Montana Administrative Register Notice 8-2-135 No. 14   07/30/2015    
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In the matter of the adoption of New Rule I pertaining to actions that qualify as categorical exclusions under the Montana Environmental Policy Act







TO: All Concerned Persons


          1. On August 24, 2015, at 1:00 p.m., the Department of Commerce will hold a public hearing in Room 228 of the Park Avenue Building at 301 South Park Avenue, Helena, Montana, to consider the proposed adoption of the above-stated rule.


2. The Department of Commerce 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 of Commerce no later than 5:00 p.m., August 19, 2015, to advise us of the nature of the accommodation that you need. Please contact Bonnie Martello, Department of Commerce, 301 South Park Avenue, P.O. Box 200523, Helena, Montana 59620-0523; telephone (406) 841-2596; TDD 841-2702; fax (406) 841-2771; or e-mail bmartello@mt.gov.


3.  The rule as proposed to be adopted provides as follows:


NEW RULE I  ACTIONS THAT QUALIFY FOR A CATEGORICAL EXCLUSION (1)  The following types of actions do not individually, collectively, or cumulatively require the preparation of an environmental assessment or an environmental impact statement, unless the action involves one or more of the extraordinary circumstances stated in (3).

     (2)  The following actions meet the criteria for categorical exclusions and will not normally require preparation of either an environmental assessment or an environmental impact statement in considering applications for grants or loans to finance these projects:

     (a)  projects that will be partially funded by, or for which the applicant must obtain a permit from, a state or federal agency which, by reason of its funding or permitting function, has primary responsibility to consider the environmental impacts of the project under MEPA or the National Environmental Policy Act;

     (b)  activities which do not involve or lead directly to construction, such as planning studies, scientific research and analysis, surveys, or engineering;

     (c)  projects primarily involving the acquisition of capital equipment;

     (d)  projects that involve only minor repairs or rehabilitation to an existing facility, including functional replacement of an existing facility or facility components;

     (e) projects where the footprint of the proposed structures, pipelines, or other infrastructure would be substantially unchanged from existing conditions, and there is no increase in the population served by the facility; or

     (f)  emergency repairs, reconstruction, restoration, retrofitting, or replacement of an existing facility that is in operation or under construction when damaged and the action:

     (i)  occurs within the existing facility footprint and in a manner that substantially conforms to the preexisting design, function, and location as the original (which may include upgrades to meet existing codes and standards as well as upgrades warranted to address conditions that have changed since the original construction); and

     (ii)  is commenced within six months after the date of the emergency.

     (3)  Actions described in (2) may not be processed as categorical exclusions if:

     (a) they involve a public controversy over the project's potential effect on the quality of the human environment;

     (b)  the proposed project might have a significant effect on the quality of the human environment; or

     (c)  the project might affect sensitive environmental or cultural resource areas or endangered or threatened species and their critical habitats.

     (4)  If information available to the department indicates that a proposed project in one of the categories described in (2) may involve one of the situations described in (3), the department may, in its sole discretion, require an applicant to prepare an environmental assessment or environmental impact statement as may be appropriate.


AUTH:  2-3-103, 2-4-201, MCA

IMP:  2-3-104, 75-1-201, MCA


REASON: State agencies are provided with the option of adopting, through rulemaking, categorical exclusions that do not require further environmental review. Through the adoption of New Rule I, the department is defining the types of actions that it considers to seldom, if ever, cause significant impacts; identifying the circumstances that could cause an otherwise excluded action to potentially have significant environmental impacts; and providing a procedure whereby these situations would be discovered and appropriately analyzed.


          4. 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 Bonnie Martello, Department of Commerce, 301 South Park Avenue, P.O. Box 200523, Helena, Montana 59620-0523; telephone (406) 841-2596; TDD 841-2702; fax (406) 841-2771; or e-mail bmartello@mt.gov, and must be received no later than 5:00 p.m., September 1, 2015.


5. Bonnie Martello, Paralegal, Office of Legal Affairs, Department of Commerce, has been designated to preside over and conduct this hearing.


6.  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 for which program the person wishes to receive notices. 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 the contact listed in 4 above or may be made by completing a request form at any rules hearing held by the department.


7.  An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register. The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered. In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.


8. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.


9. With regard to the requirements of 2-4-111, MCA, the department has determined that the adoption of the above-referenced rule will not significantly and directly impact small businesses.




/s/ Kelly A. Lynch                                 /s/ Douglas Mitchell                   

KELLY A. LYNCH                                 DOUGLAS MITCHELL

Rule Reviewer                                      Deputy Director

                                                            Department of Commerce


Certified to the Secretary of State July 20, 2015.









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