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Montana Administrative Register Notice 17-309 No. 24   12/23/2010    
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BEFORE THE BOARD OF ENVIRONMENTAL REVIEW

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 17.30.201 and 17.30.1341 pertaining to permit application, degradation authorization, and annual permit fees and general permits

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

(WATER QUALITY)

 

            TO: All Concerned Persons

 

            1. On January 12, 2011, at 1:30 p.m., the Board of Environmental Review will hold a public hearing in Room 111, Metcalf Building, 1520 East Sixth Avenue, Helena, Montana, to consider the proposed amendment of the above-stated rules.

 

            2. The board will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice. If you require an accommodation, contact Elois Johnson, Paralegal, no later than 5:00 p.m., January 3, 2011, to advise us of the nature of the accommodation that you need. Please contact Elois Johnson at Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-2630; fax (406) 444-4386; or e-mail ejohnson@mt.gov.

 

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

 

            17.30.201 PERMIT APPLICATION, DEGRADATION AUTHORIZATION, AND ANNUAL PERMIT FEES (1) through (1)(h) remain the same.

            (2) For purposes of this rule, the definitions contained in ARM Title 17, chapter 30, subchapter 10 and subchapter 13 are incorporated by reference. The following definitions also apply in this rule:

            (a) through (e) remain the same.

            (f) "multi-county," for pesticide permit fee purposes, means the general permit authorizing pesticide application within multiple counties that are within the same Montana Department of Agriculture field office district;

            (f) through (i) remain the same, but are renumbered (g) through (j).

            (j) (k)  "outfall" means a disposal system through which effluent or waste leaves the facility or site; and

            (l)  "pesticide" means:

            (i)  a substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest;

            (ii)  any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant; and

            (iii)  any nitrogen stabilizer, except that the term "pesticide" shall not include any article that is a "new animal drug" within the meaning of section 201(w) of the federal Food, Drug, and Cosmetic Act, 21 U.S.C. 321(w), that has been determined by the United States Secretary of Health and Human Services not to be a new animal drug by a regulation establishing conditions of use for the article, or that is an animal feed within the meaning of section 201(x) of 21 U.S.C. 321(x) bearing or containing a new animal drug.  The term "pesticide" does not include liquid chemical sterilant products (including any sterilant or subordinate disinfectant claims on such products) for use on a critical or semi-critical device, as defined in section 201 of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 321.  For purposes of the preceding sentence, the term "critical device" includes any device that is introduced directly into the human body, either into or in contact with the bloodstream or normally sterile areas of the body, and the term "semi-critical device" includes any device that contacts intact mucous membranes but that does not ordinarily penetrate the blood barrier or otherwise enter normally sterile areas of the body.

            (k) (m)  "renewal permit" means a permit for an existing facility that has an effective discharge permit.; and

            (n) "single county," for pesticide permit fee purposes, means the general permit authorizing pesticide application within one county or within multiple counties that are not within the same Montana Department of Agriculture field office district.

            (3) through (5) remain the same.

            (6)  The fee schedules for new or renewal applications for, or modifications of, a Montana pollutant discharge elimination system permit under ARM Title 17, chapter 30, subchapter 11 or 13, a Montana ground water pollution control system permit under ARM Title 17, chapter 30, subchapter 10, or any other authorization under 75-5-201, 75-5-301, or 75-5-401, MCA, or rules promulgated under these authorities, are set forth below as Schedules I.A, I.B, I.C, and I.D. Fees must be paid in full at the time of submission of the application. For new applications under Schedule I.A, the annual fee from Schedule III.A for the first year must also be paid at the time of application.  For new applications under Schedule I.B and I.C, the annual fee is included in the new permit amount and covers the annual fee for the calendar year in which the permit coverage becomes effective.

            (a) and (b) remain the same.

            (c) The department may assess an administrative processing fee under Schedule I.D when a permittee makes substantial alterations or additions, requiring significant additional review, to a sediment control plan, waste management plan, nutrient management plan, pesticide discharge management plan, or storm water pollution prevention plan.

            (d) Application fees are nonrefundable except, as required by 75-5-516(1)(d), MCA, if the permit or authorization is not issued the department shall return a portion of the application fee based on avoided enforcement costs. The department shall return 25% of the application fee if the application is withdrawn or if the department waives Federal Clean Water Act section 401 certification within 30 days after submittal.

            (e) through (h) remain the same.

            Schedule I.A remains the same.

 

Schedule I.B Application Fee for Non-Storm Water General Permits

 

Category

Renewal

Fee

New Permit Fee

(includes initial annual fee)

 

Concentrated animal feeding operation

$ 600

$ 1,200

Construction dewatering

    400

      900

Fish farms

    600

   1,200

Produced water

    900

   1,200

Suction dredge

resident of Montana

nonresident of Montana

 

     25

   100

 

        25 50

      100 200

Sand and gravel

   900

   1,200

Domestic sewage treatment lagoon

   800

   1,200

Disinfected water

   800

   1,200

Petroleum cleanup

   800

   1,200

Pesticides

Single county

Multi-county

 

 

450

1,400

 

900

2,700

Ground water remediation or dewatering

   800

   1,400

Ground water potable water treatment facilities

   800

   1,400

Other general permit, not listed above

   600

   1,200

 

            (i) through (n) remain the same.

            Schedule I.C remains the same.

            (o) remains the same.

 

Schedule I.D Application Fee for Other Activities

 

Category

Amount

 

Short-term water quality standard, turbidity "318 authorization"

$   250

Short-term water quality standard, remedial activities and pesticide application "308 authorization"

     400 250

Federal Clean Water Act section 401 certification

See ARM 17.30.201(6)(o)

Review plans and specifications to determine if permit is necessary, pursuant to 75-5-402(2), MCA

 2,000

Major modification

Renewal fee from Schedule I.A

Minor modification, includes transfer of ownership

     500

Resubmitted application fee

     500

Administrative processing fee

     500

 

            (7) remains the same.

            Schedule II remains the same.

            (8) and (8)(a) remain the same.

            Schedule III.A remains the same.

 

                    Schedule III.B Annual Fee for Non-Storm Water General Permits

 

Category

Amount

 

Concentrated animal feeding operation

$600

Construction dewatering

450

Fish farms

450

Produced water

750

Portable suction dredges

resident of Montana

nonresident of Montana

 

25

100

Sand and gravel production

750

Domestic sewage treatment lagoon

850

Disinfected water

750

Petroleum cleanup

750

Pesticides

Single county

Multi-county

 

450

1,400

Ground water remediation or dewatering

800

Potable water treatment facilities

800

Other general permit, not listed above

800

 

            (b) through (d) remain the same.

            Schedule III.C remains the same.

            (e)  A facility that maintains compliance with permit requirements, including effluent limitations and reporting requirements, as determined by the previous year's discharge and compliance monitoring data, is entitled to a 25% reduction in its annual permit fee. A new permittee is not eligible for fee reduction in its first year of operation. A permittee that is under a formal enforcement order providing a compliance schedule for correction of permit violations is not eligible for a fee reduction until the violations are corrected. A permittee with a violation of any permit requirement during the previous year is not eligible for fee reduction.

            (f) through (9)(b) remain the same.

            (10)  The department shall give written notice to each person assessed a fee under this rule of the amount of the fee that is assessed and the basis for the department's calculation of the fee. The fee is due 30 days after the date of the written notice. The fee must be paid by a check, money order, or electronic transfer payable to the state of Montana, Department of Environmental Quality. The fee also may be paid on line at the e-bill payment service site.

            (11) through (11)(b) remain the same.

 

            AUTH: 75-5-516, MCA

            IMP:  75-5-516, MCA

 

            REASON: Pursuant to 75-5-516, MCA, the board must prescribe fees to be assessed by the department for water quality permit applications, annual permit renewals, review of petitions for degradation, and for other water quality authorizations required under the Montana Water Quality Act, Title 75, chapter 5, MCA. Subject to specific statutory fee caps, the Act requires the board to adopt permit fees that are sufficient to cover the board and department costs of administering the permits and other authorizations required under the Act.

            In 2007, the United States Environmental Protection Agency (EPA) issued a rule exempting pesticide application from discharge permitting requirements under the federal Clean Water Act (CWA). The rule concluded that pesticides, applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), were exempt from CWA permitting. In January of 2009, the EPA rule was vacated by a federal court of appeals. The primary purpose of this proposed rulemaking is to provide an administrative framework to allow the department to develop a general permit for pesticide application and to publish the draft permit for public comment. This proposed rulemaking also sets the fees for pesticide permits and makes minor changes to other sections of the fee rule as described below.

            The proposed new definitions in ARM 17.30.201(2)(f), (l), and (m) are necessary to implement the pesticide general permit authority. The definition of "pesticide" in proposed ARM 17.30.201(2)(l) is taken from the statutory definition in FIFRA. The definitions of "multi-county" and "single county" in ARM 17.30.201(2)(f) and (n) identify two types of general permit that the department intends to develop. The single county permit will authorize pesticide application in one county or in multiple counties that are not in the same field office district for the Montana Department of Agriculture (MDA). The multi-county permit will authorize pesticide application in multiple counties that are within the same MDA field office district.

            The proposed amendment to ARM 17.30.201(6)(c) would add an administrative processing fee for substantial alterations or additions to a pesticide discharge management plan. This fee is necessary to recover the additional review costs associated with changes to pesticide management plans.

            The proposed amendment to ARM 17.30.201(6)(d) is necessary to clarify that the allowance for a 25% refund of an application fee also applies when the department waives federal Clean Water Act section 401 certification as provided in ARM 17.30.105.

            The proposed amendments to Schedule I.B set the application fees for the single county and multi-county pesticide general permits. The fees are necessary to recover the costs to the department of issuing and administering permits under the pesticide general permit program. The amendments to Schedule I.B also make a correction to the suction dredge new permit fees. Because the new permit fees shown in Schedule I.B include both the application fee and the initial annual fee from Schedule III.B, the fee shown for suction dredges in Schedule I.B should be doubled. This is necessary to remain consistent with the statutory fee provisions for suction dredges set out in 75-5-516(12), MCA.

            The proposed amendments to Schedule I.D would reduce the fee for short-term water quality standard 308 authorizations. This group currently includes pesticide 308 authorizations. Because the new general pesticide permit will address pesticide applications that have a potentially higher risk, the fees in the 308 category in Schedule I.D can be reduced.

            The proposed amendments to Schedule III.B set the annual fees for the single county and multi-county pesticide general permits. The fees are necessary to recover the costs to the department of administering permits and authorizations under the pesticide general permit program.

            The proposed amendment to ARM 17.30.201(8)(e) clarifies that a permittee whose violations are subject to a corrective action schedule in a formal enforcement order is not eligible for the fee reduction until the violations are corrected. This is necessary to comply with the requirement in 75-5-516(2), MCA, that the fee reduction is not available to permittees who are not in compliance with permit requirements.

            The proposed amendment to ARM 17.30.201(10) clarifies that fees may be paid on line at the e-bill payment service site. This is necessary to afford permittees the convenience of using the e-bill system.

            It is estimated that the pesticide permit would affect approximately 100 permittees. Total pesticide fee revenue generated in the first year would be approximately $175,000. Of this amount, applications are projected to generate approximately $87,500, and annual fees are projected to generate approximately $90,000. Revenue in the following four years would be less because the application fees are due only every five years. The total first year fee revenue of $175,000 includes a decrease in revenue from pesticide 308 authorizations (Schedule I.D) of approximately $3,600. This decrease will occur in subsequent years as well, because 308 fees are due every year. The $3,600 decrease in the 308 fees would affect an average of 24 permittees a year.

 

            17.30.1341 GENERAL PERMITS (1) The department may issue general permits for the following categories of point sources which the board has determined are appropriate for general permitting under the criteria listed in 40 CFR 122.28 as stated in ARM 17.30.1105:

            (a) through (q) remain the same.

            (r) swimming pool discharge; and

            (s) septic tank pumper disposal sites; and

            (t) pesticide application.

            (2) through (3)(d) remain the same.

            (4) A person owning or proposing to operate a point source who wishes to operate under a MPDES general permit shall complete a standard MPDES application or notice of intent form available from the department for the particular general permit. Except for notices of intent submitted for storm water discharges associated with construction activity as stated in ARM 17.30.1115, the department shall, within 30 days of receiving a completed application, either issue to the applicant an authorization to operate under the MPDES general permit, or shall notify the applicant that the source does not qualify for authorization under a MPDES general permit, citing one or more of the following reasons as the basis for the denial:

            (a) through (12)(e) remain the same.

 

            AUTH: 75-5-201, 75-5-401, MCA

            IMP: 75-5-401, MCA

 

            REASON: The proposed amendment to ARM 17.30.1341 would add pesticide application to the list of general permits that the department is authorized to issue. This amendment is necessary to comply with the federal requirement to issue discharge permits for pesticide application. See reason for amendments to ARM 17.30.201The proposed amendment would also clarify that authorizations are not needed when the notice of intent (NOI) form is used. The amendment is necessary to allow the department to initiate coverage under the pesticide general permit upon receipt of a properly completed NOI and fees.

 

            4. Concerned persons may submit their data, views, or arguments, either orally or in writing, at the hearing. Written data, views, or arguments may also be submitted to Elois Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana 59620-0901; faxed to (406) 444-4386; or e-mailed to ejohnson@mt.gov, no later than 5:00 p.m., January 24, 2011. To be guaranteed consideration, mailed comments must be postmarked on or before that date.

 

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

 

            6. The board maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies that the person wishes to receive notices regarding: air quality; hazardous waste/waste oil; asbestos control; water/wastewater treatment plant operator certification; solid waste; junk vehicles; infectious waste; public water supply; public sewage systems regulation; hard rock (metal) mine reclamation; major facility siting; opencut mine reclamation; strip mine reclamation; subdivisions; renewable energy grants/loans; wastewater treatment or safe drinking water revolving grants and loans; water quality; CECRA; underground/above ground storage tanks; MEPA; or general procedural rules other than MEPA. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to Elois Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Ave., P.O. Box 200901, Helena, Montana 59620-0901, faxed to the office at (406) 444-4386, e-mailed to Elois Johnson at ejohnson@mt.gov, or may be made by completing a request form at any rules hearing held by the board.

 

            7. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

Reviewed by:                                     BOARD OF ENVIRONMENTAL REVIEW

 

 

 

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

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

Rule Reviewer                                             Chairman

 

            Certified to the Secretary of State, December 13, 2010.

 

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