BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY
OF THE STATE OF MONTANA
In the matter of the amendment of ARM 17.50.403, 17.50.410, 17.50.501 through 17.50.503, 17.50.508, 17.50.509, and 17.50.513; the adoption of New Rules I through LI; and the repeal of ARM 17.50.505, 17.50.506, 17.50.510, 17.50.511, 17.50.526, 17.50.530, 17.50.531, 17.50.542, 17.50.701, 17.50.702, 17.50.705 through 17.50.710, 17.50.715, 17.50.716, and 17.50.720 through 17.50.726 pertaining to the licensing and operation of solid waste landfill facilities
AMENDED NOTICE OF PUBLIC HEARING AND EXTENSION OF COMMENT PERIOD ON PROPOSED AMENDMENT, ADOPTION, AND REPEAL
TO: All Concerned Persons
1. On February 26, 2009, the Department of Environmental Quality published MAR Notice No. 17-284 regarding a notice of public hearing on the proposed amendment, adoption, and repeal of the above-stated rules at page 164, 2009 Montana Administrative Register, issue number 4. The department is publishing this amended notice to provide notice of a second hearing, extend the public comment period, offer and receive evidence and comments on matters of stringency compared to comparable federal regulations or guidelines, and provide additional statements of reasonable necessity and offer and receive evidence and comments on these additional statements of reasonable necessity. These matters are set forth below in paragraphs 3 through 8.
2. The department will hold the second public hearing on November 4, 2009, at 10:00 a.m. in Room 111, Metcalf Building, 1520 East Sixth Avenue, Helena, Montana.
3. Section 75-10-107(1), MCA, prohibits the Department of Environmental Quality from adopting "(1) … a rule to implement this chapter that is more stringent than the comparable federal regulations or guidelines that address the same circumstances" unless "(2) … the department makes a written finding after a public hearing and public comment and based on evidence in the record that:
(a) the proposed state standard or requirement protects public health or the environment of the state; and
(b) the state standard or requirement to be imposed can mitigate harm to the public health or environment and is achievable under current technology."
Section 75-10-107(3), MCA, provides that the written finding "must reference information and peer-reviewed scientific studies contained in the record that forms [sic] the basis for the department's conclusion. The written finding must also include information from the hearing record regarding the costs to the regulated community that are directly attributable to the proposed state standard or requirement."
4. Comments made by the public on MAR Notice 17-284 have raised questions concerning whether the following rule adoptions and amendments would make the state rules more stringent than comparable federal regulations or guidelines addressing the same circumstances, and whether they can be adopted or amended without the department making the written findings referred to in 75-10-107, MCA. The department has not determined that all of the rule adoptions and amendments in question are more stringent than comparable federal regulations or guidelines, but will offer and take testimony and other evidence and comments on whether the listed provisions are more stringent than comparable federal regulations or guidelines that address the same circumstances, whether the proposed state rules protect public health or the environment and are achievable under current technology, and whether peer-reviewed studies exist to justify more stringent rules, and on the costs of the proposed rules to the regulated community.
5. The following rules will be addressed at the hearing and during the comment period:
a. Requirements in the proposed amendments and new rules for an owner or operator to make a submission to the department and to obtain approval of that submission, except where the submission is required as part of a license application. Review-and-approval requirements that will be addressed at the hearing are found in:
ARM 17.50.509(3), concerning approval of operation and maintenance plan updates;
NEW RULE IV(1), concerning a demonstration that airplanes will be protected from birds within a lesser setback;
NEW RULE V, concerning approval of a demonstration regarding floodplains;
NEW RULE VI, concerning a demonstration allowing a landfill unit in wetlands;
NEW RULE VII, concerning a demonstration for an alternative setback for location in a fault area;
NEW RULE VIII, concerning a demonstration allowing location in a seismic area;
NEW RULE IX, concerning a demonstration that the structural components of a unit located in an unstable area will not be disrupted;
NEW RULE XVII(4)(c), concerning submission of a remediation plan for an exceedance of the concentration limit for explosive gases;
NEW RULE XXII, concerning exclusion of bulk or noncontainerized liquids, unless approved;
NEW RULE XXIV(1)(a), concerning a deed notation to be recorded by the owner of the land where a facility is located;
NEW RULE XXV(1), concerning a policy of general liability insurance;
NEW RULE XXVII(2)(a), concerning confining waste to areas where it can effectively be managed by supervision, fencing, signs, or similar means;
NEW RULE XXIX(1)(b), concerning the application at a Class IV landfill unit of an approved cover at least every three months;
NEW RULE XXXII(4), concerning a demonstration that the owner or operator meets the requirements for a small community exemption;
NEW RULE XXXIII(1), concerning design of a Class II or Class IV landfill unit;
NEW RULE XXXIV(4), concerning recirculation of leachate at a Class II landfill unit, and (5) and (6), concerning construction quality control (CQC) and construction quality assurance (CQA) manuals for assuring construction in accordance with design;
NEW RULE XXXVIII(4)(a), concerning a ground water monitoring plan, (b) an update to that plan, and (6) the number, spacing, and depth of ground water monitoring wells;
NEW RULE XXXIX(1), concerning a ground water sampling and analysis plan;
NEW RULE XL(5)(b), concerning implementing an assessment monitoring program if significant changes from background are found through drinking water detection monitoring, and (7), concerning avoiding assessment monitoring through a demonstration that another source caused the significant change;
NEW RULE XLI(5), concerning a return to detection monitoring if assessment monitoring reveals concentrations of all constituents in Appendix II to 40 CFR Part 258 to be at or below background values, (6), concerning continuation of assessment monitoring if such concentrations are above background values but below protection standards, and (7)(b), concerning a return to detection monitoring based on a demonstration that another source caused the ground water contamination;
NEW RULE XLII(1)(b), concerning an assessment of corrective measures;
NEW RULE XLIII(1)(b), concerning a selected remedy report addressing ground water contamination;
NEW RULE XLIV(1)(a), concerning a corrective action ground water monitoring program, (1)(c) concerning interim measures to correct ground water contamination, (3)(a) concerning impracticability of achieving ground water remediation goals, (3)(b) concerning implementation of alternate measures to protect health and the environment, and (3)(c) concerning implementation of alternate measures to control sources of contamination, (7) concerning certification that the remedy has been completed, and (8) concerning release from requirements for financial assurance for corrective action;
NEW RULE XLV(1)(b), concerning a hydrogeologic and soils work plan;
NEW RULE XLIX(4), concerning a closure plan for a Class II or Class IV landfill unit, (5) concerning closure construction plans, specifications, reports, and certifications, and (10) concerning certification of closure completion;
NEW RULE L(3), concerning a post-closure plan, (5) concerning a certification that post-closure care has been completed, (6), concerning necessary amendments to a closure or post-closure plan, and (7) concerning post-closure construction plans, specifications, reports, and certifications; and
NEW RULE LI(3), concerning closure and post-closure plans for a Class III landfill unit.
b. Design requirements for a Class II landfill unit in NEW RULE XXXIV, such as the minimum slope of the base of the leachate collection layer or the maximum side slope on the liner, elements of an alternative liner, and CQC and CQA requirements for design and construction of a landfill unit.
c. Requirements for a Class II landfill unit that are not contained in 40 CFR Part 258, such as insurance requirements, in proposed new ARM 17.50.508(2) and NEW RULE XXV; intermediate cover requirements at a Class II landfill unit that will not receive waste for 90 days in NEW RULE XV(2)(c); updates to operating and maintenance plans in proposed new ARM 17.50.509(4); and a progress report on corrective action due by each April 1, in NEW RULE XLIV(1)(d).
d. Requirements for a Class II landfill unit that does not accept municipal solid waste, to the extent that they are more stringent than requirements in 40 Part 257. This includes all proposed amendments and adoptions that address a Class II landfill unit, because the definition in ARM 17.50.503 of Group II waste, which can be disposed of only at a Class II landfill unit, is broader than the definition of municipal solid waste in 40 CFR 258.2.
e. Requirements in NEW RULES XXXIII and XXXIV that a Class IV landfill unit have a liner, and other prescriptive design elements, other than those necessary to prevent contamination of a ground water drinking water source.
f. The requirement in NEW RULE XXIV that a deed notation for a Class II landfill unit must be recorded before the initial receipt of waste or within 60 days after the effective date of the requirement, rather than at closure.
g. Locational restrictions for a Class II landfill unit that are more stringent than those in 40 CFR Part 258, such as the inclusion in NEW RULE VIII of "landfill cover" and "gas control system" in a "containment system" that must be designed to resist the maximum horizontal acceleration in a seismic impact zone.
h. Locational restrictions for a Class III or Class IV landfill unit that are more stringent than 40 CFR Part 257, subpart A and B, regulations, respectively. This includes restrictions concerning locating a Class III landfill unit in wetlands (NEW RULE XI(1)(h), and restrictions concerning locating a Class III or Class IV landfill unit in the following areas: fault areas (NEW RULE VII); seismic areas (NEW RULE VIII); and unstable areas (NEW RULE IX); and other restrictions in NEW RULE XI.
i. Locational restrictions for a Class IV landfill unit, including: NEW RULE VII, concerning fault areas; NEW RULE VIII, concerning seismic areas; and NEW RULE IX, concerning unstable areas.
j. Certain operational requirements for a Class III or Class IV landfill unit that may not be required in 40 CFR Part 257, subpart A and B, regulations, respectively. Examples are: insurance requirements, in proposed new ARM 17.50.508(2) and NEW RULE XXV; requirements concerning updates to operating and maintenance plans in proposed new ARM 17.50.509(4); requirements concerning deed notations in NEW RULE XXVIII(1)(f) for a Class III landfill unit and in NEW RULE XXIX(1)(e) for a Class IV landfill unit; and bulk liquids restrictions in NEW RULE XXVIII for a Class III landfill unit and NEW RULE XXIX(2)(h) for a Class IV landfill unit.
k. Operational requirements for a Class III landfill unit, including: placement of six inches of cover at least every three months, in NEW RULE XXVIII(1)(b); and requirements in NEW RULE XXVIII that make requirements for a Class II landfill unit concerning access, in NEW RULE XIX, and run-on and run-off control systems in NEW RULE XX, applicable to a Class III landfill unit.
l. Operational requirements for a Class IV landfill unit, including: control for aesthetics in NEW RULE XXIX(1)(a); exclusion of liquids, and other materials that may be "conditionally exempt small quantity generator wastes" that may be disposed of at a 40 CFR Part 257, subpart B, landfill unit, in NEW RULE XXIX(1)(c); waste screening requirements in NEW RULE XXIX(2)(a); and financial assurance requirements in NEW RULE XXIX(1)(d).
m. A requirement that a Class II or Class IV landfill unit undertaking ground water corrective action submit a progress report on corrective action by April 1 of each year, in NEW RULE XLIV(1)(d).
n. Closure and post-closure requirements in NEW RULE LI for a Class III landfill unit, and in NEW RULES XLIX and L for a Class IV landfill unit.
6. The department also intends to take comment and submit evidence on the approach it has proposed in new ARM 17.50.508(1)(aa), and in other proposed rule amendments and new rules, to require additional information and criteria when it determines that information or those criteria to be necessary to protect human health or the environment. Other examples of the use of that language are in: ARM 17.50.509(2)(k) and proposed new (2)(m), concerning plans for handling of special waste and concerning other plans as part of operation and maintenance plans, respectively; NEW RULE IX(1), concerning factors to be used to determine whether an area is unstable; NEW RULE XI, concerning additional locational requirements; NEW RULE XXVI(1)(c), concerning types of special waste; NEW RULE XXXIII(2) and (3), concerning an alternative design for a Class II or Class IV landfill unit, and the location of the relevant point of compliance for ground water protection standards, respectively; NEW RULE XXXIV(1)(d) and (3)(e), concerning design standards for a Class II or Class IV landfill unit, and leachate collection systems, respectively; NEW RULE XXXVIII(4)(a)(iv), concerning required elements of a ground water monitoring plan; NEW RULE XXXIX(1)(f), concerning procedures and techniques contained in a sampling and analysis plan; NEW RULE XLII(1)(b), concerning criteria to be addressed in the assessment of corrective measures to remediate an exceedance of a ground water protection standard; NEW RULE XLIII(4)(g), concerning selection of a remedy for exceedance of a ground water protection standard; NEW RULE XLV(2)(g), concerning the information required to be included in a hydrogeological and soils report; NEW RULE XLIX(4), concerning information required in a closure plan; and NEW RULE L(1)(e) and (3), concerning measures required as part of post-closure care or information required in a post-closure plan.
7. In preparing its response to comments on the February 26, 2009, notice of public hearing, the department identified areas where it believes supplements to the statements of reasonable necessity would be useful to provide the public with a better understanding of the reasons for the proposed amendments and new rules and to allow the public to submit comments on those supplements. Those supplemental statements follow:
a. For NEW RULE XXVIII(1), concerning operating criteria for a Class III landfill unit, the department proposed to make the requirements of a Class II landfill unit for protection of air quality (NEW RULE XVIII), access (NEW RULE XIX), and deed notations (NEW RULE XXIV) applicable to a Class III landfill unit. The reasons are as follows:
i. For air quality, the requirements set forth for a Class II unit are basically the same as those required in the federal regulations at 40 CFR 257.3-7 for all landfill units, including Class III landfills. Therefore, the department proposed to adopt the Class II standards for Class III landfill units;
ii. The requirements in NEW RULE XIX for access restrictions for a Class II unit are identical to the requirements in 40 CFR 258.25. The requirements in 40 CFR 257.3-8 for access, which apply to a Class III landfill unit, are more general. However, the department chose to adopt the Class II landfill unit access requirements for a Class III landfill unit because access to a Class III landfill unit poses physical risks to the public similar to the risks at a Class II unit, it is simpler to adopt a uniform standard, and a uniform standard will provide more guidance without being unnecessarily burdensome.
iii. For a deed notation: A deed notation is required in 40 CFR 258.60 for a Class II landfill unit when it closes. In the statement of reasonable necessity for proposed new ARM 17.50.508(1)(y) and for the adoption of NEW RULE XXIV, the department explained the reason for requiring a proposed deed notation with the application for a license for all landfill units. The department also explained the reason for requiring a deed notation to be recorded before any class of landfill unit accepts waste, and, for a landfill unit that is already operating, the department explained the reasons that a deed notation must be recorded within 60 days after the new rule takes effect. While the waste disposed of in a Class III or Class IV landfill unit does not pose as high a risk to ground water as waste in a Class II landfill unit, it still can pose risks for human health and the environment. The department has had to take, or threaten to take, enforcement actions against purchasers of land where a Class III landfill unit previously had been operated. These landfill units had not been properly closed with the proper amount of cover, and wetlands that had been filled with waste in violation of administrative rules had not been remediated. New purchasers bought these properties and claimed to be unaware that they had been run as landfill units. A Class III or Class IV landfill unit might not be properly closed if purchased before closure when no deed notation had been recorded. This could unnecessarily consume scarce department resources and subject the new owner to unforeseen liabilities. If a purchaser is not informed of, and bound by, restrictions in a deed notation, that purchaser might conduct activities that disturb the cover, liner, or other elements of a landfill unit exposing the waste to water, causing leachate to form, and allowing leachate to migrate down to contaminate a drinking water source. Therefore, it is reasonable to require that a deed notation for a Class III or Class IV landfill unit be recorded before the first acceptance of waste at a unit or, for a landfill unit that is already operating, within 60 days after the rule takes effect.
b. Concerning the requirements for review and approval by the department of submittals by owners or operators that were discussed above at 5.a., the department believes that its review and approval are necessary to ensure that the requirements of the rules are met. When the submittals are part of a license application, the department's review and approval are necessary, because the department is charged by 75-10-224, MCA, with reviewing a license application to determine whether it meets the requirements of the law and rules. The federal Environmental Protection Agency (EPA) recognized that such review and approval were necessary when it issued its regulations concerning state licensing programs in 40 CFR Part 239. It required in 40 CR 239.6 that a state licensing program require, as a condition of a license to operate a landfill unit, compliance with the landfill unit regulations in 40 CFR Part 258.
c. When a submittal is for an action that is not subject to license approval, for example, remediation of a methane gas concentration that exceeds a standard, there may be no federal requirement for department approval. However, department review and approval is still necessary. It is wise for the department, as regulator, to conduct reviews before an activity can occur. Without department review, it is possible that the landfill unit owner or operator could fail to provide information or consider a factor that is required or appropriate to be considered under the rules, especially when the rules, frequently following federal language, are open-ended in that they often set minimum requirements, but indicate that more information or factors might be needed, by using such terms as "at least" or "at a minimum." The department has received many submittals for design and construction of landfill units under its existing rules, and has often found that the submittals do not adequately address the factors required to be addressed in the rules. After the department points out the deficiencies, an owner or operator can then submit corrections to make the submittal comply. In addition, it is inefficient for the owner or operator not to submit documents to the department for approval initially. The department believes that one of its functions as a regulator is to work with regulated entities to provide resources and guidance to help them develop submittals that satisfy the requirements of the law and rules. The department's staff has expertise from regulating landfill units around the state, and from being trained to protect the public interest by enforcing regulatory requirements. If no approval is required, regulated entities are less likely to request guidance from the department, and the department will then have to inform the entity after the fact if it considers a submittal to be insufficient. Then the department's remedy would be to commence an enforcement action or to revoke a license or deny a license application. The department believes that it would be more efficient for the regulated entity to make submittals for department review and approval before taking the action that is the subject of the submittal.
d. Department pre-approval is especially important for certification under NEW RULE XLIX(10), NEW RULE L(5), or NEW RULE XLIV that closure, post-closure care, or corrective action is complete. The reasons cited above for department approval are applicable to a certification that one of those processes has been completed. In addition, financial assurance is released when closure, post-closure care, or corrective action is certified by an independent professional engineer to be complete and that certification is approved by the department. It is critical for completion of those processes that the costs of completing them are secured by financial assurance that is subject only to the control of the department while work remains to be done. Until the department has determined, through approval of a certification, that the required work has been completed, it is necessary that financial assurance be maintained.
e. The department proposed in NEW RULE XXIX to adopt operating criteria for a Class IV landfill unit. Many of the criteria were carried forward from existing rules. However, there was no previous requirement for a deed notation for a Class IV landfill unit. The department supplements the statements of reasonable necessity for the requirement of a deed notation as follows: The reasons for a deed notation for a Class IV landfill unit are the same as provided in 6.a.iii. above for a Class III landfill unit, except that the wastes in a Class IV landfill unit pose a greater threat to human health and the environment than the wastes in a Class III landfill unit.
8. 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 firstname.lastname@example.org, no later than November 23, 2009. To be guaranteed consideration, mailed comments must be postmarked on or before that date.
9. John F. North, Chief Counsel, has been designated to preside over and conduct the hearing.
10. 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. Such written request may be mailed or delivered to Elois Johnson, Paralegal, Legal Unit, 1520 E. Sixth Ave., P.O. Box 200901, Helena, Montana 59620-0901, faxed to the office at (406) 444-4386, e-mailed to email@example.com, or may be made by completing a request form at any rules hearing held by the department.
11. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
Reviewed by: DEPARTMENT OF ENVIRONMENTAL
/s/ David Rusoff BY: /s/ Richard H. Opper
DAVID RUSOFF Richard H. Opper, Director
Certified to the Secretary of State, August 3, 2009.