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| Montana Administrative Register Notice 17-433 | No. 3 02/09/2024 | |
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BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On October 20, 2023, the Department of Environmental Quality published MAR Notice No. 17-433, pertaining to the public hearing on the proposed adoption, and amendment of the above-stated rules at page 1228 of the 2023 Montana Administrative Register, Issue Number 20.
2. The department has adopted NEW RULE I (17.30.1034) and NEW RULE II (17.30.1035) exactly as proposed.
3. The department has amended the following rules exactly as proposed: ARM 17.30.1005, 17.30.1010, 17.30.1033, 17.30.1040, and 17.30.1041.
4. The department has amended the following rules as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:
17.30.1001 DEFINITIONS For the purposes of this subchapter, unless the context clearly indicates otherwise, the following terms have the meanings indicated below and are supplemental to the definitions in 75-5-103, MCA:
(2) remains as proposed, but is renumbered (1).
(5) through (24) remain as proposed, but are renumbered (2) through (21).
17.30.1022 EXCLUSIONS FROM PERMIT REQUIREMENTS (1) In addition to the permit exclusions identified in 75-5-401, MCA, the following activities or operations are not subject to the permit requirements of this subchapter: (a) through (c) remain as proposed. (d) public sewage systems that are reviewed and approved by the department after March 1, 2024, under Title 75, chapter 6, MCA, and ARM 17.38.101 under a common design plan or serving a common development that (e) through (h) remain as proposed. (2) (3) remains as proposed.
AUTH: 75-5-401, MCA
17.30.1023 PERMIT APPLICATIONS (1) through (3) remain as proposed. (4) All applications for an MGWPCS permit must be submitted on forms provided by the department and must include the following: (a) remains as proposed. (b) location and description of operation of treatment works and disposal systems; (c) through (6) remain as proposed.
AUTH: 75-5-401, MCA IMP: 75-5-401, MCA
17.30.1024 REVIEW PROCEDURES (1) through (5) remain as proposed. (6) The department shall provide a period of not less than 30 days following the date of the public notice during which time any person may submit written views or request a public hearing on the tentative determination. Any request for a public hearing must indicate the interest of the party filing the request and the reasons why a hearing is warranted. (7) The department may hold a hearing on its own initiative or when it determines good cause exists to hold such a hearing upon request of any person. Public notice of a public hearing on a tentative determination must be given in accordance with ARM 17.30.1040. (8) If a public hearing is not held pursuant to (6), the department shall, within 30 days after termination of the comment period provided for in (5), make a final determination on issuance or denial of an MGWPCS permit. All written comments submitted during the 30-day comment period must be retained by the department and considered in the final determination. (9) If a public hearing is held on the tentative determination, the department shall make its final determination on the MGWPCS permit application within 60 days following the hearing. All comments recorded during the public hearing and written comments submitted during the 30-day comment period required in (5) must be retained by the department and considered in the final determination. (10) After making the final determination on an MGWPCS permit application the department shall issue an MGWPCS permit or give written notice to the applicant of the department's decision to deny, including notice to the applicant of its right to appeal the denial or final determination to the board.
AUTH: 75-5-401, MCA IMP: 75-5-401, MCA
5. The department has thoroughly considered the comments received. A summary of the comments received and the department's responses are as follows:
COMMENT 1: A commenter stated that the proposed rules will directly impact their business. They expressed concern that they will no longer be "called an advanced treatment system" under the proposed rule definitions. The commenter stated, "this will impact my marketing material" and damage business.
RESPONSE 1: The department is deleting the proposed definitions of "advanced treatment system" and "conventional treatment system" from the final amended definitions in ARM 17.30.1001 pertaining to Montana Ground Water Pollution Control System (MGWPCS) permits.
COMMENT 2: A commenter stated: "There is no requirement for [nondegradation review]. So no [nondegradation] evaluations, so no groundwater study, no hydraulic conductivity, no downgradient down below the mixing zone, no significance determination at all up to 16,000 gallons per day. They will not have to be subjected to any [nondegradation] monitoring at all. There will be no significance determination because it will just be assumed that they meet it."
RESPONSE 2: Public sewage systems that meet the exclusion in ARM 17.30.1022(1)(d) and are, therefore, not subject to MGWPCS permit requirements will undergo nondegradation review pursuant to Title 75, chapter 6, MCA, and rules adopted to implement that chapter.
COMMENT 3: A commenter stated: "So what we're doing is we're taking systems that were designed for something else, and we're increasing the potential risk dramatically by going to 16,000 gallons a day essentially with no review at all. It's absurd to think that you would take a system that's been tested for a couple of homes, three, four, five homes maybe, maybe fewer, and approve it wide scale for 16,000 gallons per day with an annual sample."
RESPONSE 3: See the Response to Comment 2. Each "public sewage system," as defined in ARM 17.38.101, that discharges to the subsurface is required to undergo review and approval by the department under Circular DEQ-4. Depending on the treatment technology proposed, elements of the system may also require department review under Circular DEQ-2. These proposed rules will only change the MGWPCS permit exclusion threshold, which reduces the nitrogen load a public sewage system may discharge before triggering permit requirements.
COMMENT 4: A commenter asked if the one pound of total nitrogen per day load is a continuum or a discrete number.
RESPONSE 4: The department will determine the aggregate daily total nitrogen load discharged by a proposed public sewage system using flow and concentration values provided by the applicant. This is a continuum approach, meaning the aggregate load is a sum of many parts rather than tiers based on proposed treatment systems or treatment categories. Additionally, upon each permit renewal, the department recalculates effluent limitations and reconsiders permit conditions based on updated effluent monitoring and ground water ambient data.
COMMENT 5: The department received 21 comments stating that the department should not add language allowing the practice of "administratively continuing" discharge permits that have expired. The commenters suggested that groundwater pollution discharge permits need to have an expiration date so they can be reevaluated in light of changing environmental conditions and continue to include public participation.
RESPONSE 5: The adoption of NEW RULE I (ARM 17.30.1034) codifies the department's practice of administratively continuing MGWPCS permits until the effective date of a new permit when the permittee submits a timely application for a new permit and, through no fault of the permittee, the permit is not issued by the department on or before the expiration date of the previous permit. The language in ARM 17.30.1034 is verbatim from ARM 17.30.1313, which provides for administrative continuation of Montana Pollution Discharge Elimination System (MPDES) permits. A MGWPCS permit may be issued for terms up to 10 years under ARM 17.30.1032. However, the department issues MGWPCS permits with a five-year term to be more responsive to changing environmental conditions. Permits are reevaluated upon each renewal application. Permits contain special conditions requiring collection and submittal of updated information, which the department uses in characterizing the strength and volume of the effluent, the receiving ground water, and any potential environmental impacts related to the discharge.
COMMENT 6: The department received 23 comments stating that the department needs to address the proposed new definition of "cumulative." Commenters noted that the department's definition of "cumulative" is not consistent with the Montana Water Quality Act (MWQA), the Montana Environmental Policy Act (MEPA), or the federal Clean Water Act, and at least one commenter stated that the definition does not meet the MWQA mandate of ensuring the protection of high-quality water. The commenters stated that they supported the intent to close the loophole in the groundwater discharge requirements, but suggested that the department consider a definition that both addresses the loophole of phased developments that skirt groundwater permitting regulations, while still allowing for a robust, cumulative impacts analysis to take place. Commenters noted that this would be the department's first attempt to define the term "cumulative" in law or rule. They recommended that the department utilize the term "aggregate" to avoid confusion with the term "cumulative" in other contexts, and a replacement of such terms would provide the department with the necessary tools to address the loophole of phased developments, while avoiding a contradictory, confusing, and unworkable definition of "cumulative."
RESPONSE 6: The department agrees that the use of the term "cumulative" in ARM Title 17, chapter 30, subchapter 10 may lead to confusion with the cumulative impacts analysis required by nondegradation review under ARM Title 17, chapter 30, subchapter 7 and with consideration of cumulative impacts under MEPA. In light of these concerns, the department is deleting the proposed definition of "cumulative" from ARM 17.30.1001.
COMMENT 7: The department received 22 comments stating that the department needs to address the proposed definition of "wastewater." A commenter stated that the current definition will continue the flawed approach of attempting to shoehorn groundwater discharge permitting rules into the open-ended and less-stringent permitting process under the Public Water Supply, Distribution, and Treatment Act as opposed to the separate requirements under MWQA, which are more stringent and have a broader scope. The commenters stated that, instead of narrowing the definition and attempting to relegate groundwater discharge permitting to consider evaluations under the Treatment Act, any rule amendments should include a suitably broad definition of "wastewater" that unambiguously ensures equal agency consideration of pollutant discharges to state waters under the MWQA.
RESPONSE 7: It is the intent of these rule amendments to incorporate the established definition of "wastewater" in ARM Title 17, chapter 38 within ARM Title 17, chapter 30, subchapter 10 to ensure a consistent application of the term within the department. This is appropriate since systems permitted under the MGWPCS permit rules are also reviewed and approved under engineering rules in ARM Title 17, chapter 38. The intent of the revision is to ensure equal agency consideration of discharges and to provide consistency for the public. The definition of "wastewater" in ARM 17.38.101, which will be incorporated in ARM 17.30.1001, is "sewage, industrial waste, other wastes, or any combination thereof." This is a broad definition that includes any conceivable liquid waste stream.
COMMENT 8: The department received 21 comments objecting to the proposed amendment of ARM 17.30.1040 to reduce the time period for public notice of a public hearing from at least 30 days to just 14 days. The commenters stated that the proposed amendment is contrary to the Montana Environmental Policy Act, which requires at least 30 days' notice and applies to groundwater pollution discharge permitting decisions. The commenters noted that weakening and lessening public participation on groundwater pollution discharges fundamentally undermines the explicit water resource protection imperatives of the Water Quality Act as guaranteed by Montanans' constitutional right to a clean and healthful environment. The commenters suggested that the department should be providing transparent measures for allowing extensions to comment periods, not shortening the baseline timetables for public participation.
RESPONSE 8: The department disagrees that eliminating the 30-day minimum period for notice of a public hearing held pursuant to ARM Title 17, chapter 30, subchapter 10 will weaken and lessen public participation in issues related to proposed MGWPCS permits. The department believes the rule amendment will allow the department to be more responsive to local concerns, especially when the public is made aware of the tentative decision during the 30-day public notice period and requests a hearing. The rules governing public notice of hearings on environmental analysis under MEPA (ARM 17.4.636) do not include a 30-day minimum notice period.
COMMENT 9: The department received two comments stating that in the amendment to ARM 17.30.1001, the term "cumulative" is used in various places and throughout the department's regulatory requirements in many other rules. The commenters suggested to use "cumulative nitrogen load from sewage" or some other terminology to distinguish it from other regulatory scheme's use of the term "cumulative." The commenters also wanted the department to be aware that the definition of "cumulative" is dependent on the terms "common design plan" and "common development" which are not defined in the Water Quality Act laws or rules and that the department should consider adding definitions of those terms.
RESPONSE 9: See Responses to Comments 4 and 6. The department believes the expressions "common design plan" and "common development" are sufficiently well understood by the department and the public. To determine whether a permit exclusion is appropriate, the department will assess the aggregate total nitrogen load by adding each contributing load from the public sewage systems reviewed and approved by the department under a common design plan or that serve a common development. The department will calculate the aggregate daily total nitrogen load discharged by a proposed public sewage system using flow and concentration values provided by the permit applicant.
COMMENT 10: The department received two comments stating that the definition of "advanced treatment system" would seem more appropriately referred to as "advanced sewage treatment system," because not all ground water permits include discharge of treated sewage. Similarly, the commenters proposed that the definition of "conventional treatment system" should be referred to as "conventional sewage treatment system."
RESPONSE 10: See Response to Comment 1. The department is removing the proposed definitions of "advanced treatment system" and "conventional treatment system" from the final rule amendment.
COMMENT 11: The department received two comments stating that the department should consider adding the "list of interested persons" maintained by the department (as described in paragraph 7 on page 1239 of the notice) to the public notice recipients listed in ARM 17.30.1040(1) to ensure appropriate public notice.
RESPONSE 11: The department appreciates the suggestion, but the list of persons and parties interested in the department rulemaking spans many sectors from air quality to alternative energy. Persons who have subscribed to notices of the department rulemaking are sufficiently engaged to request notification of a tentative determination pursuant to ARM 17.30.1040(1)(c).
COMMENT 12: The department received two comments stating that existing rules ARM 17.30.1024(5) through (9) should not be deleted. The commenters stated that the rules provide important timing requirements that allow predictability and progress for permittees, and, without those rules, permittees are not assured when, if ever, their permit applications will be acted upon by the department. The commenters stated that it is important to keep permitting decisions on track and not allow permits to stack up into a backlog (like MPDES permits), especially when many ground water permits are needed for housing projects. The commenters noted that timelines are crucial to managing development costs and assuring that a project is successful.
RESPONSE 12: The department will not make the proposed deletions to ARM 17.30.1024(5) through (9)—now (6) through (10). The department recognizes and agrees with the comments that these sections provide clarity to applicants and the public. The changes to ARM 17.30.1024(2) through (5) are adopted as proposed.
COMMENT 13: A commenter stated that the proposal to allow the department to administratively continue expired discharge permits represents significant backsliding on water quality protection. The commenter stated that the rule would effectively remove the public's right to participate in a major category of water quality discharge decisions, and it would abrogate the department responsibility to ensure that discharge permits continue to meet environmental goals and standards.
RESPONSE 13: See Response to Comment 5. The department follows the review and notice procedures in ARM 17.30.1024 and 17.30.1040 in renewing MGWPCS permits.
COMMENT 14: A commenter stated that the proposed rules mischaracterize the department's responsibility to appropriately evaluate cumulative impacts of groundwater discharge permits.
RESPONSE 14: See Responses to Comments 4 and 6. The proposed rules do not address cumulative impact evaluation conducted by the department under the Water Quality Act and under the Montana Environmental Policy Act. This proposed rulemaking has no effect on these requirements. In order to avoid confusion, the department will strike the word "cumulative" in the proposed amendments to ARM 17.30.1022(2) and replace it with the word "aggregate" in the final amended rule. The department will determine the aggregate daily total nitrogen load discharged by a proposed public sewage system using flow and concentration values provided in the permit application. The amendments are necessary to close a loophole and prevent dividing a wastewater source that otherwise would be subject to permit requirements into multiple smaller sources that individually do not exceed the permit requirement threshold.
COMMENT 15: The department received two comments stating that "changes to ARM 17.30.1041 are an appropriate acknowledgment of the state's jurisdiction; however, because some federal agencies may have legitimate interests in ground water issues, ARM 17.30.1040(1)(c) could be amended to include "any person or agency on request."
RESPONSE 15: The provision requiring distribution of information to "any state or federal agency requesting an opportunity to participate in the MGWPCS permit review process" remains unchanged in ARM 17.30.1041(1)(l), renumbered ARM 17.30.1041(1)(f) with these amendments .
COMMENT 16: The department received two comments stating the "amendment to ARM 17.30.1001 adding the term 'modification' seems to contradict ARM 17.30.1023(2) and is likely not necessary given that ARM 17.30.1023(2) defines a modification as one that 'may result in violation of existing permit conditions' and requires an application for the modification '180 days prior to the day on which it is desired to commence operation of the modified discharge.'"
RESPONSE 16: The addition of a definition of "modification" is necessary for consistent application of ARM 17.30.1022(1)(c), which provides an exception from the exclusion for certain public sewage systems from MGWPCS permit requirements if the operator of the system requests a modification after May 1, 1998, or if the department determines that operation of the system has caused a violation of a statute or rule administered by the department after May 1, 1998. The department has received numerous requests to determine permit requirements under this provision making definition of the term "modification" necessary to provide clarity to the department and the public.
COMMENT 17: A commenter stated that the addition of NEW RULE I is appropriate and provides consistency across the department's water permitting provisions. The commenter noted that NEW RULE I should be revised to align with terminology used in ARM 17.30.1033, referring to "reissued" permits instead of "new" permits and acknowledging that ARM 17.30.1033 provides authority to reissue permits.
RESPONSE 17: See Responses to Comments 4 and 5. The intent of NEW RULE I (ARM 17.30.1034) is to codify the department's practice of administratively continuing MGWPCS permits until the effective date of a new permit when the permittee submits a timely application for a new permit and, through no fault of the permittee, the permit is not issued by the department on or before the expiration date of the previous permit. Once the department re-evaluates a permit considering information supplied by the permittee in a renewal application and any updated effluent and receiving water information, the MGWPCS permit is re-issued and considered a "new" permit for an existing source.
COMMENT 18: A commenter stated that the proposed amendment to ARM 17.30.1022 makes a drastic cut to the exclusion limits. The commenter stated that the rule will set the load limit at 1 pound per day total nitrogen for the exclusion, but the previous exclusion based on daily volume provided exclusions for typical loads ranging from 1.3 to 2.5 pounds per day (assuming typical public sewage ranges between 30-60 pounds per day). The commenter suggested that the 1 pound per day total nitrogen exclusion limit should be deleted.
RESPONSE 18: The proposed change does not require more complex wastewater treatment. Proposed developments may continue to use traditional septic-system style treatment if that is the preferred technology. However, if a public sewage system discharges one pound or more per day total nitrogen, the exemption from MGWPCS permit requirements will not apply. The MGWPCS program is a water-quality protection program authorized by the Water Quality Act. Expressing the permit exclusion threshold in terms of a load limit on the constituent of concern (total nitrogen) rather than a sized-based proxy (flow rate) is appropriate given the nature of ground water flow, contaminant transport, and protection of human health and the drinking water designated use.
COMMENT 19: A commenter requested that the department take note of the deterioration of systems relating to TENORM waste disposal at the Oaks Disposal landfill near Lindsay, Montana. The commenter suggested that the department investigate whether there has been a landfill liner breach at this facility.
RESPONSE 19: The department acknowledges the comment, but notes that regulation of the Oaks Disposal special waste landfill in Lindsay, Montana is outside the scope of this rulemaking.
COMMENT 20: The department received two of the same comment stating NEW RULE II is also appropriate and provides consistency. The commenters suggested that it too should be adjusted to include terminology consistent with the ground water permitting rules, related to reissued permits.
RESPONSE 20: See Response to Comment 17. The intent of NEW RULE II (ARM 17.30.1035) is to establish a clear process for issuing MGWPCS permits. NEW RULE II is based on ARM 17.30.1375, which obligates interested persons to raise all reasonably ascertainable issues and arguments on a tentative department permit decision during the public comment period. The department considers information supplied by the permittee in a renewal application and any updated effluent and receiving water information; and, upon renewal or re-issuance of a MGWPCS permit, the reissued MGWPCS permit is considered a "new" permit for an existing source.
COMMENT 21: A commenter stated that it is not clear what information the department seeks from applicants by adding the term "operation" to ARM 17.30.1023(4)(b), and suggested the term "description" would be more appropriate.
RESPONSE 21: The department will modify the amendment of ARM 17.30.1023(4)(b) to add "location and description of operation of treatment works and disposal systems" to the list of information required from permit applicants in ARM 17.30.1023.
COMMENT 22: The department received the following comment: "We object to the proposed change of evaluating discharges in concentration form, to a mass load form. First, Nondegradation Policy relies upon evaluations of pollutant concentrations, and so too numeric nutrient criteria for downgradient surface waters remains best available science incorporating clear, conservative metrics for evaluating discharge potential for degradation and violations of water quality standards. Moving to a mass-based evaluation would, under the department's corollary new definitions of conventional and advanced treatment systems and based on its past practice, operate to create new wastewater discharger classes per se excluded from Nondegradation Review. This approach exceeds the department's discretion by exempting new categories of activities with the potential to cause or contribute to violations of water quality standards or cause degradation of high-quality water from otherwise mandatory evaluation under 75-5-303, MCA, and ARM 17.30.705 and 17.30.715. While the department can and should consider the aggregate pollutant discharges from a common plan of development in determining whether a permit is required, switching to a mass based approach will promote new exempt classes of discharges without monitoring, without knowledge of baseline water quality health, and without any enforcement or oversight by the department, and certainly will not promote a science-based approach to ensuring the protection and maintenance of high-quality waters or ensuring wastewater discharges from development do not cause or contribute to violations of water quality standards."
RESPONSE 22: See Responses to Comments 2, 3, and 18. Discharges have never been evaluated in concentration form for the purposes of determining permitting requirements under ARM 17.30.1022. The proposed change is from volume of wastewater flow to daily flux of the pollutant of concern based on load. When the department adopted the current rules in the 1990s, flow was a reasonable proxy for the amount of nitrogen in a discharge as there was less variability in treatment capability. It is more reasonable and appropriate to base the department's permit exclusion threshold explicitly on the amount of this pollutant in a proposed discharge. Nonsignificance and nondegradation analysis will still be compared against numeric criteria expressed as concentrations. No aspect of describing the permit requirement threshold in ARM 17.30.1022 as a mass per day affects those analyses. Concentration is a related function of mass and volume, and one is easily derived from the other. The department scientists regularly interchange between mass and volume depending on the needs of the analysis. Further, the department has a well-established record of using mass by unit time to describe and regulate discharges. One prominent example is a wasteload allocation within a total maximum daily load document. The proposed change does not create any new class of discharger. Under the longstanding current system, a subset of public sewage systems is excluded from permit requirements. Under the proposed change to the exclusion in ARM 17.30.1022, the amount of nitrogen potentially discharged by an excluded system is reduced.
COMMENT 23: A commenter objected to the department stopping the practice of informing sister federal agencies of its groundwater permitting practices. The commenter suggested that limiting the knowledge or opportunity of sister agencies to know about a proposal, review its contents, and provide unique feedback on how said proposal may affect resources, activities, or plans within its jurisdiction is short-sighted and represents a myopic approach to watershed management.
RESPONSE 23: See the Response to Comment 15.
COMMENT 24: A commenter stated that the department has an obligation to develop a regulatory framework that imposes testing and maintenance requirements and an approval process that is commensurate with the risk associated with a 7.5 mg/L TN treatment standard.
RESPONSE 24: The changes proposed in this rulemaking do not establish a 7.5 mg/L TN treatment standard. The exclusion from MGWPCS permitting requirements addressed in this rulemaking applies to public sewage systems, which are also subject to engineering and nondegradation review by the department.
/s/ Nicholas Whitaker /s/ Christopher Dorrington NICHOLAS WHITAKER CHRISTOPHER DORRINGTON Rule Reviewer Director Department of Environmental Quality
Certified to the Secretary of State January 30, 2024.
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