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| Montana Administrative Register Notice 17-335 | No. 11 06/07/2012 | |
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BEFORE THE BOARD OF ENVIRONMENTAL REVIEW AND THE DEPARTMENT OF ENVIRONMENTAL QUALITY OF THE STATE OF MONTANA
TO: All Concerned Persons 1. On July 12, 2012, at 1:30 p.m., the Board of Environmental Review and the Department of Environmental Quality will hold a public hearing in the Conference Room, Agency Legal Services Bureau, Department of Justice, 1712 Ninth Avenue, Helena, Montana, to consider the proposed amendment and repeal of the above-stated rules. 2. The board and 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., June 18, 2012, 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: 17.24.645 GROUND WATER MONITORING (1) through (5)(c) remain the same. (6) Methods of sample collection, preservation, and sample analysis must be conducted in accordance with 40 CFR Part 136 titled "Guidelines Establishing Test Procedures for the Analysis of Pollutants" (July 2003) and the department's document titled "Department Circular (7) and (8) remain the same. AUTH: 82-4-204, MCA REASON: The board is proposing to amend Montana's reclamation and water quality rules in ARM 17.24.645, 17.24.646, 17.30.502, 17.30.619, 17.30.702, and 17.30.1001, to incorporate proposed revisions to Montana's numeric water quality standards contained in Department Circular DEQ-7 (August 2010 edition). The proposed revisions to the Circular fall into ten categories: (1) adopt new surface and ground water standards for five pesticides recently detected in Montana's ground water and revise the existing standards for 12 pesticides based on new information; (2) adopt new and revised aquatic life standards for two parameters, in order to be consistent with the U.S. Environmental Protection Agency's (EPA's) national recommended water quality criteria, promulgated under Section 304(a) of the federal Clean Water Act; (3) adopt new and revised human health standards for nine parameters in order to be consistent with EPA's recent promulgation of new or revised criteria under Section 304(a) of the federal Clean Water Act and the Safe Drinking Water Act; (4) revise the categories of 12 parameters currently listed in Department Circular DEQ-7 pertaining to toxins and carcinogens; (5) adopt new and revised Required Reporting Values (RRV) for 213 parameters currently listed in Department Circular DEQ-7 based on a recent review of minimum detection limits achieved by laboratories in Montana; (6) adopt revisions to eight footnotes to correct errors, eliminate text, or add information, as well as add three footnotes to clarify quantitation for newly listed parameters; (7) correct 28 errors concerning the sources of information obtained from EPA. For instance, a parameter has been attributed to the Non Priority Pollutant (NPP) list when in fact the information was obtained from the Priority Pollutant list (PP); and (8) delete all references to the narrative water quality standard for nutrients in surface water by specifically deleting the parameters listed as "Nitrogen, total inorganic (as Nitrogen N)" and "Phosphorus, inorganic," and modifying footnote 8 as well. This change is being proposed, in part, due to the department's development of numeric nutrient standards that will be brought to the board for consideration in the upcoming year. (9) eliminate manganese entirely from DEQ-7 as no numeric aquatic life or human health standards have been adopted for this parameter. (10) generally revise the introduction to DEQ-7 for clarity and consistency of commonly used terms. In this rulemaking, the department is proposing to amend ARM 17.36.345 regarding subdivisions, ARM 17.55.109, implementing the Comprehensive Environmental Cleanup and Responsibility Act (CECRA), and ARM 17.56.507 and 17.56.608, implementing the underground storage tank program, in order to incorporate the board's revisions to Department Circular DEQ-7. These amendments are necessary to ensure that the department's programs for the regulation of water quality affected by remediation sites, underground storage tanks, and subdivisions will use the most current version of Montana's numeric water quality standards adopted by the board. The revisions to Department Circular DEQ-7, and the reasons for them, are summarized below. Copies of Department Circular DEQ-7 with the proposed revisions may be obtained by contacting Rod McNeil at Water Quality Planning Bureau, Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901, by phone at (406) 444-5361, or by e-mail at rmcneil@mt.gov, or may be obtained online at http://www.deq.mt.gov/wqinfo/Standards. (1) Interim Standards for Pesticides The board is proposing to adopt numeric water quality standards for five pesticides that were recently detected in ground water by the Montana Department of Agriculture. These pesticides and metabolites are agricultural chemicals that have no federally promulgated standards adopted by EPA for the protection of water quality. In addition, the department has developed revised interim pesticide standards for twelve parameters adopted into Department Circular DEQ-7 during the period from 1998 to 2000. The water quality standards for these twelve parameters were initially developed using data from federal sources available on the internet as of June 1998. Given that new scientific information has become available since the adoption of those standards, the board is proposing to revise the interim water quality standards for ten pesticides described below to reflect current scientific information. The same process of EPA review, also described below, was used to derive both the new and revised interim standards for each pesticide indicated below. Pursuant to 80-15-201(3), MCA, the board is required to adopt an "interim numerical standard" for ground water when there is no federally promulgated or published standard for an agricultural chemical that has been detected in Montana's ground water. The board is also required to review the interim standard whenever EPA promulgates a standard for the agricultural chemical at issue. 80-15-201(3), MCA. The department, in conjunction with EPA, has developed interim standards for the following five pesticides detected in Montana's ground water in 2010-2011: Fluroxypyr, Dichlorprop(2,4DP), Fipronil, Myclobutanil and Pyroxsulam. In addition, the department, in conjunction with EPA, has developed revised interim standards for 12 pesticides based on new scientific health-based information. The 12 pesticides are the following: Chlorothalonil, Clopyralid, MCPP, Metalaxyl, Methamidophos, Metsulfuron Methyl, Mirex, Nicosulfuron, Oxydemeton methyl, Primisulfuron Methyl, Tribenuron Methyl, and Triclopyr. The new and revised interim standards were developed using the process recommended by the Region VIII EPA toxicologist. The levels set in the interim standards are determined in a two-stage process. First, the department reviews the available scientific literature and does preliminary calculations to determine a level that is protective of human health. The department then determines whether a compound is toxic or carcinogenic by using the Chemical Index List at www.toxnet.nlm.nih.gov or by using EPA's Integrated Risk Information System (IRIS). Depending on the identification of the pesticide as either toxic or carcinogenic, an interim standard is calculated using a chronic reference dose (RfD) for toxins or the oral cancer slope factor for carcinogens. If an RfD is used in the calculation, a Relative Source Contribution (RSC) is also used. The purpose of the RSC is to take into account all environmental sources of input, such as drinking water, food, and air. In the second step, the scientific references selected for these calculations are submitted to EPA for further review by the agency's toxicologist. If a pesticide is defined as carcinogenic, the appropriate cancer slope index is used along with a risk factor of 1x10-5 (1 in 100,000) to produce a final interim standard. The EPA has reviewed the proposed interim standards and has determined that they are protective of public health. Supporting documentation used to establish the standards is available from the department. The board finds that modifying Department Circular DEQ-7 to adopt interim standards for the above-listed pesticides is necessary in order to fulfill its statutory obligation to establish ground water standards for agricultural chemicals that have been detected in Montana's ground water. The board also finds that it is necessary and reasonable to adopt interim standards for surface waters for the protection of human health that address these same pesticides and metabolites. The board could choose to adopt only ground water standards and meet the requirements of state law, but rejects that alternative as inconsistent with the policy of the state to "protect and maintain" all state waters, both surface and ground water. By adopting standards for surface waters as well as ground waters, Montana's surface waters will receive the same protection as ground water whenever state law mandates a ground water standard for an agricultural chemical. (2) Aquatic Life Standards (a) New standard: In 2010, the board adopted an acute aquatic life standard for acrolein in response to EPA's publication of a national recommended acute criterion for that parameter. In this rulemaking, the board is now proposing to adopt a chronic aquatic life standard for acrolein in response to EPA's recent promulgation of a chronic criterion for that same parameter. The board finds it is reasonable and necessary to adopt a chronic aquatic life standard for this pollutant based upon EPA's recommended criteria, because the board does not have the resources necessary to develop aquatic life standards for Montana. In order to ensure that aquatic life in Montana's surface waters is protected from the toxic effects of this chemical, the board finds it necessary to use EPA's recommended criteria as the scientific basis for adopting a standard that ensures the protection of aquatic life from chronic adverse affects. (b) Revised standards: The board is proposing to revise the acute aquatic life standard for Endrin currently in Department Circular DEQ-7 to correct a previous error. In 2010, the board revised the acute aquatic life standards for six parameters to reflect the change in exceedance frequency adopted by the board during the same rulemaking. The revised standards were calculated by dividing the existing acute standards for the six parameters by a factor of two in order to derive an acute standard that was consistent with EPA's 1985 method. The acute aquatic life standard for Endrin was one of the six acute aquatic life standards that were revised by this method. This particular revision, however, was in error, because EPA's guidance indicates that dividing the acute standard for Endrin applies only to saltwater criteria. The revision to the aquatic life standard for Endrin proposed in this rulemaking corrects that error. The board finds it necessary to adopt this revision to make the acute aquatic life standard for Endrin consistent with EPA's 1985 method. (3) Human Health Standards The board is proposing to adopt five new human health standards: Sulfone, Bromate, Chlorite, Haloacetic acids, and Dichloroethylene,1,1-, based upon maximum contaminant levels (MCLs) recently published by EPA under the federal Safe Drinking Water Act. In addition, the board is proposing to revise the human health standard for two parameters, due to EPA's recent promulgation of an MCL for each of these parameters. This proposed revision will result in changing the existing water quality standard for alpha emitters from 1.5 pico-curies/liter (based on a former Health Advisory analysis) to a standard of 15 pico-curies/liter (based on EPA's promulgation of an MCL for this parameter). The proposed revision will also result in changing the existing water quality standard for metolachlor from 100 µg/liter (based on a former Health Advisory analysis) to 700 µg/liter (based on EPA's promulgation of an MCL for this parameter. The board is proposing to revise the human health standard for Aldicarb Sulfone in order to correct an error in listing the existing standard. Finally, the board is proposing to adopt a new human health standard for Hexachlorocyclohexane, based upon EPA's recent promulgation of a human health-based criterion for this NPP under section 304(a) of the Clean Water Act. The board finds it reasonable and necessary to adopt these new or revised human health standards based upon EPA's recommendation, because the board does not have the resources necessary to develop human health standards using state-sponsored research. In order to ensure that the quality of state waters protects public health, the board finds it necessary to use EPA's recommended criteria as the scientific basis for adopting standards that ensure the protection of human health from adverse effects. For the parameters listed above that are carcinogens, the board is using EPA's recommended criteria to establish human health standards based on a risk level of 1x10-5 as required by 75-5-301(2)(b)(i), MCA. (4) Revisions to the Categories of 12 Parameters The board is revising the categories of 12 parameters currently listed in Department Circular DEQ-7 as toxic or carcinogenic, based upon EPA's revisions to the manner in which it classifies carcinogens in the IRIS system. Based upon EPA's revisions to IRIS, the board is proposing the following revisions to the existing categories of certain parameters in Department Circular DEQ-7 as described below. First, the board is proposing to change the category of the following parameters from carcinogenic to toxic: Alachlor, Atrazine, Butylate, Dichlorobenzene,1,4-, Dichloropropane,1,2-, Gamma-hexachlorocyclohexane, and Propane,1,2,Dibromo-3-chloro-. The board is proposing these changes based on new scientific evidence proving that these parameters have no discernable human carcinogenic potential. As such, the board finds it reasonable and necessary to revise the Department Circular DEQ-7 category for these parameters. Second, the board is proposing to change the category of the following parameters from toxic to carcinogenic: Butyl Benzyl Phthalate, Cadmium, and Nitrobenzene. The board is proposing these changes based on new scientific evidence proving that these parameters have a measurable human carcinogenic potential. As such, the board finds it reasonable and necessary to revise the category for these parameters in Department Circular DEQ-7. Third, the board is proposing to change the category of the following parameters from harmful to toxic: Phenol and Trichlorophenol,2,4,5-. The board is proposing these changes due to recent scientific information which has led to the development of chronic reference dose information for these parameters indicating toxicity. As such, the board finds it reasonable and necessary to revise the Department Circular DEQ-7 category for these parameters from harmful to toxic. (5) Required Reporting Values The board is proposing to adopt new or revised required reporting values (RRVs) for 213 parameters currently listed in Department Circular DEQ-7. These proposed changes are due, in part, to significant advances in detection limits that have developed over the past ten years and also in response to EPA guidance. These detection limits, using new EPA-approved procedures promulgated under 40 CFR Part 136, allow the quantification of many pollutants to levels well below the current water quality standards in Department Circular DEQ-7. In contrast, some of the existing RRVs in Department Circular DEQ-7 specify reporting values for many parameters at levels that exceed the water quality standard for the parameter. These reporting values make compliance determinations by the department difficult, if not impossible, to achieve. Consequently, the board is proposing to adopt new or revised RRVs using the procedures summarized below and is also modifying the description of RRVs in Department Circular DEQ-7 for clarity and accuracy. As explained in the revised description, the RRVs proposed for adoption represent the board's "best selection of an appropriate laboratory reporting limit that is sufficiently sensitive to meet the most stringent numeric water quality standard." The department's RRV calculation primarily uses method detection limits (MDLs) provided by analytical laboratories. MDLs and minimum reporting levels (MRLs) were collected from seven state and commercial labs using methods listed in 40 CFR Part 136 and the Safe Drinking Water Act, as well as for select methods approved by EPA's Office of Pesticides. The department then calculated RRVs for the parameters in Department Circular DEQ-7 for each method using the 75th percentile of the MDLs obtained from the labs and multiplied the resulting value by 3.18. This method of calculating RRVs is based upon the method set forth in EPA 821-B-04-005 (Revised Assessment of Detection and Quantitation Approaches), as modified to account for MDLs from multiple laboratories. From the RRVs calculated for each analytical procedure described above, the department selected the RRV for each pollutant closest to 10 percent of the most restrictive standard. In situations where all calculated RRVs for a pollutant were larger than the most restrictive standard or less than 10 percent of the most restrictive standard, the department reviewed the laboratory-provided MRLs, and, if one of the MRLs was closer to 10 percent of the standard, that MRL became the default RRV. Based on this selection procedure, the board is proposing new and revised RRVs for 213 parameters in Department Circular DEQ-7. The board finds it reasonable and necessary to adopt new and revised RRVs for 213 parameters using the selection method described above, in order to establish RRVs that are sufficient for determining compliance with all applicable water quality standards. If the RRVs are not updated using this selection method, many RRVs would not meet Department Circular DEQ-7 numeric water quality standards, making compliance determination by the department unfeasible, while other RRVs would be too restrictive, making implementation by the laboratories impractical. A copy of Department Circular DEQ-7, with all new or revised RRVs indicated by interlining and underlining, is available for review. (6) Revisions to the Footnotes of Department Circular DEQ-7
The board is modifying the following footnotes, for the reasons given below: Footnote (1) is being modified to correct an error. As currently written, the footnote indicates that the categories for toxic, carcinogenic, and harmful parameters are all derived from EPA references. The category for harmful parameters, however, is a state-adopted category and the footnote is being revised to reflect this fact. Footnote (2) is being modified to add categories from EPA's new scale used in IRIS to identify parameters that are carcinogenic. Since the older 1986 scale and the newer 2005 scale are in simultaneous use to identify parameters as carcinogens, both scales are identified in the footnote as the basis for classifying a particular parameter as carcinogenic. Footnote (7) is being revised to correct an error. The revised footnote eliminates reference to ammonia concentrations as being related to flow, since they are not. This correction is necessary to clarify the basis for the ammonia standard in Department Circular DEQ-7. Footnote (8) is being modified to indicate that numeric nutrient criteria for aquatic life will be listed in Department Circular DEQ-12, which will be proposed for adoption in a future rulemaking. Footnote 8 is also being removed as a reference for the aquatic life standards for ammonia, because the existing numeric aquatic life standards for ammonia will remain within Department Circular DEQ-7 and will not be included in proposed Department Circular DEQ-12. Footnote (17) is being revised to eliminate I and the Secondary Maximum Contaminant Level (SMCL) as a source for human health standards in Department Circular DEQ-7. Since the board's proposed revisions to the human health standards in this rulemaking eliminate these sources as a basis for these standards, the revision to the footnote is also necessary. Footnote (19) is being revised to more clearly explain the derivation of RRV values proposed in this rulemaking. Footnote (23) is being modified to eliminate the current text within that footnote for the reasons given in paragraph (9). Footnote (24) is being modified to eliminate the current text within that footnote for the reasons given in paragraph (9). Footnote (37) is being added to explain that the sum of Aldicarb with any of its degradates cannot exceed 7 µg/L, because all of the degradates and their parent compound have a similar mode of action. Footnote (38) is being added to explain that the measured concentration of Haloacetic acids must include all five of the listed compounds found in the listing. Footnote (39) is being added to make clear that the cis and trans isomers of Endosulfan (Endosulfan I and Endosulfan II) are to be quantitatively added together with the parent compound (Endosulfan) in determining the total concentration for this parameter. (7) Correcting Information Sources for 28 Parameters The board is revising Department Circular DEQ-7 to correct errors and update the sources of information obtained from EPA that were used in the development of the water quality standards for the following parameters, as indicated below:
Parameter Old Source New Source Alpha emitters HA MCL Alpha-chlordane PP HA Beta emitters HA MCL Butylate HA MCL Clopyralid I HA Dichloroethylene,1,1- PP MCL Gamma chlordane PP HA Gamma-hexachlorocyclohexane HA MCL Imazamethabenz-methyl ester I HA Imazapyr I HA Lead PP MCL MCPP I HA Metalaxyl I HA Methamidaphos I HA Metsulfuron methyl I HA Mirex I NPP Nicosulfuron I HA Nitrate MCL NPP N-nitrosopyrrolidine PP NPP Oxydemeton methyl I HA P-chloro-m-cresol PP OL Phenol PP OL Primisulfuron, methyl I HA Radon 222 HA MCL Thifensulfuron, methyl I HA Triasulfuron I HA Tribenuron, methyl I HA Triclopyr I HA HA = Health Advisory I = data obtained from federal data sources available on the internet from 1998 to 2000. MCL = Maximum Contaminant Level NPP = Non Priority Pollutant Criteria OL = Organoleptic Pollutant Criteria PP = Priority Pollutant Criteria (8) Repealing References to the Narrative Water Quality Standard for Nutrients in Surface Waters The board is proposing to modify footnote 8 in Department Circular DEQ-7, which references a narrative standard in ARM 17.30.637(1)(e) that prohibits undesirable aquatic growth in surface waters. Currently, Footnote 8 indicates that various nutrient parameters in Department Circular DEQ-7 are subject to this narrative standard, because none of the nutrient parameters have a numeric water quality standard for the protection of aquatic life. Since the narrative standard in ARM 17.30.637(1)(e) may be applied to nutrients without the need of referencing it in Department Circular DEQ-7, the board is proposing to delete the existing text of footnote 8 since it serves no purpose other than inform the public that nutrients have no numeric standards. The board is aware, however, that the department has been in the process of developing numeric standards for nutrients that, if adopted by the board, will protect aquatic life by controlling eutrophication in surface waters. Consequently, leaving the narrative standard in Department Circular DEQ-7 may result in two separate and potentially conflicting aquatic life standards for nutrients in the event numeric standards are adopted. Given that the numeric standards for nutrients, if adopted, will be contained in a new Department Circular DEQ-12, the board is proposing to replace the existing text of Footnote 8 with a reference to the numeric nutrient standards that will be contained in proposed Department Circular DEQ-12. The board is also proposing to remove from Department Circular DEQ-7 two nutrient parameters that have no numeric water quality standards for either aquatic life or human health. The specific nutrient parameters proposed for removal are "Nitrogen, total inorganic (as Nitrogen in [N])" and "Phosphorus, inorganic." Since there are no numeric standards for these parameters, removing them from Department Circular DEQ-7 is reasonable given that the narrative aquatic life standard in ARM 17.30.637(1)(e) may be applied independently from its inclusion in Department Circular DEQ-7 and no human health standard for these two nutrients exists. Other nutrient parameters in Department Circular DEQ-7, for which a numeric human health-based standard has been adopted, will remain unchanged. (9) Removing Manganese and Eliminating References to Secondary Maximum Contaminant Levels (SMCLs) The board is proposing to remove manganese and Footnote 24 from Department Circular DEQ-7, because no water quality standards for manganese have been adopted by the board. Despite the lack of numeric standards for manganese, manganese is currently listed in Department Circular DEQ-7 with Footnote 24 indicating a standard to protect human health is contained within the footnote. The text of Footnote 24, however, does not establish human health standards. Instead, the footnote simply refers to administrative rules containing narrative water quality standards that are used by the department when developing site-specific standards to protect the beneficial uses of surface and ground water. The footnote further indicates that the SMCL for manganese (i.e., 50 micrograms per liter) may be used by the department when interpreting a level of harm to beneficial uses caused by manganese. The board is proposing to remove manganese and the text of Footnote 24 for two reasons. First, referencing the narrative standards is not necessary because the narrative standards contained in ARM 17.30.637 and 17.30.1006 provide the department with an independent source of authority to develop site-specific standards when no numeric standards exist. Second, the reference to the SMCL within the footnote may be misconstrued as binding rather than mere guidance. In order to eliminate any confusion between the narrative standards developed by the department using site-specific information and the statewide numeric standards contained in Department Circular DEQ-7, the board is proposing to eliminate the parameter manganese and the entire text of Footnote 24. For the same reasons given above, the board is also proposing to eliminate the text of Footnote 23, which references the SMCL for iron to be used as guidance when developing human health standards under existing rules. Although the board is proposing to eliminate the text of the footnote, the board is not proposing to entirely remove iron from Department Circular DEQ-7. Since the circular currently includes an aquatic life standard for iron, the board will retain iron and its aquatic life standard in the revised Department Circular DEQ-7. (10) General Revisions to the Introduction The board is proposing to generally revise the Introduction to Department Circular DEQ-7 in order to provide consistency among commonly used terms, to clarify the meaning of acronyms, and to more clearly and accurately specify the sources of information used to develop water quality standards. These revisions are necessary to assist the public's understanding of an inherently complex and technical document. 17.24.646 SURFACE WATER MONITORING (1) through (5) remain the same. (6) Methods of sample collection, preservation and sample analysis must be conducted in accordance with 40 CFR Part 136 titled "Guidelines Establishing Test Procedures for the Analysis of Pollutants" (July 2003) and Part 434 titled "Coal Mining Point Source Category BPT, BAT, BCT Limitations and New Source Performance Standards" (January 2002), and the (7) remains the same. AUTH: 82-4-204, MCA REASON: The board is proposing to amend the incorporation by reference of Department Circular DEQ-7 in this rule for the reasons given by the board for amending ARM 17.24.645. 17.30.502 DEFINITIONS The following definitions, in addition to those in 75-5-103, MCA, and ARM Title 17, chapter 30, subchapters 6 and 7, apply throughout this subchapter: (1) through (13) remain the same. (14) The board adopts and incorporates by reference Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" ( AUTH: 75-5-301, MCA IMP: 75-5-301, MCA REASON: The board is proposing to amend the incorporation by reference of Department Circular DEQ-7 in this rule for the reasons given by the board for amending ARM 17.24.645. 17.30.602 DEFINITIONS In this subchapter the following terms have the meanings indicated below and are supplemental to the definitions given in 75-5-103, MCA: (2) through (4) remain the same, but are renumbered (1) through (3). (6) through (15) remain the same, but are renumbered (4) through (13). (17) through (23) remain the same, but are renumbered (15) through (21). (25) through (41) remain the same, but are renumbered (23) through (39). IMP: 75-5-301, MCA REASON: The board is proposing the amendments to the definitions in ARM 17.30.602 for the reasons given below: First, the board is proposing to repeal the definition of "acutely toxic conditions," because that term will no longer be used in the surface water quality standards rules due to the proposed amendment to the definition of "mixing zone" described below. The board is also proposing to repeal the definition of "chronic toxicity" in the surface water quality standards rules, because that term is not used within ARM Title 17, chapter 30, subchapter 6. Second, the board is proposing to amend the definition of "mixing zone" in the surface water quality standards rules in order to ensure that the definition is consistent with the statutory definition of "mixing zone" in Title 75, chapter 5, MCA, and with the definitions in ARM 17.30.502 (mixing zone rules) and in ARM 17.30.702 (nondegradation rules). The board is proposing this amendment because the definition in ARM 17.30.602 includes provisions that may conflict with the board's rules governing the granting of mixing zones. The board finds that the proposed amendment is necessary to ensure consistency with existing statutory and regulatory provisions defining "mixing zones" and to eliminate any inconsistency between the definition and the requirements for granting mixing zones established in ARM 17.30.501 through 17.30.518. Finally, the board is proposing to amend the definition of "pollutant" in order to eliminate incorrect citations to the statutory definitions of "sewage," "industrial wastes," and "other wastes." Since the statutory definitions in 75-5-103, MCA, are renumbered from time to time by legislative additions to the definitions, the board is proposing to simply eliminate specific references to the statutory numbering system. 17.30.619 INCORPORATIONS BY REFERENCE (1) The board adopts and incorporates by reference the following state and federal requirements and procedures as part of Montana's surface water quality standards: (a) Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" ( (b) remains the same. (f) remains the same, but is renumbered (d). (2) remains the same. IMP: 75-5-301, MCA REASON: The board is proposing to amend the incorporation by reference of Department Circular DEQ-7 in this rule for the reasons given by the board for amending ARM 17.24.645. Also, the board is proposing to repeal the federal regulations incorporated by reference in ARM 17.30.619(1)(c) and (d) because the board is also proposing to eliminate the treatment requirements that are based on these federal regulations set forth in ARM 17.30.635. Since the treatment requirements currently in ARM 17.30.635 will no longer be a component of the surface water quality standards rules, incorporating the federal regulations upon which they are based is no longer necessary. The board is proposing these amendments in order to eliminate duplication between rules establishing surface water quality standards and rules establishing effluent limitations and treatment standards for MPDES permits set forth in ARM Title17, chapter 30, subchapter 12. The board is also proposing to update the incorporation by reference of 40 CFR Part 136 in order to adopt the U.S. Environmental Protection Agency's (EPA) recent revisions to those methods. According to EPA, the recent revisions to 40 CFR Part 136 will provide greater flexibility to the regulated community in terms of providing more methods that satisfy EPA's requirements for the sampling and analysis of pollutants. 17.30.629 C-3 CLASSIFICATION STANDARDS (1) Waters classified C-3 are to be maintained suitable for bathing, swimming, and recreation, and growth and propagation of nonsalmonid fishes and associated aquatic life, waterfowl, and furbearers. The quality of these waters is naturally marginal for drinking, culinary, and food processing purposes, agriculture, and industrial water supply. (2) through (2)(k) remain the same. IMP: 75-5-301, MCA REASON: The board is proposing to amend the C-3 classification in the surface water quality standards rules in order to eliminate language implying that degradation occurs only when a beneficial use is impacted. This amendment is necessary, because allowing degradation to the point that uses may be impacted without requiring the activity to undergo nondegradation review pursuant to 75-5-303, MCA, conflicts with Montana's statutory and regulatory nondegradation requirements. 17.30.635 GENERAL TREATMENT STANDARDS (1) through (1)(e) remain the same. (4) and (5) remain the same, but are renumbered (2) and (3). IMP: 75-5-301, MCA REASON: The board is proposing to remove the treatment requirements currently found in (2) and (3) of ARM 17.30.635 in order to eliminate duplication and inconsistencies between these requirements and the rules establishing technology-based treatment requirements for point source discharges in ARM Title 17, chapter 30, subchapter 12. 17.30.637 GENERAL PROHIBITIONS (1) through (2) remain the same. (7) through (9) remain the same, but are renumbered (5) through (7). AUTH: 75-5-201, 75-5-301, 75-6-112, MCA IMP: 75-5-301, MCA REASON: The board is proposing to delete the requirements in (3) and (4) of ARM 17.30.637, because these activities are addressed under other regulatory programs administered by the department. In ARM 17.30.637(3), the board is proposing to eliminate the provision that requires mining facilities and wastes be operated in a manner that prevents pollution of surface waters, because that provision is no longer necessary. Mining activities that result in a discharge to surface waters are subject to the Montana Pollutant Discharge Elimination System (MPDES) permit requirements in ARM Title 17, chapter 30, subchapters 12 and 13. In addition, the location and construction of leach pads, tailing facilities, and related structures associated with mining activities are subject to regulation under the Strip and Underground Mine Reclamation Act, Title 82, chapter 4, part 2, MCA, or the metal mine reclamation laws in Title 82, chapter 4, part 3, MCA. Since the department has adequate authority under these other laws to protect state waters from pollution associated with mining activities, the board is removing the requirements in (3) to eliminate duplication and potential conflicts with other regulatory requirements. In ARM 17.30.637(4), the board is proposing to eliminate the prohibition against dumping snow from parking lots into state surface waters. The removal of snow is not a significant threat to water quality and is adequately addressed by the board's rules establishing requirements for municipal separate storm sewer systems (MS4). The board is also amending ARM 17.30.637(5) and (6) to delete the citation to ARM 17.30.635 as the authority to impose minimum treatment. The board is proposing these amendments because the proposed amendments to ARM 17.30.635 in this rulemaking will remove all treatment requirements from that rule. Since minimum treatment is now defined and authorized only under ARM 17.30.1203, the board is replacing the citation to ARM 17.30.635 with ARM 17.30.1203. 17.30.702 DEFINITIONS The following definitions, in addition to those in 75-5-103, MCA, apply throughout this subchapter (Note: 75-5-103, MCA, includes definitions for "degradation," "existing uses," "high quality waters," "mixing zone," and "parameter"): (1) through (25) remain the same. (26) The board adopts and incorporates by reference: (a) Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" ( (b) through (d) remain the same. IMP: 75-5-303, MCA REASON: The board is proposing to amend the incorporation by reference of Department Circular DEQ-7 in this rule for the reasons given by the board for amending ARM 17.24.645. 17.30.1001 DEFINITIONS The following definitions, in addition to those in 75-5-103, MCA, apply throughout this subchapter: (1) remains the same. (2) "DEQ-7" means Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" ( (a) The board adopts and incorporates by reference Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" ( (3) through (15) remain the same. REASON: The board is proposing to amend the incorporation by reference of Department Circular DEQ-7 in this rule for the reasons given by the board for amending ARM 17.24.645. 17.36.345 ADOPTION BY REFERENCE (1) For purposes of this chapter, the department adopts and incorporates by reference the following documents. All references to these documents in this chapter refer to the edition set out below: (a) through (d) remain the same. (e) Department Circular DEQ-7, "Montana Numeric Water Quality Standards" ( (f) through (2) remain the same. AUTH: 76-4-104, MCA IMP: 76-4-104, MCA REASON: The department is proposing to amend the incorporation by reference of Department Circular DEQ-7 in this rule for the reasons given by the board for amending ARM 17.24.645. 17.55.109 INCORPORATION BY REFERENCE (1) For the purposes of this subchapter, the department adopts and incorporates by reference: (a) Department Circular DEQ-7, Montana Numeric Water Quality Standards ( (b) through (5) remain the same. AUTH: 75-10-702, 75-10-704, MCA IMP: 75-10-702, 75-10-704, 75-10-711, MCA REASON: The department is proposing to amend the incorporation by reference of Department Circular DEQ-7 in this rule for the reasons given by the board for amending ARM 17.24.645. 17.56.507 ADOPTION BY REFERENCE (1) For purposes of this subchapter, the department adopts and incorporates by reference: (a) Department Circular DEQ-7, "Montana Numeric Water Quality Standards" ( (b) through (3) remain the same. AUTH: 75-11-319, 75-11-505, MCA IMP: 75-11-309, 75-11-505, MCA REASON: The department is proposing to amend the incorporation by reference of Department Circular DEQ-7 in this rule for the reasons given by the board for amending ARM 17.24.645. 17.56.608 ADOPTION BY REFERENCE (1) For purposes of this subchapter, the department adopts and incorporates by reference: (a) Department Circular DEQ-7, "Montana Numeric Water Quality Standards" ( (b) through (3) remain the same. AUTH: 75-11-319, 75-11-505, MCA IMP: 75-11-309, 75-11-505, MCA REASON: The department is proposing to amend the incorporation by reference of Department Circular DEQ-7 in this rule for the reasons given by the board for amending ARM 17.24.645. 4. The rules proposed for repeal are as follows: 17.30.616 WATER-USE CLASSIFICATION AND DESCRIPTIONS FOR PONDS AND RESERVOIRS CONSTRUCTED FOR THE DISPOSAL OF COAL BED METHANE WATER (AUTH: 75-5-301, MCA; IMP: 75-5-301, MCA), located at page 17-2709, Administrative Rules of Montana. The board is proposing to repeal the G-1 water-use classification because the Ninth Circuit has held that ground water produced during coal bed methane development is a "pollutant." Since coal bed methane produced water is a pollutant, ponds and reservoirs constructed for the purpose of impounding those pollutants are not defined as "state waters" in 75-5-103, MCA. Consequently, the board is repealing the G-1 classification because it is not appropriate to classify coal bed methane ponds or reservoirs that are used to impound pollutants as state waters.
17.30.658 G-1 CLASSIFICATION STANDARDS (AUTH: 75-5-301, MCA; IMP: 75-5-301, MCA), located at pages 17-2756 and 17-2757, Administrative Rules of Montana. The board is proposing to repeal the water quality standards that are applicable to waters classified as G-1, because the board is also proposing to repeal the entire G-1 classification in ARM 17.30.616. The board is proposing that both ARM 17.30.616 and 17.30.658 be removed from the surface water quality standards rules, because the Ninth Circuit has held that ground water produced during coal bed methane development is a "pollutant." Since coal bed methane produced water is a pollutant, ponds and reservoirs constructed for the purpose of impounding those pollutants are not defined as "state waters" in 75-5-103, MCA. Consequently, the board is repealing the G-1 classification and associated water quality standards since it is not appropriate to apply water quality standards to ponds or reservoirs that are not state waters. 5. Concerned persons may submit their data, views, or arguments, either orally or in writing regarding the proposed rule amendments and changes to Department Circular DEQ-7, at the hearing. Written data, views, or arguments regarding the rule amendments and changes to Department Circular DEQ-7 also may 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., July 12, 2012. To be guaranteed consideration, mailed comments must be postmarked on or before that date. 6. 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. 7. The board and department maintain 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 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 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 or department. 8. 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 DEPARTMENT OF ENVIRONMENTAL QUALITY BY: /s/ Richard H. Opper RICHARD H. OPPER, Director Certified to the Secretary of State, May 29, 2012.
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A directory of state agencies is available online at http://www.mt.gov/govt/agencylisting.asp.
For questions about the organization of the ARM or this web site, contact sosarm@mt.gov.
