BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY
OF THE STATE OF MONTANA
In the matter of the amendment of ARM 17.74.359, 17.74.364, 17.74.401, 17.74.402, and 17.74.403 pertaining to annual asbestos project permits, training provider requirements, permit fees, accreditation and accreditation renewal fees, and course approval and renewal fees, and the repeal of ARM 17.74.404 pertaining to course audit fees
NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT AND REPEAL
TO: All Concerned Persons
1. On August 20, 2015, at 9:00 a.m., the Department of Environmental Quality will hold a public hearing in Room 111, Metcalf Building, 1520 East Sixth Avenue, Helena, Montana, to consider the proposed amendment and repeal 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., August 10, 2015, 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 firstname.lastname@example.org.
3. The department administers the Asbestos Control Act (Title 75, chapter 2, part 5, MCA) and the Federal Asbestos National Emission Standards for Hazardous Air Pollutants (NESHAP), which require the department to accredit asbestos-related occupations, approve training course providers, and ensure regulated asbestos projects are conducted according to standards that are protective of human health and the environment. The department's asbestos program is fee-based and must set the fees commensurate with costs in order to comply with the provisions of 75-2-503, MCA.
The current fee structure was adopted in 2008. Since that time through the end of FY2014, department costs to administer the program have increased 18 percent and revenues have decreased 40 percent. The department has determined that reasonable necessity exists to generally amend the fee rules to establish sufficient accreditation, training course provider, and regulated asbestos project fees to enable the department to effectively operate and implement the federal and state regulatory obligations. This fee proposal is intended to simplify the existing fee structure, apply the fees equitably across the regulated community, provide predictability, be commensurate with costs as required by 75-2-503(1)(k), MCA, and generate sufficient revenue to meet department mandates. The department estimates that the proposed fee increases will affect 338 persons with department-issued accreditations resulting in approximately $25,350 in additional annual revenue to the department. This is assuming that each affected person is accredited in two disciplines costing $325 under current rules and costing $400 under this proposal (338 x $75). The department also estimates the proposed fee increases will affect ten training course providers, resulting in approximately $10,000 in additional annual revenue to the department. This is assuming that the department will receive requests for ten training course approvals per year at a cost of $2,000 each for a two-year approval period (10 x $2,000/2). Finally, the department estimates the proposed fee increases will affect 160 asbestos project permittees; approximately 120 demolition notifications or permit revisions; ten annual permit holders; eight emergency notifications; and six work practice waivers resulting in a cumulative increase of $57,000 in project permit fees annually. This amount is assuming that the department will receive 160 project permit fees annually at an additional cost of $100 per permit; 120 demolition notices or permit revisions at an additional cost of $150 per notice; ten annual asbestos project permits at an additional cost of $2,000 per permit; eight emergency notices at an additional cost of $300 per notice; six work practice waivers at an additional cost of $100 per waiver. ((160 x $100) + (120 x $150) + (10 x $2,000) + (8x $300) + (6 x $100)). In sum, these rule amendments are estimated to generate an additional $82,350 each fiscal year in accreditation, course approval, asbestos project, and annual asbestos fees. This amount does not include increased revenue to the department from asbestos unit measurement fees, which are based on the amount of asbestos-containing material disturbed under an asbestos project permit or annual asbestos permit that exceeds the "base amount," as that term is defined in proposed ARM 17.74.401(3). Reviewing the last three fiscal years, the department expects revenue generated from AUM fees to be approximately $73,000. This amount is based on the department's assumption that approximately 450,000 cubic, linear, or square feet of asbestos-containing material is disturbed under department-permitted projects annually. The cumulative result of these proposed fee amendments is increased revenue to the department estimated at $150,000 annually. With the additional $150,000 revenue from this proposal, it is projected that the total program revenue would be approximately $370,000, which is the projected average annual expenditure of the program, with an accommodation for the variability in revenue from year to year.
Where a different or additional basis for a proposed amendment exists, the department will identify the reason immediately following that rule.
4. The rules proposed to be amended provide as follows, stricken matter interlined, new matter underlined:
17.74.359 ANNUAL ASBESTOS PROJECT PERMITS (1) An annual asbestos project permit authorizes a facility to conduct asbestos projects within the confines of the facility's controlled area during the
period year for which the permit is in force. After [the effective date of these rules], the annual asbestos project permit period is January 1 through December 31.
(2) through (4)(c)(v)(C) remain the same.
(5) An annual asbestos project permit expires
one December 31 of the year after issuance for which the permit is issued, unless the facility owner applies for renewal at least 45 days before the expiration date by November 15 and the department approves the application.
(6) An application for renewal of an annual asbestos project permit must:
(a) report the amount of regulated asbestos-containing material proposed to be disturbed or removed during the permit period;
(b) address in detail only the portions of the permit application that require revision, updating, supplementation, or deletion
may reference any required information that has been previously submitted.
(7) An amendment to the permit is required when:
(a) there is a change in project contractor
(b) there is a change in demolition/renovation contractor, transporter, or disposal site;
(c) the amount of regulated asbestos-containing material being disturbed exceeds 20 percent of the amount of asbestos-containing material identified, pursuant to (6)(a), in the approved permit application; or
other there is another change of similar scope or magnitude.
AUTH: 75-2-503, MCA
IMP: 75-2-503, 75-2-504, MCA
REASON: The amendments being proposed to this rule are necessary to coordinate the requirements associated with annual facility permits and the fee changes being proposed in ARM 17.74.401. The department is proposing to establish a standard annual facility permit cycle, beginning January 1 and ending December 31, and to set a specific renewal date of November 15, to ensure annual facility permit holders have ample time to submit the necessary information for department approval. Setting a specific renewal deadline allows the department to eliminate the 45-day submission requirement, but provides an adequate review period before the annual facility permit period begins. Adopting a standard permit year will allow the department to better stage the workload associated with approving facility permits and renewals and will provide annual permit applicants with a consistent and stable planning period. The fee associated with annual permits is proposed as a flat rate plus a unit measurement of regulated asbestos-containing material that is removed or disturbed. Therefore, the renewal application must include documentation of asbestos-containing material being proposed for removal to ensure the correct fee is assessed. The proposed amendments will also provide the department with a consistent method for tracking the amount of asbestos-containing material being identified during inspections, projects, and ultimately disposed of during an annual asbestos project permit period, so as to protect human health and the environment from inappropriate or illegal asbestos management. The department is proposing to clarify when an amendment to an annual permit is necessary by aligning the rule with the Asbestos NESHAP notification requirements. Under the proposed change, an annual facility permit holder must notify the department when the amount of asbestos-containing material identified in the original permit application exceeds 20% of the total amount identified in the annual permit application. The proposed amendments are necessary to align this rule with fee rule amendments being proposed in ARM 17.74.401.
17.74.364 TRAINING PROVIDER REQUIREMENTS (1) through (4) remain the same.
(5) The training course approval period is the two-year period beginning January 1 of the year following the year the training course is first approved by the department. The department will not accept applications for training course approval before October 1 of the year preceding the training course approval period. All training course materials and examinations must be submitted to the department in advance for approval. A person may apply for approval of a training course for January 1 by submitting all of the following to the department
at least 45 calendar days prior to the proposed date of course presentation by November 15 of the preceding year:
(a) through (d) remain the same.
(e) a list of the proposed instructors who will teach the course and documentation of the instructors' qualifications, which must include significant academic and/or field experience in asbestos control;
(f) remains the same.
(g) a course schedule indicating the time allotted and the proposed instructor for each subject;
(h) through (6) remain the same.
The department must be notified A training course provider shall notify the department 45 days in advance of implementation of any proposed changes in the content of approved training courses, examinations, or instructors during the two-year course approval period in (5). The department shall approve or deny in writing any proposed changes in training course or examination contents or change in instructor(s) within ten working days of receiving the changes.
(8) remains the same.
(9) The department may audit an approved training course and examination and may audit a training course following any change in the course.
(10) Following an audit conducted under this rule, the course provider shall pay the audit fee specified in ARM 17.74.404.
(11) through (12)(g) remain the same, but are renumbered (9) through (10)(g).
(11) Training provider course approval expires at the end of the two-year approval period established in (5), unless the training provider applies for renewal by November 15 of the year that the approval period expires. A training provider seeking to renew course approval shall provide the department with the information listed in (5) and pay the appropriate fee as provided in ARM 17.74.403.
AUTH: 75-2-503, MCA
IMP: 75-2-511, MCA
REASON: The department is proposing to amend this rule by establishing a consistent two-year time frame for training course approvals and requirements for submitting training course renewals by setting a date approximately 45 days in advance for the submittal of course approval materials required in this rule. This amendment allows the department to allocate staff resources more effectively during the winter months in a business cycle where asbestos projects are generally in the planning phase and prior to the traditional construction season. Specifying a standard course approval and renewal period ensures that training providers can plan effectively for the courses they offer and for costs assessed for course approval. The department is proposing to strike language authorizing the department to conduct course audits for the same reasons given for the proposed amendments to ARM 17.74.403 and for the repeal of ARM 17.74.404.
17.74.401 PERMIT FEES (1)
Concurrent with submittal of An applicant for an asbestos project permit, application, the applicant or for an annual facility permit, shall submit with the application a the applicable permit fee plus the applicable asbestos unit measurement fee, based on the projected amount of asbestos-containing material to be disturbed under the permit, to the department as follows: according to the schedule in (8).
(a) asbestos project permit... 10.0% of the contract volume, as defined in (2)
(b) annual permit............................................................................. $2,000
(c) amendments to annual permit........................................................ $600
Contract volume Asbestos unit measurement (AUM)" means, for purposes of calculating the asbestos project permit fee or the annual facility permit fee, the itemized contract charges directly associated with conducting the asbestos project. If there is no itemization of charges, the total of all charges associated with the contract is the contract volume. The cost of the asbestos project permit fee is not included in the determination of the contract volume if the fee is separately itemized in the contract each unit of regulated asbestos-containing material equal to 50 square, 50 linear, or 50 cubic feet rounded to the next highest 50-foot increment.
The asbestos project permit applicant shall submit a copy of the contract to the department to verify the contract volume specified in the permit application. "Base amount" means:
(a) the amount of regulated asbestos-containing material that an annual facility permit holder may disturb with an annual facility permit, or an annual facility permit amendment, during the year the annual facility permit is in effect; or
(b) the amount of regulated asbestos-containing material that a permittee may disturb with an asbestos project permit.
The fee for requested inspections of asbestos projects is $500 for each inspection. The base amount of asbestos-containing material that may be disturbed upon payment of the following annual facility permit fee is:
(a) 5,000 square, 5,000 linear, or 5,000 cubic feet for an annual facility permit fee;
(b) 1,500 square, 1,500 linear, or 1,500 cubic feet for an annual facility permit amendment fee.
(5) The base amount of asbestos-containing material that may be disturbed upon payment of an asbestos project permit fee is 100 square, 100 linear, or 100 cubic feet.
(6) The total asbestos unit measurement fee may not exceed $25,000 for asbestos project permits or annual facility permits in the year the permit is in effect.
(7) A permit holder shall maintain and submit to the department, within 60 days of project completion or within 60 days of expiration of the annual asbestos project permit period, a record of the amount of asbestos-containing material disturbed during the period the permit is in effect, along with any additional asbestos project permit fee for asbestos-containing material disturbed under the permit that exceeds the amount initially permitted by more than 50 square, 50 linear, or 50 cubic feet.
(8) The project permit fees are as follows:
(a) asbestos unit measurement............. $20 per each 50 square, 50 linear,
or 50 cubic feet
(b) asbestos project permit............................................................... $100
(c) demolition notice without project................................................... $150
(d) demolition notice as part of project permit.................................... $ 75
(e) emergency notifications............................................................... $300
(f) demolition or project permit revisions............................................ $100
(g) work practice waiver.................................................................... $100
(h) annual permit........................................................................... $4,000
(i) annual permit amendment............................................................ $700
AUTH: 75-2-503, MCA
IMP: 75-2-503, 75-2-504, MCA
REASON: The department is proposing to increase project permit fees, annual facility permit fees, and add new fee categories to ARM 17.74.401 to reflect the time and costs associated with administering the Asbestos Control Act and the Federal Asbestos NESHAP. The department is proposing to set a flat fee for an asbestos project permit at $100 plus $20 for each asbestos unit measurement of 50 square, 50 linear, or 50 cubic feet up to a maximum AUM fee of $25,000. The department is proposing to increase the annual facility permit fee to $4,000, provide for an annual facility permit amendment fee of $700, and cap an asbestos unit measurement fee at $25,000. The term "contract volume" is being stricken and replaced with "asbestos unit measurement" to set a specific amount of asbestos-containing material a permit holder will pay for during a project. The term "base amount" is being proposed to establish the amount of asbestos-containing material an annual facility permit holder may remove or disturb during the year the permit is in effect, without a permit amendment and without additional AUM fees and the amount of asbestos-containing material an asbestos project permit holder may disturb upon payment of the asbestos project permit fee without additional AUM fees. Adding this definition will allow facility owners and operators to remove up to 5,000 square, linear, or cubic feet of asbestos-containing material under the $4,000 annual permit fee; up to 1,500 square, linear, or cubic feet under the annual permit amendment fee provisions if the total amount of asbestos-containing material exceeds the 5,000 square, linear or cubic-foot measurement by 20 percent; or 100 square, linear, or cubic feet under the asbestos project permit fee. This proposal also aligns the rule with the notification requirements in the Federal Asbestos NESHAP. The following examples represent how the proposed fee structure is intended to be applied to annual permits and project permits.
Example 1: Initial Annual Facility Permit
A facility owner or operator submits an application to the department for an annual permit stating that work proposed in the facility for the calendar year will result in 6,000 linear feet of asbestos-containing material to be removed. The owner submits a $4,400 fee; $4,000 for the permit plus $400 to account for the 1,000 linear feet of ACM being removed in excess of the 5,000 linear-foot base amount granted under the rule.
Example 2: Amendment to the Initial Annual Facility Permit
The same facility owner in Example 1 identifies that the work being done at the facility will result in an additional 2,500 linear feet of ACM being removed. Because the additional ACM represents an amount greater than 20 percent of the originally identified amount of 6,000 linear feet, the facility owner must file a permit amendment with the department as required by NESHAP notification requirements. The fee for the amendment is $700 which represents a base amendment amount of ACM of 1,750 linear feet. The remaining 750 linear feet of ACM is assessed a fee of $20 per 50 linear feet for an AUM fee of $300. The total fee paid in this example is $700 (permit amendment) + $300 (AUM) = $1,000.
Example 3: Asbestos Project Permit
An accredited asbestos contractor submits an asbestos project permit application identifying a proposed renovation project will disturb 450 square feet of ACM. Based on the proposed fee structure, the asbestos contractor would pay $100 for the flat fee plus $140 in AUM fees for a total project permit fee of $240.
Example 4: Asbestos Project Permit
An accredited asbestos contractor submits an asbestos project permit application identifying a proposed renovation project will disturb 70,000 cubic feet of ACM. Based on the proposed fee structure, the asbestos contractor would pay $100 for the asbestos project permit fee and $25,000 in AUM fees for a total project permit fee of $25,100. Because the AUM calculation results in a total amount greater than $25,000, the maximum AUM fee proposed in the rule would apply.
The department is proposing to set maximum AUM fees for two reasons. First, the amounts represent the maximum permit fees for projects permitted by the department over the last three fiscal years based on records submitted by permit holders. That revenue has allowed the department to assign staff to meet the statutory and administrative functions of the Asbestos Control Act and as a result comply with the intent of the requirements of "commensurate with costs" provisions of 75-2-503, MCA. Second, a maximum fee avoids the possibility that the department would receive a financial windfall from an unusually large asbestos project. Under the current fee structure, an asbestos contractor would pay 10 percent of the total contract price, minus unassociated costs for activities that do not disturb asbestos-containing material. A large renovation project could result in an assessed fee in excess of the proposed maximum fees. Compliance assistance services would not cost more than the maximum fee being proposed. The new fee categories being proposed represent specific administrative activities that department staff has engaged in since the existing fee structure was adopted in 2008. Demolition notices, revisions to permits, requests for emergency permits, and requests for alternative work practices are regularly received and processed by the department and no fee has been assessed for the completion of those functions. As an example, the department processed approximately 100 demolition notifications (required as part of the obligation to issue project permits) in the last year, which is nearly one-third the number of fee-paying renovation project permits. Without the new fee categories being proposed, the department has no mechanism to collect a fee from a significant portion of the regulated community that must conduct projects in a way that is protective of human health and the environment. Additionally, without these new categories, the department does not meet the provisions of 75-2-502, MCA, and is not collecting a fee commensurate with the administrative costs associated with reviewing and documenting activities that disturb regulated asbestos-containing material. The department is also proposing to strike the fee for requests for a department inspection. The department no longer conducts inspections and discourages individuals from seeking a department inspection when there are a number of accredited inspectors available in the private sector. The department does not intend to compete with accredited asbestos inspectors. The department is proposing to eliminate the requirement that contracts be submitted to verify asbestos volumes because it is no longer necessary to review contracts for the assessment of fees under this proposal. The language in (4) and (5) reflects the base amount of ACM annual facility and asbestos project permit holders may remove before paying additional AUM fees. The proposed language in (6), clearly states the maximum AUM fees for the reasons stated earlier. The new language being proposed in (7) establishes recordkeeping requirements that allow the department to better track asbestos-containing material from the point of identification in an inspection through the project and final disposal to protect human health and the environment from inappropriate or illegal asbestos management.
17.74.402 ACCREDITATION AND ACCREDITATION RENEWAL FEES
(1) Except for persons applying for accreditation under (2),
A a person seeking accreditation or renewal of accreditation in an asbestos-related occupation shall pay a fee to the department . The fees for accreditation or renewal of accreditation are: according to the schedule in (3)(a) through (e).
(a) asbestos project worker................................................................. $ 45
(b) asbestos project contractor/supervisor........................................... $170
(c) asbestos inspector........................................................................ $170
(d) asbestos management planner...................................................... $170
(e) asbestos project designer.............................................................. $170
(2) For accreditation
or accreditation renewal based on completion of an initial or refresher training course that has been approved by another state having accreditation requirements at least as stringent as Montana's, a person shall pay a surcharge of $15 plus the out-of-state accreditation or accreditation renewal fee for an application under (1)(a), or $35 plus the accreditation or accreditation renewal fee for an application under (1)(b) through (e) in (3)(f).
For simultaneous, i.e., on the same application with the same date, accreditation or accreditation renewal in more than one asbestos-related occupation, the fee is $325 plus any applicable surcharges, or the total of the two highest fees plus any applicable surcharges for those two occupations, whichever is less. The asbestos occupation accreditation fees are as follows:
(a) asbestos project worker............................................................... $200
(b) asbestos project contractor/supervisor......................................... $200
(c) asbestos inspector...................................................................... $200
(d) asbestos management planner.................................................... $200
(e) asbestos project designer............................................................ $200
(f) out-of-state accreditation.............................................................. $250
AUTH 75-2-503, MCA
IMP: 75-2-503, MCA
REASON: The department is proposing to increase the accreditation and accreditation renewal fees for asbestos occupations to reflect the increase to the department in the cost of processing accreditations. The proposed increases reflect the department's costs to review and issue accreditations and maintain the online services in place. The department is also proposing to eliminate the discount for multiple accreditation applications submitted simultaneously. The department can no longer justify the original intention of offering a reduced rate for multiple applications. The time saved is minimal because each application for accreditation must be reviewed for completeness and entered in the department database.
17.74.403 COURSE APPROVAL AND RENEWAL FEES (1) A person seeking approval or a renewal of a training course for accreditation in an asbestos-related occupation shall pay to the department
a the fee of $1,100 per course established in (3).
(2) A person who has received approval of a training course by the department on or before [the effective date of this rule] and the person intends to continue to provide training under the approved course after [the effective date of this rule] shall pay the fee for approval of a training course established in (3)(a). Payment of the fee allows the training provider to continue to offer courses through the course approval period established in ARM 17.74.364.
(3) The training course fees are as follows:
(a) courses approved on or before [the effective date of this rule] $1,000
(b) courses approved after [the effective date of this rule] $2,000
(c) initial course renewal $300
(d) refresher course renewal $200
AUTH: 75-2-503, MCA
IMP: 75-2-503, MCA
REASON: The department proposes to increase the course approval fees from $1,100 to $2,000 for courses approved after the effective date of this rule. The department is proposing a renewal fee for all initial and refresher courses to be paid prior to the end of the two-year course approval period established in ARM 17.74.364. The department is also proposing a lower fee for training providers with existing courses that were approved by the department on or before the effective date of this rule. The proposed lower fee for courses approved on or before the effective date of this rule acknowledges training providers who have been offering approved training courses, while providing revenue to the department to ensure training course visits can occur during the first two years of the proposed course approval period. This will allow the department to plan and budget for ongoing visits to review the courses being offered by training providers.
5. The rule proposed for repeal is as follows:
17.74.404 COURSE AUDIT FEES (AUTH: 75-2-503, MCA; IMP: 75-2-503, MCA), located at page 17-8403, Administrative Rules of Montana. The rule is proposed for repeal because audits conducted by the department are expensive, time-consuming, and represent a dual assessment on training providers. The department described the reason for increasing course approval fees and adding the ability to charge renewal fees in ARM 17.74.364 and 17.74.403. The department believes that a thorough initial review to grant approval and the additional recordkeeping requirements proposed in ARM 17.74.364 is sufficient to ensure that training providers are meeting the regulatory requirements of course materials without having to charge for an audit of a course already approved. Additionally, the department is proposing to repeal this rule because the department is proposing a course renewal fee to be paid every two years to ensure that the required information is being taught to the students seeking accreditation in asbestos-related occupations. A standard two-year renewal cycle is a more efficient way to maintain a continual and regular process to ensure that course material is up-to-date and designed to be protective.
6. 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 email@example.com, no later than 5:00 p.m., August 27, 2015. To be guaranteed consideration, mailed comments must be postmarked on or before that date.
7. Kirsten Bowers, attorney for the Department of Environmental Quality, has been designated to preside over and conduct the hearing.
8. 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, 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 firstname.lastname@example.org; or may be made by completing a request form at any rules hearing held by the department.
9. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
10. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment and repeal of the above-referenced rules will significantly and directly impact small businesses.
Reviewed by: DEPARTMENT OF ENVIRONMENTAL
/s/ John F. North BY: /s/ Tom Livers
JOHN F. NORTH TOM LIVERS, Director
Certified to the Secretary of State, July 20, 2015.