BEFORE THE petroleum tank release compensation board

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 17.58.336 and 17.58.344 and the repeal of ARM 17.57.101, 17.57.102, 17.57.103, 17.57.104, 17.57.105, 17.57.106, and 17.57.107 pertaining to third-party review of claims and corrective action plans and cleanup of administrative rules no longer utilized

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NOTICE OF AMENDMENT AND REPEAL

 

TO: All Concerned Persons

 

1. On December 22, 2023, the Petroleum Tank Release Compensation Board published MAR Notice No. 17-440 pertaining to the public hearing on the proposed amendment and repeal of the above-stated rules at page 1778 of the 2023 Montana Administrative Register, Issue Number 24.

 

2. The board has amended and repealed the above-stated rules as proposed.

 

           3. The Petroleum Tank Release Compensation Board has considered the comments received. A summary of the comments and the board's responses are as follows:

 

            COMMENT 1: Six commenters expressed concerns about a process or guidance being put in place with full considerations for expertise of the board and the third-party consultant chosen, initiation steps for a third-party review, and costs involved with a claim or work plan going to a third-party review for the owner and their consultant to be reimbursed, as well as transparency in the process for all stakeholders.

 

            RESPONSE: The board agrees with the comments that communication with stakeholders and transparency are key to the third-party review process.  Section 75-11-312, MCA does not require the board to have special expertise to utilize a third-party review process and there are no licensure requirements in the state of Montana that are in place for the evaluation of determining the qualifications of a consultant to choose. The board will continue to consider the issues presented for review and choose the consultant that has expertise in the issues, is available and willing to perform the review, and is cost effective. The board is constrained by law to provide reimbursement for remediation only. The board's first choice is to work with all stakeholders to reach an agreement, without invoking a third-party review, and that will continue.

 

COMMENT 2: Four commenters stated that third-party review is a waste of time and money, further delaying work in the field.

 

            RESPONSE: Third-party review is provided for by statute; the new rules are just an implementation of that requirement.  The board conducts five meetings a year to ensure that their review of work plans and claims provides for the timely processing of each. The board will continue to work to ensure the third-party review process runs efficiently, if utilized.  The board's review of work plans is somewhat dependent on those being submitted before field season begins.

 

            COMMENT 3: Four commenters expressed concern that stakeholders were not involved in crafting the rule language.

 

            RESPONSE: The public hearing and comment periods are the stakeholders' voice in the process. The board promulgated the rule in compliance with the new statutory mandate to create procedures for third-party review.

 

COMMENT 4: Two commenters stated that they do not believe that the stakeholders or public are best served by allowing the board to have any role in technical evaluations relating to remedial investigations, and that the rule change is not in keeping with audit recommendation #2.

           

RESPONSE: The board was mandated to promulgate a rule that contains a process for third-party review, as allowed by 75-11-312, MCA. This statute grants the board the ability to hire a technical review for the purposes of ensuring the fund is being used in the most efficient manner. The rule changes are a result of legislative action and are not based on the audit.

 

COMMENT 5: One commenter expressed concern that the removal of previous rule language found in ARM 17.58.336(4) removed the director of the Petroleum Tank Cleanup section from having a science-based approach of site cleanup.

           

RESPONSE: The language in this rule was from a time when the board staff was part of the Department of Environmental Quality (DEQ) and the director of DEQ was on the board, which changed in 2003, and the rule had not yet been cleaned up to reflect that change. ARM 17.58.336(4) is only concerned with claim reimbursement, not science-based review of those claims. 

 

COMMENT 6: One commenter stated that third-party review should only take place for actual remediation (clean-up) of the groundwater with a budget in excess of $200,000.

           

RESPONSE: There are no monetary thresholds considered in 75-11-312, MCA, other than ensuring the fund is being used in the most efficient manner as it relates to both the work plan and claim review process as a whole.  The proposed rule does not add to or deviate from the statutory requirements but merely implements them as mandated.

 

 

/s/ Aislinn Brown                                         /s/  John Monahan                         

Aislinn Brown                                              John Monahan, Presiding Officer

Rule Reviewer                                             Petroleum Tank Release Compensation Board

 

 

Certified to the Secretary of State February 13, 2024.