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| Montana Administrative Register Notice 17-418 | No. 1 01/14/2022 | |
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BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On February 9, 2022, at 2:00 p.m., the Department of Environmental Quality (department) will hold a public hearing in Room 111 of the Metcalf Building, 1520 East Sixth Avenue, Helena, Montana, to consider the proposed adoption, amendment, and repeal of the above-stated rules. The department is committed to preventing the spread of COVID-19 and promoting the health and wellness of others. Members of the public may participate either in person or virtually. For in-person meetings, while face masks are not required, meeting attendees are welcome to wear masks. If you are not feeling well, please do not attend the in-person meeting. Registration with Zoom may be made at the following link: Join Zoom Meeting
https://mt-gov.zoom.us/j/86001610494?pwd=U2tlSFlUb1RsZk9JeFpoV2VCcmR3dz09
Meeting ID: 860 0161 0494 Password: 651151
Dial by Telephone +1 646 558 8656 or +1 406 444 9999 Meeting ID: 860 0161 0494 Password: 651151 Find your local number: https://mt-gov.zoom.us/u/kbDtDBIWT1
Join by SIP 86001610494@zoomcrc.com
Join by H.323 (Polycom) 162.255.37.11##86001610494
Please contact Loryn Johnson at the Department of Environmental Quality at (406) 444-1388 or Loryn.Johnson2@mt.gov should you encounter any difficulties.
2. The department will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact Loryn Johnson, Paralegal, no later than 4:00 p.m. on February 2, 2022, to advise us of the nature of the accommodation that you need. Please contact Loryn Johnson at the Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-1388; fax (406) 444-4386; or e-mail Loryn.Johnson2@mt.gov.
3. General Reason Statement: Through this rulemaking, the department is proposing to update hazardous waste fees and to incorporate by reference the 2021 version of the federal Resource Conservation and Recovery Act (RCRA) Subtitle C hazardous waste regulations in Title 40 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 amendments are necessary for the department to maintain consistency with federal RCRA Subtitle C regulations and preserve the state hazardous waste program authorization from the U.S. Environmental Protection Agency (EPA). There are many provisions in the federal RCRA hazardous waste regulations that are not delegable to state hazardous waste programs. For these provisions, the department has adopted the federal regulation but does not substitute state-specific terms for federal references. By retaining the federal references in the non-delegable provisions, the authority to implement those provisions is left with EPA. Throughout this rulemaking, the department is proposing to amend and/or add new exceptions to its adoption of the federal hazardous waste regulations to ensure the authority to implement non-delegable provisions of the federal regulations is retained with EPA. Two primary examples of non-delegable provisions are those related to the import and export of hazardous waste, as well as provisions relating to the e-manifest system. Throughout this rulemaking, the department is proposing to rename the smallest hazardous waste generator category from "conditionally exempt small quantity generator" to "very small quantity generator." This proposed change aligns with the federal hazardous waste regulations. EPA renamed this generator category as part of its "Hazardous Waste Generator Improvements Rule," published November 11, 2016, in 81 FR 85732. EPA made this revision to remove confusion regarding the phrase "conditionally exempt." For example, all categories of hazardous waste generators are conditionally exempt from storage facility permit, interim status, and operating requirements, not just the smallest category. In addition, the new term more accurately describes what the category represents. All rules previously applicable to a conditionally exempt small quantity generator apply to a very small quantity generator. See proposed amendments to ARM 17.53.301 for the definition of "very small quantity generator."
4. The rules proposed to be adopted provide as follows:
NEW RULE I ADOPTION OF HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL (40 CFR 260) (1) Except as provided otherwise in [NEW RULE II], the department adopts and incorporates by reference 40 CFR 260, Subpart A, Subpart B, and Subpart C pertaining to General Hazardous Waste Management.
AUTH: 75-10-405, MCA IMP: 75-10-405, MCA
REASON: The department is proposing to incorporate by reference the entirety of 40 CFR 260 in NEW RULE I, with exceptions and additions to the incorporation by reference specified in NEW RULES II and III. Under the department's current rules, the department incorporates specific provisions of 40 CFR 260 in ARM Title 17, chapter 53, subchapter 4. By moving to an incorporation by reference format that incorporates the entirety of 40 CFR 260 and then excludes or adds to certain provisions of the incorporated federal regulations, the proposed rules align the format of subchapter 4 with the format of other subchapters in ARM Title 17, chapter 53. Moving to this format streamlines the rules for the regulated community and interested parties and provides clarity as to how and where Montana's rules differ from the federal hazardous waste regulations.
NEW RULE II EXCEPTIONS AND ADDITIONS TO ADOPTION OF HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL (1) In 40 CFR 260.1(b)(1), references to "EPA" are retained. The department has separate rules governing access to information and confidentiality at ARM Title 17, chapter 53, subchapter 2. (2) In 40 CFR 260.1(b)(4) through (6), references to "EPA" are retained. (3) 40 CFR 260.2(a) and (b), pertaining to availability of information and confidentiality of information, are not adopted. The department has separate rules governing access to information and confidentiality at ARM Title 17, chapter 53, subchapter 2. (4) In 40 CFR 260.2(c) and (d), 260.4, and 260.5, references to "EPA" are retained. (5) The definitions in 40 CFR 260.10 are subject to the provisions of ARM 17.53.301. (6) 40 CFR 260.20 through 260.23, pertaining to rulemaking petitions, are not adopted. Thus, any reference to petitions under these provisions in 40 CFR 124, 260 through 268, 270, 273, and 279, incorporated by reference by this chapter, are not applicable under the Montana hazardous waste program. See [NEW RULE III] for more information.
AUTH: 75-10-405, MCA IMP: 75-10-405, MCA
REASON: As part of its proposed reformatting of ARM Title 17, chapter 53, subchapter 4, the department is proposing several exceptions to the incorporation by reference of 40 CFR 260 in NEW RULE I. In proposed (1) through (3), which address federal access to information regulations, the department proposes to retain references to EPA. The department has state-specific rules governing access to information and confidentiality at ARM Title 17, chapter 53, subchapter 2. Proposed (3) also provides exceptions for certain non-delegable provisions relating to the federal e-manifest system. In proposed (2) and (5), the department does not adopt federal regulations relating to delisting petitions. This is not a substantive change to the department's hazardous waste rules; this issue was previously addressed in ARM 17.53.401, which the department is proposing to repeal as part of its reorganization of ARM Title 17, chapter 53, subchapter 4. The department's longstanding practice has been to refer delisting petitions to EPA.
NEW RULE III NO STATE WASTE DELISTING – FEDERAL PETITION REQUIRED (1) Waste generators may demonstrate that their wastes do not meet criteria utilized by EPA to list hazardous wastes. A successful petition results in that waste being excluded from regulation as a hazardous waste--often referred to as waste "delisting." Under [NEW RULE II(5)], Montana does not adopt 40 CFR 260.20 through 260.23, relating to rulemaking petitions. Petitions by Montana generators to delist a hazardous waste must be filed with EPA.
AUTH: 75-10-405, MCA IMP: 75-10-405, MCA
REASON: See reason statement for New Rule II. The department is proposing to retain its longstanding practice to defer delisting petitions to EPA. This proposed rule is not a substantive change to the department's hazardous waste rules, and was previously addressed in ARM 17.53.401, which the department is proposing to repeal as part of its reorganization of ARM Title 17, chapter 53, subchapter 4.
5. The rules proposed to be amended provide as follows, stricken matter interlined, new matter underlined:
17.53.105 INCORPORATION BY REFERENCE (1) and (2) remain the same. (3)
(6) through (8) remain the same but are renumbered (5) through (7).
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 July 1, 2021, version of the Code of Federal Regulations (CFR). The incorporation by reference process is accomplished by amending the CFR publication date specified in (3). The proposed amendment allows the department to maintain consistency with EPA regulations and preserve the state's hazardous waste program authorization. The department is proposing to delete (4), which excluded from the department's incorporation by reference the federal "Revisions to the Definitions of Solid Waste" rule. By removing the exclusion, the department is proposing to incorporate the current version of these federal regulations, published on May 30, 2018, at 83 FR 24664, into the department's hazardous waste rules. The department is proposing to adopt the 2018 definition of solid waste regulations to ensure regulated entities and the department have a consistent and clear definition of legitimate recycling of hazardous secondary materials. In addition, the 2018 definition of solid waste regulations provide regulatory certainty and a practical framework to promote the legitimate recycling of hazardous secondary materials. Removing roadblocks to legitimate recycling is good for business and the environment, and will result in conserving natural resources, reducing waste, saving energy, and reducing costs. In proposed new (4), the department is proposing to update the mailing and website address for ordering copies of the CFR.
17.53.107 SUBSTITUTION OF STATE TERMS FOR FEDERAL TERMS (1) The following terms used in 40 CFR 124, (a) through (n) remain the same.
(a) (b) Electronic manifest(or e-Manifest); (c) Electronic Manifest System (or e-Manifest System);
(e) Manifest; (g) User of the electronic manifest system.
(a) 40 CFR 260.2(c); (b) 40 CFR 260.2(d); (c) 40 CFR 260.4; (d) 40 CFR 260.5; (a) through (e) remain the same but are renumbered (e) through (i). (j) 40 CFR 261.39(a)(5); (k) 40 CFR 261.41; (f) and (g) remain the same but are renumbered (l) and (m). (o) remains the same but is renumbered (p). (q) 40 CFR 263.20(a)(4)(iv); (r) 40 CFR 264.12(a); (s) 40 CFR 264.71; (t) 40 CFR 265.12(a); (u) 40 CFR 265.71; (v) 40 CFR 267.71(a)(6); (w) 40 CFR 267.71(d); (r) through (ab) remain the same but are renumbered (x) through (ah).
AUTH: 75-10-405, MCA IMP: 75-10-405, MCA
REASON: The proposed amendments are necessary to clarify where substitution of state terms does and does not apply to specific portions of the CFR. Certain provisions of the federal hazardous waste regulations are not delegable to state hazardous waste programs. When the department adopts non-delegable federal provisions, it must not replace federal or international references or terms with state references. By keeping the federal terms in the rule language, the authority for those provisions remains with EPA. This is necessary for the department to maintain consistency with EPA regulations and preserve the hazardous waste state program authorization.
17.53.111 REGISTRATION OF GENERATORS, (2) The following persons are not required to register as hazardous waste generators: (a) (b) through (6) remain the same. (7) A reverse distributor operating under 40 CFR 266, Subpart P must register with the department.
AUTH: 75-10-204, 75-10-404, 75-10-405, MCA IMP: 75-10-204, 75-10-212, 75-10-214, 75-10-221, 75-10-405, MCA
REASON: The proposed amendments to (2) keep the existing practice of generally not requiring very small quantity generators (formerly conditionally exempt small quantity generators) to register with the department. Very small quantity generators have fewer regulatory obligations because they generate smaller quantities of hazardous waste than small or large quantity generators. Although not required to register with the department, nothing in this rule precludes very small quantity generators from doing so if they choose. Additionally, under certain circumstances, the department registers very small quantity generators into our database in response to enforcement activities, complaints, and inspections. The department is proposing to require very small quantity generators who generate hazardous waste due to an episodic event to register with the department and pay registration fees. The department has determined it is reasonably necessary to require these generators to register and pay fees to cover staff time and costs necessary to ensure very small quantity generators comply with regulatory requirements associated with episodic events. The department is proposing (7) to ensure that the department is made aware of reverse distributors operating in Montana. Although reverse distributors would be required to register with the department, they are not generators of hazardous waste and thus would not be subject to fees. See proposed ARM 17.53.113(10).
17.53.112 FACILITY PERMIT FEES: APPLICATION, REISSUANCE, MODIFICATION, AND MAINTENANCE FEES (1) and (2) remain the same. (3) At the time the permit reissuance process is initiated, the department shall assess a permit reissuance fee. The fees are as follows: (a) (b) (c) (4) and (5) remain the same. (6) The fees for permit modifications at the request of the permittee are as follows: (a) (b) (c) for Class 1 modifications listed in 40 CFR 270.42, Appendix I: (i) (ii) (d) remains the same. (7) The fees for permit modifications initiated by the department, pursuant to 40 CFR 270.41, are as follows: (a) for modifications, for causes described in 40 CFR 270.41, the fees are as follows: (i) (ii) (iii) for Class 1 modifications listed in 40 CFR 270.42, Appendix I: (A) (B) (b) through (10) remain the same.
AUTH: 75-10-404, 75-10-405, 17-10-406, MCA IMP: 75-10-405, 75-10-406, MCA
REASON: The department has determined reasonable necessity exists to generally amend hazardous waste fee rules to establish sufficient fees to enable the department to effectively operate and implement the federal and state regulatory obligations. The department is proposing to increase the permit reissuance fees in (3) and the permit modification fees in (6) through (7). The department last updated permit reissuance and modification fees in 2009, using the inflation rate on the U.S. Consumer Price Index (US CPI) as the basis of the increase. Similarly, here, the department is proposing to increase hazardous waste permitting fees based on the rate of inflation since 2010. The department has used the US CPI as the basis for determining the inflation index. The United States Bureau of Labor Statistics inflation calculator compounded the inflation index from January 2010 through August 2020. The average rate for the ten-year period was 2 percent per year. As such, the value of $1,000 in 2009 calculates to $1,200 in 2020. In proposing the new fee amounts, the department rounded up the inflationary adjustment to the nearest $5.00 to aid and simplify calculations for both the regulated community and the department. The department intends to adjust hazardous waste permit reissuance and modification, generator registration, registration maintenance, and change of activity fees every five years to reflect the change in the U.S. consumer price index for all urban consumers over the five-year period. This fee adjustment framework will provide a consistent and predictable fee structure for the regulated community and a stable revenue stream for the department's Hazardous Waste Program. Future fee adjustments will be implemented through MAPA rulemaking procedures and will include an opportunity for the public to comment on the proposed fee adjustments prior to implementation. Hazardous waste permits have a term of ten years, with the option of reissuance. Currently, six Montana facilities hold a hazardous waste permit. Each facility would be affected by the proposed fee increases if it chose to apply for permit reissuance. The cumulative amount of the increase to the permit reissuance fees for the six facilities for the five-year period from 2022 to 2027 would be $8,925. Modifications to a permit are based on operational and/or regulatory needs of the permittee and the department; therefore, the number of modifications expected during the ten-year permit term is difficult to predict. Based on permit modifications over the last 20 years, the department is estimating it will process five permit modifications during the five-year period from 2022 to 2027. The cumulative amount of the proposed increase to the permit modifications fees for that period would be $2,880.
17.53.113 REGISTRATION AND REGISTRATION MAINTENANCE FEES: FEE ASSESSMENT (1) remains the same. (2) Concurrent with the submittal of a registration form, a generator shall submit to the department a registration fee of (3) The department shall assess an annual registration maintenance fee, as provided in (4), for the following hazardous waste generators: (a) and (b) remain the same. (c) a (4) The annual registration maintenance fee for a calendar year is (a) remains the same. (b) (5) through (7) remain the same. (8) The department shall assess a change of activity fee, as provided in (9), for any generator who notifies the department as: (a) an episodic generator operating under 40 CFR 262, Subpart L; (b) a large quantity generator receiving waste from a very small quantity generator consolidating hazardous waste received from a very small quantity generator in accordance with 40 CFR 262.17(f); and (c) a healthcare facility, as defined in 40 CFR 266.500, notifying that it is operating under 40 CFR 266, Subpart P. (9) The change of activity fee is $150 for each notification to the department provided in (8). (a) and (b) remain the same. (c) handling used oil; (d) conducting a treatability study (e) notifying the department that they are a reverse distributor operating under 40 CFR 266, Subpart P. (9) and (10) remain the same but are renumbered (11) and (12).
AUTH: 75-10-404, 75-10-405, MCA IMP: 75-10-405, MCA
REASON: The department has determined reasonable necessity exists to generally amend its hazardous waste generator registration fee rules to establish sufficient funding to effectively operate and implement federal and state regulatory obligations. The department last finalized rules increasing hazardous waste generator registration fees in 2009. As part of that 2009 rulemaking, the department instituted a three-year stepwise increase of the per ton fees in (4) that brought generator registration maintenance fees to their current rates in 2012. The department is proposing to increase hazardous waste generator registration and registration maintenance fees based on the rate of inflation since 2012. The department used the US CPI as the basis for determining the inflation index. In proposing the new fee amounts, the department rounded up the inflationary adjustment to the nearest $5.00 to aid and simplify calculations for both the regulated community and the department. The department is proposing to amend (3)(c), which previously required annual registration fees from very small quantity generators (formerly conditionally exempt small quantity generators) who had registered with the department and desired to remain registered. The proposed change aligns the hazardous waste rules with the department's current practice of not charging registration maintenance fees to registered very small quantity generators. Under the proposed rules, only very small quantity generators who generate hazardous waste due to an episodic event would be assessed registration maintenance fees. The department proposes to incorporate by reference rules that allow a very small quantity generator or a small quantity generator to maintain its existing generator category if, as a result of a planned or unplanned episodic event, the generator would generate a quantity of hazardous waste in a calendar month sufficient to cause the facility to move into a more stringent generator category. The department has determined that it is reasonably necessary to charge registration maintenance fees to very small quantity generators who generate hazardous waste as part of an episodic event because (a) those generators would previously have been subject to fees under our rules by changing to a small or large quantity generator; and (b) the fees are necessary to account for the work required by the department to verify compliance with regulatory requirements. The department is proposing new fees in (8) and (9) related to change of activity notifications required in federal hazardous waste regulations proposed to be incorporated by reference in this rulemaking. As part of the proposed new rules, certain flexibilities are allowed to generators for episodic generation, consolidation of wastes by large quantity generators, and management of hazardous pharmaceutical wastes. To take advantage of these more flexible rules, generators are required to submit a change of activity notification to the department. The department determined it is necessary to assess a fee for these notifications. The $150 per change of activity notification proposed by the department is commensurate with the time and work for staff to review and process each notification form, and to verify compliance with regulatory requirements. The change of activity fees proposed in (8) and (9) would apply to those hazardous waste generators already registered with the department, including very small quantity generators. The department intends to adjust hazardous waste permit reissuance and modification, generator registration, registration maintenance, and change of activity fees every five years to reflect the change in the U.S. consumer price index for all urban consumers over the five-year period. This fee adjustment framework will provide a consistent and predictable fee structure for the regulated community and a stable revenue stream for the department's Hazardous Waste Program. Future fee adjustments will be implemented through MAPA rulemaking procedures and will include an opportunity for the public to comment on the proposed fee adjustments prior to implementation. Businesses potentially affected by the proposed fee increases are small and large quantity generators of hazardous waste, as well as very small quantity generators who generate hazardous waste as part of an episodic event under 40 CFR 262, Subpart L. Other very small quantity generators, hazardous waste transporters, and facilities with corrective action orders on consent are not expected to be affected by the proposed fee increases. Based on the number of hazardous waste generators registered with the department in fiscal year 2020, the department estimates 196 businesses would be affected by the proposed increase in registration and registration maintenance fees. An estimated 51 businesses would be affected by the proposed change of activity fees. The cumulative amount of increase over a five-year period is estimated to be $53,130 for the universe of hazardous waste generators.
17.53.301 DEFINITIONS (1) Except where inconsistent with the definitions in (2), the definitions in 40 CFR 260 through (2) In this chapter, the following terms shall have the meanings or interpretations shown below: (a) through (d) remain the same. (f) through (q) remain the same but are renumbered (e) through (p). (q) "Very small quantity generator" means a generator who generates less than or equal to the following amounts in a calendar month: (i) 100 kilograms (220 pounds) of nonacute hazardous waste; (ii) 1 kilogram (2.2 pounds) of acute hazardous waste listed in 40 CFR 261.31 or 40 CFR 261.33(e); and (iii) 100 kilograms (220 pounds) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in 40 CFR 261.31 or 40 CFR 261.33(e).
AUTH: 75-10-405, MCA IMP: 75-10-405, MCA
REASON: The department is proposing to amend (1) to ensure all relevant definitions from the federal hazardous waste regulations are incorporated into these rules. This is necessary to ensure the state's hazardous waste program maintains consistency with EPA regulations and to preserve the state's hazardous waste program authorization. The department is proposing to amend (2) to remove the defined term "conditionally exempt small quantity generator" and replace it with "very small quantity generator." The department's proposed definition matches the federal definition in 40 CFR 260.10. See the general reason statement for additional information regarding the proposed change from "conditionally exempt quantity generator" to "very small quantity generator."
17.53.502 EXCEPTIONS AND ADDITIONS TO ADOPTION OF FEDERAL STANDARDS FOR IDENTIFICATION AND LISTING OF HAZARDOUS WASTE (1) through (4) remain the same. (5) The following language is substituted for the language in 40 CFR 261.6(c)(2)(iv), adopted and incorporated by reference in ARM 17.53.501: "ARM 17.53.903 (annual reporting requirements)."
(7) and (8) remain the same but are renumbered (6) and (7).
AUTH: 75-10-204, 75-10-404, 75-10-405, MCA IMP: 75-10-203, 75-10-204, 75-10-403, 75-10-405, 75-10-602, MCA
REASON: The department is proposing (5) to address the requirement in Montana law for annual reporting, to be in accordance with ARM 17.53.903. The department is proposing to delete the former (5) and (6), as the federal provisions referenced are no longer part of the federal hazardous waste regulations.
17.53.602 EXCEPTIONS AND ADDITIONS TO ADOPTION OF FEDERAL STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE (1) In 40 CFR 262.11(c), the reference to "Administrator" is retained. Petitions by Montana generators to delist a hazardous waste must be filed with EPA. (3) In 40 CFR 262.18(d), the reference to "biennial report" is replaced with "annual report." (4) In 40 CFR 262.24(a)(3) and 262.25, references to "EPA" are retained. (2) through (5) remain the same but are renumbered (5) through (8).
AUTH: 75-10-204, 75-10-404, 75-10-405, MCA IMP: 75-10-204,
REASON: See the general reason statement for the proposed changed language from "conditionally exempt small quantity generator" to "very small quantity generator." For the proposed amendments and additional language to (13), see the reason statement for ARM 17.53.111(2). The department is proposing to delete the reference to 75-10-225, MCA, in the implementing statutes, as the statute has been repealed.
17.53.603 ANNUAL REPORT FROM GENERATORS OF HAZARDOUS WASTE (1) and (2) remain the same. (3) Reporting for exports of hazardous waste is subject to the requirements of 40 CFR (4) A
AUTH: 75-10-404, 75-10-405, MCA IMP: 75-10-405, MCA
REASON: See the general reason statement for the rationale for changing the name from "conditionally exempt small quantity generator" to "very small quantity generator." The department is proposing to amend (4) to align the hazardous waste rules with the department's current practice of not requiring very small quantity generators (formerly conditionally exempt small quantity generators) to submit an annual report. Under the proposed rules, only very small quantity generators who generate hazardous waste due to an episodic event under 40 CFR 262, Subpart L would be required to submit an annual report for the year in which the episodic event or events took place.
17.53.701 ADOPTION OF FEDERAL STANDARDS APPLICABLE TO TRANSPORTERS OF HAZARDOUS WASTE (40 CFR 263) (1) Except as provided otherwise in ARM
AUTH: 75-10-404, 75-10-405, MCA IMP: 75-10-405, 75-10-406, MCA
REASON: The proposed change corrects an incorrect internal reference in the department's current rules. The exceptions and additions to the department's adoption of federal standards applicable to transporters of hazardous waste are located at ARM 17.53.702.
17.53.802 EXCEPTIONS AND ADDITIONS TO ADOPTION OF FEDERAL STANDARDS APPLICABLE TO OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES (1) and (2) remain the same. (3) The requirements in 40 CFR 264.1(g)(1), pertaining to exclusions from the requirements of 40 CFR 264, are replaced with: "The standards set forth in this subchapter do not apply to owners or operators of solid waste management systems licensed by the department pursuant to ARM Title 17, chapter 50, subchapter 5, if the only hazardous waste the facility treats, stores, or disposes of is excluded from regulation by the requirements for (4) In 40 CFR 264.12(a) (5) In 40 CFR 264.71, relating to use of the manifest system, references to EPA are retained. (5) through (24) remain the same but are renumbered (6) through (25).
AUTH: 75-10-404, 75-10-405, 75-10-406, MCA IMP: 75-10-405, 75-10-406, MCA
REASON: Proposed (3) amends "conditionally exempt small quantity generator" to "very small quantity generator." See general reason statement. The proposed amendments to (4) and (5) add additional exceptions to the incorporation by reference of 40 CFR 265 in ARM 17.53.901. These exceptions are necessary to ensure the authority for non-delegable provisions in the federal hazardous waste regulations relating to hazardous waste imports and exports and the e-manifest program is retained with EPA.
17.53.902 EXCEPTIONS AND ADDITIONS TO ADOPTION OF FEDERAL INTERIM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES (1) through (3) remain the same. (4) The requirements in 40 CFR 265.1(c)(5) are replaced with: "The standards set forth in this subchapter do not apply to owners or operators of solid waste management systems licensed by the department pursuant to ARM Title 17, chapter 50, subchapter 5, if the only hazardous waste the facility treats, stores, or disposes of is excluded from regulation by the requirements for (5) In 40 CFR 265.12(a) (6) In 40 CFR 265.71, relating to the use of the manifest system, references to EPA are retained. (6) through (22) remain the same but are renumbered (7) through (23).
AUTH: 75-10-404, 75-10-405, MCA IMP: 75-10-405, 75-10-406, MCA
REASON: Proposed (4) amends "conditionally exempt small quantity generator" to "very small quantity generator." See general reason statement. The proposed amendments to (5) and (6) add additional exceptions to the incorporation by reference of 40 CFR 265 in ARM 17.53.901. These exceptions are necessary to ensure the authority for non-delegable provisions in the federal rules relating to hazardous waste imports and exports and the e-manifest program is retained with EPA.
17.53.1002 EXCEPTIONS AND ADDITIONS TO ADOPTION OF FEDERAL STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES (1) through (8) remain the same. (9) In 40 CFR 266, Subpart P, relating to hazardous waste pharmaceuticals, all references to "biennial report" are replaced with "annual report" and all references to "biennial reporting" are replaced with "annual reporting."
AUTH: 75-10-404, 75-10-405, MCA IMP: 75-10-405, 75-10-406, MCA
REASON: The department proposes to add (9) to address the requirement in Montana law for annual reporting in accordance with ARM 17.53.603. Healthcare facilities operating under the hazardous waste pharmaceuticals rule at 40 CFR 266, Subpart P, are subject to the annual reporting requirements under state hazardous waste rules.
17.53.1302 EXCEPTIONS AND ADDITIONS TO ADOPTION OF UNIVERSAL WASTE RULE (2) through (4) remain the same but are renumbered (1) through (3).
AUTH: 75-10-405, MCA IMP: 75-10-404, 75-10-405, MCA
REASON: The department is deleting ARM 17.53.1302(1) because the updated federal regulations cited no longer contain reference to "EPA," making the exception in (1) unnecessary.
6. The rules proposed to be repealed are as follows:
17.53.401 NO STATE WASTE DELISTING - FEDERAL PETITION REQUIRED
AUTH: 75-10-405, MCA IMP: 75-10-405, MCA
REASON: The department proposes to repeal ARM 17.53.401 through 17.53.403, which currently incorporate by reference specific provisions of 40 CFR 260. In New Rule I, the department is proposing to incorporate by reference the entirety of 40 CFR 260, subject to exceptions in New Rule II, in order to align with the format of other subchapters within ARM Title 17, chapter 53. As such, incorporating these specific federal provisions is no longer necessary. The proposed rule deletions do not substantively change the existing hazardous waste rules.
17.53.402 ADOPTION OF FEDERAL PROCEDURES FOR VARIANCES FROM CLASSIFICATION AS A WASTE OR BOILER
AUTH: 75-10-405, MCA IMP: 75-10-405, MCA
REASON: See reason statement for the repeal of ARM 17.53.401.
17.53.403 ADOPTION OF FEDERAL PROCEDURES FOR ADDITIONAL REGULATION OF CERTAIN HAZARDOUS WASTE RECYCLING ACTIVITIES
AUTH: 75-10-405, MCA IMP: 75-10-405, MCA
REASON: See reason statement for the repeal of ARM 17.53.401.
7. 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: Loryn 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 Loryn.Johnson2@mt.gov, no later than 4:00 p.m., February 14, 2022. To be guaranteed consideration, mailed comments must be postmarked on or before that date.
8. Nicholas Whitaker, attorney for the department, has been designated to preside over and conduct this hearing.
9. 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 supply; public sewage systems regulation; hard rock (metal) mine reclamation; major facility siting; opencut mine reclamation; strip mine reclamation; subdivisions; renewable energy grants/loans; wind energy, 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 Loryn Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Ave., P.O. Box 200901, Helena, Montana 59620-0901, faxed to the office at (406) 444-1388, e-mailed to Loryn Johnson at loryn.johnson2@mt.gov, or may be made by completing a request form at any rules hearing held by the department.
10. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
11. With regard to the requirements of 2-4-111, MCA, the department has determined that the adoption, amendment, and repeal of the above-referenced rules will not significantly and directly impact small businesses.
Reviewed by: DEPARTMENT OF ENVIRONMENTAL QUALITY
/s/ Angela Colamaria /s/ Christopher Dorrington ANGELA COLAMARIA CHRISTOPHER DORRINGTON Rule Reviewer Director Department of Environmental Quality
Certified to the Secretary of State January 4, 2022.
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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.
