Montana Administrative Register Notice 17-322 No. 19   10/13/2011    
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In the matter of the amendment of ARM 17.30.1201, 17.30.1202, 17.30.1203, 17.30.1206, and 17.30.1207; the adoption of new rules I through V; and the repeal of ARM 17.30.1208 and 17.30.1209 pertaining to Montana pollutant discharge elimination system effluent limitations and standards, standards of performance, and treatment requirements















TO:  All Concerned Persons


1.  On May 26, 2011, the Board of Environmental Review published MAR Notice No. 17-322 regarding a notice of public hearing on the proposed amendment, adoption, and repeal of the above-stated rules at page 771, 2011 Montana Administrative Register, issue number 10.


            2.  The board has amended ARM 17.30.1201, 17.30.1202, 17.30.1203, 17.30.1206, and 17.30.1207, adopted New Rules I (17.30.1210), II (17.30.1211), III (17.30.1212), IV (17.30.1213), and V (17.30.1214), and repealed ARM 17.30.1208 and 17.30.1209 exactly as proposed.


            3.  The following comments were received and appear with the board's responses:


            COMMENT NO. 1:  The board should incorporate as much of the federal rule by reference into ARM 17.30.1202 and 17.30.1203 that specifically applies to those rules and only provide detail where the board rules and federal rules differ or provide explanation of how they are connected within the different rules.  This should prevent any inadvertent disconnection between subchapter 12 and the federal rules and potential errors.

            RESPONSE:  The board is proposing to adopt the text of the federal rule establishing minimum treatment requirements into ARM 17.30.1203 to provide ease of access to the regulated community regarding federal minimum treatment requirements that apply to all MPDES permits.  The board is also adopting the text of certain federal definitions into ARM 17.30.1202 to assist the regulated community in understanding the technical terms used throughout subchapter 12.  The definitions and minimum treatment requirements proposed for adoption in ARM 17.30.1202 and 17.30.1203 do not differ from the federal regulations, because the text of the federal rules - with minor adjustments for style - is being adopted without any changes.  Finally, the board is adopting by reference the federal rules that, when combined with all of the other federal regulations establishing treatment requirements, are too cumbersome to adopt into state rules.


            COMMENT NO. 2:  EPA has recently proposed new 316(b) rules requiring impingement and entrainment reductions at new and existing facilities which are the subject of New Rules II and III and some of the definitions in ARM 17.30.1202.  We believe it would be prudent for the board to postpone the new rules and applicable definitions until the EPA has finalized its 316(b) rule.  There could be differences in the EPA rule that would require the board to reopen New Rules II and III and the applicable definitions.

            RESPONSE:  The board is proposing to adopt the existing federal regulations pertaining to new cooling water intake structures that were first adopted by the U.S. Environmental Protection Agency (EPA) in 2001 and later amended in 2003.  The board is also proposing to adopt EPA's current requirements for existing cooling water intake structures in New Rule V.  Although EPA has recently proposed new rules that would make substantial changes to the requirements for existing facilities and make minor modifications to the current rules for new facilities, the board does not agree that it should postpone adopting the federal regulations that are currently in effect for these facilities.  As the comment points out, if EPA actually adopts the proposed rules, then the board may simply amend the rules it is currently adopting to reflect any changes that EPA's new rules may require.


            COMMENT NO. 3:  Montana-Dakota appreciates that New Rule IV allows for alternative compliance requirements at cooling water intake structures if initial compliance costs are determined to be wholly disproportionate to other factors or results in impact to other resources.  We recommend that the board remove the reference in New Rule IV to comparing the cost of this determination to the costs EPA considered since technology costs will change in the future and this should be up to the department's discretion.

            RESPONSE:  New Rule IV adopts into state rule the decision criteria in 40 CFR 125.85(a) for granting alternative requirements to new facilities that are less stringent than New Rule II requires.  Since 40 CFR 125.85(a) allows an alternative (i.e., less stringent) requirement only if the cost of compliance with the requirement is "wholly out of proportion to the costs EPA considered" when establishing the requirements for new facilities, the board declines to remove the reference to the costs EPA considered in order to be consistent with, and no less stringent than, the federal regulation.


            COMMENT NO. 4:  The board should expand the text in New Rule IV to specifically include the consideration of a result where the cost of compliance would be wholly disproportionate from the actual benefit of implementation controls.

            RESPONSE:  The board declines to expand the criteria in New Rule IV to include a consideration of costs that are "wholly disproportionate" to the benefit of implementing the controls, because expanding the criteria from the list provided in 40 CFR 125.85 may result in permit requirements that are less stringent than required by the federal rule.


            COMMENT NO. 5:  We agree that best professional judgment in New Rule V is appropriate for determining impingement and entrainment reductions at cooling water intakes at existing facilities on a case-by-case, region, site, or waterway segment basis.  We also believe that the wholly disproportionate cost analysis included in New Rule IV would be appropriate to reference in New Rule V, unless that is universally understood to be already considered under a case-by-case determination in New Rule V.

            RESPONSE:  Permit limits for existing facilities subject to the Section 316(b) requirements under New Rule V will be based on a cost benefit determination using the best professional judgment (BPJ) of the permit writer.  Since existing facilities are not expected to meet the impingement and entrainment criteria required for new facilities, the wholly disproportionate criterion is not applicable.


            COMMENT NO. 6:  The board should extend the comment period on the proposed rules, because Montana Dakota Utilities Co. has not had much time to review the rules in order to provide more accurate comments on the proposed rules relating to cooling water intake structures.

            RESPONSE:  In response to this comment, the department contacted the person who had submitted the comment on behalf of Montana Dakota Utilities Co. to ascertain whether an extension was necessary to accommodate the request for more accurate comments.  The department was informed that the company no longer believed that an extension of time was necessary, since the board's proposed rules did not differ from EPA's existing rules governing cooling water intake structures.


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, October 3, 2011.


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