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| Montana Administrative Register Notice 17-289 | No. 16 08/27/2009 | |
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BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY OF THE STATE OF
TO: All Concerned Persons 1. On September 23, 2009, at 10:30 a.m., a public hearing will be held in Room 35, 1520 East Sixth Avenue, Helena, Montana, to consider the proposed amendment and adoption of the above-stated rules. 2. The department will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice. If you require an accommodation, contact Elois Johnson no later than 5:00 p.m., September 14, 2009, to advise us of the nature of the accommodation that you need. Please contact Elois Johnson, Paralegal, at Department of Environmental Quality, 3. The rules proposed to be amended provide as follows, stricken matter interlined, new matter underlined: 17.53.105 INCORPORATION BY REFERENCE (1) and (2) remain the same. (3) References in this chapter that incorporate 40 CFR 60, 61, 63, 124, 260 through (4) For the purposes of this chapter, the department adopts and incorporates by reference the final rules published in the Federal Register at (6) through (9) remain the same, but are renumbered (5) through (8). AUTH: 75-10-405, MCA IMP: 75-10-405, MCA REASON: The department is proposing to amend ARM 17.53.105(3) by deleting the specific reference to incorporation by reference of 40 CFR 266 and substituting incorporation by reference of 40 CFR 260 through 268. As discussed below in the statement of reasonable necessity for adoption of New Rules I and II, the department is proposing to adopt and incorporate by reference 40 CFR 267. 40 CFR 266 and 40 CFR 267 will be included within the incorporation by reference of 40 CFR 260 through 268. Periodically the department updates ARM 17.53.105 which incorporates by reference the Code of Federal Regulations (CFR). The incorporation by reference process is accomplished by amending the CFR publication date specified in ARM 17.53.105(3). The amendment to ARM 17.53.105(3) would allow the department to follow the most recent edition of federal regulations, and thus maintain comity with EPA, to preserve program authorization. The department is proposing to amend ARM 17.53.105(4) and (5) by deleting the incorporations by reference of the federal regulations published in 71 FR 40254 and 71 FR 42927. These incorporations by reference no longer are necessary because the federal regulations promulgated in those rulemakings now have been codified in parts of the CFR that are adopted and incorporated by reference in ARM 17.53.105(4). In a December 1, 2008, Federal Register notice (73 FR 72912), the Environmental Protection Agency (EPA) adopted an alternative set of generator requirements applicable to laboratories owned by eligible academic entities. The department is proposing to adopt and incorporate by reference the regulations in ARM 17.53.105(4) because they provide a flexible and protective set of regulations that address the specific nature of hazardous waste generation and accumulation in laboratories at colleges and universities, as well as other eligible academic entities formally affiliated with colleges and universities. Compliance with the regulations is optional. Colleges and universities would have the choice of managing their hazardous wastes pursuant to these regulations, or of remaining subject to the existing generator regulations. 17.53.112 FACILITY PERMIT FEES: APPLICATION, RENEWAL, MODIFICATION, AND MAINTENANCE FEES (1) through (1)(c)(ii) remain the same. (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) through (5)(d) remain the same. AUTH: 75-10-404, 75-10-405, 17-10-406, MCA IMP: 75-10-405, 75-10-406, MCA REASON: The department is proposing a minor amendment to ARM 17.53.112 to facilitate the incorporation of 40 CFR Part 267, pertaining to standardized permits, into the program rules. (See the statement of reasonable necessity for New Rules I and II.) 17.53.1201 ADOPTION OF FEDERAL PROCEDURES FOR STATE ADMINISTERED PERMIT PROGRAM (40 CFR 270 and 124) (1) Except as provided otherwise in ARM 17.53.1202, the department (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. AUTH: 75-10-404, 75-10-405, MCA IMP: 75-10-405, 75-10-406, MCA 17.53.1202 EXCEPTIONS AND ADDITIONS TO ADOPTION OF FEDERAL PROCEDURES FOR STATE ADMINISTERED PERMIT PROGRAM (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." (1) through (12) remain the same, but are renumbered (2) through (13). "(a) remains the same. (b) The department may reopen the comment period using the procedures at 40 CFR 124.14, incorporated by reference at ARM 17.53.1201 (i) and (ii)" remain the same. (14) through (19) remain the same, but are renumbered (15) through (20). (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." AUTH: 75-10-404, 75-10-405, MCA IMP: 75-10-405, 75-10-406, MCA REASON: In ARM 17.53.1201 and 17.53.1202, the department is proposing to incorporate by reference just the sections of 40 CFR Part 124 which are necessary for program authorization, and for program implementation. This would exclude from incorporation those sections of 40 CFR Part 124 that pertain to other programs. The incorporation of the discrete sections would not change the meaning of the rules or affect program authorization, but would clarify which sections apply to the program. In ARM 17.53.1202(1), the department is proposing to replace all references in 40 CFR 124.5 and 124.16 to the "Environmental Appeals Board" (EAB) with "Montana Board of Environmental Review," (BER) because, under Montana's program, the BER, rather than the EAB, has the authority to review the department's hazardous waste management facility permitting decisions. In ARM 17.53.1202(21), the department is proposing to replace the language in 40 CFR 270.275(d), which requires an applicant for a standardized permit to submit information to EPA or the state program director that allows EPA or the state director to carry out obligations under federal laws, with language requiring submission of information that allows the department to carry out its obligations under Montana's statutes and rules. This minor amendment is necessary in order to facilitate the incorporation of 40 CFR Part 267 into the program rules. 17.53.1303 TREATMENT OF ELECTRIC LAMPS (1) A (a) through (f) remain the same. AUTH: 75-10-405, MCA IMP: 75-10-405, MCA REASON: The department is proposing to change "generator" to "handler" in ARM 17.53.1303 because the vast majority of crushing of waste lamps is conducted by third parties who receive the waste lamps from generators. The term "handler" would include generators, and is the term used in the comparable federal regulations. The proposed amendment would make the department's rules more consistent with the comparable federal regulations. 4. The department is proposing to adopt New Rules I and II as ARM Title 17, Chapter 53, New Subchapter I. The proposed new rules provide as follows: NEW RULE I ADOPTION OF STANDARDS FOR OWNERS AND OPERATIONS OF HAZARDOUS WASTE FACILITIES OPERATING UNDER A STANDARDIZED PERMIT (40 CFR 267) (1) Except as provided otherwise in [NEW RULE II], the department adopts and incorporates by reference 40 CFR Part 267, pertaining to standardized permits for hazardous waste facilities. AUTH: 75-10-405, MCA IMP: 75-10-405, MCA NEW RULE II EXCEPTIONS AND ADDITIONS TO ADOPTION OF STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE FACILITIES OPERATING UNDER A STANDARDIZED PERMIT (1) In 40 CFR 267.12, pertaining to obtaining an EPA ID number, "You must apply to the state for an EPA identification number pursuant to ARM 17.53.111" is substituted for "You must apply to EPA for an EPA identification number following the EPA notification procedures." (2) In 40 CFR 267.56(c)(2), pertaining to emergency notification, "He must immediately notify either the Montana Disaster and Emergency Services Division (406-841-3911), 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 beiennial 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. AUTH: 75-10-405, MCA IMP: 75-10-405, MCA REASON: Effective October 11, 2005, EPA adopted 40 CFR Part 267, "Standards for Owners and Operators of Hazardous Waste Facilities Operating Under a Standardized Permit." The department is proposing to adopt a new subchapter which would incorporate 40 CFR Part 267 into the hazardous waste program rules. The department is also proposing minor amendments to ARM 17.53.105 to facilitate the incorporation of 40 CFR Part 267 into the program rules. The department is proposing to add standardized permit rules to the program rules because the standardized permit would streamline the permitting process by allowing facilities to obtain and modify permits more easily, while still achieving the same level of environmental protection as individual permits issued pursuant to ARM Title 17, chapter 53, subchapter 12. The standardized permit would be available to RCRA treatment, storage, and disposal facilities otherwise subject to RCRA permitting that generate and then store or non-thermally treat hazardous waste on site in tanks, containers, or containment buildings. The standardized permit would also be available to facilities that receive hazardous waste generated off site by a generator under the same ownership as the receiving facility, and which then store or non-thermally treat the hazardous waste in tanks, containers, or containment buildings. 5. Concerned persons may submit their data, views, or arguments, either orally or in writing, at the hearing. Written data, views, or arguments may also be submitted to Elois Johnson, Paralegal, Department of Environmental Quality, 6. Carol Schmidt, attorney, has been designated to preside over and conduct the hearing. 7. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list must make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies that the person wishes to receive notices regarding: air quality; hazardous waste/waste oil; asbestos control; water/wastewater treatment plant operator certification; solid waste; junk vehicles; infectious waste; public water supplies; public sewage systems regulation; hard rock (metal) mine reclamation; major facility siting; opencut mine reclamation; strip mine reclamation; subdivisions; renewable energy grants/loans; wastewater treatment or safe drinking water revolving grants and loans; water quality; CECRA; underground/above ground storage tanks; MEPA; or general procedural rules other than MEPA. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to Elois Johnson, Paralegal, Legal Unit, 1520 E. Sixth Ave., P.O. Box 200901, Helena, Montana 59620-0901, faxed to the office at (406) 444-4386, e-mailed to [email protected], or may be made by completing a request form at any rules hearing held by the department. 8. The bill sponsor contact requirements of 2-4-302, MCA, do not apply. Reviewed by: DEPARTMENT OF ENVIRONMENTAL QUALITY /s/ David Rusoff BY: /s/ Richard H. Opper DAVID RUSOFF RICHARD H. OPPER, Director Rule Reviewer Certified to the Secretary of State, August 17, 2009.
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A directory of state agencies is available online at http://www.mt.gov/govt/agencylisting.asp.
For questions about the organization of the ARM or this web site, contact [email protected].
