17.74.357 STANDARDS AND METHODS FOR CLEARING ASBESTOS PROJECTS AND REQUIREMENTS FOR PERSONS CLEARING ASBESTOS PROJECTS  (1) and (2) remain as proposed.

            (3) Final visual inspection and clearance sampling and analysis must be conducted as follows:

 (a) remains as proposed.

            (i) and (ii) remain as proposed.

(iv) through (9) remain as proposed.

AUTH: 75-2-503, MCA

IMP: 75-2-503 MCA

COMMENT #1: A commenter noted that the inclusion of "suspect" within ARM 17.74.354(4)(a) should be changed to "confirmed/presumed" when identifying estimated quantities.

RESPONSE #1: The department believes that estimating the amount of suspect material at the time of the visual inspection/collection of samples adds accuracy to the inspection report under (7). This estimation would be subsequently required if the material is later assumed or confirmed positive. The department believes collection of this information at the time of the visual inspection is both practical and efficient and does not believe a revision to the current proposal is needed.

COMMENT #2: A commenter suggested that rather than strike language currently within ARM 17.74.354(4)(e), inspectors should be allowed to utilize professional judgment to determine materials that are not suspect.

RESPONSE #2: In the reasonable necessity statement for proposed revisions to ARM 17.74.354(6)(a), the department provided a detailed explanation of the reasons supporting all material with the exception of glass, untreated wood, and metal being considered "suspect." Even without EPA guidelines, extending professional judgment to the inspection process could lead to inconsistency from individual to individual in evaluating materials and subsequently determining regulatory requirements.  The department does not believe a revision to the current proposal is needed.

COMMENT #3:  Two commenters objected to the deletion of ARM 17.74.354(4)(d)(iii) and (4)(e), stating the materials listed in those subsections are not considered suspect by EPA.

RESPONSE #3: In the reasonable necessity statement for proposed revisions to ARM 17.74.354(6)(a) the department provided a detailed explanation of the reasons supporting all material, with the exception of glass, untreated wood, and metal, being considered "suspect".  Even without EPA guidelines, extending professional judgment to the inspection process could lead to inconsistency from individual to individual in evaluating materials and subsequently determining regulatory requirements. The department does not believe a revision to the current proposal is needed.

COMMENT #4: Two commenters objected to the department's proposal to no longer allow composite analysis for wallboard systems under ARM 17.74.354(5)(b), stating that the proposed change would seem to be more stringent than the federal rule.

RESPONSE #4:  The department reviewed the proposal to revise "compositing" requirements during the conceptual stage of rulemaking and believes that the proposed rule amendment would not make the state rules more stringent than comparable federal regulations or guidelines that address the same circumstances. The department's reasoning, in both the reasonable necessity statement for the proposal notice and the department's stringency analysis, noted that because Montana's regulatory threshold is much smaller than the federal threshold in the asbestos NESHAP, the EPA's determination was based on and addressed a different circumstance. Therefore, the requirements of 75-2-207, MCA, would not apply and subsequently the department was not required to prepare an estimate under 75-2-207(2)(b), MCA, regarding the increased costs to building owners associated with disallowing the composite analysis of wallboard systems. Nevertheless, the department did provide information, as required, within the "Small Business Impact Statement" stating, "The proposed rules do not directly create any new fees for small businesses. However, because asbestos project permit fees in ARM 17.74.406 are based in part on the asbestos unit measurement (AUMs) for the asbestos project, proposed changes to the manner in which wallboard systems are to be sampled may result in additional asbestos project permit fees for asbestos projects involving wallboard systems." 

COMMENT #5:  A commenter suggested that the term "untreated wood" found in proposed ARM 17.74.354(6)(a) be changed to "unprocessed wood."

RESPONSE #5: The inclusion of "untreated wood" was based on informal stakeholder draft rule review. During the informal stakeholder process, the definitions of "untreated" (not preserved, improved, or altered by the use of a chemical, physical, or biological agent) and "unprocessed" (not altered from an original state) were discussed and the consensus was that "untreated" provided greater clarity. The department does not believe a revision to the current proposal is needed.

COMMENT #6: A commenter noted that the word "maximum" contained within ARM 17.74.357(3)(b)(iii) should be struck due to equipment specifications proposed in rule and the lack of a proper definition of the term.

RESPONSE #6: While the department's proposal included language regarding equipment specifications, it recognizes that the specific configuration of work areas is subject to individual site conditions. Rather than include language addressing issues of specific cubic feet per minute air disruption, methodologies, and the assessment of areas with poor air flow, the department recognizes the professional discretion of the individual evaluating the work area for general re-occupancy. The department believes that the term "maximum" reflects the best practice; however, the department believes that the rule language could be clarified and has revised the rule.

COMMENT #7: A commenter noted that the Montana Code Annotated does not distinguish between regulated asbestos-containing material (RACM) and non-friable material, although only RACM is permitted. The commenter stated that the requirement to list non-friable material on project permit applications is inconsistent and leads to substantial confusion for owners/operators.

RESPONSE #7: The department has carefully reviewed the requirements for notifications under the asbestos NESHAP at 40 CFR 61.145(b)(4)(vi). To remain as stringent as federal regulations, the department must continue to request information on Category I and Category II nonfriable asbestos-containing material remaining in the affected part of the facility and does not believe a revision to the proposal is appropriate.

COMMENT #8: A commenter requested clarification on the new volume measurement inclusion regarding permitting levels.

RESPONSE #8:  The department discussed the inclusion of volume in the 2020 fee rule revision and incorporated a definition for "Asbestos Unit Measurement," which included volume. The department had incorporated this unit of measurement for material as the result of its existence within the asbestos NESHAP at 40 CFR 61.145(a) and the inability of industry to properly calculate fees for materials not meeting linear or square foot measurements. The department does not believe a revision to the current proposal is needed.