BEFORE THE BOARD OF ENVIRONMENTAL REVIEW
OF THE STATE OF MONTANA
In the matter of the amendment of ARM 17.50.403 and 17.50.410 pertaining to definitions and annual operating license requirements
NOTICE OF PROPOSED AMENDMENT
NO PUBLIC HEARING CONTEMPLATED
TO: All Concerned Persons
1. On May 15, 2010, the Board of Environmental Review proposes to amend the above-stated rules.
2. The board will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process and need an alternative accessible format of this notice. If you require an accommodation, contact Elois Johnson, Paralegal, no later than 5:00 p.m., May 3, 2010, 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 firstname.lastname@example.org.
3. The rules proposed to be amended provide as follows, stricken matter interlined, new matter underlined:
17.50.403 DEFINITIONS Unless the context requires otherwise, in this subchapter the following definitions apply:
(1) through (5) remain the same.
(6) "Contaminated soil" means soil, rocks, dirt, or earth that has been made impure by contact, commingling, or consolidation with organic compounds such as petroleum hydrocarbons.
The term This definition does not include soils contaminated solely by inorganic metals, or soils that meet the definition of hazardous waste under ARM 17.54.201 Title 17, chapter 53, or regulated PCB (polychlorinated biphenyls) contaminated soils.
(7) through (12) remain the same.
(13) "Interim closure" means the period of time from the department's receipt of the certification required in ARM
17.50.530(1)(h) 17.50.1403(10) until the department verifies closure compliance under ARM 17.50.530 approves that certification.
(14) through (54) remain the same.
AUTH: 75-10-106, 75-10-115, 75-10-204, 75-10-221, MCA
IMP: 75-10-115, 75-10-221, MCA
17.50.410 ANNUAL OPERATING LICENSE REQUIRED (1) through (6)(c) remain the same.
Fees at a facility in interim closure must be held in abeyance by the department. Once a facility is in interim closure, the duty of its owner or operator to pay license fees is suspended. If the department determines, pursuant to ARM 17.50.530 17.50.1403(10), that not to approve certification of closure was not completed in compliance with the closure plan, the owner or operator shall pay to the department the suspended fees held in abeyance to the department. An owner or operator of a facility for which the department has determined by the department not to have completed closure in compliance with the facility's closure plan approve certification of closure shall, after the owner or operator believes that closure has been completed in compliance with the closure plan, submit a new certification as required in under ARM 17.50.530(1)(h) 17.50.1403(10). The facility is then again in interim closure, pending re-inspection and verification of closure compliance approval of closure certification by the department.
Tables 1 through 3 remain the same.
AUTH: 75-10-106, 75-10-115, 75-10-204, 75-10-221, MCA
IMP: 75-10-115, 75-10-204, 75-10-221, MCA
REASON: The board is proposing to amend the definition of "contaminated soil" in ARM 17.50.403(6), which excludes soils that meet the definition of hazardous waste under the department's hazardous waste rules. The current definition cites a Department of Environmental Quality hazardous waste program rule, ARM 17.54.201, that the department repealed in 2001, at p. 169, 2001 Montana Administrative Register, Issue Number 2. At that time, the department adopted new hazardous waste rules, and one of those rules, ARM 17.53.301, incorporates by reference a regulation of the U.S. Environmental Protection Agency, 40 CFR 260.10, that defines the contaminated soils that constitute hazardous waste. It is necessary to amend the citation in ARM 17.50.403(6) so that it refers to the current hazardous waste rules.
Although the board has been delegated the authority to adopt solid waste management system fee rules, the department has been delegated the authority, pursuant to Section 75-10-204, MCA, to adopt other types of rules governing solid waste management systems. In a recent rulemaking, the department added a definition of "contaminated soil" to its solid waste rules, at ARM 17.50.502(8). This definition explicitly excludes soils contaminated by polychlorinated biphenyls (PCBs). Because the board's fee rules establish fees for activities governed by the department's solid waste rules, the board is also proposing to amend the definition of "contaminated soil" in ARM 17.50.403(6) to conform it to the definition of "contaminated soil" in amended department rule ARM 17.50.502(8), by excluding soils contaminated by PCBs.
In its recent solid waste rulemaking, the department also repealed ARM 17.50.530, which concerned closure of a landfill unit. ARM 17.50.403(13) and 17.50.410(7) contain cross-references to ARM 17.50.530(1)(h), which concerned certification of closure completion by an owner or operator and verification of closure completion by the department. The department replaced ARM 17.50.530(1)(h) with new ARM 17.50.1403(10). Therefore, the board is proposing to amend ARM 17.50.403(13) and 17.50.410(7) to correct the outdated citation.
ARM 17.50.410(7) requires the department to hold fees in abeyance when a solid waste management facility is in interim closure. Because the phrase "held in abeyance" may be unclear, the board is proposing to amend that subsection to substitute "suspended" for "held in abeyance." The use of "suspended" would clarify that the duty of an owner or operator to pay license fees is suspended once a facility is in interim closure.
The board is proposing to make minor editorial revisions for clarity that are not intended to change the meaning of the rules.
4. Concerned persons may submit their data, views, or arguments concerning the proposed action in writing to 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 email@example.com, no later than May 13, 2010. To be guaranteed consideration, mailed comments must be postmarked on or before that date.
5. If persons who are directly affected by the proposed action wish to express their data, views, or arguments orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments they have to 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 firstname.lastname@example.org, no later than May 13, 2010.
6. If the board receives requests for a public hearing on the proposed action from either 10% or 25, whichever is less, of the persons who are directly affected by the proposed action; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date. Notice of the hearing will be published in the Montana Administrative Register. Ten percent of those persons directly affected has been determined to be 7 based on the 71 licensees in Montana.
7. The board maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this entity. 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 at Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-2630; fax (406) 444-4386; or e-mail email@example.com, or may be made by completing a request form at any rules hearing held by the board.
8. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
Reviewed by: BOARD OF ENVIRONMENTAL REVIEW
/s/ David Rusoff BY: /s/ Joseph W. Russell
DAVID RUSOFF JOSEPH W. RUSSELL, M.P.H.,
Rule Reviewer Chairman
Certified to the Secretary of State, April 5, 2010.