Montana Administrative Register Notice 17-346 No. 8   04/25/2013    
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In the matter of the amendment of ARM 17.53.105 pertaining to incorporation by reference









            TO:  All Concerned Persons


            1.  On May 16, 2013, at 1:30 p.m., the Department of Environmental Quality will hold a public hearing in Room 35, 1520 East Sixth Avenue, Helena, Montana, to consider the proposed amendment of the above-stated rule.


            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., May 6, 2013, 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 rule proposed to be amended provides as follows, stricken matter interlined, new matter underlined:


            17.53.105  INCORPORATION BY REFERENCE  (1) and (2) remain the same.

            (3)  Except as provided in (4), Rreferences in this chapter that incorporate 40 CFR 60, 61, 63, 124, 260 through 268, 270, 273, or 279 refer to the version of that publication revised as of July 1, 2008 2012.  References in this chapter to 40 CFR 124, 260 through 268, 270, 273, or 279 that incorporate publications refer to the version of the publication as specified at 40 CFR 260.11.  Provisions within 40 CFR 60, 61, and 63 that are referenced in 40 CFR 124, 260 through 268, 270, 273, or 279 are also incorporated by reference.

            (4)  For the purposes of this chapter, the department adopts and incorporates by reference the final rules published in the Federal Register at 73 FR 72912 on December 1, 2008, "Standards Applicable to Generators of Hazardous Waste; Alternative Requirements for Hazardous Waste Determination and Accumulation of Unwanted Material at Laboratories Owned by Colleges and Universities and Other Eligible Academic Entities Formally Affiliated With Colleges and Universities," to be codified at 40 CFR 261 and 262 does not adopt and incorporate by reference the final rules published in the Federal Register at 73 FR 64668 on October 30, 2008, "Revisions to the Definition of Solid Waste," to be codified at 40 CFR 260, 261, and 270.

            (5) through (8) remain the same.


            AUTH:  75-10-405, MCA

            IMP:  75-10-405, MCA


            REASON:  The department is proposing to amend ARM 17.53.105 to incorporate by reference the most recent version of the Code of Federal Regulations (CFR).  The incorporation by reference process is accomplished by amending the CFR publication date specified in ARM 17.53.105(3).  The proposed amendment allows the department to follow the most recent edition of federal regulations to maintain consistency with EPA regulations and preserve the hazardous waste program authorization.

            The proposed amendment to ARM 17.53.105(4) deletes the incorporation by reference of the federal regulations published in 73 FR 72912.  This incorporation by reference is no longer necessary because the federal regulations promulgated in that notice are being proposed for adoption by incorporation in ARM 17.53.105(3).  Additionally, the department proposes to exclude the revised federal definition of solid waste (DSW) provided for in 40 CFR 260, 261, and 270.  The EPA adopted DSW published in the Federal Register at 73 FR 64668 on October 30, 2008.  The DSW was an optional rule and was not required as a condition to maintain the standards and requirements of delegated authority under 40 CFR 271 and the provisions of section 3006 of the Resource Conservation and Recovery Act (42 USC 6901 et seq.).  The rule was also the subject of a legal challenge and EPA agreed to reconsider the 2008 definition.  In July of 2011, the EPA proposed, but has not adopted, a new definition of solid waste that addresses the legal challenge filed.  The department determined the DSW would not add to, or detract from, the existing regulatory framework in place to protect human health and the environment.  As a result of these factors, the department chose not to adopt the regulation.  Since the 2008 definition is included in the overall incorporation by reference, the exclusion amendment provided in (4) makes clear that the definition of solid waste will not be incorporated in this rulemaking.


            4.  A link to the 2012 version of 40 CFR Chapters 60, 61, 63, 124, 260 through 268, 270, 273, or 279 is available on the department's web site at http://deq.mt.gov/HazWaste/PDFs/DefinitionSolidWasteFinalRule.pdf.  The link may be accessed directly at http://www.ecfr.gov.


            5.  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., May 23, 2013.  To be guaranteed consideration, mailed comments must be postmarked on or before that date.


            6.  Carol Schmidt, attorney, has been designated to preside over and conduct the hearing.


            7.  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.


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


Reviewed by:                                                DEPARTMENT OF ENVIRONMENTAL





/s/ John F. North                                   BY:  /s/ Tracy Stone-Manning                            

JOHN F. NORTH                                         TRACY STONE-MANNING, Director

Rule Reviewer


Certified to the Secretary of State, April 15, 2013.


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