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| Montana Administrative Register Notice 17-335 | No. 19 10/11/2012 | |
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BEFORE THE BOARD OF ENVIRONMENTAL REVIEW AND THE DEPARTMENT OF ENVIRONMENTAL QUALITY OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On June 7, 2012, the Board of Environmental Review and the Department of Environmental Quality published MAR Notice No. 17-335 regarding a notice of public hearing on the proposed amendment and repeal of the above-stated rules at page 1103, 2012 Montana Administrative Register, issue number 11.
2. The board and department have amended ARM 17.30.602, 17.30.629, 17.30.635, and 17.30.637 and repealed ARM 17.30.616 and 17.30.658 exactly as proposed and have amended ARM 17.24.645, 17.24.646, 17.30.502, 17.30.619, 17.30.702, 17.30.1001, 17.36.345, 17.55.109, 17.56.507, and 17.56.608 as proposed, but with the following changes:
17.24.645 GROUND WATER MONITORING (1) through (5)(c) remain as proposed. (6) Methods of sample collection, preservation, and sample analysis must be conducted in accordance with 40 CFR Part 136 titled "Guidelines Establishing Test Procedures for the Analysis of Pollutants" (July 2003) and the department's document titled "Department Circular DEQ-7, Montana Numeric Water Quality Standards," (7) and (8) remain as proposed.
17.24.646 SURFACE WATER MONITORING (1) through (5) remain as proposed. (6) Methods of sample collection, preservation and sample analysis must be conducted in accordance with 40 CFR Part 136 titled "Guidelines Establishing Test Procedures for the Analysis of Pollutants" (July 2003) and Part 434 titled "Coal Mining Point Source Category BPT, BAT, BCT Limitations and New Source Performance Standards" (January 2002), and the (7) remains as proposed.
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 as proposed. (14) The board adopts and incorporates by reference Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" (
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 Montana's surface water quality standards: (a) Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" ( (b) through (2) remain as proposed.
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 as proposed. (26) The board adopts and incorporates by reference: (a) Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" ( (b) through (d) remain as proposed.
17.30.1001 DEFINITIONS The following definitions, in addition to those in 75-5-103, MCA, apply throughout this subchapter: (1) remains as proposed. (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" ( (3) through (15) remain as proposed.
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 as proposed. (e) Department Circular DEQ-7, "Montana Numeric Water Quality Standards" ( (f) through (2) remain as proposed.
17.55.109 INCORPORATION BY REFERENCE (1) For the purposes of this subchapter, the department adopts and incorporates by reference: (a) Department Circular DEQ-7, Montana Numeric Water Quality Standards ( (b) through (5) remain as proposed.
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 as proposed.
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 as proposed.
3. The following comments were received and appear with the board's and department's responses:
Interim Standards for Pesticides
COMMENT NO. 1: Overly stringent standards can take an economic toll on Montanans. Interim criteria shouldn’t be too stringent or they can create a business burden and hurt Montana’s economy. RESPONSE: The department uses the most current available research for developing an interim health advisory when a federal standard does not already exist. The process for deriving the standard is fixed by EPA guidance. If the final standard is much less stringent than an interim standard, it is in response to new health studies. The same calculations are used in developing the state interim and potential future EPA standards. The only changes being made are the health studies selected for use in the calculations.
Revisions to the Categories for 12 Parameters
COMMENT NO. 2: Chlorite--The new human health standard for chlorite may increase the level of treatment necessary prior to discharging effluent from waste water treatment plants. Additional sampling and analysis would be a burden. RESPONSE: Chlorite is used in a number of water treatment facilities for disinfection. In 2010, EPA Region 8 requested that the department evaluate this new criterion. The Integrated Risk Information System (IRIS) (2000) provides a reference dose (RfD) of 30 µg/kg-day and cites altered liver weights and impaired maturation in mice as evidence of toxicological impact. Confidence in the oral RfD assessment was medium to high and the database was rated as having high confidence. While there may be additional costs associated with the permit requirement to monitor this parameter, the establishment of a standard is appropriate to protect human health.
COMMENT NO. 3: Phenol--Reclassifying phenol as a toxic parameter will result in tighter regulations for Montana Pollutant Discharge Elimination System permit holders and may require additional treatment and control for removal of the parameter. Phenol is already regulated through whole effluent toxicity testing and additional regulations are not necessary. Additionally, recategorization of phenol to toxic will mandate more stringent standards under Montana’s nondegradation rules. RESPONSE: Since 1988, phenol has had an oral toxicity limit. Currently, the RfD established by the EPA and published in IRIS (2002) is at 300 µg/kg-day. Phenol is a toxin with proven impact to the kidneys and reproductive survival in mice. The number of studies conducted and the quality of the studies allows the EPA to conclude that the confidence in the oral RfD and the database used in its derivation is medium to high. Because phenol is a toxic parameter, it is appropriate that its exposure be limited more stringently than a harmful parameter.
COMMENT NO. 4: Tetrachloroethylene (PCE)--EPA informed the board of updated information in IRIS regarding PCE that indicates it should remain in the carcinogen category. RESPONSE: Recent updates to IRIS, released in February of 2012, show that PCE is a carcinogen. Consequently, PCE will remain listed as a carcinogen.
COMMENT NO. 5: Cadmium--Change in the classification of cadmium is not supported because IRIS classification is based on inhalation of cadmium dust or fumes, not ingestion. Cadmium is listed as a carcinogen when inhaled, but not ingested, so it should not be classified as a carcinogen for water quality standards. It is necessary to look at dosage and exposure pathway for standards. Additionally, the aquatic life standard and the Required Reporting Value (RRV) for cadmium are very low. Application of nondegradation rules to cadmium as a carcinogen with the low standard and RRV would result in the allowance of no cadmium detections in effluents. This would be a significant problem, since cadmium is ubiquitous in the environment and may be detected in effluents. RESPONSE: A full review of the categorization of cadmium has revealed that it is inappropriate to consider an oral route of carcinogenic exposure for cadmium. Although a portion of the inhalatory route of cadmium exposure is calculated based on inhalation of water vapor, no independent cancer slope has been developed for either food ingestion or water intake. Consequently, the categorization of cadmium will be left as toxic.
COMMENT NO. 6: Category assignments in Department Circular DEQ-7 (DEQ-7) affect application of nondegradation rules. EPA recommends defining significance thresholds for nondegradation in terms of assimilative capacity and a significance threshold value of 10% or less of the available assimilative capacity on a cumulative basis. EPA recommends updating nondegradation requirements to be consistent with their recommendation. RESPONSE: The comment is outside the scope of the current rulemaking. If and when the board proposes changes to the nondegradation rules, EPA’s comments will be considered.
Required Reporting Values
COMMENT NO. 7: Required Reporting Values (RRVs) established through the use of ultrapure lab standards may not be appropriate for "real-world" samples and don’t reflect real-world effluents with matrix effects. Matrix interference from effluent characteristics will increase the reporting limit for a sample and may prevent achieving low levels. Commentors requested a study on real-world samples. RESPONSE: Matrix interference in a sample will increase the reporting limit for the sample. Laboratories have routine procedures for adding comments to the data report if the reporting limits are increased due to matrix interference. These procedures should be followed when this occurs.
COMMENT NO. 8: Permit limits may be well above standards, and RRVs, and analyzing down to the RRVs would provide no benefit and would be expensive. Commentor suggested including language in DEQ-7 indicating that alternate reporting levels may be acceptable. RESPONSE: The RRV is the reporting limit that a laboratory must be able to achieve to meet the most stringent standard in DEQ-7. The department has latitude when establishing reporting limits in permits that may contain effluent limits above the numeric water quality standards found in DEQ-7. It is the responsibility of the individual requesting the analysis to ensure that appropriate methods and reporting limits are requested from the laboratory to meet analytical and reporting limit needs.
COMMENT NO. 9: If the department requires RRV compliance of all samplers regardless of the analytical method and numeric standard applied to the sample, inappropriate equipment and lab techniques may result in inconsistent results between labs. Commentor recommends conducting RRV studies with real-world effluents and labs located in state. RESPONSE: RRVs do not encourage labs to provide substandard quality. The individual submitting samples is responsible for ensuring that the appropriate analytical method and laboratory reporting limit are requested from the lab based on his or her sampling requirement. If the laboratory cannot perform the method, the routine practice is to subcontract the work to a laboratory that can. If the appropriate reporting limit cannot be achieved, the laboratory should discuss this with the individual submitting the sample and the sample can either be subcontracted to another laboratory that can achieve this level or the laboratory can report the value as closely as possible to the RRV and qualify data (by comment in the analytical report) that is reported below the lowest calibration standard.
Repealing References to the Narrative Water Quality Standard for Nutrients in Surface Waters
COMMENT NO. 10: Commentors disagree with removing reference to the narrative nutrient standard and incorporating Department Circular DEQ-12 (DEQ-12) by reference. They are concerned that removing the narrative reference will prematurely drive adoption of numeric standards in DEQ-12. Removal of the narrative standard reference should be done when rulemaking is initiated on DEQ-12. RESPONSE: It is appropriate to remove the reference to DEQ-12 until its formal adoption. DEQ-7 is the site for numeric water quality standards, and while deletion of the reference to the nutrient narrative standard in DEQ-7 was proposed, repeal of the narrative standard in rule was not. To eliminate confusion, until numeric standards are adopted, inorganic nitrogen and phosphorus and Footnote (8) will remain in DEQ-7 unchanged.
Removing Manganese and Eliminating References to Secondary Maximum Contaminant Levels (SMCLs)
COMMENT NO. 11: Commentor is opposed to the proposed amendment to delete Footnote (24) regarding the secondary maximum contaminant levels (SMCLs) from DEQ-7 and believes that the department should develop a health based standard for manganese. Commentor believes that "little or no treatment" in the narrative standards should be defined. RESPONSE: The values for manganese provided in the footnote are guidance from EPA SMCLs and are not numeric standards. DEQ-7 is the circular that contains numeric water quality standards and, as such, the use of a secondary guidance value is inappropriate as part of its content. The footnote is reserved for future use relative to a Montana human health standard for manganese currently under development. There is growing evidence that manganese, at levels below the current EPA health advisory levels, may be harmful to infant neurological development. The department is working with the researchers and the EPA to develop a health advisory standard for the state of Montana.
COMMENT NO. 12: Commentor requests that the board direct the department to pursue cleanup and installation of water treatment at sites where contaminants have been disposed of, resulting in manganese affecting the drinking water quality in nearby domestic water supplies. RESPONSE: This comment is outside the scope of this rulemaking.
Reviewed by: BOARD OF ENVIRONMENTAL REVIEW
/s/ James M. Madden By: /s/ Joseph W. Russell JAMES M. MADDEN JOSEPH W. RUSSELL, M.P.H. Rule Reviewer Chairman
Certified to the Secretary of State, October 1, 2012.
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