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| Montana Administrative Register Notice 17-436 | No. 23 12/08/2023 | |
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BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On January 11, 2024, at 1:00 p.m., the Department of Environmental Quality (department) will hold an in-person public hearing in Room 111 of the Metcalf Building, at 1520 E. Sixth Avenue, Helena, Montana, to consider the proposed amendment and repeal of the above-stated rules. Interested parties may also attend the hearing electronically in the following ways:
https://mt-gov.zoom.us/j/89460669380?pwd=TlplQzNScEJvZXQ5NW1jKzVQc0JvQT09 Passcode: 991105 Or One tap mobile : +12063379723,,89460669380#,,,,*991105# US (Seattle) +12133388477,,89460669380#,,,,*991105# US (Los Angeles) Or Telephone: Dial (for higher quality, dial a number based on your current location): +1 206 337 9723 US (Seattle) +1 213 338 8477 US (Los Angeles) +1 646 558 8656 US (New York) Webinar ID: 894 6066 9380 Passcode: 991105 International numbers available: https://mt-gov.zoom.us/u/keAgMaTpKZ
Or an H.323/SIP room system: H.323: 162.255.37.11 (US West) 162.255.36.11 (US East) 69.174.57.160 (Canada Toronto) 65.39.152.160 (Canada Vancouver) Meeting ID: 894 6066 9380 Passcode: 991105 SIP: 89460669380@zoomcrc.com Passcode: 991105
2. The department 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 no later than 5:00 p.m., on January 2, 2024, to advise us of the nature of the accommodation that you need. Please contact the department at P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-1388; fax (406) 444-4386; or e-mail at DEQAsbestosRule@mt.gov.
3. The rules proposed to be amended provide as follows, new matter underlined, deleted matter interlined:
17.74.350 INCORPORATION BY REFERENCE -- PUBLICATION DATES (1) Unless expressly provided otherwise, whenever there is a reference in this subchapter to a federal regulation, the reference is to the July 1,
AUTH: 75-2-503, MCA IMP: 75-2-503 MCA
REASON: The department proposes to amend (1) to adopt the most current version of the CFR, maintaining parity with federal regulations. This allows the department to comply with 75-2-503(1), MCA; meet federal stringency requirements; and maintain the state program's EPA delegation. Section (2) was added in 2020 as part of MAR Notice No. 17-410 to inform the public where it can access regulations incorporated by reference in this subchapter. However, ARM 17.74.351(2) already contains this information. Accordingly, (2) was unnecessarily added in 2020 and is proposed to be removed in this rulemaking.
17.74.351 INCORPORATION BY REFERENCE (1) (a) 40 CFR 61, subparts A and M, pertaining to national emission standards for hazardous air pollutants (NESHAPs) for asbestos.
(b) National Institute of Occupational Safety and Health (NIOSH) Manual of Analytical Methods, (c) remains the same. (d) The following sections of 40 CFR 763 Asbestos Hazard Emergency Response Act (AHERA) Model Accreditation Plan (MAP) Appendix C to Subpart E: (i) section B.1, Workers; (ii) section B.2, Contractor Supervisor; (iii) section B.3, Inspector; (iv) section B.4, Management Planner; and (v) section B.5, Project Designer. (2) remains the same.
AUTH: 75-2-503, MCA IMP: 75-2-503, MCA
REASON: The department proposes to amend (1) to generally note that exceptions to the incorporated material are specified elsewhere in this subchapter. The department is proposing to strike (1)(a)(i) as this exception to the federal asbestos NESHAP is addressed in ARM 17.74.353(1)(a) (permit requirements) and is not necessary here. The proposed amendments to (1)(b) would adopt the current version of the NIOSH Manual of Analytical Methods to maintain parity with federal regulations and to incorporate updates in the scientific process for analyzing asbestos fibers. The proposed inclusion of (1)(d) provides for the incorporation of materials currently referenced in ARM 17.74.365 under "training course requirements."
17.74.352 DEFINITIONS For purposes of this subchapter, unless otherwise provided, the following definitions apply. The terms must be used in conjunction with the definitions in 75-2-502, MCA, and 40 CFR 61.141:
(1) "Alternate work practice" means proposed alternative control measures, methods for clearing asbestos projects, or work methods other than those specified in this subchapter that are at least as stringent as the methods required in this subchapter. (2) remains the same. (3) "Approved asbestos disposal facility" or "disposal facility" means a licensed Class II or Class IV landfill as described in ARM 17.50.504. (4) and (5) remain the same. (6) "Asbestos contractor/supervisor" means an individual with the requisite training and credentials to supervise an asbestos project and the personnel conducting an asbestos project.
(9) remains the same.
(14) remains the same but is renumbered (11). (12) "Asbestos worker" means an individual with the requisite training and credentials to handle asbestos-containing materials during an asbestos project.
(16) and (17) remain the same, but are renumbered (13) and (14).
(25) remains the same, but is renumbered (15).
(27) remains the same, but is renumbered (16).
(a) and (b) remain the same. (29) and (30) remain the same, but are renumbered (18) and (19).
(20) "Owner or operator" has the meaning given for "owner or operator of a renovation or demolition activity" in 40 CFR 61.141. (21) "Pipe," as the term is used in this subchapter and 75-2-502(3), MCA, includes any coating or wrap made of regulated asbestos-containing material that partially or wholly covers the inner or outer surface of the pipe. (22) "Project design" means a site-specific written plan including specifications, project procedures, containment design/placement, and descriptions of engineering controls that detail the handling of asbestos-containing material during an asbestos project. (35) remains the same, but is renumbered (23).
(37) remains the same, but is renumbered (24).
(a) identifying all ACM that (b) remains the same.
AUTH: 75-2-503, MCA IMP: 75-2-503, MCA
REASON: The department is proposing to refine much of the definitions rule, stressing that defined terms in 75-2-502, MCA, and 40 CFR part 61.141 likewise apply to this subchapter. The department proposes the removal of "asbestos project," "asbestos-related occupation," demolition," "department," "emergency renovation operation," "facility," "glove bag," "person," "regulated asbestos containing material," renovation," and "structural member," as those terms are already defined within statute or regulations incorporated by reference. The department proposes to remove the definitions of "amended water," "background level," "encapsulation," "enclosure," and "repair", as those terms are used only in rules that the department is proposing to repeal, making the definitions unnecessary. The department proposes to delete the definition for the phrase "engaged in an asbestos-related occupation," because the current definition is not inclusive of all tasks undertaken by persons involved in an asbestos-related occupation and the definition is not necessary to implement this subchapter. The department is proposing to amend the definitions for certain asbestos-related occupations (asbestos contractor/supervisor, asbestos inspector, asbestos management planner, and asbestos worker) in two ways. First, the department is proposing to remove the word "project" from the terms being defined (e.g., "asbestos project worker" will become "asbestos worker"). This change would align the terms with how the occupations are described in the Asbestos Control Act and federal regulations. Second, the department is proposing to amend the definitions of certain asbestos-related occupations to refer to the training and credentials required to be accredited in that occupation. This change aligns the terminology to reflect that found in the EPA's Model Accreditation Plan. The department is proposing to add "alternate work practice" in (1) to properly define the term and its scope as it is used repeatedly in rule. In (3), the department is proposing to add "or disposal facility" to the definition as this term is used synonymously with the defined term. The department proposes to amend the definition of "inspection" in (17) to clean up the definition and to include reference to quantities in the definition, as inspections under ARM 17.74.354 require determination of quantities of ACM present. The department proposes to define "owner and operator" in (20), to clearly connect the term to the definition in 40 CFR 61.141, as the full term is not used in the ARM. The department proposes to make "pipe" its own definition in (21) as it remains useful in the rule and is not otherwise defined in the statute. The department proposes to define "project design" in (22). ARM 17.74.355 requires a written project design be maintained on site during an asbestos project. In defining the term "project design," the department seeks to specify the information to be included in this document, to ensure a consistent application of the requirements in ARM 17.74.355. The department proposes to remove "potentially" in (25)(a) to reduce redundancy.
17.74.353 APPLICABILITY--ASBESTOS PROJECT REQUIREMENTS (1) All asbestos projects must be conducted in accordance with the requirements of this subchapter and 40 CFR 61, subparts A and M, with the following exceptions: (a) remains the same. (b) for purposes of 40 CFR 61.145(a)(1), (a)(2), and (a)(4), the minimum quantities of asbestos provided in 75-2-502(3), MCA, apply; (c) in 40 CFR 61.145(b)(1), pertaining to notification requirements, "Provide the department with written notice of intention to demolish or renovate. Delivery of the notice by U.S. Postal Service, commercial delivery service, facsimile, email, the department online permitting system, or hand delivery is acceptable, and delivery of the notice is complete when the department receives the notice (d) remains the same. (e) alternate work practices may be used if approved in writing by the department in advance. Requests for (i) be submitted by the owner or operator on a form provided by the department and include the fee specified in ARM 17.74.406; (ii) explain why compliance with this subchapter and 40 CFR 61, subpart M is neither practical or feasible; and (iii) demonstrate that the proposed alternate work practice provides results at least as stringent as the methods required in this subchapter. (2) remains the same.
AUTH: 75-2-503, MCA IMP: 75-2-503, MCA
REASON: The department proposes to add subpart A in (1) to correct an inconsistency with ARM 17.74.351 and clarify the NESHAP General Conditions found within subpart A of 40 CFR part 61 apply to asbestos projects. The department proposes language within (1)(b) to reflect the precedence for statutory levels in Montana. The department proposes in (1)(c) to formalize the state online notification services by officially placing its use in rule. In (1)(e), the department is proposing to specify the requirements that must be met for an asbestos project contractor to use alternate work practices. These requirements are reasonably necessary to (a) ensure that alternate work practices are used only in situations where strict compliance with these rules is impractical and infeasible; and (b) establish that alternate work practices are at least as stringent as the requirements of this subchapter, in order to maintain compliance with the program delegation from EPA.
17.74.354 INSPECTION REQUIREMENTS FOR DEMOLITION AND RENOVATION ACTIVITIES (1) Prior to any demolition or renovation of a facility, the owner or operator shall ensure the facility or part of the facility where demolition or renovation (2) The owner or operator shall ensure that a copy of the inspection report is kept on site during the asbestos project. The owner or operator shall ensure that the report is kept on site during subsequent renovations or demolition. The inspection report must be made available to the department upon request. (3) A supplemental amendment or full reinspection is required prior to demolition or renovation activity under the following conditions: (a) the initial inspection date is greater than three years prior to the initiation of an asbestos project; (b) the scope of work at the inspected site has changed; or (c) the inspection requirements under this rule have changed since the inspection report date.
(a) visually inspect the areas that may be affected to identify the locations and estimated quantities of all suspect ACM; (b) and (c) remain the same. (d) collect samples from thermal system insulation as follows: (i) at least one bulk sample from each area of patched thermal system insulation that is less than six linear or square feet and is not assumed to be ACM; (ii) at least three random bulk samples from each type of thermal system insulation that is greater than six linear or square feet and is not assumed to be ACM;
(a) bulk samples are analyzed by persons or laboratories with proficiency demonstrated by current successful participation in a nationally recognized testing program such as the National Institute of Standards and Technology (NIST), National Voluntary Laboratory Accreditation Program (NVLAP), (b) (c) remains the same.
(a) all materials with the exception of glass, untreated wood, and metal are considered suspect ACM;
(b) remains the same, but is renumbered (c).
(a) and (b) remain the same. (c) the date of the asbestos inspection and final report; (d) through (f) remain the same. (g) all sample locations identified in sufficient detail to allow another individual to duplicate sampling; (h) and (i) remain the same. (j) a copy of the sample analytical report (k) information on whether it will be necessary to remove any ACM before any activity begins that would break up, dislodge, or similarly disturb the material (l) a single page within the report containing items (a) through (e) and an indication of the presence of any regulated ACM, with a duplicate of that page included within the report.
(a) (b) remains the same. (c) the department-accredited asbestos inspector shall summarize sampling and analytical procedures and evaluation findings in a written report. A recommendation on whether a new or continued asbestos project is necessary based on the evaluation must be included in the written report. The report must be submitted to the department for review and approval before any further renovation or demolition work occurs. For emergency renovation operations, cleanup may commence upon submission of the report to the department.
AUTH: 75-2-503, MCA IMP: 75-2-503, MCA
REASON: The department is proposing to amend ARM 17.74.354 to address inspection requirements for demolition and renovation activities. The department proposes to change "action" to "activities" in (1) to be consistent with language throughout the rule and use language familiar to the asbestos industry. In (2) the department proposes a similar change to include "operator" in conjunction with use of the term "owners," consistent with changes within definitions and throughout rule. The department proposes adding (3) to clarify the requirement that the inspection report used by contractors represents the facility's current conditions and the condition of the materials. This amendment is necessary to address older inspections that may be subject to multiple variables, such as changes in rule, changes in the integrity of the building materials, changes in the quantity of the building materials, and are no longer compliant or suitable for their intended purpose. Supplemental inspection reports prevent unknown exposure to asbestos and ensure that facilities are "thoroughly inspected" as required in 40 CFR 61.145. The department is proposing to add "and estimated quantities" to (4)(a) because this is an essential piece of information in determining the applicability of subsequent rule requirements. The department is proposing to add clarifying language to (4)(d)(i) to define the size of a "patched thermal system insulation" area. The department is proposing to strike (4)(d)(iii), as these materials are not found in ARM 17.74.354(6)(a) and require sampling to determine if asbestos is present. During the advanced draft stakeholder meetings there was concern raised that removing the exempt status of certain materials during sampling would exceed the standards found in other states. The overarching statement by the EPA in Applicability Determination A960025 regarding sampling of materials takes precedence here as well as in (6)(a). The department is proposing to strike (4)(e) and (4)(g) because they do not offer additional clarity to performance of a "thorough inspection" and are unnecessary. The department is proposing to strike language in (5)(a) as complying with quality assurance testing remains under the authority of the nationally recognized testing program. The department is proposing to strike "except for wallboard system samples" from (5)(b), to remove any exception for composited analysis. This proposed change is necessary to formalize an existing department determination issued to stakeholders and that is posted on the department's website under the "Proposed Asbestos Rule Change" tab. The department's previous determination explained that although EPA guidance (ADI A960011) allows averaging and reporting of composite results for wallboard systems in certain circumstances, EPA's guidance was not based on scientific evidence but was done for practical enforcement reasons based on the NESHAP regulatory threshold of 160 square feet. Because Montana's regulatory threshold, at 10 square feet, is much smaller than the federal threshold, DEQ does not exempt wallboard systems, where joint compound or tape is applied only to nail holes and joints, from the requirement to analyze and report results for each layer of a multilayered system. Formalizing this determination into the asbestos rules will ensure that all asbestos-containing material is appropriately handled in compliance with this subchapter. In (6)(a), the department is proposing to add "with the exception of glass, untreated wood, and metal" to clarify that all other building materials are considered suspect for asbestos, consistent with EPA guidelines. During the advanced draft stakeholder meetings, the inclusion of fiberglass insulation as a suspect material was raised. On December 14, 2021, the department issued a determination that stated fiberglass "should not be excluded as a suspect material." The department's December 14, 2021, determination was based on the inspection requirements in the Asbestos Control Act and existing department rule, as well as an October 2021 determination by EPA finding that fiberglass is considered a suspect material. This determination was issued to stakeholders and has been posted on the program "regulatory determinations" portion of its website. This proposal seeks to formalize the existing December 14, 2021, determination into rule. In addition, the word "untreated" was added prior to "wood" based on advanced draft stakeholder meetings where it was suggested that the generic term "wood," when used alone, could be excessively broad, missing asbestos added during processing, and fail to provide for a "thorough inspection." The department proposes to amend (7) to be clearer and more concise with the intent of inspection preparation. The department is proposing to add "and the date of the final report" to (7)(c) to require that the date of onsite activities and report completion are separate; this verifies accreditation and verifies the date of materials being observed. The department proposes adding language to (7)(g) to require an adequate description of the sampling location if an inspection must be repeated or verified. The department occasionally attempts to duplicate sample results, and this proposed change provides the best opportunity to achieve similar results. The department proposes to amend (7)(j) to include the completed chain of custody and delete the specified information listed as chain of custody forms already include that information. In (7)(l), the department proposes requiring the inspection report to contain certain information on a single page, and for there to be included within the report, a duplicate of that page so that one copy may be torn out and provided to the disposal facility where asbestos-contaminated waste is being disposed. Through stakeholder discussions and an Asbestos Advisory Group recommendation, the department believes that this process will allow for more efficient and accurate screening of asbestos-contaminated waste at disposal facilities. Based on advanced stakeholder comments, the department has revised this proposed rule so that the duplicate cover page needs only to be included with the report, as opposed to the initial proposal requiring the duplicate cover page at the beginning of the report. The department is proposing to amend language in (8)(a) to specify that while doing the initial inspection, dust samples must be collected and analyzed if the rule specifies. Dust sampling when no asbestos inspection was performed prior to demolition or renovation provides valuable information to the owner/operator. However, the follow-up activities recommended by the inspector or contractor to the owner/operator remain outside of the department's rulemaking authority. During advanced draft stakeholder meetings, at least one commenter expressed a desire for the department to quantify action levels to be taken at a site based on the dust sampling results. While the department has statutory authority for rulemaking regarding aspects of "Asbestos Projects," the presence of dust at a site can have many sources, many outside the regulatory authority of the department. Therefore, the department has not made any changes to the proposed language based on the advanced stakeholder comments. In (8)(c), the department is proposing to add language to clarify that while the department must review and approve a report under this subsection, action required to clean the site under an emergency notification may proceed.
17.74.355 ASBESTOS PROJECT PERMITS AND DEMOLITION NOTIFICATIONS (1) Pursuant to 40 CFR 61.145, a person may not conduct demolition activities without a demolition notification submitted to the department. (1) remains the same, but is renumbered (2).
(a) a completed, signed Montana Asbestos Project Permit Application, Transport and Disposal application, (b) the (4) An application for an asbestos project permit and associated fees must be received by the department at least: (a) five working days prior to the initiation of an asbestos project with quantities pursuant to 75-2-505(1) through (3), MCA; or (b) ten working days prior to initiating an asbestos project with quantities pursuant to 40 CFR 61.145(a) or the initiation of demolition activities. (5) False, inaccurate, or misleading information may cause the department to revoke an asbestos project permit or demolition notification.
(7) A revision of an asbestos project permit or demolition notice is required as soon as possible and must be submitted to the department with any necessary fees under ARM 17.74.406 for the following: (a) a change in the project's owner or operator; (b) a change in the renovation contractor, transporter, or disposal facility; (c) the amount of regulated asbestos-containing material being disturbed changes by at least 20 percent or more from the amount permitted; (d) any significant change in the scope of work of the asbestos project conducted at the facility during the project period; or (e) a change to the start or completion date for a permitted activity provided that the conditions of 40 CFR 61.145(b) are met for changes in start dates. (8) Expired asbestos project permits or expired demolition notifications are void. Any work beyond the expiration date will require a new asbestos project permit or demolition notification pursuant to the requirements of this subchapter.
AUTH: 75-2-503, MCA IMP: 75-2-503, 75-2-505, 75-2-511, MCA
REASON: The department is proposing several amendments to ARM 17.74.355 to refine the department's requirements pertaining to permits issued by the agency. The department is proposing to add "demolition" to the title of the rule to identify that demolition notifications are subject to many of the same requirements as traditional asbestos project permits. Likewise, the department is proposing to add specific language in (1) regarding the submission of demolition notifications to the department as is required under 40 CFR 61.145. The department has proposed streamlined language in (3), consistent with the proposed amendments to definitions and fee rules updated in 2020. In addition, the department proposes to specifically identify the availability of a Montana Transport and Disposal permit as a type of asbestos project permit. Transport and disposal of asbestos-containing waste requires permitting under 75-2-502, MCA, even in cases where asbestos removal does not require a permit. The department is proposing (4) to clearly identify in one location the different advance notice requirements that are otherwise found in statute or incorporated federal regulations. The department is proposing (5) to specify the circumstances under which incorrect information provided by an applicant may cause the department to revoke an asbestos project permit. The department proposes to reduce redundancy in (6) by removing the word "deficient." The department is also proposing to change "ten days" to "two working days" for the timeframe for an applicant to provide requested missing information. This prevents a backup of permits awaiting administrative review and decreases review time. In (7), the department is proposing to identify the circumstances requiring a revision to an asbestos project permit, reducing confusion on the situations that require additional department activity. In (8), the department proposes to specifically stress that project activity must cease upon permit expiration and to describe the process to be followed if additional activity requiring a permit is desired. The department is proposing to delete current (6), as this information is in 75-2-503, MCA, and does not need to be repeated in rule. The department proposes to amend the text of both (9) and (10) to streamline the on-site paperwork requirements for contractors.
17.74.356 ASBESTOS PROJECT CONTROL MEASURES (1) An asbestos (a) physically present at all times at the work site when (b) accessible to all asbestos (c) remains the same. (2) Alternate control measures that are equivalent to those required under this subchapter may be used if written approval is obtained from the department in advance pursuant to ARM 17.74.353.
AUTH: 75-2-503, MCA IMP: 75-2-503, MCA
REASON: In (1) and (1)(b) the department proposes to remove "project" to align with changes in definitions and provide consistency throughout the rule. The department proposes to revise (1)(a) to remove language associated with regulations outside department scope, and replace with language regarding activity at sites permitted by the department. In (2), the department proposes to add a reference to ARM 17.74.353, which contains the requirements for obtaining department approval of alternate work practices.
17.74.357 STANDARDS AND METHODS FOR CLEARING ASBESTOS PROJECTS AND REQUIREMENTS FOR PERSONS CLEARING ASBESTOS PROJECTS (1) At the conclusion of any asbestos project conducted in a facility, the owner (2) The concentration of asbestos fibers in air clearance samples collected pursuant to (1) must be: (a) less than or equal to 0.01 fibers per cubic centimeter of air for each (b) less than or equal to (3) Final visual inspection and clearance sampling and analysis must be conducted as follows: (a) remains the same. (b) a person collecting final air clearance samples shall: (i) and (ii) remain the same. (iii) ensure the air is continually agitated (iv) remains the same.
(i) the names of the asbestos (ii) through (v) remain the same. (vi) the number of samples collected, identified in sufficient detail to allow another individual to perform duplicate sampling; (vii) the laboratory analytical method used (viii) the pump flow rate (pre, post, and average), run time, total volume of air, calculations for PCM or for TEM, and laboratory analytical report; and (viii) remains the same, but is renumbered (ix). (g) remains the same, but is renumbered (e).
(4) For asbestos projects with final air clearance sampling, the person conducting final air clearance sampling shall: (a) collect air samples, representative of the entire work area, in accordance with the NIOSH 7400 method for PCM samples or NIOSH 7402 for TEM samples (b) remains the same. (c) ensure air sampling cassettes are placed four to six feet above the floor at a 45 degree angle down.
(6) PCM samples required under this rule shall be analyzed by a laboratory certified in the NIOSH 582 or 582e and that maintains a "proficient" rating in the American Industrial Hygiene Association (AIHA) proficiency analytical testing (PAT) program. PAT results must be submitted to the department upon request. The department must approve alternate proficiency programs prior to the analysis of PCM samples. (9) remains the same, but is renumbered (7).
(8) Alternate work practices for clearing asbestos projects may be used if approved in writing by the department in advance. Requests to employ alternate work practices must be submitted to the department in accordance with ARM 17.74.353(1)(e).
(a) must be accredited by the department as an (b) remains the same.
AUTH: 75-2-503, MCA IMP: 75-2-503, MCA
REASON: The department is proposing to amend ARM 17.74.357 to provide clarity and consistency in air clearance methods and requirements before the conclusion of the permitted activity. DEQ's preliminary draft of these rules included a proposal to change analytical methods and remove the NIOSH 7402 method from use. Based on input from stakeholders during the advanced stakeholder outreach process, the department agrees that this testing method should remain in rule and has removed that proposal from consideration throughout the current draft including in ARM 17.74.351 and 17.74.357. In (1), the department proposes to specify that the final air clearance and visual inspections must occur before the permit expiration. In practice, the department has found that some permit holders have been conducting final clearances after expiration of the permit. The department proposes striking language from (2)(a), which specifies the number of air samples, as this is covered within (3)(b). The department proposes to amend (2)(b) by striking "or equal to the average concentration of" to prevent the averaging of multiple samples. During draft stakeholder meetings, commenters requested that averaging remain in place. Since the averaging of air samples under current rule may allow for a single sample to be five times the target "clearance" objective, the department believes that the proposed rule better protects human health and safety and, therefore, has not altered the proposal to strike averaging. In addition to proposed rules, stakeholders indicated a desire to revise the existing rule to allow for a "graduated" number of samples to be taken dependent on the size of the asbestos project. This concept would require significant reconsideration of other department rules and an extensive evaluation of the health considerations surrounding such an action. Therefore, the department decided to maintain the existing regulatory scheme and methodologies for this proposed rule update. Other changes in (2) are made to improve grammar and readability. The proposed amendments to (3)(b)(iii) are necessary to ensure there is adequate air disturbance for clearance monitoring. During advanced draft stakeholder meetings, commenters raised questions regarding fan speeds and maximum airflow language. The department believes the language regarding fan speeds and the intent of the rule are clearly expressed by the current "maximum airflow" and "continually agitated" language and has not altered the proposal. In addition, stakeholders indicated a desire to revise the existing rule to expand the definition of those areas exempt from aggressive air sampling, such as crawlspaces. The current "alternate work practice" procedure allows for the department to make an individual consideration based on specific site conditions. Therefore, the department decided to maintain the existing regulatory scheme and methodologies for this proposed rule update. Regarding (3)(b)(iii), subsections (3)(b)(iv) and (3)(d)(v) both require "agitation of air," and the proposed change to (3)(b)(iii) clarifies what the department considers adequate "agitation." The department is proposing to strike current (3)(c) and (3)(d), as the department has found these provisions to cause confusion within the regulated industry. The department believes the language within (3)(b)(iv) provides both the required specificity regarding the sampling to be required and allows for professional judgment by the sampler when additional sampling is desirable. During advanced draft stakeholder meetings, the initial draft included a proposal to require cassette placement in "each room." Based on input from stakeholders, the department has removed that proposal from consideration throughout the current draft. In the new (3)(c), the department proposes to replace "cleared" with "approved for general re-occupancy" to improve readability and the use of plain language in the rules. During advanced draft stakeholder meetings, commenters raised concern that the term "general re-occupancy" could be misconstrued by general contractors. The department believes that the language is specific enough to express the intent that asbestos work area access be restricted to those persons properly trained in asbestos, protected from asbestos exposure, and remains under the control of the asbestos contractor/supervisor until the conditions of both a visual and air clearance have been met. When combined with the regulatory requirements regarding asbestos placed by other federal entities, the access issue is addressed. Due to uncertainty among stakeholders, new (3)(d) specifies that the final clearance information being "recorded" must be included within a written report. During advanced draft stakeholder meetings, the initial draft did not specify the inclusion of the specified information in the report; this has been addressed in the current version. The department again proposes in (3)(d)(i) to strike "project" from "asbestos project contractor/supervisor" to remain consistent with the definition and to add language clarifying that the name of the project permit contractor/supervisor must be recorded. The department proposes to amend (3)(d)(vi) to assist the department during its paperwork or site reviews or when conflicting results between inspectors exist. The identification of more accurate sample location information will bolster the ability of affected parties to gain consistent results. However, it does not imply that the initial sample itself must be reproduced through this method. During draft stakeholder meetings, several commenters raised concern that it would be difficult to "exactly" duplicate sampling. The department has not included the term "exactly" in the proposal and believes the level of specificity required for an exact duplication is neither proposed, practical, or expected. There were concerns regarding the specificity required to identify an exact location of a previous sample location and at least one commenter was concerned that exact measurements would be required in three dimensions. The department believes the language regarding specificity of "sufficient detail" is expressed by the current language in a manner allowing for professional discretion and has not altered the proposal. The department proposes to amend (3)(d)(vii) to specify the analytical method used rather than the type of cassette to be used, providing more scientific data to the department during reviews of permit paperwork. The department proposes to insert (3)(d)(viii) to include the pump calculations for the clearances. This is critical to verify when reviewing project information and documents actions taken in (4)(b). The department is proposing to amend (3)(f) to align recordkeeping and production with the changes to the recordkeeping rule in ARM 17.74.360. The department proposes to amend (4)(a) to delete the specific sampling requirements from the rule text, as those requirements are already contained within the cited method. The department also proposes language regarding samples being representative of the work area to ensure that samples are representative of the entire asbestos project area. The department proposes striking language in (4)(c) to reduce the redundancy of the specifications and to eliminate repetitive language. The department is proposing to remove the old (5), which allowed the department to waive the requirements in the old (3)(e) if the owner or operator established that background asbestos levels exceeded the requirements of this rule. However, the department recognizes that background asbestos levels can be mitigated within a contained asbestos work area by filtration of the air within the work area. The department believes that the use of filtration to reduce high background asbestos levels in a work area better protects human health and the environment. Therefore, the department is proposing to remove the language that allowed for the issuance of waivers from the requirements in the old (3)(e). The program proposes to amend the new (5) to be more precise in the rule text. Compliance with the final visual inspection and air clearance requirements in this rule do not necessarily mean an asbestos project has been completed, as there may be additional actions an owner or operator must take to complete an asbestos project after final visual inspection and clearance is done. The department proposes to replace the requirements in the old (7) and (8) into a succinct, consolidated new (6). The proposed new (6) will streamline the requirements for PCM sampling analyses and is aimed at addressing confusion by some stakeholders regarding the requirements in the old (7) and (8). The department has replaced the old (10) with the language in new (8) to reference the proposed alternate work practices provisions in ARM 17.74.353(1)(e). The department proposes to amend terms within new (9) to meet the definition and term usage throughout rule and to preclude asbestos workers from conducting final visual inspections and air clearances. Asbestos workers are not trained under the EPA Model Accreditation Plan to conduct these activities.
17.74.358 EMERGENCY RENOVATION OPERATION ASBESTOS PROJECT PERMITS AND ORDERED DEMOLITION NOTIFICATIONS (1) For an emergency renovation operation, as defined in 40 CFR 61.141, the (a) (b) within five working days of submitting the notification in (a), submit to the department a full asbestos project permit application pursuant to ARM 17.74.355 and additional fees under ARM 17.74.406.
(2) For ordered demolitions pursuant to 40 CFR 61.145(a)(3), the owner or operator shall submit a completed ordered demolition notification form and the fee specified in ARM 17.74.406, ensuring the submittal contains all the information required to explain why the conditions under 40 CFR 61.145(a)(3) are met. (3) Emergency renovation operations under (1) and ordered demolitions under (2) may commence immediately after the notification and the fee for those activities are submitted to the department.
AUTH: 75-2-503, MCA
REASON: The department is proposing to amend the title of ARM 17.74.358 to accurately describe the content of the rule as including "ordered" demolitions. The department proposal in (1)(a) serves to maintain consistency with the definitions and the terms usage throughout the rule. The department proposes to replace "immediately" with "no later than the following working day" to have a clearer period defined where "immediately" was subjective. The department proposes to break former (1) into two individual notification/permitting stages (a) and (b) for emergency renovation operations. While existing rule requires immediate notification followed by the submittal of an asbestos project permit application, the department believes that breaking the requirements into discrete subsections will reduce the likelihood that (b) will be overlooked by applicants. The department is proposing to add a section addressing ordered demolitions in (2). Ordered demolitions are addressed in the incorporated NESHAP; the requirements proposed in (2) address what must be submitted to the department when 40 CFR 61.145(a)(3) applies. The department is proposing to add language in (3) to clarify that activities surrounding an emergency renovation or ordered demolition may begin immediately and do not need to await the issuance of a department permit.
17.74.359 ANNUAL ASBESTOS PROJECT PERMITS (1) remains the same. (2) The owner or operator of a facility may apply to the department for an annual asbestos project permit if the facility: (a) continuously employs asbestos project workers
(3) remains the same. (4) The owner or operator of a facility applying for an annual asbestos project permit shall submit to the department: (a) the fee required under ARM (b) through (6) remain the same. (7) A revision to an annual asbestos project permit is required as soon as possible or within 10 calendar days of the following: (a) a change in (b) and (c) remain the same. (d) the amount of regulated asbestos-containing material being disturbed (e) remains the same.
AUTH: 75-2-503, MCA
REASON: In (2)(a), the department proposes a formatting change that clarifies current requirements but does not change the substance of that rule. The department proposes to amend (2)(b) by adding "asbestos project" to specify the need to use Montana-accredited contractors who provide consistency in accreditation and requirements for an asbestos project. In (4)(a), the department proposes to update an incorrect reference to our fee rules. In (7)(d), the department proposes to strike "exceeds" and replace it with "changes" to maintain consistency with NESHAP.
17.74.360 RECORDKEEPING (1) Records of asbestos projects that are being, or have been, conducted must be retained by the owner or operator for at least 30 years and made available to the department upon request.
(a) remains the same. (b) the location and description of each project and the amount of ACM that was (c) the starting and completion dates of each (d) the name and address of each disposal facility where asbestos-containing waste was deposited (e) a completed waste shipment record from each disposal facility indicating the amount of asbestos-containing waste deposited at the site and the date of the deposit.
AUTH: 75-2-503, MCA IMP: 75-2-513, MCA
REASON: The department is proposing to amend ARM 17.74.360 to strike unnecessary or repetitive language and to define requirements more clearly for recordkeeping. The department proposes to insert "owner or operator" in (1), which clarified who needs to keep the records, provides consistency with the definitions, continuity of use throughout the document, and eliminates the need for (2)(a) and (b). In (3)(b) and (3)(c), the department proposes to strike reference to material that was enclosed, removed, repaired, encapsulated, or placed in new construction, and to replace it with references to permitted activity, consistent with the definition found in 75-2-502, MCA. In (3)(d), the department proposes to insert "disposal" to provide consistency with the definitions and continuity of use throughout the document. In (3)(e), the department proposed to insert "completed" to identify that the waste shipment record must be complete with all required information and signatures. This precludes the need for (3)(f) and the department proposes its removal.
17.74.362 ACCREDITATION REQUIREMENTS FOR ASBESTOS-RELATED OCCUPATIONS (1) remains the same. (2) A person seeking initial Montana accreditation in an asbestos-related occupation shall: (a) remains the same. (b) submit to the department a completed application form provided by the department, with the fee required in ARM (3) The department may accredit a person in an asbestos-related occupation who is currently accredited or certified in another state, provided the applicant: (a) has successfully completed a refresher course from a department-approved training provider; and (b) holds an accreditation or certification from an authority delegated to implement an accreditation program at least as stringent as the Model Accreditation Plan or can provide the department with the initial and all subsequent refresher certificates, demonstrating there has not been a lapse in certification over one calendar year from any certificate expiration. (4) A person seeking accreditation under (3) shall submit to the department a complete application on a form provided by the department, with the fee required in ARM 17.74.407 and documentation showing compliance with (3). (3) remains the same, but is renumbered (5).
AUTH: 75-2-503, MCA IMP: 75-2-511, MCA
REASON: The department proposes to amend ARM 17.74.362 to support the proposed repeal of reciprocity under ARM 17.74.343. The department proposes to add "Montana" in (2) to make clear the authority the department has for issuing accreditations. The department proposes in (3)(a) to include a new requirement for out-of-state applicants to receive formal training, from a department-approved training provider. This requirement provides the best opportunity for compliance with the Montana Asbestos Control Act by individuals likely unfamiliar with the specifics of Montana rule. The department proposal in (3) would formalize the existing department business process for verifying training certificates for out-of-state applicants and provide consistency with the MAP regarding lapses in training.
17.74.363 RENEWAL OF ACCREDITATION (1) A person may not engage in an asbestos-related occupation after the expiration of accreditation until (2) remains the same. (3) An applicant for renewal of accreditation in an asbestos-related occupation, except asbestos (4) For renewal of accreditation as an asbestos (5) Asbestos (6) remains the same. (7) An applicant for renewal of accreditation as instructor shall attend a refresher course: (a) remains the same. (b) taught by the instructor with three or more eligible students.
AUTH: 75-2-503, MCA IMP: 75-2-511, MCA
REASON: The department proposes to add a line in (1) to indicate that an accredited individual can perform in an asbestos-related occupation only after they receive state authorization, usually in the form of an accreditation card. In (3), (4), and (5), the department proposes to strike "project" from terms redefined within the definition proposals to be consistent with those changes. In (7)(b), the term "eligible" is proposed to be inserted to reflect that the instructor may not consider "eligible" any individuals who have lapsed in certification, or not previously held an initial course when calculating "three" students. During draft stakeholder meetings, it was suggested to remove this proposal as the instructor's presentation of material is defined under current rule regardless of the qualifications of any attendees in the class. The department believes the integrity of the training should be maintained and has witnessed individuals with no previous training listed as attendees. This scenario omits valuable peer interaction and shared knowledge from the training, provides the instructor with no additional benefit, and does not meet the intent of annual refresher training for the approved instructor. The language has not been altered in the proposal.
17.74.364 TRAINING PROVIDER REQUIREMENTS (1) remains the same. (2) The department shall approve a training course if it meets the requirements (3) For department approval of a training course, instructors' qualifications must include: (a) remains the same. (b) a cumulative total of three years accreditation in Montana to include current accreditation in Montana for the asbestos-related occupation related to the course to be taught. (i) An instructor who is accredited as (4) Except for the asbestos (5) All training course materials and examinations must be submitted to the department for the department's approval. Upon department approval, the training course is approved for a two-year period, beginning January 1 of the year following approval. The department may not accept applications for training course approval before October 1 of the year preceding the two-year training course approval period. A person may apply for approval as a training course provider beginning January 1 of the year following training course approval by submitting the following to the department by November 15 of the preceding year: (a) through (d) remain the same. (e) a list of the proposed instructors who will teach the course along with (f) and (g) remain the same. (h) the appropriate fee for approval of the course, specified in ARM (i) remains the same. (6) Training course providers may, at the time of application, request to present refresher courses through an online format at no additional fee. Online refresher courses are subject to the following requirements: (a) the course must be presented on a free-to-use virtual platform that utilizes both visual and audio communication, with the instructor present in both visual and audio formats throughout the course; (b) the training course provider may excuse students from keeping their cameras or microphones on throughout the class, but periodic check-ins are required to verify course participation; (c) notification by the course provider required under (7) shall indicate the course will be conducted virtually; and (d) the training provider shall, no later than 24 hours prior to the class, provide the department with online access information to enter the virtual classroom. (6) remains the same, but is renumbered (7).
(8) and (9) remain the same, but are renumbered (9) and (10).
(a) through (e) remain the same. (f) each course participant's course certificate number; (g) a statement that each person receiving a certificate has completed the training required for accreditation under this subchapter (h) whether each participant's instruction was online or in-person.
AUTH: 75-2-503, MCA IMP: 75-2-511, MCA
REASON: The department proposes to amend (2) to clarify that a training course must comply with both this rule and ARM 17.74.365 to be approved by the department. The department proposes to add "Montana" to (3)(b) to make clear that instructors must be accredited in the state of Montana. This change ensures that instructors are familiar with Montana-specific asbestos rules. The department proposes to codify the internal business process assessing accreditation longevity to "academic and/or field experience in asbestos control" by insertion of language in (3)(c). The department proposes the removal of redundant language in (5)(e), instead referencing the qualifications in (3). The proposed change to (5)(h) corrects the citation regarding 2020 fee changes. After receiving stakeholder input regarding virtual training and the necessity to adjust to a virtual environment during the global pandemic, the department proposes (6)(a) through (d) to set parameters around virtual courses while addressing the needs of students, trainers, the department, and outside entities. The department proposes amending (8) to allow training providers professional discretion to immediately revise training content when federal and state regulations or rules are amended, but to provide information regarding the change to the department within 45 days. The department proposes to include (11)(h) to require training delivery method on certificates. The department and other regulatory agencies believe tracking this information will provide added value to future changes. The department proposes to delete (11) and (12) as the requirements are repetitive and already required under (5).
17.74.365 TRAINING COURSE REQUIREMENTS (1) A training course for accreditation as an asbestos (2) A training course for accreditation as an asbestos (3) A training course for accreditation as an asbestos (4) A training course for accreditation as an asbestos (5) and (6) remain the same.
AUTH: 75-2-503, MCA IMP: 75-2-511, MCA
REASON: The department is proposing to amend ARM 17.74.365 to update language to be consistent with the definitions and the asbestos-related occupation titles as used throughout rule.
17.74.366 TRAINING COURSE EXAMINATIONS (1) The following requirements apply to asbestos-related occupation accreditation training course examinations: (a) for asbestos (b) for asbestos (2) All examinations must be closed book and consist of a minimum of 10 percent questions based on the Asbestos Control Act and Montana-specific rules in this subchapter.
AUTH: 75-2-503, MCA IMP: 75-2-511, MCA
REASON: The department proposes to strike "project" from "asbestos project worker," "asbestos project management planner," and "asbestos project contractor/supervisor" to be consistent with the definitions and the asbestos-related occupation titles as used throughout the rule. The proposed amendment to ARM 17.74.366 is necessary to evaluate comprehension of Montana rules adopted under the Asbestos Control Act by those students attending an initial course.
17.74.367 REFRESHER COURSES (1) remains the same. (2) Refresher courses must relate to a (3) For department approval of a refresher course, a person shall submit to the department, on a form provided by the department, a completed application and the fee specified in ARM (a) through (e) remain the same. (4) At least ten working days before a refresher course commences, the person providing the training course shall notify the department of the date, time, and location of the course, including whether the course is to take place virtually.
AUTH: 75-2-503, MCA IMP: 75-2-511, MCA
REASON: The department proposes to amend (2) to reinforce the requirement of state-specific regulations in refresher courses. The department must ensure that any contractor that is accredited by the program has been instructed in and has a working knowledge of the necessary state regulations to conduct work safely in Montana. The department proposes to amend (3) to correct the fee reference to ARM 17.74.408. The department proposes to add specific requirements in (4) for refresher course training notifications to the department, and to establish the means of instruction delivery. The department and other regulatory agencies believe tracking this information will provide added value to future changes.
17.74.368 TRAINING COURSE AND REFRESHER COURSE CERTIFICATE AND RECORDKEEPING REQUIREMENTS (1) A person providing a training course for accreditation in an asbestos-related occupation shall provide a certificate to all persons who successfully complete the course and the examination. The certificate must be numbered and include: (a) through (h) remain the same. (i) a statement that the trainee, by name, has successfully passed the examination for the course; (j) an accreditation expiration date of one year after the date upon which the person successfully completed the course and examination (k) a notation indicating whether the course material was presented online or in-person. (2) through (4) remain the same.
AUTH: 75-2-503, MCA IMP: 75-2-511, MCA
REASON: The department proposes adding a requirement for course training certificates to identify the means of instruction delivery. Acceptance of virtual instruction remains at the discretion of each state and the identification of these courses is being introduced into more state rule text.
17.74.369 TRANSPORTATION AND DISPOSAL OF ASBESTOS-CONTAINING WASTE (1) A person may not transport asbestos-containing waste generated at a facility unless accredited by the department as an asbestos (2) Prior to transporting or disposing of asbestos-containing waste from an asbestos project, a person shall (3) A person who transports or escorts a vehicle that contains asbestos-containing waste from an asbestos project shall: (a) remains the same. (b) prior to waste pick up: (i) obtain assurance from the asbestos (ii) through (v) remain the same. (vi) either deposit asbestos-containing waste at a licensed Class II or Class IV landfill facility as soon as practical, or, if asbestos-containing waste is not disposed of as soon as practical, store any asbestos-containing waste in a secure holding facility or location accessible only to asbestos (vii) and (c) remain the same.
AUTH: 75-2-503, MCA IMP: 75-2-503, MCA
REASON: In both (1) and (3), the department proposes to strike "project" from asbestos-related occupation terms redefined within the definition proposals to be consistent with those changes. The department proposes to amend (2) to clarify an individual must possess a valid permit as the previous language was subjective regarding tense. Within its proposed change to (2), the department seeks to include the Montana Transport and Disposal permit language to clarify that permitting option under ARM 17.74.355 for those without a Montana asbestos project permit for removal.
17.74.409 REFUNDS (1) and (2) remain the same. (3) The director, or the director's designee, may authorize a refund of fees due to extenuating circumstances causing the permit or accreditation holder to be unable to use the accreditation or permit because of: (a) remains the same. (b) catastrophic or major natural disaster or man-made event that requires assistance from a state or federal emergency management agency (c) other circumstances for good cause shown. (4) remains the same. (5) For refunds granted under (3), the department shall retain an administrative fee of 15 percent.
AUTH: 75-2-503, MCA IMP: 75-2-503, MCA
REASON: The department proposes to amend (3) to allow for the issuance of refunds in other circumstances where good cause exists. In practice, the department has found the existing rule overly restrictive, limiting the department's ability to issue refunds where good cause otherwise exists. The proposed revision would allow the department to issue refunds in such circumstances while placing the burden on the person requesting the refund to establish a sufficient basis for the department to issue the refund. The department also proposes (5), the retention of an administrative fee of 15% of the fee to be refunded, to assist the department in covering administrative costs incurred by reviewing and processing refunds. The department will not retain an administrative fee for refunds issued due to an error by the department.
4. The department proposes to repeal the following rules:
17.74.343 RECIPROCITY
AUTH: 75-2-503, MCA IMP: 75-2-503, MCA
REASON: The department proposes repealing ARM 17.74.343 as the accreditation requirements, for both in-state and out of state persons, are more appropriately and consistently covered under ARM 17.72.362.
17.74.370 ENCLOSURE OF ASBESTOS-CONTAINING MATERIAL
AUTH: 75-2-503, MCA IMP: 75-2-503, MCA
REASON: The department proposes to repeal ARM 17.74.370 because enclosure projects are included in the definition of asbestos projects in 75-2-502(3), MCA. This rule is redundant and can be removed.
17.74.371 ENCAPSULATION OF ASBESTOS-CONTAINING MATERIAL
AUTH: 75-2-503, MCA IMP: 75-2-503, MCA
REASON: The department proposes to repeal ARM 17.74.371 because encapsulation projects are included in the definition of asbestos projects in 75-2-502(3), MCA. This rule is redundant and can be removed.
17.74.372 REPAIR OF ASBESTOS-CONTAINING MATERIAL
AUTH: 75-2-503, MCA IMP: 75-2-503, MCA
REASON: The department proposes to repeal ARM 17.74.372 because encapsulation projects are included in the definition of asbestos projects in 75-2-502(3), MCA. This rule is redundant and can be removed.
5. Concerned persons may submit their data, views, or arguments concerning the proposed action in writing to the Department of Environmental Quality, at 1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana 59620-0901; telephone (406) 444-1388; fax (406) 444-4386; or e-mail at DEQAsbestosRule@mt.gov, and must be received no later than 5:00 p.m., January 12, 2024.
6. Nicholas Whitaker, staff attorney for the department, has been designated to preside over and conduct this hearing.
7. 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 contact person in paragraph 2 above or may be made by completing a request form at any rules hearing held by the department.
8. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sosmt.gov/ARM/Register.
9. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been observed. The bill sponsor was notified by letter on October 12, 2023.
10. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment and repeal of the above-referenced rules will not significantly and directly impact small businesses.
/s/ Angela Colamaria /s/ Christopher Dorrington ANGELA COLAMARIA CHRISTOPHER DORRINGTON Rule Reviewer Director Department of Environmental Quality
Certified to the Secretary of State November 28, 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.
