BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 17.53.111, 17.53.112, 17.53.113, 17.53.207, and 17.53.603 pertaining to hazardous waste fees, registration of generators, information requests and annual reports

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT   (HAZARDOUS WASTE)

 

            TO:  All Concerned Persons

 

            1.  On November 6, 2009, at 10:30 a.m., a public hearing will be held in Room 111 of the Metcalf Building, 1520 East Sixth Avenue, Helena, Montana, to consider the proposed amendment 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, please contact Elois Johnson, Paralegal, no later than 5:00 p.m., October 26, 2009, to advise us of the nature of the accommodation that you need.  Please contact Elois Johnson at Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-2630; fax (406) 444-4386; or e-mail [email protected].

 

            3.  The rules proposed to be amended provide as follows, stricken matter interlined, new matter underlined:

 

            17.53.111  REGISTRATION OF HAZARDOUS WASTE GENERATORS AND TRANSPORTERS  (1)  Hazardous waste Ggenerators 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 or to pay the fee required by ARM 17.53.113:

            (a)  conditionally exempt small quantity generators who are subject to the exclusionary provisions of 40 CFR 261.5, other than generators of greater than one kilogram (2.2 pounds) of acute hazardous waste;

            (b) through (d) remain the same.

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

            (a) (4)  Registration is complete when the department receives approves the properly completed registration form and the generator receives the registration fee required by ARM 17.53.113;

            (b) (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.

 

            AUTH:  75-10-204, 75-10-404, 75-10-405, MCA

            IMP:  75-10-204, 75-10-212, 75-10-214, 75-10-221, 75-10-405, MCA

 

            REASON:  The department is proposing amendments to ARM 17.53.111(1) through (3) that would clarify that hazardous waste generators must register with the department.

            The department is proposing to delete language from ARM 17.53.111(2) because there are instances when a conditionally exempt small quantity generator would pay a registration fee under ARM 17.53.113.

            The department is proposing to delete from ARM 17.53.111(2)(a) the phrase "other than generators of greater than one kilogram (2.2 pounds) of acute hazardous waste" because it is redundant.  This condition is included in 40 CFR 261.5.

            The department is proposing to add ARM 17.53.111(6) to clarify that hazardous waste transporters must register under ARM 17.53.703.

 

            17.53.112  FACILITY PERMIT FEES:  APPLICATION, RENEWAL REISSUANCE, MODIFICATION, AND MAINTENANCE FEES  (1) through (2)(d) remain the same.

            (3)  At the time the permit reissuance process is initiated, the department shall assess a permit reissuance fee.

            (a)  The fees shall be are as follows:

            (i) (a)  $10,000 15,000 for a Class I facility;

            (ii) (b)  $5,000 7,000 for a Class II facility; and

            (iii) (c)  $2,000 3,000 for a Class III facility.

            (b) remains the same, but is renumbered (4).

            (4) remains the same, but is renumbered (5).

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

            (i) (a)  $3,000 7,200 for Class 2 or 3 modifications, as listed in 40 CFR 270.42, Appendix I, except that, if a Class 2 or 3 modification is so significant as to constitute reissuance of a permit, the fee schedule set forth in (3) applies in lieu of the $3,000 fee;

            (b)  $3,600 for Class 2 modifications, as listed in 40 CFR 270.42, Appendix I; and

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

            (A) (i)  $200 240 for those Class 1 modifications listed in items A through E of Appendix I; and

            (B) (ii)  $1,000 1,200 for those Class 1 modifications listed in items 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)  $7,200 for Class 3 modifications, as listed in 40 CFR 270.42, Appendix I;

            (ii)  $3,600 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)  $240 for Class 1 modifications listed in A through E of Appendix I; and

            (B)  $1,200 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).

            (b) (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.

            (c) remains the same, but is renumbered (9).

            (5) remains the same, but is renumbered (10).

            (a) remains the same.

            (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 (5)(10)(a).

            (c)  The fees established in (5)(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 (5)(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.

 

            AUTH:  75-10-404, 75-10-405, 17-10-406, MCA

            IMP:  75-10-405, 75-10-406, MCA

 

            REASON:  The department is proposing to increase the permit reissuance fees in ARM 17.53.112(3).  The permit reissuance fee rule was first adopted in 1983.  In 1993, the definitions of Class 1, 2, and 3 facilities were added, and the fees for these classes were set at the current amounts of $10,000, $5,000, and $2,000.  The permit reissuance fees have not changed since then.  The department is proposing an increase to the permit reissuance fees based on the rate of inflation since 1993.  The department selected the Consumer Price Index (CPI) for western urban areas as the basis for determining the inflation index.  The department calculated the inflation index from June 1993 to May 2009.  The index is 1.497 which was rounded up to 1.50 for the purposes of the fee calculations.  Therefore, the permit reissuance fee for a Class 1 facility is proposed to be increased from $10,000 to $15,000, a Class 2 facility from $5,000 to $7,500, and a Class 3 facility from $2,000 to $3,000.

            Facility permits are reissued every ten years.  The number of facilities affected by the increase to the permit reissuance fees would be eight, because there are currently eight permitted facilities.  The department does not anticipate any permit reissuances until 2011.  Between 2011 and 2014, there may be five permit reissuances.  Therefore, the cumulative amount of the increase to the permit reissuance fees for all facilities from 2009 to 2014 would be $11,000.

            The department is proposing to increase the permit modification fees in ARM 17.53.112(4) (renumbered (5) through (7)).  The permit modification fees were last increased in 2002.  The department is proposing an increase to the permit modification fees based on the rate of inflation since 2002.  The department selected the CPI for western urban areas as the basis for determining the inflation index.  The department calculated the inflation index from January 2002 to May 2009.  The index is 1.198 which was rounded up to 1.20 for the purposes of the fee calculations.  Therefore, the Class 1 permit modification fees are proposed to be increased from $200 to $240 and from $1,000 to $1,200, and the Class 2 permit modification fee from $3,000 to $3,600.

            In the existing fee schedule, the Class 3 modification fee is the same as the Class 2 fee.  Using the inflation index of 1.20, the Class 3 fee would be increased to $3,600.  However, a Class 3 modification requires much more staff time than a Class 2 modification.  In order to reflect the additional resources spent on a Class 3 modification, the department is proposing that the Class 3 modification fee be increased to double the amount of the Class 2 fee or $7,200.

            The number of facilities affected by the increase to the permit modification fees would be eight, because there are currently eight permitted facilities.  There is generally one standard Class 1 modification and one standard Class 2 modification per year. Therefore, the cumulative amount of the increase to the permit modification fees for all facilities would be approximately $640 per year.

 

            17.53.113  GENERATOR REGISTRATION AND REGISTRATION MAINTENANCE FEES:  FEE ASSESSMENT  (1)  Concurrent with the submittal of a registration form, a generator shall submit to the department a generator registration fee of $95 225.

            (2)  An annual generator fee must be submitted to the department by each generator not exempted under ARM 17.53.111 for the entire previous calendar year.  The department shall assess an annual registration maintenance fee, as provided in (3), 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 conditionally exempt small quantity generator, as defined in ARM 17.53.301(2), that has registered with the department and desires to remain registered.

            (a) (3)  The annual generator registration maintenance fee for a calendar year is $95 200 plus $1 a per-ton fee for all regulated hazardous waste generated during the previous calendar year; of:

            (a)  $5 per ton for all regulated hazardous waste generated during the 2009 calendar year;

            (b)  $10 per ton for all regulated hazardous waste generated during the 2010 calendar year;

            (c)  $15 per ton for all regulated hazardous waste generated during the 2011 calendar year; and

            (d)  $20 per ton for all regulated hazardous waste generated during the 2012 calendar year, and each year thereafter.

            (b) (4)  The $1 per-ton fee in (3)(a) through (d) is assessed only if the amount of regulated hazardous waste generated during the previous calendar year is equal to or greater than 13.0 1.3 tons;.

            (5)  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.

            (6)  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).

            (7)  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; or

            (d)  conducting a treatability study.

            (c) (8)  Annually, tThe 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 generator registration maintenance fee with written notice of the amount of the fee, the basis for the fee assessment, and the date the fee is due.

            (d) (9)  If a hazardous waste generator that was assessed an annual generator 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% of the fee, plus interest on the fee computed at the interest rate established under 75-2-220(5)(a)(i), MCA.

 

            AUTH:  75-10-404, 75-10-405, MCA

            IMP:  75-10-405, MCA

 

            REASON:  The department is proposing amendments to ARM 17.53.113(1) through (3), (8), and (9) which would clarify that the department is assessing hazardous waste generator registration and registration maintenance fees, and not a hazardous waste generation fee.  In 1983, 75-10-405(1)(i), MCA, was enacted to provide authority for the department to adopt rules for assessment of fees for registration of hazardous waste generators.  In 1983, the department adopted the first hazardous waste generator registration and registration maintenance fee rule (ARM 16.44.404).  The name of the fee remained the same until 2002.  In a rulemaking effective December 13, 2002, the department inadvertently changed the name of the registration fee to generator fee.  The proposed amendments to ARM 17.53.111(4) and 17.53.113(1) through (3), and (7) would change the name back to registration fee.

            The department is proposing to add ARM 17.53.113(2)(a) and (b) which would have the same meaning as the deleted language "not exempted under ARM 17.53.111 for the entire previous calendar year."  Proposed (a) and (b) would clarify which hazardous waste generators must pay the registration maintenance fee.

            In ARM 17.53.113(2)(c), the department is proposing to add conditionally exempt small quantity generators, that desire to maintain an active registration, as generators that would pay the registration maintenance fee.  Conditionally exempt small quantity generators are not required under ARM 17.53.111 to be registered, but those that desire to maintain an active registration would pay the annual registration maintenance fee.  The department expends resources on the registration of conditionally exempt small quantity generators and believes it is appropriate to assess a fee to recover those costs.

            In response to federal funding cuts, the department is proposing an increase to the registration and annual registration maintenance fees in ARM 17.53.113 to defray a portion of the state's costs of maintaining the hazardous waste program (program).  EPA funding for the program has decreased 29% from FY 2004 ($478,783) through FY 2009 ($339,129).

            The department has raised the registration and annual registration maintenance fees only once (2002) since 1983.  The 2002 fee increase was projected to double the amount collected from $20,555 in 2001 to $43,000 in 2002.  However, because of a decrease in the amount of hazardous waste generated, only $20,173 was collected in 2002.  From 2003 through 2006 the amounts collected ranged from $14,000 to $18,000.  Despite the increase in fees in 2002, less money was collected in each of the next five years.

            The number of persons affected by the increase to the registration and registration maintenance fees would be 117, based on calendar year 2008.

            The department is proposing to increase the registration fee from $95 to $225.  The cumulative amount of the increase to the registration fee for all persons would be approximately $15,200, based on 117 people.

            The existing annual hazardous waste generator registration maintenance fee includes a flat administrative fee of $95 plus $1 per ton of regulated hazardous waste generated in the previous calendar year.  The department is proposing to raise the administrative fee to $200 and progressively raise the tonnage fee pursuant to (3)(a) through (d).

            The cumulative amount of the increase to the registration maintenance fee for all persons projected to be billed in 2010 would be approximately $47,600, based on a projected approximate 9,000 tons of hazardous waste.

            The cumulative amount of the increase to the registration maintenance fee for all persons projected to be billed in 2011 would be approximately $73,800, based on a projected approximate 9,000 tons of hazardous waste.

            The cumulative amount of the increase to the registration maintenance fee for all persons projected to be billed in 2012 would be approximately $118,400, based on a projected approximate 9,000 tons of hazardous waste.

            The cumulative amount of the increase to the registration maintenance fee for all persons projected to be billed in 2013 would be approximately $163,100, based on a projected approximate 9,000 tons of hazardous waste.

            In ARM 17.53.113(4), the department is proposing to change the minimum tonnage for assessment of the registration maintenance fee from 13 tons to 1.3 tons.  An amount of 1.3 tons is equal to 220 lbs of generated hazardous waste per month.  An amount of 220 lbs is the maximum amount of hazardous waste generated per month by a generator to qualify as a small quantity generator.  The department believes that it is appropriate to have the minimum quantity of hazardous waste for fee assessment match the maximum quantity to qualify as a small quantity generator.  The number of persons affected by changing the minimum amount for assessing registration maintenance fees would be 117, based on calendar year 2008.  The department is proposing the addition of ARM 17.53.113(6), which would clarify the rule, but not change the meaning.

            The department is proposing to add ARM 17.53.113(7), which would clarify that hazardous waste transporters, universal waste handlers, used oil handlers, and persons conducting treatability studies are not required to pay fees under ARM 17.53.113.

            The department is proposing grammatical revisions to ARM 17.53.113(8) that clarify the section, but do not change the meaning.

 

            17.53.207  FORM OF REQUEST  (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 Air and Waste Management Hazardous Waste Section, Waste and Underground Tank Management Bureau, Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

 

            AUTH:  75-10-405, MCA

            IMP:  75-10-405, MCA

 

            REASON:  The department is proposing to revise an outdated address.  The revision is necessary because, in 2004, the Hazardous Waste Management Program was moved to the Waste and Underground Tank Management Bureau.

 

            17.53.603  ANNUAL REPORT FROM GENERATORS WHO SHIP OF HAZARDOUS WASTE OFF-SITE  (1)  A generator who generates or ships his hazardous waste off-site to a designated facility within the United States 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) through (3) remain the same.

            (4)  A conditionally exempt small quantity generator, as defined in ARM 17.53.301(2), that has registered with the department and desires to remain registered shall submit an annual report pursuant to ARM 17.53.603(1).

 

            AUTH:  75-10-404, 75-10-405, MCA

            IMP:  75-10-405, MCA

 

            REASON:  The department is proposing to delete the word "off-site" and add the word "generates" because the sentence is confusing concerning who must submit an annual report.  The proposed amendments do not change the meaning of the rule.

 

            4.  Concerned persons may submit their data, views, or arguments, either orally or in writing, at the hearing.  Written data, views, or arguments may also be submitted to Elois Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana 59620-0901; faxed to (406) 444-4386; or e-mailed to [email protected], no later than November 13, 2009.  To be guaranteed consideration, mailed comments must be postmarked on or before that date.

 

            5.  Carol Schmidt, attorney, has been designated to preside over and conduct the hearing.

 

            6.  The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name 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, Department of Environmental Quality, 1520 E. Sixth Ave., P.O. Box 200901, Helena, Montana 59620-0901; faxed to (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.

 

            7.  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, October 5, 2009.