstruction activities may cause the new source provisions of ARM 17.30.1340 to be applicable;

(b) when the department receives new information that was not available at the time of permit issuance. Permits may be modified during their terms for this cause only if the information was not available at the time of permit issuance (other than revised regulations, guidance, or test methods) and would have justified the application of different permit conditions at the time of issuance. For MPDES general permits (ARM 17.30.1341) this subsection includes any information indicating that cumulative effects on the environment are unacceptable. For new source or new discharger MPDES permits (ARM 17.30.1340), this subsection includes any significant information derived from effluent testing after issuance of the permit;

(c) when the standards or requirements on which the permit was based have been changed by amendment or by judicial decision after the permit was issued. Permits may be modified during their terms for this cause only as follows:

(i) for promulgation of amended standards or requirements, when:

(A) the permit condition requested to be modified was based on a duly adopted effluent limitation guideline, water quality standards, or the secondary treatment regulations under 40 CFR Part 133; and

(B) the board has revised, withdrawn, or modified that portion of the regulation or effluent limitation guideline on which the permit condition was based, or changed a water quality standard on which the permit condition was based; and

(C) a permittee requests modification in accordance with ARM 17.30.1365 within 90 days of the final action on which the request is based.

(ii) for judicial decisions, a court of competent jurisdiction has remanded and stayed board rules or effluent limitation guidelines, if the remand and stay concern that portion of the regulations or guidelines on which the permit condition was based and a request is filed by the permittee in accordance with ARM 17.30.1365 within 90 days of judicial remand;

(d) when the department determines good cause exists for modification of a compliance schedule, such as an act of God, strike, flood, or materials shortage or other events over which the permittee has little or no control and for which there is no reasonably available remedy. However, in no case may an MPDES compliance schedule be modified to extend beyond an applicable reasonably available remedy. However, in no case may an MPDES compliance schedule be modified to extend beyond an applicable statutory deadline. (See also ARM 17.30.1362(1)(c) minor modifications);

(e) when the permittee has filed a request for a variance under the federal Clean Water Act, sections 301(c), (g), (h), (i), (k), or 316(a), or for "fundamentally different factors" within the time specified in ARM 17.30.1322 or 40 CFR 125.27(a);

(f) when required to incorporate an applicable federal Clean Water Act section 307(a) toxic effluent standard or prohibition (see ARM 17.30.1344(2));

(g) when required by the "reopener" conditions in a permit, which are established in the permit under ARM 17.30.1344(2) (toxic effluent limitations) or under any pretreatment requirements in the permit;

(h) upon request of a permittee who qualifies for effluent limitations on a net basis under ARM 17.30.1345(10) or when a discharger is no longer eligible for net limitations, as provided in ARM 17.30.1345(12);

(i) as necessary under ARM 17.30.1412 (compliance schedule for development of pretreatment program);

(j) upon failure of the department to notify, as required by section 402(b)(3) of the federal Clean Water Act, another state whose waters may be affected by a discharge from Montana;

(k) when the level of discharge of any pollutant which is not limited in the permit exceeds the level which can be achieved by the technology-based treatment requirements appropriate to the permittee under 40 CFR 125.3(c);

(l) to establish a "notification level" as provided in ARM 17.30.1344;

(m) to modify a schedule of compliance to reflect the time lost during construction of an innovative or alternative facility, in the case of a POTW which has received a grant under section 202(a)(3) of the federal Clean Water Act for 100% of the costs to modify or replace facilities constructed with a grant for innovative and alternative wastewater technology under section 202(a)(2) of the federal Clean Water Act. In no case may the compliance schedule be modified to extend beyond an applicable statutory deadline for compliance;

(n) for small municipal separate storm sewer systems, to include effluent limitations requiring implementation of minimum control measures as specified in ARM 17.30.1111(6) if:

(i) the permit does not include such measures based upon the determination that another entity was responsible for implementation of the requirements; and

(ii) the other entity fails to implement measures that satisfy the requirements;

(o) to correct technical mistakes, such as errors in calculation, or mistaken interpretations of law made in determining permit conditions; and

(p) when the discharger has installed the treatment technology considered by the department in setting effluent limitations and has properly operated and maintained the facilities but nevertheless has been unable to achieve those effluent limitations. In this case, the limitations in the modified permit may reflect the level of pollutant control actually achieved (but may not be less stringent than required by a subsequently promulgated effluent limitations guideline).

(q) To incorporate the terms of a concentrated animal feeding operation's (CAFO) nutrient management plan into the terms and conditions of a general permit, when a CAFO obtains coverage under a general permit in accordance with 40 CFR 122.23(h) and 122.28, is not a cause for modification pursuant to the requirements of this rule.

(3) The following are causes to modify or, alternatively, revoke and reissue a permit:

(a) cause exists for termination under ARM 17.30.1363, and the department determines that modification or revocation and reissuance is appropriate; and

(b) the department has received notification of a proposed transfer of the permit. A permit also may be modified to reflect a transfer after the effective date of an automatic transfer (ARM 17.30.1360(2)) but will not be revoked and reissued after the effective date of the transfer except upon the request of the new permittee.

(4) The board adopts and incorporates by reference the following federal regulations, which may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena, MT 59620-0901:

(a) 40 CFR Part 133 (July 1, 2012), which sets forth requirements for the level of effluent quality available through the application of secondary (or equivalent) treatment;

(b) sections 301(c), (g), (i), and (k) of the federal Clean Water Act, codified at 33 USC section 1311(c), (g), (i), and (k), which allow for modifying or extending dates for achieving effluent limitations;

(c) section 316(a) of the federal Clean Water Act, codified at 33 USC section 1326, which allows a variance from an applicable effluent limitation based on fundamentally different factors (FDF);

(d) section 402(b)(3) of the federal Clean Water Act, codified at 33 USC section 1342(b)(3), which requires that states administering the NPDES program notify other states whose waters may be affected by a proposed discharge;

(e) 40 CFR 125.3(c) (July 1, 2012), sets forth methods of imposing technology-based treatment requirements in permits;

(f) 40 CFR 122.23(h) (July 1, 2012), which sets forth procedures for CAFOs seeking coverage under a general permit; and

(g) 40 CFR 122.28 (July 1, 2012), which sets forth conditions applicable to the issuance of general permits.

 

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 220, Eff. 2/14/03; AMD, 2013 MAR p. 529, Eff. 4/12/13; AMD, 2020 MAR p. 1879, Eff. 10/24/20.

17.30.1362   MINOR MODIFICATIONS OF PERMITS

(1) Upon the consent of the permittee, the department may modify a permit to make the corrections or allowances for changes in the permitted activity listed in this rule, without following the procedures of ARM 17.30.1364, 17.30.1365, 17.30.1370 through 17.30.1379, 17.30.1383, and 17.30.1384. Any permit modification not processed as a minor modification under this rule must be made for cause and with a draft permit (ARM 17.30.1370) and public notice as required in ARM 17.30.1364, 17.30.1365, 17.30.1370 through 17.30.1379, 17.30.1383, and 17.30.1384. Minor modifications may only:

(a) correct typographical errors;

(b) require more frequent monitoring or reporting by the permittee;

(c) change an interim compliance date in a schedule of compliance, provided the new date is not more than 120 days after the date specified in the existing permit and does not interfere with attainment of the final compliance date requirement; or

(d) allow for a change in ownership or operational control of a facility where the department determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittees has been submitted to the department;

(e) change the construction schedule for a discharger that is a new source. No such change may affect a discharger's obligation to have all pollution control equipment installed and in operation prior to discharge under ARM 17.30.1340;

(f) delete a point source outfall when the discharge from that outfall is terminated and does not result in discharge of pollutants from other outfalls except in accordance with permit limits;

(g) conform to ARM 17.30.1342 and 17.30.1343(1);

(h) incorporate conditions of a POTW pretreatment program that has been approved in accordance with the procedures in ARM 17.30.1413 (or a modification thereto that has been approved in accordance with the procedures in ARM 17.30.1426) as enforceable conditions of the POTW's permits; or

(i) incorporate changes to the terms of a CAFO's nutrient management plan that have been reviewed and approved in accordance with the requirements of 40 CFR 122.42(e)(6).

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2013 MAR p. 529, Eff. 4/12/13.

17.30.1363   TERMINATION OF PERMITS
(1) The following are causes for terminating a permit during its term, or for denying a permit renewal application:

(a) noncompliance by the permittee with any condition of the permit;

(b) the permittee's failure in the application or during the permit issuance process to disclose fully all relevant facts, or the permittee's misrepresentation of any relevant facts at any time;

(c) a determination that the permitted activity endangers human health or the environment and can only be regulated to acceptable levels by permit modification or termination; or

(d) a change in any condition that requires either a temporary or a permanent reduction or elimination of any discharge controlled by the permit (for example, plant closure or termination of discharge by connection to a POTW) .

(2) The department shall follow the applicable procedures in ARM 17.30.1364, 17.30.1365, 17.30.1370 through 17.30.1379, 17.30.1383, and 17.30.1384 in terminating any MPDES permit under this rule.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1364   APPLICATION PROCESSING PROCEDURES
(1) (a) Any person who requires a permit under the MPDES program shall complete, sign, and submit to the department an application for each permit required under ARM 17.30.1301. Application procedures for authorizations under MPDES general permits are set forth at ARM 17.30.1341.

(b) The department may not begin the processing of a permit until the applicant has fully complied with the application requirements for that permit. See ARM 17.30.1322.

(c) Permit applications must comply with the signature and certification requirements of ARM 17.30.1323.

(2) The department shall review for completeness every application for a permit. Each application for a permit submitted by a new source or new discharger should be reviewed for completeness by the department within 30 days of its receipt. Each application for a permit submitted by an existing source should be reviewed for completeness within 60 days of receipt. If the application is incomplete, the department shall advise the applicant of the information necessary to make the application complete. When the application is for an existing source, the department shall specify in the notice of deficiency a date for submitting the necessary information. After the application is complete, the department may request additional information from an applicant but only when necessary to clarify, modify, or supplement previously submitted material. Requests for such additional information do not render an application incomplete.

(3) If an applicant fails or refuses to correct deficiencies in the application, the permit may be denied and appropriate enforcement actions may be taken by the department.

(4) If the department decides that a site visit is necessary for any reason in conjunction with the processing of an application, it shall notify the applicant and schedule a date.

(5) The effective date of an application is the date on which the department determines that the application is complete as provided in (3) .

(6) For each application from a major MPDES new source or major MPDES new discharger, the department shall, no later than the effective date of the application, prepare and mail to the applicant a project decision schedule. The schedule must specify target dates by which the department intends to:

(a) prepare a draft permit;

(b) give public notice;

(c) complete the public comment period, including any public hearing; and

(d) issue a final permit.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1365   MODIFICATION, REVOCATION AND REISSUANCE, OR TERMINATION OF PERMITS
(1) During their term, permits may be modified, revoked and reissued, or terminated either at the request of any interested person (including the permittee) . However, permits may only be modified, revoked and reissued, or terminated for the reasons specified in ARM 17.30.1361 or 17.30.1363. All requests must be in writing and must contain facts or reasons supporting the request.

(2) If the department decides the request is not justified, it shall send the requester a brief written response giving a reason for the decision. Denials of requests for modification, revocation and reissuance, or termination are not subject to public notice, comment, or hearings. Denials by the department may be appealed to the board by a petition or letter setting forth the relevant facts. The board, after hearing, may affirm the department's action or may direct the department to begin modification, revocation and reissuance, or termination proceedings under (3) .

(3) During their term, permits may be modified, revoked and reissued, or terminated upon the initiative of the department. However, such action may only be taken for one or more of the reasons specified in ARM 17.30.1361 or 17.30.1363. If the department modifies, revokes and reissues, or terminates a permit, the department shall give written notice of its action to the holder who may file a written request within 30 days for a hearing before the board in the manner stated in 75-5-611 , MCA. Such hearing must be held within 30 days after the board receives written request. If the holder does not request a hearing, a modification of a permit is effective 30 days after receipt of notice by the holder unless the department specifies a later date. If the holder does request a board hearing, no order modifying his permit may be effective until 20 days after the holder has received notice of the board's action. The effective date of a termination or suspension of a permit by the department or board must be in accordance with 75-5-404 , MCA.

(4) (a) If the department tentatively decides to modify or revoke and reissue a permit under ARM 17.30.1361, it shall prepare a draft permit under ARM 17.30.1370 incorporating the proposed changes. The department may request additional information and, in the case of a modified permit, may require the submission of an updated application. In the case of revoked and reissued permits, the department shall require the submission of a new application.

(b) In a permit modification under this rule, only those conditions to be modified may be reopened when a new draft permit is prepared. All other aspects of the existing permit remain in effect for the duration of the unmodified permit. When a permit is revoked and reissued under this rule, the entire permit is reopened just as if the permit had expired and was being reissued. During any revocation and reissuance proceeding the permittee shall comply with all conditions of the existing permit until a new final permit is reissued.

(c) Minor modifications as defined in ARM 17.30.1362 are not subject to the requirements of this rule.

(5) If the department tentatively decides to terminate a permit under ARM 17.30.1363, it shall issue a notice of intent to terminate. A notice of intent to terminate is a type of draft permit which follows the same procedures as any draft permit prepared under ARM 17.30.1370.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1370   DRAFT PERMITS
(1) Once an application is complete, the department shall tentatively decide whether to prepare a draft permit or to deny the application.

(2) If the department tentatively decides to deny the permit application, it shall issue a notice of intent to deny. A notice of intent to deny the permit application is a type of draft permit which follows the same procedures as any draft permit prepared under this rule. See (5) . If the department's final decision (ARM 17.30.1378) is that the tentative decision to deny the permit application was incorrect, it shall withdraw the notice of intent to deny and proceed to prepare a draft permit under (3) .

(3) If the department decides to prepare a draft permit, it shall prepare a draft permit that contains the following information:

(a) all conditions under ARM 17.30.1342;

(b) all compliance schedules under ARM 17.30.1350;

(c) all monitoring requirements under ARM 17.30.1351; and

(d) effluent limitations, standards, prohibitions and conditions under ARM 17.30.1342, 17.30.1343, and 17.30.1344.

(4) All draft permits prepared by the department under this rule must be accompanied by a fact sheet, if required by ARM 17.30.1371, and must be publicly noticed (ARM 17.30.1372) and made available for public comment (ARM 17.30.1373) . The department shall give notice of opportunity for a public hearing (ARM 17.30.1374) , issue a final decision (ARM 17.30.1378) , and respond to comments (ARM 17.30.1377) . An appeal may be taken in accordance with 75-5-403 , MCA. The applicant must submit a written request for hearing within 30 days of receiving the department's final decision.

(5) A statement of basis must be prepared for every draft permit for which a fact sheet is not prepared. The statement of basis must briefly describe the derivation of the conditions of the draft permit and the reasons for them or, in the case of notices of intent to deny or terminate, reasons supporting the tentative decision. The statement of basis must be sent to the applicant and, on request, to any other person.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1371   FACT SHEET
(1) A fact sheet must be prepared for every draft permit for a major facility or activity, and for every draft permit which the department finds is the subject of widespread public interest or raises major issues. The fact sheet must briefly set forth the principal facts and the significant factual, legal, methodological and policy questions considered in preparing the draft permit. The department shall send this fact sheet to the applicant and, on request, to any other person.

(2) The fact sheet must include, when applicable:

(a) a brief description of the type of facility or activity which is the subject of the draft permit;

(b) the type and quantity of wastes, fluids, or pollutants which are proposed to be discharged.

(c) a brief summary of the basis for the draft permit conditions including references to applicable statutory or regulatory provisions;

(d) reasons why any requested variances or alternatives to required standards do or do not appear justified;

(e) a description of the procedures for reaching a final decision on the draft permit including:

(i) the beginning and ending dates of the comment period under ARM 17.30.1372 and the address where comments will be received;

(ii) procedures for requesting a hearing and the nature of that hearing; and

(iii) any other procedures by which the public may participate in the final decision; and

(f) name and telephone number of a person to contact for additional information.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1372   PUBLIC NOTICE OF PERMIT ACTIONS AND PUBLIC COMMENT PERIOD

(1) The department shall give public notice that the following actions have occurred:

(a) a permit application has been tentatively denied under ARM 17.30.1370(2);

(b) a draft permit has been prepared under ARM 17.30.1370(4);

(c) a hearing has been scheduled under ARM 17.30.1374;

(d) an MPDES new source determination has been made under ARM 17.30.1340.

(2) No public notice is required when a request for permit modification, revocation and reissuance, or termination is denied under ARM 17.30.1365(2). Written notice of that denial must be given to the requester and to the permittee.

(3) Public notices may describe more than one permit or permit actions.

(4) Public notice of the preparation of a draft permit (including a notice of intent to deny a permit application) required under (1) must allow at least 30 days for public comment. If the department determines that an environmental impact statement (EIS) must be prepared for a new source, public notice of the draft permit may not be given until after a draft EIS is issued. Public notice of a public hearing must be given at least 30 days before the hearing. (Public notice of the hearing may be given at the same time as public notice of the draft permit and the two notices may be combined.)

(5) Public notice of activities described in (1)(a) must be given by the following methods:

(a) by mailing a copy of a notice to the following persons (any person otherwise entitled to receive notice under this rule may waive his or her rights to receive notice for any classes and categories of permits):

(i) the applicant;

(ii) federal and state agencies with jurisdiction over fish and wildlife resources and other appropriate government authorities, including any affected states;

(iii) any state agency responsible for plan development under federal Clean Water Act section 208(b)(2), 208(b)(4), or 303(e), and the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service;

(iv) any user identified in the permit application of a privately owned treatment works;

(v) persons on a mailing list developed by:

(A) including those who request in writing to be on the list;

(B) soliciting persons for "area lists" from participants in past permit proceedings in that area; and

(C) notifying the public of the opportunity to be put on the mailing list through periodic publication in the public press and in such publications as regional and state funded newsletters, environmental bulletins, or state law journals (the department may update the mailing list from time to time by requesting written indication of continued interest from those listed. The department may delete from the list the name of any person who fails to respond to such a request);

(vi) to any unit of local government having jurisdiction over the area where the facility is proposed to be located; and

(vii) to each state agency having any authority under state law with respect to the construction or operation of such facility.

(b) for major permits and MPDES general permits, a notice published in a daily or weekly newspaper within the area affected by the facility or activity;

(c) in any other manner constituting legal notice to the public under state law; and

(d) any other method reasonably calculated to give actual notice of the action in question to the persons potentially affected by it, including press releases or any other forum or medium to elicit public participation; and

(e) for major permits and MPDES general permits, in addition to the publication of a notice in a daily or weekly newspaper, as described in (5)(b), the department may also publish all notices of activities described in (1) to the department's public website.

(6) All public notices issued under this rule must contain the following minimum information:

(a) name and address of the office processing the permit action for which notice is being given;

(b) name and address of the permittee or permit applicant and, if different, of the facility or activity regulated by the permit;

(c) a brief description of the business conducted at the facility or activity described in the permit application or the draft permit;

(d) name, address, and telephone number of a person from whom interested persons may obtain further information, including copies of the draft permit as the case may be, statement of basis or fact sheet, and the application;

(e) a brief description of the comment procedures required by ARM 17.30.1373 and 17.30.1374 and the time and place of any hearing that will be held, including a statement of procedures to request a hearing (unless a hearing has already been scheduled) and other procedures by which the public may participate in the final permit decision; and

(f) a general description of the location of each existing or proposed discharge point and the name of the receiving water.

(7) In addition to the general public notice described in (6)(a), the public notice of a hearing under ARM 17.30.1374 must contain the following information:

(a) reference to the date of previous public notices relating to the permit;

(b) date, time, and place of the hearing; and

(c) a brief description of the nature and purpose of the hearing, including the applicable rules and procedures.

(8) In addition to the general public notice described in (4)(a), all persons identified in (5)(a)(i) through (iv) must be afforded an opportunity to request a copy of the fact sheet, the permit application (if any), and the draft permit (if any).

 

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2020 MAR p. 1879, Eff. 10/24/20.

17.30.1373   PUBLIC COMMENTS AND REQUESTS FOR PUBLIC HEARINGS
(1) During the public comment period provided under ARM 17.30.1372, any interested person may submit written comments on the draft permit and may request a public hearing, if no hearing has already been scheduled. A request for a public hearing must be in writing and must state the nature of the issues proposed to be raised in the hearing. All comments must be considered in making the final decision and must be answered as provided in ARM 17.30.1377.
History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1374   PUBLIC HEARINGS
(1) (a) The department shall hold a public hearing whenever it finds, on the basis of requests, a significant degree of public interest in a draft permit(s) ;

(b) the department may also hold a public hearing at its discretion, whenever, for instance, such a hearing might clarify one or more issues involved in the permit decision;

(c) public notice of the hearing must be given as specified in ARM 17.30.1372.

(2) Any person may submit oral or written statements and data concerning the draft permit. Reasonable limits may be set upon the time allowed for oral statements, and the submission of statements in writing may be required. The public comment period under ARM 17.30.1372 must automatically be extended to the close of any public hearing under this rule. The hearing officer may also extend the comment period by so stating at the hearing.

(3) A tape recording or written transcript of the hearing must be made available to the public.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1375   OBLIGATION TO RAISE ISSUES AND PROVIDE INFORMATION
(1) All persons, including applicants, who believe any condition of a draft permit is inappropriate or that the department's tentative decision to deny an application, terminate a permit, or prepare a draft permit is inappropriate, shall raise all reasonably ascertainable issues and submit all reasonably available arguments supporting their position by the close of the public comment period (including any public hearing) under ARM 17.30.1372.
History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1376   REOPENING OF THE PUBLIC COMMENT PERIOD
If any data, information or arguments submitted during the public comment period, including information or arguments required under ARM 17.30.1375, appear to raise substantial new questions concerning a permit, the department may take one or more of the following actions:

(1) prepare a new draft permit, appropriately modified, under ARM 17.30.1370;

(2) prepare a revised fact sheet under ARM 17.30.1371, and reopen the comment period under ARM 17.30.1376; or

(3) reopen or extend the comment period under ARM 17.30.1370 to give interested persons an opportunity to comment on the information or arguments submitted.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1377   RESPONSE TO COMMENTS
(1) At the time that any final permit decision is issued under ARM 17.30.1378, the department shall issue a response to comments. This response must:

(a) specify which provisions, if any, of the draft permit have been changed in the final permit decision, and the reasons for the change; and

(b) briefly describe and respond to all significant comments on the draft permit raised during the public comment period, or during any hearing.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1378   ISSUANCE AND EFFECTIVE DATE OF PERMIT
(1) After the close of the public comment period under ARM 17.30.1372, the department will issue a final permit decision. The department will notify the applicant and each person who has submitted written comments or requested notice of that decision for contesting the decision. The notice must include reference to the procedures for appealing the decision. For the purpose of this rule, a final permit decision means a final decision to issue, deny, modify, revoke and reissue, or terminate a permit.

(2) A final permit decision is effective 30 days after the service of notice of the decision under (1) unless:

(a) a later effective date is specified in the decision, or an appeal is filed pursuant to these rules;

(b) a stay is granted pursuant to ARM 17.30.1379; or

(c) no comments requested a change in the draft permit, in which case the permit is effective immediately upon issuance.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1379   STAYS OF CONTESTED PERMIT CONDITIONS
(1) If a request to the department for review of an MPDES permit is granted, the effect of the contested permit conditions must be stayed and may not be subject to judicial review pending final action by the department. If the permit involves a new source, new discharger, or a recommencing discharger, the applicant shall be without a permit for the proposed new facility, source, or discharger pending final action by the department.

(2) Uncontested conditions which are not severable from those contested must be stayed together with the contested conditions. Stayed provisions of permits for existing facilities and sources must be identified by the department. All other provisions of the permit for the existing facility or source must remain fully effective and enforceable.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1383   CONDITIONS REQUESTED BY GOVERNMENT AGENCIES

(1) If during the comment period the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, or any other state or federal agency with jurisdiction over fish, wildlife, or public health advises the department in writing that the imposition of specified conditions upon the permit is necessary to avoid substantial impairment of fish, or wildlife resources, the department may include the specified conditions in the permit to the extent they are determined necessary to carry out the provisions of ARM 17.30.1350 and of the Act.

(2) In appropriate cases the department may consult with one or more of the agencies referred to in this rule before issuing a draft permit and may reflect their views in the statement of basis, the fact sheet, or the draft permit.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1384   DISPOSAL WELLS
Disposal of pollutants into wells that affect state waters is prohibited, except:

(1) as provided in the terms and conditions of an MPDES permit; or

(2) water, gas, or other material which is injected into a well to facilitate production of oil or gas or water derived in association with oil or gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved under ARM 36.22.1226 through ARM 36.22.1234 and it has been determined that such injection or disposal will not result in the degradation of ground or surface water resources.

History: 75-5-304, MCA; IMP, 75-5-304, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1385   AGENCY MEMBERSHIP RESTRICTIONS
(1) Any body which approves MPDES permit applications or portions thereof may not include as a member any person who receives, or has during the previous two years received a significant portion of his income directly or indirectly from permit holders or applicants for a permit.

(2) For the purposes of this rule, the term "body" includes any individual who has or shares authority to approve permit applications or portions thereof, either in the first instance or on appeal.

(3) For the purposes of this rule, the term "significant portion of his income" means 10% of gross personal income for a calendar year, except that it means 50% of gross personal income for a calendar year if the recipient is over 60 years of age and is receiving such portion pursuant to retirement, pension, or similar arrangement.

(4) For the purposes of this rule, the term "permit holders or applicants for a permit" does not include any department or agency of a state government, such as a department of parks or a department of fish and game.

(5) For the purposes of this rule, the term "income" includes retirement benefits, consultant fees, and stock dividends.

(6) For the purposes of this rule, income is not received "directly or indirectly from permit holders or applicants for a permit" where it is derived from mutual fund payments, or from other diversified investments over which the recipient does not know the identity of the primary sources of income.

History: 75-5-304, MCA; IMP, 75-5-304, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1386   STATE AND EPA COORDINATION

This rule has been repealed.

History: 75-5-304, MCA; IMP, 75-5-304, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; REP, 2016 MAR. p. 517, Eff. 3/19/16.

17.30.1387   SMALL CONFINEMENT FACILITIES FOR ANIMALS

(1) Unless considered necessary by the department, the procedural requirements of ARM 17.30.1370 through 17.30.1377 and the requirements for state-EPA coordinators in ARM 17.30.1386 do not apply to small confinement facilities for animals.

History: 75-5-304, MCA; IMP, 75-5-304, 75-5-401, MCA; NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1401   APPLICABILITY

This rule has been repealed.

History: 75-5-304, MCA; IMP, 75-5-304, MCA; NEW, 1989 MAR p. 2063, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; REP, 2016 MAR p. 517, Eff. 3/19/16.

17.30.1402   DEFINITIONS

This rule has been repealed.

History: 75-5-201, 75-5-304, MCA; IMP, 75-5-304, MCA; NEW, 1989 MAR p. 2063, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; REP, 2016 MAR p. 517, Eff. 3/19/16.

17.30.1405   LOCAL LAW

This rule has been repealed.

History: 75-5-304, MCA; IMP, 75-5-304, MCA; NEW, 1989 MAR p. 2063, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; REP, 2016 MAR p. 517, Eff. 3/19/16.

17.30.1406   NATIONAL PRETREATMENT STANDARDS: PROHIBITED DISCHARGES

This rule has been repealed.

History: 75-5-201, 75-5-304, MCA; IMP, 75-5-304, MCA; NEW, 1989 MAR p. 2063, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; REP, 2016 MAR p. 517, Eff. 3/19/16.

17.30.1407   NATIONAL PRETREATMENT STANDARDS: CATEGORICAL STANDARDS

This rule has been repealed.

History: 75-5-201, 75-5-304, MCA; IMP, 75-5-304, MCA; NEW, 1989 MAR p. 2063, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; REP, 2016 MAR p. 517, Eff. 3/19/16.

17.30.1410   REMOVAL CREDITS

This rule has been repealed.

History: 75-5-304, MCA; IMP, 75-5-304, MCA; NEW, 1989 MAR p. 2063, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; REP, 2016 MAR p. 517, Eff. 3/19/16.

17.30.1411   PRETREATMENT PROGRAMS: DEVELOPMENT BY POTW

This rule has been repealed.

History: 75-5-201, 75-5-304, MCA; IMP, 75-5-304, MCA; NEW, 1989 MAR p. 2063, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; REP, 2016 MAR p. 517, Eff. 3/19/16.

17.30.1412   POTW PRETREATMENT PROGRAMS AND AUTHORIZATION TO REVISE PRETREATMENT STANDARDS: SUBMISSION FOR APPROVAL

This rule has been repealed.

History: 75-5-201, 75-5-304, MCA; IMP, 75-5-304, MCA; NEW, 1989 MAR p. 2063, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; REP, 2016 MAR p. 517, Eff. 3/19/16.

17.30.1413   APPROVAL PROCEDURES FOR POTW PRETREATMENT PROGRAMS AND POTW GRANTING OF REMOVAL CREDITS

This rule has been repealed.

History: 75-5-201, 75-5-304, MCA; IMP, 75-5-304, MCA; NEW, 1989 MAR p. 2063, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; REP, 2016 MAR p. 517, Eff. 3/19/16.

17.30.1414   REPORTING REQUIREMENTS FOR POTW'S AND INDUSTRIAL USERS

This rule has been repealed.

History: 75-5-201, 75-5-304, MCA; IMP, 75-5-304, MCA; NEW, 1989 MAR p. 2063, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; REP, 2016 MAR p. 517, Eff. 3/19/16.

17.30.1419   CONFIDENTIALITY OF INFORMATION

This rule has been repealed.

History: 75-5-201, 75-5-105, MCA; IMP, 75-5-401, MCA; NEW, 1989 MAR p. 2063, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; REP, 2016 MAR p. 517, Eff. 3/19/16.

17.30.1420   NET/GROSS CALCULATION

This rule has been repealed.

History: 75-5-201, 75-5-304, MCA; IMP, 75-5-304, MCA; NEW, 1989 MAR p. 2063, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; REP, 2016 MAR p. 517, Eff. 3/19/16.

17.30.1421   UPSET PROVISION

This rule has been repealed.

History: 75-5-304, MCA; IMP, 75-5-304, MCA; NEW, 1989 MAR p. 2063, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; REP, 2016 MAR p. 517, Eff. 3/19/16.

17.30.1425   BYPASS

This rule has been repealed.

History: 75-5-201, 75-5-304, MCA; IMP, 75-5-304, MCA; NEW, 1989 MAR p. 2063, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; REP, 2016 MAR p. 517, Eff. 3/19/16.

17.30.1426   MODIFICATION OF POTW PRETREATMENT PROGRAMS

This rule has been repealed.

History: 75-5-201, 75-5-304, MCA; IMP, 75-5-304, MCA; NEW, 1989 MAR p. 2063, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; REP, 2016 MAR p. 517, Eff. 3/19/16.

17.30.1501   PURPOSE

This rule has been repealed.

History: 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; IMP, 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; NEW, 1978 MAR p. 1322, Eff. 8/25/78; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; REP, 1997 MAR p. 402, Eff. 2/25/97.

17.30.1502   DEFINITIONS

This rule has been repealed.

History: 50-1704, RCM 1947 [not codi­fied temporary], 75-5-401, MCA; IMP, 50-1704, RCM 1947 [not codi­fied temporary], 75-5-401, MCA; NEW, 1978 MAR p. 1322, Eff. 8/25/78; TRANS, from DHES, 1996 MAR p. 1499; REP, 1997 MAR p. 402, Eff. 2/25/97.

17.30.1503   EXISTING SOURCES

This rule has been repealed.

History: 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; IMP, 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; NEW, 1978 MAR p. 1322, Eff. 8/25/78; TRANS, from DHES, 1996 MAR p. 1499; REP, 1997 MAR p. 402, Eff. 2/25/97.

17.30.1504   PROPOSED SOURCE

This rule has been repealed.

History: 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; IMP, 50-1704, RCM 1947 [not codi­fied tem­porary], 75-5-401, MCA; NEW, 1978 MAR p. 1322, Eff. 8/25/78; TRANS, from DHES, 1996 MAR p. 1499; REP, 1997 MAR p. 402, Eff. 2/25/97.

17.30.1511   SUPPLEMENTAL INFORMATION

This rule has been repealed.

History: 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; IMP, 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; NEW, 1978 MAR p. 1322, Eff. 8/25/78; TRANS, from DHES, 1996 MAR p. 1499; REP, 1997 MAR p. 402, Eff. 2/25/97.

17.30.1512   PILOT TESTING

This rule has been repealed.

History: 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; IMP, 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; NEW, 1978 MAR p. 1322, Eff. 8/25/78; TRANS, from DHES, 1996 MAR p. 1499; REP, 1997 MAR p. 402, Eff. 2/25/97.

17.30.1513   PROCESSING PROCEDURE

This rule has been repealed.

History: 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; IMP, 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; NEW, 1978 MAR p. 1322, Eff. 8/25/78; TRANS, from DHES, 1996 MAR p. 1499; REP, 1997 MAR p. 402, Eff. 2/25/97.

17.30.1514   ISSUANCE OR DENIAL

This rule has been repealed.

History: 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; IMP, 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; NEW, 1978 MAR p. 1322, Eff. 8/25/78; TRANS, from DHES, 1996 MAR p. 1499; REP, 1997 MAR p. 402, Eff. 2/25/97.

17.30.1515   CONDITIONS

This rule has been repealed.

History: 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; IMP, 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; NEW, 1978 MAR p. 1322, Eff. 8/25/78; TRANS, from DHES, 1996 MAR p. 1499; REP, 1997 MAR p. 402, Eff. 2/25/97.

17.30.1516   DURATION OF PERMIT

This rule has been repealed.

History: 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; IMP, 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; NEW, 1978 MAR p. 1322, Eff. 8/25/78; TRANS, from DHES, 1996 MAR p. 1499; REP, 1997 MAR p. 402, Eff. 2/25/97.

17.30.1517   MODIFICATIONS

This rule has been repealed.

History: 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; IMP, 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; NEW, 1978 MAR p. 1322, Eff. 8/25/78; TRANS, from DHES, 1996 MAR p. 1499; REP, 1997 MAR p. 402, Eff. 2/25/97.

17.30.1520   SAMPLING, PRESERVATION, ANALYSIS AND QUALITY CONTROL

This rule has been repealed.

History: 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; IMP, 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; NEW, 1978 MAR p. 1322, Eff. 8/25/78; TRANS, from DHES, 1996 MAR p. 1499; REP, 1997 MAR p. 402, Eff. 2/25/97.

17.30.1521   REISSUANCE

This rule has been repealed.

History: 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; IMP, 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; NEW, 1978 MAR p. 1322, Eff. 8/25/78; TRANS, from DHES, 1996 MAR p. 1499; REP, 1997 MAR p. 402, Eff. 2/25/97.

17.30.1525   SPILLS OR UNANTICIPATED DISCHARGES

This rule has been repealed.

History: 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; IMP, 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; NEW, 1978 MAR p. 1322, Eff. 8/25/78; TRANS, from DHES, 1996 MAR p. 1499; REP, 1997 MAR p. 402, Eff. 2/25/97.

17.30.1526   PUBLIC NOTICE

This rule has been repealed.

History: 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; IMP, 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; NEW, 1978 MAR p. 1322, Eff. 8/25/78; TRANS, from DHES, 1996 MAR p. 1499; REP, 1997 MAR p. 402, Eff. 2/25/97.

17.30.1527   DISTRIBUTION OF INFORMATION

This rule has been repealed.

History: 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; IMP, 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA; NEW, 1978 MAR p. 1322, Eff. 8/25/78; TRANS, from DHES, 1996 MAR p. 1499; REP, 1997 MAR p. 402, Eff. 2/25/97.

17.30.1601   ENFORCEMENT PROCEDURE

This rule has been repealed.

History: 75-5-201, MCA; IMP, 75-5-611, MCA, Eff. 12/31/72; AMD, 1989 MAR p. 611, Eff. 5/12/89; TRANS, from DHES, 1996 MAR p. 1499; REP, 1996 MAR p. 1854, Eff. 7/4/96.

17.30.1602   EMERGENCY PROCEDURE

This rule has been repealed.

History: 75-5-201, MCA; IMP, 75-5-621, MCA; Eff. 12/31/72; TRANS, from DHES, 1996 MAR p. 1499; REP, 2016 MAR p. 517, Eff. 3/19/16.

17.30.1701   NUTRIENT TRADING
(1) The board adopts and incorporates by reference Department Circular DEQ-13, entitled Montana's Policy for Nutrient Trading (December 2012 edition). Copies are available from the Department of Environmental Quality, Technical and Financial Assistance Bureau, P.O. Box 200901, Helena, MT 59620-0901.

(2) The department shall approve a nutrient trade that is consistent with the requirements and guidelines established in Montana's Policy for Nutrient Trading.

(3) An owner or operator of a point source discharge may submit an application for nutrient trading to the department prior to or concurrent with an application for a new, renewed, or modified MPDES permit. The application must include the information specified in Montana's Policy for Nutrient Trading and be consistent with the guidelines and requirements contained in that policy.

(4) An application to trade may be submitted for any of the following purposes:

(a) to comply with an approved total maximum daily load (TMDL) for nutrients;

(b) to offset a new or increased discharge of nutrients into a nutrient-impaired water;

(c) to comply with Montana's base numeric nutrient criteria or a variance from those criteria;

(d) to offset a new or increased discharge of nutrients into waters that are high quality for nutrients; or

(e) to comply with the nonsignificance criteria for nutrients in ARM 17.30.715.

(5) A trade proposed pursuant to (3) must be described in the draft permit and is subject to public comment. If approved, the trade must be described in the final permit and is not effective until the final permit is issued. The final permit must contain permit conditions that ensure that the terms of the trade are enforceable.

History: 75-5-201, 75-5-401, MCA; IMP, 75-5-401, MCA; NEW, 2012 MAR p. 2605, Eff. 12/21/12.

17.30.1702   SETBACKS BETWEEN SEWAGE LAGOONS AND WATER WELLS

(1) For purposes of this rule, the following definitions apply:

(a) "Lagoon area" means the surface area of the lagoon within the design of the high-water mark.

(b) "Maximum day well demand" means the highest volume of water discharged from a water well on any day in a year.

(c) "Sewage lagoon" means any holding or detention pond that is used for treatment or storage of water-carried waste products from residences, public buildings, institutions, or other buildings, including discharge from human beings or animals, together with ground water infiltration and surface water present. For purposes of this rule, the term includes concentrated animal feeding operations but does not include storm water facilities or subsurface wastewater treatment systems.

(d) "Water well" has the same meaning as 75-5-103, MCA.

(2) All new water wells and new sewage lagoons must meet the setbacks in (3), unless the applicant demonstrates that a shorter setback is allowed under (4) or (6). Water wells and sewage lagoons that existed or were approved by the department before the effective date of this rule must meet the setbacks under either of the following circumstances:

(a) if the lagoon area is proposed to be increased; or

(b) if the maximum daily pumping rate of a water well is proposed to be increased.

(3) The following setbacks apply, unless the applicant demonstrates that a lesser setback is allowed under (4) or (6):

(a) 1,000 feet between a water well and the design high-water mark of a sewage lagoon;

(b) 200 feet between a well for a public water supply system with continuous disinfection that meets the 4-log virus inactivation and the design high-water mark of a sewage lagoon;

(c) 200 feet between a water well and the design high-water mark of a sewage lagoon if the geometric mean number of E. coli bacteria in the influent flow to the sewage lagoon does not exceed 126 colony forming units per 100 milliliters and 10 percent of the total samples do not exceed 252 colony forming units per 100 milliliters during any 30-day period; and

(d) 100 feet between a water well and the design high-water mark of a sewage lagoon if the applicant demonstrates there is no hydraulic connection between the sewage lagoon and the water well as demonstrated by groundwater gradients under the maximum day pumping rate or by confined conditions that prevent lagoon discharges from impacting the water well.

(4) A setback less than the setbacks in (3)(a) through (c) may be used if the applicant demonstrates that the distance needed to achieve 4-log pathogen reduction of effluent migration from the sewage lagoon to the water well is less than the setback distance in (3)(a) through (c). In no instance, however, may the setback be less than 100 feet.

(5) To make the demonstration in (4), the pathogen reduction between the sewage lagoon and the water well must be calculated according to one of the following methods:

(a) METHOD 1 – Travel Time Method - The vertical travel time in the vadose zone for the wastewater to reach groundwater is calculated using the following equation:

 

t1 = [(d)*(θ) ÷ (α)] * 365

 

Where:

 

t1 = vertical travel time (days)

α is total effluent recharge – the maximum allowable leakage rate or actual measured leakage rate if the measured rate is available (in/yr)

θ is volumetric soil moisture (percent)

d is the depth to groundwater (in)

 

The horizontal travel time in the saturated zone for the wastewater to reach the water well is calculated using the following equations:

 

t2 = [ne÷(K*i)] * [x – {(Q÷(2*π*K*b*i)) * (ln(1+((2*π* K*b*i*x)÷Q)))}]

 

Where:

 

t2 = horizontal travel time (days)

K is hydraulic conductivity of the saturated aquifer (feet/day)

i is hydraulic gradient (feet/foot)

b is aquifer saturated thickness (feet)

ne is effective porosity (dimensionless)

π is pi, 3.14 (dimensionless)

ln is natural logarithm

Q is the maximum day well demand (feet3/day)

x is the horizontal distance from the sewage lagoon to the water well (feet). Value is positive when well is downgradient of sewage lagoon, negative if well is upgradient of sewage lagoon.

 

The total log pathogen reduction from the bottom of the sewage lagoon to the water well is calculated using the following equation:

 

Pt = (t1 + t2)*0.02

 

Where:

 

Pt = Log reduction of pathogens during vertical and horizontal travel

0.02 = log 10 pathogen removal/day

 

(b) METHOD 2 – Travel time and VIRULO - The horizontal travel time (t2) is calculated the same as for Method 1. The horizontal log reduction is calculated using the following equation:

 

Ph = (t2)*0.02

 

Where:

 

Ph = Log reduction of pathogens during horizontal travel

 

The pathogen reduction during vertical movement in the vadose zone is calculated using VIRULO. The value of Ph is added to VIRULO results to provide the total pathogen reduction from the bottom of the sewage lagoon to the water well.

 

(c) Other methods approved by the department.

(6) In calculating 4-log pathogen reduction under (4), the following requirements apply:

(a) Hydraulic conductivity must be based on the aquifer material most likely to transmit lagoon discharges to the water well and be determined by one of the following methods:

(i) The maximum hydraulic conductivity value of the aquifer material shown in Table 1. The hydraulic conductivity for aquifer materials not included in Table 1 may be calculated by the applicant using other methods acceptable to the department. The aquifer material must be the most permeable soil layer that is at least six inches thick and is below the bottom of the sewage lagoon infiltrative surface, as identified in any test pit or borehole. This method may only be used for facilities that are not requesting a source-specific ground water mixing zone, as defined in ARM 17.30.518.

 

TABLE 1

MATERIAL

HYDRAULIC CONDUCTIVITY (ft/d)

Basalt (permeable/vesicular)

5,100

Clay

0.025

Clay (unweathered, marine)

0.00054

Coarse sand

2,950

Fine sand

51

Glacial Till

0.72

Glacial Till (fractured)

29.5

Gravel

13,500

Gravelly sand

1,020

Igneous/metamorphic rock (fractured)

76.5

Igneous/metamorphic rock (unfractured)

0.000054

Karst limestone

18,000

Limestone

1.5

Limestone (unjointed, crystalline)

0.30

Loess

0.27

Medium sand

569

Sandstone

1.5

Sandstone (friable)

3.0

Sandstone (well cemented, unfractured)

0.0036

Sandy clay loam

1.4

Sandy silt

0.27

Shale

0.00054

Silt

0.27

Siltstone

0.0036

Silty clay

0.013

Silty sand

45

Tuff

7.2

Very fine sand

21.4

 

(ii) A pumping test at least 8 hours long, representative of the hydraulic conductivity of the aquifer material, and conducted on a well(s) with complete lithology and construction details. Results for pumping tests must be submitted electronically on DNRC Form 633. Pumping tests must be conducted in accordance with the requirements in ARM 36.12.121(2)(a) through (f), (3)(a), (3)(c), (3)(g), (3)(i), (3)(j), and (3)(k).

(b) Hydraulic gradient must be based on the aquifer material most likely to transmit lagoon discharges to the water well and must be determined by one of the following methods:

(i) The regional topographic slope in an area that includes the water well and the sewage lagoon. The minimum hydraulic gradient that may be used with this method is 0.005 feet/feet, and the maximum gradient that may be used is 0.05 feet/feet. This method may not be used for facilities requesting a source-specific ground water mixing zone as defined in ARM 17.30.518.

(ii) Groundwater potentiometric maps of the aquifer that accurately represent the local hydraulic gradient in the area of the water well and sewage lagoon.

(iii) Surveyed static water elevations in at least three wells that draw water from the aquifer, accurately represent the local hydraulic gradient in the area of the water well and sewage lagoon, and are measured on the same date to the nearest 0.01 foot.

(c) Soil type must be determined by test pits or boreholes. The following requirements apply:

(i) Test pits or boreholes must be completed to a minimum depth of 10 feet below the bottom of the sewage lagoon infiltrative surface or until an impervious layer, as defined in Circular DEQ-4, is encountered.

(ii) A minimum of two test pits or boreholes must be completed for the first 0.5 acre of lagoon area that is within 1,000 feet of a water well. A maximum of one additional test pit or borehole for each additional acre of lagoon area within 1,000 feet of a water well may be required if the department determines that additional test pits or boreholes are necessary to adequately characterize the soils between the sewage lagoon and the water well. The test pits or boreholes must be located to provide representative information on the soils beneath the sewage lagoon that affect the vertical and horizontal migration of pathogens from the sewage lagoon to the affected water well.

(iii) If the test pit or borehole locations are not within 50 feet of the toe of the sewage lagoon embankment, then the locations must be approved by the department before they are completed. The borehole method must provide a continuous soil sample that is representative of the soil and lithology profile.

(iv) For purposes of defining soil effective porosity and volumetric soil moisture that are used in (5), soils must be described according to the Unified Soil Classification System. The soil description must include information regarding the presence or absence of seasonal saturated conditions. If there is no evidence of saturated conditions from the test pit, borehole, or other evidence, then the depth to groundwater must be estimated as the bottom of the test pit or borehole.

(d) Soils with greater than 35 percent retained on the No. 10 sieve and geologic materials with fractures do not receive credit for virus reduction in the vadose zone.

(e) The well discharge rate used in calculations must be based on the maximum day well demand, which must be determined by using historic discharge rate records or other methods as approved by the department.

(7) The department may determine the setback calculated in accordance with this rule should be decreased—but in no instance shorter than 100 feet—if the applicant demonstrates equivalent protection of the water source that supplies the water well.

 

History: 75-5-411, MCA; IMP, 75-5-411, MCA; NEW, 2019 MAR p. 836, Eff. 6/22/19.

17.30.1801   PURPOSE
(1) The purpose of this subchapter is to establish procedures for the approval of local water quality district programs, to establish procedures for granting enforcement authority to local water quality districts, and to ensure that the programs and enforcement actions are consistent with Title 75, chapter 5, MCA.   Nothing in these rules may be considered to limit or restrict the authority of a local government to adopt rules and regulations authorized by other laws of the state.
History: 75-5-106, 75-5-201, MCA; IMP, 75-5-106, 75-5-311, MCA; NEW, 1993 MAR p. 543, Eff. 4/16/93; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1802   DEFINITIONS
For the purposes of this subchapter, the following definitions, in addition to those in 7-13-4502 and 75-5-103, MCA, will apply:

(1) "District" means a "local water quality district" established with definite boundaries for the purpose of protecting, maintaining, and improving the quality of state water as authorized by Title 7, chapter 13, part 45, MCA, and the rules of this subchapter.

(2) "Program" means a local water quality district program designed to protect, maintain, and improve the quality of state water within the boundaries of a local water quality district established according to the procedures specified in Title 7, chapter 13, part 45, MCA.

History: 75-5-201, MCA; IMP, 75-5-106, 75-5-311, MCA; NEW, 1993 MAR p. 543, Eff. 4/16/93; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1803   NOTIFICATION REQUIREMENTS
(1) Upon passage of a resolution of intention to create a local water quality district, the commissioners shall submit a copy of the resolution to the department as notification that the commissioners intend to develop a district program and to apply for board approval of the program.   Submission of the resolution of intention to the department initiates the consultation process required by 75-5-311(1) , MCA.

 

Rule 17.30.1804

History: 75-5-201, MCA; IMP, 75-5-311, MCA; NEW, 1993 MAR p. 543, Eff. 4/16/93; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1805   PROGRAM APPLICATION CONTENT
(1) To obtain approval of a district program, the district's board of directors shall file an application with the department.   The application shall contain the following:

(a) a map delineating the boundaries of the district and a description of the existing or potential water pollution problems within the proposed district;

(b) a map indicating general land ownership and use within the district for land units 1 square mile or more in size;

(c) a general description of the water resources and water uses within the district, if the information is available;

(d) identification of the district program goals and objectives;

(e) a district program work plan and implementation schedule;

(f) a program budget;

(g) information necessary for the department to conduct an analysis of potential impacts to human health and the environment caused by implementation of the district program;

(h) a description of any proposed district permit programs; and

(i) copies of any proposed local ordinances for the regulation of the facilities and sources of pollution specified in 75-5-311(4) , MCA, along with a statement demonstrating that the local ordinances meet the following conditions:

(i) the local requirements are compatible with and no less stringent than state requirements for the protection of water quality, pursuant to 75-5-311(5) (a) , MCA, and

(ii) the district's enforcement procedures and enforcement actions are consistent with state enforcement actions, pursuant to 75-5-311(5) (b) and (c) , MCA.

History: 75-5-201, MCA; IMP, 75-5-311, MCA; NEW, 1993 MAR p. 543, Eff. 4/16/93; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1806   PROGRAM APPROVAL AND REPORTING
(1) Upon receipt of a district program application by the department, the department will have 30 calendar days to conduct a completeness review of the application.   If the application is incomplete, the department shall send written notification to the board of directors identifying the deficiencies and requesting additional information.   Upon receipt of the requested information, the department will have 30 days to conduct a completeness review.

(2) Upon determination that the application is complete, the department shall immediately notify the board of directors and submit the completed application to the board, along with a report and recommendation regarding approval of the district program.   At its next regularly scheduled meeting following the department's submission of the report and recommendation under this rule, the board shall hold a hearing on the application.

(3) Prior to implementation of the local water quality district program in areas that have been added to the district, changes in the boundaries of a district must be described in a program amendment and submitted to the board for approval as an amendment to the approved program in accordance with 75-5-311(7) , MCA, and the procedures in (1) and (2) of this rule.

(4) One year after board approval of a district program and annually thereafter, the board of directors shall submit to the department a report that evaluates the effectiveness of the district program.   The report shall include a description of program activities, a discussion of the degree to which program goals, objectives and schedules have been satisfied, monitoring results, a budget summary, and a description of the number and status of permits issued and enforcement actions initiated, as applicable to a particular district program.

(5) A district shall retain all records for a minimum of 3 years and make its monitoring data available to the department upon request.

History: 75-5-201, MCA; IMP, 75-5-311, MCA; NEW, 1993 MAR p. 543, Eff. 4/16/93; TRANS, from DHES, 1996 MAR p. 1499.

17.30.1807   PROCEDURES FOR GRANTING STATE ENFORCEMENT AUTHORITY TO LOCAL WATER QUALITY DISTRICTS
(1) Whenever a person is in violation of 75-5-605, MCA, at a location within the district, the department may request that the district enforce the provisions of Title 75, chapter 5, MCA, and rules implementing that chapter for the particular violations. Alternatively, the district may request enforcement authority from the department in a particular case as specified under this rule.

(2) The district shall submit a letter to the department requesting authorization to enforce the provisions of Title 75, chapter 5, MCA, which contains appropriate documentation of the violation(s) as required by 75-5-106, MCA.

(3) The department shall authorize a district to enforce the provisions of Title 75, chapter 5, MCA, in response to a district's request unless the department retains jurisdiction and pursues enforcement.

(4) A district is authorized to enforce the provisions of Title 75, chapter 5, MCA, and rules implementing that chapter upon receipt of a letter issued by the department granting enforcement authority for a particular case.   The department shall respond to the district's request within 5 working days after the department's receipt of the request.   The letter of authorization may include any limitations or conditions determined necessary by the department.   Nothing in the grant of authority to a district may be construed to limit the department's legal responsibility and authority to take enforcement action against the person responsible for the source of pollution.

(5) The department may revoke the enforcement authorization for a district if it determines that conditions exist that warrant such revocation.   Such conditions may include but are not limited to:

(a) the district lacks adequate enforcement capabilities or resources for effective enforcement efforts;

(b) the district requests the department to undertake enforcement in the case;

(c) the district has not complied with the conditions and limitations in the letter of authorization; or

(d) a re-assessment of conditions or change of conditions that indicate that enforcement by the department would be more effective than local enforcement.

(6) A district authorized to undertake enforcement actions pursuant to this section shall coordinate its enforcement activities with the department in a manner determined by the department.

History: 75-5-106, 75-5-201, MCA; IMP, 75-5-106, MCA; NEW, 1993 MAR p. 543, Eff. 4/16/93; TRANS, from DHES, 1996 MAR p. 1499.

17.30.2001   DEFINITIONS

This rule has been repealed.

History: 75-5-201, MCA; IMP, 75-5-611, MCA; NEW, 1998 MAR p. 940, Eff. 4/17/98; AMD, 2006 MAR p. 1139, Eff. 5/5/06; REP, 2016 MAR p. 517, Eff. 3/19/16.

17.30.2003   ENFORCEMENT ACTIONS FOR ADMINISTRATIVE PENALTIES

This rule has been repealed.

History: 75-5-201, MCA; IMP, 75-5-611, MCA; NEW, 1998 MAR p. 940, Eff. 4/17/98; AMD, 2002 MAR p. 1749, Eff. 6/28/02; AMD, 2006 MAR p. 1874, Eff. 5/5/06; REP, 2016 MAR p. 517, Eff. 3/19/16.

17.30.2005   FORMULA FOR DETERMINING ADMINISTRATIVE PENALTIES

This rule has been repealed.

History: 75-5-201, MCA; IMP, 75-5-611, MCA; NEW, 1998 MAR p. 940, Eff. 4/17/98; REP, 2006 MAR p. 1139, Eff. 5/5/06.

17.30.2006   EXTENT AND GRAVITY OF THE VIOLATION

This rule has been repealed.

History: 75-5-201, MCA; IMP, 75-5-611, MCA; NEW, 1998 MAR p. 940, Eff. 4/17/98; REP, 2006 MAR p. 1139, Eff. 5/5/06.