BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY
OF THE STATE OF MONTANA
In the matter of the amendment of ARM 17.74.501, 17.74.504, 17.74.505, 17.74.506, 17.74.507, 17.74.508, 17.74.511, 17.74.512, 17.74.513, 17.74.514, 17.74.515, 17.74.516, 17.74.517, and 17.74.518 pertaining to definitions, decontamination standards, performance, assessment, and inspection, performance standards, contractor certification and training course requirements, reciprocity, training provider certification, certified training provider responsibilities, denial, suspension, and revocation of certification, and fees; and the adoption of NEW RULES I, II, and III pertaining to sampling, recordkeeping, reports, and incorporation by reference
SUPPLEMENTAL NOTICE OF PROPOSED AMENDMENT AND ADOPTION AND EXTENSION OF COMMENT PERIOD
TO: All Concerned Persons
1. On March 25, 2022, the Department of Environmental Quality published MAR Notice No. 17-417 providing notice of a public hearing on the proposed amendment and adoption of the above-stated rules at page 367 of the 2022 Montana Administrative Register, Issue Number 6.
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 the department no later than 5:00 p.m., July 11, 2022, to advise us of the nature of the accommodation that you need. Please contact the Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-1388; fax (406) 444-4386; or e-mail DEQMETHAMPHETAMINECLEANUP@mt.gov.
3. In response to comments received on the Notice of Public Hearing on Proposed Amendment and Adoption, MAR Notice No. 17-417 (original notice), the department is proposing changes to its originally proposed METHAMPHETAMINE CLEANUP rules. Specifically, the department is proposing a new version of NEW RULE I originally published on March 15, 2022, in MAR Notice No. 17-417 at pages 386 through 387 of the 2022 Montana Administrative Register, Issue Number 6.
The department believes these are significant changes to the original notice and is reopening the public comment period with respect to the changes set forth in this supplemental notice only. Please provide comments only to this supplemental notice and not to the original notice. The department is continuing to review the comments and information submitted in response to its original notice, and the department anticipates other changes to the proposed rules at the time of adoption in response to the comments it has received to date. Timely comments previously submitted on the original notice, as well as comments received in response to this supplemental notice, will be addressed in the adoption notice for the proposed rules.
4. The department proposes to amend the proposed New Rule I with the following changes from the original notice, new matter underlined, deleted matter interlined:
NEW RULE I SAMPLING PROCEDURES (1)
The following All sampling procedures and laboratory analysis must be followed to assess contamination and to verify the attainment of the decontamination standard s for methamphetamine within inhabitable structures in order to remove an inhabitable property from the contaminated properties list, maintained by the department pursuant to 75-10-1306, MCA, or to obtain a certificate of fitness, pursuant to this subchapter, must be conducted in accordance with the NIOSH 9111 method, the Methamphetamine Indoor Decontamination Standards in 75-10-1303, MCA, and this section, with the following exceptions:
(a) methanol shall be the only solvent accepted; and
(b) samples shall not be composited.
(2) The department may approve an alternative sampling or analytical method, upon advance written request, when the department determines the proposed alternative method is equivalent to or as accurate as the methods in (1).
(3) All samples identified in the department-approved assessment, work, or clearance plan shall be collected from within the inhabitable property.
(4) The following shall be completed when sampling for methamphetamine contamination and to verify the attainment of the decontamination standards:
(a) all sample locations shall be photographed
prior to sampling; and
(b) all samples shall be collected in accordance with department-approved assessment plan from areas representative of materials or surfaces where contamination is suspected, confirmed, or was known to be present;
(c)(b) all samples, field blanks, and media blanks shall be obtained, preserved, handled and maintained under recorded on the chain of custody. protocol in accordance with industry standards and department-approved plans for the types of samples and analytical testing to be conducted;
(d) the individual conducting the sampling shall put on a new pair of gloves to obtain each sample;
(e) all reusable sampling equipment shall be decontaminated prior to sampling;
(f) each sample shall be placed in a sterile sample container and sealed tightly. Security seals must be uses on sample containers to maintain integrity of the sample from time of sampling to sample analysis. The sample container shall be labeled with site or project identification number, date, time, and sample location; and
(g) each sample shall be analyzed for methamphetamine using NIOSH Manual of Analytical Method (NMAM) 9111 or equivalent method approved by the department in advance. The reagent utilized for the collection of samples shall be methanol.
(5) An assessment or clearance plan shall incorporate a sampling plan that samples all areas suspected to have the highest levels of contamination within the inhabitable property including:
(a) samples from each room or area within the inhabitable property known, based on credible evidence or documentation, to have contained a CML or to have been exposed to contamination from methamphetamine smoking;
(b) at least two samples from each room or area within the inhabitable property where methamphetamine manufacturing or smoking is suspected to have occurred;
(h) at least three samples must be taken in accordance with the assessment plan from each location of the inhabitable property where methamphetamine manufacturing or smoking are suspected to have occurred, including:
(i) at least three samples must be taken from each location of the inhabitable property where methamphetamine is suspected to have been stored;
(ii) at least three samples must be taken from each location of the inhabitable property where chemical staining is observed;
(iii)(c) at least three one sample s must be taken from representative areas of the inhabitable property's each heating, ventilation, and air conditioning (HVAC) system's return side when such systems are present in the inhabitable property; and
(iv)(d) at least three one sample s must be taken from each bathroom countertop, sink, toilet, shower/bathtub, and any other bathroom surface where methamphetamine contamination is suspected exhaust fan when exhaust fans are present in the inhabitable property. ; and
(v) at least three samples must be taken from any other enclosed space within the inhabitable property where methamphetamine activities are suspected to have occurred, hazardous materials associated with methamphetamine use or manufacture are suspected to have been stored, or where chemical staining or contamination is observed; and
(vi) at least three samples must be taken from any other areas where methamphetamine contamination is suspected.
(2) Separate samples shall be obtained from surface material in each room or from each location within the inhabitable structure where methamphetamine contamination is suspected. Samples shall not be composited and, to avoid contamination, sample media shall not be combined or mixed with other sampling media.
(3) Each sampling event shall include a minimum of one laboratory blank, identified in a manner that avoids identification as a blank.
(4)(6) Each sampling plan shall include a minimum of two discretionary samples, to be utilized at the methamphetamine certified contractor's discretion based on updated field observations. When utilized these samples will be incorporated into the chain of custody, analysis by the laboratory, and final report.
(7) If the encountered site conditions at an inhabitable property are different from the expected site conditions, the methamphetamine certified cleanup contractor may complete and submit a modified plan to the department. An explanation of the unexpected conditions and deviations shall be included in the information submitted to the department with the modified plan.
AUTH: 75-10-1303, MCA
IMP: 75-10-1303, MCA
REASON: The department received substantive comments on proposed New Rule I. Those comments generally objected to the original proposed version of the rule as too detailed, directive, and costly. The department considered the comments and agreed that the sampling procedures in New Rule I should be simplified to reference the standards set forth in NIOSH 9111, the Methamphetamine Indoor Decontamination Standards in 75-10-1303, MCA, and this subchapter and to rely on the professional judgment of certified methamphetamine cleanup contractors.
Text throughout New Rule I has been reorganized, and language was removed and added where needed to present more simplified sampling procedures.
The changes to NEW RULE I(1) are necessary to reference the standards outlined in NIOSH 9111, the Methamphetamine Indoor Decontamination Standards in 75-10-1303, MCA, and these methamphetamine cleanup rules as protocol for verifying the attainment of the decontamination standard so that properties may be removed from the list maintained by the department in accordance with 75-5-1306, MCA, or obtain a certificate of fitness pursuant to these methamphetamine cleanup rules.
NEW RULE I(1)(a) requires the use of methanol over isopropanol when sampling listed properties to verify decontamination and remove the properties from the contaminated properties list. This requirement is necessary because, in controlled environments, methanol has a recovery rate of 87%, while laboratory-grade isopropanol has a 64% recovery rate. The increase of Montana's decontamination standard from .1 micrograms of methamphetamine per 100 sq. centimeters of surface material to 1.5 micrograms of methamphetamine per 100 sq. centimeters of surface material, a 1500% increase, has a substantial impact on the margin of error. Using a solvent other than methanol will increase the risk of erroneously clearing properties with remaining methamphetamine contamination.
NEW RULE I(1)(b) is necessary to prevent composite sampling for locating and establishing methamphetamine contamination. The compositing of multiple sample locations is inappropriate when verifying the decontamination standard of 1.5 micrograms is achieved. For example, if four walls were sampled using composite methodologies where walls A, B, and C test negative, and wall D was 5.6 micrograms, the result could be reported as 1.4 micrograms for all four walls. Composite sampling would not identify the specific contaminated surface.
NEW RULE I(2) is necessary to allow the department to review and approve alternative methods. The department recognizes that emerging standards or methodologies should be an option in cases where an advanced agency approval has been requested and the proposed alternative is at least as protective as the methods in NEW RULE I(1).
NEW RULE I(3) is necessary to clarify that samples required under approved assessment, work, or clearance plans shall be collected from within the inhabitable property. The agency proposed NEW RULE I(7) to account for situations where a modified plan must be submitted to account for unexpected site conditions.
NEW RULE I(4) is necessary to describe sampling documentation, labelling, and chain of custody requirements that ensure the accuracy and integrity of sampling. The requirements in NEW RULE I(4) will provide clear documentation so that the department can ensure the decontamination standard in 75-10-1303, MCA is met before removing properties from the list maintained under 75-10-1306, MCA or providing a certificate of fitness.
NEW RULE I(5) is necessary to ensure consistent sampling while allowing professional judgment of the certified methamphetamine cleanup contractors in choosing the sampling approach. The proposed NEW RULE I(5) meets the legislative intent of 75-10-1303, MCA, by choosing sample numbers and locations based on the circumstances of the contamination.
NEW RULE I(6) is necessary to require the collection of surface material samples from two discretionary locations chosen at the methamphetamine certified cleanup contractor's discretion. These discretionary samples are necessary to account for variables between the anticipated and actual site conditions based on field observations and other factors. Sites are often not visited prior to an assessment, work, or clearance plan submittal, and discretionary sampling accounts for unforeseen conditions without the need to modify the assessment, work, or final clearance plan.
5. The department is reopening the comment period on proposed New Rule I with respect to the specific provisions identified in this Supplemental Notice of Proposed Adoption. Timely comments previously submitted on the original notice as well as comments received in response to this supplemental notice will be addressed in the adoption notice for the proposed rules. Concerned persons may submit their data, views, or arguments, in writing. Written data, views, or arguments may be submitted to the Department of Environmental Quality, 1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana 59620-0901; faxed to (406) 444-4386; or emailed to DEQMETHAMPHETAMINECLEANUP@mt.gov, no later than 5:00 p.m., on July 14, 2022. To be guaranteed consideration, mailed comments must be postmarked on or before that date.
/s/ Angela Colamaria BY: /s/ Christopher Dorrington
ANGELA COLAMARIA CHRISTOPHER DORRINGTON
Rule Reviewer Director
Department of Environmental Quality
Certified to the Secretary of State June 14, 2022.