Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY

OF THE STATE OF MONTANA

In the matter of the amendment of ARM 17.56.101, 17.56.605, and 17.56.607 pertaining to definitions, cleanup plan, and release categorization

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

(UNDERGROUND STORAGE TANKS)

TO: All Concerned Persons

1. On September 28, 2011, at 10:00 a.m., the Department of Environmental Quality will hold a public hearing in Room 122, 1100 North Last Chance Gulch, Helena, Montana, to consider the proposed amendment of the above-stated rules.

2. The department 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., September 19, 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:

17.56.101 DEFINITIONS For the purposes of this chapter and unless otherwise provided, the following terms have the meanings given to them in this rule and must be used in conjunction with those definitions in 75-11-203, 75-11-302, and 75-11-503, MCA.

(1) through (48)(c) remain the same.

(49) "Petroleum mixing zone" has the meaning given in 75-11-503, MCA.

(49) through (77) remain the same, but are renumbered (50) through (78).

AUTH: 75-11-204, 75-11-319, 75-11-505, MCA

IMP: 75-11-203, 75-11-302, 75-11-319, 75-11-505, MCA

REASON: It is necessary to amend ARM 17.56.101 in order to incorporate and cross reference the statutory definition of petroleum mixing zone codified at 75-11-503, MCA.

17.56.605 CLEANUP PLAN (1) and (2) remain the same.

(3) The owners and operators must screen and select cleanup alternatives to develop a matrix evaluation of cleanup alternatives which considers cost, performance, reliability, implementation, safety, and effects on public health, and the environment. Information on all cleanup alternatives, with an explanation of why any alternative was selected, must be included in the cleanup plan. Cleanup alternatives may include, but are not limited to, the following types of action:

(a) through (h) remain the same.

(i) drinking water supply replacement; ~~and~~

(j) relocation of affected residences and/or businesses; and

(k) establishment of a petroleum mixing zone in accordance with ARM 17.56.607.

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

AUTH: ~~75-10-405,~~ 75-11-319, 75-11-505, MCA

IMP: ~~75-10-405,~~ ~~75-11-309,~~ 75-11-319, 75-11-505, MCA

REASON: The proposed amendment to ARM 17.56.605 is necessary to implement amendments to the Petroleum Storage Tank Cleanup Act, 75-11-301, MCA, et seq., and to the Montana Underground Storage Tank Act, 75-11-501, MCA, et seq., by Chapter 189, Laws of 2011, which was entitled Senate Bill 9 (Senate Bill 9). Senate Bill 9 provides that a corrective action plan may include the establishment of a petroleum mixing zone. The proposed amendment adds ARM 17.56.605(3)(k) to include the establishment of a petroleum mixing zone as a cleanup alternative evaluated against other cleanup alternatives in the development of a cleanup plan designed to remediate a petroleum release from a petroleum storage tank. Senate Bill 9 provides that a corrective action plan may include a petroleum mixing zone in conjunction with the final remediation and resolution of a petroleum release. The final remedial action chosen to address a petroleum release may be the establishment of a petroleum mixing zone if the criteria in Senate Bill 9, Section 5(2) are satisfied. The proposed amendment to ARM 17.56.605 will assist tank owners and operators in proposing remediation of a release with a petroleum mixing zone and will assist the department in evaluating whether all criteria for establishment of a petroleum mixing zone are achieved.

17.56.607 RELEASE CATEGORIZATION (1) The department shall categorize all releases from USTs and PSTs regulated under this chapter as active, transferred, resolved, or ground water management, or resolved with a petroleum mixing zone releases.

(2) Releases that do not meet the criteria set forth in (3), (4), or (7), or (10) must be categorized as active.

(3) through (4)(e) remain the same.

(5) The department may recategorize a resolved or a resolved with a petroleum mixing zone release as active if the department receives information with which it determines that further corrective action is necessary. Such information may include, but is not limited to, changes in land use or site conditions, including removal, alteration, or failure to maintain department-approved institutional controls, engineering controls, or physical conditions, that may increase the potential for adverse impacts to human health, safety, or to the environment from residual contamination. The department shall notify the owner or operator of the department's determination to recategorize a resolved release as active.

(6) If a release is categorized as resolved, the department shall send a letter to the owner or operator that:

(a) through (c) remain the same.

(d) describes any institutional controls, engineering controls, or physical conditions that must be maintained to protect human health, safety, or the environment from residual contamination;

(d) and (e) remain the same, but are renumbered (e) and (f).

(7) The department may categorize a release as ground water management if:

(a) through (d)(iii) remain the same.

(e) ground water performance monitoring and natural attenuation data collected in accordance with U.S. Environmental Protection Agency Office of Solid Waste and Emergency Response Directive 9200.4-17P indicate that the extent, magnitude, and concentration of the dissolved contaminant plume have been stable or decreasing under fluctuating hydrogeologic conditions for a period of monitoring~~, not less than five years, which~~ that is determined by the department to be sufficient to detect unacceptable risks to human health, safety, or to the environment;

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

(10) The department may categorize a release as resolved with a petroleum mixing zone and send a letter to the owner or operator in accordance with (11), if the department has determined that conditions at the site ensure present and long-term protection of human health, safety, and the environment and that residual petroleum in soil and ground water will continue to be remediated through natural attenuation processes without additional intervention, active cleanup, or monitoring. The following requirements must also be met before a release may be categorized as resolved with a petroleum mixing zone:

(a) the petroleum mixing zone is included in a corrective action plan and all the conditions set forth in [Chapter 189, Laws of 2011] are met;

(b) documented investigations, conducted in accordance with ARM 17.56.604, identify the extent or absence of contamination in the soil, ground water, surface water, or other environmental media;

(d) risk evaluations conducted in accordance with (4)(b) demonstrate that there are no unacceptable risks to human health, safety, ecological receptors, surface water, or aquatic sediments from exposure or likely exposure to contamination;

(e) all appropriate corrective actions associated with the release have been completed and no further corrective actions are reasonably required by the department;

(f) all applicable environmental laws listed in (4)(e) associated with the release have been met, except that ground water quality exceeds a water quality standard for petroleum or petroleum constituents. In addition, ground water quality may exceed a nondegradation requirement or a standard established as a drinking water maximum contaminant level published in 40 CFR Part 141 for petroleum or petroleum constituents;

(g) ground water performance monitoring indicates that the extent, magnitude, and concentration of the dissolved contaminant plume have been stable or decreasing under fluctuating hydrogeologic conditions for a period of monitoring that is determined by the department to be sufficient to detect unacceptable risks to human health and safety;

(h) the source area contamination has been removed to the maximum extent practicable, and any remaining source area contamination does not pose an unacceptable present or future risk to human health, safety, or the environment;

(i) at the downgradient boundary of a petroleum mixing zone, the concentration of any petroleum constituent does not exceed a water quality standard adopted by the Board of Environmental Review pursuant to 75-5-301, MCA.

The downgradient boundary of a petroleum mixing zone must be determined by documented investigations conducted in accordance with ARM 17.56.604. A petroleum mixing zone must remain within the facility property boundary unless a recorded easement approved by the department allows the mixing zone to extend off the facility property. A petroleum mixing zone may extend no further than 500 feet from the origin of the release. For purposes of this rule, the term "facility property" means a single parcel or contiguous parcels on which one or more petroleum storage tanks are or were located, provided that contiguous parcels must be under single ownership at the time the petroleum mixing zone is established;

(j) a petroleum mixing zone may not extend to within 500 feet of an existing drinking water well or surface water;

(k) department-approved institutional controls, engineering controls, or physical conditions are in place to ensure that identified risks to human health and safety are reduced to acceptable levels. For the purposes of this rule, institutional controls, engineering controls, or physical conditions may consist of:

(i) easements, deed restrictions, or restrictive covenants that run with the land and that have been approved by the department and duly recorded;

(ii) a designated controlled ground water area as provided for in 85-2-506, MCA;

(iii) environmental control easements created and approved in accordance with 76-7-101 through 76-7-213, MCA; and

(iv) an engineering control, physical condition, or other method or condition approved by the department and designed to ensure that risk to human health has been reduced to acceptable levels; and

(l) a notice is placed on the deed of all parcels of real property on which the facility that is the source of the resolved with a petroleum mixing zone release is located. This deed notice must describe the nature and location of the residual contamination remaining in the soil and ground water at the facility and must describe all institutional controls, engineering controls, physical conditions, or other controls or conditions required to maintain the petroleum mixing zone.

(11) If the department categorizes a release as resolved with a petroleum mixing zone, the department shall send a no-further-action letter to the owner or operator. The letter must describe the following conditions required to maintain the petroleum mixing zone:

(a) no further corrective action will be required to address the release provided that all institutional controls, engineering controls, physical conditions, or other department-approved controls or conditions are maintained;

(b) residual contamination from the release will be addressed by natural attenuation processes designed to reduce residual concentrations of contaminants to levels that meet all applicable environmental laws, listed in (4)(e), at a point in the future;

(c) all monitoring wells, piezometers, and other ground water sampling points either be abandoned or maintained by the owner or operator in accordance with applicable rules and requirements and as directed by the department. Monitoring well maintenance requirements include reasonable well maintenance necessary to avoid waste or contamination of ground water in accordance with Title 37, chapter 43, MCA. Maintenance does not include monitoring of ground water level, flow, or quality, unless there is a unique, overriding, site-specific, impact-related reason to require monitoring;

(d) the nature, extent, concentration, and location of any residual contamination is defined and will not expand or increase;

(e) the release does not pose an unacceptable present or future risk to human health, safety, or ecological receptors;

(f) there be a schedule for review of any institutional controls;

(g) a statement that the department may require further documentation of site conditions to determine whether the requirements in (4) are met if the owner, operator, or department proposes to recategorize the release as resolved; and

(h) a statement that the department reserves the right to conduct or to require further investigation or corrective action if a new release occurs or if the department receives new or different information related to the release.

(12) Institutional controls, engineering controls, physical conditions, and notices placed on deeds, required to categorize a release as resolved with a petroleum mixing zone under (10), may be removed when the department determines that residual petroleum contamination in ground water exceeding a parameter listed in (10)(f) is no longer present or when the release is categorized as resolved in accordance with (4).

AUTH: 75-11-319, 75-11-505, MCA

IMP: 75-11-309, 75-11-505, MCA

REASON: It is necessary to amend ARM 17.56.607(1) and (2) to include "resolved with a petroleum mixing zone" as a category of release from underground storage tanks (USTs) and petroleum storage tanks (PSTs) so that Senate Bill 9, allowing the establishment of a petroleum mixing zone as the final remedial action addressing a petroleum release from a UST or PST, is implemented by the department.

It is necessary to amend ARM 17.56.607(5) to allow the department to recategorize a "resolved with a petroleum mixing zone" release as active if the department receives information with which it determines further corrective action is necessary to address the release. Information that may cause the department to recategorize a "resolved with a petroleum mixing zone" release as active includes the removal, alteration, or failure to maintain department-approved institutional controls, engineering controls, or physical conditions designed to protect human health, safety, and the environment. The proposed amendment to ARM 17.56.607(5) is necessary to implement Section 5(6) of Senate Bill 9, which requires a petroleum mixing zone to be "established and maintained" in order for the release to be considered "resolved." Establishment and maintenance of department-approved institutional controls, engineering controls, or physical conditions, as defined in proposed ARM 17.56.607(10)(k) through (l), are necessary to categorize a release as "resolved with a petroleum mixing zone" and to ensure present and long-term protection of human health, safety, and the environment.

When a release is categorized as resolved, the owner or operator must be informed of any institutional controls, engineering controls, or physical conditions that must be maintained to protect human health, safety, and the environment from residual contamination. It is necessary to amend ARM 17.56.607(6)(d) to add a description of all institutional controls, engineering controls, or physical conditions that must be maintained to protect human health, safety, or the environment from residual contamination to the contents of the letter sent to the owner or operator of the facility upon categorization of a release as resolved.

It is necessary to amend ARM 17.56.607(7)(e) to eliminate the minimum five-year ground water monitoring period prior to determining that a dissolved contaminant plume is stable or decreasing, and whether the release may be categorized as ground water management. It has been the department's experience that less than five years of ground water monitoring and natural attenuation data is sufficient in many cases to support a conclusion that a ground water contaminant plume is stable or decreasing. The department has determined that the minimum five-year period of monitoring data is unnecessary. Instead, the department will examine available monitoring and natural attenuation data, determine whether this information is sufficient to detect unacceptable risks to human health, safety, or to the environment from residual ground water contamination, and determine whether the release should be placed in the ground water management category.

Section 4 of Senate Bill 9 requires the department to adopt rules governing the inclusion of a petroleum mixing zone in a corrective action plan and provides that the department may incorporate by reference rules adopted by the Board of Environmental Review pursuant to 75-5-301 and 75-5-303, MCA, related to mixing zones for ground water. The proposed amendments do not incorporate by reference all restrictions and requirements in rules adopted by the board related to mixing zones for ground water as permitted by Senate Bill 9, but the proposed amendments at ARM 17.56.607(10)(i) and (j) are based on the board's standard mixing zone rules for ground water at ARM 17.30.517. For example, at proposed ARM 17.56.607(10)(i) the downgradient boundary of the petroleum mixing zone may extend no further than 500 feet from the origin of the release, and at proposed ARM 17.56.607(10)(j) a petroleum mixing zone may not extend to within 500 feet of an existing drinking water well or surface water. These limitations are based on rules pertaining to standard mixing zones for ground water at ARM 17.30.517(1)(d)(viii)(D) and (1)(d)(ix).

The proposed amendments to ARM 17.56.607(10) are necessary to meet the requirement in Senate Bill 9 to adopt rules governing the inclusion of petroleum mixing zones in corrective action plans and to implement provisions of Senate Bill 9 that provide for the establishment of a petroleum mixing zone in a corrective action plan. The proposed amendments to ARM 17.56.607(10) provide that the department may categorize a release as "resolved with a petroleum mixing zone" if the conditions at the site ensure present and long-term protection of human health, safety, and the environment and the department determines that residual petroleum in soil and ground water will continue to be remediated through natural attenuation processes without additional intervention, active cleanup, or monitoring. Section 5 of Senate Bill 9 provides that a corrective action plan may include the use of a petroleum mixing zone in conjunction with the final remediation and resolution of a petroleum release. It is necessary to set forth the conditions under which a petroleum mixing zone may be established consistent with Senate Bill 9, Section 5, which provides that a petroleum mixing zone may be established only when: all source material has been removed to the maximum extent practicable; the extent of petroleum contamination has been defined; natural breakdown or attenuation is occurring within the plume; and no further corrective action is reasonably required at the site. Further, the boundary of a petroleum mixing zone must be contained within the boundary of the property on which the petroleum release originated, unless a recorded easement on an adjoining property allows the petroleum mixing zone to extend onto the adjoining property, and the petroleum mixing zone must be contained within an unconfined aquifer. The proposed amendments to ARM 17.56.607(10)(a) through (l) set forth the conditions and requirements, consistent with Senate Bill 9, for a release to be categorized as resolved with a petroleum mixing zone and maintained in that category.

The proposed amendments to ARM 17.56.607(11) describe the no-further-action letter that will be sent to the owner or operator of a facility where a release is categorized as "resolved with a petroleum mixing zone." These amendments are necessary to implement Section 5(6)(c) of Senate Bill 9, which requires the department to issue a no-further-action letter to the owner or operator that states a petroleum mixing zone has been established for the release and describes any conditions necessary to maintain the petroleum mixing zone. The proposed amendments to ARM 17.56.607(11)(a) through (h) describe the contents of the no-further-action letter.

The proposed amendments to ARM 17.56.607(12) are necessary to describe the process for removing institutional controls, engineering controls, physical conditions, and notices placed on deeds when residual contamination in ground water, exceeding a parameter in ARM 17.56.607(10)(f), is no longer present, or when the release is categorized as resolved in accordance with ARM 17.56.607(4). Once a release that has been categorized as "resolved with a petroleum mixing zone" has attenuated to levels that do not exceed water quality parameters, the conditions designed to ensure that risks to human health and safety are reduced to acceptable levels are no longer necessary and this proposed rule amendment is necessary to provide a mechanism to remove these restrictions once the threat from residual contamination is no longer present.

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., October 6, 2011. To be guaranteed consideration, mailed comments must be postmarked on or before that date.

5. Kirsten Bowers, attorney, has been designated to preside over and conduct the hearing.

6. The department 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 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 supplies; 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 (406) 444-4386; e-mailed to ejohnson@mt.gov; or may be made by completing a request form at any rules hearing held by the department.

7. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor was contacted by letter dated June 7, 2011.

Reviewed by: DEPARTMENT OF ENVIRONMENTAL

QUALITY

/s/ James M. Madden BY: /s/ Richard H. Opper

JAMES M. MADDEN RICHARD H. OPPER, Director

Rule Reviewer

Certified to the Secretary of State, August 29, 2011.