BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY
OF THE STATE OF MONTANA
In the matter of the amendment of ARM 17.55.102, 17.55.108, 17.55.111 and 17.55.114 pertaining to definitions, facility listing, facility ranking, and delisting a facility on the CECRA priority list; adoption of New Rules I through V pertaining to incorporation by reference, proper and expeditious notice, third-party remedial actions at order sites, additional remedial actions not precluded, and orphan share reimbursement; and repeal of ARM 17.55.101 pertaining to purpose
NOTICE OF AMENDMENT, ADOPTION, AND REPEAL
TO: All Concerned Persons
1. On October 15, 2009, the Department of Environmental Quality published MAR Notice No. 17-296 regarding a notice of public hearing on the proposed amendment, adoption, and repeal of the above-stated rules at page 1730, 2009 Montana Administrative Register, issue number 19. On November 12, 2009, the department published MAR Notice No. 17-296 regarding a notice of extension of comment period on the proposed amendment, adoption, and repeal of the above-stated rules at page 2077, 2009 Montana Administrative Register, issue number 21. On April 15, 2010, the department published MAR Notice No. 17-296 regarding a notice of extension of comment period on the proposed amendment, adoption, and repeal of the above-stated rules at page 816, 2010 Montana Administrative Register, issue number 7.
2. In a letter dated November 16, 2009, a number of legislators requested that the department prepare an economic impact statement as provided for in 2-4-405, MCA. That statement was prepared by the department and sent to the Environmental Quality Council on February 16, 2010. A few commentors also requested that the department conduct an economic impact of the rules or delay final adoption of the rules until the economic impact was considered. The preparation of the economic impact statement responds to those comments as well. Because of the interest in the economic effect of the proposed rules, the department provided a supplemental comment period limited to accepting written comments on the proposed rules and rule amendments and their economic effects.
3. The department has amended ARM 17.55.111 and adopted New Rules III (ARM 17.55.110) and V (ARM 17.55.115) exactly as proposed; has declined to adopt the amendments to ARM 17.55.114; has repealed ARM 17.55.101 exactly as proposed; and has amended ARM 17.55.102, 17.55.108, and New Rules I (17.55.109), II (ARM 17.55.112) and IV (17.55.113) as proposed, but with the following changes (stricken matter interlined, new matter underlined):
17.55.102 DEFINITIONS In this subchapter the following terms have the meanings indicated below and are supplemental to the definitions in 75-10-701, MCA:
(1) remains as proposed.
(2) "Final permanent remedy" means, for purposes of 75-10-722, MCA,
all of the remedial actions identified by the department in a record of decision and constructed after the record of decision is issued.
(3) remains as proposed.
"Imminent and substantial endangerment" means contaminant concentrations in the environment exist or have the potential to exist above risk-based screening levels adopted by the department in [NEW RULE I] or other statutory or regulatory cleanup levels. "May present an imminent and substantial endangerment" and "may pose an imminent and substantial threat" mean that:
(a) except as provided in (b), concentrations of hazardous or deleterious substances in the environment exist above screening levels adopted by the department in [NEW RULE I (17.55.109)] or other statutory or regulatory cleanup levels;
(b) a concentration of a hazardous or deleterious substance in the environment in a concentration that exceeds a screening level adopted by the department in [NEW RULE I (ARM 17.55.109)] does not present an imminent and substantial endangerment or pose an imminent and substantial threat if:
(i) the department has determined pursuant to ARM 17.55.108(5) and (6) that the release does not present an imminent and substantial endangerment or pose an imminent and substantial threat to public health, safety, or welfare or the environment unless, based on significant new or different information received after the initial determination, the department makes a different determination; or
(ii) department-approved facility-specific cleanup levels developed in accordance with [NEW RULE IV (17.55.113)] for the parameters that exceed the screening levels are met.
(5) through (7) remain as proposed.
17.55.108 FACILITY LISTING (1) The department may list a facility on the CECRA priority list if the department determines there is a confirmed release or substantial threat of a release of a hazardous or deleterious substance that may pose an imminent and substantial threat
endangerment to public health, safety, or welfare or the environment.
(2) through (4) remain as proposed.
(5) When evaluating whether to list a facility under (1) and (6), the department shall consider the following factors relevant to the facility, if information on such factors is known to the department:
(a) pathways for human or ecological exposure that:
(i) are completed;
(ii) using science-based evaluation methods acceptable to the department based on site-specific conditions, have a potential to be completed; or
(iii) otherwise have a reasonable potential to be completed;
(b) the quantity, concentration, toxicity, or mobility of the hazardous or deleterious substance;
(c) the sensitivity of the receptor population;
(d) documented bioaccumulative characteristics of the hazardous or deleterious substances released;
(e) established background or naturally occurring concentrations of hazardous or deleterious substances;
(f) extent of known releases of hazardous or deleterious substances;
(g) physical characteristics of the facility;
(h) actual impacts to state water and impacts to state water that, using science-based evaluation methods acceptable to the department based on site-specific conditions, have a potential to occur; and
(i) other relevant factors that indicate actual or potential harm or lack of actual or potential harm to public health, safety, or welfare or the environment.
(6) Despite the existence of a concentration of a hazardous or deleterious substance in the environment above screening levels adopted by the department in [NEW RULE I (17.55.109)], the department may make a written determination that the release does not pose an imminent and substantial threat to public health, safety, or welfare or the environment based on its evaluation of the factors in (5).
NEW RULE I (17.55.109) INCORPORATION BY REFERENCE (1) For the purposes of this subchapter, the department adopts and incorporates by reference:
(a) through (c) remain as proposed.
(d) U.S. Environmental Protection Agency, Regional Screening Levels for Chemical Contaminants at Superfund Sites (April 2009), except when:
(i) and (ii) remain as proposed.
(iii) comparing contaminant concentrations to the protection of ground water soil screening levels, the department will apply an appropriate adjustment based upon either the ratio of the department Circular DEQ-7 human health standard and the maximum contaminant level or the ratio of the department Circular DEQ-7 human health standard and the U.S. Environmental Protection Agency tapwater screening level found in (1)(d) to ensure that contaminants potentially leaching to ground water will not exceed Montana numeric water quality standards found in department Circular DEQ-7.
(e) through (3) remain as proposed.
(4) The reference adopted in (1)(c) through (1)(f) are to be used as screening levels and the department's use of these screening levels for purposes of ARM 17.55.108(1) does not establish these levels as cleanup standards.
(5) An exceedance of a screening level alone is not sufficient for the department to initiate condemnation proceedings under 75-10-720, MCA.
NEW RULE II (17.55.112) PROPER AND EXPEDITIOUS NOTICE (1) The department shall, as resources allow and considering the facility ranking, address facilities on the priority list required by ARM 17.55.108 in the manner provided in this rule. At a facility for which no administrative or judicial order under 75-10-711, MCA, has been issued, the department shall
, as resources allow and considering the facility ranking, take the following actions:
ensure that a person liable or potentially liable under 75-10-715, MCA, is expeditiously performing remedial actions as required by 75-10-711, MCA, by requiring the establishment of a department-approved schedule for remedial actions. When establishing the schedule, the department shall consider the size and complexity of the facility and may approve, disapprove, or modify the schedule proposed by the person liable or potentially liable under 75-10-715, MCA send a letter to a person liable or potentially liable under 75-10-715, MCA, explaining the required remedial actions and their bases and providing the opportunity to conduct the required remedial actions;
send a letter to a person liable or potentially liable under 75-10-715, MCA, providing the opportunity to conduct the required remedial actions ensure that a person liable or potentially liable under 75-10-715, MCA, is expeditiously performing remedial actions as required by 75-10-711, MCA, by requiring the person to propose a schedule for remedial actions and department reviews. When proposing the schedule, the person liable or potentially liable under 75-10-715, MCA, shall evaluate and explain the size and complexity of the facility, the scope of the remedial action, the availability and normal timeframes associated with construction of the required remedial action features, permitting timeframes, specialty contractor availability and scheduling requirements (if applicable), typical climatic conditions as they related to the constructability of the remedial action and foreseeable delays in construction, and normal response time for requests to connect to utilities (as applicable). Based on that explanation, the department may approve, disapprove, or modify the schedule; and
(c) ensure that a person liable or potentially liable under 75-10-715, MCA, is properly performing the required remedial actions by reviewing work plans, reports, or other documents submitted by the person and identifying required revisions
., as follows:
Tthe person liable or potentially liable under 75-10-715, MCA, must be given, at a minimum, one opportunity to address all of the department's required revisions on each submittal .;
(ii) the person liable or potentially liable under 75-10-715, MCA, may request a meeting or conference call with the department to discuss the required revisions or alternatives to the required revisions. Such a request for a meeting or conference call must be made within seven business days of receiving the department's required revisions or the right to request such a meeting or conference call is waived;
(iii) if the department determines it is appropriate to modify its required revisions based on the meeting or conference call, the department shall document those modifications in writing;
Iif the department determines that its required revisions and any modifications, if applicable, were not adequately addressed in the revised document, the department shall incorporate its required revisions electronically into the document so that it can be finalized and shall either finalize the document itself or shall provide the person liable or potentially liable under 75-10-715, MCA, an opportunity to finalize the document with the department's revisions. If the department finalizes the document, upon request of the person liable or potentially liable under 75-10-715, MCA, the department shall remove from the final version of the document the name of the author who prepared the original version of the document. In addition, if the department finalizes the document, the department shall include a statement on the cover page of the document such as: "The department finalized this document because all of its required changes were not incorporated. Although this document is designated a department version, the author of the original document holds a copyright on the original document, and may have intellectual property rights in all or a portion of this document. Further information regarding the original document is available in the department files" or equivalent language;
(v) when incorporating required revisions into a document, the department shall ensure that documents required by Montana law to be endorsed by a licensed professional are modified and endorsed by a duly licensed professional; and
(vi) the person liable or potentially liable under 75-10-715, MCA, may indicate its disagreement with the department's required revisions in a letter to be included in the department files, and may insert the following sentences in a footnote on the cover page of the document: "The department has required changes to this document to which [the person liable or potentially liable under 75-10-715, MCA] does not agree. See the department files for more information." The person liable or potentially liable under 75-10-715, MCA, may not in any other manner indicate its disagreement with the department's required revisions in the document itself. This includes, but is not limited to, the use of highlighting, italicizing, footnoting, and underlining.
(2) A person liable or potentially liable under 75-10-715, MCA, shall complete all remedial actions required by the department according to the department's approved schedule, unless an extension is requested and approved by the department. When considering a request for extension, the department shall consider the reason for such request including, but not limited to, consideration of force majeure events; shall document its decision regarding the requested extension in writing; and shall grant a reasonable request for an extension, unless the request for an extension would result in undue delay or pose an unacceptable risk to public health, safety, and welfare and the environment. If the department's review is delayed beyond what is provided for in the schedule, the department shall modify the schedule to account for that delay.
(3) If a person liable or potentially liable under 75-10-715, MCA, does not comply with the approved schedule, does not incorporate the department's required revisions on work plans, reports, or other documents, or does not perform remedial actions as required by the department, the department may determine that the person is not properly and expeditiously performing the appropriate remedial actions and may:
(a) issue a unilateral order
requiring to the person liable or potentially liable under 75-10-711 75-10-715, MCA;
(b) file a civil action as provided in 75-10-711 or 75-10-715, MCA;
(c) conduct the required remedial actions and seek cost recovery and penalties as provided in 75-10-711 or 75-10-715, MCA;
(d) file a cost recovery action as provided in 75-10-722, MCA; or
(e) and (4) remain as proposed.
(5) The provisions of this rule do not apply to facilities that are being addressed under the Voluntary Cleanup and Redevelopment Act.
NEW RULE IV (17.55.113) FACILITY-SPECIFIC CLEANUP LEVELS AND ADDITIONAL REMEDIAL ACTIONS
NOT PRECLUDED (1) For purposes of assuring protection of public health, safety, and welfare, the department shall allow the calculation of facility-specific cleanup levels using exposure assumptions and risk levels acceptable to the department.
(2) For purposes of assuring protection of the environment, the department shall allow the calculation of facility-specific cleanup levels. The department shall approve risk and leaching determinations on a facility-specific basis using science-based assumptions acceptable to the department.
(3) Except as may otherwise specifically be provided for in a settlement agreement or administrative order on consent entered into under 75-10-723, MCA,
Iif the department selects or approves a remedial action and subsequently determines that the remedial action has failed or that additional remedial actions are required does not attain a degree of cleanup of the hazardous or deleterious substance and control of a threatened release or further release of that substance that assures protection of public health, safety, and welfare and of the environment, the department shall require further remedial action at the facility by a person liable or potentially liable under 75-10-715, MCA. The department shall set forth in writing the basis for requiring any further remedial action.
4. The following comments were received and appear with the department's responses:
A. ARM 17.50.102(2)
COMMENT NO. 1: One commentor acknowledged that the definition was important for purposes of knowing when the CECRA statute of limitations for cost recovery begins. However, the commentor believes the rules need to provide direction on how a remedy will be selected and recommends a comprehensive regulatory program be established to identify how a final remedy is selected. Another commentor indicated that the department should not adopt the National Contingency Plan (NCP) because it is based upon an entirely different federal program.
RESPONSE: The department identifies a final remedy using the criteria set forth in CECRA at 75-10-721, MCA. The department's Record of Decision (ROD) for a given facility identifies and documents how a final remedy is selected using these criteria. The definition of "record of decision," proposed in this rulemaking as a part of the changes to ARM 17.55.102(6), makes this clear. Adopting comprehensive rules, including the NCP, is outside the scope of this rulemaking.
COMMENT NO. 2: One commentor indicated that the proposed definition could have the effect of allowing the department to arbitrarily determine the time allowed to bring a cost recovery action. This commentor suggests that a legislative amendment is needed to correct any problems with the current statute of limitations. The commentor also suggests that delay in bringing a cost recovery action jeopardizes the department's primary source of funding for CECRA.
RESPONSE: As the commentor points out, the term "final permanent remedy" is used in CECRA to determine when the six-year statute of limitations begins to run. The term was added to the statute in Chapter 490, Laws of 1995. The title of that bill included the following language: "CLARIFYING THE STATUTE OF LIMITATIONS FOR COST RECOVERY TO CONFORM TO THE FEDERAL COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT." Thus, the CECRA statute of limitations is intended to mirror the statute of limitations in CERCLA. Under CERCLA, the statute of limitations cannot begin to run until the record of decision is issued. State of California v. Neville Chemical Company, 358 F.3rd 661 (9th Cir. 2004). In order to make the definition mirror the federal provision, as was intended by the Legislature, the definition has been modified by deleting the words "all of" and adding language indicating that the statute cannot begin to run until the record of decision is issued and construction is initiated.
B. ARM 17.55.102(4) and 17.55.108 (comments on these two rules are grouped together because the comments on them were generally consistent and the department responses apply to both rules)
COMMENT NO. 3: Some commentors object to the definition of "imminent and substantial endangerment," arguing generally that the term expands CECRA or is not consistent with CECRA. Some commentors stated that the EPA interprets "endangerment" to mean an immediate threat or risk, and stated that the department should incorporate a similar definition. At least one commentor questioned the need for the rule. Relatedly, two commentors pointed out that 75-10-702, MCA, allows listing of sites that may pose an "imminent and substantial threat" and one asked for clarification on whether the department defines the terms differently and, if so, a description of those differences.
RESPONSE: CECRA uses the term "imminent and substantial endangerment" in at least four different sections. In 75-10-711(1), MCA, the term is used to help define one of the circumstances under which the department may take remedial action as whenever a release or threat of release "may present an imminent and substantial endangerment to the public health, welfare, safety or the environment" and in 75-10-711(8), MCA, to describe when the department can initiate judicial action. In 75-10-720, MCA, it is used to identify when the department may initiate condemnation proceedings. In 75-10-732, MCA, it is used in identifying when a facility is eligible for voluntary cleanup procedures.
CECRA uses the term "imminent and substantial threat" in at least three different sections. In 75-10-701(8), MCA, it is used to help define a "hazardous or deleterious substance" as one that "may pose an imminent and substantial threat to public health, safety, or welfare, or the environment." In 75-10-702, MCA, it is used to help determine when a facility may be listed on the CECRA Priority List. In 75-10-707(7), MCA, it is used as a basis for a court to support the department's request for a motion to compel compliance with an information or access order.
Despite the wide use of these terms in CECRA, the terms themselves are not defined. Therefore, as the agency charged with the implementation of the statute, the department is responsible for providing a reasonable interpretation of the terms. In addition, because 75-10-702, MCA, requires the department to adopt listing rules based on imminent and substantial threat, adoption of the definition is a necessary part of the listing rules. The department has carefully reviewed the use of both of these terms in CECRA as well as how the department has administered the statute for the last twenty years and has determined that the two terms are meant to be used interchangeably within the statute. To ensure this is clear, the department has revised the rule to indicate the definition applies to both.
In interpreting the terms at issue, the department considered a variety of options. For example, the department could interpret the terms to mean that any amount of hazardous or deleterious substance in the environment, present above laboratory detection limits, may pose an imminent and substantial endangerment or threat. That interpretation, however, is overly conservative. The department is striving to provide a balance between the potential risk to human health and the environment and the concerns of the regulated community.
The commentors' arguments that the use of screening levels to help define "imminent and substantial" is a departure from established practice or represents an expansion of CECRA is in error. The department has been using these screening levels to define when an imminent and substantial endangerment may exist since at least January 2002, when the Voluntary Cleanup and Redevelopment Act Application Guide was published. Section 2.0 of that document indicates that "the department interprets 'imminent and substantial endangerment to public health, safety, or welfare or the environment' to mean contaminant concentrations in the environment exist or have the potential to exist above risk-based screening levels. Department-approved generic screening levels are provided in Section 5.2 of this guide. Facilities with contamination below these generic screening levels do not require further evaluation or remediation." The department has also interpreted and applied the existing listing rules, in place since 1999, by use of these screening levels. The proposed definition incorporates existing practice.
In determining the appropriate way to interpret "imminent and substantial threat" or "imminent and substantial endangerment" in the context of CECRA, the department evaluated how courts have interpreted CERCLA's use of the term "imminent and substantial endangerment" and found that those courts' interpretations are consistent with the department's interpretation of that term to mean exceedances of screening levels. In United States v. Conservation Chemical Co., 619 F.Supp. 162 (W.D. Mo. 1985), an oft-cited CERCLA case, the court analyzed the phrase "imminent and substantial." "[A]n endangerment need not be an emergency in order for it to be imminent and substantial .... Thus, an endangerment is imminent if factors giving rise to it are present, even though the harm may not be realized for years." Id. at 193-194. The Conservation Chemical court went on to hold that: "if an error is to be made in applying the endangerment standard, the error must be made in favor of protecting public health, welfare and the environment. Thus just as the word 'imminent' does not require proof that harm will occur tomorrow, and the word 'endangerment' does not require quantitative proof of actual harm, the word 'substantial' does not require quantification of the endangerment ... Instead ... an endangerment is substantial if there is reasonable cause for concern that someone or something may be exposed to a risk of harm by a release or threatened release of a hazardous substance if remedial action is not taken, keeping in mind that protection of the public health, welfare and the environment is of primary importance." Id. at 194.
Superfund's primary protective function is what guides the department's use of screening levels in determining "imminent and substantial endangerment" and "imminent and substantial threat." Use of these screening levels is particularly applicable given the rights and obligations established in Mont. Const. art 2, § 3; and art 9, § 1.
In ongoing Superfund litigation at a site near Kalispell, the department presented its interpretation of "imminent and substantial endangerment" to the First Judicial District Court. That interpretation is consistent with the proposed rules. In that case, the Court agreed with the department's interpretation of the term, finding that "[s]creening levels are levels at which a contaminant of concern (COC) may pose an imminent and substantial endangerment to the public health, safety or welfare." State of Montana ex rel the Department of Environmental Quality v. BNSF Railway Company, et al., BDV-2004-596, Findings of Fact, Conclusions of Law, and Order (February 10, 2009).
Finally, specific Montana legislative findings support the department's interpretation of what conditions may pose an imminent and substantial endangerment to public health, safety, or welfare or the environment. For example, the legislature has directed, without reference to volumes or concentrations, that any release of petroleum (a defined hazardous or deleterious substance under 75-10-701(8)(d), MCA) "endanger[s] public health, and safety, groundwater quality, and other state resources." (75-11-301(3), MCA) One of the legislature's stated purposes for CECRA is to "provide remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources." (75-10-706(2), MCA) At a minimum, that degradation may start when screening levels have been exceeded which the department interprets as potentially posing an imminent and substantial endangerment.
With this explanation, the department has attempted to be as responsive as possible to specific concerns about this definition and has made changes to the proposed rules where appropriate as indicated in the responses to later comments.
COMMENT NO. 4: A few commentors objected to the use of the term "potential to exist" in ARM 17.55.102, arguing that it is vague and provides no reasonable limitations on the department's discretion to identify a site.
RESPONSE: It is the department's goal to only consider sites for listing that may pose an imminent and substantial threat to public health, safety, and welfare and the environment. The department agrees that the term "potential to exist" is of little value in making this determination and has removed the term from the rule based upon these comments.
COMMENT NO. 5: Some commentors objected to the use of the term "contaminant" because it is not defined and at least one suggested the proper term is "hazardous or deleterious substance" which is a defined term under CECRA.
RESPONSE: The department agrees that "hazardous or deleterious substance" is a better term to use than "contaminant" and the rule has been revised accordingly.
COMMENT NO. 6: Some commentors objected to the definition proposed, arguing that sites should be addressed on a case-by-case basis and the department should consider more than just exceedances of screening levels when proposing a site for listing. At least one commentor suggested the use of this definition oversimplifies the term by not taking into account other factors. Other commentors stated that the proposed definition improperly replaces the risk assessment process. Commentors included a variety of factors they believe should be considered when making the determination, including background concentrations, pathways of exposure to the receptor population, sensitivity of the receptor population, the history of releases at the facility, staining of the ground, quantity and mobility of the contaminants, potential for bioaccumulation of the contaminant, and a variety of other factors. Other commentors stated that there is not a mechanism in the rules to ensure that the rules are applied consistently, expressed concern that the rules might be applied arbitrarily, and stated that the department must develop a record proving a risk before determining that there is an "imminent and substantial endangerment." Some commentors indicated listing should not be dependent on a NIOSH standard of "immediately dangerous to life and health" because it would not comply with Montana's constitutional requirement that the state maintain and improve a clean and healthful environment.
RESPONSE: Section 75-10-702, MCA, specifically states which facilities are eligible for listing under CECRA: those that have "a confirmed release or substantial threat of a release of a hazardous or deleterious substance that may pose an imminent and substantial threat to public health, safety, or welfare or the environment." Contrary to the commentor's statement, there is no requirement that the department prove risk before making this determination. At the time of listing, it is unlikely that the department will have complete information about the extent of the release at the facility. Listing the site allows the department to prioritize the need for remedial action and allocate resources to sites. The department should not be required to wait to list a site and initiate actions until the exhaustive list of suggested information has been acquired. Much of this information will not be obtained until a remedial investigation has been completed and the department has determined that it is more appropriate to get the site listed and ranked and then allow the person liable or potentially liable under 75-10-715, MCA, (hereinafter "LP") the opportunity to properly and expeditiously perform the required remedial actions. However, there may be sites proposed for listing where some or all of the information suggested by the commentors is available. In that case, it is appropriate to consider such information. For example, if known background concentrations at the facility exceed screening levels then background may be considered in place of screening levels. Therefore, in response to these comments, the department has identified a number of factors that it will consider when making a listing decision to the extent information about those factors is available, in addition to whether there are exceedances of the identified screening levels and did not adopt the referenced NIOSH standard. Although the factors could have been inserted in the definition, the department for clarity has placed the factors in ARM 17.55.108 and cross-referenced the factors in the definition. Included are most of the factors identified by the commentors. They do not include staining of the ground because a number of commentors were concerned that a grease spot in a driveway not lead to CECRA listing. Again, however, it is important to note that sometimes when a facility is proposed for listing, the department may not have all the information in its possession to evaluate all the factors. Therefore, the department will consider the factors in determining whether an imminent and substantial endangerment or threat may exist to the extent appropriate information regarding those factors is known. The specificity of the factors included within the revised ARM 17.55.108 is intended to provide consistency in the application of the rules. Finally, this initial screening does not replace the risk assessment process. See comments below regarding facility-specific risk assessment.
COMMENT NO. 7: A number of commentors were concerned that using screening levels to make determinations regarding imminent and substantial endangerment would result in the use of those screening levels as de facto cleanup standards or presumptive cleanup levels or set a standard of care that could spur unnecessary private-party litigation. At least one commentor expressed concern that the need for remedial action is implied in the definition of "imminent and substantial endangerment." Other comments suggested that screening levels serve as a baseline tool to assess the potential for a threat and that site-specific cleanup levels should be allowed.
RESPONSE: It is not the department's intent that screening levels, used to determine when a facility may pose an imminent and substantial endangerment to public health, safety, or welfare or the environment, become de facto cleanup standards or presumptive cleanup levels for any purpose, including third-party litigation. It is clear from a close reading of all the comments that many commentors believe the department interprets an exceedance of a screening level as meaning there is actual harm. Screening levels serve as a baseline tool to assess whether the potential for harm exists. Although at least one commentor expressed concern that a situation that is an "imminent and substantial endangerment" implies a need for remedial action, an exceedance of screening levels indicates the need for further evaluation, which is included within the definition of "remedial action." (75-10-701(20), MCA) As pointed out by at least one commentor, an exceedance of a screening level simply indicates the need for further evaluation, which consists of evaluating the nature and extent of the hazardous or deleterious substances and the actual risk to public health, safety, or welfare environment, which is where the risk assessment process and the development of facility-specific cleanup numbers are employed. To address these concerns, the department has modified the term defined to be "may present an imminent and substantial endangerment" and "may pose an imminent and substantial threat." The department has also revised New Rule I to clearly state that screening levels are not cleanup standards, and has revised New Rule IV (ARM 17.55.113) to specifically provide for facility-specific cleanup levels. It is important to note that some LPs choose to use screening levels as cleanup levels in order to save the time and expense of calculating facility-specific cleanup levels. The rules will still allow this practice, while clarifying that use of those screening levels as cleanup levels is not necessarily required.
COMMENT NO. 8: Some commentors suggested the department should list sites using EPA's Hazard Ranking System (HRS) or something similar such as an endangerment assessment. Other commentors said the department should not use the HRS as it would eliminate the responsibility of liable parties to cleanup contaminated sites that CECRA was established to address and that adoption of this approach would undermine the fundamental purpose of CECRA.
RESPONSE: CECRA is designed to address sites that may not be addressed under CERCLA, and therefore the criteria for listing a CECRA site may not be the same as the criteria under CERCLA. Under CERCLA, listing and ranking occur simultaneously. Under CECRA, a site is listed and then ranked. Using the HRS package on CECRA sites is unnecessary and would be expensive and overly burdensome at such an early stage in the process. The department has determined it is more appropriate to focus its resources on cleanup rather than the burdensome investigations that would be necessary under the commentor's proposal to list and rank sites at the same time. Section 75-10-702, MCA, specifically states which facilities are eligible for listing under CECRA: those that have "a confirmed release or substantial threat of a release of a hazardous or deleterious substance that may pose an imminent and substantial threat to public health, safety, or welfare or the environment." At the time of listing, it is unlikely that the department will have complete information about the extent of the release at the facility. Listing the site allows the department to prioritize the need for remedial action and allocate resources to sites. The department should not be required to wait to list a site and initiate actions until all the information provided for in the HRS has been acquired. The costs of such an investigation would be high and the department would be obligated to cost-recover these expenses. Finally, an endangerment assessment is typically based on information developed in the baseline risk assessment which is a process allowed under CECRA. The department has considered the HRS or an endangerment assessment and has rejected the use of both for listing purposes. See subsequent comments regarding risk assessment for additional response.
COMMENT NO. 9: Some commentors suggested that listing a site amounts to a de facto forfeiture of substantial assets and that the rules do not provide for due process for listing decisions.
RESPONSE: The department interprets the reference to a "forfeiture of substantial assets" to mean a taking. What is property for purposes of takings and what might be viewed as a property interest in evaluating due process are not the same (Kafka v. Mont. Dep't of Fish, Wildlife & Parks, 2008 MT 460 (2008)). Therefore, the department will respond to each portion of the comment separately.
The department has reviewed Montana law carefully regarding takings and has determined these rules do not constitute such a taking. CECRA requires LPs to clean up hazardous or deleterious substances for which they are responsible. The department does not require LPs to sacrifice all economically beneficial uses of their property in the name of the common good. Rather, CECRA is the tool the legislature has designed to "provide adequate remedies for the protection of the environmental life support system from degradation and [to] provide adequate remedies to prevent unreasonable depletion and degradation of natural resources." (75-10-706, MCA) In addition, it is not the listing of a site that results in financial impacts to an LP. Rather, it is the existence of a confirmed release that may pose a threat to human health and the environment, and the resulting obligation to remediate that release, which may impact an LP. See also, Response to Comment No. 29.
COMMENT NO. 10: Some commentors suggested that the department should track sites with confirmed or potential releases but only consider listing those that have been subjected to a rigorous screening process or that need to be evaluation for cleanup.
RESPONSE: The department already maintains a database tracking system for these types of sites. It is referred to as the "potential sites list" and has been in place since at least 1995. As of December 30, 2009, the potential sites list contains 286 sites, 162 of which need further evaluation and 124 of which have been closed by the department as needing no further action. Since 1999, the department has proposed nine of the "potential sites" for actual listing on the CECRA Priority List, using the criteria in the proposed rule. Seven of those sites were listed and two were not. The department's record shows that it is not proposing sites for listing excessively. Unfortunately, however, the department does not have the resources to evaluate potential sites for cleanup prior to their listing. Generally, investigation of sites to enable the department to determine whether cleanup is required is the job of the LPs. In fact, except in emergency situations, the department generally applies 75-10-711, MCA, to allow LPs the opportunity to conduct these investigations.
COMMENT NO. 11: A number of commentors expressed their concern that the definition would result in an increase in the department's work load.
RESPONSE: The department does not anticipate that use of this definition, including application of the factors contained in ARM 17.55.108(5), will increase the department's work load, because the definition and factors have been in use for at least eight years.
COMMENT NO. 12: A number of commentors expressed concern that the use of this definition would result in an increase in economic impact to businesses.
RESPONSE: The department interprets this comment to mean that if a business is an LP, that business may be impacted economically. The department is required to carry out its statutory duty to protect public health, safety, and welfare and the environment. Listing serves an important role in providing notice to the public of the potential human health and environmental threats. It also assists the department in allocating its resources and determining when to initiate action. However, in response to this and other comments, the department has amended the definition and ARM 17.55.108. These amendments should alleviate this concern.
COMMENT NO. 13: Some commentors suggested that the definition of "imminent and substantial endangerment" is overly broad and will result in minor release sites being listed that do not have an immediate environmental human health or welfare impact.
RESPONSE: ARM 17.55.108 specifically uses the term "may" when discussing the department's ability to list a facility. Such a listing is not required and, if a new release is being addressed by other statutory authority, the department does not anticipate the need to go through the listing process for that release. For example, if a tanker truck spills a large volume of diesel on the highway, that release would need to be addressed immediately. While the release could potentially be listed, in reality such a listing would not occur because by the time the public participation requirements of the listing process were satisfied the release would likely be cleaned up. At sites where cleanup can be done quickly or the release is minor, the department does not anticipate listing; the listing process itself would take longer than the cleanup. In this case, the department would use other enforcement authorities, such as the Water Quality Act. In other cases, the department will make a determination that CECRA is the appropriate enforcement and cleanup authority before proposing to list a site according to these rules. In addition, there is no requirement that the threat be "immediate" in order for it to pose a risk. Therefore, the commentor's concern that sites will be listed which do not have an immediate environmental human health or welfare impact does not have a basis in CECRA. See also the previous response to comments regarding listing a grease spot in a driveway.
C. ARM 17.55.102(6)
COMMENT NO. 14: One commentor indicated that, under CERCLA, a record of decision is issued after a remedial investigation/feasibility study process is conducted along with any interim actions. The commentor suggests the department adopt a similar comprehensive program to ensure the record of decision is the document to chart the course for closure. Other commentors said the department should consider comprehensive rulemaking only if the legislature fully funds additional staffing for "such an enormous endeavor."
RESPONSE: The definition as written is clear that the Record of Decision is the final agency decision document that identifies and explains the final remedial actions selected by the department. The definition is sufficiently specific. Comprehensive rulemaking is not within the scope of this rulemaking proceeding.
D. ARM 17.55.111
COMMENT NO. 15: One commentor provided a comment on this rule change, suggesting that the department should maintain a separate list of sites that need to be evaluated for cleanup, that listing should be a tool of last resort, and that the department should promote voluntary cleanup. Other commentors said the listing rule should not be changed as listing a site under CECRA provides the department the ability to ensure that the investigation is conducted by those responsible for the potential contamination.
RESPONSE: While the department believes the first comment is outside the scope of the proposed change to the ranking rule, it notes that it already maintains a database tracking system for these types of sites. See response to comment No. 10. In addition, listing serves an important role in providing notice to the public of the potential human health and environmental threats. Finally, the department encourages voluntary cleanup through the use of the voluntary cleanup program.
COMMENT NO. 16: One commentor suggested that the department should allow consideration of carcinogenic risk approaching a 1x10-4 level rather than the 1x10-6 level provided by most of the screening levels.
RESPONSE: While the department believes this comment is outside the scope of the proposed change to the ranking rule, it notes that when facility-specific cleanup levels are calculated, the department allows for an increased cumulative risk level of 1x10-5. This is consistent with 75-5-301, MCA, which provides that state water quality standards for protection of human health must not exceed 1x10-5 for carcinogens other than arsenic. However, at the initial state of evaluating a site, it is appropriate to use screening levels based on a 1x10-6 risk level to determine whether a site warrants further evaluation because at the time that screening is done, it is probable that the department will not know how many carcinogenic substances exist at the facility. Therefore, comparing each hazardous or deleterious substance against a 1x10-6 screening level will help ensure that the cumulative risk does not exceed 1x10-5.
E. ARM 17.55.114
COMMENT NO. 17: One commentor suggested that requiring the payment of department costs prior to delisting may be inconsistent with CECRA and exceed the rulemaking authority provided for in 75-10-702, MCA. Another commentor stated that the proposed change alters the existing rule to state that delisting is only possible after the completion of the final long-term remedy and that this will significantly increase the time before facilities can be delisted. Another commentor suggested that the department change the word "completion" to "implementation" to allow delisting a site where the remedy has been implemented but will take years to complete. Another commentor stated it was not appropriate to consider the payment of costs in making a delisting decision, which should be based on environmental concerns. Otherwise a site could remain on the list forever due to outstanding costs. The commentor suggests that CECRA should follow CERCLA, which provides that the sole criterion for delisting a federal site is that "no further response is appropriate" to avoid the "taking" of a property's value not related to environmental concerns.
RESPONSE: Section 75-10-702(1)(a)(iv), MCA, provides that the listing rules must provide for delisting when further remedial action is no longer necessary. The statute does not authorize withholding of delisting if penalties are not paid, and ARM 17.55.114 already authorizes the department to withhold delisting if remedial action is not complete. The definition of "remedial action" in 75-10-701(20) includes administration and actions appropriate to respond to a release. This includes payment of costs. For these reasons, the department has not adopted the language on which the comment is based.
F. NEW RULE I
COMMENT NO. 18: One commentor suggested that the incorporation by reference of the documents establishes presumptive cleanup levels and another points out that screening levels are not cleanup standards.
RESPONSE: See earlier responses to similar comments. It is not the department's intent to establish cleanup levels by adopting screening levels. The department has revised this rule to clearly indicate that the referenced documents are to be used as screening levels and that their adoption does not establish cleanup standards.
COMMENT NO. 19: One commentor stated that the proposed rule does not adequately explain why an average statewide factor of 10 is appropriate to adjust non-carcinogenic screening levels.
RESPONSE: The EPA Regional Screening Levels (RSLs), which are incorporated by reference under New Rule I, are calculated under the assumption that only one contaminant is present and are "used when a potential site is initially investigated to determine if potentially significant levels of contamination are present to warrant further investigation such as an RI/FS." (http://www.epa.gov/reg3hwmd/risk/human/rb-concentration_table/index.htm). The application of a factor of 10 to non-carcinogens is consistent with the use of 1x10-6 screening levels for carcinogens. With each approach, the department conservatively evaluates whether as many as 10 carcinogens or 10 non-carcinogens potentially affecting the same organ or having the same critical health effect are present at a facility at levels of concern. If all concentrations are below these screening levels, the department can have a basis for confidence that cumulative risks do not exceed 1x10-5 or a hazard index of one for any organ or critical health effect. If any concentrations exceed these screening levels, further evaluation is necessary to determine whether cumulative excess risks actually exceed 1x10-5 or a hazard index of one for any organ or critical health effect. Without application of a protective factor of 10, screening levels based upon a non-carcinogenic hazard index of one could allow cumulative excess risks to an organ or a critical health effect to add up to several times the allowable risk level.
COMMENT NO. 20: One commentor stated that the proposed rule does not adequately explain or define the dilution attenuation factor (DAF) and why these factors are appropriate. Another stated that the DAF could be different for each site and that the department should apply an appropriate adjustment to contaminants instead of using an average DAF in order to evaluate each site individually.
RESPONSE: A DAF is the ratio of the original soil leachate concentration to the receptor point concentration. Therefore, the lowest possible value of DAF is one; a value of DAF=1 means that there is no dilution or attenuation at all and the concentration at the receptor point is the same as that in the soil leachate. High values of DAF on the other hand correspond to a high degree of dilution and attenuation. (Determination of Groundwater Dilution Attenuation Factors for Fixed Waste Site Areas Using EPACMTP, Background Document, EPA Office of Solid Waste, May 11, 1994).
Without the application of DAF, the assumption is essentially that a person would be drinking leachate directly from a contaminant source. This is an unrealistic assumption because some level of dilution and attenuation most certainly occurs. In addition, degradation for some substances also occurs but is not as readily quantifiable on a generic basis. The department evaluated precipitation and other factors in Montana that contribute to dilution and attenuation as part of its Risk-Based Corrective Action Guidance for Petroleum Releases development and determined that a dilution attenuation factor of 10 was the most appropriate factor to apply generically to Montana. It is appropriate to use this factor when comparing concentrations to screening levels. However, if the department determines more work is needed, the DAF specific to a particular site can be calculated and used (even if it is greater than 10), in the same manner that facility-specific cleanup levels are calculated and applied during cleanup of a site.
COMMENT NO. 21: One commentor stated that the proposed rule does not adequately explain the adjustment to ground water soil screening levels.
RESPONSE: The RSL table provides either one or two soil screening levels based on protection of groundwater for most compounds. These soil screening levels are based on either protection of groundwater at the federal maximum contaminant level (MCL) or protection of groundwater at a risk-based tapwater consumption level. The department requires protection of groundwater at DEQ-7 human health standards (DEQ-7 HHS). For compounds with DEQ-7 standards equal to the MCL, the MCL-based soil screening level may be used. For compounds with DEQ-7 standards that differ from the MCL, the MCL-based soil screening level must be adjusted to assure protection of groundwater. For compounds without MCL-based soil screening levels but with a DEQ-7 standard and a tapwater consumption-based soil screening level, the soil screening level must be adjusted to assure protection of groundwater at the DEQ-7 standard. For example, if the DEQ-7 human health standard is 1 µg/L and the MCL (or tapwater RSL) is 5 µg/L and the soil screening level (SSL) (based upon 5 µg/L in the water) is 10 mg/kg, the ratio would be 1/5 with the resulting SSL of 2 mg/kg. The equation is:
DEQ-7 HHS/MCL (or tapwater RSL) = x/SSL
So: 1 µg/L / 5 µg/L = x/10 mg/kg
x = 2 mg/kg
The department has revised the rule to explain this process.
COMMENT NO. 22: Two commentors stated that the adoption of RBCA as a screening tool misapplies the RBCA process and one asked why the department has not incorporated Tier 2 and Tier 3 analysis into the regulatory process. The commentors suggest that the department should follow guidance developed by ASTM.
RESPONSE: The department does utilize the risk-based corrective action (RBCA) approach developed by the American Society for Testing and Materials (ASTM) (currently known as "ASTM International") for CECRA sites. ASTM's RBCA uses a tiered system to evaluate risks to human health posed from petroleum products released into the environment. Tier 1 lists contaminant concentrations that would not pose a threat to public health when only contaminant concentrations and simple site information is known about a site. This is typically the situation for sites that would go through the CECRA listing process. In some instances, particularly for smaller releases, it may be much easier and less expensive for the LP to rely on Tier 1. Tiers 2 and 3 use a progressively more complex and site-specific analysis after more data is known about site conditions. The Tier 2 and 3 processes are available for all CECRA sites when there is sufficient site-specific information available, which typically occurs after a site is listed. The department considers Tier 2 to be the development of site-specific screening levels instead of Tier 1 generic screening levels. Tier 3 is a facility-specific risk assessment and fate and transport analysis.
ASTM is not a regulatory entity and did not evaluate specific regulatory requirements for individual states. For groundwater contamination, ASTM allows contamination to potentially be present in groundwater as long as it does not reach a receptor at concentrations that could harm that receptor. A common example cited in ASTM RBCA is where contaminated soil leaches contamination downward to groundwater, the groundwater then flows to a well that is pumped out and the groundwater is then consumed by a person. As long as the water being consumed has lower levels than are harmful to human health, it is acceptable for the groundwater closer to the source to have higher concentrations that are harmful to human health. This does not comply with Montana's water quality standards found in DEQ-7. Therefore, the department allows Tier 2 and 3 evaluations so long as any facility-specific screening or cleanup levels do not impact any groundwater above DEQ-7 standards. The department has considered the suggestion that it strictly follow ASTM's RBCA approach and rejects it for these reasons.
Finally, in reviewing this comment, the department found a few nonsubstantive areas in the RBCA document itself that warranted clarification. These edits were necessary because some portions of text in the original document did not reflect the fact that the 2009 version eliminated numerical ceiling concentrations for total gasoline range and diesel range fractions in soil that were present in the 2007 version, and replaced them with narrative conditions that affect beneficial use.
The edits, which were also made when the document was adopted in ARM 17.56.507 and ARM 17.56.608, are:
1. The following text was added to the Executive Summary on Page vii:
Four sections in this version contain minor edits from the original September 2009 version of RBCA. These edits are not substantive and update language that did not accurately explain the change made in replacing the numerical ceiling concentrations for total gasoline range and diesel range fractions in soil with narrative conditions that affect beneficial use. These edits made to pages 10, 14, 15, and 16 are discussed in detail on DEQ's Internet web page.
2. The following text was added as the first paragraph to the Odors as a Significant Risk to Public Welfare/Nuisance Condition section on Page 10.
Previous versions of Montana Tier 1 Risk-Based Corrective Action Guidance for Petroleum Releases included numerical ceiling concentrations for total gasoline range and diesel range fractions in soil to protect public welfare. This version addresses public welfare and nuisance condition based on site-specific considerations rather than a numerical concentration for soil. Numerical ceiling concentrations are still included for total purgeable hydrocarbons (TPH) and total extractable hydrocarbons (TEH) in groundwater, as depicted in footnotes for Table 3.
3. The first paragraph of the Development of Tier 1 Lookup Tables starting on Page 14 was edited as follows:
DEQ calculated Tier 1 RBSLs for exposure pathways commonly associated with petroleum releases. RBSLs for surface soil were calculated for the soil leaching to groundwater pathway, and for the direct-contact pathway assuming residential and commercial land use. RBSLs for subsurface soil were calculated for the soil leaching to groundwater pathway, and for the direct contact pathway to account for exposure of receptors during any excavation/construction at a site.
Additionally, RBSLs for non-target COC fractions in soil include beneficial use (aesthetic) considerations. For each of the three distance to groundwater categories in Tables 1 and 2, the RBSLs DEQ published reflect the lowest COC concentration calculated for any either of the three two Tier 1 exposure scenarios (i.e., for the soil leaching to groundwater pathway , or through direct contact , or based on beneficial use considerations). Appendix C is a comprehensive soil RBSL table presenting the RBSLs calculated for both direct contact , and leaching to groundwater , and beneficial use considerations.
4. The fourth paragraph of the Derivation of RBSLs section on Page 15 was edited as follows:
Soil RBSLs were calculated for each petroleum fraction using the chemical fate and transport model used for the target compounds. These soil RBSLs are designed to be protective of groundwater below releases, so that contaminants leaching from contaminated soil will not cause groundwater to exceed groundwater RBSLs.
Ceiling concentrations were also developed to assure that total concentrations of all non-target COCs do not interfere with the beneficial uses of the soil or groundwater.
5. The first paragraph of the Models Used to Generate Tier 1 RBSLs section on Page 16 was edited as follows:
DEQ staff calculated Tier 1 RBSLs for the soil leaching to groundwater pathway using the "VS2DT Solute Transport in Variably Saturated Porous Media" model (United States Geological Survey), combined with the "Hydrologic Evaluation of Landfill Performance" (HELP) model, which was used to estimate water infiltration rates. Direct contact RBSLs were calculated using equations developed by the United States Environmental Protection Agency (EPA) and the Massachusetts Department of Environmental Protection. The specific assumptions used in DEQ's Tier 1 soil leaching to groundwater models are discussed in Appendix D. The assumptions used in the direct contact modeling, including those associated with the fraction-surrogate approach, are discussed in Appendix E.
Information regarding the beneficial use criteria is also provided in Appendix E. Since Tier 1 RBSLs are intended for use at a variety of releases throughout the state, the assumptions of Tier 1 provide for a wide margin of safety, and are therefore conservative.
COMMENT NO. 23: Two commentors stated that the EPA Region 3 Biological Technical Assistance Group (BTAG) freshwater sediment screening benchmarks are based on a no observable effect level and that an exceedance of this level should not be interpreted as an imminent and substantial endangerment. The commentors argued that use of the BTAG numbers also does not consider background, and one noted that Region 3 includes the eastern United States, which has different characteristics than Montana.
RESPONSE: Using no observable effect levels is consistent with the department's approach to using screening levels. If the department is considering whether a site should be listed or whether no action is needed without further evaluation, the department must ensure that even if several contaminants are present at their screening levels (in this case BTAG levels) the contaminants will not be adversely affecting the environment. Again, if any contaminants are above those levels, further evaluation would be required. It is the department's intent that these initial determinations be conservative because no further evaluation will be conducted at facilities that meet the screening levels. Montana is located in EPA Region 8, which currently has no sediment screening numbers and uses many of the same reference values relied upon by Region 3 BTAG. In determining what sediment screening levels to use in the rule, the department considered and evaluated the 2006 EPA Region 3 Biological Technical Assistance Group (BTAG) values, the 2008 National Oceanic and Atmospheric Administration (NOAA) Screening Quick Reference Tables (SQRTs), and Washington's 2003 Development of Freshwater Sediment Quality Values for Use in Washington State. DEQ determined the EPA Region 3 BTAGs provide the most comprehensive contaminant list and usually the most protective screening levels. Therefore, the Region 3 values are appropriate for use in evaluating sediment data at CECRA sites. These values were designed to facilitate consistency in screening level ecological risk assessments. While the department agrees that Region 3 may have different characteristics, the freshwater screening levels are designed to help identify ranges of contaminants in sediments where adverse effects on benthic organisms may occur. The intended purpose of these screening benchmarks is as a Tier 1 screening tool to indicate if sediment contaminant concentrations may indicate potential adverse effects. Based on the evaluation of screening references described above, the department is not aware of any specific differences that would make the Region 3 screening levels inappropriate for Montana. Please see previous responses to comments regarding situations where known background concentrations at a facility exceed screening levels.
COMMENT NO. 24: Some commentors suggested that the regional screening levels should not be used but should be replaced with a ranking process modeled after the HRS.
RESPONSE: See department's response to comments above regarding the use of screening levels and why the use of a process similar to HRS is not warranted under CECRA.
COMMENT NO. 25: One commentor reiterated its comments regarding use of objective standards determining "imminent and substantial endangerment."
RESPONSE: See department's responses to comments above regarding the consideration of other factors when determining imminent and substantial endangerment.
COMMENT NO. 26: Two commentors indicate that the proposed rule explains the use of an action level for arsenic in surface soil based on an average statewide background derived from the use of statistical methodology. Action levels vary across Montana and the department should use site-specific background levels instead of the 40 parts per million (ppm) level referenced in the Montana arsenic paper.
RESPONSE: The department's Action Level for Arsenic in Surface Soil of 40 ppm is based upon an evaluation of background arsenic concentrations across the state. Without use of this state-specific level for screening purposes, the department would use the regional screening level of 0.39 ppm which is more conservative and could result in the listing of sites unnecessarily. The department agrees that the use of site-specific background for screening is appropriate if such data exists and ARM 17.55.108 has been amended to reflect this. However, in the absence of site-specific background data, use of the Montana action level for arsenic of 40 ppm is more appropriate than use of the regional screening level of 0.39 ppm.
G. NEW RULE II
COMMENT NO. 27: One commentor stated that the department should be required to comply with the rule regardless of whether "resources allow."
RESPONSE: The rule was not meant to imply that the department would address a site without sending a proper and expeditious letter if resources do not allow, but the department agrees that the rule as proposed can be read that way. The rule has been modified to clearly indicate that the "resources allow" language applies to when the department addresses the site.
COMMENT NO. 28: One commentor stated that there are many reasons a schedule might change and to require that it be maintained does not recognize the inherent uncertainties in remediation work. Other commentors said the department should not establish the schedule without input from the LPs or should mutually agree to the schedule, and that there are no criteria for developing the schedule.
RESPONSE: The department did not intend that it establish the schedule without input from the LPs. The term "requiring the establishment of a department-approved schedule" was intended to mean that the LP proposes the schedule subject to department approval. The department has clarified this language, indicating that the LP submits the proposed schedule to the department and explains the basis for the schedule using factors suggested by various commentors, subject to department approval. In order to provide additional clarity to the rule, the department has also made the following revisions. First, subsections (1)(a) and (1)(b) were reversed so that it is clear that the first step in the process is for the department to send the letter providing LPs the opportunity to conduct the work. Second, subsection (2) was revised to indicate that the department will consider requests for extensions in the schedule, will grant reasonable requests if they do not cause undue delay or pose a risk to human health or the environment, and will not attribute delays in the schedule to the LPs if the delay should be attributable to the department.
COMMENT NO. 29: One commentor stated that because an administrative or judicial order is not a prerequisite to support the department's requirements, the LP is without any recourse or due process to seek review of the department's direction.
RESPONSE: The rule addresses sites that are being addressed under the provisions of 75-10-711, MCA, and are not yet under administrative or judicial order. In responding to this and other comments on New Rule II, the department also revised the rule to clarify that it also applies to the undertaking of the work itself and not just the submittal of documents. The rule provides informal due process by providing the LP with opportunity for input during the process.
If the LP does not comply with the department's direction, the department may determine the LP is not properly and expeditiously performing the required remedial actions and may conduct the work itself, issue an administrative order, seek an injunction, or seek a penalty under 75-10-715(3), MCA. In each of these instances the LP would have formal due process rights.
COMMENT NO. 30: One commentor stated that if the department believes there is evidence to support listing of a site or to take remedial actions at that site, the department should issue an order or file a claim. If issuance of an order or filing a claim cannot be supported, the department should work cooperatively with a LP to reach consensus upon a work plan or schedule.
RESPONSE: Section 75-10-711, MCA, requires that the department offer LPs the opportunity to properly and expeditiously perform remedial action before issuing an order. Therefore, this comment is not supported by the plain language of CECRA. However, the department has modified (3) of the rule to correct an error in (a) indicating that 75-10-721, MCA, authorizes the department to issue a unilateral order and has added citations to the same statute in (b) and (c) because that statute authorizes the department to file a civil action for penalties. In addition, LPs have the opportunity to conduct voluntary cleanup under the provisions of the Voluntary Cleanup and Redevelopment Act. Finally, the rule has been revised to address concerns over the schedule in response to subsequent comments, making it clear that the department will work with LPs to reach agreement on documents, when possible, but that ultimately it is the department's responsibility to determine whether the documents meet regulatory requirements.
COMMENT NO. 31: If federal CERCLA actions are underway at a site, this rule would be contrary to the National Contingency Plan requirements for state participation. The rule should be revised to provide that the department is not authorized to "informally" impose changes to documents, require adherence to a schedule, or take remedial action at any facility or site where administrative or judicial action has commenced under CERCLA or another federal law.
RESPONSE: Montana has independent authority under CECRA. In addition, 75-10-711(9), MCA, provides that the department may take a remedial action at a CERCLA site if the department determines it is necessary to carry out the purposes of CECRA.
CERCLA (federal superfund) actions may occur at CECRA priority list sites, in particular, emergency removal actions. When the department is aware that EPA or a LP is conducting work under CERCLA at a CECRA priority list site, the department alerts EPA and the LP to CECRA requirements that would facilitate a no further action determination by the department under CECRA. In these instances, during its review, the department identifies inaccuracies, deficiencies, and compliance needs in documents produced as part of the CERCLA work, but it does not require changes to documents because the department is not acting as the lead agency. Instead, the department indicates that if CECRA requirements are not met, the department will revisit the site after CERCLA work is complete and additional work may be required. This provides LPs with the opportunity to address all concerns at one time and not run the risk of redoing work. This approach does not conflict with the National Contingency Plan.
For national priorities list (NPL) sites where EPA is the lead agency, the department provides its comments concerning documents and schedules to EPA. As the lead agency, EPA then requires the LP to conduct the necessary CERCLA actions. The department intends to continue this approach for NPL sites.
COMMENT NO. 32: Three commentors object to the department not having to work within a schedule.
RESPONSE: The department strives to review documents within 30 days of receipt and 60 days if the document is voluminous. In some instances, the department has experienced staff turnover and some reviews must wait until a new project officer is hired. In addition, project officers work on multiple sites and other priorities may delay review. The department has implemented management changes in response to HJR 34 and audit recommendations to facilitate more timely reviews. The department may also have changes to review schedules for some of the same reasons that LPs have expressed in previous comments. The department has revised (1) to indicate that the schedule includes timeframes for department reviews and (2) to indicate that the department will consider requests for extensions in the schedule, will grant reasonable requests, and will not attribute delays in the schedule to the LPs if the delay should be attributable to the department.
COMMENT NO. 33: One commentor stated that the rule ignores one of the stated purposes of CECRA, which is to encourage voluntary cleanup. The commentor claims reliance on only this purpose of CECRA improperly creates an emergency situation, which is already provided for in statute.
RESPONSE: This rule applies to sites being addressed under 75-10-711, MCA, which provides for cleanup without an administrative order. To make it clear that the department is encouraging voluntary cleanup, the department has modified the rule to explicitly state that it does not apply to sites being addressed by the Voluntary Cleanup and Redevelopment Act. The other revisions the department has made to the rules clarify that they are not addressing an emergency situation, which is addressed in 75-10-712 and 746, MCA.
COMMENT NO. 34: Two commentors are concerned that the department utilize appropriately qualified persons to review and establish schedules that require specialized training and skills to understand, such as construction schedules.
RESPONSE: As explained above, LPs will propose the schedule and explain the basis for the proposed schedule. To the extent that there are special considerations at play in establishing the schedule, the LPs are allowed to explain those issues. However, the department does not believe that specialized training and skills are typically required to review a construction schedule and, to the extent they are, the department has an in-house remediation construction bureau to provide assistance.
COMMENT NO. 35: Two commentors believe the department should provide for good faith negotiation of the schedule and that the rule should expressly incorporate the concept of force majeure.
RESPONSE: As discussed above, the department has modified the rule to make it clear that LPs propose the schedule and the basis for the proposed schedule subject to department review and approval. In addition, the department has incorporated the concept of force majeure in subsection (2)(a).
COMMENT NO. 36: Some commentors object to the department changing documents prepared by environmental consultants. Two of the commentors requested that the department prepare a legal analysis of the department modifying work product prepared by consultants and then publishing and using those work products.
RESPONSE: There has been some confusion about how the department handles the issue of modifying documents and the rule has been clarified to help address these comments. As noted by one commentor, this practice has been in place since December 2005 and the department has found that it has saved time and money for both it and the LPs. Prior to this policy being in place, it was not unusual for one document to go through five or more iterations before it was approved. This protracted loop of negotiating comments on documents led to a slowdown in cleanup, inefficiencies, and excessive use of resources. The November 2006 HJR34 Study Report recommended that the department develop a framework for more timely and consistent use of its enforcement authority, which this rule does. It also helps address the concern that the department respond to LP submittals in a timely fashion. By requiring the submittal of electronic documents, the department may use the "redline/strikeout" method of commenting, which has noticeably shortened the response time on documents. The following is the process currently in use, unless otherwise provided for in an administrative or judicial document or order:
1. The department requires that a LP prepare a document and provides a scope of work for the document and deadline for submitting the document.
2. The LP is required to submit the requested document following the scope of work and in the timeframe required.
3. The department provides comments on the document and allows at least one opportunity for the LP to revise the document.
4. The LP may request a meeting to discuss the comments. This allows for technical dialogue between the LP and the department on the document. If appropriate, more than one meeting may occur.
5. If the department determines changes to its comments are warranted as a result of the meeting, it issues a written revision.
6. The LP submits the revised document.
7. If the department determines its required comments were not incorporated into the revised document, the department may incorporate its required revisions electronically into the document and either finalize the document or allow the LP to finalize the document with the department's revisions.
8. If the department finalizes the document itself, it will remove the consultant's name, upon request of the LP. In addition, the LP has the ability to indicate its objection to the changes via a letter which is included in the site files.
The department allows the LP to express its objections to the changes so that the LP's rights are preserved. However, the department does not allow multiple objections to be placed in the document itself because it often affects the readability and clarity of the document depending on the size and number of objections. In addition, it is the department's role to determine whether a document meets regulatory requirements and provides the information necessary to ultimately select a final remedy at the facility. A document riddled with underlining, objections, and footnotes may prevent the department from relying upon its contents in making final decisions, making the document worthless. When a revised document is submitted that does not include the department's required revisions, the department has the authority to reject that document, hire its own consultant to prepare the necessary document, and cost recover the expense of this work from the LP. However, the department rejected that option in favor of the one outlined in the revised rule and has determined that this approach strikes an appropriate balance between the LP's concerns and the department's regulatory needs. It is clear from the comments on the rule that more detail is needed in the rule to address concerns of the commentors that the rule appears to allow the department to unilaterally make changes on the first draft of a document that is submitted by a LP and to reflect the current practice. Therefore, in response to the comments on this rule, each step in this process has been clarified in the revised rules. In response to the concern that consultants be allowed to maintain ownership or copyright of their original work product, if the department finalizes the document it will include a statement on the cover page of the report such as "the department finalized this document because all of its required changes were not incorporated. Although this document is designated a department version, the author of the original document holds a copyright on the original document, and may have intellectual property rights in all or a portion of this document. Further, information regarding the original document is available in the department files." The rule has been revised to include this requirement. This will ensure that third parties who may ultimately read the document are on notice that the department's version is a derivative of the consultant's document. In addition, it helps alleviate the concern that consultants have expressed about responsibility for document preparation. In addition, the department has revised the rule to provide that an LP can insert language into the document indicating its disagreement with the department's required revisions. Finally, CECRA includes protection for remedial action contractors in 75-10-718, MCA. Those protections are not based on who prepared the document but are available to all remedial action contractors so long as they conduct work in a manner that is not negligent or that constitutes intentional misconduct.
COMMENT NO. 37: Two commentors request that the department solicit input on the proposed rule from the Montana Board of Professional Engineers and Professional Land Surveyors. Another commentor expressed concern about the department modifying documents prepared by professional engineers.
RESPONSE: The department has never modified a document that is required by Montana law to be prepared by a licensed professional and therefore there is no need to solicit input from the state's professional licensing board. The department has revised the rule to clarify that if any document required by Montana law to have a licensed professional's endorsement needs modification, the department will ensure a duly licensed professional makes the changes and includes that professional's endorsement. See previous responses to comments regarding the department's process for revising documents submitted by LPs and the ability to indicate disagreement with the department's required revisions.
COMMENT NO. 38: One commentor claimed that changing the work product of licensed professionals is arbitrarily done without the opportunity for technical dialogue. Another commentor stated that while it is reasonable for the department to comment on documents and recommend different language, it is a problem when the department insists on a change to the document that the professional who prepared the document disagrees with. This commentor argues that the department is assuming responsibility for the entire content of the document when it mandates changes that are unacceptable to the professional who prepared the document. Another believes the rule will discourage reputable contractors from conducting CECRA actions. Another is concerned about how a consultant can claim ownership of a work product if it is altered by the department.
RESPONSE: Please see previous responses to comments regarding the opportunity for technical dialogue and the revision of documents prepared by a licensed professional. Reputable contractors understand the need to address deficiencies and get comments properly incorporated so that documents can be approved and the work carried out. It has been the department's experience that its own consultants appreciate the clarity and efficiency that commenting in redline format provides. Ultimately this saves the LP money and gets to cleanup more quickly. Also, the department is the regulating entity and retains the final authority as to the contents of a department-required document. In terms of ownership of the document, it is important to note that the department requires the preparation of documents by LPs. Those LPs may hire consulting firms to prepare the documents but they become public information and are used by the department for decision-making purposes. Finally, please see previous responses to comments regarding the department's process for revising documents, including its publication of altered documents as department documents, as well as how the department ensures third parties are on notice regarding any ownership or copyright the consultant has in the document.
COMMENT NO. 39: One commentor objected to the rule, claiming it is a departure from the intent of CECRA to allow private parties to perform the work. Another believes it removes any incentive for LPs to cooperate with the department.
RESPONSE: The rule formalizes the process that has been in place since December 2005 and is not a departure from CECRA. As stated above, this rule applies to sites being addressed under 75-10-711, MCA. It is a reasonable approach to interpreting the language in the statute regarding proper and expeditious remedial action by balancing regulatory oversight with a LP's conductance of work. The department is unclear how it removes the incentive for a LP to cooperate with the department. If cooperation is not forthcoming, the department may conduct the work itself and cost recover, issue an administrative order, seek a judicial order, or seek a penalty under 75-10-715(3), MCA. In response to this comment, the department has revised the rule to clarify its authority. In addition, the rule does not apply to sites being addressed by the Voluntary Cleanup and Redevelopment Act. Finally, in responding to this comment, the department noted a typographical error in the rule and corrected it in subsection (3)(a).
COMMENT NO. 40: One commentor believes the rule exceeds the powers granted by CECRA because there is no requirement that the schedule be realistic or that requested modifications cannot be unreasonably withheld. Two expressed concern that a process for adjusting the schedule be available for delays caused by the state.
RESPONSE: Please see responses above. The department has revised the rule regarding schedule establishment and requested extensions regarding the schedule. The department also revised the rule to provide for adjustments in the schedule if delays are attributable to the department.
COMMENT NO. 41: One commentor stated that the proposed rule does not address the issues raised by the 2008 Performance Audit, which suggested that the department institute best management practices such as long-term planning, management controls, etc.
RESPONSE: Rationale for the proposed rule was partially based on the November 2006 HJR 34 Study Report, not the 2008 Performance Audit. The November 2006 HJR 34 Study Report recommended that the department develop a framework for more timely and consistent use of its enforcement authority, which this rule does. As an aside, the department notes that Legislative Audit Division followed up on the 2008 Performance Audit and, in a memorandum dated December 7, 2009, found that eight report recommendations have either been implemented or implementation is ongoing; due to the timing of the audit, one report recommendation regarding orphan share has not been implemented but is under consideration by the department.
COMMENT NO. 42: One commentor stated that multiple iterations on documents is normal and that providing only one opportunity to address a revision is onerous. Another commentor suggested the word "one" be removed to allow for more than one revision.
RESPONSE: Please see responses above regarding the number of iterations of a document contemplated under the revised rules. In response to this and other comments, the department clarified that it will provide "at least one" opportunity to revise the document. Since implementing the policy in December 2005, the department is no longer reviewing four, five, or more drafts of the same document; documents are being approved in a timely manner; and work is progressing more quickly. The department's experience in the last five years has proven that this approach is legitimate and is effective.
COMMENT NO. 43: One commentor acknowledged that the process for providing modifiable documents is already in place and that it does not need to be incorporated into formal rulemaking.
RESPONSE: Please see preceding response. The department agrees that the process for providing modifiable documents to the department is already in place. Also, the department is incorporating this process into rule to ensure that the department's revision process is transparent and clear to all parties.
H. NEW RULE III
COMMENT NO. 44: One commentor does not agree that a person not subject to an order should be allowed to conduct remedial actions at a facility if the third party's action could interact with a remedial action subject to an order until the final permanent remedy has been completed. The commentor stated that work plans are inherently inconsistent with the statutory scheme set out in CECRA as there is no way for the department or LPs to conduct remediation when at any given time in the process, a third party could be granted permission to begin its own remedial action.
RESPONSE: CECRA requires "the written permission" of the department if a "person who is not subject to an administrative or judicial order" wishes to "conduct any remedial action at any facility that is subject to an administrative or judicial order issued pursuant" to CECRA (75-10-706(3), MCA). In adopting this new rule, the department is implementing the requirements of this CECRA provision.
Under the new rule, the department will not provide written permission to a third party remedial action unless the department determines "(a) the proposed remedial action will not conflict with ongoing work at the facility; [and] (b) the proposed work, if conducted in the manner described in the document, will not spread, worsen, or otherwise exacerbate the contamination." Therefore, the commentor's first concern is already addressed within the rule, because to obtain the department's permission, a third party remedial action cannot conflict with the ongoing remedial action required under order.
If the commentor is suggesting that no third party remedial actions should be conducted at all, or should not be conducted until the final permanent remedy is completed, this would require a statutory change. Because CECRA requires "written permission," which implies that the department should grant this permission in certain situations, the department must lay out a process for obtaining this permission. The department cannot draft a rule that withholds permission for all third party remedial actions, or prohibit these actions until all of the final permanent remedy is complete.
The department also disagrees with that these third party work plans are completely inconsistent with CECRA's statutory scheme. CECRA plainly provides for third party remedial action with the department's written permission. In addition, the Montana Supreme Court has recognized that third parties have a right to conduct work using restoration damages, even at facilities that are under CECRA order. See Sunburst School District No. 2 v. Texaco, Inc., 165 P.3d 1079 (Mont. 2007).
COMMENT NO. 45: One commentor stated that at some facilities, work plans have been prepared and have not received approval for several months or years. Under this rule, the department may not review the work plans and provide approval which is not conducive to cleanup.
RESPONSE: Comment noted. The commentor refers to work plans submitted by a LP; however this rule establishes a process for implementing 75-10-706(3), MCA, and only applies to parties who are not subject to the order. In addition, see previous responses to comments regarding schedules for department review.
COMMENT NO. 46: One commentor stated that parts of the rule establish a process but that certain elements require specific statutory authority. The same commentor indicated there is no enforcement ability in either the rule or the statute and therefore both require further legislative authorization to have any force.
RESPONSE: Most of the new rule's provisions are process-related. Section (2) does outline information that is required in the work plan so that the department can determine whether to grant the permission or request revisions to the work plan and a standard for providing permission for the proposed work. This requirement clearly related to the permission requirement and within the department's authority to adopt rules to implement CECRA in 75-10-702, MCA.
The department acknowledges that CECRA does not contain an explicit enforcement mechanism for the CECRA requirement that third parties obtain written permission to conduct work at sites subject to CECRA judicial or administrative orders. Because CECRA contains this requirement for written permission, the department is clearly spelling out what is required to obtain this permission. The department agrees with the commentor that an enforcement mechanism under CECRA would require legislative authorization. However, other avenues of potential enforcement, such as injunction, may be available to the department to enforce the provisions of 75-10-706(3), MCA, if the department determined such an action was appropriate.
COMMENT NO. 47: One commentor stated that the term "other relevant factors are considered by the department" should be stricken as it is vague. The commentor also stated that some members of the regulated community have experienced the department's unwillingness to prescribe actions allowed by CECRA on a site because those action have not been done before, which leads to frustration.
RESPONSE: It is difficult to anticipate every situation that may arise when the department is determining whether to delist a facility; therefore, the department has included the term "other relevant information or conditions" to provide the flexibility to consider all relevant information when making a delisting determination. When the department selects a remedial action, it must ensure that the remedial action complies with the factors outlined in 75-10-721, MCA, which includes consideration of new or innovative technology.
I. NEW RULE IV
COMMENT NO. 48: One commentor believes this rule contradicts other rule amendments that provide for the department to select a final permanent remedy in a record of decision.
RESPONSE: The department's directive in CECRA is to ensure protection of public health, safety and welfare and the environment. The final remedy for a site is identified in a record of decision prepared by the department. However, the department also approves interim actions as well as remedies proposed in voluntary cleanup plans outside of the record of decision. The November 2006 HJR 34 Study Report recommended that the department increase its approval of interim remedial actions. This rule addresses the report's "paralysis by analysis" metaphor and, by allowing sites to be reopened, encourages the department to approve interim or other remedial actions with a lesser degree of certainty as to the outcome.
COMMENT NO. 49: Two commentors stated that the rule is unfair if the department overrules the technical analysis and findings of the consultant and is allowed to experiment with different remedial technologies until a successful remedy is achieved.
RESPONSE: When selecting or approving a remedial action, the department carefully considers the supporting documents, including the technical analysis and findings presented by the LP. To ensure the opportunity for technical dialogue on required documents, NEW RULE II (ARM 17.55.112) has been revised to specifically provide for it. However, the department is the regulating entity and retains the authority to select or approve something different if warranted by the record or the department's own experts. The goal is not to experiment but rather to get to a decision-point faster to ensure protection of human health and the environment. The department has considered the comments on this rule and determined no changes are needed as a result of this comment.
COMMENT NO. 50: One commentor stated that CECRA already authorizes the department to require remedial action, and CECRA presumes that prior to a final remedy other appropriate remedial actions will be required. Once the department issues a record of decision, the ability to seek cost recovery is triggered and the department cannot by rule affect legal mechanisms established by statute.
RESPONSE: This rule does not propose nor intend to modify the applicable statute of limitations outlined in CECRA. Rather, the goal is to allow the department to approve interim or other remedial actions faster, without having the benefit of full information that is available at the end of the RI/FS process when a record of decision is issued, or to require additional actions if new information indicates that such actions are warranted.
COMMENT NO. 51: One commentor stated that the rule is subjective because the term "failed" lacks definition. The commentor agrees that if a remedy is not performing as expected that actions need to be taken to ensure the success of a remedy and that the term "failed" should encompass concepts such as progress toward remedial action objectives.
RESPONSE: There are a variety of reasons a remedy may be considered a "failure." Some of those are attributable to the remedial action objectives such as reducing contaminant concentrations by 50%. Others may be that the remedy ultimately does not comply with environmental requirements, criteria and limitations, such as a failure to meet DEQ-7 water quality standards. This underscores the importance of identifying the goal of a remedial action before it is selected or approved. In response to this comment as well as other comments on this rule, the department has revised the rule to replace "failure" with a reference to protectiveness of public health, safety and welfare and the environment, using language from 75-10-721(1), MCA.
COMMENT NO. 52: One commentor believes that the rule creates uncertainty because even if the department approves a remedy, issues a record of decision, and the remedy is completed, the department may decide to start the process over, which allows continual reopeners of remedial action plans. This may create a disincentive for the department to thoroughly analyze remedies since, if one remedy does not work, the department can try again with something new. This will frustrate the goal of achieving final remediation plans.
RESPONSE: This rule is meant to directly address the November 2006 HJR 34 Study Report which recommended that the department take steps to avoid "paralysis by analysis," which it partially described as the perception that the department is slow to approve interim or other remedial actions because of the fear of remedy failure or that the department will be precluded from requiring additional actions. This rule addresses this issue by providing that, should remediation fail to be effective, the department may require additional remediation. Therefore, approval of interim or other actions may be made with a lesser degree of certainty than if the department could not require additional actions. The rule is an appropriate balance of two goals: approving interim or other remedial actions faster while moving toward final cleanup. In addition, the applicable statute of limitations as well as the statutory requirements that the department's costs be reasonable and consistent with CECRA will ensure the department is not continually reopening a remedial action plan.
COMMENT NO. 53: One commentor indicated the rule is vague because there are no standards for determining when a final remedy can be reopened and that the circumstances in which a reopener is appropriate should be defined.
RESPONSE: As explained above, there are a variety of reasons why a remedy may not be successful. However, to make it clear that the failure is based on a failure to be adequately protective or comply with environmental laws, the rule has been revised in response to these comments. As revised, the rule reflects statutory criteria and provides predictability.
COMMENT NO. 54: One commentor indicated that the rule should be modified so as not to constrain the department's settlement powers and provided suggested language. For example, if a LP had a settlement agreement with the department to perform a particular remedy in exchange for a release of future liability, the rule should not constrain such a settlement.
RESPONSE: The rule is not meant to constrain the department's administrative settlement authorities and the rule has been clarified in response to this comment to indicate that this rule may not necessarily apply if there is a judicial or administrative order issued at the facility.
J. NEW RULE V
COMMENT NO. 55: One commentor stated that this rule essentially restates the 2009 statutory change to CALA and wanted to ensure that it was not the department's intent to say that costs incurred before a stipulated agreement was signed were not reimbursable.
RESPONSE: Section 75-10-744(3), MCA, is clear that it is the written petition to initiate the allocation process that triggers cost eligibility. This rule does not change the statutory provision.
Reviewed by: DEPARTMENT OF ENVIRONMENTAL
/s/ John F. North By: /s/ Richard H. Opper
JOHN F. NORTH RICHARD H. OPPER, DIRECTOR
Certified to the Secretary of State, October 4, 2010.