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17.30.708    DEPARTMENT PROCEDURES FOR ISSUING PRELIMINARY AND FINAL DECISIONS REGARDING AUTHORIZATIONS TO DEGRADE

(1) A preliminary decision to deny or authorize degradation must be accompanied by a statement of basis for the decision and, if applicable, a detailed statement of conditions imposed upon any authorization to degrade.

(2) The preliminary decision must include the following information, if applicable:

(a) a description of the proposed activity;

(b) the level of protection required, e.g., for high-quality waters;

(c) a determination that degradation is or is not necessary based on the availability of economically, environmentally and technologically feasible alternatives that will prevent degradation;

(d) a determination of economic or social importance;

(e) a determination that all existing and anticipated uses will or will not be fully protected;

(f) the amount of allowed degradation;

(g) a description of the required water quality protection practices;

(h) a description of all monitoring and reporting requirements; and

(i) a specific identification of any mixing zone the department proposes to allow.

(3) A statement of basis for the decision must be prepared for every preliminary decision. In general, the statement of basis must briefly set forth the principal facts and significant factual, legal, methodological, or policy questions considered in preparing the authorization. The statement of basis must include, when applicable:

(a) a description of the proposed activity which is the subject of the authorization;

(b) the type and quantity of degradation which will result if the proposed activity is authorized;

(c) a summary of the basis for the conditions imposed in any preliminary decision, including references to applicable statutory or regulatory provisions;

(d) a summary and analysis of alternatives to the proposed activity;

(e) a description of the procedures for reaching a final decision on the draft authorization including:

(i) the beginning and ending dates of the comment period and the address where comments will be received;

(ii) procedures for requesting a hearing; and

(iii) any other procedures by which the public may participate in the final decision;

(f) name and telephone number of a person to contact for additional information; and

(g) reasons supporting the preliminary decision.

(4) The preliminary decision, accompanying statement of basis, and, if applicable, the statement of conditions imposed, must be publicly noticed and made available for public comment for at least 30 days but not more than 60 days prior to a final decision. In providing public notice, the department shall comply with the following:

(a) procedures for public notice set forth in ARM 17.30.1372; and

(b) procedures for the distribution of information set forth in ARM 17.30.1041.

(5) During the public comment period any interested person may submit written comments on the preliminary decision and may request a public hearing. A request for a public hearing must be in writing and must state the nature of the issues proposed to be raised in the hearing. The department shall hold a hearing if it determines that there may be a significant degree of public interest in the preliminary decision. Any public hearing conducted under this subsection is not a contested case hearing under the provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, MCA.

(6) Within 60 days after the close of the public comment period, the department shall issue a final decision accompanied by a statement of basis for the decision and, if applicable, a statement of conditions. The final decision and statement of basis will be prepared according to the requirements of (2) and (3) . In addition, the statement of basis for a final decision must include the following:

(a) which provisions, if any, of the preliminary decision have been changed in the final decision and the reasons for the change; and

(b) a description and response to all substantive comments on the preliminary decision raised during the public comment period or during any hearing.

(7) Upon issuing a final decision, the department shall notify the applicant and each person who has submitted written comments or requested notice of that decision. The notice must include reference to the procedures for appealing the decision. The final decision is effective upon issuance.

(8) The board hereby adopts and incorporates by reference ARM 17.30.1372, which sets forth procedures for issuing public notices of MPDES permit applications and hearings, and ARM 17.30.1041 which sets forth requirements for distribution and copying of public notices and permit applications. Copies of ARM 17.30.1372 and 17.30.1041 may be obtained from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

History: 75-5-301, 75-5-303, MCA; IMP, 75-5-303, MCA; NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2006 MAR p. 528, Eff. 2/24/06.

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