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| Montana Administrative Register Notice 17-303 | No. 7 04/15/2010 | |
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BEFORE THE BOARD OF ENVIRONMENTAL REVIEW AND THE DEPARTMENT OF ENVIRONMENTAL QUALITY OF THE STATE OF
TO: All Concerned Persons 1. On May 11, 2010, at 2:00 p.m., the Board of Environmental Review and the Department of Environmental Quality will hold a public hearing in Room 111, 2. The board and 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., May 3, 2010, 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 ejohnson@mt.gov. 3. The rules proposed to be amended provide as follows, stricken matter interlined, new matter underlined: 17.30.502 DEFINITIONS The following definitions, in addition to those in 75-5-103, MCA, and ARM Title 17, chapter 30, subchapters 6 and 7, apply throughout this subchapter: (1) through (13) remain the same. (14) The board adopts and incorporates by reference Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" ( AUTH: 75-5-301, MCA IMP: 75-5-301, MCA 17.30.619 INCORPORATIONS BY REFERENCE (1) The board adopts and incorporates by reference the following state and federal requirements and procedures as part of (a) Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" ( (b) through (2) remain the same. IMP: 75-5-301, MCA 17.30.702 DEFINITIONS The following definitions, in addition to those in 75-5-103, MCA, apply throughout this subchapter (Note: 75-5-103, MCA, includes definitions for "degradation," "existing uses," "high quality waters," "mixing zone," and "parameter"): (1) through (25) remain the same. (26) The board adopts and incorporates by reference: (a) Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" ( (b) through (d) remain the same. IMP: 75-5-303, MCA 17.30.1001 DEFINITIONS The following definitions, in addition to those in 75-5-103, MCA, apply throughout this subchapter: (1) remains the same. (2) "DEQ-7" means Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" ( (a) The board adopts and incorporates by reference Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" ( 17.36.345 ADOPTION BY REFERENCE (1) For purposes of this chapter, the department adopts and incorporates by reference the following documents. All references to these documents in this chapter refer to the edition set out below: (a) through (d) remain the same. (e) Department Circular DEQ-7, "Montana Numeric Water Quality Standards" ( (f) through (2) remain the same. AUTH: 76-4-104, MCA IMP: 76-4-104, MCA 17.55.102 DEFINITIONS In this subchapter the following terms have the meanings indicated below and are supplemental to the definitions in 75-10-701, MCA: (1) through (5)(c) remain the same. (6) The department adopts and incorporates by reference Department Circular DEQ-7, "Montana Numeric Water Quality Standards" ( AUTH: 75-10-702, MCA IMP: 75-10-702, 75-10-704, MCA 17.56.507 ADOPTION BY REFERENCE (1) For purposes of this subchapter, the department adopts and incorporates by reference: (a) Department Circular DEQ-7, "Montana Numeric Water Quality Standards" ( (b) through (3) remain the same. AUTH: 75-11-319, 75-11-505, MCA IMP: 75-11-309, 75-11-505, MCA 17.56.608 ADOPTION BY REFERENCE (1) For purposes of this subchapter, the department adopts and incorporates by reference: (a) Department Circular DEQ-7, "Montana Numeric Water Quality Standards" ( (b) through (3) remain the same. AUTH: 75-11-319, 75-11-505, MCA IMP: 75-11-309, 75-11-505, MCA REASON: The board is proposing the amendment of Montana's water quality rules in ARM 17.30.502, 17.30.619, 17.30.702, and 17.30.1001, to incorporate proposed revisions to Montana's numeric water quality standards contained in Department Circular DEQ-7 (February 2008 edition). The proposed revisions to the Circular fall into five categories: (1) adopt new surface and ground water standards for nineteen pesticides and associated metabolites, recently detected in Montana's ground water; (2) adopt new and revised aquatic life standards for five chemicals in order to be consistent with the U.S. Environmental Protection Agency's (EPA's) nationally-recommended water quality criteria promulgated under Section 304(a) of the federal Clean Water Act; (3) adopt new or revised human health standards for eleven pollutants in order to be consistent with EPA's recent promulgation of new or revised 304(a) criteria for these pollutants; (4) adopt a frequency and duration component applicable to all numeric aquatic life standards in Department Circular DEQ-7; and (5) generally revise the introduction to Department Circular DEQ-7 and clarify footnotes. In this rulemaking, the department is proposing to amend ARM 17.36.345, regarding subdivisions, ARM 17.55.102, implementing the Comprehensive Environmental Cleanup and Responsibility Act (CECRA), and ARM 17.56.507 and 17.56.608, implementing the underground storage tank statutes, in order to incorporate the board's revisions to Department Circular DEQ-7. These amendments are necessary to ensure that the department's programs for the regulation of water quality affected by remediation sites, underground storage tanks, and subdivisions will use the most current version of Montana's numeric water quality standards adopted by the board. The revisions to Department Circular DEQ-7, and the reasons for them, are summarized below. Copies of Department Circular DEQ-7, with the proposed revisions, may be obtained by contacting Rod McNeil at Water Quality Planning Bureau, Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901, by phone at (406) 444-5361, or by e-mail at rmcneil@mt.gov, or may be obtained on-line at http://www.deq/mt.gov/wqinfo/Standards. INTERIM STANDARDS FOR PESTICIDES The board is proposing to adopt numeric water quality standards for nineteen pesticides and associated metabolites that were recently detected in ground water by the Montana Department of Agriculture. These pesticides and metabolites are agricultural chemicals that have no federally-promulgated standards adopted by EPA for the protection of water quality. Pursuant to 80-15-201(3), MCA, the board is required to adopt an "interim numerical standard" for ground water when there is no federally promulgated or published standard for an agricultural chemical that has been detected in Montana's ground water. The board is also required to review the interim standard whenever EPA promulgates a standard for the agricultural chemical at issue. 80-15-201(3), MCA. The department, in conjunction with EPA, has developed interim standards for the following pesticides and metabolites detected in Montana's ground water in 2008-2009: Flurcarbazone; Flurcarbazone sulfonamide; Imazapic; Pyrasulfatole; Sulfometuron,methyl; Aminopyralid; Azinphos,methyl; Azinphos,methyl oxon; Difenoconozole; Dimethenamid; Dimethenamid OA; Ethion; Ethofumesate; Fenbuconazole; Imazalil; Imazethapyr; Propicanazole; Prosulfuron; Sulfosulfuron; Tebuconazole; and Imidacloprid. The levels set in the interim standards are determined in a two-stage process. First, the department reviews the literature and does preliminary calculations to determine a level that is protective of human health based on the available scientific literature. A determination as to whether a compound is toxic or carcinogenic is derived from the Chemical Index list available at www.toxnet.nlm.nih.gov or from the Integrated Risk information System (IRIS) of the EPA. The Health Advisory (HA) is calculated using a Chronic Reference Dose (RfD) or the oral cancer slope factor, if one has been established. If an appropriate RfD is identified in IRIS or by the EPA toxicologist, a Relative Source Contribution (RSC) is also used. The purpose for the RSC is to take into account all environmental sources of input, such as drinking water, food, and air. In the second step, the scientific references selected for these calculations are submitted to the EPA, Region 8, for further review by its toxicologist. If a pesticide is defined as carcinogenic, the appropriate cancer slope index is used along with a risk factor of 1x 10-5 (1 in 100,000) to produce a final recommendation for the interim standard. The EPA has reviewed the standards and has determined that they are protective of public health. EPA's letter approving the standards and supporting documentation used to establish the standards are available from the department. The board finds that modifying Department Circular DEQ-7, to adopt interim standards for the above-listed pesticides and metabolites, is necessary in order to fulfill its statutory obligation to establish ground water standards for agricultural chemicals that have been detected in Montana's ground water. The board also finds that it is necessary and reasonable to adopt interim standards for surface waters that address these same pesticides and metabolites. The board could choose to adopt only ground water standards and thereby meet the requirements of state law, but rejects that alternative as inconsistent with the policy of the state to "protect and maintain" all state waters, both surface and ground water. By adopting standards for surface waters, as well as ground waters, Montana's surface waters will receive the same protection as ground water whenever state law mandates a ground water standard for an agricultural chemical. AQUATIC LIFE STANDARDS (a) New standards: The board is proposing to adopt a single new aquatic life standard in Department Circular DEQ-7, in response to EPA's recent promulgation of nationally-recommended aquatic life criteria for acrolein. Although EPA's promulgation of recommended criteria under 304(a) of the Clean Water Act does not impose any legal obligation on states and tribes to adopt the recommended criteria, states and tribes are encouraged to use the criteria as guidance in the adoption of their water quality standards. The EPA review process considers numerous aquatic species in tests to arrive at its conclusions as to the species which is most sensitive to a given pollutant. These scientific reviews may take as long as ten years to conduct and the documents generated describing the selected specie and the testing used is lengthy. The standard is then set to protect these species. The Federal Register cites the interim and final Toxicological Profile Reports for each compound, which has a standard adopted into National Recommended Water Quality Criteria (NRWQC). For acrolein the FR citations are 74 FR 27535 and 74 FR 46587. The board finds it is reasonable and necessary to adopt these aquatic life standards for acrolein based upon EPA's recommended criteria, because the board does not have the resources necessary to develop aquatic life standards for the state of Montana. In order to ensure that aquatic life in Montana's surface waters are protected from the toxic effects of these chemicals, the board finds it necessary to use EPA's recommended criteria as the scientific basis for adopting standards that ensure the protection of aquatic life from adverse effects.
(b) Revised standards: The board is proposing to revise the aquatic life standards currently adopted in Department Circular DEQ-7 for Chlordane, Endrin, Heptachlor, Endosulfan I, Endosulfan II, and pp-dichlorodiphenyltrichloroethane in order to make those standards consistent with all of the other aquatic life standards currently adopted in Circular DEQ-7. The aquatic life standards for these six compounds are based upon EPA's 1980 method of establishing criteria that can never be exceeded at any time and at any place. In distinction, all of the other acute aquatic life standards currently adopted in Circular DEQ-7 for organic compounds are based upon EPA's 1985-method of incorporating a magnitude, duration (one-hour averaging period), and frequency of allowable exceedances (once-every-three-years) as an integral component of acute aquatic standards (EPA PB85-227049). In order to maintain consistency in the interpretation and application of all of the aquatic life standards listed in Circular DEQ-7, the board is proposing to revise the not-to-be-exceeded acute aquatic life standards for Chlordane, Endrin, Endosulfan I, Heptachlor, Endosulfan II, and pp-dichlorodiphenyltrichloroethane to be consistent with EPA's 1985 method. This revision to Circular DEQ-7 will require that the existing acute standards for these five compounds be divided by a factor of two, which results in a 50% reduction of the current standards for these compounds. This was done to provide a greater safety margin in the standard. The 1980 standards did not allow any exceedances, while the 1985 change for these five compounds allows one exceedance in a three year period, on average. Thus the lower levels are to provide greater protection for aquatic life since occasional exceedances are allowed. Please note that a seventh compound is addressed by the EPA in this 1985 revision: silver. As a metal, the measure of silver is strongly affected by such influences as hardness, a factor not true of any of the other chemicals in this revision group. The board feels that further consideration should be given to this element in lowering the standard and further discussions with stakeholders are necessary prior to alteration of the existing standard. The board finds it reasonable and necessary to adopt these revisions to Circular DEQ-7 to make the application of these six acute aquatic life standards consistent with all of the other aquatic life standards for organic compounds listed in Circular DEQ-7. The board is proposing to correct an error related to the aquatic life listing for Endosulfan sulfate. Previous versions of DEQ-7 have listed an aquatic life standard, where no national standard has yet been derived. The board proposes to eliminate the acute and chronic aquatic life values in DEQ-7 for Endosulfan sulfate until such time as scientific information from the EPA or other sources allows calculation of such standards. The board finds it reasonable and necessary to adopt this revision to correct this error and to ensure DEQ-7 is consistent with EPA National Recommended Water Quality Criteria. HUMAN HEALTH STANDARDS The board is proposing to adopt five new human health standards for Chlorodibromomethane, Delta Hexachlorocyclohexane, Nitrosamines, Nitrosodibutylamine, and Nitrosodiethylamine. In addition, the board is proposing to revise the human health standards currently listed in Department Circular DEQ-7 for: Acrolein; Dinitrotoluene, 2,4-; Endosulfan; Trichlorophenol, 2,4,5-; Acrylonitrile; and Barium. These new and revised human health standards are being proposed in response to EPA's new and revised human health-based criteria promulgated under section 304(a) of the federal Clean Water Act. Specifically, EPA published an updated list of nationally-recommended water quality criteria for human health in November 2009, using new data, information, and scientific research. The board finds it is reasonable and necessary to adopt these new or revised human health standards based upon EPA's recommended criteria, because the board does not have the resources necessary to develop human health standards using state-sponsored research. In order to ensure that the quality of state waters protects public health, the board finds it necessary to use EPA's recommended criteria as the scientific basis for adopting standards that ensure the protection of human health from adverse affects. For the compounds listed above that are carcinogens, the board is using EPA's recommended criteria to establish human health standards based on a risk level of 1x10-5, as required by 75-5-301(2)(b)(i), MCA. FREQUENCY, MAGNITUDE, AND DURATION OF STANDARDS The board is proposing to incorporate a frequency and duration component to aid in the accurate application of the aquatic life standards listed in Department Circular DEQ-7 by revising Footnotes 3, 4, and 16. The board is proposing this revision to be consistent with EPA's interpretation of the nationally-recommended criteria for aquatic life. Specifically, EPA interprets the national aquatic life criteria as including three components: magnitude, frequency, and duration. "Magnitude" refers to the highest concentration of a pollutant (such as lead) that can occur without adverse effects. These values are the numeric aquatic life standards listed in Department Circular DEQ-7. "Frequency" refers to the number of times within a defined period that a standard may be exceeded without adverse effects. For both acute and chronic aquatic life standards, EPA recommends that the frequency of an exceedance be limited to once in a three-year cycle. The term "duration" refers to the period of time that a standard may be exceeded within the three-year cycle without adverse effects. The period of time recommended by EPA is a one-hour period for an exceedance of an acute standard and 96 hours for an exceedance of a chronic standard. The fixation of a frequency and duration allows inter-comparison with the scientific data used to create the standard, as well as inter-comparison between locations using the same procedures. In distinction, there is no period of time or frequency that a human health standard may be exceeded. In order to incorporate EPA's recommended frequency and duration components, the board finds it necessary to revise the three footnotes described below in order to separately address the interpretation and implementation of the following standards: (1) acute aquatic life standards; (2) chronic aquatic life standards; and (3) human health standards. Footnote 3: The board is revising Footnote 3 to eliminate its former application to all surface and ground water standards. As revised, Footnote 3 now applies only to Footnote 4: The board is revising Footnote 4 to eliminate its former application to all surface and ground water standards. As revised, Footnote 4 now applies only to Footnote 16: The board is revising Footnote 16 to eliminate its former application to aquatic life standards and also delete its explanation of EPA's "total recoverable" analysis. Since Footnote 9 currently contains an explanation of the "total recoverable" analysis, the explanation in Footnote 16 is duplicative and not necessary. In addition, the board is revising Footnote 16 so that it now applies only to Montana's human health standards. This revision is necessary because the "not-to-be-exceeded" language that currently applies to the human health standards in Footnotes 3 and 4 is being revised to allow a frequency of exceedance and duration component. Since the board is not proposing a similar frequency of exceedance and duration component for human health standards, the board is amending Footnote 16 to specify that human health standards cannot be exceeded.
GENERAL REVISIONS TO THE INTRODUCTION, FOOTNOTES, AND FORMAT OF DEPARTMENT CIRCULAR DEQ-7 Introduction: The board is proposing to generally revise the introduction to Department Circular DEQ-7 to provide a clearer description of the sources of information used to develop the numeric standards and also provide a more comprehensive explanation of the terms used throughout the Circular. Although portions of the revised introduction explain that the aquatic life standards will now include a frequency and duration component (assuming the proposed amendments of Footnotes 3 and 4 are adopted), the remaining revisions to the introduction are not substantive changes. Consequently, except for the explanation of frequency and duration, the proposed revisions to the introduction will not change the interpretation or implementation of the numeric water quality standards listed in Department Circular DEQ-7. Footnote 2: The board is revising Footnote 2 to improve clarity by eliminating a redundant reference to carcinogens. Footnote 9: The board is modifying Footnote 9 to incorporate EPA's updated method of analyzing samples for metals using the "total recoverable" method. This revision is necessary to be consistent with EPA's current method of analysis. Footnote 17: The board is deleting the reference to "NRWQC" in Footnote 17, because it is duplicative of the specific sources of pollutant criteria included in that footnote (i.e., priority, non-priority, and organoleptic pollutants), which are used to identify the source of each water quality standard listed in Department Circular DEQ-7. Since the term "NRWQC" (i.e., National Recommended Water Quality Criteria) is a general term that includes the three separate categories of pollutant criteria used throughout the Circular, the inclusion of "NRWQC" in the footnote is unnecessary. Format: The format of Department Circular DEQ-7 is being revised so that information in the document can be easily accessed by conventional search engines. This formatting revision required consolidating synonyms for the same compound, removing organizational names from the second column and updating certain chemical industry numbers so that the Circular can now be searched using the chemical industry numbers (CASRN, NIOSH, or SAX) or by synonym. These changes are necessary to improve public access to the information in the circular. 4. With this notice, the board is also soliciting comment from all interested persons on any aspect of Montana's water quality standards that a person believes the board should consider for potential revision. The comment should identify the water quality standard at issue, any suggested revision to the standard, and the basis for the suggested revision, including technical information or reports supporting the revision. In addition, the board is specifically soliciting comment on the numeric standards for electrical conductivity (EC) and sodium adsorption ratio (SAR) adopted in 2003 and subsequent revision to the nondegradation requirements for EC and SAR adopted in 2006. Comments on EC and SAR should identify the specific standard at issue, any suggested revision to the standard and the basis for the revision, including technical information or reports supporting the revision. Interested persons are encouraged to submit any new data, information, or scientific literature that became available after the board's adoption of water quality standards for EC and SAR in 2003. Copies of some of the post-2003 reports and scientific literature pertaining to EC and SAR are available at www.deq.mt.gov/coalbedmethane/cbm_water_quality.mcpx. The documents on the web site are not intended to be a complete list, but are provided to facilitate public comment. When feasible, documents will be added to the web site as they are identified by interested persons. The public hearing scheduled for the proposed amendment of rules incorporating Department Circular DEQ-7 does not include a hearing on the board's request for comments on any aspect of Montana's water quality standards, including EC and SAR. If the board decides to pursue revisions not described in paragraph 3, based on the comments received, the board will initiate a new rulemaking, which will include a hearing and opportunity to submit oral and written comments. 5. Concerned persons may submit their data, views, or arguments, either orally or in writing regarding the proposed rule amendments and changes to Department Circular DEQ-7, at the hearing. Written data, views, or arguments regarding the rule amendments and changes to Department Circular DEQ-7 also may be submitted to Elois Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Avenue, P.O. Box 200901, Comments regarding the triennial review of water quality standards should be submitted in writing to Rod McNeil, Planning, Prevention and Assistance Division, Water Quality Standards Section, Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; faxed to (406) 444-6836; or e-mailed to rmcneil@mt.gov, no later than 5:00 p.m., June 1, 2010. 6. Katherine Orr, attorney for the board, or another attorney for the Agency Legal Services Bureau, has been designated to preside over and conduct the hearing. 7. The board and department maintain 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 ejohnson@mt.gov; or may be made by completing a request form at any rules hearing held by the board or department. 8. The bill sponsor contact requirements of 2-4-302, MCA, do not apply. Reviewed by: BOARD OF ENVIRONMENTAL REVIEW /s/ John F. North BY: /s/ Joseph W. Russell JOHN F. NORTH JOSEPH W. RUSSELL, M.P.H., Rule Reviewer Chairman DEPARTMENT OF ENVIRONMENTAL QUALITY BY: /s/ Richard H. Opper RICHARD H. OPPER, Director Certified to the Secretary of State, April 5, 2010.
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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.
