(2) The rules in this chapter are adopted to discharge the department's responsibilities under Title 75, chapter 10, part 4, Montana Code Annotated (MCA) , the Montana Hazardous Waste Act (Act) , by establishing a management control system including permitting which assures the safe and proper management of hazardous wastes from the moment of their generation through each stage of management until their ultimate destruction or disposal.

(a) Hazardous wastes are regulated under this chapter; and

(b) Solid wastes are regulated under ARM Title 17, chapter 50, subchapter 5 entitled "Refuse Disposal".

(2) This chapter establishes standards for identifying hazardous waste as well as standards for hazardous waste management procedures for generators, transporters, and owners and operators of hazardous waste treatment, storage, and disposal facilities.

(3) Injection wells are subject to the following requirements:

(a) injection wells that are used to dispose of hazardous waste are not regulated under the Montana hazardous waste program, but are subject to requirements under the federal hazardous waste program. Specifically, these wells are subject to the permit-by-rule requirements of 40 CFR 270.1(c) (1) (i) and 270.60(b) , and the owner or operator must have a permit issued by EPA under the underground injection control program to the extent the permit is required by 40 CFR 144.14. An interim status facility that disposes of hazardous waste by underground injection is subject to the requirements of 40 CFR 265, subparts A through E and R.

(b) Where surface facilities that treat, store, or dispose of hazardous waste are associated with injection wells, such associated surface facilities are subject to the permitting requirements of this chapter.

(a) The order, notice of violation, or notice of other administrative action may be served upon the violator or the violator's agent either by personal service or by certified mail. Service by mail is complete on the date of mailing.

(b) Each order, notice of violation, or notice of other administrative action that assesses an administrative penalty must include the following:

(i) a statement of the statutory or rule section(s) violated;

(ii) a statement of the facts constituting the violation(s) for which the penalty is assessed;

(iii) a statement of the amount of the penalty assessed; and

(iv) notice of opportunity to request a hearing before the board in accordance with (2) .

(2) A person named in an order, notice of violation, or notice of other administrative action that assesses an administrative penalty may request a hearing before the board. A request for hearing must be made in writing and filed with the board within 30 days after the order, notice of violation, or notice of other administrative action is served upon the person requesting the hearing. The order or notice becomes final unless a hearing is requested within the 30-day period.

(1) In accordance with the Act, these rules establish a hazardous waste management program that is the equivalent of the federal hazardous waste management program established by the United States Congress under the Resource Conservation and Recovery Act of 1976 (42 USC 6901-6987) , as amended and administered by the EPA.

(2) In view of the Act's requirement of equivalency with the federal RCRA program and in order to simplify the rulemaking process and make the rules less cumbersome, in these rules, the department relies heavily upon adoption and incorporation by reference of federal requirements as set forth in Title 40 of the Code of Federal Regulations (CFR).

(3) References in this chapter that incorporate 40 CFR 60, 61, 63, 124, 260 through 268, 270, 273, or 279 refer to the version of that publication revised as of July 1, 2021. References in this chapter to 40 CFR 124, 260 through 268, 270, 273, or 279 that incorporate publications refer to the version of the publication as specified at 40 CFR 260.11. Provisions within 40 CFR 60, 61, and 63 that are referenced in 40 CFR 124, 260 through 268, 270, 273, or 279 are also incorporated by reference.

(4) Copies of the CFR are available from the U.S. Government Publishing Office--New Orders, P.O. Box 979050, St. Louis, MO 63197-9000, (866) 512-1800. The CFR can also be accessed at https://www.govinfo.gov/app/collection/cfr. Materials adopted and incorporated by reference in this chapter are also available for public inspection and copying at the Department of Environmental Quality, 1520 E. 6th Ave., P.O. Box 200901, Helena, MT 59620-0901.

(5) Where exceptions to incorporated federal regulations are necessary, these exceptions are noted in the rules.

(6) Cross-references within federal regulations adopted and incorporated by reference in these rules refer to the cross-referenced provision as adopted and incorporated by reference in this chapter with any indicated additions and exceptions.

(7) The adoption and incorporation by reference of federal regulations as state rules does not negate the requirement to comply with federal regulations that are not incorporated in this chapter and that are retained as federal authority.

This rule has been repealed.

(1) The following terms used in 40 CFR 124, 260 through 268, 270, 273, or 279, as adopted and incorporated by reference in this chapter, have the meanings specified below, unless otherwise indicated in these rules:

(a) "Act" means the Montana Hazardous Waste Act, Title 75, chapter 10, part 4, MCA.

(b) "Administrator" means the director of the Montana Department of Environmental Quality.

(c) "Agency" means the Montana Department of Environmental Quality.

(d) "Director" means the director of the Montana Department of Environmental Quality.

(e) "Environmental Protection Agency", "U.S. Environmental Protection Agency", or "EPA" means the Montana Department of Environmental Quality, except for:

(i) any references to "EPA form", "EPA identification number", "EPA hazardous waste number", "EPA publication", "EPA acknowledgement of consent"; and

(ii) any reference to EPA in 40 CFR 273.32(a) (3) .

(f) "Non-hazardous solid waste" means solid waste (see ARM 17.53.102(1) ) .

(g) "He" means he, she, or it, without regard to gender.

(h) "Notification requirements of section 3010" means the notification requirements of this chapter.

(i) "RCRA permit" means state hazardous waste permit.

(j) "Regional administrator" means the director of the Montana Department of Environmental Quality.

(k) "She" means he, she, or it, without regard to gender.

(l) "Solid waste" means waste (see ARM 17.53.102(1) ) .

(m) "State", "authorized state", "approved state", and "approved program" mean Montana, except at:

(i) 40 CFR 124.2 in the definitions of "director," "interstate agency," "person," and "state";

(ii) 40 CFR 260.10 in the definitions of "person," "state," and "United States";

(iii) 40 CFR 262;

(iv) 40 CFR 264.143(e) (1) , 264.145(e) (1) , 264.147(a) (1) (ii) , 264.147(b) (1) (ii) , 264.147(g) (2) , 264.147(i) (4) , 265.143(d) (1) , 265.145(d) (1) , 265.147(a) (1) (ii) , 265.147(g) (2) , and 265.147(i) (4) ; and

(v) 40 CFR 270.2 in the definitions of "approved program" or "approved state," "director," "final authorization," "person," and "state".

(n) Any reference to the "Department of Transportation" or "DOT" shall mean the U.S. Department of Transportation.

(2) The definitions of the following terms found in 40 CFR 260.10 are excluded from substitution pursuant to (1) (b), (e), and (j) :

(a) Administrator;

(b) Electronic manifest (or e-Manifest);

(c) Electronic Manifest System (or e-Manifest System); 

(d) EPA region;

(e) Manifest;

(f) Regional Administrator; and

(g) User of the electronic manifest system.

(3) The substitution of terms in (1) does not apply in the following portions of 40 CFR 260 through 268, 270, 273, and 279, as adopted and incorporated by reference in this chapter:

(a) 40 CFR 260.2(c);

(b) 40 CFR 260.2(d);

(c) 40 CFR 260.4;

(d) 40 CFR 260.5; 

(e) 40 CFR 261.4(b) (11) (ii) ;

(f) 40 CFR 261.6(a) (3) (i) (A) ;

(g) 40 CFR 261.6(a) (3) (i) (B) ;

(h) 40 CFR 261.10;

(i) 40 CFR 261.11;

(j) 40 CFR 261.39(a)(5);

(k) 40 CRF 261.41; 

(l) 40 CFR 262.10(g) ;

(m) 40 CFR 262.11;

(n) 40 CFR 262.24(a)(3);

(o) 40 CFR 262.25;

(p) 40 CFR 262, subpart H;

(q) 40 CFR 263.20(a)(4)(iv);

(r) 40 CFR 264.12(a); 

(s) 40 CFR 264.71;

(t) 40 CFR 265.12(a);

(u) 40 CFR 265.71;

(v) 40 CFR 267.71(a)(6);

(w) 40 CFR 267.71(d); 

(x) 40 CFR 268.2(j) ;

(y) the following 40 CFR 270.2 definitions:

(i) "administrator";

(ii) "approved program or approved State";

(iii) "director";

(iv) "Environmental Protection Agency";

(v) "EPA";

(vi) "final authorization";

(vii) "interim authorization";

(viii) "major facility";

(ix) "permit";

(x) "regional administrator"; and

(xi) "state/EPA agreement";

(z) 40 CFR 270.10(e)(2) and (3) ;

(aa) 40 CFR 270.10(f)(2) and (3) ;

(ab) 40 CFR 270.10(g)(1)(i) and (ii) ;

(ac) 40 CFR 270.11(a)(3);

(ad) 40 CFR 270.32(b)(2);

(ae) 40 CFR 270.32(c);

(af) 40 CFR 270.72(a)(5);

(ag) 40 CFR 270.72(b)(5); and

(ah) 40 CFR 279.43(c)(3)(ii).

(1) Hazardous waste generators who accumulate, treat, store, dispose, transport, or offer for transportation hazardous waste shall register with the department, except as provided otherwise in (2).

(2) The following persons are not required to register as hazardous waste generators:

(a) very small quantity generators who are subject to the exclusionary provisions of 40 CFR 262.14, except for those who generate hazardous waste due to an episodic event in accordance with 40 CFR 262, Subpart L;

(b) persons whose only hazardous wastes are recyclable materials as defined in 40 CFR 261.6;

(c) persons whose wastes are excluded from regulation as hazardous wastes under 40 CFR 261.4; and

(d) farmers who generate hazardous wastes and who dispose of all such wastes on their own farm property in accordance with 40 CFR 262.70.

(3) A hazardous waste generator shall complete and submit the registration form provided by the department or the EPA to register with the department.

(4) Registration is complete when the department approves the registration form and receives the registration fee required by ARM 17.53.113.

(5) A hazardous waste generator must inform the department of any changes to the information contained on the original registration form.

(6) Hazardous waste transporters must register with the department pursuant to ARM 17.53.703.

(7) A reverse distributor operating under 40 CFR 266, Subpart P must register with the department.

(1) For the purposes of this rule, the following definitions apply:

(a) "Class I facility" means a hazardous waste management facility that:

(i) contains one or more regulated landfill units, surface impoundments, land treatment units, incinerators, boilers, or industrial furnaces; and

(ii) receives more than 50% of its hazardous waste from off-site sources not owned, controlled, or operated by the facility owner or operator.

(b) "Class II facility" means a hazardous waste management facility that is not a Class I facility or a Class III facility.

(c) "Class III facility" means a hazardous waste management facility that:

(i) does not contain a regulated landfill unit, surface impoundment, land treatment unit, incinerator, boiler, or industrial furnace; and

(ii) generates more than 50% of its hazardous waste on-site or receives more than 50% of its hazardous waste from off-site sources that are owned, controlled, or operated by the facility owner or operator.

(2) The department shall assess to an applicant for a hazardous waste management permit, including a standardized permit, under this subchapter a filing and review fee based upon the following schedule:

(a) For Class I facilities, a maximum fee of $150,000, payable as follows:

(i) a nonrefundable payment of $50,000 due when the applicant files for a permit;

(ii) a payment of $50,000 due when the department notifies the applicant that the application is complete; and

(iii) an additional payment of up to $50,000 for the department's actual costs of review that exceed $100,000. This payment is due within 30 days after the department's final decision on the application.

(b) For Class II facilities, a maximum fee of $90,000, payable as follows:

(i) a nonrefundable payment of $40,000 due when the applicant files for a permit; and

(ii) an additional payment of up to $50,000 for the department's actual costs of review that exceed $40,000. This payment is due within 30 days after the department's final decision on the application.

(c) For Class III facilities, a maximum fee of $25,000, payable as follows:

(i) a nonrefundable payment of $10,000 due when the applicant files for a permit; and

(ii) an additional payment of up to $15,000 for the department's actual costs of review that exceed $10,000. This payment is due within 30 days after the department's final decision on the application.

(d) If, after receipt of the payment required in (2)(a)(ii), the applicant notifies the department in writing of its intent to withdraw the application, the department shall return to the applicant any portion of the payment received pursuant to (2)(a)(ii) that exceeds the department's actual costs of permit review.

(3) At the time the permit reissuance process is initiated, the department shall assess a permit reissuance fee. The fees are as follows:

(a) $18,525 for a Class I facility;

(b) $8,645 for a Class II facility; and

(c) $3,700 for a Class III facility.

(4) If payment for permit reissuance is not received by the department within ten days after initial billing, the department may suspend all work on the permit reissuance until the fee has been received.

(5) The department shall assess a permit modification fee for all permit modifications, at the time the modification process is initiated, regardless of whether the modification is requested by the permittee or initiated by the department.

(6) The fees for permit modifications at the request of the permittee are as follows:

(a) $8,890 for Class 3 modifications, as listed in 40 CFR 270.42, Appendix I;

(b) $4,450 for Class 2 modifications, as listed in 40 CFR 270.42, Appendix I; and

(c) for Class 1 modifications listed in 40 CFR 270.42, Appendix I:

(i) $300 for Class 1 modifications listed in A through E of Appendix I; and

(ii) $1,480 for Class 1 modifications listed in F through L of Appendix I; and

(d) for "other modifications," as provided in 40 CFR 270.42(d), the fees will be assessed as set forth in this section pursuant to a modification class as determined by the department.

(7) The fees for permit modifications initiated by the department, pursuant to 40 CFR 270.41, are as follows:

(a) for modifications, for causes described in 40 CFR 270.41, the fees are as follows:

(i) $8,890 for Class 3 modifications, as listed in 40 CFR 270.42, Appendix I;

(ii) $4,450 for Class 2 modifications, as listed in 40 CFR 270.42, Appendix I; and

(iii) for Class 1 modifications listed in 40 CFR 270.42, Appendix I:

(A) $300 for Class 1 modifications listed in A through E of Appendix I; and

(B) $1,480 for Class 1 modifications listed in F through L of Appendix I; and

(b) for causes to revoke and reissue a permit as described in 40 CFR 270.41, the fees are as provided in the schedule set forth in (3).

(8) If a Class 1 permit modification is very minor (e.g., changing only a name or an address on the permit documents), the department may waive the fee.

(9) If payment for a permit modification is not received by the department within ten days after initial billing, the department may suspend all work on the permit modification until the permit modification fee has been received.

(10) A hazardous waste management facility that receives more than 50% of its hazardous wastes from off-site generators that are not owned or operated by the facility owner or operator or site owner shall pay to the department hazardous waste management fees based upon the amount of waste received, as follows:

(a) $8 per ton of hazardous waste received at the facility or site for management in regulated landfill units, surface impoundments, land treatment units, incinerators, boilers or industrial furnaces; and

(b) $4 per ton of hazardous wastes received at the facility or site for management in any regulated unit or units other than those described in (10)(a).

(c) The fees established in (10)(a) and (b) may be prorated for amounts of hazardous waste received that are less than one ton in weight.

(d) Payment of the fees established in (10)(a) and (b) shall be submitted to the department quarterly, with payments due on March 31, June 30, September 30, and December 31 of each year.

(1) For the purposes of this rule, "as-generated waste" means hazardous waste generated from tanks, containers, and other process units in the course of regular, ongoing commercial production, or other industrial activities. "Remediation waste" means all hazardous waste, debris, and media, including ground water, surface water, soils, and sediments, that are managed for implementing cleanup. Hazardous waste generated at, and as a result of, final closure of the entire facility is remediation waste.

(2) Concurrent with the submittal of a registration form, a generator shall submit to the department a registration fee of $270.

(3) The department shall assess an annual registration maintenance fee, as provided in (4), for the following hazardous waste generators:

(a) a person who generates more than 100 kilograms (220 pounds) of hazardous waste, or more than one kilogram (2.2 pounds) of acute hazardous waste, in any calendar month;

(b) a person who accumulates more than 1,000 kilograms (2,200 pounds) of hazardous waste, or more than one kilogram (2.2 pounds) of acute hazardous waste at any time in a calendar year; and

(c) a very small quantity generator, as defined in ARM 17.53.301(2), that generates hazardous waste due to an episodic event in accordance with 40 CFR 262, Subpart L.

(4) The annual registration maintenance fee for a calendar year is $240 plus a per-ton fee for all regulated hazardous waste generated during the previous calendar year of:

(a) $15 per ton for all regulated remediation waste generated during the 2014 calendar year and each year thereafter, subject to an annual cap of $25,000; and

(b) $25 per ton for all regulated as-generated waste generated during the 2021 calendar year and each year thereafter.

(5) The per-ton fee in (4)(a) and (b) is assessed only if the amount of regulated hazardous waste generated during the previous calendar year is equal to or greater than 1.3 tons.

(6) For purposes of determining the registration maintenance fee, any part of a ton of generated hazardous waste, greater than 1.3 tons, must be rounded up to the next tenth of a ton.

(7) Hazardous waste generators exempt from registration, pursuant to ARM 17.53.111(2), for the entire previous calendar year are not required to pay the registration or registration maintenance fees, except as provided in ARM 17.53.113(2)(c).

(8) The department shall assess a change of activity fee, as provided in (9), for any generator who notifies the department as:

(a) an episodic generator operating under 40 CFR 262, Subpart L;

(b) a large quantity generator receiving waste from a very small quantity generator consolidating hazardous waste received from a very small quantity generator in accordance with 40 CFR 262.17(f); and

(c) a healthcare facility, as defined in 40 CFR 266.500, notifying that it is operating under 40 CFR 266, Subpart P.

(9) The change of activity fee is $150 for each notification to the department provided in (8).

(10) Persons are not required to pay the registration or registration maintenance fees if they are registered only for the purpose of:

(a) transporting hazardous waste;

(b) handling universal waste;

(c) handling used oil;

(d) conducting a treatability study; or

(e) notifying the department that they are a reverse distributor operating under 40 CFR 266, Subpart P. 

(11) The department shall provide a written notice of the amount of the registration maintenance fee, the basis for the fee assessment, and the date the fee is due to each hazardous waste generator required to pay an annual registration maintenance fee.

(12) If a hazardous waste generator that was assessed an annual registration maintenance fee fails to pay the required fee within 60 days after the billing date, the department may impose a late payment charge of 10 percent of the fee, plus interest on the fee computed at the interest rate established under 75-2-220(5)(a)(i), MCA.

(1) "Record" means any paper, writing, photograph, sound or magnetic recording, drawing, form, book, correspondence, microfilm, magnetic tape, computer storage media, map, or other document or other similar mechanism regardless of physical form or characteristics by which information has been preserved that has been made or acquired by the department or department employees in connection with the transaction of official business preserved for informational value or as evidence of a transaction and all other records of documents required by law to be filed with or kept by the department.

(a) finalized press releases;

(b) copies of rules;

(c) educational materials (including pamphlets); and

(d) copies of speeches that have been delivered to the public.

(1) A request for information pertaining to a facility under this subchapter must be made in writing, must reasonably describe the records sought in a way that will permit their identification, and should be addressed to the Hazardous Waste Section, Waste and Underground Tank Management Bureau, Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

(2) Claims of confidentiality for the name and address of any permit applicant or permittee will be denied.

(1) The department shall, within 10 business days after a request for records pertaining to facilities, issue a written statement to the requestor stating which of the requested records, if any, will not be released and the reason for the denial of the request, including, if applicable, the need of the department to resolve a claim for confidentiality. Any other records not designated as non-releasable shall be provided to the requestor by the department.

(2) To the extent that records are required to be made available for public inspection, the department may inform the requestor that the records are available for inspection and where copies may be obtained.

(3) The period of 10 business days (or any extension thereof) does not include any time that elapses between the date that a requestor is notified by the department that the request does not reasonably identify the records sought, and the date that the requestor furnishes a reasonable identification.

(4) The period of 10 business days (or any extension thereof) does not include any time that elapses between the date that a requestor is notified by the department that payment of fees is required, and the date that the requestor pays (or makes arrangements to pay) such charges.

(5) The department may under unusual circumstances as outlined below extend the basic 10-day period established in (1) up to an additional 10 business days. In such cases, the department shall furnish written notice to the requestor stating the reasons for the extension and the date by which the department expects to issue the determination. Unusual circumstances justifying an extension include:

(a) additional time is needed to search for and collect the requested records from separate facilities;

(b) additional time is needed to search for and collect the requested records because of the volume of the request; or

(c) additional time is needed for consultation with another agency having a substantial interest in the determination.

(6) Failure of the department to issue a determination within the 10-day period or any extension constitutes an agency decision that may be appealed to the board.

(2) The decision of the board on appeal must be issued within 20 business days after the date of receipt of the appeal request.

(3) Failure of the board to issue a decision within the prescribed time period in (2) constitutes a final agency decision and is a basis for judicial review.

(1) Nothing in this subchapter shall prevent a party that substantially prevails in an action filed in the district court for access to information from recovering its reasonable court costs and attorney fees as provided by law.

(2) This fee may be reduced or waived by the department if furnishing the information can be considered as primarily benefiting the general public.

(1) Except where inconsistent with the definitions in (2), the definitions in 40 CFR 260 through 268, 270, 273, and 279 are adopted and incorporated by reference.

(2) In this chapter, the following terms shall have the meanings or interpretations shown below:

(a) The "act or RCRA" definition at 40 CFR 260.10 is excluded from the incorporation by reference at (1) . "Act" has the meaning given to it at ARM 17.53.107(1) (a) .

(b) "Board" means the board of environmental review provided for in 2-15-3502 , MCA.

(c) "Calendar year" means a year beginning on January 1 and ending on December 31.

(d) "Commercial transfer facility" means a transfer facility owned or operated by a commercial for-hire transporter and in which the major purpose of the commercial transfer facility is the collection, storage, and transfer of hazardous wastes; that is, over 50% of the materials moved through the commercial transfer facility are hazardous wastes, or greater than 100 tons of materials moved through the commercial transfer facility per year are hazardous wastes. The term "commercial for-hire transporter" refers to a transporter who conducts transportation activity on a commercial basis, as opposed to a transporter that is the same business entity as the generator.

(e) "Department" means the Montana department of environmental quality provided for in 2-15-3501 , MCA.

(f) In the "existing tank system or existing component" definition at 40 CFR 260.10, the installation commencement date is July 14, 1986, for HSWA tanks, and June 7, 1989, for non-HSWA tanks.

(g) "HSWA" means Hazardous and Solid Waste Amendments of 1984.

(h) "HSWA drip pad" means a drip pad associated with F032 waste.

(i) "HSWA tank" means:

(i) a tank owned or operated by a generator of less than 1000 kg (2200 pounds) of hazardous waste per calendar month;

(ii) a new underground tank; or

(iii) an existing underground tank that cannot be entered for inspection.

(j) "Major HWM facility" means any HWM facility or activity classified as such by the department, in consultation with the EPA.

(k) "New tank system" or "new tank component" means a tank system or component that will be used for the storage or treatment of hazardous waste:

(i) for which installation commenced after July 14, 1986, for HSWA tanks, as defined in (2) (h) , and June 7, 1989, for non-HSWA tanks, as defined in (2) (n) ; or

(ii) for the purposes of 40 CFR 264.193(g) (2) and 40 CFR 265.193(g) (2) , for which construction commenced after January 12, 1987, for HSWA tanks and March 15, 1991, for non-HSWA tanks.

(l) "Non-HSWA drip pad" means a drip pad associated with F034 or F035 waste.

(m) "Non-HSWA tank" means all tanks except:

(i) a tank owned or operated by a generator of less than 1000 kg (2200 pounds) of hazardous waste per calendar month;

(ii) a new underground tank; and

(iii) an existing underground tank that cannot be entered for inspection.

(n) "RCRA" when used prior to numbered citations, e.g., "RCRA §3008" means the Resource Conservation and Recovery Act. "RCRA" alone, without a numbered citation, has the same meaning as "act" as defined in ARM 17.53.107(1) (a) .

(o) "Registration" means notification by a hazardous waste generator through the use of a registration form provided by the department.

(p) "Registration year" means a calendar year for which generator registration is required and for which a registration fee is assessed.

(q)  "Very small quantity generator" means a generator who generates less than or equal to the following amounts in a calendar month:

(i)  100 kilograms (220 pounds) of nonacute hazardous waste;

(ii)  1 kilogram (2.2 pounds) of acute hazardous waste listed in 40 CFR 261.31 or 40 CFR 261.33(e); and

(iii)  100 kilograms (220 pounds) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in 40 CFR 261.31 or 40 CFR 261.33(e).

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(1) Except as provided otherwise in ARM 17.53.405, the department adopts and incorporates by reference 40 CFR 260, Subpart A, Subpart B, and Subpart C pertaining to General Hazardous Waste Management.

(1) In 40 CFR 260.1(b)(1), references to "EPA" are retained.�The department has separate rules governing access to information and confidentiality at ARM Title 17, chapter 53, subchapter 2.�

(2)�In 40 CFR 260.1(b)(4) through (6), references to "EPA" are retained.

(3)�40 CFR 260.2(a) and (b), pertaining to availability of information and confidentiality of information, are not adopted.�The department has separate rules governing access to information and confidentiality at ARM Title 17, chapter 53, subchapter 2.

(4)�In 40 CFR 260.2(c) and (d), 260.4, and 260.5, references to "EPA" are retained.

(5) �The definitions in 40 CFR 260.10 are subject to the provisions of ARM 17.53.301.

(6)�40 CFR 260.20 through 260.23, pertaining to rulemaking petitions, are not adopted. �Thus, any reference to petitions under these provisions in 40 CFR 124, 260 through 268, 270, 273, and 279, incorporated by reference by this chapter, are not applicable under the Montana hazardous waste program. �See�ARM 17.53.406�for more information.

�

(1)  Waste generators may demonstrate that their wastes do not meet criteria utilized by EPA to list hazardous wastes. A successful petition results in that waste being excluded from regulation as a hazardous waste--often referred to as waste "delisting." Under ARM 17.53.405(5), Montana does not adopt 40 CFR 260.20 through 260.23, relating to rulemaking petitions.  Petitions by Montana generators to delist a hazardous waste must be filed with EPA.

(1) Except as provided otherwise in ARM 17.53.502, the department hereby adopts and incorporates by reference 40 CFR 261, pertaining to identification, characteristics, listing, and criteria for identification and listing of wastes regulated as hazardous waste.

(1) The following language is substituted for the language in 40 CFR 261.2(f) , adopted and incorporated by reference in ARM 17.53.501:  "Respondents in actions to enforce this chapter who claim that a certain material is not a waste, or is conditionally exempt from regulation, must demonstrate that there is a known market or disposition for the material, and that the respondent meets the terms of the exclusion or exemption. In doing so, the respondent must provide appropriate documentation (such as contracts showing that a second person uses the material as an ingredient in a production process) to demonstrate that the material is not a waste, or is exempt from regulation. In addition, owners or operators of facilities claiming that they actually are recycling materials must show that they have the necessary equipment to do so."

(2) In 40 CFR 261.4(e) (2) (vi) , pertaining to treatability study samples and generator reporting, "annual" is substituted for "biennial".

(3) In 40 CFR 261.4(e) (3) (iii) the words "in the Region where the sample is collected" are not adopted and incorporated by reference.

(4) In 40 CFR 261.4(f) (1) , pertaining to treatability studies, the phrase "director of the Montana department of environmental quality" is substituted for "Regional Administrator, or State Director (if located in an authorized State) ".

(5) The following language is substituted for the language in 40 CFR 261.6(c)(2)(iv), adopted and incorporated by reference in ARM 17.53.501: "ARM 17.53.903 (annual reporting requirements)."

(6) "It is a forbidden explosive as defined in 49 CFR 173.54; or would have been a Class A or B explosive as defined in 49 CFR 173.52 and 53." is substituted for 40 CFR 261.23(a) (8) .

(7) Appendix IX of 40 CFR 261, pertaining to wastes excluded under 40 CFR 260.20 and 260.22, is not adopted and incorporated by reference.

(1) In 40 CFR 262.11(c), the reference to "Administrator" is retained. Petitions by Montana generators to delist a hazardous waste must be filed with EPA.

(2) In 40 CFR 262.11(d)(1) and(d)(2), pertaining to hazardous waste determination, the phrase "or according to an equivalent method approved by the Administrator under 40 CFR 260.21" is not adopted and incorporated by reference.

(3) In 40 CFR 262.18(d), the reference to "biennial report" is replaced with "annual report."

(4)  In 40 CFR 262.24(a)(3) and 262.25, references to "EPA" are retained.

(5) In 40 CFR 262.40(b) , pertaining to generator recordkeeping, "annual" is substituted for "biennial".

(6) ARM 17.53.603 is substituted for 40 CFR 262.41, pertaining to biennial reporting.

(7) In 40 CFR 262.42(a) (2) and (b) , pertaining to exception reporting, the words "in the Region in which the generator is located" are not adopted and incorporated by reference.

(8) ARM 17.53.604 is substituted for 40 CFR 262.43, pertaining to additional reporting requirements.

(9) In 40 CFR 262.80 through 262.84, pertaining to transboundary movements of hazardous waste for recovery or disposal, references to "EPA" are retained.

(10) Exception reports required from primary exporters pursuant to 40 CFR 262.83(h) must be filed with EPA and the department.

(11) Annual reports required from primary exporters pursuant to 40 CFR 262.83(g) must be filed with EPA and the department.

(12) In 40 CFR 262.83(i)(3) and 262.84(h)(f), pertaining to export and import record keeping, the references to the "Administrator" are retained. The department may also require extensions of record retention times for hazardous waste export records.

(13) Very small quantity generators are not subject to the requirements of ARM 17.53.603, except for those who generate due to an episodic event in accordance with 40 CFR 262, Subpart L.

(1) A generator who generates or ships hazardous waste shall submit annual reports to the department, on forms obtained from the department, no later than March 1 of each year. The annual report must cover generator activities during the previous calendar year and must include the following information:

(a) the EPA identification number, name, and address of the generator;

(b) the calendar year covered by the report;

(c) the EPA identification number, name, and address for each off-site facility in the United States to which waste was shipped during the year;

(d) the name and EPA identification number of each transporter used during the reporting year for shipments to a facility within the United States;

(e) a description, EPA hazardous waste number, DOT hazard class, and quantity of each hazardous waste shipped off-site for shipments to a facility within the United States. This information must be listed by the EPA identification number of each off-site facility to which waste was shipped;

(f) a description of the efforts undertaken during the year to reduce the volume and toxicity of waste generated;

(g) a description of the changes in volume and toxicity of waste actually achieved during the year in comparison to previous years; and

(h) the certification signed and dated by the generator or the generator's authorized representative, made in accordance with 40 CFR 270.11.

(2) Any generator who treats, stores, or disposes of hazardous waste on-site must submit an annual report covering those wastes in accordance with the provisions of subchapters 8, 9, and 12 of this chapter.

(3) Reporting for exports of hazardous waste is subject to the requirements of 40 CFR 262.83(h) and ARM 17.53.602(10) rather than the requirements of this rule.

(4) A very small quantity generator, as defined in ARM 17.53.301(2), that has generated hazardous waste due to an episodic event in accordance with 40 CFR 262, Subpart L shall submit an annual report pursuant to ARM 17.53.603(1). 

(1) Except as provided otherwise in ARM 17.53.702, the department adopts and incorporates by reference 40 CFR 263, pertaining to requirements for transporters of hazardous waste.

�

(1) All references to "EPA" and "Administrator" are retained, except for 40 CFR 263.11(a) and (b) , and 40 CFR 263.22(e) where "administrator" should be replaced with "director of the Montana department of environmental quality".

(2) In addition to the transfer facility requirements of 40 CFR 263.12, a transfer facility is subject to ARM 17.53.704, 17.53.706, and 17.53.707.

(3) For at least three years after the date the hazardous waste was accepted by the initial transporter, copies of the manifest, as required under 40 CFR 263.22(a) , must be maintained on file at the transfer facility location for all hazardous waste shipments that are transported to a transfer facility.

(4) In addition to the notices and reports required by 40 CFR 263.30 in the event of discharges of hazardous waste during transportation, the transporter shall also notify the department by immediately contacting the Montana hazardous materials emergency response system ((406) 324-4777) .

�

(2) Transporter registration is not subject to any fee.

(3) In order to obtain registration, a transporter shall provide, at a minimum, the following information on forms provided by the department:

(a) business name and mailing address;

(b) EPA identification number (if one has already been assigned) ;

(c) contact person(s) and contact phone number(s) ;

(d) the locations of all of the transporter's hazardous waste transportation-related offices, terminals, depots, and/or transfer facilities situated within Montana;

(e) the mode(s) of hazardous waste transportation employed; and

(f) whether the transporter and generator are the same person or whether the transportation activity is done on a commercial for-hire basis.

(4) Registration remains in effect for three years. Upon expiration, the department shall notify the transporter and provide appropriate forms for renewing the registration. Registration is transferable to a new owner or operator upon written notice to the department and proper updating of all pertinent registration information on file with the department.

(1) Transfer facility personnel shall successfully complete a program of classroom instruction or on-the-job training that teaches them to perform their duties in compliance with the requirements of this rule and ARM 17.53.706 and 17.53.707.

(2) At a minimum, the training program must be designed to ensure that transfer facility personnel are able to respond to emergencies by familiarizing the transfer facility personnel with emergency procedures, emergency equipment, and emergency systems.

(3) Transfer facility personnel shall successfully complete the required training program within six months after the first day of their employment. Employees may not work in unsupervised positions until they have completed the required training.

(4) Transfer facility personnel shall take part in an annual review of the initial training required in (1) .

(5) The owner or operator of the transfer facility shall maintain the following documents and records at the facility:

(a) the job title for each position at the transfer facility related to hazardous waste management, and the name of the employee filling each job;

(b) a written description of the type and amount of both introductory and continuing training that will be given to each person filling a position related to hazardous waste management; and

(c) records that document that the training or job experience required under (1) and (2) of this rule has been given to, and completed by, transfer facility personnel.

(6) Training records on current personnel must be kept until closure of the transfer facility. Training records on former employees must be kept for at least 3 years from the date the employee last worked at the transfer facility. Personnel training records may accompany personnel transferred within the same company.

(1) Transfer facility owners and operators shall comply with the emergency preparedness and prevention requirements set forth in 40 CFR 265, subpart C.

(2) Transfer facility owner and operators shall also comply with the following additional emergency planning and response requirements:

(a) At all times during which hazardous wastes are temporarily stored at the transfer facility there must be an emergency coordinator or a trained designee who is on the premises or on call and available to respond to an emergency by reaching the facility within a short period of time. The emergency coordinator shall coordinate all emergency response measures specified in (2)(c).

(b) The transfer facility owner or operator shall post the following information next to the telephone:

(i) the name and telephone number of the emergency coordinator;

(ii) the location of fire extinguishers and spill control material and, if present, fire alarm;

(iii) the telephone number of the local fire department, unless the transfer facility has a direct alarm; and

(iv) the name, address, and EPA identification number of the transfer facility.

(c) The emergency coordinator or the coordinator’s designee shall respond to any emergencies that arise by formulating a contingency plan under the guidelines of 40 CFR 265, subpart D, and by making appropriate responses. Appropriate responses include the following:

(i) In the event of a fire, the emergency coordinator shall call the fire department and/or attempt to extinguish the fire using a fire extinguisher.

(ii) In the event of a spill, the emergency coordinator shall first determine whether the conditions under (2)(c)(iii) apply and, if so, the emergency coordinator shall follow the steps in (2)(c)(iii); then the emergency coordinator shall contain the flow of hazardous waste to the extent possible, and as soon as is practicable, appropriately clean up the hazardous waste and any contaminated materials or soil.

(iii) In the event of a fire, explosion, spill or other release event that could threaten human health or when the emergency coordinator has knowledge that a spill has reached surface water, the emergency coordinator shall immediately notify the national response center (800-424-8802) and the department (using the 24-hour telephone number, (406) 324-4777). The notifications must include the following information:

(A) the name, address, and EPA identification number of the transfer facility;

(B) the date, time, and type of incident (e.g., spill or fire);

(C) the quantity and type of hazardous waste involved in the incident;

(D) the extent of injuries, if any; and

(E) the estimated quantity and disposition of recovered materials, if any.

(2) All handling of hazardous waste containers must be conducted in a manner that minimizes the risk of leaks, spills, releases, or similar accidents.   Hazardous waste containers may not be opened unless necessary to correct container damage or leakage of the contents, and the generator's consent must be obtained for any necessary repackaging.

(3) Loading docks, temporary container storage areas, and all areas where transfer of hazardous wastes occurs must have a base or floor that is smooth, free of cracks or gaps, and sufficiently impervious to contain leaks or spills until the spilled material is detected and removed. Temporary storage areas must be designed with a containment system having sufficient capacity to contain, at a minimum, 10 times the volume of the largest container that will be stored there. Any leaks or spills that do occur must be promptly cleaned up by the transfer facility operator.

(4) Containers of ignitable or reactive waste must be handled and stored in a manner so as to prevent accidental ignition or reaction of the waste. Such waste containers must be separated and protected from sources of ignition or reaction (e.g., open flames, sparks, cigarette smoking, cutting and welding activities, hot surfaces, frictional heat, spontaneous ignition, and radiant heat) . "NO SMOKING" signs must be conspicuously placed wherever there is or may be a hazard from ignitable or reactive wastes.

(1) A commercial transfer facility is subject to ARM 17.53.702(4) , 17.53.704, 17.53.706 and 17.53.707, and the public hearing requirements of 75-10-441 , MCA.

(2) The owner or operator of a commercial transfer facility shall prepare and submit a written annual report to the department by March 1 of each year. The report must cover transfer facility activities during the previous calendar year, and must include the following information:

(a) the EPA identification number, name, and address of the transfer facility;

(b) the calendar year covered by the report;

(c) a summary of all hazardous wastes that the commercial transfer facility handled during the report year, organized by EPA hazardous waste number and showing quantitative waste totals for each waste type;

(d) a written summary of each hazardous waste leak, spill, fire, or similar incident that occurred in the report year, including the response actions taken, the cause of the incident, and a legible copy of the pertinent waste manifests(s) for the hazardous wastes involved in the incident; and

(e) a certification signed and dated by the owner or operator of the transfer facility or an authorized representative, worded as follows:

     "I certify under penalty of law that I have personally examined and am familiar with the information submitted in this and all attached documents, and where I haven't personally obtained the information, I have made inquiry of those individuals immediately responsible for obtaining the information, about the truth and accuracy of the information contained in this document. I certify that the submitted information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment."

(1) "The purpose of this rule is to establish minimum standards that define the acceptable management of hazardous waste at state permitted facilities." is substituted for 40 CFR 264.1(a) , pertaining to the scope of federal standards applicable to owners and operators of hazardous waste treatment, storage and disposal facilities.

(2) 40 CFR 264.1(d) , pertaining to underground injection, is not adopted and incorporated by reference and is replaced by the requirements in ARM 17.53.102(3) .

(3) The requirements in 40 CFR 264.1(g) (1) , pertaining to exclusions from the requirements of 40 CFR 264, are replaced with:  "The standards set forth in this subchapter do not apply to owners or operators of solid waste management systems licensed by the department pursuant to ARM Title 17, chapter 50, subchapter 5, if the only hazardous waste the facility treats, stores, or disposes of is excluded from regulation by the requirements for very small quantity generators in 40 CFR 262.14 as incorporated by reference in ARM 17.53.501(1)."

(4) In 40 CFR 264.12(a), pertaining to required notices, the references to "EPA" and "Regional Administrator" are retained.

(5) In 40 CFR 264.71, relating to use of the manifest system, references to EPA are retained.

(6) ARM 17.53.803 is substituted for 40 CFR 264.75, pertaining to biennial reports, and all references to "biennial report" in 40 CFR 264 are replaced with "annual report."

(7) In 40 CFR 264.143(h) and 264.145(h) , pertaining to financial assurance and cost estimate for closure and post-closure, the language "If the facilities covered by the mechanism are in more than one state, identical evidence of financial assurance must be submitted to and maintained by the director and submitted to the director of the environmental agency in each of the states within which the other facilities are located. If a facility is located in an unauthorized state, the evidence must be submitted to the appropriate regional adminstrator." is substituted for "If the facilities covered by the mechanism are in more than one region, identical evidence of financial assurance must be submitted to and maintained with the regional administrators of all such regions."

(8) 40 CFR 264.149 and 264.150, pertaining to use of state required mechanisms and state assumption of responsibility, are not adopted and incorporated by reference.

(9) In 40 CFR 264.151, the language pertaining to the filing of financial instruments with the regional administrators of the various regions in which the owners or operators have facilities applies to the filing of financial instruments with the directors of the environmental agencies of the various states in which the owners or operators have facilities, or the regional administrator of the appropriate region if a particular state is unauthorized.

(10) In 40 CFR 264.191(a) , pertaining to tank integrity assessments, "January 12, 1988 for HSWA tanks, and March 15, 1991, for non-HSWA tanks" is substituted for "January 12, 1988".

(11) In 40 CFR 264.191(c) , "July 14, 1986, for HSWA tanks, and March 15, 1991, for non-HSWA tanks, must conduct this assessment within 12 months after the date that the waste becomes a state regulated hazardous waste" is substituted for "July 14, 1986, must conduct this assessment within 12 months after the date that the waste becomes a hazardous waste".

(12) In 40 CFR 264.193(a) (2) , pertaining to the compliance date for providing secondary containment for tanks, "within two years after January 12, 1987, for HSWA tanks, and within two years after March 15, 1991, for non-HSWA tanks" is substituted for "within two years after January 12, 1987".

(13) In 40 CFR 264.193(a) (3) , pertaining to the compliance date for providing secondary containment for tanks, "within two years after January 12, 1987, for HSWA tanks, and within two years after March 15, 1991, for non-HSWA tanks" is substituted for "within two years after January 12, 1987".

(14) In 40 CFR 264.193(a) (4) , "within eight years after January 12, 1987, for HSWA tanks, and within eight years after March 15, 1991, for non-HSWA tanks" is substituted for "within eight years of January 12, 1987"; and "within two years after January 12, 1991," is substituted for "within two years after January 12, 1987".

(15) In 40 CFR 264.193(a) (5) , "January 12, 1987, for HSWA tanks, and March 15, 1991, for non-HSWA tanks, within the time intervals required in paragraphs (a) (1) through (a) (4) of this section, except that the date that a material becomes a state regulated hazardous waste must be used in place of January 12, 1987, for HSWA tanks, and March 15, 1991, for non-HSWA tanks." is substituted for "January 12, 1987, within the time intervals required in paragraphs (a) (1) through (a) (4) of this section, except that the date that a material becomes a hazardous waste must be used in place of January 12, 1987."

(16) In 40 CFR 264.221(e) (2) (i) (B) , 264.301(e) (2) (i) (B) , and 264.314(f) (2) , pertaining to the definition of the term "underground source of drinking water", "40 CFR 270.2" is substituted for "144.3 of this chapter".

(17) In 40 CFR 264.221(e) (2) (i) (C) and 264.301(e) (2) (i) (C) , pertaining to design and operating requirements for surface impoundments, "final state permits under Title 17, chapter 53, subchapter 12" is substituted for "permits under RCRA Section 3005(c) " and "permits under RCRA 3005(c) ", respectively. All language referring to permitting under RCRA section 3005 or 3005(c) found in 40 CFR 264, incorporated by reference in ARM 17.53.801(1) , is also replaced with "final state permits under subchapter 12".

(18) 40 CFR 264.301(l) , pertaining to design and operating requirements for landfills, is not adopted and incorporated by reference.

(19) In 40 CFR 264.316(b) , pertaining to lab packs, "(49 CFR Part 178) " is substituted for "(49 CFR Parts 178 and 179) ".

(20) In 40 CFR 264.570(a) , pertaining to drip pads, "December 6, 1990 for HSWA drop pads, and September 25, 1992 for non-HSWA drip pads" is substituted for "December 6, 1990".

(21) In 40 CFR 264.570(a) , "December 24, 1992 for HSWA drip pads, and September 25, 1992 for non-HSWA drip pads" is substituted for "December 24, 1992".

(22) In 40 CFR 264.1030(c) , "40 CFR 124.5" is substituted for "40 CFR 124.15".

(23) In 40 CFR 264.1050(c) , "40 CFR 124.5" is substituted for "40 CFR 124.15".

(24) In 40 CFR 264.1080(c) , "40 CFR 124.5" is substituted for "40 CFR 124.15".

(25) In 40 CFR 264.1082(c) (4) (ii) , pertaining to treated organic hazardous constituents in waste, the second occurrence of "EPA" is retained.

(a) the EPA identification number, name, and address of the facility;

(b) the calendar year covered by the report;

(c) for off-site facilities, the EPA identification number of each hazardous waste generator from which the facility received a hazardous waste during the year. For imported shipments, the report must state the name and address of the foreign generator;

(d) a description and the quantity of each hazardous waste the facility received during the year. For off-site facilities, this information must be listed by EPA identification number of each generator;

(e) the method of treatment, storage and disposal for each hazardous waste;

(f) the most recent cost estimate for:

(i) closure under 40 CFR 264.142;

(ii) post-closure for disposal facilities under 40 CFR 264.144; and

(iii) corrective action under 40 CFR 264.101 and the applicable Montana hazardous waste permit;

(g) for generators who treat, store, or dispose of hazardous waste on-site, a description of the efforts undertaken during the year to reduce the volume and toxicity of hazardous waste generated;

(h) for generators who treat, store, or dispose of hazardous waste on-site, a description of the changes in volume and toxicity of hazardous waste actually achieved during the year in comparison to previous years; and

(i) a certification made in accordance with 40 CFR 270.11 and signed and dated by the owner or operator of the facility or an authorized representative.

(1) In 40 CFR 265.1(a) , pertaining to the scope of permits, "state" is substituted for "national".

(2) In 40 CFR 265.1(b) , pertaining to the scope of permits, "subchapter 12, the state permitting program" is substituted for "section 3005 of RCRA" in both places where it appears.

(3) 40 CFR 265.1(c)(4) , pertaining to the scope of permits, is not adopted and incorporated by reference.

(4) The requirements in 40 CFR 265.1(c)(5) are replaced with:  "The standards set forth in this subchapter do not apply to owners or operators of solid waste management systems licensed by the department pursuant to ARM Title 17, chapter 50, subchapter 5, if the only hazardous waste the facility treats, stores, or disposes of is excluded from regulation by the requirements for very small quantity generators in 40 CFR 262.14, as incorporated by reference in ARM 17.53.501(1)."

(5) In 40 CFR 265.12(a), pertaining to required notices, the references to "EPA" and "regional administrator" are retained.

(6)  In 40 CFR 265.71, relating to the use of the manifest system, references to EPA are retained.

(7) ARM 17.53.903 is substituted for 40 CFR 265.75, pertaining to biennial reports, and all references to "biennial report" in 40 CFR 265 are replaced with "annual report".

(8) In 40 CFR 265.143(g) and 265.145(g) , pertaining to financial assurance and cost estimates for closure and post-closure, the language "If the facilities covered by the mechanism are in more than one state, identical evidence of financial assurance must be submitted to and maintained by the director and submitted to the director of the environmental agency in each of the states within which the other facilities are located. If a facility is located in an unauthorized state, the evidence must be submitted to the appropriate regional administrator." is substituted for "If the facilities covered by the mechanism are in more than one region, identical evidence of financial assurance must be submitted to and maintained with the regional administrators of all such regions."

(9) 40 CFR 265.149 and 265.150, pertaining to use of state required mechanisms and state assumption of responsibility, are not adopted and incorporated by reference.

(10) In 40 CFR 265.191(a) , pertaining to the compliance date for providing tank integrity assessments, "January 12, 1988, for HSWA tanks, and March 15, 1991, for non-HSWA tanks" is substituted for "January 12, 1988".

(11) In 40 CFR 265.191(c) , pertaining to the compliance date for providing tank integrity assessments, "July 14, 1986, for HSWA tanks, and March 15, 1991, for non-HSWA tanks, must conduct this assessment within 12 months after the date that the waste becomes a state regulated hazardous waste" is substituted for "July 14, 1986, must conduct this assessment within 12 months after the date that the waste becomes a hazardous waste".

(12) In 40 CFR 265.193(a) (2) , pertaining to the compliance date for providing secondary containment for tanks, "within two years after January 12, 1987, for HSWA tanks, and within two years after March 15, 1991, for non-HSWA tanks" is substituted for "within two years after January 12, 1987".

(13) In 40 CFR 265.193(a) (3) , pertaining to the compliance date for providing secondary containment for tanks, "within two years after January 12, 1987, for HSWA tanks, and within two years after March 15, 1991, for non-HSWA tanks" is substituted for "within two years after January 12, 1987".

(14) In 40 CFR 265.193(a) (4) , "within eight years after January 12, 1987, for HSWA tanks, and within eight years after March 15, 1991, for non-HSWA tanks" is substituted for "within eight years of January 12, 1987"; and "within two years after January 12, 1991" is substituted for "within two years of January 12, 1987".

(15) In 40 CFR 265.193(a) (5) , "January 12, 1987, for HSWA tanks, and March 15, 1991, for non-HSWA tanks, within the time intervals required in paragraphs (a) (1) through (a) (4) of this section, except that the date that a material becomes a state regulated hazardous waste must be used in place of January 12, 1987, for HSWA tanks, and March 15, 1991, for non-HSWA tanks." is substituted for "January 12, 1987, within the time intervals required in paragraphs (a) (1) through (a) (4) of this section, except that the date that a material becomes a hazardous waste must be used in place of January 12, 1987".

(16) In 40 CFR 265.221(d) (2) (i) (C) and 265.301(d) (2) (i) (C) , "Title 17, chapter 53, subchapter 12, the state permitting program" is substituted for "RCRA Section 3005(c) ". All references to RCRA section 3005 or 3005(c) concerning permitting in 40 CFR 265, incorporated by reference at ARM 17.53.901(1) , also are replaced with "subchapter 12, the state permitting program".

(17) In 40 CFR 265.221(d) (2) (i) (B) , 265.301(d) (2) (i) (B) and 265.314(g) (2) , pertaining to the definition of the term "underground source of drinking water", "40 CFR 270.2" is substituted for "144.3 of this chapter".

(18) In 40 CFR 265.316(b) , pertaining to lab packs, "(49 CFR Part 178) " is substituted for "(49 CFR Parts 178 and 179) ".

(19) 40 CFR 265, subpart R, pertaining to underground injection, is not adopted and incorporated by reference. Instead, interim status facilities that dispose of hazardous waste by underground injection are subject to the requirements in ARM 17.53.102(3) .

(20) In 40 CFR 265.440(a), pertaining to drip pads, "December 6, 1990 for HSWA drip pads, and September 25, 1992 for non-HSWA drip pads" is substituted for "December 6, 1990".

(21) In 40 CFR 265.440(a), "December 24, 1992 for HSWA drip pads, and September 25, 1992 for non-HSWA drip pads" is substituted for "December 24, 1992".

(22) In 40 CFR 265.1080(c) (1) and (2), "40 CFR 124.5" is substituted for "40 CFR 124.15".

(23) In 40 CFR 265.1083(c) (4) (ii) , pertaining to treated organic hazardous constituents in waste, the second occurrence of "EPA" is retained.

(a) the EPA identification number, name, and address of the facility;

(b) the calendar year covered by the report;

(c) for off-site facilities, the EPA identification number of each hazardous waste generator from which the facility received a hazardous waste during the year. For imported shipments, the report must give the name and address of the foreign generator;

(d) a description and the quantity of each hazardous waste the facility received during the year. For off-site facilities, this information must be listed by EPA identification number of each generator;

(e) the method of treatment, storage, or disposal for each hazardous waste;

(f) monitoring data required under 40 CFR 265.94(a) (2) (ii) and (iii) , and (b) (2) , where required;

(g) the most recent closure cost estimate under 40 CFR 265.142, and for disposal facilities the most recent post-closure cost estimate under 40 CFR 265.144;

(h) for generators who treat, store, or dispose of hazardous waste on-site, a description of the efforts undertaken during the year to reduce the volume and toxicity of waste generated;

(i) for generators who treat, store, or dispose of hazardous waste on-site, a description of the changes in volume and toxicity of waste actually achieved during the year in comparison to previous years; and

(j) a certification made in accordance with 40 CFR 270.11 and signed and dated by the owner or operator of the facility or an authorized representative.

(1) Additional hazardous wastes or wastes that may not be burned in a boiler or an industrial furnace are described in ARM 17.53.1003.

(2) In addition to the requirements in 40 CFR 266.102 for burners of hazardous waste in boilers or industrial furnaces, ARM 17.53.1004 contains a requirement to perform background and periodic testing of soils and water.

(3) 40 CFR 266.102(d) (3) and 40 CFR 266.103, pertaining to permits and interim status standards for burners, are not adopted and incorporated by reference. Montana does not allow interim status for boilers and industrial furnaces. In addition, the following language is exempted from the incorporation by reference of 40 CFR 266 in ARM 17.53.1001(1) to reflect that Montana does not allow interim status for boilers and industrial furnaces:

(a) in 40 CFR 266.100(a) , "under interim status or";

(b) in 40 CFR 266.100(e) , "or the interim status standards of §266.103";

(c) in 40 CFR 266.102(a) , "and not operating under interim status";

(d) in 40 CFR 266.102(b) (1) , "or, for facilities operating under interim status standards of this subpart, as a portion of the trial burn plan that may be submitted before the part B application under provisions of 40 CFR 270.66(g) of this chapter" and "not operating under the interim status standards";

(e) in 40 CFR 266.102(d) (4) , "new" and "(those boilers and industrial furnaces not operating under the interim status standards) ";

(f) in 40 CFR 266.104(e) (1) , 266.106(c) (3) , 266.106(d) (6) and 266.107(d) , "(for new facilities or an interim status facility applying for a permit) , or compliance test (for interim status facilities) "; and

(g) in 40 CFR 266.106(c) (5) , "or interim status controls".

(4) 40 CFR 266.102(e) (3) (ii) , pertaining to the exemption from the particulate standards for a boiler or industrial furnace, is not adopted and incorporated by reference. The following requirement is substituted for 40 CFR 266.102(e) (3) (ii) :  "In conjunction with the permit application, the department may require the owner or operator of a boiler or an industrial furnace to submit a plan that will require a cessation of the burning of hazardous waste during prolonged inversion conditions. The department shall consider the proximity of the boiler or industrial furnace to populated areas when determining the need for such a plan. The plan, if determined to be necessary by the department, must include an ambient air monitoring program to establish the conditions under which the burning will be halted and under which it may then be resumed, unless the owner or operator provides an alternate method for determining such conditions."

(5) In 40 CFR 266.102(e) (8) (i) (C) , pertaining to specifications for monitoring and inspections for a boiler or industrial furnace burning hazardous waste, the following is added at the end of paragraph (C) :  "Stack emissions must be sampled and tested, at the owner or operator's expense, on at least an annual basis. The constituents to be tested and the conditions of the testing are established during the permit application or permit review process. The results must be compared to conditions established during the trial burn. Test results must be submitted to the department in accordance with the schedule specified in the permit."

(6) 40 CFR 266.104(a) (3) through (5) , pertaining to standards to control organic emissions, is not adopted and incorporated by reference. Refer to additional information in ARM 17.53.1003.

(7) 40 CFR 266.105(b) , pertaining to standards to control particulate matter, is not adopted and incorporated by reference.

(8) 40 CFR 266.109 and 266.110, pertaining to low risk waste exemption and waiver of destruction and removal efficiency (DRE) trial burn for boilers, are not adopted and incorporated by reference.

(9) In 40 CFR 266, Subpart P, relating to hazardous waste pharmaceuticals, all references to "biennial report" are replaced with "annual report" and all references to "biennial reporting" are replaced with "annual reporting."

(2) Soils must be sampled and analyzed for total metals and pH, or other constituents as determined by the department, from surface locations that are predominantly downwind of the stack or facility.   The number of samples and locations is determined during the permit application or permit review process.   Background samples must be tested prior to burning hazardous waste.   Soil samples must be taken on an annual basis.   The results of the annual sampling must be compared to the background results.

(3) Surface waters must be sampled and analyzed for total metals and pH, or other constituents as determined by the department, from surface locations that are predominantly downstream from the stack or facility.   This requirement does not apply if there are no streams, rivers, lakes or wetlands within 1 mile of the boiler or industrial furnace.   The number of samples and locations is determined during the permit application or permit review process.   Background samples must be tested prior to burning hazardous waste.   Surface water samples must be taken on an annual basis.   The results of the annual sampling must be compared to the background results.

(4) Groundwater from the uppermost aquifer underlying the property must be sampled and analyzed for total metals and pH, or other constituents as determined by the department, if it is determined during the permit application or permit review process that aquifer testing is warranted.   This determination must be made by the department based, in part, on review of the Part B application regarding known geologic and hydrogeologic conditions underlying the site, including use of the aquifer.   If required, the number of samples and locations is determined during the permit review process.   Background samples must be tested prior to burning hazardous waste.   Groundwater must be sampled on an annual basis.   The results of the annual sampling must be compared to the background results.

(5) Sampling and analysis must be in conformance with procedures described in Test Methods for Evaluating Solid Waste, Physical/Chemical Methods.   The statistical methodology is the same employed for Bevill residue determinations as described in 40 CFR 266, Appendix IX.   That is, the annual samples (taken after hazardous wastes are burned) must be compared to background samples for the constituents of concern.   The 95% confidence interval in relation to the mean of the background levels must be used in the comparison of the annual and background samples.   The concentration of a constituent in the annual sample is not considered to be significantly higher than in the background sample if the concentration does not exceed the upper limit of the 95% confidence interval in relation to the mean that was established for the background level.

(6) The results of the sampling and analysis program for soils, surface waters and aquifers are evaluated at the time of permit application or permit review. The department shall use the results to evaluate the possibility of interference from sources other than the boiler or industrial furnace.   If the department determines that statistically increased contamination from the facility is apparent, then the department may require additional testing, restrict the feed rates of certain hazardous wastes, deny reissuance of the permit or revoke the permit.

(a) case-by-case extensions of federal effective dates, pursuant to 40 CFR 268.5;

(b) allowance of land disposal of a waste prohibited under 40 CFR 268, subpart C, pursuant to a petition filed under 40 CFR 268.6;

(c) approval of alternate treatment methods, pursuant to 40 CFR 268.42(b) ; and

(d) variance from a treatment standard, pursuant to 40 CFR 268.44.

(2) For the reason described in (1) , the following federal regulations are not adopted and incorporated by reference:

(a) 40 CFR 268.5;

(b) 40 CFR 268.6;

(c) 40 CFR 268.42(b) ; and

(d) 40 CFR 268.44.

(3) "Hazardous wastes for which land disposal prohibitions or treatment standards have not been promulgated in 40 CFR 268, subparts C or D, as incorporated by reference in ARM 17.53.1001(1) ;" is substituted for 40 CFR 268.1(e) (3) , pertaining to hazardous waste not subject to land disposal restrictions.

(4) In 40 CFR 268.9(d) , pertaining to special rules regarding wastes that exhibit a characteristic, "department" is substituted for "EPA Region or authorized state".

(5) In 40 CFR 268.40, pertaining to treatment standards, the term "Administrator" is retained.

(1) Except as provided otherwise in ARM 17.53.1202, the department adopts and incorporates by reference 40 CFR 270, pertaining to federal procedures for a state administered permit program.

(2) Except as provided otherwise in ARM 17.53.1202, the department adopts and incorporates by reference 40 CFR 124.3(a), 124.5(a), (c), and (d), 124.6(a), (d), and (e), 124.7, 124.8, 124.10 through 124.12, 124.14 through 124.16, 124.17(a) and (c), 124.20, 124.31 through 124.33, and 124.200 through 124.214, pertaining to procedures for decisionmaking in issuing, modifying, revoking and reissuing, or terminating RCRA permits.

(a) For purposes of the adoption and incorporation by reference of portions of 40 CFR 124, the department adopts and incorporates by reference the following definitions in 40 CFR 124.2:

(i) draft permit;

(ii) facility or activity;

(iii) owner or operator;

(iv) permit; and

(v) person.

(1) In 40 CFR 124.5 and 124.16, pertaining to modifying, revoking, reissuing, terminating, or staying permits, all references to "Environmental Appeals Board" are replaced with "Montana Board of Environmental Review."

(2) "This rule establishes provisions for the state hazardous waste program pursuant to Title 75, chapter 10, part 4, MCA." is substituted for 40 CFR 270.1(a), pertaining to RCRA regulation coverage.

(3) 40 CFR 270.1(b), pertaining to the overview of the RCRA permit program, is not adopted and incorporated by reference.

(4) 40 CFR 270.3, pertaining to federal laws that apply to RCRA permits, is not adopted and incorporated by reference.

(5) 40 CFR 270.5, pertaining to noncompliance and program reporting by the department, is not adopted and incorporated by reference.

(6) The following provisions are added as paragraphs (l) through (n) to the general application requirements in 40 CFR 270.10(a) through (k):

"(l) All applications must be accompanied by the appropriate fees as provided in these rules.

(m) Any application submitted to EPA and deemed by EPA to be complete shall be considered to be complete by the department.

(n) The requirements of this chapter must be coordinated with but do not alter the applicable requirements for new facilities set forth in Title 75, chapter 20, MCA, Montana Major Facility Siting Act."

(7) ARM 17.53.208 is substituted for 40 CFR 270.12, pertaining to confidentiality of information.

(8) 40 CFR 270.14(b)(18), pertaining to proof of coverage by state financial mechanism, is not adopted and incorporated by reference.

(9) 40 CFR 270.14(b)(20), pertaining to permit application materials needed to comply with federal laws that apply to RCRA permits, is not adopted and incorporated by reference.

(10) In 40 CFR 270.22(a)(1)(i), pertaining to specific part B information requirements for boilers and industrial furnaces, "provisions of sections 266.104(a)(1), 266.104(a)(2), and 266.105 through 107 of this chapter, and paragraphs (a)(3) and (a)(5) of this section" is substituted for "provisions of sections 266.104 through 107 of this chapter, and paragraphs (a)(3) through (a)(5) of this section".

(11) 40 CFR 270.22(a)(1)(ii), (a)(2), (a)(4), and (a)(6), pertaining to trial burns, are not adopted and incorporated by reference.

(12) "An annual report must be submitted covering facility activities. (See ARM 17.53.803)" is substituted for 40 CFR 270.30(l)(9), pertaining to biennial reports.

(13) In 40 CFR 270.32(a), pertaining to case-by-case permit conditions, references to "alternate schedules of compliance" and "considerations under federal law" are applicable only to federally issued permits.

(14) The following is substituted for 40 CFR 270.32(c), pertaining to "applicable requirements":

"(a) An applicable requirement is a statutory or regulatory requirement that takes effect prior to final administrative disposition of a permit. An applicable requirement is also any requirement that takes effect prior to the modification or revocation and reissuance of a permit, to the extent allowed under 40 CFR 270.41.

(b) The department may reopen the comment period using the procedures at 40 CFR 124.14, incorporated by reference at ARM 17.53.1201(2), if new requirements become effective, including any interim final regulations, during the permitting process that:

(i) precede modification, or revocation and reissuance, of a permit to the extent allowed in this rule; and

(ii) are of sufficient magnitude to make additional proceedings desirable."

(15) In 40 CFR 270.41(a)(5), pertaining to cause for permit modification, ", boiler, or industrial furnace" is added after "land disposal facility".

(16) In 40 CFR 270.50(d), pertaining to duration of permits, ", boiler, or industrial furnace" is added after "land disposal facility".

(17) 40 CFR 270.60(a) and (b), pertaining to permits by rule for ocean disposal barges and injection wells, are not adopted and incorporated by reference.

(18) The following is added to the regulations concerning publicly owned treatment works in 40 CFR 270.60(c)(3): "ARM 17.53.112, Facility Permit Fees: Application, Renewal, Modification, and Maintenance Fees."

(19) 40 CFR 270.64, pertaining to interim permits for injection wells, is not adopted and incorporated by reference. Instead, injection wells used for hazardous waste disposal are subject to the requirements of ARM 17.53.102(3).

(20) 40 CFR 270.66(g), pertaining to interim status boilers and industrial furnaces, is not adopted and incorporated by reference.

(21) The following is substituted for 40 CFR 270.275(d), pertaining to supporting information that must be submitted to the department: "Information that allows the department to carry out its obligations under Title 75, chapter 10, part 4, MCA, and ARM Title 17, chapter 53."

(1) ARM 17.53.1303 contains the requirements for treatment of electric lamps.

(2) In 40 CFR 273.18(g) , 273.38(g) , and 273.61(c) , pertaining to off-site shipments, "department" is substituted for "appropriate regional EPA office" and "EPA regional office".

(3) 40 CFR 273.80, pertaining to petitions to add a hazardous waste or a category of hazardous wastes to the standards for universal waste management in 40 CFR 273, is not adopted and incorporated by reference.

(1) A handler of universal waste, as defined in 40 CFR 273.9, may treat waste lamps on-site by crushing or intentional breaking, only if:

(a) the crushing or breaking is conducted in the final accumulation container;

(b) the operation and maintenance of the crushing or breaking unit are performed in accordance with written procedures developed by the manufacturer of the equipment;

(c) the manufacturer's operating and maintenance instructions are available for inspection;

(d) an operation and maintenance log book, or similar documentation, is maintained and available for inspection;

(e) all crushing, breaking, handling, and storage of treated lamps complies with the mercury limits specified in 29 CFR 1910.1000; and

(f) the management of lamps complies with the requirements of 40 CFR 273.13(d) and 273.33(d).

(1) 40 CFR 279.82(b) , pertaining to the use of used oil as a dust suppressant, is not adopted and incorporated by reference.

(2) In 40 CFR 267.56(c)(2), pertaining to emergency notification, "He must immediately notify either the Montana Disaster and Emergency Services Division (406-324-4777), or" is substituted for "He must immediately notify either the government official designated as the on-scene coordinator for that geographical area, or."

(3) In 40 CFR 267.75, pertaining to biennial reports, all references to "biennial report" are replaced with "annual report."

(4) In 40 CFR 267.75(a), pertaining to biennial reports, the sentence "The biennial report must be submitted on EPA form 8700-13B." is not adopted or incorporated by reference.

(5) 40 CFR 267.150, pertaining to financial assurance, is not adopted or incorporated by reference.

�