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| Montana Administrative Register Notice 17-429 | No. 8 04/28/2023 | |
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BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On July 25, 2023, the Department of Environmental Quality proposes to amend and repeal the above-stated rules.
2. The Department of Environmental Quality will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Environmental Quality no later than 5:00 p.m. on May 19, 2023, to advise us of the nature of the accommodation that you need. Please contact the Department of Environmental Quality at P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-1388; fax (406) 444-4386; or e-mail DEQ_MFSA_Rules_Phase1@mt.gov.
3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:
17.20.202 GEOTHERMAL EXPLORATION PLANS (1)
(6) remains the same, but is renumbered (3).
AUTH: 75-20-1001, MCA IMP: 75-20-1001, MCA
REASON: The proposed amendment to (1) and deletion in (2) and (3) remove the requirement to submit hard copy application material to the department because the department is moving toward electronic submission of application material. The proposed amendment to strike out (4) and (5) is due to the removal of hard copy application requirements as the department is moving toward electronic submission of application material. The proposed amendment to new (4) specifies what changes to a geothermal exploration plan need to be submitted to the department. Also, the proposed amendment to new (4) removes an arbitrary time line for submission to the department because the statutory reference provides the time line. This proposed amendment makes any changes to a geothermal exploration plan consistent with other types of facilities covered by the Major Facility Siting Act (MFSA).
17.20.203 INITIAL FIELD REPORTS (1) (2) Within each initial field report shall be included: (a) a description, including an electronic map in a format acceptable to the department, of the area involved in the investigation shown on a suitable map, and the probable location of test holes, sample sites, access roads, staging areas, areas where trees or soil are to be removed, and all other such activities (b) and (c) remain the same.
AUTH: 75-20-1001, MCA IMP: 75-20-1001, MCA
REASON: The proposed amendment to (1) removes the number of days before exploration activities begin that a geothermal exploration application would need to be filed with the department. Currently in the MFSA rules, the only facility to have such application filing timelines are geothermal exploration applications. The proposed amendment would make all facilities covered under MFSA consistent regarding when a facility needs to apply for the department's approval. The proposed amendment in (2)(a) removes the requirement to submit hard copy application material to the department because the department is moving toward electronic submission of application material.
17.20.204 PERIODIC FIELD REPORTS (1) Sixty days after the initiation of the boring of test holes or the initiation of other underground exploration, investigation, or experimentation, related to the possible future development of geothermal resources, and at 60-day intervals for the duration of the investigation, every person shall submit a periodic field report to the department in an electronic format acceptable to the department. (2) Each periodic field report for its reporting period shall include: (a) through (f) remain the same. (g) the kinds of sampling, such as coring or cuttings taken
AUTH: 75-20-1001, MCA IMP: 75-20-1001, MCA
REASON: The proposed amendment to (1) adds the requirement that periodic field reports be submitted in an electronic format acceptable to the department because the department is moving toward electronic submission of documents. The proposed amendment to (2)(h) removes the reference to other items the department may require. The proposed amendment would remove this requirement because it is unnecessary since other items needed by the department should be required in the environmental specifications for the project and consultation with the applicant should occur. The proposed amendment would make all facilities covered under MFSA consistent regarding when a facility needs additional reporting requirements.
17.20.205 FINAL FIELD REPORTS (1)
(5) and (6) remain the same, but are renumbered (2) and (3).
AUTH: 75-20-1001, MCA IMP: 75-20-1001, MCA
REASON: The proposed amendment to (1) removes the number of days following cessation of a geothermal exploration project by which a final report would need to be filed with the department. The filing of a final report is required and there is no need for the department to receive the report by a certain deadline. Currently in the MFSA rules, the only facility to have such deadlines are geothermal exploration applications. This proposed amendment would make all facilities covered under MFSA consistent. The proposed amendment in (1) and the deletion of (2), (3), and (4) remove the requirement to submit hard copy application materials to the department because the department is moving toward electronic submission of materials.
17.20.206 GEOLOGICAL REPORTS (1) Within 9 months of the initiation of the investigation or 6 months of the completion of the investigation, whichever comes first, and at intervals of 6 months for the duration of the investigation, every person shall submit a geological report to the department in an electronic format acceptable to the department.
(5) remains the same, but is renumbered (2).
AUTH: 75-20-1001, MCA IMP: 75-20-1001, MCA
REASON: The proposed amendment in (1) and the deletion of (2), (3), and (4) remove the requirement to submit hard copy application materials to the department because the department is moving toward electronic submission of materials.
17.20.301 DEFINITIONS Unless the context requires and clearly states otherwise, in these rules: (1) through (7) remain the same. (8) "Associated powerline" means an associated facility consisting of an electrical distribution or transmission line that: (a) is not a facility defined in 75-20-104 (b) through (20) remain the same. (21) "Facility location" means a location for a linear facility accurately depicted to within 250 feet unless otherwise specified by the department by a line one millimeter or less in width drawn on a 1:24,000 map, and which may or may not be surveyed. (a) and (b) remain the same. (c) " (22) through (33) remain the same. (34) "Paralleling" means locating a proposed linear facility directly adjacent to or overlapping the right-of-way of an existing linear utility, transportation or communication facility. Paralleling requires that all facilities continue to meet all safety and building code protections. (35) through (38) remain the same. (39) "Site" means the parcel of land the applicant would acquire to construct the buildings, components, and nonlinear associated facilities comprising an energy generation (a) "Proposed site" means the applicant's proposed location for an energy generation (40) through (42) remain the same.
REASON: The proposed amendment in (8)(a) corrects the statutory reference. The statutory provision that used to be set forth in 75-20-104(8)(c) is now set forth in 75-20-104(10)(a)(i) through (v), MCA. The proposed amendment in (21)(c) would change the name of the applicant's desired alternative location from "preferred facility location" to "proposed facility location." The amendment would align with the language of other regulatory requirements, like the Montana Environmental Policy Act (MEPA), which uses the wording of proposed action. Stakeholders have an understanding that the proposed action or proposed facility location is the applicant's proposal that was submitted to the department for a certificate. Calling a certain alternative the preferred alternative prior to the analysis under MEPA and MFSA may sound pre-decisional to some stakeholders, as though the department not the applicant has already selected a favorite alternative. The proposed amendment in (34) sets forth conditions on the paralleling of existing facilities to take into consideration safety and building codes. Paralleling existing features cannot have their reliability and integrity potentially put into jeopardy with consideration of safety and building codes. The proposed amendments in (39) remove conversion facilities as MFSA no longer regulates this type of project as set forth in 75-20-104(10), MCA.
17.20.303 FORMAT (1) Documents required by the Act and explained in these rules must be (2) remains the same. (3) Maps, drawings, charts, photographs or other illustrations may accompany a document as separate attachments that are sized and scaled appropriately to the material presented. (4)
REASON: The proposed amendment in (1) removes the requirement to submit hard copy application materials to the department because the department is moving toward electronic submission of materials. The proposed amendment in (3) removes requirements that refer to hard copy application materials because the department is moving toward electronic submission of materials. The proposed amendment in (4) clarifies unclear instructions that suggest that every document must state the required information in (4). Instead the proposed change simply requires that the applicant provide the required information as part of the application.
17.20.605 CONTENTS OF (1) through (4) remain the same, but are renumbered (a) through (d).
REASON: The proposed amendment removes two words from the rule title to better reflect the contents of the existing rule, which does not discuss notice. The renumbering of the rule complies with Secretary of State formatting guidelines.
17.20.802 APPLICATION, NUMBER OF COPIES (1) The applicant shall submit
REASON: The proposed amendment in (1) removes the requirement to submit hard copy application materials to the department because the department is moving toward electronic submission of materials.
17.20.803 APPLICATION, FORMAT (1) An application (2) remains the same. (3) An application (a) through (h) remain the same. (i) all maps (j) technical reports, reference or source documents, and other supplementary material provided by the applicant shall be presented as separate, consecutively arranged attachments, beginning with "Attachment
REASON: The proposed amendments in (1) and (3)(i) remove requirements to submit hard copy application materials to the department because the department is moving toward electronic submission of materials.
17.20.806 CHANGES IN AN APPLICATION (1) Pursuant to 75-20-213(2), MCA, an applicant may change or add to an application. The applicant
REASON: The proposed amendment in (1) removes the required use of hard copy communication methods and application material as the department is moving toward electronic systems.
17.20.807 AMENDMENT TO APPLICATION--NEW APPLICATION (1) The department may determine that a change or addition to an application submitted by the applicant pursuant to ARM 17.20.805 or 17.20.806 requires an amendment to the original application and additional filing fees as provided by 75-20-213, MCA, if the change or addition would be likely to involve the following: (a) significantly increased or significantly different environmental impacts than would have been likely based on the information contained in the original application; (b) through (5) remain the same.
REASON: The proposed amendment in (1)(a) is the addition of the clarifying word "significantly" to be more consistent with the rest of the section of the rule, which refers to "significant" changes. The proposed amendment removes any vagueness that could be interpreted with the original text that implied any increase.
17.20.901 GENERATION
AUTH: 75-20-105, MCA IMP: 75-20-211, MCA
REASON: The proposed amendment removes "conversion facilities" from the title of the rule as MFSA no longer regulates this type of project as set forth in 75-20-104(10), MCA.
17.20.1301 GENERATION
REASON: The proposed amendment removes "conversion facilities" from the title of the rule as MFSA no longer regulates this type of project as set forth in 75-20-104(10), MCA.
17.20.1302 GENERATION (1) through (5) remain the same.
REASON: The proposed amendment removes "conversion facilities" from the title of the rule as MFSA no longer regulates this type of project as set forth in 75-20-104(10), MCA.
17.20.1418 ENERGY GENERATION
REASON: The proposed amendment removes "conversion facilities" from the title of the rule as MFSA no longer regulates this type of project as set forth in 75-20-104(10), MCA.
17.20.1426 LINEAR FACILITIES, GENERAL REQUIREMENTS OF THE ALTERNATIVE SITING STUDY (1) remains the same. (2) The
AUTH: 75-20-105, MCA IMP: 75-20-211, MCA
REASON: The department proposes to adopt and incorporate by reference various amendments to Circular MFSA-2 to align the circular with the rule amendments being proposed in this notice. The proposed amendments are summarized as follows: Amendments are proposed throughout Circular MFSA-2 to remove requirements to submit hard copy application materials to the department because the department is moving toward electronic submission of application material. These amendments are proposed in Sections 2, 3.3, 3.4, 3.6, 3.7, and 3.8. The proposed amendment in Section 2(13)(c) would change the name of the applicant's desired alternative location from "preferred facility location" to "proposed facility location." The amendment would align with the proposed amendment to the definitions in ARM 17.20.301 and with the language of other regulatory requirements, like the Montana Environmental Policy Act (MEPA), which uses the wording of "proposed action." Stakeholders have an understanding that the proposed action or proposed facility location is the applicant's proposal that was submitted to the department for a certificate. Calling a certain alternative the preferred alternative prior to the analysis under MEPA and MFSA may sound pre-decisional to some stakeholders, as though the department not the applicant has already selected a favorite alternative. The proposed amendment in Section 2(20) would align the definition of "paralleling" with the proposed amendment to the definitions in ARM 17.20.301 and sets forth conditions on the paralleling of existing features to take into consideration safety and building codes. Paralleling existing features cannot have their reliability and integrity potentially put into jeopardy with consideration of safety and building codes. The proposed amendment in Section 3.7(2) would add a requirement that the applicant must include military training routes on the baseline mapping for the department. In the past, these have not been on FAA Sectional Maps and are needed in the analysis of overhead facilities. The proposed amendment in Section 3.10(1)(c) replaces an incorrect internal reference and updates the wording from "preferred" to "proposed" to reflect amendments to the definitions. Finally, several housekeeping amendments are proposed to correct the numbering of definitions in Section 2 and to correct a grammatical error in Section 3.7(12).
17.20.1501 ENERGY GENERATION (1) An application for an energy generation
REASON: The proposed amendment removes "conversion facilities" from the title of the rule as MFSA no longer regulates this type of project as set forth in 75-20-104(10), MCA. The proposed amendment in (1) removes fossil-fueled facilities and other facilities that utilize transportable energy resources from the rule as MFSA no longer regulates these types of projects as set forth in 75-20-104(10), MCA.
17.20.1502 ENERGY GENERATION (6) An application must contain a
REASON: The proposed amendment removes "conversion facilities" from the title of the rule as MFSA no longer regulates this type of project as set forth in 75-20-104(10), MCA. The proposed amendment in (6) removes the use of hard copy application material as the department is moving toward electronic submission of materials.
17.20.1503 ENERGY GENERATION (2) An application for a generation (a) plans for (b) through (f) remain the same.
REASON: The proposed amendment removes "conversion facilities" from the title of the rule and in (2) as MFSA no longer regulates this type of project as set forth in 75-20-104(10), MCA. The proposed amendment in (2)(a) removes construction camps from the rule as the department has determined that construction camps are not a facility pursuant to 75-20-104(10), MCA, or an associated facility pursuant to 75-20-104(3)(a), MCA.
17.20.1509 LINEAR FACILITIES, DESIGN CHARACTERISTICS (1) through (5) remain the same. (6) For an electric transmission facility, an application must include an estimate of radio and television interference, and electric and magnetic field strengths. This information on electric and magnetic fields must be provided for cross-sections of the right-of-way and must include maximum conditions under the conductors and at the edge of the right-of-way or easement, and attenuation rates beyond the edge of the right-of-way. (7) through (9) remain the same. (10) For pipeline, an application must contain a description of the source of power for pump and compressor stations and indicate on maps, in electronic format acceptable to the department, (11) and (12) remain the same.
AUTH: 75-20-105, MCA
REASON: The proposed amendment in (6) is the removal of information regarding substations. MFSA no longer covers substations pursuant to 75-20-104(3)(b), MCA. The proposed amendment in (10) removes the use of hard copy application material as the department is moving toward electronic submission of materials.
17.20.1510 LINEAR FACILITIES, ELECTRIC TRANSMISSION FACILITIES, CONSTRUCTION DESCRIPTION (1) through (4) remain the same.
(6) and (7) remain the same, but are renumbered (5) and (6).
REASON: The proposed amendment in (5) removes the data regarding the use of construction camps from the rules as the department has determined that construction camps are not a facility pursuant to 75-20-104(10), MCA, or associated facility pursuant to 75-20-104(3)(a), MCA.
17.20.1511 LINEAR FACILITIES, PIPELINE FACILITIES, CONSTRUCTION DESCRIPTION (1) through (8) remain the same.
(10) and (11) remain the same, but are renumbered (9) and (10).
REASON: The proposed amendment in (9) removes the data regarding the use of construction camps from the rules as the department has determined that construction camps are not a facility pursuant to 75-20-104(10), MCA, or associated facility pursuant to 75-20-104(3)(a), MCA.
17.20.1605 ENERGY GENERATION (6) For each facility and associated facilities, a certificate of environmental compatibility must contain: (a) through (d) remain the same. (e) a (7) remains the same.
REASON: The proposed amendment removes "conversion facilities" from the title of the rule as MFSA no longer regulates this type of project as set forth in 75-20-104(10), MCA. The proposed amendment in (6)(e) removes the use of hard copy application material as the department is moving toward electronic submission of materials.
17.20.1801 NOTIFICATION OF PROPOSED CHANGE OR ADDITION TO A FACILITY OR ASSOCIATED FACILITY FOR WHICH A CERTIFICATE HAS BEEN GRANTED (1) If a certificate holder desires to change or add to a facility or associated facility for which a certificate has been granted, the certificate holder shall file a notice for a certificate amendment with the department (1) through (4) remain the same, but are renumbered (a) through (d).
REASON: The proposed amendment removes the use of hard copy application material and notice as the department is moving toward electronic submission of materials. The renumbering of the rule complies with Secretary of State formatting guidelines.
17.20.1902 LINEAR FACILITIES, MONITORING REQUIREMENTS (1) through (3) remain the same. (4) (a) (i) through (8) remain the same. (9) If a construction and reclamation bond is required by the certificate pursuant to (a) through (12) remain the same.
REASON: The proposed amendment in (4)(a) removes the use of hard copy application material as the department is moving toward electronic submission of materials. The proposed amendment in (9) replaces an incorrect internal reference with the correct statutory reference for the reclamation bonds.
4. The department proposes to repeal the following rules:
17.4.501 OPPORTUNITY FOR PUBLIC COMMENT AFTER APPLICATION RECEIVED
REASON: The department proposes to repeal this rule because it duplicates the public notice process already required under the Montana Environmental Policy Act as well as for other approvals that may be required, including Montana Pollutant Discharge Elimination System (MPDES) permits in ARM Title 17, chapter 30, subchapter 13. MFSA requires the applicant to submit three siting alternatives for review. If the department approves the project, only one alternative would be selected. This rule requires the department to provide public notice of details related to all three alternatives. Regarding the MPDES information, each alternative may have dozens of outfalls. This process is overwhelming and inefficient for applicants, the department, and the public because two of the alternatives would not be selected and thus would not require an MPDES permit. Public comment on the MPDES permit for the selected alternative would still be accepted through the existing process. The public would also still be able to review and comment on all alternatives through the existing MEPA public process.
17.4.502 PUBLIC HEARING AFTER PRELIMINARY DECISION
REASON: The department proposes to repeal this rule as it requires the department to make a preliminary decision on issuing permits for a proposed project, and seek public comment on that preliminary decision, before completing review of the related permit applications or approving the MFSA application. Issuing a preliminary decision on permits prior to the completion of the Montana Environmental Policy Act (MEPA) review is pre-decisional and problematic for the process and project as full analysis has not been completed by the department and new data could impact decision making. This rule is also a duplicate of the existing process required for Montana Pollutant Discharge Elimination System (MPDES) permits in ARM Title 17, chapter 30, subchapter 13.
5. A copy of the proposed amendments to Circular MFSA-2 may be viewed at the department's website using the following path: https://deq.mt.gov/Files/DEQAdmin/MFS/Circulars/Circular2.pdf. Copies may also be obtained by contacting Craig Jones at (406) 444-0514 or crajones@mt.gov.
6. Concerned persons may submit their data, views, or arguments concerning the proposed actions in writing to: Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-1388; fax (406) 444-4386; or e-mail at DEQ_MFSA_Rules_Phase1@mt.gov, and must be received no later than 5:00 p.m., May 26, 2023.
7. If persons who are directly affected by the proposed actions wish to express their data, views, or arguments orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments to the department at the above address no later than 5:00 p.m., May 15, 2023.
8. If the agency receives requests for a public hearing on the proposed action from either 10 percent or 25, whichever is less, of the persons directly affected by the proposed action; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date. Notice of the hearing will be published in the Montana Administrative Register. Ten percent of those directly affected has been determined to be three persons based on the interested parties list that the department keeps.
9. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the department as stated above or may be made by completing a request form at any rules hearing held by the department.
10. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sosmt.gov/ARM/Register.
11. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
12. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment and repeal of the above-referenced rules and Circular will not significantly and directly impact small businesses.
/s/ Nicholas Whitaker /s/ Christopher Dorrington NICHOLAS WHITAKER CHRISTOPHER DORRINGTON Rule Reviewer Director Department of Environmental Quality
Certified to the Secretary of State April 18, 2023.
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A directory of state agencies is available online at http://www.mt.gov/govt/agencylisting.asp.
For questions about the organization of the ARM or this web site, contact sosarm@mt.gov.
