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17.4.101   MODEL RULES
(1) The Department of Environmental Quality and the Board of Environmental Review adopt and incorporate the Attorney General's Organizational and Procedural Rules, ARM 1.3.201, 1.3.202, 1.3.211 through 1.3.224, and 1.3.226 through 1.3.233, effective August 15, 2008, and the Secretary of State's Organizational and Procedural Rules, ARM 1.3.101, 1.3.102, 1.3.301, 1.3.302, 1.3.304, 1.3.305, 1.3.307 through 1.3.309, 1.3.311 through 1.3.313, and 44.17.101, effective August 1, 2008, including the sample forms which follow the Attorney General's model rules, except as modified by (2) and (3), as authorized by 2-4-302, MCA.

(2) The incorporation of ARM 1.3.309 is modified by the addition of the rules in subchapter 2 of this chapter which incorporate requirements of statutes administered by the department and board.

(3) The incorporation of ARM 1.3.312 is modified by adding the words "or summary" and deleting the words "in full" in (2)(a)(i) so that it will read as follows: "(i) the text of the rule adopted or amended, or reference to the notice of proposed agency action in which the text or summary of the proposed rule or rule as proposed to be amended was printed."

(4) ARM 1.3.101 and 1.3.102 are procedural rules required by Article II, Section 8 of the 1972 Constitution, right of participation. ARM 1.3.201, 1.3.202, 1.3.211 through 1.3.224, and 1.3.226 through 1.3.233 are organizational and procedural rules required by the Montana Administrative Procedure Act. Copies of the model rules may be obtained from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

History: 2-4-201, 2-4-202, MCA; IMP, 2-4-201, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, 1982 MAR p. 383, Eff. 2/26/82; AMD, 1983 MAR p. 1350, Eff. 9/30/83; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2000 MAR p. 472, Eff. 2/11/00; AMD, 2009 MAR p. 1011, Eff. 6/26/09.

17.4.102   PROCEDURES FOR COMPLIANCE WITH MEPA
(1) The board of environmental review hereby adopts and incorporates by reference ARM Title 17, chapter 4, subchapters 6 and 7 in their entirety, which set forth procedures for compliance with the environmental impact statement requirements of the Montana Environmental Policy Act, Title 75, chapter 1, MCA. A copy of these rules may be obtained from the Department of Environmental Quality, PO Box 200901, Helena, MT 59620-0901.

(2) In those instances in which the board of environmental review determines that the requirements of MEPA are applicable to board actions, the board will follow the procedures set forth in ARM Title 17, chapter 4, subchapters 6 and 7, which are incorporated by reference in (1) of this rule.

History: 2-4-201, 75-1-202, MCA; IMP, 75-1-201 through 75-1-205, MCA; NEW, 1982 MAR p. 384, Eff. 2/26/82; TRANS, from DHES, 1996 MAR p. 1497.

17.4.201   WATER POLLUTION RULES

This rule has been repealed.

History: 2-4-201, 2-4-202, MCA; IMP, 75-5-307, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; TRANS, from DHES, 1996 MAR p. 1497; REP, 2016 MAR p. 517, Eff. 3/19/16.

17.4.202   OCCUPATIONAL HEALTH RULES
(1) The Occupational Health Advisory Council has been afforded not less than 30 days notice prior to publication of the proposed text to comment thereon.

(2) Notice shall be given by public advertisement not less than 20 nor more than 30 days prior to the date for such hearing; such notice shall be given in a newspaper of general circulation published in the state capital and also in such newspapers of the four most populous cities of the state, excluding the capital. The published notice shall be published once a week for a period of three weeks.

(3) Nothing herein shall be construed to require a hearing prior to the issuance of an emergency order pursuant to 50-70-117 , MCA.

History: 2-4-201, 2-4-202, MCA; IMP, 50-70-111, MCA; Eff. 12/31/72; AMD, Eff. 11/4/73; TRANS, from DHES, 1996 MAR p. 1497.

17.4.301   PURPOSE
(1) This subchapter implements 75-1-1001 and 82-4-1001 , MCA, which provide factors for calculating penalties assessed under:

(a) Title 75, chapters 2, 5, 6, 11 and 20, MCA;

(b) Title 75, chapter 10, parts 2, 4, 5 and 12, MCA;

(c) Title 76, chapter 4, MCA; and

(d) Title 82, chapter 4, parts 1, 2, 3, and 4, MCA.

(2) The purpose of the penalty calculation process is to calculate a penalty that is commensurate with the severity of the violation, that provides an adequate deterrent, and that captures the economic benefit of noncompliance. The department shall provide a copy of the penalty calculation to the alleged violator.

(3) The department may not assess a penalty that exceeds the maximum penalty amount authorized by the statutes listed in (1) .

History: 75-2-111, 75-2-503, 75-5-201, 75-6-103, 75-10-204, 75-10-405, 75-10-503, 75-10-1202, 75-11-204, 75-11-505, 75-20-105, 76-4-104, 82-4-111, 82-4-204, 82-4-321, 82-4-422, MCA; IMP, 75-1-1001, 82-4-1001, MCA; NEW, 2006 MAR p. 1139, Eff. 5/5/06.

17.4.302   DEFINITIONS
The following definitions apply throughout this subchapter:

(1) "Circumstances" means a violator's culpability associated with a violation.

(2) "Continuing violation" means a violation that involves an ongoing unlawful activity or an ongoing failure to comply with a statutory or regulatory requirement.

(3) "Extent" of the violation means the violator's degree of deviation from the applicable statute, rule or permit.

(4) "Gravity" of the violation means the degree of harm, or potential for harm, to human health or the environment, or the degree of adverse effect on the department's administration of the statute and rules.

(5) "History of violation" means the violator's prior history of any violation, which:

(a) must be a violation of a requirement under the authority of the same chapter and part of the violation for which the penalty is being assessed;

(b) must be documented in an administrative order or a judicial order or judgment issued within three years prior to the date of the occurrence of the violation for which the penalty is being assessed; and

(c) may not, at the time that the penalty is being assessed, be undergoing or subject to administrative appeal or judicial review.

(6) "Nature" means the classification of a violation as one that harms or has the potential to harm human health or the environment or as one that adversely affects the department's administration of the statute and rules.

History: 75-2-111, 75-2-503, 75-5-201, 75-6-103, 75-10-204, 75-10-405, 75-10-503, 75-10-1202, 75-11-204, 75-11-505, 75-20-105, 76-4-104, 82-4-111, 82-4-204, 82-4-321, 82-4-422, MCA; IMP, 75-1-1001, 82-4-1001, MCA; NEW, 2006 MAR p. 1139, Eff. 5/5/06.

17.4.303   BASE PENALTY
(1) As provided in this rule, the department shall calculate the base penalty by multiplying the maximum penalty amount authorized by statute by a factor from the appropriate base penalty matrix in (2) or (3) . In order to select a matrix from (2) or (3) , the nature of the violation must first be established. For violations that harm or have the potential to harm human health or the environment, the department shall classify the extent and gravity of the violation as major, moderate, or minor as provided in (4) and (5) . For all other violations, the extent factor does not apply, and the department shall classify the gravity of the violation as major, moderate, or minor as provided in (5) .

(2) The department shall use the following matrix for violations that harm or have the potential to harm human health or the environment:

 

GRAVITY

EXTENT

Major

Moderate

Minor

Major

0.85

0.70

0.55

Moderate

0.70

0.55

0.40

Minor

0.55

0.40

0.25

 

(3) The department shall use the following matrix for violations that adversely impact the department's administration of the applicable statute or rules, but which do not harm or have the potential to harm human health or the environment:

GRAVITY

Major

Moderate

Minor

0.50

0.40

0.30

 

(4) In determining the extent of a violation, the factors that the department may consider include, but are not limited to, the volume, concentration, and toxicity of the regulated substance, the severity and percent of exceedance of a regulatory limit, and the duration of the violation. The department shall determine the extent of a violation as follows:

(a) a violation has a major extent if it constitutes a major deviation from the applicable requirements;

(b) a violation has a moderate extent if it constitutes a moderate deviation from the applicable requirements;

(c) a violation has a minor extent if it constitutes a minor deviation from the applicable requirements.

(5) The department shall determine the gravity of a violation as follows:

(a) A violation has major gravity if it causes harm to human health or the environment, poses a serious potential to harm human health or the environment, or has a serious adverse impact on the department's administration of the statute or rules. Examples of violations that may have major gravity include a release of a regulated substance that causes harm or poses a serious potential to harm human health or the environment, construction or operation without a required permit or approval, an exceedance of a maximum contaminant level or water quality standard, or a failure to provide an adequate performance bond.

(b) A violation has moderate gravity if it:

(i) is not major or minor as provided in (5) (a) or (c) ; and

(ii) poses a potential to harm human health or the environment, or has an adverse impact on the department's administration of the statute or rules. Examples of violations that may have moderate gravity include a release of a regulated substance that does not cause harm or pose a serious potential to harm human health or the environment, a failure to monitor, report, or make records, a failure to report a release, leak, or bypass, or a failure to construct or operate in accordance with a permit or approval.

(c) A violation has minor gravity if it poses no risk of harm to human health or the environment, or has a low adverse impact on the department's administration of the statute or rules. Examples of violations that may have minor gravity include a failure to submit a report in a timely manner, a failure to pay fees, inaccurate recordkeeping, or a failure to comply with a minor operational requirement specified in a permit.

History: 75-2-111, 75-2-503, 75-5-201, 75-6-103, 75-10-204, 75-10-405, 75-10-503, 75-10-1202, 75-11-204, 75-11-505, 75-20-105, 76-4-104, 82-4-111, 82-4-204, 82-4-321, 82-4-422, MCA; IMP, 75-1-1001, 82-4-1001, MCA; NEW, 2006 MAR p. 1139, Eff. 5/5/06.

17.4.304   ADJUSTED BASE PENALTY - CIRCUMSTANCES, GOOD FAITH AND COOPERATION, AMOUNTS VOLUNTARILY EXPENDED
(1) As provided in this rule, the department may consider circumstances, good faith and cooperation, and amounts voluntarily expended to calculate an adjusted base penalty. Circumstances may be used to increase the base penalty. Good faith and cooperation and amounts voluntarily expended may be used to decrease the base penalty. The amount of adjustment for each of the above factors is based upon a percentage of the base penalty. The amount of the adjustment is added to the base penalty to obtain an adjusted base penalty.

(2) The department may increase a base penalty by up to 30% based upon the circumstances of the violation. To determine the penalty adjustment based upon circumstances, the department shall evaluate a violator's culpability associated with the violation. In determining the amount of increase for circumstances, the department's consideration must include, but not be limited to, the following factors:

(a) how much control the violator had over the violation;

(b) the foreseeability of the violation;

(c) whether the violator took reasonable precautions to prevent the violation;

(d) the foreseeability of the impacts associated with the violation; and

(e) whether the violator knew or should have known of the requirement that was violated.

(3) The department may decrease a base penalty by up to 10% based upon the violator's good faith and cooperation. In determining the amount of decrease for good faith and cooperation, the department's consideration must include, but not be limited to, the following factors:

(a) the violator's promptness in reporting and correcting the violation, and in mitigating the impacts of the violation;

(b) the extent of the violator's voluntary and full disclosure of the facts related to the violation; and

(c) the extent of the violator's assistance in the department's investigation and analysis of the violation.

(4) The department may decrease a base penalty by up to 10% based upon the amounts voluntarily expended by the violator, beyond what is required by law or order, to address or mitigate the violation or the impacts of the violation. The amount of a decrease is not required to match the amounts voluntarily expended. In determining the amount of decrease for amounts voluntarily expended, beyond what is required by law or order, the department's consideration must include, but not be limited to, the following factors:

(a) expenditures for resources, including personnel and equipment, to promptly mitigate the violation or impacts of the violation;

(b) expenditures of resources to prevent a recurrence of the violation or to eliminate the cause or source of the violation; and

(c) revenue lost by the violator due to a cessation or reduction in operations that is necessary to mitigate the violation or the impacts of the violation.

History: 75-2-111, 75-2-503, 75-5-201, 75-6-103, 75-10-204, 75-10-405, 75-10-503, 75-10-1202, 75-11-204, 75-11-505, 75-20-105, 76-4-104, 82-4-111, 82-4-204, 82-4-321, 82-4-422, MCA; IMP, 75-1-1001, 82-4-1001, MCA; NEW, 2006 MAR p. 1139, Eff. 5/5/06.

17.4.305   TOTAL ADJUSTED PENALTY - DAYS OF VIOLATION

(1) The department may consider each day of each violation as a separate violation subject to penalties. The department may multiply the adjusted base penalty calculated under ARM 17.4.304 by the number of days of violation to obtain a total adjusted penalty.

(2) For continuing violations, if the application of (1) results in a penalty that is higher than the department believes is necessary to provide an adequate deterrent, the department may reduce the number of days of violation.

History: 75-2-111, 75-2-503, 75-5-201, 75-6-103, 75-10-204, 75-10-405, 75-10-503, 75-10-1202, 75-11-204, 75-11-505, 75-20-105, 76-4-104, 82-4-111, 82-4-204, 82-4-321, 82-4-422, MCA; IMP, 75-1-1001, 82-4-1001, MCA; NEW, 2006 MAR p. 1139, Eff. 5/5/06.

17.4.306   TOTAL PENALTY - HISTORY OF VIOLATION
(1) As provided in this rule, the department may increase the total adjusted penalty based upon the violator's history of violation. Any penalty increases for history of violation must be added to the total adjusted penalty calculated under ARM 17.4.305 to obtain a total penalty.

(2) The department may calculate a separate increase for each historic violation. The amount of the increase must be calculated by multiplying the base penalty calculated under ARM 17.4.303 by the appropriate percentage from (3) . This amount must then be added to the total adjusted penalty calculated under ARM 17.4.305.

(3) The department shall determine the nature of each historic violation in accordance with ARM 17.4.302(6) . The department may increase the total adjusted penalty for history of violation using the following percentages:

(a) for each historic violation that, under these rules, would be classified as harming or having the potential to harm human health or the environment, the penalty increase must be 10% of the base penalty calculated under ARM 17.4.303; and

(b) for each historic violation that, under these rules, would be classified as adversely impacting the department's administration of the applicable statute or rules, but not harming or having the potential to harm human health or the environment, the penalty increase must be 5% of the base penalty calculated under ARM 17.4.303.

(4) If a violator has multiple historic violations and one new violation, for which a penalty is being calculated under these rules, the percentages from (3) for each historic violation must be added together. This composite percentage may not exceed 30%. The composite percentage must then be multiplied by the base penalty for the new violation to determine the amount of the increase. The increase must be added to the total adjusted penalty for the new violation calculated under ARM 17.4.305.

(5) If a violator has one historic violation and multiple new violations, each with a separate penalty calculation under these rules, the base penalties for the new violations calculated under ARM 17.4.303 must be added together. This composite adjusted base penalty must then be multiplied by the percentage from (3) for the historic violation to determine the amount of the increase. The increase must then be added to the sum of the total adjusted penalties calculated for each new violation under ARM 17.4.305.

(6) If a violator has multiple historic violations and multiple new violations, for which a separate penalty is being calculated under these rules, the percentages from (3) for each historic violation must be added together, not to exceed 30%, and the base penalties for each new violation calculated under ARM 17.4.303 must be added together. The composite base penalties must be multiplied by the composite percentage to determine the amount of the increase. The increase must be added to the sum of the total adjusted penalties calculated for each violation under ARM 17.4.305.

History: 75-2-111, 75-2-503, 75-5-201, 75-6-103, 75-10-204, 75-10-405, 75-10-503, 75-10-1202, 75-11-204, 75-11-505, 75-20-105, 76-4-104, 82-4-111, 82-4-204, 82-4-321, 82-4-422, MCA; IMP, 75-1-1001, 82-4-1001, MCA; NEW, 2006 MAR p. 1139, Eff. 5/5/06.

17.4.307   ECONOMIC BENEFIT
(1) The department may increase the total adjusted penalty, as calculated under ARM 17.4.305, by an amount based upon the violator's economic benefit. The department shall base any penalty increase for economic benefit on the department's estimate of the costs of compliance, based upon the best information reasonably available at the time it calculates a penalty under these rules. The economic benefit must be added to the total adjusted penalty calculated under ARM 17.4.305 to obtain the total penalty.
History: 75-2-111, 75-2-503, 75-5-201, 75-6-103, 75-10-204, 75-10-405, 75-10-503, 75-10-1202, 75-11-204, 75-11-505, 75-20-105, 76-4-104, 82-4-111, 82-4-204, 82-4-321, 82-4-422, MCA; IMP, 75-1-1001, 82-4-1001, MCA; NEW, 2006 MAR p. 1379, Eff. 5/5/06.

17.4.308   OTHER MATTERS AS JUSTICE MAY REQUIRE
(1) The department may consider other matters as justice may require to increase or decrease the total penalty.
History: 75-2-111, 75-2-503, 75-5-201, 75-6-103, 75-10-204, 75-10-405, 75-10-503, 75-10-1202, 75-11-204, 75-11-505, 75-20-105, 76-4-104, 82-4-111, 82-4-204, 82-4-321, 82-4-422, MCA; IMP, 75-1-1001, 82-4-1001, MCA; NEW, 2006 MAR p. 1139, Eff. 5/5/06.

17.4.501   OPPORTUNITY FOR PUBLIC COMMENT AFTER APPLICATION RECEIVED
(1) Within one month after an application is received pursuant to 75-20-216, MCA, the department shall publish notice of the following:

(a) the name and address of the applicant; a general description of the size, purpose and pollutants discharged from the proposed facility; solid or hazardous wastes generated; any other aspects of the proposed facility which require a permit or license from the department; and the location of any alternative sites;

(b) if an MPDES permit must be obtained, the name of the state water receiving the discharge, a brief description of the discharge's location, and whether the discharge is new or existing;

(c) that the department will accept written public comment on the application;

(d) the deadlines by which the above comments must be submitted, which must be no less than 30 days after the date the notice is first published in a legal advertisement pursuant to (2) (a) below;

(e) the name, address and phone number of the department and the person within each bureau from whom information on the application may be obtained;

(f) the name and address of the person to whom comments may be submitted;

(g) the fact that a public hearing will be held after a preliminary decision to grant or deny the relevant permits is made.

(2) Notice of the opportunity for public comment described in (1) of this rule must be published as follows:

(a) publishing legal notice two times within two weeks in a newspaper of general circulation in Butte, Missoula, Helena, Great Falls, Miles City, Kalispell, and Billings, and in a newspaper of general circulation within 50 miles of the site of the proposed facility and any alternative site;

(b) submitting the notice to a state-wide wire service;

(c) mailing to any person, group, or agency upon written request, and to the following state agencies:

(i) environmental quality council;

(ii) department of public service regulation;

(iii) department of fish, wildlife and parks;

(iv) department of natural resources and conservation;

(v) department of commerce;

(vi) department of transportation; and

(vii) department of revenue.

 

History: 75-2-111, 75-5-201, 75-20-105, MCA; IMP, 75-20-216(3), MCA; NEW, 1980 MAR p. 3114, Eff. 12/27/80; AMD, 1981 MAR p. 1100, Eff. 10/1/81; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2001 MAR p. 2410, Eff. 12/7/01.

17.4.502   PUBLIC HEARING AFTER PRELIMINARY DECISION

(1) After an application for a certificate is accepted as complete, the department shall:

(a) make a preliminary decision whether to grant or deny relevant permits for the proposed site and each alternative location for which approval is sought; and

(b) hold a hearing to receive public comments on those decisions.

(2) The notice of public hearing shall be published as follows:

(a) publishing legal notice two times within two weeks in a newspaper of general circulation in Butte, Missoula, Helena, Great Falls, Miles City, Kalispell, and Billings, and in a newspaper of general circulation within 50 miles of the site of the proposed facility and any alternative site;

(b) submitting the notice to a state-wide wire service;

(c) at least 30 days prior to the date of hearing, mailing to any person or group upon written request, the environmental quality council; the state departments of public service regulation; fish, wildlife and parks, natural resources and conservation, commerce, transportation, and revenue; and, in the case of an application for an MPDES permit, those listed in ARM 17.30.1372(5) .

(3) The notice of public hearing shall contain the following:

(a) the name and address of the applicant, a general description of the size, purpose, and pollutants discharged from the proposed facility, solid or hazardous wastes generated, any other aspects of the proposed facility which require a permit or license from the department, the location of the alternative sites, the preliminary decision for each site to grant or deny any relevant permit, and the fact that only one site will be approved by the board of natural resources and conservation;

(b) if an MPDES permit is applied for, the name and address of the discharger, if different from the applicant;

(c) if an MPDES permit must be obtained, the name of the state water receiving the discharge and a brief description of the discharge's location;

(d) the name, address and phone number of the department;

(e) the time, date and location of the public hearing, the date to be at least 30 days after the notice is first published; and the fact that written comments may be submitted until that date;

(f) the name and address of the presiding officer and the fact that written comments should be submitted to that person;

 (g) the name, address and phone number of the person from whom information concerning each relevant permit may be obtained, including, if an MPDES permit is applied for, a draft permit, a fact sheet as required by ARM 17.30.1371, and copies of MPDES forms and related documents must also be included; and

(h) a brief description of the nature and purpose of the hearing, including the rules and procedure to be followed.

(4) The presiding officer shall accept information, comments and data from members of the public relevant to all aspects of the proposed facility which require a license or permit from the department at the proposed site and proposed and alternative locations for a linear facility orally or in writing at the hearing and in writing prior to the hearing.   The hearing is not subject to the contested case procedure of the Montana Administrative Procedure Act, and no cross-examination will be allowed.   The presiding officer has the discretion to limit repetitive testimony and prescribe rules to ensure orderly submission of statements.

(5) All written and oral comments submitted to the department from the date the above notice is issued until the termination of the public hearing must be retained by the department and considered in the formation of its final decision on relevant permits.   The department shall issue a response to all significant comments.

(6) The department shall complete the procedures required in this rule so that all permits are issued by the applicable deadline established in 75-20-216 or 75-20-231, MCA.

 

History: 75-2-111, 75-5-201, 75-20-105, MCA; IMP, 75-20-216(3), 75-20-231, MCA; NEW, 1980 MAR p. 3114, Eff. 12/27/80; AMD, 1981 MAR p. 1100, Eff. 10/1/81; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2001 MAR p. 2410, Eff. 12/7/01.

17.4.601   POLICY
(1) The purpose of these rules is to implement Title 75, chapter 1, MCA, the Montana Environmental Policy Act (MEPA) , through the establishment of administrative procedures. In order to fulfill the stated policy of that act, the department of environmental quality shall conform to the following rules prior to reaching a final decision on actions covered by MEPA. It must be noted that the act requires that state agencies comply with its terms "to the fullest extent possible."
History: 2-4-201, 2-15-112, MCA; IMP, 75-1-201, MCA; NEW, 1980 MAR p. 88, Eff. 1/18/80; TRANS, from DHES, 1996 MAR p. 1497.

17.4.602   POLICY STATEMENT CONCERNING MEPA RULES
(1) The purpose of these rules is to implement Title 75, chapter 1, MCA, the Montana Environmental Policy Act (MEPA) , through the establishment of administrative procedures. MEPA requires that state agencies comply with its terms "to the fullest extent possible." In order to fulfill the stated policy of that act, the agency shall conform to the following rules prior to reaching a final decision on proposed actions covered by MEPA.
History: 2-3-103, 2-4-201, MCA; IMP, 2-3-104, 75-1-201, MCA; NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.603   DEFINITIONS
(1) "Action" means a project, program or activity directly undertaken by the agency; a project or activity supported through a contract, grant, subsidy, loan or other form of funding assistance from the agency, either singly or in combination with 1 or more other state agencies; or a project or activity involving the issuance of a lease, permit, license, certificate, or other entitlement for use or permission to act by the agency, either singly or in combination with other state agencies.

(2) (a) "Alternative" means:

(i) an alternate approach or course of action that would appreciably accomplish the same objectives or results as the proposed action;

(ii) design parameters, mitigation, or controls other than those incorporated into a proposed action by an applicant or by an agency prior to preparation of an EA or draft EIS;

(iii) no action or denial; and

(iv) for agency-initiated actions, a different program or series of activities that would accomplish other objectives or a different use of resources than the proposed program or series of activities.

(b) The agency is required to consider only alternatives that are realistic, technologically available, and that represent a course of action that bears a logical relationship to the proposal being evaluated.

(3) "The agency" means the department of environmental quality and the board of environmental review.

(4) "Applicant" means a person or any other entity who applies to the agency for a grant, loan, subsidy, or other funding assistance, or for a lease, permit, license, certificate, or other entitlement for use or permission to act.

(5) "Categorical exclusion" refers to a type of action which does not individually, collectively, or cumulatively require an EA or EIS, as determined by rulemaking or programmatic review adopted by the agency, unless extraordinary circumstances, as defined by rulemaking or programmatic review, occur.

(6) "Compensation" means the replacement or provision of substitute resources or environments to offset an impact on the quality of the human environment. The agency may not consider compensation for purposes of determining the significance of impacts (see ARM 17.4.607(4) ) .

(7) "Cumulative impact" means the collective impacts on the human environment of the proposed action when considered in conjunction with other past and present actions related to the proposed action by location or generic type. Related future actions must also be considered when these actions are under concurrent consideration by any state agency through preimpact statement studies, separate impact statement evaluation, or permit processing procedures.

(8) "Emergency actions" include, but are not limited to:

(a) projects undertaken, carried out, or approved by the agency to repair or restore property or facilities damaged or destroyed as a result of a disaster when a disaster has been declared by the governor or other appropriate government entity;

(b) emergency repairs to public service facilities necessary to maintain service; and

(c) projects, whether public or private, undertaken to prevent or mitigate immediate threats to public health, safety, welfare, or the environment.

(9) "Environmental assessment" (EA) means a written analysis of a proposed action to determine whether an EIS is required or to serve 1 or more of the other purposes described in ARM 17.4.607(2) .

(10) "Environmental impact statement" (EIS) means the detailed written statement required by 75-1-201, MCA, which may take several forms:

(a) "draft environmental impact statement" means a detailed written statement prepared to the fullest extent possible in accordance with 75-1-201(1) (b) (iii) , MCA, and these rules;

(b) "final environmental impact statement" means a written statement prepared to the fullest extent possible in accordance with 75-1-201, MCA, and ARM 17.4.618 or 17.4.619 and which responds to substantive comments received on the draft environmental impact statement;

(c) "joint environmental impact statement" means an EIS prepared jointly by more than one agency, either state or federal, when the agencies are involved in the same or a closely related proposed action.

(11) "Environmental quality council" (EQC) means the council established pursuant to Title 75, chapter 1, MCA, and 5-16-101, MCA.

(12) "Human environment" includes, but is not limited to biological, physical, social, economic, cultural, and aesthetic factors that interrelate to form the environment. As the term applies to the agency's determination of whether an EIS is necessary (see ARM 17.4.607(1) ) , economic and social impacts do not by themselves require an EIS. However, whenever an EIS is prepared, economic and social impacts and their relationship to biological, physical, cultural and aesthetic impacts must be discussed.

(13) "Lead agency" means the state agency that has primary authority for committing the government to a course of action or the agency designated by the governor to supervise the preparation of a joint environmental impact statement or environmental assessment.

(14) "Mitigation" means:

(a) avoiding an impact by not taking a certain action or parts of an action;

(b) minimizing impacts by limiting the degree or magnitude of an action and its implementation;

(c) rectifying an impact by repairing, rehabilitating, or restoring the affected environment; or

(d) reducing or eliminating an impact over time by preservation and maintenance operations during the life of an action or the time period thereafter that an impact continues.

(15) "Programmatic review" means an analysis (EIS or EA) of the impacts on the quality of the human environment of related actions, programs, or policies.

(16) "Residual impact" means an impact that is not eliminated by mitigation.

(17) "Scope" means the range of reasonable alternatives,

mitigation, issues, and potential impacts to be considered in an environmental assessment or an environmental impact statement.

(18) "Secondary impact" means a further impact to the human environment that may be stimulated or induced by or otherwise result from a direct impact of the action.

(19) "State agency", means an office, commission, committee, board, department, council, division, bureau, or section of the executive branch of state government.

History: 2-3-103, 2-4-201, MCA; IMP, 2-3-104, 75-1-201, MCA; NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.607   GENERAL REQUIREMENTS OF THE ENVIRONMENTAL REVIEW PROCESS
Section 75-1-201, MCA requires state agencies to integrate use of the natural and social sciences and the environmental design arts in planning and in decision-making, and to prepare a detailed statement (an EIS) on each proposal for projects, programs, legislation, and other major actions of state government significantly affecting the quality of the human environment. In order to determine the level of environmental review for each proposed action that is necessary to comply with 75-1-201, MCA, the agency shall apply the following criteria:

(1) The agency shall prepare an EIS as follows:

(a) whenever an EA indicates that an EIS is necessary; or

(b) whenever, based on the criteria in ARM 17.4.608, the proposed action is a major action of state government significantly affecting the quality of the human environment.

(2) An EA may serve any of the following purposes:

(a) to ensure that the agency uses the natural and social sciences and the environmental design arts in planning and decision-making. An EA may be used independently or in conjunction with other agency planning and decision-making procedures;

(b) to assist in the evaluation of reasonable alternatives and the development of conditions, stipulations or modifications to be made a part of a proposed action;

(c) to determine the need to prepare an EIS through an initial evaluation and determination of the significance of impacts associated with a proposed action;

(d) to ensure the fullest appropriate opportunity for public review and comment on proposed actions, including alternatives and planned mitigation, where the residual impacts do not warrant the preparation of an EIS; and

(e) to examine and document the effects of a proposed action on the quality of the human environment, and to provide the basis for public review and comment, whenever statutory requirements do not allow sufficient time for an agency to prepare an EIS. The agency shall determine whether sufficient time is available to prepare an EIS by comparing statutory requirements that establish when the agency must make its decision on the proposed action with the time required by ARM 17.4.620 to obtain public review of an EIS plus a reasonable period to prepare a draft EIS and, if required, a final EIS.

(3) The agency shall prepare an EA whenever:

(a) the action is not excluded under (5) of this rule and it is not clear without preparation of an EA whether the proposed action is a major one significantly affecting the quality of the human environment;

(b) the action is not excluded under (5) of this rule and although an EIS is not warranted, the agency has not otherwise implemented the interdisciplinary analysis and public review purposes listed in (2) (a) and (d) of this rule through a similar planning and decision-making process; or

(c) statutory requirements do not allow sufficient time for the agency to prepare an EIS.

(4) The agency may, as an alternative to preparing an EIS, prepare an EA whenever the action is one that might normally require an EIS, but effects which might otherwise be deemed significant appear to be mitigable below the level of significance through design, or enforceable controls or stipulations or both imposed by the agency or other government agencies.   For an EA to suffice in this instance, the agency must determine that all of the impacts of the proposed action have been accurately identified, that they will be mitigated below the level of significance, and that no significant impact is likely to occur.   The agency may not consider compensation for purposes of determining that impacts have been mitigated below the level of significance.

(5) The agency is not required to prepare an EA or an EIS for the following categories of action:

(a) actions that qualify for a categorical exclusion as defined by rule or justified by a programmatic review.   In the

rule or programmatic review, the agency shall identify any extraordinary circumstances in which a normally excluded action requires an EA or EIS;

(b) administrative actions: routine, clerical or similar functions of a department, including but not limited to administrative procurement, contracts for consulting services, and personnel actions;

(c) minor repairs, operations, or maintenance of existing equipment or facilities;

(d) investigation and enforcement:   data collection, inspection of facilities or enforcement of environmental standards;

(e) ministerial actions: actions in which the agency exercises no discretion, but rather acts upon a given state of facts in a prescribed manner; and

(f) actions that are primarily social or economic in nature and that do not otherwise affect the human environment.

History: 2-3-103, 2-4-201, MCA; IMP, 2-3-104, 75-1-201, MCA; NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.608   DETERMINING THE SIGNIFICANCE OF IMPACTS
(1) In order to implement 75-1-201, MCA, the agency shall determine the significance of impacts associated with a proposed action. This determination is the basis of the agency's decision concerning the need to prepare an EIS and also refers to the agency's evaluation of individual and cumulative impacts in either EAs or EISs. The agency shall consider the following criteria in determining the significance of each impact on the quality of the human environment:

(a) the severity, duration, geographic extent, and frequency of occurrence of the impact;

(b) the probability that the impact will occur if the proposed action occurs; or conversely, reasonable assurance in keeping with the potential severity of an impact that the impact will not occur;

(c) growth-inducing or growth-inhibiting aspects of the impact, including the relationship or contribution of the impact to cumulative impacts;

(d) the quantity and quality of each environmental resource or value that would be affected, including the uniqueness and fragility of those resources or values;

(e) the importance to the state and to society of each environmental resource or value that would be affected;

(f) any precedent that would be set as a result of an impact of the proposed action that would commit the department to future actions with significant impacts or a decision in principle about such future actions; and

(g) potential conflict with local, state, or federal laws, requirements, or formal plans.

(2) An impact may be adverse, beneficial, or both. If none of the adverse effects of the impact are significant, an EIS is not required. An EIS is required if an impact has a significant adverse effect, even if the agency believes that the effect on balance will be beneficial.

History: 2-3-103, 2-4-201, MCA; IMP, 2-3-104, 75-1-201, MCA; NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.609   PREPARATION AND CONTENTS OF ENVIRONMENTAL ASSESSMENTS
(1) The agency shall prepare an EA, regardless of its length or the depth of analysis, in a manner which utilizes an interdisciplinary approach. The agency may initiate a process to determine the scope of issues to be addressed in an EA. Whenever the agency elects to initiate this process, it shall follow the procedures contained in ARM 17.4.615.

(2) For a routine action with limited environmental impact, the contents of an EA may be reflected on a standard checklist format. At the other extreme, whenever an action is one that might normally require an EIS, but effects that otherwise might be deemed significant are mitigated in project design or by controls imposed by the agency, the analysis, format, and content must all be more substantial. The agency shall prepare the evaluations and present the information described in (3) of this rule as applicable and in a level of detail appropriate to the following considerations:

(a) the complexity of the proposed action;

(b) the environmental sensitivity of the area affected by the proposed action;

(c) the degree of uncertainty that the proposed action will have a significant impact on the quality of the human environment;

(d) the need for and complexity of mitigation required to avoid the presence of significant impacts.

(3) To the degree required in (2) of this rule, an EA must include:

(a) a description of the proposed action, including maps and graphs;

(b) a description of the benefits and purpose of the proposed action. If the agency prepares a cost/benefit analysis before completion of the EA, the EA must contain the cost/ benefit analysis or a reference to it;

(c) a listing of any state, local, or federal agencies that have overlapping or additional jurisdiction or environmental review responsibility for the proposed action and the permits, licenses, and other authorizations required;

(d) an evaluation of the impacts, including cumulative and secondary impacts, on the physical environment. This evaluation may take the form of an environmental checklist and/or, as appropriate, a narrative containing more detailed analysis of topics and impacts that are potentially significant, including, where appropriate: terrestrial and aquatic life and habitats; water quality, quantity, and distribution; geology; soil quality, stability, and moisture; vegetation cover, quantity and quality; aesthetics; air quality; unique, endangered, fragile, or limited environmental resources; historical and archaeological sites; and demands on environmental resources of land, water, air and energy;

(e) an evaluation of the impacts, including cumulative and secondary impacts, on the human population in the area to be affected by the proposed action. This evaluation may take the form of an environmental checklist and/or, as appropriate, a narrative containing more detailed analysis of topics and impacts that are potentially significant, including where appropriate, social structures and mores; cultural uniqueness and diversity; access to and quality of recreational and wilderness activities; local and state tax base and tax revenues; agricultural or industrial production; human health; quantity and distribution of employment; distribution and density of population and housing; demands for government services; industrial and commercial activity; locally adopted environmental plans and goals; and other appropriate social and economic circumstances;

(f) a description and analysis of reasonable alternatives to a proposed action whenever alternatives are reasonably available and prudent to consider and a discussion of how the alternative would be implemented;

(g) a listing and appropriate evaluation of mitigation, stipulations, and other controls enforceable by the agency or another government agency;

(h) a listing of other agencies or groups that have been contacted or have contributed information;

(i) the names of persons responsible for preparation of the EA; and

(j) a finding on the need for an EIS and, if appropriate, an explanation of the reasons for preparing the EA. If an EIS is not required, the EA must describe the reasons the EA is an appropriate level of analysis.

History: 2-3-103, 2-4-201, MCA; IMP, 2-3-104, 75-1-201, MCA; NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.610   PUBLIC REVIEW OF ENVIRONMENTAL ASSESSMENTS

(1) The level of analysis in an EA will vary with the complexity and seriousness of environmental issues associated with a proposed action. The level of public interest will also vary. The agency is responsible for adjusting public review to match these factors.

(2) An EA is a public document and may be inspected upon request. Any person may obtain a copy of an EA by making a request to the agency. If the document is out-of-print, a copying charge may be levied.

(3) The agency is responsible for providing additional opportunities for public review consistent with the seriousness and complexity of the environmental issues associated with a proposed action and the level of public interest. Methods of accomplishing public review include publishing a news release or legal notice to announce the availability of an EA, summarizing its content and soliciting public comment; holding public meetings or hearings; maintaining mailing lists of persons interested in a particular action or type of action and notifying them of the availability of EAs on such actions; and distributing copies of EAs for review and comment.

(4) For an action with limited environmental impact and little public interest, no further public review may be warranted. However, where an action is one that normally requires an EIS, but effects that otherwise might be deemed significant are mitigated in the project proposal or by controls imposed by the agency, public involvement must include the opportunity for public comment, a public meeting or hearing, and adequate notice. The agency is responsible for determining appropriate methods to ensure adequate public review on a case by case basis.

(5) The agency shall maintain a log of all EAs completed by the agency and shall submit a list of any new EAs completed to the office of the governor and the environmental quality council on a quarterly basis. In addition, the agency shall submit a copy of each completed EA to the EQC.

(6) The agency shall consider the substantive comments received in response to an EA and proceed in accordance with one of the following steps, as appropriate:

(a) determine that an EIS is necessary;

(b) determine that the EA did not adequately reflect the issues raised by the proposed action and issue a revised document; or

(c) determine that an EIS is not necessary and make a final decision on the proposed action, with appropriate modification resulting from the analysis in the EA and analysis of public comment.

History: 2-3-103, 2-4-201, MCA; IMP, 2-3-104, 75-1-201, MCA; NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.615   DETERMINING THE SCOPE OF AN EIS
(1) Prior to the preparation of an EIS, the agency shall initiate a process to determine the scope of the EIS.

(2) To identify the scope of an EIS, the agency shall:

(a) invite the participation of affected federal, state, and local government agencies, Indian tribes, the applicant, if any, and interested persons or groups;

(b) identify the issues related to the proposed action that are likely to involve significant impacts and that will be analyzed in depth in the EIS;

(c) identify the issues that are not likely to involve significant impacts, thereby indicating that unless unanticipated effects are discovered during the preparation of the EIS, the discussion of these issues in the EIS will be limited to a brief presentation of the reasons they will not significantly affect the quality of the human environment; and

(d) identify those issues that have been adequately addressed by prior environmental review, thereby indicating that the discussion of these issues in the EIS will be limited to a summary and reference to their coverage elsewhere; and

(e) identify possible alternatives to be considered.

History: 2-3-103, 2-4-201, MCA; IMP, 2-3-104, 75-1-201, MCA; NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.616   ENVIRONMENTAL IMPACT STATEMENTS--GENERAL REQUIREMENTS
The following apply to the design and preparation of EISs:

(1) The agency shall prepare EISs that are analytic rather than encyclopedic.

(2) The agency shall discuss the impacts of a proposed action in a level of detail that is proportionate to their significance. For other than significant issues, an EIS need only include enough discussion to show why more study is not warranted.

(3) The agency shall prepare with each draft and final EIS a brief summary that is available for distribution separate from the EIS. The summary must describe:

(a) the proposed action being evaluated by the EIS, the impacts, and the alternatives;

(b) areas of controversy and major conclusions;

(c) the tradeoffs among the alternatives; and

(d) the agency's preferred alternative, if any.

History: 2-3-103, 2-4-201, MCA; IMP, 2-3-104, 75-1-201, MCA; NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.617   PREPARATION AND CONTENTS OF DRAFT ENVIRONMENTAL IMPACT STATEMENTS
If required by these rules, the agency shall prepare a draft environmental impact statement using an interdisciplinary approach and containing the following:

(1) a description of the proposed action, including its purpose and benefits;

(2) a listing of any state, local, or federal agencies that have overlapping or additional jurisdiction and a description of their responsibility for the proposed action;

(3) a description of the current environmental conditions in the area affected by the proposed action or alternatives, including maps and charts, whenever appropriate. The description must be no longer than is necessary to understand the effects of the action and alternatives. Data analysis must be commensurate with the importance of the impact with less important material summarized, consolidated, or simply referenced;

(4) a description of the impacts on the quality of the human environment of the proposed action including:

(a) the factors listed in ARM 17.4.609(3) (d) and (e) , whenever appropriate;

(b) primary, secondary, and cumulative impacts;

(c) potential growth-inducing or growth-inhibiting impacts;

(d) irreversible and irretrievable commitments of environmental resources, including land, air, water and energy;

(e) economic and environmental benefits and costs of the proposed action; and

(f) the relationship between local short-term uses of man's environment and the effect on maintenance and enhancement of the long-term productivity of the environment. When a cost-benefit analysis is prepared by the agency prior to the preparation of the draft EIS, it shall be incorporated by reference in or appended to the EIS;

(5) an analysis of reasonable alternatives to the proposed action, including the alternative of no action and other reasonable alternatives that may or may not be within the jurisdiction of the agency to implement, if any;

(6) a discussion of mitigation, stipulations, or other controls committed to and enforceable by the agency or other government agency;

(7) a discussion of any compensation related to impacts stemming from the proposed action;

(8) an explanation of the tradeoffs among the reasonable alternatives;

(9) the agency's preferred alternative, if any, and its reasons for the preference;

(10) a section on consultation and preparation of the draft EIS that includes the following:

(a) the names of those individuals or groups responsible for preparing the draft EIS;

(b) a listing of other agencies, groups, or individuals who were contacted or contributed information; and

(c) a summary list of source materials used in the preparation of the draft EIS;

(11) a summary of the draft EIS as required in ARM 17.4.616; and

(12) other sections that may be required by other statutes in a comprehensive evaluation of the proposed action, or by the National Environmental Policy Act or other federal statutes governing a cooperating federal agency.

History: 2-3-103, 2-4-201, MCA; IMP, 2-3-104, 75-1-201, MCA; NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.618   ADOPTION OF DRAFT ENVIRONMENTAL IMPACT STATEMENT AS FINAL
(1) Depending upon the substantive comments received in response to the draft EIS, the draft statement may suffice. The agency shall determine whether to adopt the draft EIS within 30 days of the close of the comment period on the draft EIS.

(2) In the event the agency determines to adopt the draft EIS, the agency shall notify the governor, the environmental quality council, the applicant, if any, and all commenters of its decision and provide a statement describing its proposed course of action. This notification must be accompanied by a copy of all comments or a summary of a representative sample of comments received in response to the draft statement, together with, at minimum, an explanation of why the issues raised do not warrant the preparation of a final EIS.

(3) The agency shall provide public notice of its decision to adopt the draft EIS as a final EIS.

(4) If the agency decides to adopt the draft EIS as the final EIS, it may make a final decision on the proposed action no sooner than 15 days after complying with (1) through (3) of this rule.

History: 2-3-103, 2-4-201, MCA; IMP, 2-3-104, 75-1-201, MCA; NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.619   PREPARATION AND CONTENTS OF FINAL ENVIRONMENTAL IMPACT STATEMENT
Except as provided in ARM 17.4.618, a final environmental impact statement must include:

(1) a summary of major conclusions and supporting information from the draft EIS and the responses to substantive comments received on the draft EIS, stating specifically where such conclusions and information were changed from those which appeared in the draft;

(2) a list of all sources of written and oral comments on the draft EIS, including those obtained at public hearings, and, unless impractical, the text of comments received by the agency (in all cases, a representative sample of comments must be included) ;

(3) the agency's responses to substantive comments, including an evaluation of the comments received and disposition of the issues involved;

(4) data, information, and explanations obtained subsequent to circulation of the draft; and

(5) the agency's recommendation, preferred alternative, or proposed decision together with an explanation of the reasons therefor.

History: 2-3-103, 2-4-201, MCA; IMP, 2-3-104, 75-1-201, MCA; NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.620   TIME LIMITS AND DISTRIBUTION OF ENVIRONMENTAL IMPACT STATEMENTS
(1) Following preparation of a draft EIS, the agency shall distribute copies to the governor, EQC, appropriate state and federal agencies, the applicant, if any, and persons who have requested copies.

(2) The listed transmittal date to the governor and the EQC must not be earlier than the date that the draft EIS is mailed to other agencies, organizations, and individuals. The agency shall allow 30 days for reply, provided that the agency may extend this period up to an additional 30 days at its discretion or upon application of any person for good cause. When preparing a joint EIS with a federal agency or agencies, the agency may also extend this period in accordance with time periods specified in regulations that implement the National Environmental Policy Act. However, no extension which is otherwise prohibited by law may be granted.

(3) In cases involving an applicant, after the period for comment on the draft EIS has expired, the agency shall send to the applicant a copy of all written comments that were received. The agency shall advise the applicant that he has a reasonable time to respond in writing to the comments received by the agency on the draft EIS and that the applicant's written response must be received before a final EIS can be prepared and circulated. The applicant may waive his right to respond to the comments on the draft EIS.

(4) Following preparation of a final EIS, the agency shall distribute copies to the governor, EQC, appropriate state and federal agencies, the applicant, if any, persons who submitted comments on or received a copy of the draft EIS, and other members of the public upon request.

(5) Except as provided by ARM 17.4.618(4) , a final decision must not be made on the proposed action being evaluated in a final EIS until 15 days have expired from the date of transmittal of the final EIS to the governor and EQC. The listed transmittal date to the governor and EQC must not be earlier than the date that the final EIS is mailed to other agencies, organizations, and individuals.

(6) All written comments received on an EIS, including written responses received from the applicant, must be made available to the public upon request.

(7) Until the agency reaches its final decision on the proposed action, no action concerning the proposal may be taken that would:

(a) have an adverse environmental impact; or

(b) limit the choice of reasonable alternatives, including the no-action alternative.

History: 2-3-103, 2-4-201, MCA; IMP, 2-3-104, 75-1-201, MCA; NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.621   SUPPLEMENTS TO ENVIRONMENTAL IMPACT STATEMENTS

(1) The agency shall prepare supplements to either draft or final environmental impact statements whenever:

(a) the agency or the applicant makes a substantial change in a proposed action;

(b) there are significant new circumstances, discovered prior to final agency decision, including information bearing on the proposed action or its impacts that change the basis for the decision; or

(c) following preparation of a draft EIS and prior to completion of a final EIS, the agency determines that there is a need for substantial, additional information to evaluate the impacts of a proposed action or reasonable alternatives.

(2) A supplement must include, but is not limited to, a description of the following:

(a) an explanation of the need for the supplement;

(b) the proposed action; and

(c) any impacts, alternatives or other items required by ARM 17.4.617 for a draft EIS or ARM 17.4.619 for a final EIS that were either not covered in the original statement or that must be revised based on new information or circumstances concerning the proposed action.

(3) The same time periods applicable to draft and final EISs apply to the circulation and review of supplements.

History: 2-3-103, 2-4-201, MCA; IMP, 2-3-104, 75-1-201, MCA; NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.625   ADOPTION OF AN EXISTING EIS
(1) The agency shall adopt as part of a draft EIS all or any part of the information, conclusions, comments, and responses to comments contained in an existing EIS that has been previously or is being concurrently prepared pursuant to MEPA or the National Environmental Policy Act if the agency determines:

(a) that the existing EIS covers an action paralleling or closely related to the action proposed by the agency or the applicant;

(b) on the basis of its own independent evaluation, that the information contained in the existing EIS has been accurately presented; and

(c) that the information contained in the existing EIS is applicable to the action currently being considered.

(2) A summary of the existing EIS or the portion adopted and a list of places where the full text is available must be circulated as a part of the EIS and treated as part of the EIS for all purposes, including, if required, preparation of a final EIS.

(3) Adoption of all or part of an existing EIS does not relieve the agency of the duty to comply with ARM 17.4.617.

(4) The same time periods applicable to draft and final EISs apply to the circulation and review of EISs that include material adopted from an existing EIS.

(5) The agency shall take full responsibility for the portions of a previous EIS adopted. If the agency disagrees with certain adopted portions of the previous EIS, it shall specifically discuss the points of disagreement.

(6) No material may be adopted unless it is reasonably available for inspection by interested persons within the time allowed for comment.

(7) Whenever part of an existing EIS or concurrently prepared EIS is adopted, the part adopted must include sufficient material to allow the part adopted to be considered in the context in which it was presented in the original EIS.

History: 2-3-103, 2-4-201, MCA; IMP, 2-3-104, 75-1-201, MCA; NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.626   INTERAGENCY COOPERATION
(1) Whenever it is the lead agency responsible for preparation of an EIS, the agency may:

(a) request the participation of other governmental agencies which have special expertise in areas that should be addressed in the EIS;

(b) allocate assignments, as appropriate, for the preparation of the EIS among other participating agencies; and

(c) coordinate the efforts of all affected agencies.

(2) Whenever participation of the agency is requested by a lead agency, the agency shall make a good-faith effort to participate in the EIS as requested, with its expenses for participation in the EIS paid by the lead agency or other agency collecting the EIS fee if one is collected.

History: 2-3-103, 2-4-201, MCA; IMP, 2-3-104, 75-1-201, MCA; NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.627   JOINT ENVIRONMENTAL IMPACT STATEMENTS AND EA'S

(1) Whenever the agency and 1 or more other state agencies have jurisdiction over an applicant's proposal or major state actions that individually, collectively, or cumulatively require an EIS and another agency is clearly the lead agency, the agency shall cooperate with the lead agency in the preparation of a joint EIS. Whenever it is clearly the lead agency, the agency shall coordinate the preparation of the EIS as required by this rule. Whenever the agency and 1 or more agencies have jurisdiction over an applicant's proposal or major state actions and lead agency status cannot be resolved, the agency shall request a determination from the governor.

(2) The agency shall cooperate with federal and local agencies in preparing EISs when the jurisdiction of the agency is involved. This cooperation may include, but is not limited to: joint environmental research studies, a joint process to determine the scope of an EIS, joint public hearings, joint EISs, and, whenever appropriate, joint issuance of a record of decision.

(3) Whenever the agency proposes or participates in an action that requires preparation of an EIS under both the National Environmental Policy Act and MEPA, the EIS must be prepared in compliance with both statutes and associated rules and regulations. The agency may, if required by a cooperating federal agency, accede to and follow more stringent requirements, such as additional content or public review periods, but in no case may it accede to less than is provided for in these rules.

(4) The same general provisions for cooperation and joint issuance of documents provided for in this rule in connection with EISs also apply to EAs.

History: 2-3-103, 2-4-201, MCA; IMP, 2-3-104, 75-1-201, MCA; NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.628   PREPARATION, CONTENT, AND DISTRIBUTION OF A PROGRAMMATIC REVIEW
(1) Whenever the agency is contemplating a series of agency-initiated actions, programs, or policies which in part or in total may constitute a major state action significantly affecting the human environment, it shall prepare a programmatic review discussing the impacts of the series of actions.

(2) The agency may also prepare a programmatic review whenever required by statute, whenever a series of actions under the jurisdiction of the agency warrant such an analysis as determined by the agency, or whenever prepared as a joint effort with a federal agency requiring a programmatic review.

(3) The agency shall determine whether the programmatic review takes the form of an EA or an EIS in accordance with the provisions of ARM 17.4.607 and 17.4.608, unless otherwise provided by statute.

(4) A programmatic review must include, as a minimum, a concise, analytical discussion of alternatives and the cumulative environmental effects of these alternatives on the human environment. In addition programmatic reviews must contain the information specified in ARM 17.4.617 for EISs or ARM 17.4.609 for EAs, as applicable.

(5) The agency shall adhere to the time limits specified for distribution and public comment on EISs or EAS, whichever is applicable.

(6) While work on a programmatic review is in progress, the agency may not take major state actions covered by the program in that interim period unless such action:

(a) is part of an ongoing program;

(b) is justified independently of the program; or

(c) will not prejudice the ultimate decision on the program. Interim action prejudices the ultimate decision on the program if it tends to determine subsequent development or foreclose reasonable alternatives.

(7) Actions taken under (6) of this rule must be accompanied by an EA or an EIS, if required.

History: 2-3-103, 2-4-201, MCA; IMP, 2-3-104, 75-1-201, MCA; NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.629   RECORD OF DECISION FOR ACTIONS REQUIRING ENVIRONMENTAL IMPACT STATEMENTS
(1) At the time of its decision concerning a proposed action for which an EIS was prepared, the agency shall prepare a concise public record of decision. The record, which may be integrated into any other documentation of the decision that is prepared by the agency, is a public notice of what the decision is, the reasons for the decision, and any special conditions surrounding the decision or its implementation.

(2) The agency may include in the final EIS, in addition to a statement of its proposed decision, preferred alternative, or recommendation on the proposed action, the other items required by (1) of this rule, and additional explanation as provided for in (3) of this rule. If the final decision and the reasons for that final decision are the same as set forth in the final EIS, the agency may comply with (1) of this rule by preparing a public notice of what the decision is and adopting by reference the information contained in the final EIS that addresses the items required by (1) of this rule. If the final decision or any of the items required by (1) of this rule are different from what was presented in the final EIS, the agency is responsible for preparing a separate record of decision.

(3) There is no prescribed format for a record of decision, except that it must include the items listed in (1) of this rule. The record may include the following items as appropriate:

(a) brief description of the context of the decision;

(b) the alternatives considered;

(c) advantages and disadvantages of the alternatives;

(d) the alternative or alternatives considered

  environmentally preferable;

(e) short and long-term effects of the decision;

(f) policy considerations that were balanced and considered in making the decision;

(g) whether all practical means to avoid or minimize environmental harm were adopted, and if not, why not; and

(h) a summary of implementation plans, including

  monitoring and enforcement procedures for mitigation, if any.

(4) This rule does not define or affect the statutory decision-making authority of the agency.

History: 2-3-103, 2-4-201, MCA; IMP, 2-3-104, 75-1-201, MCA; NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.632   EMERGENCIES
(1) The agency may take or permit action having a significant impact on the quality of the human environment in an emergency situation without preparing an EIS. Within 30 days following initiation of the action, the agency shall notify the governor and the EQC as to the need for the action and the impacts and results of it. Emergency actions must be limited to those actions immediately necessary to control the impacts of the emergency.
History: 2-3-103, 2-4-201, MCA; IMP, 2-3-104, 75-1-201, MCA; NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.633   CONFIDENTIALITY
(1) Information declared confidential by state law or by an order of a court must be excluded from an EA and EIS. The agency shall briefly state the general topic of the confidential information excluded.
History: 2-3-103, 2-4-201, MCA; IMP, 2-3-104, 75-1-201, MCA; NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.634   RESOLUTION OF STATUTORY CONFLICTS
(1) Whenever a conflicting provision of another state law prevents the agency from fully complying with these rules the agency shall notify the governor and the EQC of the nature of the conflict and shall suggest a proposed course of action that will enable the agency to comply to the fullest extent possible with the provisions of MEPA. This notification must be made as soon as practical after the agency recognizes that a conflict exists, and no later than 30 days following such recognition.

(2) The agency has a continuing responsibility to review its programs and activities to evaluate known or anticipated conflicts between these rules and other statutory or regulatory requirements. It shall make such adjustments or recommendations as may be required to ensure maximum compliance with MEPA and these rules.

History: 2-3-103, 2-4-201, MCA; IMP, 2-3-104, 75-1-201, MCA; NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.635   CONTRACTS AND DISCLOSURE
(1) The agency may contract for preparation of an EIS or portions thereof. Whenever an EIS or portion thereof is prepared by a contractor, the agency shall furnish guidance and participate in the preparation, independently evaluate the statement or portion thereof prior to its approval, and take responsibility for its scope and content.

(2) A person contracting with the agency in the preparation of an EIS must execute a disclosure statement, in affidavit form prepared by the agency, specifying that he has no financial or other interest in the outcome of the proposed action other than a contract with the agency.

History: 2-3-103, 2-4-201, MCA; IMP, 2-3-104, 75-1-201, MCA; NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.636   PUBLIC HEARINGS
(1) Whenever a public hearing is held on an EIS or an EA, the agency shall issue a news release or legal notice to newspapers of general circulation in the area to be affected by the proposed action prior to the hearing. The news release or legal notice must advise the public of the nature of testimony the agency wishes to receive at the hearing. The hearing must be held after the draft EIS has been circulated and prior to preparation of the final EIS. A hearing involving an action for which an EA was prepared must be held after the EA has been circulated and prior to any final agency determinations concerning the proposed action. In cases involving an applicant, the agency shall allow an applicant a reasonable time to respond in writing to comments made at a public hearing, notwithstanding the time limits contained in ARM 17.4.620. The applicant may waive his right to respond to comments made at a hearing.

(2) In addition to the procedure in (1) of this rule, the agency shall take such other steps as are reasonable and appropriate to promote the awareness by interested parties of a scheduled hearing.

(3) The agency shall hold a public hearing whenever requested within 20 days of issuance of the draft EIS by either:

(a) 10% or 25, whichever is less, of the persons who will be directly affected by the proposed action;

(b) by another agency which has jurisdiction over the action;

(c) an association having not less than 25 members who will be directly affected by the proposed action; or

(d) the applicant, if any.

(4) In determining whether a sufficient number of persons have requested a hearing as required by (3) of this rule, the agency shall resolve instances of doubt in favor of holding a public hearing.

(5) No person may give testimony at the hearing as a representative of a participating agency. Such a representative may, however, at the discretion of the hearing officer, give a statement regarding his or her agency's authority or procedures and answer questions from the public.

(6) Public meetings may be held in lieu of formal hearings as a means of soliciting public comment on an EIS where no hearing is requested under (3) of this rule. However, the agency shall provide adequate advance notice of the meeting; and, other than the degree of formality surrounding the proceedings, the objectives of such a meeting are essentially the same as those for a hearing.

History: 2-3-103, 2-4-201, MCA; IMP, 2-3-104, 75-1-201, MCA; NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.701   FEES: DETERMINATION OF AUTHORITY TO IMPOSE

(1) Whenever an application for a lease, permit, contract, license or certificate is expected to result in the agency incurring expenses in excess of $2,500 to compile an EIS, the applicant is required to pay a fee in an amount the agency reasonably estimates, as set forth in this rule, will be expended to gather information and data necessary to compile an EIS.

(2) The agency shall determine within 30 days after a completed application is filed whether it will be necessary to compile an EIS and assess a fee as prescribed by this rule. If it is determined that an EIS is necessary, the agency shall make a preliminary estimate of its costs. This estimate must include a summary of the data and information needs and the itemized costs of acquiring the data and information, including salaries, equipment costs and any other expense associated with the collection of data and information for the EIS.

(3) Whenever the preliminary estimated costs of acquiring the data and information to prepare an EIS total more than $2,500, the agency shall notify the applicant that a fee must be paid and submit an itemized preliminary estimate of the cost of acquiring the data and information necessary to compile an EIS. The agency shall also notify the applicant to prepare and submit a notarized and detailed estimate of the cost of the project being reviewed in the EIS within 15 days. In addition, the agency shall request the applicant to describe the data and information available or being prepared by the applicant which can possibly be used in the EIS. The applicant may indicate which of the agency's estimated costs of acquiring data and information for the EIS would be duplicative or excessive. The applicant must be granted, upon request, an extension of the 15-day period for submission of an estimate of the project's cost and a critique of the agency's preliminary EIS data and information accumulation cost assessment.

History: 75-1-202, MCA; IMP, 75-1-202, 75-1-203, 75-1-205 through 75-1-207, MCA; NEW, 1989 MAR p. 398, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.702   FEES: DETERMINATION OF AMOUNT
(1) After receipt of the applicant's estimated cost of the project and analysis of an agency's preliminary estimate of the cost of acquiring information and data for the EIS, the agency shall notify the applicant within 15 days of the final amount of the fee to be assessed. The fee assessed must be based on the projected cost of acquiring all of the information and data needed for the EIS. If the applicant has gathered or is in the process of gathering information and data that can be used in the EIS, the agency shall only use that portion of the fee that is needed to verify the information and data. Any unused portion of the fee assessed may be returned to the applicant within a reasonable time after the information and data have been collected or the information and data submitted by the applicant have been verified, but in no event later than the deadline specified in these rules. The agency may extend the 15-day period provided for review of the applicant's submittal but not to exceed 45 days if it believes that the project cost estimate submitted is inaccurate or additional information must be obtained to verify the accuracy of the project cost estimate. The fee assessed must not exceed the limitations provided in 75-1-203 (2) , MCA.

(2) If an applicant believes that the fee assessed is excessive or does not conform to the requirements of this rule or Title 75, chapter 1, part 2, MCA, the applicant may request a hearing pursuant to the contested case provisions of the Montana Administrative Procedure Act. If a hearing is held on the fee assessed as authorized by this subsection, the agency shall proceed with its analysis of the project wherever possible. The fact that a hearing has been requested is not grounds for delaying consideration of an application except to the extent that the portion of the fee in question affects the ability of the department to collect the data and information necessary for the EIS.

History: 75-1-202, MCA; IMP, 75-1-202, 75-1-203, 75-1-205 through 75-1-207, MCA; NEW, 1989 MAR p. 398, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.703   USE OF FEE
(1) The fee assessed hereunder may only be used to gather data and information necessary to compile an EIS. No fee may be assessed if an agency intends only to compile an EA or a programmatic review. If a department collects a fee and later determines that additional data and information must be collected or that data and information supplied by the applicant and relied upon by the agency are inaccurate or invalid, an additional fee may be assessed under the procedures outlined in these rules if the maximum fee has not been collected.

(2) Whenever the agency has completed work on the EIS, it shall submit to the applicant a complete accounting of how any fee was expended. If the money expended is less than the fee collected, the remainder of the fee shall be refunded to the applicant without interest within 45 days after work has been completed on the final EIS.

History: 75-1-202, MCA; IMP, 75-1-202, 75-2-203, 75-1-205 through 75-1-207, MCA; NEW, 1989 MAR p. 398, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

17.4.720   FEE ASSESSMENT CATEGORIES: GENERAL REQUIREMENT

(1) The overall estimated cost of a project submitted by the applicant, as required by this rule shall include an itemized list of related costs showing the various component cost breakdown and how the costs were calculated for each component category. The functions of the department have been broken into 2 categories: reclamation and state lands, below. If any of the categories listed are not applicable it shall be so noted and explained if necessary. The list of categories is not exclusive but is intended as a basic guide.

History: 75-1-202, MCA; IMP, 75-1-202, MCA; NEW, Eff. 4/15/76; TRANS, from DSL, 1996 MAR p. 1497.

17.4.721   FEE ASSESSMENT CATEGORIES: HARD ROCK
The Hard Rock Act fee assessment categories are as follows:

(1) Exploration related categories, include, but are not limited to: access rights; land acquisition; application information and preparation; bonding; license fees; resource data inventories; professional services and evaluations; prospecting facilities and construction; equipment; associated disturbance including road construction and renovations; blasting; core drilling; removal and deposition of overburden or other materials; mineral extraction and haulage; water and erosion control measures; and all other exploration activities.

(2) Reclamation related categories, include, but are not limited to: equipment; topsoil and spoil handling; backfilling; regrading; revegetation activities; water and erosion control measures; bulkheads and safety features; and all other reclamation activities.

(3) Contingency costs associated with the project, include but are not limited to the categories listed below: salaries, wages, insurance, fringe benefits, retainers, rents, premiums and all other costs associated with the project.

(4) Mining related activities, include but are not limited to: access rights; land acquisition; application information and preparation; permit fee; bonding; resource data inventories; professional services and evaluations; mining facilities and equipment; blasting; removal and deposition of overburden mine wastes or other materials; associated disturbances including road construction and renovations, leach dumps, conveyor systems, mineral excavation and haulage; water and air pollution controls and all other mining activities.

History: 75-1-202, MCA; IMP, 75-1-202, MCA; NEW, Eff. 4/15/76; TRANS, from DSL, 1996 MAR p. 1497.

17.4.722   FEE ASSESSMENT CATEGORIES: OPEN CUT
The Open Cut Mining Act categories are as follows:

(1) Costs associated with mining, include but are not limited to: pre-mining activities; access rights; land acquisition; application information and preparation; contract fees; resource data inventories; professional services and evaluations; bonding; equipment; road construction and renovation; core drilling; blasting; removal and deposition of overburden and other materials; mineral extraction and haulage and all other mining activities.

(2) Costs associated with reclamation, include but are not limited to: equipment; topsoil salvage, haulage and redistribution; problem spoil or waste handling procedures;

  backfilling; regrading; revegetation activities; erosion control measures and all other reclamation activities.

(3) Contingency costs associated with the project, include but are not limited to: salaries; wages; fringe benefits; insurance; retainers; rents; premiums and all other costs associated with the project.

History: 75-1-202, MCA; IMP, 75-1-202, MCA; NEW, Eff. 4/15/76; TRANS, from DSL, 1996 MAR p. 1497.

17.4.723   FEE ASSESSMENT CATEGORIES: STRIP AND UNDERGROUND MINE SITING
The Strip and Underground Mine Siting Act categories are as follows:

(1) Costs associated with the siting of facilities include but are not limited to: land acquisition; construction and other disturbance activities; blasting; equipment; all facilities, railroad loops and spurs; road construction and renovation; power and transmission lines; resource data inventories covering the proposed mining acreage for the life of the operation; erection of equipment; professional services and evaluations; application information and preparation; permit fee; bonding; waste disposal areas; treatment ponds; water and pollution control measures and all other cost categories related to facility siting projects.

(2) Costs associated with dismantling and removal of facilities and reclamation of all disturbances shall be identified and itemized. The categories include but are not limited to: facility removal activities; necessary equipment; topsoil salvage storage, haulage, and redistribution; problem material burial; waste disposal areas; backfilling; regrading; water and pollution control measures; revegetation activities; testing and monitoring for bond release; and all other facility and associated disturbance reclamation activities.

(3) Contingency costs associated with the project, include but are not limited to: salaries; wages; fringe benefits; insurance; rents; premiums; retainers; and all other costs associated with the project.

History: 75-1-202, MCA; IMP, 75-1-202, MCA; NEW, Eff. 4/15/76; TRANS, from DSL, 1996 MAR p. 1497.

17.4.724   FEE ASSESSMENT CATEGORIES: STRIP AND UNDERGROUND MINE RECLAMATION
The Strip and Underground Mine Reclamation Act categories are as follows:

(1) Prospecting categories, include, but are not limited to: access rights; land acquisition; application information and preparation; bonding; license fees; resource data inventories; professional services and evaluations; equipment; all disturbances including road construction and renovations; core drilling; blasting; removal and deposition of overburden and other materials; mineral extraction and haulage; water and pollution control measures; and all other prospecting activities.

(2) Costs associated with prospecting reclamation, include, but are not limited to: equipment; topsoil salvage, haulage and redistribution; problem spoil; cuttings or waste handling procedures; backfilling; regrading; core hole plugging; sealing of artesian wells or other aquifers; subsidence controls; water and pollution control measures; revegetation activities and all other reclamation activities.

(3) Contingency costs associated with the prospecting project include but are not limited to: salaries; wages; fringe benefits; insurance; rents; premiums; retainers; and all other costs associated with the project.

(4) Costs associated with facility construction, include, but are not limited to: land acquisition; construction and other disturbance activities; blasting; equipment; all facilities, railroad loops and spurs; road construction and renovation; power and transmission lines; resource data inventories on the proposed facility; professional services and evaluations; application information and preparation; erection sites; waste disposal areas; treatment ponds; water and pollution control measures; and other facility related component costs.

(5) Costs associated with mining include but are not limited to: land acquisition; application information and preparation; permit fee; bonding; resource data inventories covering the future mining acreage; professional services and evaluations; equipment; road construction and renovation; waste disposal areas; treatment ponds; water and erosion control measures; blasting; overburden removal and deposition; mineral extraction, haulage, and further processing prior to shipment; and all other mining related activities.

(6) Costs associated with mining reclamation include but are not limited to: equipment; topsoil salvage; haulage and redistribution; problem soil; spoil and debris burial; treatment procedures; highwall reduction; backfilling and subsidence controls; regrading; revegetation activities; water and erosion control measures; post mining spoil, vegetation, and wildlife testing and monitoring for bond release; dismantling and removal of facilities; and all other costs associated with reclamation of facility site and mining disturbance.

(7) Contingency costs associated with the mining project include but are not limited to: salaries; wages; fringe benefits; insurance; rents; premiums; retainers; and all other costs associated with the project.

(8) Coal conservation costs are any additional costs to the mining project incurred because of the coal conservation requirements shall be submitted by the applicant. The various costs should be broken down and itemized under the various categories. All categories, including but not limited to those listed below, should be addressed. The categories are: mining of additional seams; removal of pit wedges; change in mining plans and all other related coal conservation categories.

History: 75-1-202, MCA; IMP, 75-1-202, MCA; NEW, Eff. 4/15/76; TRANS, from DSL, 1996 MAR p. 1497.

17.4.725   DEPARTMENTAL ASSISTANCE TO APPLICANTS
(1) The department will make every effort to assist the applicant in preparing an estimated cost of a project. Furthermore, the department will make appropriate personnel available to the applicant to discuss the department's estimated cost of compiling the information and data necessary for the EIS. After a fee has been collected and work on the compilation of data and information necessary for the EIS is begun, it is the intention of the department to return all unused or unneeded portions of the fee as promptly as possible.
History: 75-1-202, MCA; IMP, 75-1-202, MCA; NEW, Eff. 4/15/76; TRANS, from DSL, 1996 MAR p. 1497.

17.4.801   APPLICABILITY

(1) The rules in this subchapter apply to a person who submits electronic documents to the department, or to the U.S. Environmental Protection Agency (EPA), pursuant to a specific rule of the board or department or pursuant to a department permit or license condition that allows submission of electronic documents in lieu of paper documents and that requires conformance with this subchapter.

(2) The rules in this subchapter do not apply to a person who submits a document via:

(a) facsimile transmission; or

(b) magnetic or optical media such as a diskette, compact disc, digital video disc, or tape.

History: 30-18-118, MCA; IMP, 30-18-117, MCA; NEW, 2011 MAR p. 1135, Eff. 6/24/11.

17.4.802   DEFINITIONS

(1) For the purposes of this subchapter, the following definitions apply:

(a) "Electronic record" means any electronic record, as defined in 30-18-102, MCA, that is submitted to the department or to EPA, pursuant to this subchapter.

(b) "Electronic record receiving system" means the information processing system, including the apparatus, procedures, software, records, and documentation, established and used by the department or EPA to receive electronic records submitted pursuant to this subchapter.

(c) "Electronic signature" has the meaning given in 30-18-102, MCA.

(d) "Electronic signature device" means a code, such as a password, or other mechanism that is used to create electronic signatures. The code or mechanism must be unique to the individual person creating the signature at the time the signature is created, and that person must be uniquely entitled to use it.

(e) "Electronic subscriber agreement" means a written agreement prepared by the department and signed by an individual person with respect to submittal of electronic records to the department, requiring the individual to:

(i) protect any account security information from compromise;

(ii) promptly report to the department any evidence discovered that account security information has been compromised;

(iii) be held as legally bound, obligated, or responsible by the submittal and content of electronic records as by the submittal and content of paper documents for which the electronic records are substituted; and

(iv) for electronic records submitted by the person in lieu of paper documents on which a signature is required:

(A) protect the person's electronic signature device from compromise;

(B) promptly report to the department any evidence discovered that the person's electronic signature device has been compromised; and

(C) be held as legally bound, obligated, or responsible by the electronic signature created as by a handwritten signature.

(f) "Handwritten signature" means the scripted name or legal mark of an individual, handwritten by that individual, with the present intention to authenticate a writing in a permanent form.

(g) "Information" has the meaning given in 30-18-102, MCA.

(h) "Information processing system" has the meaning given in 30-18-102, MCA.

(i) "Record" has the meaning given in 30-18-102, MCA.

(j) "Signatory" means an individual who is authorized to sign, and who signs, a record submitted to the department's or EPA's electronic record receiving system, pursuant to an electronic subscriber agreement.

(k) "Valid electronic signature" means an electronic signature on an electronic record that has been created with an electronic signature device that the identified signatory is uniquely entitled to use for signing that record, when the device has not been compromised and the signatory is an individual person who is authorized to sign the record by virtue of legal status or relationship to the entity on whose behalf the signature is executed.

History: 30-18-118, MCA; IMP, 30-18-102, 30-18-117, MCA; NEW, 2011 MAR p. 1135, Eff. 6/24/11.

17.4.803   USE OF ELECTRONIC RECORD RECEIVING SYSTEM

(1) If the board or department has adopted a rule, or, if the department has issued a permit or license that includes a provision or condition allowing submission of an electronic record pursuant to this subchapter in lieu of submission of a paper document, a person who submits an electronic record pursuant to the rule, permit, or license shall submit the record to the department's electronic record receiving system that is appropriate for the particular record, or an authorized EPA electronic record receiving system, such as EPA's NetDMR system, that meets the requirements of 40 CFR Part 3, EPA's Cross-Media Electronic Reporting Regulation, and that is appropriate for the particular record.

(2) All electronic records submitted pursuant to this subchapter must bear a valid electronic signature of a signatory if the signatory would be required to sign the paper document for which the electronic record is substituted.

(3) A person submitting an electronic record pursuant to this subchapter is legally bound, obligated, or responsible by the submittal and content of the record to the same extent as by the submittal and content of the paper document for which the electronic record is substituted.

History: 30-18-118, MCA; IMP, 30-18-117, MCA; NEW, 2011 MAR p. 1135, Eff. 6/24/11.

17.4.804   ELECTRONIC SUBSCRIBER AGREEMENT

(1) Before submitting an electronic record pursuant to a specific rule of the board or department or a department permit or license condition that allows submission of electronic records in lieu of paper documents and that requires conformance with this subchapter, a person shall first execute a written electronic subscriber agreement on a form provided by the department and submit the original signed paper agreement by U.S. Mail or hand delivery to the department staff member designated in the rule, permit, or license.

(2) The agreement form may be obtained from the department or downloaded and printed from the department's web site and must include the following agreements by each person who will submit electronic records:

(a) to protect the person's account security information and any required electronic signature device from compromise and from use by anyone other than that person;

(b) to contact the department staff member designated in the rule, permit, or license as soon as possible, but no later than one business day, after suspecting or determining that the person's account security information or any required electronic signature device has become lost, stolen, or otherwise compromised;

(c) to review the contents of all electronic submissions prior to submission;

(d) to be held as legally bound, obligated, or responsible by the submittal and content of electronic records as by the submittal and content of the paper documents for which the electronic records are substituted;

(e) for a person submitting an electronic record for which a signature is required, to be obligated and legally bound by use of an electronic signature in the same manner as with a handwritten signature;

(f) to contact the department staff member designated in the rule, permit, or license within five business days after submitting an electronic record pursuant to this subchapter if the person submitting the record does not receive an electronic notification identifying the record received, the signatory or other person submitting the record, and the date and time of receipt;

(g) if the person represents any person or entity other than himself or herself as an individual, to notify the department staff member designated in the rule, permit, or license if the person ceases to represent the other person or entity, as soon as this change in relationship occurs; and

(h) to retain a copy of the electronic subscriber agreement as long as the person is a signatory, or otherwise is responsible, for electronic submissions to the department or EPA pursuant to this subchapter.

(3) The identity and authority of each person submitting an electronic subscriber agreement must be verified by the department. After the department has completed the verification, the department shall notify the person electronically, forward account security information, as applicable, and issue an electronic signature device to the person, if the person will be submitting records for which a signature is required.

History: 30-18-118, MCA; IMP, 30-18-117, MCA; NEW, 2011 MAR p. 1135, Eff. 6/24/11.

17.4.805   VALID ELECTRONIC SIGNATURE

(1) When a person uses an electronic signature device to create the person's electronic signature, the code or mechanism must be unique to that person at the time the signature is created.

(2) An authorized signatory may not allow another person to use the electronic signature device unique to his or her electronic signature.

(3) A signatory shall protect his or her electronic signature device from use by any other person and shall report to the department staff member designated in the rule, permit, or license, within one business day of discovery, any evidence that the security of the device has been compromised.

History: 30-18-118, MCA; IMP, 30-18-117, MCA; NEW, 2011 MAR p. 1135, Eff. 6/24/11.

17.4.806   EFFECT OF ELECTRONIC SIGNATURE

(1) The presence of an electronic signature on an electronic record submitted pursuant to this subchapter establishes that the signatory intended to sign the electronic record and submit it to fulfill the purpose of the record.

(2) When an electronic record submitted pursuant to this subchapter bears an electronic signature, the electronic signature obligates and legally binds the person to the same extent as the signatory's handwritten signature on a paper document submitted to satisfy the same requirement.

History: 30-18-118, MCA; IMP, 30-18-108, 30-18-117, MCA; NEW, 2011 MAR p. 1135, Eff. 6/24/11.

17.4.807   ENFORCEMENT

(1) If a person submitting an electronic record pursuant to this subchapter fails to comply with a requirement of this subchapter or a requirement of an electronic subscriber agreement, the person is subject to the same penalties or other remedies available for failure to submit the record.

(2) Nothing in this subchapter is intended to limit the use of an electronic record, copy of an electronic record, or other information derived from an electronic record as evidence in an enforcement proceeding or other proceeding.

History: 30-18-118, MCA; IMP, 30-18-117, MCA; NEW, 2011 MAR p. 1135, Eff. 6/24/11.