Administrative Rules of the State of Montana

BEFORE THE BOARD OF ENVIRONMENTAL REVIEW

OF THE STATE OF MONTANA

In the matter of the amendment of ARM 17.38.101, 17.38.208, 17.38.225, 17.38.229, 17.38.231, and 17.38.513 pertaining to plans for public water or wastewater systems, treatment requirements, control tests, microbial treatment, sanitary surveys, and chemical treatment of water; the adoption of New Rules I through IV pertaining to ground water, initial distribution system evaluations, stage 2 disinfection byproducts requirements, and enhanced treatment for cryptosporidium; and the repeal of ARM 17.38.701 through 17.38.703 pertaining to licenses--private water supplies, disposal of excrement, and barnyards and stockpens

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT, ADOPTION, AND REPEAL

(PUBLIC WATER AND SEWAGE SYSTEM REQUIREMENTS)

TO: All Concerned Persons

1. On September 3, 2009, at 3:00 p.m., the Board of Environmental Review will hold a public hearing in Room 35, Metcalf Building, 1520 East Sixth Avenue, Helena, Montana, to consider the proposed amendment, adoption, and repeal of the above-stated rules.

2. The board will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice. If you require an accommodation, contact Elois Johnson, Paralegal, no later than 5:00 p.m., August 24, 2009, to advise us of the nature of the accommodation that you need. Please contact Elois Johnson at Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-2630; fax (406) 444-4386; or e-mail ejohnson@mt.gov.

3. The rules proposed to be amended provide as follows, stricken matter interlined, new matter underlined:

17.38.101 PLANS FOR PUBLIC WATER SUPPLY OR WASTEWATER SYSTEM (1) through (6) remain the same.

(7) Except as provided in (10)(a), Uupon receipt of a submittal or resubmittal under (4), the department shall provide a written response to the applicant within 60 days that either approves the submittal, approves the submittal with conditions, describes additional information that must be submitted to the department, or denies the ~~proposal~~ submittal.

(8) through (8)(b) remain the same.

(9) Except as provided in (10)(b), Uunless the applicant has completed the construction, alteration, or extension of a public water supply or wastewater system within three years after the department or a delegated unit of local government has issued its written approval, the approval is void and a design report, plans, and specifications must be resubmitted as required by (4) with the appropriate fees specified in this subchapter. The department may grant a completion deadline extension if the applicant requests an extension in writing and demonstrates adequate justification to the department.

(10) As provided in [Section 1, Chapter 449, Laws of 2009], the following requirements apply to regional public water supply systems for which a final engineering report has been approved by the United States Bureau of Reclamation. These requirements are in addition to the other requirements in this chapter, except where a rule specifically provides otherwise:

(a) Upon receipt of a submittal or resubmittal under (4) of plans, specifications, or deviation requests for the storage, pumping, and distribution portions of a regional public water supply system, the department shall provide a written response within 40 calendar days after a submittal and within 20 working days after a resubmittal. The department's response must approve the submittal, approve the submittal with conditions, describe additional information that must be submitted to the department, or deny the submittal.

(b) Portions of a regional public water supply system for which the department has reviewed and approved plans, specifications, or deviations under (4) are not subject to changes in department design or construction criteria for a period of 72 months after the department's approval. Unless the applicant has completed construction, alteration, or extension of the approved portions of the system within 72 months after the department's approval, the approval is void and a design report, plans, and specifications must be resubmitted under (4) with the appropriate fees specified in this subchapter. The department may grant a completion deadline extension if the applicant requests an extension in writing and demonstrates adequate justification to the department.

(c) Except as provided in (4) and (10)(b), the approval of a regional water system's standard construction contract documents and provisions for amendments to those documents remains in effect for the construction period of the project as contained in the final engineering report approved by the United States Bureau of Reclamation.

(10) through (17) remain the same, but are renumbered (11) through (18).

AUTH: 75-6-103, MCA

IMP: 75-6-103, 75-6-112, 75-6-121, MCA

REASON: The proposed amendments to ARM 17.38.101 incorporate new statutory requirements for the review of regional water supply systems. Section 1, Chapter 449, Laws of 2009. The new provisions will apply to regional water supply systems for which a final engineering report has been approved by the United States Bureau of Reclamation. For these projects, the statute requires a shorter time for department review of plans and specifications, a longer life for plan approvals after the approvals are issued by the department, and a project-life approval for project documents other than design plans and specifications. All other requirements in the subchapter apply to these projects, except as specifically modified by these amendments.

Proposed new (10)(a) would implement the statutory requirement that the Department of Environmental Quality (DEQ) conduct review of submittals of plans and specifications in 40 calendar days, and conduct review of resubmittals in 20 working days. ARM 17.38.101(7) currently provides for a 60-day review period of all plan and specification submittals. The 60-day review period will remain in effect for all systems except for approved regional water supply systems that are subject to proposed new (10). Proposed new (10)(a) is necessary to implement the statute, and to expedite DEQ review of regional water supply projects.

Proposed new (10)(b) would implement the statutory requirement that DEQ approval of design and construction standards, and approval of deviations from those standards, not be subject to change for 72 months. When plans for public water or sewer projects are submitted to DEQ, they are subject to ARM 17.38.101(4), which requires that the plans comply with current DEQ design criteria as set out in rules and Department Circulars. After DEQ issues an approval of plans and specifications, the current rules allow the applicant 36 months to construct the approved project. During the 36-month period, the approved project design is not subject to changes in DEQ design criteria. ARM 17.38.101(9). For regional public water supply systems, Sec. 1, Ch. 449, L. 2009 requires a 72-month period in which approved plans, specifications, and deviations not be subject to change. The proposed amendment implements the statute by providing that DEQ-approved plans, specifications, and deviations for regional water supply systems will not be subject to changes in DEQ design standards if the approved portion of the project is constructed within 72 months. If construction is not completed within 72 months after approval of plans and specifications, the proposed amendment requires that plans be resubmitted for DEQ approval, with review fees. Upon resubmittal the plans must be reviewed in accordance with DEQ standards in effect at the time. Proposed new (10)(b) is necessary to implement the statute, and to provide a longer construction window for approved projects that may be extensive in scope.

Proposed new (10)(c) would implement the statutory requirement that DEQ approval of a regional water system's standard construction contract documents, and provisions for amendments to those documents, must remain in effect for the construction period of the project as contained in the final engineering report approved by the United States Bureau of Reclamation. The statutory provision that DEQ approval of construction documents last for the entire construction period must be construed in conjunction with the statutory requirement that DEQ approval of design and construction standards, and deviations from those standards, not be subject to change for 72 months. Proposed new (10)(c) would implement the two statutory provisions by providing for approval of standard construction contract documents for the entire construction period, but providing that specific design standards in those construction contract documents are subject to ARM 17.38.101(4) and 17.38.101(10)(b). If design standards are included in general contract documents approved by DEQ under proposed new (10)(c), the design standards must be updated if they are later submitted as part of plans and specifications under ARM 17.38.101(4). After DEQ approval of the design standards under ARM 17.38.101(4), the standards are not subject to change for 72 months to allow for construction.

17.38.208 TREATMENT REQUIREMENTS (1) through (2)(e) remain the same.

(3) The board adopts and incorporates by reference 40 CFR 141.72, which sets forth treatment requirements for public water suppliers that use ~~filtered~~ surface water, except that the terms "undetectable" and "not detected" in 40 CFR 141.72(a)(4)(i) and 141.72(b)(3)(i) are replaced by the phrase "less than 0.2 mg/l by the DPD method or 0.1 mg/l by the amperometric titration method."

(4) through (4)(w) remain the same.

AUTH: 75-6-103, MCA

IMP: 75-6-103, MCA

REASON: The proposed amendment to ARM 17.38.208(3) removes department language that specifies a numeric disinfectant level that must be maintained throughout the distribution system of a system that supplies full-time chemical disinfection. This amendment will conform the rule to the federal rule, which allows systems to maintain a lower disinfectant residual. Because the amount of chemical disinfectant added may affect the formation of disinfection byproducts, the reduction in the disinfectant residual requirement may increase a system's ability to comply with the disinfection byproducts rule, which is adopted by reference in ARM 17.38.216(3).

17.38.225 CONTROL TESTS (1) To determine compliance with treatment requirements of this subchapter, to judge variations in water quality, to identify objectionable water characteristics, and to detect the presence of foreign substances which may adversely affect the quality of the water, control tests must be performed, recorded, and reported by water suppliers in accordance with procedures and reporting formats approved by the department.

(2) ~~At least two c~~Chlorine residual tests must be conducted daily~~, one at each entry point and one in the distribution system~~ by:

(a) by a supplier of a public water supply system employing full time chlorination of a ground water source. The frequency of chlorine residual monitoring may be reduced by the department for noncommunity ground water water systems on a case-by-case basis surface water systems and consecutive systems to a surface water system in accordance with the requirements in 40 CFR 141.72 and with the other requirements in this subchapter for chlorine residual monitoring for surface water supplies;

(b) by a supplier of a public water supply system using a surface water source, who also shall comply with the other requirements in this subchapter for chlorine residual monitoring for surface water supplies ground water systems in accordance with 40 CFR Part 141, subpart S; and

(c) ~~by a consecutive system that receives chlorinated water from its wholesaler~~ ground water systems required to maintain a residual in its distribution system and by consecutive systems connected to those systems at each entry point to the distribution system and one in the distribution system. For consecutive systems, the entry point is the point at which the purchased water enters the distribution system of the consecutive system. The department may waive, on a case-by-case basis, the requirement for:

(i) through (7) remain the same.

AUTH: 75-6-103, MCA

IMP: 75-6-103, MCA

REASON: The proposed amendments to ARM 17.38.225 are necessary to accommodate the new federal ground water rule, which is adopted by reference in proposed New Rule I. The new ground water rule creates a third type of disinfecting system that must be accommodated under ARM 17.38.225: ground water systems that must achieve 4-log virus inactivation, prior to the first user, with no residual disinfectant requirement. The proposed changes are necessary to increase systems' ability to comply with the federal requirements adopted in proposed New Rule I, which the must be adopted in order for the department to retain primacy for the Safe Drinking Water Act requirements within the state of Montana.

17.38.229 MICROBIAL TREATMENT (1) Full-time disinfection with chlorine, chlorine dioxide, chloramines, or a disinfectant that maintains a residual is mandatory where the source of water is from lakes, reservoirs, or streams, or ground water sources under the direct influence of surface water, or where the water may be exposed to a potential source of contamination including, but not limited to:

(a) losses of pressure within the system that could result in backflow or infiltration conditions; or

(b) substandard distribution, pumping, or storage facilities; or

(c) other circumstances where the department determines that the history and nature of contamination indicates a residual is required for a safe water.

(2) Full-time ~~disinfection of the water supply~~ microbial treatment that provides adequate inactivation or removal of harmful pathogens is mandatory whenever the water may be exposed to a potential source of contamination through:

(a) and (b) remain the same.

(3) Full time disinfection of the water in a ground water supply system is mandatory whenever the record of bacteriological tests of the system does not indicate a safe water under the criteria listed in ARM 17.38.207 and 17.38.215. Full time disinfection with chlorine, chlorine dioxide, chloramines, or a disinfectant that maintains a residual may be required where the history and nature of the contaminant indicate a residual is required to ensure safe water.

~~(4)~~ (3) Methods of full-time ~~disinfection~~ microbial treatment must be reviewed and approved by the department prior to the installation or use of any form of treatment.

~~(5)~~ (4) When the department determines a residual is required in the distribution system of a ground water system, Tthe residual disinfectant concentration measured as free chlorine, total chlorine, combined chlorine, chlorine dioxide, or other department approved disinfectant(s), in the distribution system of a ground water supply system required by the department to use continuous disinfection with chlorine, chlorine dioxide, chloramines, or a disinfectant that maintains a residual must not be less than 0.2mg/l using the DPD method or 0.1mg/l using the amperometric titration method. A heterotrophic bacteria concentration in water in the distribution system less than or equal to 500 per milliliter, measured as heterotrophic plate count (HPC), is an acceptable substitute for disinfectant residual for purposes of determining compliance with this rule.

AUTH: 75-6-103, MCA

IMP: 75-6-103, MCA

REASON: The proposed amendments to ARM 17.38.229 are necessary to maximize the tools that systems have available to comply with new requirements in the federal ground water rule, which is adopted by reference in proposed New Rule I. Previously, microbiological contaminants in ground water systems have been regulated only under the federal total coliform rule, and disinfection, otherwise known as "inactivation," was the only treatment option. New federal requirements under the ground water rule will allow ground water systems to consider nonchemical treatment, otherwise known as "removal," to resolve some compliance issues. The proposed amendments are intended to allow systems to comply with requirements established in the new federal rules, which the department must adopt in order to retain primacy for the Safe Drinking Water Act requirements within the state of Montana.

17.38.231 SANITARY SURVEYS (1) Public water supply systems must undergo an initial sanitary survey by June 29, 1994, for community systems and nontransient noncommunity systems, and by June 29, 1999, for transient noncommunity water systems. Thereafter, nontransient noncommunity and transient noncommunity water systems must undergo another sanitary survey at least once every five years, and ~~all other public~~ community water supply systems must undergo another sanitary survey at least once every three years except that the department may define a process by which a community system may be determined to be an outstanding performer and have its sanitary survey schedule reduced to no less frequently than every five years. The department must review the results of each sanitary survey to determine whether the existing monitoring frequency is adequate and what additional measures, if any, the system needs to undertake to improve drinking water quality.

(2) remains the same.

AUTH: 75-6-103, MCA

IMP: 75-6-103, MCA

REASON: The proposed amendments to ARM 17.38.231 are necessary to remove some department requirements that are more stringent than comparable federal requirements. When a primacy agency has regulations that are more stringent than comparable federal requirements, those more stringent requirements become the National Primary Drinking Water Regulations within that state and all violations of those requirements must be reported to the United States EPA. The United States EPA reviews each primacy agency's compliance determinations to ascertain how well that agency has implemented the primacy agreement as well as to determine how well the regulated community is complying with the requirements. Because of current work loads and priorities, the increased burden placed on the department to conduct sanitary surveys at an increased interval has the potential to create violations not only for the department but also for regulated systems. The use of the federal requirements will reduce the department's workload and will potentially reduce the creation of both state and system violations that must be reported to EPA as a condition of primacy.

17.38.513 CHEMICAL TREATMENT OF WATER (1) Each load of water shall be dosed with enough chlorine to provide a free chlorine or total chlorine residual of 0.4 parts per million. The water hauler shall have DPD test kits to check the chlorine residual.

(2) remains the same.

AUTH: 75‑6-103, MCA

IMP: 75-6-103, MCA

REASON: The proposed amendment to ARM 17.38.513 is necessary to clarify that some systems that disinfect are unable to measure a free chlorine residual and that that water still meets department requirements.

4. The proposed new rules provide as follows:

NEW RULE I GROUND WATER RULE (1) The board adopts and incorporates by reference 40 CFR Part 141, subpart S, which sets forth the requirements to ensure that systems using ground water sources are adequately protected.

AUTH: 75-6-103, MCA

IMP: 75-6-103, MCA

REASON: Proposed New Rule I is necessary to adopt new federal requirements. The department is required to adopt language comparable to the federal language as a condition of its primacy agreement with EPA. Public water systems that are subject to this new requirement are required to comply with the requirements regardless of whether Montana adopts comparable language or not. The federal Ground Water rule sets standards to ensure that ground water sources and their associated systems are protective of public health.

NEW RULE II INITIAL DISTRIBUTION SYSTEM EVALUATIONS (1) The board adopts and incorporates by reference 40 CFR Part 141, subpart U, which sets forth the requirements for determining monitoring locations and other requirements for subpart V compliance monitoring.

AUTH: 75-6-103, MCA

IMP: 75-6-103, MCA

REASON: Proposed New Rule II is necessary to adopt new federal requirements. The department is required to adopt language comparable to the federal language as a condition of its primacy agreement with EPA. Public water systems that are subject to this new requirement are required to comply with the requirements regardless of whether Montana adopts comparable language or not. The federal Initial Distribution System Evaluation rule sets standards to ensure that systems supplying full-time disinfection are monitoring in the correct locations and times to determine compliance with the disinfection byproducts rules.

NEW RULE III STAGE 2 DISINFECTION BYPRODUCTS REQUIREMENTS

(1) The board adopts and incorporates by reference 40 CFR Part 141, subpart V, which sets forth the requirements for monitoring and other requirements for achieving compliance with maximum contaminant levels based on running annual averages for disinfection byproducts.

AUTH: 75-6-103, MCA

IMP: 75-6-103, MCA

REASON: Proposed New Rule III is necessary to adopt new federal requirements. The department is required to adopt language comparable to the federal language as a condition of its primacy agreement with EPA. Public water systems that are subject to this new requirement are required to comply with the requirements regardless of whether Montana adopts comparable language or not. The federal Stage 2 Disinfection Byproducts rule is the newest round of requirements set to protect users of systems that provide disinfection with a disinfectant that may cause the creation of disinfection byproducts.

NEW RULE IV ENHANCED TREATMENT FOR CRYPTOSPORIDIUM

(1) The board adopts and incorporates by reference 40 CFR Part 141, subpart W, which establishes or extends treatment technique requirements in lieu of maximum contaminant levels for cryptosporidium.

AUTH: 75-6-103, MCA

IMP: 75-6-103, MCA

REASON: Proposed New Rule IV is necessary to adopt new federal requirements. The department is required to adopt language comparable to the federal language as a condition of its primacy agreement with EPA. Public water systems that are subject to this new requirement are required to comply with the requirements regardless of whether Montana adopts comparable language or not. The federal Enhanced Treatment for Cryptosporidium rule is the newest round of requirements set to protect users of surface water systems from cryptosporidium.

5. The rules proposed to be repealed are as follows:

17.38.701 LICENSES--PRIVATE WATER SUPPLIES (Located at page 17-3679, Administrative Rules of Montana. AUTH: 75-6-103, MCA; IMP: 75-6-103, 75-6-112, MCA)

17.38.702 DISPOSAL OF EXCREMENT (Located at pages 17-3679 and 17-3680, Administrative Rules of Montana. AUTH: 75-6-103, 75-6-112, MCA; IMP: 75-6-103, 75-6-112, MCA)

17.38.703 BARNYARDS AND STOCKPENS (Located at page 17-3680, Administrative Rules of Montana. AUTH: 75-6-103, 75-6-112, MCA; IMP: 75-6-113, MCA)

REASON: The proposed repeal of ARM 17.38.701, 17.38.702, and 17.38.703 is necessary because the department does not have statutory authority to enforce these rules under Title 76, chapter 6, part 1, MCA. The portions of these rules that the department does have statutory authority to regulate are codified in other sections of the Administrative Rules of Montana.

6. Concerned persons may submit their data, views, or arguments, either orally or in writing, at the hearing. Written data, views, or arguments may also be submitted to Elois Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana 59620-0901; faxed to (406) 444-4386; or e-mailed to ejohnson@mt.gov, no later than 5:00 p.m., September 10, 2009. To be guaranteed consideration, mailed comments must be postmarked on or before that date.

7. Katherine Orr, attorney for the board, or another attorney for the Agency Legal Services Bureau, has been designated to preside over and conduct the hearing.

8. The board 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 that the person wishes to receive notices regarding: air quality; hazardous waste/waste oil; asbestos control; water/wastewater treatment plant operator certification; solid waste; junk vehicles; infectious waste; public water supply; public sewage systems regulation; hard rock (metal) mine reclamation; major facility siting; opencut mine reclamation; strip mine reclamation; subdivisions; renewable energy grants/loans; wastewater treatment or safe drinking water revolving grants and loans; water quality; CECRA; underground/above ground storage tanks; MEPA; or general procedural rules other than MEPA. 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 Elois Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Ave., P.O. Box 200901, Helena, Montana 59620-0901, faxed to the office at (406) 444-4386, e-mailed to Elois Johnson at ejohnson@mt.gov, or may be made by completing a request form at any rules hearing held by the board.

9. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The rules in this notice are the first rules to implement HB 557 (2009), which required the Board of Environmental Review to adopt rules for the approval of regional water systems. The sponsor of HB 557 was contacted by a letter dated May 20, 2009, that the department was beginning to work on the substantive content of the rules. The sponsor of SB 102 was also contacted by letter of May 20, 2009, that the department was beginning to work on the rules to implement SB 102.

Reviewed by: BOARD OF ENVIRONMENTAL REVIEW

/s/ James M. Madden BY: /s/ Joseph W. Russell

JAMES M. MADDEN JOSEPH W. RUSSELL, M.P.H.,

Rule Reviewer Chairman

Certified to the Secretary of State, August 3, 2009.