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| Montana Administrative Register Notice 17-284 | No. 3 02/11/2010 | |
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BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY OF THE STATE OF MONTANA
TO: All Concerned Persons 1. On February 26, 2009, the Department of Environmental Quality published MAR Notice No. 17-284 regarding a notice of public hearing on the proposed amendment, adoption, and repeal of the above-stated rules at page 164, 2009 Montana Administrative Register, issue number 4. On August 13, 2009, the Department of Environmental Quality published MAR Notice No. 17-284 regarding an amended notice of public hearing and extension of comment period on proposed amendment, adoption, and repeal of the above-stated rules at page 1326, 2009 Montana Administrative Register, issue number 15. 2. The department has amended ARM 17.50.501, 17.50.503, 17.50.509, and 17.50.513, adopted New Rules II (17.50.1001), XII (17.50.1101), XIV (17.50.1103), XV (17.50.1104), XVI (17.50.1105), XVII (17.50.1106), XVIII (17.50.1107), XIX (17.50.1108), XX (17.50.1109), XXI (17.50.1110), XXIII (17.50.1112), XXV (17.50.1114), XXVI (17.50.1115), XXX (17.50.1201), XXXV (17.50.1301), XLVI (17.50.1312), and XLVII (17.50.1401), and repealed ARM 17.50.505, 17.50.506, 17.50.510, 17.50.511, 17.50.526, 17.50.530, 17.50.531, 17.50.542, 17.50.701, 17.50.702, 17.50.705 through 17.50.710, 17.50.715, 17.50.716, and 17.50.720 through 17.50.726 exactly as proposed. The department is not adopting the proposed amendments to ARM 17.50.403, 17.50.410, and New Rule X in this rulemaking. The department has adopted ARM 17.50.502, 17.50.508, New Rules I (17.50.507), III (17.50.1002), IV (17.50.1003), V (17.50.1004), VI (17.50.1005), VII (17.50.1006), VIII (17.50.1007), IX (17.50.1008), XI (17.50.1009), XIII (17.50.1102), XXII (17.50.1111), XXIV (17.50.1113), XXVII (17.50.1116), XXVIII (17.50.1117), XXIX (17.50.1118), XXXI (17.50.1202), XXXII (17.50.1203), XXXIII (17.50.1204), XXXIV (17.50.1205), XXXVI (17.50.1302), XXXVII (17.50.1303), XXXVIII (17.50.1304), XXXIX (17.50.1305), XL (17.50.1306), XLI (17.50.1307), XLII (17.50.1308), XLIII (17.50.1309), XLIV (17.50.1310), XLV (17.50.1311), XLVIII (17.50.1402), XLIX (17.50.1403), L (17.50.1404), and LI (17.50.1405) as proposed, but with the following changes (stricken matter interlined, new matter underlined). In some rules commas have been added or stricken without changing the substantive meaning of the rules. The department has made findings concerning rules that have been determined to be more stringent than comparable federal regulations or guidelines addressing the same circumstances in a document dated January 29, 2010, and entitled Montana Department of Environmental Quality's Written Findings, Pursuant to Section 75-10-107, MCA, (House Bill 521), for Amendment and Adoption of Rules Proposed in MAR Notice No. 17-284 at Page 164, 2009 Montana Administrative Register, Issue Number 4 on February 26, 2009 and Page 1326, 2009 Montana Administrative Register, Issue Number 15 on August 13, 2009, Pertaining to the Licensing and Operation of Solid Waste Landfill Facilities. This document will be referred to in this notice as "Stringency Findings." It may be obtained by viewing or downloading it from the department's web site at http://deq.mt.gov/SolidWaste/LawsRules.mcpx, or by contacting the Department's Solid Waste Section Supervisor as follows: Ricknold Thompson, Solid Waste Section Supervisor, Department of Environmental Quality, PO Box 200901, Helena MT 59620-0901; Tel: 406-444-5345; Fax: 406-444-1374; Email: [email protected]. 17.50.502 DEFINITIONS In addition to the definitions in 75-10-203, MCA, the following definitions apply to this subchapter: (1) through (3) remain as proposed. (4) "Clean fill" means soil, dirt, sand, gravel, rocks, and rebar-free concrete, emplaced free of charge to the (5) through (9) remain as proposed. (10) (11) "Facility" means property where solid waste management is occurring or has occurred. It includes all contiguous land and structures, other appurtenances, and improvements on the land (12) through (25) remain as proposed. (26) "New," when used in conjunction with "unit" or a type of unit, means a unit that is not an existing unit. (26) through (40) remain as proposed, but are renumbered (27) through (41). (42) remains as proposed. 17.50.508 APPLICATION FOR SOLID WASTE MANAGEMENT SYSTEM LICENSE (1) Prior to disposing of solid waste or operating a solid waste management system or expanding a licensed boundary, a person shall submit to the department for approval an application for a license to construct and operate a solid waste management system. The applicant shall use the application form provided by the department. The applicant shall provide at least the following information: (a) through (x) remain as proposed. (y) a copy of a proposed deed notation that meets the requirements in subchapter 11; and (z) a demonstration required in ARM 17.50.1003 through 17.50.1008, if applicable (2) remains as proposed. NEW RULE I (17.50.507) CLASS II LANDFILL UNIT RESEARCH, DEVELOPMENT, AND DEMONSTRATION PLANS (1) Except as provided in (6), the department may approve a research, development, and demonstration plan included as a condition in the license for a new Class II landfill unit, existing Class II landfill unit, or lateral expansion of (a) and (b) remain as proposed. (2) The department may approve a research, development, or demonstration plan for a new Class II landfill unit, existing Class II landfill unit, or lateral expansion of (3) through (9) remain as proposed. NEW RULE III (17.50.1002) DEFINITIONS In this subchapter, the following definitions apply: (1) through (14) remain as proposed. (15) "Existing (16) through (27) remain as proposed. (28) "New," when used in conjunction with "unit" or a type of unit, has the meaning given in ARM 17.50.502. (28) through (41) remain as proposed, but are renumbered (29) through (42). NEW RULE IV (17.50.1003) AIRPORT SAFETY (1) The owner or operator of a new or existing Class II landfill unit, or a lateral expansion of (2) remains as proposed. (3) An owner or operator proposing to site a new Class II landfill unit, or lateral expansion of NEW RULE V (17.50.1004) FLOODPLAINS (1) The owner or operator of a new or existing Class II or (2) For a new Class II or NEW RULE VI (17.50.1005) WETLANDS (1) A new Class II or (a) remains as proposed. (b) the construction and operation of a Class II or (i) through (iv) remains as proposed. (c) the Class II or (i) erosion, stability, and migration potential of native wetland soils, muds, and deposits used to support the Class II or (ii) erosion, stability, and migration potential of dredged and fill materials used to support the Class II or (iii) the volume and chemical nature of the waste managed in the Class II or (iv) through (e) remain as proposed. NEW RULE VII (17.50.1006) FAULT AREAS (1) A new Class II NEW RULE VIII (17.50.1007) SEISMIC AREAS (1) A new Class II NEW RULE IX (17.50.1008) UNSTABLE AREAS (1) An applicant for a license for a new Class II (a) through (c) remain as proposed. NEW RULE XI (17.50.1009) LOCATION RESTRICTIONS (1) The owner or operator of a landfill facility shall comply with the following general locational requirements: (a) through (g) remain as proposed. (h) a Class III landfill may not (i) the facility or solid waste management activity may not result in the destruction or adverse modification of the critical habitat of endangered or threatened species, as identified in 50 CFR Part 17 NEW RULE XIII (17.50.1102) DEFINITIONS In this subchapter, the following definitions apply: (1) through (10) remain as proposed. (11) "Existing (12) through (21) remain as proposed. (22) "New," when used in conjunction with "unit" or a type of unit, has the meaning given in ARM 17.50.502. (22) through (28) remain as proposed, but are renumbered (23) through (29). (30) "Special waste" has the meaning given in ARM 17.50.502. (29) through (32) remain as proposed, but are renumbered (31) through (34). NEW RULE XXII (17.50.1111) LIQUIDS RESTRICTIONS (1) Bulk or noncontainerized liquid waste may not be placed in a Class II landfill unit unless (a) remains as proposed. (b) the waste is leachate or gas condensate derived from the Class II landfill unit and the Class II landfill unit, whether it is a new or existing Class II landfill unit, or lateral expansion of (2) through (2)(c) remain as proposed. NEW RULE XXIV (17.50.1113) DEED NOTATION (1) The following requirements concerning deed notations apply to a solid waste landfill facility: (a) Before the initial receipt of waste at the facility or, if the facility is licensed and accepting waste on [THE EFFECTIVE DATE OF THIS RULE], by [60 DAYS AFTER THE EFFECTIVE DATE OF THIS RULE], the owner of the land where a facility is located shall submit for department approval a notation to the deed to that land, or to some other instrument that is normally examined during title search. The notation must be submitted to the department on a form provided by the department and, if the notation covers less than all of the land in the deed, must be accompanied by a certified exhibit of the waste boundary that references the certificate of survey for the tract that encloses the facility. If the notation covers all of the land in the deed, then the notation must reference the certificate of survey for that land. The notation must, in perpetuity, notify any potential purchaser of the land that: (i) through (e) remain as proposed. (2) For the purpose of this rule, "waste boundary" means the perimeter of the area approved by the department for disposal of solid waste that is located within the licensed boundary of a solid waste landfill facility. NEW RULE XXVII (17.50.1116) OPERATING CRITERIA (1) remains as proposed. (2) In addition to the requirements of ARM 17.50.509, the owner or operator of a solid waste management facility shall satisfy the following general operating requirements: (a) through (c) remain as proposed. (d) a resource recovery, recycling, or solid waste treatment facility and components must be designed, constructed, maintained, and operated to control litter, insects, rodents, odor, (e) and (f) remain as proposed. NEW RULE XXVIII (17.50.1117) OPERATING CRITERIA FOR CLASS III LANDFILL UNITS (1) The owner or operator of a Class III landfill unit: (a) through (c) remain as proposed. (d) shall comply, to the same extent required of a Class II landfill unit, with: (i) and (ii) remain as proposed. (iii) ARM 17.50.1109, pertaining to run-on (e) and (f) remain as proposed. NEW RULE XXIX (17.50.1118) OPERATING CRITERIA FOR CLASS IV LANDFILL UNITS (1) The owner or operator of a Class IV landfill unit: (a) shall control litter, odor, (b) remain as proposed. (c) may not accept liquid paints, solvents, glues, resins, dyes, oils, pesticides, putrescible organic materials, or any other household hazardous wastes. If these wastes have not been removed from buildings prior to demolition, the owner or operator of a Class IV landfill unit may not accept the wastes as demolition waste; (d) and (e) remain as proposed. (2) The owner or operator of a Class IV landfill unit shall comply, to the same extent required for a Class II landfill unit, with the: (a) and (b) remain as proposed. (c) (d) through (j) remain as proposed. NEW RULE XXXI (17.50.1202) DEFINITIONS In this subchapter, the following definitions apply: (1) through (6) remain as proposed. (7) "Existing (8) through (14) remain as proposed. (15) "New," when used in conjunction with "unit" or a type of unit, has the meaning given in ARM 17.50.502. (15) through (17) remain as proposed, but are renumbered (16) through (18). (a) an aquifer supplying drinking water for human consumption; or (b) an aquifer in which the ground water contains less than 10,000 mg/L total dissolved solids. (18) remains as proposed, but is renumbered (20). NEW RULE XXXII (17.50.1203) SMALL COMMUNITY EXEMPTION (1) The owner or operator of a new Class II or Class IV landfill unit, existing Class II or Class IV landfill unit, or lateral expansion of (a) through (b)(ii) remain as proposed. (2) The owner or operator of a new Class II or Class IV landfill unit, existing Class II or Class IV landfill unit, or lateral expansion of (3) Within 14 days after obtaining knowledge of ground water contamination resulting from the unit for which the exemption in (1)(a) or (b) has been claimed, the owner or operator of a new Class II or Class IV landfill unit, existing Class II or Class IV landfill unit, or lateral expansion of (4) remains as proposed. NEW RULE XXXIII (17.50.1204) DESIGN CRITERIA - CLASS II AND CLASS IV LANDFILL UNITS (1) An owner or operator of a new Class II or Class IV landfill unit, or a lateral expansion of (a) ensures that the concentration values listed in Table 1 of this rule will not be exceeded (i) for a Class II landfill unit, in the uppermost aquifer; or (ii) for a Class IV landfill unit, in an underground drinking water source; or (b) remains as proposed. (2) When determining whether a design complies with (1)(a), the department shall consider at least the following factors: (a) remains as proposed. (b) the climatic factors of the area; and (c) the volume and physical and chemical characteristics of the leachate (3) The relevant point of compliance (RPOC) specified by the department pursuant to (1)(a) may not be (g) public health, safety, and welfare effects; and (h) practicable capability of the owner or operator
Table 1 remains as proposed. NEW RULE XXXIV (17.50.1205) ADDITIONAL DESIGN CRITERIA - CLASS II AND CLASS IV LANDFILL UNITS (1) The owner or operator of a new Class II or Class IV landfill unit, or lateral expansion of (a) a leachate collection system is not required for a landfill unit that has obtained department approval of a demonstration, pursuant to ARM 17.50.1303(2), that there is no potential for migration of a constituent in Appendix I or II to 40 CFR Part 258 (July 1, 2008) pursuant to ARM Title 17, chapter 50, subchapter 13; and (2) An owner or operator of a new Class II or Class IV landfill facility shall submit to the department for approval each landfill unit design plan, including any design specifications or applicable plans or documents developed pursuant to this chapter. The design plan must demonstrate compliance with the standards of ARM 17.50.1204(1) and (4). (3) The owner or operator of a new Class II or Class IV landfill unit, or lateral expansion of (a) provide for accurate monitoring of the leachate level, measured to within one centimeter, on the liner or base of the unit, and the leachate volume removed from the unit; and (b) provide a minimum slope at the base of the overlying leachate collection layer equal to at least two percent (4) An owner or operator of a Class II landfill unit may, if it obtains department approval, recirculate leachate to that unit (5) At the time the owner or operator submits a design plan required in (2), the owner or operator of a Class II or Class IV landfill facility shall submit to the department for approval a construction quality control (CQC) and construction quality assurance (CQA) (6) Within 60 days after construction of a Class II or Class IV landfill unit is completed, the owner or operator shall submit to the department for approval a final CQC and CQA report that describes, at a minimum, construction activities and deviations, and conformance with the (7) Within 60 days after construction of a Class II or Class IV landfill unit is completed, the owner or operator shall submit a certification, by an independent NEW RULE XXXVI (17.50.1302) DEFINITIONS In this subchapter, the following definitions apply: (1) through (8) remain as proposed. (9) "Existing (10) through (13) remain as proposed. (14) "New," when used in conjunction with "unit" or a type of unit, has the meaning given in ARM 17.50.502. (14) through (19) remain as proposed, but are renumbered (15) through (20). (21) "Underground drinking water source" means: (a) an aquifer supplying drinking water for human consumption; or (b) an aquifer in which the ground water contains less than 10,000 mg/1 total dissolved solids. (20) and (21) remain as proposed, but are renumbered (22) and (23). NEW RULE XXXVII (17.50.1303) APPLICABILITY OF LANDFILL GROUND WATER MONITORING AND CORRECTIVE ACTION (1) remains as proposed. (2) Ground water monitoring requirements under ARM 17.50.1304 through 17.50.1307 for a Class II or Class IV landfill unit may be suspended by the department if the owner or operator submits, and obtains department approval for, a demonstration that there is no potential for migration of a constituent in Appendix I or II to 40 CFR Part 258 (July 1, 2008) from that Class II or Class IV landfill unit to the uppermost aquifer or underground drinking water source, as required in ARM 17.50.1204, during the active life of the unit and the post-closure care period. This demonstration must be certified by a qualified ground water scientist, and must be based upon: (a) and (b) remain as proposed. (3) The owner or operator of an existing Class II or Class IV landfill unit, or a lateral expansion of (4) through (6) remain as proposed. NEW RULE XXXVIII (17.50.1304) GROUND WATER MONITORING SYSTEMS (1) An owner or operator required to monitor under this subchapter shall install a ground water monitoring system that consists of a sufficient number of wells, installed at appropriate locations and depths, to yield ground water samples from the uppermost aquifer, or underground drinking water source, as required in ARM 17.50.1204, that: (a) through (a)(ii) remain as proposed. (b) represent the quality of ground water passing the relevant point of compliance specified by the department under ARM 17.50.1204(3). The downgradient monitoring system must be installed at the relevant point of compliance specified by the department under ARM 17.50.1204(3) that ensures detection of ground water contamination in the uppermost aquifer, or underground drinking water source, as required in ARM 17.50.1204. When physical obstacles preclude installation of ground water monitoring wells at the relevant point of compliance at existing (2) through (3) remain as proposed. (4) The owner or operator of a Class II or Class IV landfill unit required to monitor under this subchapter shall: (a) submit a ground water monitoring plan to the department for approval that includes: (i) remain as proposed. (ii) plans for the design, installation, development, and decommission of piezometers or other measurement, sampling, and analytical devices; and (iii) discussions of the anticipated ground water monitoring system and schedule of sampling for closed portions of the facility, if applicable; (b) update the ground water monitoring plan at least once every five years, except that a ground water monitoring plan for a closed facility must be updated at least every ten years; and (c) notify the department that the approved ground water monitoring systems plan has been placed in the operating record (5) remains as proposed. (6) The number, spacing, and depths of monitoring wells must be: (a) determined based upon site-specific technical information that must include thorough characterization of: (i) remains as proposed. (ii) saturated and unsaturated geologic units and fill materials overlying the uppermost aquifer or underground drinking water source, as required in ARM 17.50.1204, materials comprising the uppermost aquifer or underground drinking water source, as required in ARM 17.50.1204, and materials comprising the confining unit defining the lower boundary of the uppermost aquifer or underground drinking water source, as required in ARM 17.50.1204 including, but not limited to, thicknesses, stratigraphy, lithology, hydraulic conductivities, porosities, and effective porosities; and (b) remains as proposed. (7) The drilling and construction of a ground water monitoring well at a solid waste management system may be subject to the requirements of Title 36, chapter 21, subchapters 4, 7, and 8. NEW RULE XXXIX (17.50.1305) GROUND WATER SAMPLING AND ANALYSIS REQUIREMENTS (1) An owner or operator required to monitor ground water under this subchapter shall implement a ground water monitoring program that includes consistent sampling and analysis procedures that are designed to ensure monitoring results that provide an accurate representation of ground water quality at the background and downgradient wells installed in compliance with 17.50.1304(1). The owner or operator shall submit to the department for approval a sampling and analysis plan that documents sampling and analysis procedures and techniques for: (a) through (c) remains as proposed. (d) chain of custody control; and (e) quality assurance and quality control (2) remains as proposed. (3) The ground water monitoring program required in (1) must include sampling and analytical methods that are appropriate for ground water sampling and that accurately measure constituents and parameters that are required to be monitored in ground water samples. (4) through (11)(b) remain as proposed. NEW RULE XL (17.50.1306) DETECTION MONITORING PROGRAM (1) through ( (5) If the owner or operator of a Class II or Class IV landfill unit, or the department, determines, pursuant to ARM 17.50.1304(8), that there is a statistically significant increase over the background level for a constituent or parameter other than pH required to be monitored in this rule, at any monitoring well at the boundary specified under ARM 17.50.1304(1)(b), the owner or operator shall: (a) and (b) remain as proposed. (6) If pH is a parameter of an alternative list established under (3), and if the department determines that there has been a statistically significant (7) remains as proposed. Appendix I to 40 CFR Part 258 (July 1, 2008) Constituents for Detection Monitoring Common name1 CAS RN2 Inorganic Constituents:
Organic Constituents:
Footnote 1 remains as proposed. 2Chemical Abstract Service registry number. NEW RULE XLI (17.50.1307) ASSESSMENT MONITORING PROGRAM (1) and (2) remain as proposed. (3) The department may specify, and an owner or operator shall comply with, an appropriate alternate frequency for repeated sampling and analysis of the constituents in Appendix II to 40 CFR Part 258 (July 1, 2008) required by (2), during the active life (a) through (f) remain as proposed. (4) After obtaining the results from the initial or subsequent sampling events required in (2), the owner or operator shall: (a) remains as proposed. (b) within 90 days, and on at least a semiannual basis thereafter, resample all wells described in ARM 17.50.1304(1), conduct analyses for all constituents in Appendix I to 40 CFR Part 258 (July 1, 2008) or in the alternative list of parameters established in accordance with ARM 17.50.1306(3), and for those constituents in Appendix II to 40 CFR Part 258 (July 1, 2008) that are detected by monitoring required by (2), and record their concentrations in the facility operating record. At least one sample from each background and downgradient well must be collected and analyzed during these sampling events. If specified by the department, the owner or operator shall conduct sampling and analyses under this subsection at an alternative frequency during the active life (c) through (9)(d) remain as proposed. (10) In proposing a ground water quality standard under (9), the department shall consider the following: (a) and (b) remain as proposed. (c) other site-specific exposure or potential exposure to ground water. Appendix II to 40 CFR Part 258 (July 1, 2008) List of Hazardous Inorganic and Organic Constituents
Footnote 1 remains as proposed. 2Chemical Abstracts Service registry number. Footnotes (3) through (8) remain as proposed. NEW RULE XLII (17.50.1308) ASSESSMENT OF CORRECTIVE MEASURES (1) Within 90 days after a determination is made pursuant to ARM 17.50.1307 that a constituent listed in Appendix II to 40 CFR Part 258 (July 1, 2008) has been detected at a statistically significant level exceeding the ground water protection standards defined under ARM 17.50.1307(8), (a) remains as proposed. (b) submit to the department for approval an assessment of corrective measures that addresses the criteria listed in (3) (2) through (4) remain as proposed. NEW RULE XLIII (17.50.1309) SELECTION OF REMEDY (1) Based on the results of a corrective measures assessment conducted under ARM 17.50.1308, the owner or operator of a facility shall: (a) remains as proposed. (b) submit to the department for approval, within 90 days after the date of the department's approval of the assessment of corrective measures (c) through (3)(e) remain as proposed. (4) An owner or operator required by (1) to select a remedy shall specify as part of the selected remedy a schedule(s) for initiating and completing remedial activities. Such a schedule must require the initiation of remedial activities within a reasonable period of time, taking into consideration the factors in (4)(a) through (a) through (d) remain as proposed. (e) potential risks to human health and the environment from exposure to contamination prior to completion of the remedy; and (f) resource value of the aquifer, including: (i) through (vii) remain as proposed. (viii) the practicable capability of the owner or operator (5) through (6) remain as proposed.
NEW RULE XLIV (17.50.1310) IMPLEMENTATION OF THE CORRECTIVE ACTION PROGRAM (1) Based on the schedule established under ARM 17.50.1309(4) for initiation and completion of remedial activities, an owner or operator required by ARM 17.50.1309 to select a remedy shall: (a) through (a)(iii) remain as proposed. (b) implement the corrective action remedy selected under ARM 17.50.1309; and (c) submit for department approval, and if approved, take any interim measures necessary to ensure the protection of human health and the environment. Interim measures must, to the greatest extent practicable, be consistent with the objectives of, and contribute to the performance of, any remedy that may be required pursuant to ARM 17.50.1309. The following factors must be considered by an owner or operator and the department in determining whether interim measures are necessary: (i) through (vi) remain as proposed. (vii) other situations that may pose threats to human health and the environment (2) through (8) remain as proposed. NEW RULE XLV (17.50.1311) HYDROGEOLOGIC AND SOILS CHARACTERIZATION (1) through (1)(b)(iii) remain as proposed. (2) A hydrogeologic and soils report required in (1) must include the following: (a) through (b) remain as proposed. (c) a description of the hydrogeologic units that overlie the uppermost aquifer or underground drinking water source, as required in ARM 17.50.1204, or that may be part of the leachate migration pathways at the facility, including saturated and unsaturated units; (d) through (f)(v) remain as proposed. (g) any other information determined by the department to be necessary to (3) through (3)(e) remain as proposed. NEW RULE XLVIII (17.50.1402) DEFINITIONS In this subchapter, the following definitions apply: (1) through (6) remain as proposed. (7) "Existing (8) through (16) remain as proposed. NEW RULE XLIX (17.50.1403) CLOSURE CRITERIA (1) through (3)(c) remain as proposed. (4) The owner or operator of a Class II or Class IV landfill unit, or a lateral expansion of (a) through (11) remain as proposed. NEW RULE L (17.50.1404) POST-CLOSURE CARE REQUIREMENTS (1) Following closure of a Class II or Class IV landfill unit, the owner or operator shall conduct post-closure care. Post-closure care must be conducted for 30 years, except as provided under (2), and consist of at least the following: (a) and (b) remain as proposed. (c) monitoring the ground water in accordance with the requirements of ARM Title 17, chapter 50, subchapter 13, and maintaining the ground water monitoring system, if applicable; and (d) maintaining and operating the gas monitoring system in accordance with the requirements of ARM 17.50.1106 (2) through (2)(b) remain as proposed. (3) The owner or operator of a Class II or Class IV landfill unit shall submit a post-closure plan to the department for approval that includes, at a minimum, the following information (a) through (8)(d) remain as proposed. NEW RULE LI (17.50.1405) CLOSURE AND POST-CLOSURE CARE REQUIREMENTS FOR CLASS III LANDFILL UNITS (1) A Class III landfill unit closure plan required under ARM 17.50.508 must include, at a minimum: (a) remains as proposed. (b) procedures for grading and seeding to prevent erosion; and (c) the deed notation specified in ARM 17.50.1103, unless all wastes are removed from the landfill unit and the owner or operator of a facility receives approval from the department to remove the notation from the deed (2) A Class III landfill unit post-closure plan required under ARM 17.50.508 must include, at a minimum, descriptions of procedures for: (a) remains as proposed. (b) maintaining adequate vegetative cover; and (c) erosion control (3) and (4) remain as proposed. 3. The following comments were received and appear with the department's responses: COMMENT NO. 1: Based on his understanding that Title 17, chapter 50, subchapter 4, pertaining to fees, was adopted by the Board of Environmental Review (BER) pursuant to the authority granted to the board in 75-10-115, MCA, a commentor questioned the department's authority to revise the rule. RESPONSE: The department is not adopting the proposed amendments to ARM 17.50.403 and 17.50.410 in this rulemaking. The department will address the proposed amendments to ARM 17.50.403 and 17.50.410 in a BER rulemaking at a future date. ARM 17.50.501 COMMENT NO. 2: A commentor asked where the new rules provide for an exemption of a pre-1993 footprint from liner requirements, which exemption was found in the previous rules and in the solid waste regulations adopted by the federal Environmental Protection Agency (EPA), and the commentor asked that this be clarified. RESPONSE: The adoption, amendment, and repeal of the rules in this rulemaking would not change the regulatory status of any pre-1993 solid waste landfill unit footprinted areas subject to these rules. A landfill unit with a pre-1993 footprint is an "existing" unit, and is not subject to the liner design requirements in New Rules XXXIII and XXXIV. A "new" unit or lateral expansion was not licensed or accepting waste by the effective date of the 1993 deadline for having the new rules for solid waste management take effect, and is subject to only the design requirements in effect at the time the unit was approved. The department has amended the definitions of "existing" and "new" in ARM 17.50.502 and in the definition rule in each new subchapter where necessary to reflect the distinction between "existing" and "new." However, the department wishes to make it clear how it is using the terms "existing" unit, "new" unit, and "unit," or any of those terms in connection with a qualifying phrase such as Class II, Class III, or Class IV. Federal solid waste regulations adopted to give effect to the federal Resource Conservation and Recovery Act of 1976 and subsequent amendments, codified at 42 USC 6901 through 6992k (RCRA), took effect on October 9, 1993. Montana's solid waste rules use the same effective date as the federal RCRA rules. As noted by the commentor, a unit that was receiving waste on October 9, 1993, was defined as "existing." The area where waste had been placed before October 9, 1993, is called the "pre-RCRA footprint," and was often unlined. The pre-RCRA footprint of an existing unit was not subject to the design and construction criteria for "new" units in the federal regulations and Montana rules that took effect on October 9, 1993. An existing landfill unit was and is entitled to continue to place solid waste in the "air space" over its pre-RCRA footprint without redesigning that unit to meet post-1993 design standards. If the existing unit expanded laterally outside its pre-RCRA footprint, that was and is a "lateral expansion," and was and is subject to the design requirements in effect at the time of the expansion. The design criteria in this rulemaking, found in New Subchapter III (New Subchapter 12), refer to "new" units. The rules in that subchapter are generally equivalent to the rules that have been in place since 1993. Therefore, all new units, or lateral expansions of existing units, have been required to be designed and constructed in conformance with the post-1993 requirements. However, design and construction requirements under New Subchapter III (New Subchapter 12) are not intended to be retroactive. The department does not intend that a unit at a licensed solid waste management system that has had the design and construction of its liner and associated components approved by the department will be subject to being redesigned or reconstructed according to requirements in this rulemaking. Once a landfill unit is designed and constructed, it is usually covered with many feet of solid waste. It would be prohibitively expensive, impractical, and potentially harmful to human health or the environment to require a unit to be excavated, redesigned, and reconstructed when rules change. So, existing units, that is, those licensed and accepting waste on October 9, 1993, are exempt from complying with design criteria that took effect on that date. They may continue to accept waste in the airspace above their pre-RCRA footprint without redesigning or reconstructing. Lateral expansions of existing units were and are required to meet the design and construction requirements in effect at the time of the proposed expansion. New units that have been designed and constructed since October 9, 1993, were subject to the design and construction requirements in effect when the design was approved, but are not subject to any different design requirements adopted later. New units that are proposed in the future are subject to the design and construction requirements in effect when they are approved. In light of this, the department has added definitions of "existing" and "new" to the definitions rules in the new subchapters, where necessary, to provide the needed definitions. In addition, the department has added "new" to the first sentence in New Rule XXXIV, because it was inadvertently omitted, and the design rules apply only to new units or lateral expansions. COMMENT NO. 3: A commentor stated that (1) and (2) should be copied to the general provisions of each subchapter. In (4), the proposed rule also should provide for emergency actions that facilities may need to take without receiving prior written department approval. An example of this would be immediate changes to the operation of a facility required as the result of an inspection. The language proposed for ARM 17.50.501(4) is found in the General Provisions rule of every new proposed subchapter and should be changed in each instance to allow for emergencies. The language of the proposed amendment appears to preclude any excavation prior to receipt of full department approval, however, there is no provision in the solid waste laws requiring preconstruction approval. If the owner or operator of a facility wants to begin excavating a new cell prior to receiving full approval in order to take advantage of good weather, it should be able to proceed at its own risk, during inevitable department paperwork delays. RESPONSE: The department believes that it is not necessary to have a purpose statement in each of the newly proposed subchapters. A purpose statement may be informative, but would not change or enhance any regulatory requirement. The existing rules do not address emergency situations, and the department did not propose rules concerning emergency situations in this rulemaking. Deficiencies noted in an inspection likely would be based on failures to follow an operations and maintenance plan or a rule, and actions to bring the facility into compliance with a plan or rule likely would not require review and approval of a submission other than one already required. However, if an action necessary to respond to an inspection were to require a submission to comply with the applicable rule, then a submission would be necessary. Emergency rules are beyond the scope of this rulemaking, and the department declines to amend the language as requested in the comment. The department's solid waste program is committed to swift review in the case of a genuine threat to human health or the environment. The department agrees that ARM 17.50.501(4) precludes taking an action without prior department approval if a rule requires submittal and approval of a document concerning the proposed action. The department disagrees that the solid waste laws do not require preconstruction approval. Section 75-10-204(3), MCA, requires the department to adopt rules concerning the procedures to be followed in the disposal of solid waste. The design rule, New Rule XXXIII, implements that law by prohibiting construction of a Class II or Class IV landfill unit, unless a design that is protective of ground water has been approved. This same requirement for an alternative design is found in the EPA regulation in 40 CFR 258.40(a)(1). The department agrees that a landfill unit owner or operator may excavate a hole for a new cell without submittal and approval of a document. However, a landfill unit owner or operator who excavates without first obtaining approval risks a determination by the department that the location violates a rule and that waste may not be disposed of there. In addition, other work may constitute the construction of a unit, and may need approval before it can be commenced. ARM 17.50.502 COMMENT NO. 4: A commentor suggested that the definition of "clean fill" should be rewritten to represent the actual intent, which is to provide an exemption for an unregulated material. The commentor suggested the following language: "'Clean fill' means soil, dirt, sand, gravel, rocks, and rebar-free concrete, emplaced free of charge by the property owner to the person placing the fill." If the rule remains as proposed, gravel pit operators will not be able to charge for fill material. Conversely, the property owner possibly could charge for material meeting the physical description when placed on the property. Landfills charge for waste placement. Clean fill might be paid for by the property owner, or it may be placed free of charge to the property owner receiving the material. The hauling contractor may charge the generator of the materials for removal, but there is no charge to the contractor for placement of "clean fill." RESPONSE: The department agrees with the comment and will not amend the definition of "clean fill" as proposed, but will retain the existing definition, which comports with the definition suggested by the commentor. COMMENT NO. 5: Concerning the definition of "contaminated soils" in ARM 17.50.502(8), a commentor questioned whether the concentrations of organic compounds in soil that cause it to be considered contaminated should be specified. The commentor stated that maximum concentrations should be established, if they have not already been established. The commentor also stated that landfills currently are allowed to use contaminated soil as daily cover after it has been treated. The commentor stated that he didn't see any reference in the new rules to using treated soils for this purpose, and he would like for the department to consider this, because the department has been allowing this for some time. RESPONSE: The concentration of organic compounds in soils necessary to be considered contaminated is the minimum detectable amount for the particular organic compound. The proposed addition of the definition of "contaminated soil" would not affect the accepted practice for the use of treated soils for daily cover. The department currently has guidelines that allow the use as daily cover of soils contaminated with certain levels of petroleum. See "General Guidelines for Operation of Soil Treatment Facility to Bioremediate Petroleum Contaminated Soils," pp. 13-14, Montana DEQ revised 7/2002. These guidelines are included in rules currently being developed by the department for a future rulemaking concerning landfarms. COMMENT NO. 6: A commentor stated that the amendments to the definition of "existing unit" should not be adopted as proposed. The commentor stated that the phrase "existing unit" has profound implications in the federal regulatory scheme and that the phrase provides a date certain after which specific regulations, primarily design standards, apply. RESPONSE: The department agrees with the comment and will not adopt the definition of "existing unit" as proposed. The department has stricken the term "existing disposal unit" in ARM 17.50.502, and has amended the definition rule in each new subchapter where necessary to clarify that "existing" when used in conjunction with "unit" or a type of unit and "new," when used in conjunction with "unit" or a type of unit, determine regulatory requirements for pre-1993 and post-1993 landfill units. See also Response to Comment No. 2. COMMENT NO. 7: A commentor stated that, if the reason given for changing the term "facility" is correct, the changes should not be made until the department proposes rules regulating recycling and waste recovery facilities. A definition that is more consistent with 40 CFR 258.2 would be: "'Facility' means property licensed by the department as a solid waste management system. It includes all contiguous land and structures, other appurtenances, and improvements on the land used for the management of solid waste." This simple definition would allow for licensing of solid waste management systems that are recycling or waste recovery facilities. The "ever used" retroactive language proposed is troubling. RESPONSE: The department agrees with the comment and will remove "ever" from the definition of "facility." The department believes it is appropriate to have the definition of "facility" be broad enough to include all of the different types of solid waste management systems. This will also simplify future rulemakings so that this definition will not have to be modified when the department proposes rules pertaining to recycling and resource recovery systems. COMMENT NO. 8: Based on the commentor's general comments on the stringency provisions of 75-10-107, MCA, a commentor suggested amending the definition of "lateral expansion" as follows: "'Lateral expansion' means a horizontal expansion of the waste boundaries of an existing RESPONSE: The definition of "lateral expansion" is not proposed to be amended in this rulemaking. "Lateral expansion" in the proposed amendments and adoptions sometimes refers to units that are not MSWLF or Class II units. Therefore, the department declines to amend the language as requested in the comment. COMMENT NO. 9: A commentor stated that the phrase "municipal solid waste landfill unit" should not be deleted, because this phrase defines what is regulated under 40 CFR Part 258. The "other types of RCRA subtitle D wastes" mentioned in the definition are regulated under 40 CFR Part 257 when they are not co-mingled with municipal solid waste. The phrase "new unit" should not be repealed because it is used to provide a date certain for landfill design requirements and it is used in the proposed new rules, specifically, in New Rule XXXIII. RESPONSE: The terms "municipal solid waste landfill unit" and "new unit" were proposed to be deleted because the terms were not used in ARM Title 17, chapter 50, subchapter 5. The department plans to analyze, with stakeholders and other interested members of the public, possible revisions to ARM 17.50.502 concerning the distinction between municipal solid waste and non-municipal solid waste that may affect the regulation of Class II landfill units and may initiate rulemaking to address the concerns raised. The department has added a definition of "new" to be used in conjunction with "unit" or a type of unit. This clarifies which units are not existing units, that is, that have come into existence since October 9, 1993. The proposed definition of "new" (to be used in conjunction with "unit" or a type of unit) is being added to ARM Title 17, chapter 50, subchapter 5, and subchapters 10 through 14. COMMENT NO. 10: A commentor stated that the phrase "solid waste management system," found in (48) and proposed to be renumbered (36), should be repealed because the term is defined in 75-10-203(12), MCA. RESPONSE: The definition of "solid waste management system" is not proposed to be revised in this rulemaking. The Montana Administrative Procedure Act states, at 2-4-305(2), MCA, that rules may not unnecessarily repeat statutory language. The department believes that it is necessary to leave the definition in the rules for the convenience of the regulated community. Therefore, the department declines to amend the language as requested in the comment. COMMENT NO. 11: A commentor stated that a better, more grammatically correct, definition of "waste boundary" would be "the perimeter of the RESPONSE: The term "waste boundary" is used only in the deed notation rule (New Rule XXIV). The use of "area" is appropriate in the context of that rule. The definition of "waste boundary" is being deleted in ARM 17.50.502 and moved to New Rule XXIV because the term is used only in that rule. ARM 17.50.503 COMMENT NO. 12: A commentor stated that this rule initially was adopted in 1992, and has been amended several times since then, with the last time being in 1997. It is time for the rule to be amended again to truly reflect what EPA requires to be regulated, and how it is regulated by EPA. The following amendments are suggested: "(1) ... Solid wastes that are not regulated hazardous wastes, are categorized into five groups: (a) Group II wastes include (i) municipal and household solid wastes such as garbage and putrescible organic materials, paper, cardboard, cloth, glass, metal, plastics, street sweepings, yard and garden wastes, digested sewage treatment sludges, water treatment sludges, household solid waste incinerator ashes, dead animals, offal, discarded appliances, abandoned automobiles, and hospital and medical facility wastes, provided that infectious wastes have been rendered noninfectious to prevent the danger of disease (b) Group III wastes include wood wastes and non-water soluble solids. These wastes are characterized by their general inert nature and low potential for adverse environmental impacts. Examples include, but are not limited to, the following: (i) inert solid waste such as unpainted brick, dirt, rock and concrete; (ii) clean, untreated, unglued wood materials, brush, unpainted or untreated lumber, and vehicle tires; (iii) industrial mineral wastes which are essentially inert and non-water soluble and do not contain hazardous waste constituents; and (iv) ashes from burning of clean, untreated, unglued wood waste or brush. (c) remains as proposed. (d) Group V wastes include: commercial waste; and (e) Group VI wastes include: industrial solid waste including contaminated soils." RESPONSE: The department recognizes the concerns in the comment. It did not want to add proposed amendments to ARM 17.50.503 to an already long and complicated rulemaking. The department plans to analyze possible revisions to ARM 17.50.503 with stakeholders and other interested members of the public and may initiate rulemaking to address the concerns raised. Because Group II solid waste can be disposed of only in a Class II landfill unit, and because the rules governing disposal at a Class II unit impose similar requirements to the EPA's regulation of an MSWLF unit, the regulation of a Class II landfill unit that does not receive MSW is more stringent than the regulation of a similar unit under federal regulations in 40 CFR Part 257. However, it is not clear that applying, to non-MSW units, requirements similar to EPA's requirements for MSWLF units, constitutes a comparable regulatory scheme addressing the same circumstances. Also, this requirement was contained in the existing rules and had been in those rules for a number of years, and the department did not propose to change this regulatory scheme in this rulemaking process. Therefore, the department is carrying the existing scheme forward in these rules. Nevertheless, the department recognizes the concerns raised by the commentors and will address the stringency concerns, in communication with its solid waste stakeholders, in a future process. This response also applies to this comment as it pertains to all other rules that regulate Class II landfill units. ARM 17.50.504 COMMENT NO. 13: A commentor stated that this rule was not proposed for amendment, but should be amended in order for the rest of the rules to make sense. If the department opens the rule and accepts proposed changes to ARM 17.50.504, the phrase Class II unit could remain as proposed in the remainder of the proposed rules. Class II units could accept all waste groups, Class III and IV would remain the same, and two new classes for commercial and industrial wastes would be created. The department then could propose rules for managing these kinds of wastes based on their environmental threat and EPA requirements. RESPONSE: The department recognizes the concerns in the comment. It did not want to add proposed amendments to ARM 17.50.504 to an already long and complicated rulemaking. The department plans to analyze possible revisions to ARM 17.50.504 with stakeholders and other interested members of the public and may initiate rulemaking to address the concerns raised. For issues concerning the regulation of MSW and non-MSW at a Class II unit, see the response to Comment No. 12. ARM 17.50.508 COMMENT NO. 14: A commentor stated that, under Title 75, chapter 10, part 2, the department is authorized to license only "solid waste management systems," and this phrase should be used consistently in the proposed rules. A commentor stated that use of the phrase "any other information determined by the department to be necessary to protect human health or the environment, and requested by the department," in (1)(aa) gives the department too much discretion and allows the department to be arbitrary. RESPONSE: The amendments to ARM 17.50.508(1) provide that: "Prior to disposing of solid waste or operating a solid waste management system or expanding a licensed boundary, a person shall submit to the department for approval an application for a license to construct and operate a solid waste management system." The department is licensing only solid waste management systems. The department believes that the phrase "solid waste management systems" is used consistently and appropriately throughout the rules. Concerning the phrase "any other information determined by the department to be necessary to protect human health or the environment, and requested by the department," in (1)(aa), the department needs flexibility to determine if a license application is adequate. It is, therefore, striking that phrase and is reverting to the language in existing ARM 17.50.508 of "at least." This retains the department's flexibility to require additional information if necessary, while removing the language objected to. COMMENT NO. 15: A commentor asked how many copies of the application referenced in ARM 17.50.508(1) need to be submitted to the department. The commentor stated that ARM 17.50.508(1)(g) and (h) should be repealed because the same information is required in (1)(o), (p), and (q). The commentor requested that the term "pertinent water quality information" be defined in existing (9) or repealed, as it is negated by the requirements in new (1)(j), if correctly written. The commentor also stated that a comma should be added to (1)(j). The commentor stated that the phrase "if required" should be added to (1)(w). The commentor asked which statute provides the department authority to require insurance at solid waste management systems and to set the minimum amount needed. The commentor questioned whether 75-10-204(8), MCA, which requires the department to adopt rules governing other factors related to the sanitary disposal or management of solid waste, authorizes the department to adopt a rule requiring liability insurance. The commentor stated that the rationale for this rule cites the fact that a facility could be unable to properly manage wastes if it is uninsured and someone is injured at the facility, but that the financial health of a facility is not a proper concern of the department, which has regulatory authority over environmental concerns, not business dealings. Facilities that pose a possible significant threat to the environment, Class II landfills, are required to have financial assurance to cover the costs of closure and post closure care. EPA has no comparable insurance requirement for facilities, nor did it think one was necessary except for the financial assurance needed at MSWLF units. The commentor stated that this proposed rule should be deleted. RESPONSE: One copy of an application for a license is required. If the department needs more copies, it will ask for them. ARM 17.50.508 requires, as part of a license application, the submission of the location, for (1)(g), of water bodies within two miles of the facility boundary, and for (1)(h), the facility location in relation to the base floodplain of nearby drainages, and (1)(o), (p), and (q) detail the type of maps required. There may be some minor duplication in the requested information, but the department does not believe such duplication would hinder the licensing process. ARM 17.50.508(1)(i), which contains the phrase "pertinent water quality information," was not proposed to be revised. However the phrase will be interpreted consistent with past practice. ARM 17.50.508(1)(w) was not proposed for amendment in this rulemaking. However, if a closure or post-closure plan were not required as part of a license application, the department would notify the applicant that the plan was not required. The department will study the suggested revision and may revise (1)(w) in a future rulemaking. Section 75-10-204(8), MCA, provides the authority to require liability insurance. The reason for this provision was provided in the statement of reasonable necessity for New Rule XXV in MAR Notice No. 17-284. ARM 17.50.509 COMMENT NO. 16: A commentor stated that ARM 17.50.509(2)(k)(vi) should be revised to read: "any other special waste, as defined in ARM 17.50.502(37), determined by the department," to prevent the rule from being overly broad and subject to misinterpretation. RESPONSE: Because "special waste" is defined in the definition rule (ARM 17.50.502) for subchapter 5, it does not have to be defined in any other rule in subchapter 5. ARM 17.50.513 COMMENT NO. 17: A commentor stated that it is the commentor's understanding that, pursuant to the authority granted to the board in 75-10-115, MCA, only the Board of Environmental Review has the authority to adopt rules related to solid waste fees. RESPONSE: The application fee referenced in ARM 17.50.513(2) is provided in ARM 17.50.410, and was adopted under the authority of 75-10-115, MCA. The revisions in (2) do not adopt a new fee, but require a new application to be submitted with the appropriate application fee as provided in ARM 17.50.410. See Response to Comment No. 19. COMMENT NO. 18: A commentor stated that the department was being arbitrary in ARM 17.50.513(2) by requiring a license applicant to pay a new application fee if it failed to respond to a department request for more information to complete an application within 90 days, and asked whether it is possible to gather requested information within that timeframe. For example, archaeological surveys are nearly impossible to conduct in the wintertime due to snow cover, and, during a snowy winter, it might not be possible to complete a field survey requested in November, within 90 days. The department may make demands that are impossible for an applicant to complete without large amounts of additional funding or without benefit of another budget cycle. The sentence requiring the 90-day deadline and additional fee should be removed from the proposed rule. RESPONSE: The 90-day deadline in ARM 17.50.513(2) was not proposed to be revised. However, the department believes the 90-day time limit for receiving additional requested information is more than enough time to compile and submit the requested information. COMMENT NO. 19: A commentor questioned the justification for the department requiring a new application fee if the applicant fails to provide additional information within 90 days after being requested to do so. RESPONSE: Existing ARM 17.50.513(1) requires an applicant, that has not responded to a department notice that a license application is incomplete, to submit a new application. Existing ARM 17.50.410(1)(a) requires an application fee with a license application, and provides that the department shall send the applicant an invoice for the fee and begin processing the application upon receipt of that fee. Therefore, the requirement of a new application fee, when a new application is submitted, is not new. The department believes that submittal of a new application fee for a new application, when requested additional information is not received within 90 days after the applicant has been notified, is necessary to cover the department's costs for processing the application. It can take significant time for the department's staff to re-review the application, become familiar with it, and prepare to analyze it after 90 days have passed. This is time that cannot be used on other projects and constitutes a drain on the department's resources. NEW RULE I COMMENT NO: 20: A commentor questioned use of the word "that" in the phrase "a new Class II landfill unit, existing Class II landfill unit, or lateral expansion of that unit" in New Rule I(1) and (2), and in similar phrases, such as "a new or existing Class II or Class IV landfill unit, or a lateral expansion of that unit," in New Rule V(1) and (2) and in other rules. The commentor stated that use of "that" was confusing, and that it was unclear whether the department intended to refer to a new unit or an existing unit, or both. RESPONSE: The department was using "that" as an abbreviated way to refer to lateral expansions of multiple classes of units. Because the use of "that" was confusing and inexact, the department has amended the rules with that phrase to state explicitly that lateral expansions of existing units are subject to the requirements of the rule. Other rules where this amendment has been made for the same reason are New Rules IV(1) and (3), V(1) and (2), VI(1), VII(1), IX(1), XXII(1)(b), XXXII(1), (2), and (3), XXXIII(1), XXXIV(1) and (3), XXXVII(3), and XLIX(4). NEW RULE III COMMENT NO. 21: A commentor stated that, in the definition of "maximum horizontal acceleration in lithified earth materials," the last portion of the definition should be deleted because it conflicts with, and, potentially, is either more or less restrictive than, the requirements in 40 CFR 258.14. RESPONSE: The definition of "maximum horizontal acceleration in lithified earth materials" is identical to the definition of the same term in 40 CFR 258.14. Therefore, the department declines to strike the language as requested in the comment. NEW RULE V COMMENT NO. 22: A commentor stated that, according to EPA regulations, all Class IV landfills, not just lined ones, should be subject to these provisions relating to floodplains. In New Rules V, VIII, and IX, the 45-day limit for response is arbitrary and does not take into account the realities of budgets and hiring times for the necessary experts. RESPONSE: As a practical matter, a liner would be required under this rule for all Class IV landfill units to be located in a floodplain. The location of unlined Class IV landfill units would not be approved in floodplains due to shallow ground water. No existing unlined Class IV landfill units are located in floodplains. However, to be as stringent as EPA's regulations in 40 CFR 257.8, the department is striking "lined" from "lined Class IV." The department has determined that all existing facilities meet the requirement. Therefore, the department has stricken the requirement, from New Rules V, VIII, and IX, that the owners and operators of existing units must make the demonstration within 45 days after being requested to do so by the department. NEW RULE VI COMMENT NO. 23: A commentor stated that, to be consistent with EPA's regulatory requirements, all Class IV landfills, not just lined ones, should be subject to the provisions concerning wetlands. RESPONSE: The department agrees with the commentor. The requirements were taken from 40 CFR 258.12. The same requirements are found in 40 CFR 257.9, which applies to all Class IV landfill units. The department is striking "lined" from the phrase "lined Class IV." NEW RULE VII
RESPONSE: The department agrees that EPA regulations for Class IV landfill units do not require a setback from fault areas. In response to comments, the department is eliminating many of the prescriptive requirements for a Class IV landfill unit, including the setback from fault areas that was the subject of this comment. Instead, the department is basing design requirements on a showing that a Class IV landfill unit will not contaminate an underground drinking water source, which is the standard required by EPA in 40 CFR 257.3-4 for all solid waste landfill units that do not receive municipal solid waste, including a Class IV landfill unit. If an owner or operator of a Class IV landfill unit does not include, as part of its application for a solid waste license, a liner as part of its design to avoid contaminating an underground drinking water source, and the department approves the design, then no liner will be required, and no setback from fault areas to protect a liner from being torn by fault displacement will be needed. However, if an owner or operator includes a liner as part of a design of a Class IV landfill unit, then the department will not be likely to approve the design unless it includes a setback from a fault area to protect the liner from being torn by displacement. NEW RULE VIII COMMENT NO. 25: A commentor stated that the phrases "gas control system" and "landfill final cover" should be removed from the proposed rule, because they are not included as "containment structures" in EPA requirements, in 40 CFR 258.14, for a unit located in a seismic impact zone, and they make the rule more stringent than that regulation. RESPONSE: In response to the comment, the department has stricken the language as requested. COMMENT NO. 26: A commentor stated that reference to lined Class IV units should be deleted from New Rule VIII(1), concerning design of a unit in a seismic impact zone, because the reference made the rule more stringent than EPA requirements. RESPONSE: In response to the comment, the department has stricken the language as requested. If a liner is submitted as part of a design to meet ground water standards, design requirements to protect a liner from seismic activity could be required. See Response to Comment No. 24. NEW RULE IX COMMENT NO. 27: A commentor stated that applying unstable area restrictions to lined Class IV units makes the rules more stringent than EPA requirements. RESPONSE: The department recognizes that there are additional unstable area location requirements in New Rule IX for Class IV landfill units that are not provided in 40 CFR 257. In response to the comment, the department has stricken the language as requested. If a liner is submitted as part of a design to meet ground water standards, design requirements to protect a liner from movement in unstable areas could be required. See Response to Comment No. 24. NEW RULE X COMMENT NO. 28: A commentor stated that the rule is redundant. The location restrictions were evaluated by EPA as part of the State Program Approval process and have been in place since 1993. Facilities for which the appropriate demonstrations could not be made have been closed, most for over 15 years, and new ones need not be licensed by the department. RESPONSE: The department has determined that all existing facilities meet the requirements of the locational rules. Therefore, the department has stricken New Rule X. NEW RULE XI COMMENT NO. 29: A commentor stated that the rule mixes operational requirements with location requirements and that operational requirements should be moved to New Rule XXVII. Specifically, (1)(d) and (f) are operational requirements, not location requirements. Subsection (1)(h) should be replaced with the requirements of 40 CFR 257.3-1. The commentor stated that proposed (1)(j), which would authorize the department to require any other locational requirement determined to be necessary, should not be adopted because it is vague and overly broad and grants the department nearly unlimited powers. RESPONSE: The department agrees that New Rule XI includes a mix of operational and locational requirements. Because most of these requirements are from one rule, ARM 17.50.505, the department placed them all in New Rule XI. ARM 17.50.505 is being repealed. The department does not believe that the substance of the requirements in the rule is affected by having locational and operational requirements in the same rule. It may initiate a future rulemaking to consider rearranging the locational and operating criteria now in this rule. Concerning subsection (1)(h), in response to the comment, the department has substituted the language concerning floodplains from 40 CFR 257.3-1. Based on the comment, the department has stricken (1)(j). COMMENT NO. 30: A commentor stated that (1)(h), which addresses the location of a new Class III landfill, should include a grandfather clause for existing landfills established under previous rules. RESPONSE: The department has amended New Rule XI(1)(h) in response to Comment No. 29. A grandfather clause is not necessary because the adoption of New Rule XI(1)(h) would not affect an existing Class III landfill unit. NEW RULE XIII COMMENT NO. 31: A commentor stated that a definition of "special waste" should be added to this rule because it is needed for purposes of New Rule XXV. RESPONSE: The department agrees with the comment, and has added a definition of "special waste." NEW RULE XV COMMENT NO. 32: A commentor stated that, in New Rule XV(2)(c), the proposed requirement that the owner or operator of a Class II landfill, for which some portion will not receive additional waste within 90 days, must place on that portion an intermediate cover of at least one foot of approved cover soil is more stringent than the comparable federal requirement in 40 CFR 258.21. RESPONSE: This standard is not provided in 40 CFR 258.21, and there is no comparable federal regulation or guideline addressing the same circumstances, so the findings requirements of 75-10-107, MCA, do not apply. This rule is necessary to keep birds and other scavenger species out of the waste, and to protect waste from precipitation that could mix with it and form leachate. Prior to the implementation of this rule in 1995, the same requirement was contained in Solid Waste Program policy. Portions of landfills not slated to receive waste for long periods became a source of litter as well as a source of food for birds and other scavenger species. The areas of landfills that had not received waste for a long period, but that had not received final cover, often were covered with the bare minimum of cover soils (i.e. six inches). The insufficient amount of cover soils over the wastes did little to prevent animals or birds from getting into the waste mass. The lack of sufficient cover soil also resulted in precipitation entering the wastes and generating leachate. An example of this was noted at a landfill in the state several years ago when a portion of the waste unit was filled to the maximum capacity and had to sit idle until the other cells in the unit were filled to the same elevation to effect a uniform closure of the unit. During a routine facility inspection, department inspectors noted waste from the idle portion of the facility was scattered around the facility and birds and other small animals were seen in the waste mass. The six inch daily cover left on the cell was eroded and did not present a deterrent to precipitation or animals from entering the waste. The solution was long The estimated costs to the regulated community for each of 50 facilities that are directly attributable to the proposed requirement would be $2,018/acre based on the $2.50/cubic yard cost of the placement of 807 cubic yards of additional six-inch soil cover per acre of open area. The on-site soil would already be available for placement after excavation to build each landfill unit and provide daily cover as designed. The site-specific magnitude of these additional costs would vary depending on the open area chosen by each facility operator. NEW RULE XVII COMMENT NO. 33: A commentor stated that the requirements of New Rule XVII(1)(a) and (b) apply to all facilities, but that the rest of the rule should not apply to Class III and Class IV facilities, or at any Class II landfill units except MSWLF units. RESPONSE: New Rule XVII, which concerns explosive gases control, applies only to Class II landfill units. However, the requirements of this rule are adopted for Class IV landfill units in New Rule XXIX(2)(c). The requirement cited by the commentor, that (1)(a) and (b) are applicable to Class IV landfill units, is contained in 40 CFR 257.3-8(a)(1) and (2). The department has amended New Rule XXIX(2)(c) to state that only XVII(1) applies to a Class IV landfill unit. For issues concerning the regulation of MSW and non-MSW at a Class II unit in New Rules XVII and XXIX, see the response to Comment No. 12. The department has prepared findings, pursuant to 75-10-107, MCA, concerning the stringency of the requirement in (4)(c) for department approval of a methane remediation plan. See Stringency Findings for this rule. NEW RULE XVIII COMMENT NO. 34: A commentor stated that (2) states that burning is prohibited, except for the infrequent burning of agricultural wastes, forest product wastes, land-clearing debris, diseased trees, and emergency cleanups, but that other wastes, such as untreated wood waste, are being burned in burn pits at landfills. The commentor stated that the department should re-evaluate the list in New Rule XVIII(2) and modify it to reflect actual practice. RESPONSE: New Rule XVIII(2) contains the same list as 40 CFR 258.24 concerning materials that are permitted for open burning. A condition of approval of the department's solid waste program by EPA is that the rules be at least as stringent as EPA's regulations. Therefore, it is necessary for the department to adopt the language as proposed. The department's air quality rule concerning the issuance of a conditional air quality open burning permit, ARM 17.8.612, addresses the burning of untreated wood waste at a licensed landfill, as follows: "(4) The department may issue a conditional air quality open burning permit to dispose of: (a) solid wood and wood byproduct trade wastes by any business, trade, industry, or demolition project; or (b) untreated wood waste at a licensed landfill site, …." ARM 17.8.612 is inconsistent with New Rule XVIII and 40 CFR 258.24 concerning the list of materials that may be burned at a licensed landfill. The department believes it would be prudent to conform the list of materials that may be burned at a licensed landfill in ARM 17.8.612 to those materials listed in New Rule XVIII, but that cannot be accomplished in this rulemaking. NEW RULE XXII COMMENT NO. 35: A commentor stated that New Rule XXII(1), concerning exclusion of bulk or noncontainerized liquids unless approved, is more stringent than the comparable federal requirement in 40 CFR 258.28(a). RESPONSE: In response to the comment, the department has stricken the language requiring approval. NEW RULE XXIV COMMENT NO. 36: A commentor stated that this rule, requiring recording of a deed notation before the first acceptance of solid waste, or within 60 days after the effective date of the rule, should apply only to new applications. Existing landfill owners should be grandfathered under the existing rules. Current owners of landfills will be denied the choice of not permitting a landfill and avoiding the requirement for a deed encumbrance. Under the new rule, the owners or operators of existing Class III landfills will be required to obtain a certificate of survey for the deed notation. This imposes a legal obligation and cost upon the holder of the existing license that is retroactive and non-negotiable. Commentors were concerned that the cost of providing an exhibit to a certificate of survey for the waste boundary to be covered by a deed notation at a Class III landfill would be excessive. New Rule XXIV states that the notation on the deed must be approved by the department, however, the rule does not provide suggested language. This means that the language required is not defined in the standards and might impose an encumbrance on the deed that would make the property unmarketable. The language that must appear on the deed should appear within the new rule. The new rules do not provide for a means of removing a deed notation. RESPONSE: The department believes a deed notation as a license condition for new and existing landfill units is necessary to inform future owners of the property that the property was used as a landfill. The department has prepared findings, pursuant to 75-10-107, MCA, concerning the stringency of the requirement in (1)(a) for the submission and recording of a deed notation before the acceptance of solid waste for a unit that is not yet accepting waste, or within 60 days after the effective date of the rule for a facility that is accepting waste, and for the requirement in (1) for department approval of that notation. See Stringency Findings for this rule. For a Class III or Class IV landfill unit, there is no comparable federal regulation addressing the same circumstances, so the stringency findings of 75-10-107, MCA, do not apply. However, the facts underlying the findings made for Class II landfill units also are applicable to Class III and IV landfill units. The department believes that it is important to have a deed notation for Class III landfill units, for the reasons listed in the statement of reasonable necessity to the proposed new rule, but recognizes that an exhibit to a certificate of survey is not necessary if the deed notation is to cover the entire land area referred to in the deed for the property. The department has therefore amended (1)(a) to provide that an exhibit to a certificate of survey is not necessary if the landowner wishes it to cover the entire parcel in the deed. The notation must reference only the certificate of survey for the entire parcel. However, if the landowner wishes to narrow the land area subject to the deed notation, it must provide an exhibit to the certificate of survey. This may be done, for example, at closure, and the surveys that were done to obtain approval for lateral expansions or new units may be used to create the exhibit used for the waste boundary in the deed notation. The department believes that 60 days is enough time for a land owner to obtain an exhibit to a certificate of survey or to refer to the parcel's existing certificate of survey, and to submit the deed notation to the department for approval. An exhibit to a certificate of survey is a standard form used by surveyors and should be readily available. A deed notation form is available from the department. Under New Rule XLIX(11), which concerns closure, if all the wastes have been removed from a landfill unit, the "owner or operator may request permission from the department to remove the notation from the deed." This is the same process that EPA provided in its regulations at 40 CFR 258.60(j). COMMENT NO. 37: A commentor stated that the department is proposing a radical change in deed notation requirements that exceeds EPA requirements, found in 40 CFR 258.60(i), which apply only to MSWLF units. RESPONSE: The department does not agree that a deed notation requirement for Class III landfill units (before the initial receipt of waste or within 60 days for a licensed landfill) is a radical change. Existing ARM 17.50.530(2)(c) requires deed notations for Class III landfill units. The department recognizes that 40 CFR 258.60(i) does not require a deed notation as a license condition for Class III or Class IV landfill units. The department stated the necessity for this rule in the statement of reasonable necessity for the proposed rules and in the Response to Comment No. 36. The department also addressed the matter of stringency in its Response to Comment No. 36. For issues concerning the regulation of MSW and non-MSW at a Class II unit in New Rule XXIV, see the response to Comment No. 12. NEW RULE XXV COMMENT NO. 38: A commentor questioned the department's authority to require insurance at solid waste management systems and to set the minimum amount needed. RESPONSE: Section 75-10-204(8), MCA, provides the authority to require liability insurance. There is no comparable federal regulation or guideline addressing the same circumstances, and, therefore, stringency findings under 75-10-107, MCA, are not required. The department determined that a minimum amount of $1 million per occurrence with a minimum annual aggregate of $2 million was necessary. The standard waste management industry practice is to have this amount of insurance. NEW RULE XXVII As discussed in the Response to Comment No. 39, the department has stricken "aesthetics" from the list of items in (2)(d) that a resource recovery, recycling, or solid waste treatment facility must control through design, construction, maintenance, and operation. NEW RULE XXVIII COMMENT NO. 39: A commentor stated the requirements proposed for Class III facilities clearly are more stringent in certain areas than the comparable EPA requirements, and that it appears that many of the proposed rules violate the stringency requirements of 75-10-107(1), MCA, which is a serious concern to the regulated community. The location restrictions in 40 CFR Part 257, Subpart A, include restrictions related to floodplains, endangered species, surface water, ground water, application to food-chain crops, disease, air, and safety. There are no design requirements and, therefore, no fault area, seismic zone, or unstable area restrictions in 40 CFR Part 257 for Class III landfill units as are found in 40 CFR Part 258 for MSW landfill units. EPA regulations in 40 CFR Part 257, for Class III landfill units, include no closure/post closure care requirements, beyond those found in the disease and safety sections, and those sections do not establish design requirements, but establish only a performance standard. RESPONSE: The department agrees that some of the proposed requirements for Class III landfill units are not found in the requirements in 40 CFR Part 257. The department is not proposing any design requirements for Class III landfills for fault areas, seismic zones, or unstable areas. The department has received several comments concerning whether certain rule adoptions and amendments would make the rules more stringent than comparable federal regulations or guidelines addressing the same circumstances, and whether they can be adopted or amended without the department making the written findings referred to in 75-10-107, MCA. New Rule XXVIII does not set closure or post-closure care requirements. Closure requirements for Class III landfill units are found in New Rule LI, not in New Rule XXVIII. There is no comparable federal regulation or guideline addressing the same circumstances, so the findings requirements of 75-10-107, MCA, do not apply. Deed notation recording requirements in New Rule XXVIII(1)(f) have been addressed in the Responses to Comment Nos. 34 and 35. Concerning bulk liquids restrictions in New Rule XXVIII(1)(c) for a Class III landfill unit, there is no comparable federal regulation or guideline addressing the same circumstances, so the findings requirements of 75-10-107, MCA, are not applicable. The requirement is consistent with EPA's discussion, in its proposal notice for adoption of its solid waste regulations in 40 CFR Part 257, of one of the purposes of cover being to reduce infiltration of rainwater and to increase runoff and decrease leachate formation. 43 FR 4950 (2/6/78). A Class III landfill unit will not have a liner, leachate collection or removal system, or a ground water monitoring network or plan, and it is not appropriate to dispose of liquid waste in such a unit, when the liquid waste could move unimpeded to ground water, causing contamination that would not be detected. In addition, although the wastes allowed to be disposed of in a Class III landfill unit are relatively inert, the addition of bulk liquids to those wastes could result in the leaching of tannins and lignins from wood waste, which could result in odor and taste problems in drinking water. Water in wood waste could also result in accelerated decomposition and settling, which could harm the cover and render it ineffective to protect the public from sharp objects or habitat for disease vectors. Concerning New Rule XXVIII(1)(b), requiring placement of six inches of cover at least every three months, EPA regulations provide that, for protection from fires or disease vectors, the "periodic application of cover material" may be required. 40 CFR 257.3-8(b). "Periodic application of cover material" is defined as the "application and compaction of soil or other suitable material over disposed solid waste at the end of each operating day or at such frequencies and in such a manner as to reduce the risk of fire and to impede disease vectors' access to the waste." 40 CFR 257.3-8(e)(6). Therefore, this requirement for the application of six inches of an approved cover is equivalent to the federal requirement in 40 CFR 257.3-8, and the finding requirements of 75-10-107, MCA, are not triggered. However, based on the experience of the department's solid waste section supervisor in managing the program and inspecting solid waste landfill facilities over 17 years, six inches of cover placed at least every three months is necessary to reduce the risk of fire and to impair the disease vectors' access to the waste. In at least two Class III landfill units where at least six inches of cover have not been placed at least every three months, fires have occurred and large numbers of mosquitoes have been observed. This requirement has been shown to be achievable because it has been followed under the existing rules and has been shown to be good management practice for many years, and there are no technological barriers to meeting this requirement. Because this requirement is equivalent to the EPA's regulation, there is no additional cost. However, the estimated costs to the regulated community, for each of 33 Class III landfill facilities, would be $2,018/acre based on the $2.50/cubic yard cost of the placement of 807 cubic yards of additional six-inch soil cover per acre of open area. There would be four applications of cover per year for a total cost of $8,072/acre. Concerning New Rule XXVIII(1)(d)(ii), pertaining to access, EPA prohibits uncontrolled public access that would subject people to health and safety hazards. 40 CFR 257.3-8(d). Therefore, the restriction for this purpose is not more stringent than a comparable federal regulation. The new rule limits and controls access and prevents unauthorized vehicular traffic and illegal dumping of wastes by requiring artificial or natural barriers. There is no comparable federal regulation for Class III landfill units, so the findings requirements of 75-10-107, MCA, are not applicable. It is necessary to limit access by unauthorized people to prevent illegal dumping of waste and to protect them from injury from heavy equipment and sharp objects. See Response to Comment No. 72 concerning stringency. COMMENT NO. 40: A commentor stated that, in (1)(b), provision should be made concerning cover requirements for Class III landfills, such as the one owned by the commentor, that contain significant amounts of clean dirt, soil and earthen materials, and no tires. The commentor suggested that a situation like this could be handled in the O & M plan on file with the landfill license, and that quarterly cover of at least six inches is not necessary. RESPONSE: Proposed New Rule XXVIII(1)(b) is substantively the same as existing ARM 17.50.511(2). Existing ARM 17.50.511 is being repealed. See Response to Comment No. 72 concerning stringency. There is no comparable federal regulation for Class III landfill units, so the findings requirements of 75-10-107, MCA, are not applicable. The department believes that a minimum quarterly cover of six inches is necessary to prevent fires and to protect against disease vectors such as mosquitoes. See Response to Comment No. 39. NEW RULE XXIX COMMENT NO. 41: A commentor disagreed with the requirements of New Rule XXIX for methane control, financial assurance, runoff controls, ground water monitoring, and liners at Class IV landfill units. The commentor stated that the department was requiring Class II and Class IV units to be operated in the same way, and that this made it prohibitively expensive for a Class IV landfill to be developed and operated. The commentor stated that the only difference between a Class II and a Class IV landfill in the rules is that cover is required every 90 days for a Class IV landfill versus the requirement of daily cover for a Class II landfill, but the design standards are about the same. The commentor stated that he has asked the department numerous times how many stand-alone Class IV landfills are found in The commentor stated that the stand-alone Class IV landfill rules should be deleted and that the department should rethink regulation of Class IV landfills. The commentor also questioned the department's authority, under the federal Subtitle D regulations, to pass these Class IV rules, because they are more stringent than the federal regulations. RESPONSE: The department agrees that New Rule XXIX is equivalent to the existing Class IV landfill unit requirements in ARM 17.50.511(3)(c), 17.50.530, 17.50.531, and 17.50.542. The only new requirement for Class IV landfill units is the deed notation requirement in New Rule XXIV. See Responses to Comment Nos. 34 and 35. The authority for the adoption of rules regulating Class IV landfill units is provided in 75-10-204, MCA. In response to this and other comments, the department is modifying the rules concerning a Class IV landfill unit to eliminate many prescriptive requirements and to instead adopt the performance standard in EPA's regulations at 40 CFR 257.3-4, that a landfill unit may not cause contamination in excess of the standards in Table 1 of New Rule XXXIII in an underground drinking water source. The reason for the deed notation requirement was stated in the statements of reasonable necessity for ARM 17.50.508 and New Rules XXIX and XXVIII(1)(f). See Response to Comment No. 72 concerning stringency. In response to the comment, the department has amended New Rule XXIX(2)(c) to provide that only the requirements in New Rule XVII, concerning explosive gases control, that are contained in EPA's regulation concerning Class IV landfill units are imposed on Class IV landfill units in Montana. Because the term "explosive gases" is used in New Rule XVII, and in 40 CFR 257.3-8, to set the basic requirements for control of explosive gases, including methane the department has substituted "explosive gases" for "methane gas" in New Rule XXIX(2)(c). COMMENT NO. 42: A commentor stated that the proposed rules regulate construction and demolition wastes, also known as Group IV wastes, in a manner that is much more stringent than comparable federal regulations. Federal rules found in 40 CFR Part 257, which regulates this type of waste, do not require financial assurance, deed notation, or elaborate closure and post-closure plans. Inclusion of the Class IV unit at the Billings Landfill in the landfill's financial assurance results in significant unnecessary costs to rate payers. RESPONSE: New Rule XXIX is equivalent to the existing Class IV landfill unit requirements in ARM 17.50.511(3)(c), 17.50.530, 17.50.531, and 17.50.542. The only new requirement for Class IV landfill units is the deed notation requirement in New Rule XXIV. See Responses to Comment Nos. 34 and 35. The authority for the adoption of rules regulating Class IV landfills is provided in 75-10-204, MCA. Because there are no comparable federal regulations or guidelines for financial assurance, deed notation, and closure and post-closure plans for Class IV landfill units, stringency findings under 75-10-107, MCA, are not required. Also, see the Responses to Comment Nos. 39 and 42 concerning stringency. The department has addressed specific rules containing requirements for Class IV landfill units in the response to specific comments on those rules. COMMENT NO. 43: A commentor stated that the term "aesthetics" is used in (1)(a), but the term is not found in 40 CFR Parts 257 or 258, and beauty is not a concern of environmental protection. RESPONSE: The department believes that aesthetics are a legitimate subject of regulation. EPA's rulemakings identify the protection of aesthetics as one legitimate purpose of cover, for example. See 43 FR 4950 (February 6, 1978). However, because it has the tools to protect those aspects of aesthetics identified by EPA, by use of cover and control of litter, the department is eliminating the word "aesthetics." COMMENT NO. 44: A commentor stated that, in (1)(c), the wastes listed are precisely the materials that EPA designated 40 CFR 257, Subpart B, facilities to accept, and the commentor stated that putrescible waste must be removed from a building prior to demolition, because it is municipal solid waste. Subsection (1)(d), concerning financial assurance, should be deleted because it is more stringent than EPA requirements for 40 CFR Part 257, Subpart B, facilities. Subsection (1)(e), requiring a deed notation, should be deleted because EPA has no requirement for deed notation for Part 257, Subpart B, facilities. There is no need to cloud the title of a property that poses such low risk. An examination of most major cities of the world would reveal that they are built on the remains of older cities. Most of civilization is built on top of what the department considers to be Class III and Class IV facilities. There is no waste screening requirement, like the requirement in (2)(a), in comparable EPA regulations; this requirement is more stringent than the federal regulations and should be deleted. In (2)(b), the requirement for MSWLF units to place daily cover for vector control conflicts with New Rule XXIX(1)(b). Subsection (2)(c), concerning methane gas control, is much more stringent than EPA requirements. This is a 40 CFR Part 258 requirement; the owners and operators of Class IV landfill units are not required to monitor for methane because of the extremely low generation rate, and the rule should be limited to the requirements in 40 CFR 257.3-8(a). Subsection (2)(f) is more stringent than the requirements found in 40 CFR 257.3-3. The proposed requirement is from 40 CFR 258.26 and should be deleted. The applicable EPA requirements are found in New Rule XXI. Concerning (2)(h), restricting bulk liquids, EPA has no restrictions on bulk liquids at 40 CFR Part 257 landfills. Concerning (2)(i), recordkeeping requirements are found in 40 CFR 258.29. EPA does not have the same requirements in 40 CFR Part 257, so the proposed rule is more restrictive than EPA regulations. The only recordkeeping requirements for construction and demolition waste landfills concern ground water monitoring and related items. RESPONSE: The department agrees with the comment concerning (1)(c), and has added "putrescible organic materials." The requirement for financial assurance in New Rule XXIX(1)(d) is not new. Existing ARM 17.50.542, which is being repealed, requires financial assurance for Class IV landfills. There is no comparable federal regulation addressing the same circumstances, so the stringency findings of 75-10-107, MCA, do not apply. However, financial assurance ensures that money is available to complete closure and post-closure care at a landfill unit. If this money was not available, closure might not be completed, post-closure care might not be conducted, and increased leachate could form and threaten an underground drinking water source. The requirement could prevent this from occurring, and Class IV landfill units have been providing financial assurance for many years. Therefore, the department declines to remove the language as requested in the comment. The department declines to remove the deed notation as an operating requirement as requested in the comment. See Responses to Comment Nos. 34 and 35. Subsection (2)(a) requires a Class IV landfill unit owner or operator to screen waste as required at a Class II landfill unit. This is carried forward from existing ARM 17.50.511(3). Section 75-10-204(2), MCA, requires the department to adopt "rules governing ... the classification of disposal sites according to the physical capabilities of the site to contain the type of solid waste to be disposed of." There is no comparable federal regulation addressing the same circumstances. Therefore, it is not necessary to make findings under 75-10-107, MCA. Waste screening is an inherent function of all solid waste management systems, to ensure that only the correct waste stream enters the appropriate facility. All hazardous wastes and municipal solid wastes are prohibited from disposal at Class IV solid waste management systems, and a waste screening program must be implemented to ensure protection of human health and the environment from the release of hazardous contaminants to ground water that could be used as a drinking water source. If hazardous wastes, or municipal solid waste, were not screened from a Class IV landfill unit, the public could be exposed to contamination that is harmful to human health. All solid waste management systems currently screen as part of their plans of operation. Therefore, the department declines to remove the language as requested in the comment. The department does not agree that (2)(b), concerning disease vector control, conflicts with (1)(b), concerning the requirement to apply cover at least quarterly. New Rule XVI, Disease Vector Control, provides that the owner or operator of a Class II landfill unit shall prevent or control on-site populations of disease vectors using techniques appropriate for the protection of human health and the environment. The requirement to use appropriate techniques to control disease vectors implies that the application of approved cover would be considered in the selection of the appropriate technique to control disease vectors. It does not mean that the daily cover requirement for a Class II landfill unit applies to a Class IV landfill unit. Concerning the requirements for control of explosive gases at a Class IV landfill unit, see the Response to Comment No. 41. Subsection (2)(f), concerning run-on and run-off control systems, is equivalent to existing ARM 17.50.511(3). ARM 17.50.511(3) provides: "Class IV solid waste units and components thereof must be designed, constructed, maintained, and operated so as to control … residues, waste water, leachate …." Control of residues, waste water, and leachate includes the run-on and run-off control systems described in New Rule XX. This is necessary to ensure that a Class IV landfill unit does not pollute state waters, as provided in New Rule XI(1)(c). Subsection (2)(h), concerning bulk liquids, is equivalent to existing ARM 17.50.511(2)(c)(vi). The commentor noted that bulk liquids may not be received at a Class IV landfill unit. It is therefore necessary to require that they be screened out of the waste allowed to be disposed of there. For Class IV landfill units, which can accept painted wood waste, drywall, and other construction waste, the conditions created by bulk liquids could result in the same harms described in the Response to Comment No. 39 for Class III landfill units, plus the environment created by the presence of liquids can create leachate that can contaminate an underground drinking water source in excess of the applicable ground water quality standard. The exclusion of bulk liquids from Class IV landfill units is necessary to protect public health because it will prevent the harms described above. This requirement has been followed under the existing rules and has been shown to be good management practice for many years. See also Response to Comment No. 72 concerning stringency. Subsection (2)(i), concerning recordkeeping, is equivalent to existing ARM 17.50.511(2)(c)(vii). See Response to Comment No. 72 concerning stringency. Where by rule the department has provided that documents are to be placed in the operating record at a Class IV landfill unit, it is necessary to require that information to be kept by the owner or operator. NEW RULE XXXI As discussed below, in the Response to Comment No. 45, the department has revised New Rule XXXIII to use the phrase "underground drinking water source." New Rule XXXIII is in New Subchapter III. Because that phrase was not defined in this rule, which includes definitions for use in New Subchapter III, it is necessary to revise this rule to include a definition of that term. Therefore, the department has revised New Rule XXXI to include the definition of "underground drinking water source." NEW RULE XXXIII COMMENT NO. 45: The design standards proposed by the department for Class IV facilities are more stringent than comparable EPA requirements, therefore, findings under 75-10-107, MCA, are required. RESPONSE: The design requirements for Class IV landfills are substantively the same as the existing requirements in ARM 17.50.506 and 17.50.511. Existing ARM 17.50.506 and 17.50.511 are being repealed. In response to comments, the department has stricken many of the prescriptive requirements in New Rule XXXIII for a Class IV landfill unit, such as requirements for a liner or leachate collection system. Instead, the department is basing design requirements on a showing that a Class IV landfill unit will not contaminate an underground drinking water source, which is the standard required by EPA in 40 CFR 257.3-4. The department has amended (1)(a) to refer to an underground drinking water source and has added a definition of underground drinking water source to New Rule XXXI. In reviewing the proposed new rules while responding to comments, the department identified a potential problem in New Rule XXXIII(1). That section would have required an owner or operator to design a Class II or IV landfill unit to meet Montana ground water quality standards. The department did not provide a statement of reasonable necessity for the proposed adoption, and has stricken the reference to Montana ground water quality standards in that rule. However, Montana ground water quality standards are applicable to a discharge from a solid waste management system. See 75-5-605(1)(a), MCA, of the Montana Water Quality Act, which makes it illegal to cause pollution as defined in 75-5-103, MCA. Section 75-5-103(25)(a), MCA, defines pollution as exceeding a COMMENT NO. 46: A commentor stated that, in (2)(d), the phrase "any other matter determined by the department to be necessary to protect human health or the environment" is more stringent than comparable EPA regulations and is vague, arbitrary, capricious, and easily abused and should be deleted. RESPONSE: The department needs flexibility to determine if a design submission is adequate. EPA's comparable regulations provide that an agency such as the department, when approving an alternative design, "shall consider at least the following factors:". In response to the comment, the department is eliminating (2)(d) and is modifying (2) to state "at least." This retains the department's flexibility to require additional information if necessary, while removing the language objected to and replacing it with the comparable EPA language. COMMENT NO. 47: A commentor stated, concerning (3), that EPA does not require that the relevant point of compliance be inside a permitted facility, rather, EPA requires only that the RPOC be on land owned by the owner of the unit. The owner or operator of a facility might be compelled to license additional land simply to place an additional well on property it already owns, which would be unnecessary and could be expensive. The department should change the language of the rule to mirror the requirements of 40 CFR 258.40(d). New Rule XXXIII(4) is more stringent than EPA requirements. In 40 CFR 258.40(a)(1) and (2), EPA allows an owner or operator to submit a design meeting the requirements of New Rule XXXIII(1)(a) to a state for approval, or to use the default prescriptive design in New Rule XXXIII(1)(b). A (1)(a) design does not have to equal a (1)(b) design, but must simply provide the protection required in (1)(a). This proposed rule should not be adopted. RESPONSE: The department agrees with the comment concerning (3), and has amended New Rule XXXIII(3) to require only that the monitoring well at the relevant point of compliance be on land owned by the owner of the landfill unit. The department is concerned that, if the owner were to transfer the land on which the well was located, access to and protection of the monitoring well could become a problem. The department may address this matter further in a future rulemaking. Subsection (3)(i) was stricken, and "at least" placed in (3), for the same reason as in the Response to Comment No. 46. The department agrees with the comment concerning (4), and has stricken the proposed language. NEW RULE XXXIV COMMENT NO. 48: A commentor stated that the department should not amend or delete the definitions of "existing unit" or "new unit" because this would affect "grandfathered" units that were not required to retroactively comply with design requirements that took effect on October 9, 1993. RESPONSE: The department determined to amend the definitions of "existing" and "new" when used in conjunction with "unit" or a type of unit in each subchapter of the rules subject to this rulemaking. The amendments of those definitions are not intended to affect existing units, that is, those units that were accepting waste on October 9, 1993. The department also noticed, in analyzing the comment, that New Rule XXXIV, as a design rule, could address only new units or lateral expansions of existing units. The proposed rule had not specified that it concerned only those types of units, so the department has modified New Rule XXXIV(1) through (3) to provide that the design requirements in those sections apply only to new units or lateral expansions. COMMENT NO. 49: A commentor suggested that New Rule XXXIV(1)(a), which states that a leachate collection system is not required for a unit for which a no-migration demonstration has been approved, should refer to New Rule XXXVII(2), which contains the no-migration rule. Subsection (1)(b) is more stringent than EPA requirements. EPA has permeability requirements for the standard composite liner only. For alternate designs, even designs using natural materials, the owner or operator needs to demonstrate only that they will prevent migration of contaminants to the uppermost aquifer over the life of the unit and the post-closure care period, and (1)(b) should be deleted. There are no federal recordkeeping requirements for leachate measurement or removal volumes as are found in (3)(a). Facilities in the There are no slope requirements in 40 CFR Part 258 as are arbitrarily required in (3)(b). EPA specifies only the performance standard found in New Rule XXXIII(1)(a), or the standard design found in New Rule XXXIII(1)(b), and engineers are free to choose any design that meets those requirements. Subsection (3)(c) goes far beyond the EPA design requirements for MSWLF units. "Secondary containment" is not defined, but double liners are not required by 40 CFR 258.40 for leachate collection sumps. In addition, (3)(c) is grammatically incorrect, as well as being more stringent than federal regulations. A commentor questioned the meaning of (3)(d), which states that an owner or operator of a Class II or Class IV landfill unit shall design a required leachate collection and removal system to provide for increased hydraulic head in the leachate removal system. The commentor stated that a design for a prescriptive liner could not allow for an increased head of more than 30 cm of leachate over the liner, and that there was no such requirement for an alternative liner. Concerning (6), CQA and CQC reports are the engineer's assurance to the department that the unit was constructed as designed, and they should be placed in the operating record and submitted to the department. Department approval is not needed or desired, unless the department is signing and sealing the document and taking responsibility for the design and construction. Department approval may expose the department to liability for failure of the unit. In (7), the commentor suggested striking the word "independent" in front of " RESPONSE: In response to the comment regarding (1)(a), the department agrees that the rule would be clarified by inserting a reference to New Rule XXXVII(2). However, the department believes that it would be helpful to the reader to retain the narrative describing the no-migration demonstration. Therefore, the department is adding the reference, but retaining the narrative. Subsection (1)(b), concerning the hydraulic conductivity of soil in a liner, is equivalent to existing ARM 17.50.506(4)(f). See Response to Comment No. 44. In response to comments, the department is eliminating many prescriptive requirements in New Rule XXXIII for a Class II landfill unit with an alternative design to the prescriptive liner and leachate removal system. Instead, the department is basing design requirements on a showing that a Class II landfill unit will not contaminate the uppermost aquifer, which is the standard required by EPA in 40 CFR 258.40(a)(1). Therefore, the department has eliminated (1)(b). Both existing ARM 17.50.506(2)(c) and 40 CFR 258.40(c)(3) require consideration of the volume of leachate as a component for design approval. The requirement in (3)(a), for accurate monitoring of leachate, measured to within one centimeter, is necessary for proper evaluation of the effectiveness of an approved liner. Metric units are commonly used in state rules and federal regulations, and are appropriate here. Subsection (3)(b), concerning minimum slope of a liner with a leachate collection system, is equivalent to existing rule ARM 17.50.506(6)(b). See Response to Comment No. 44. A 2% minimum slope for a leachate collection system is necessary to cause leachate to flow to the collection point. This requirement is contained in a comparable EPA guideline, Municipal Solid Waste Disposal Facility Criteria Technical Manual, Subpart D Design Criteria, EPA 530-R-93-017, page 152; and Sanitary Landfill Design and Operation, SW-65ts, page 9-35. Therefore no findings are required by 75-10-107, MCA. In response to the comment on (3)(b) concerning maximum slope for a liner, the department has stricken the requirement that the maximum slope be limited to 33%. The maximum slope allowed will be determined by engineering submission and review. In response to the comment concerning (3)(c), the department has removed (3)(c) because an owner or operator is required by New Rules XXXIII and XXXIV to design a unit with an alternative liner to meet the ground water standards in Table 1 of New Rule XXXIII, and to obtain department approval of that design. The department has determined that it is not appropriate to prescribe the elements of that design; rather, it will review a design to determine whether it will meet the standards. See Response to Comment No. 50. The purpose of (3)(d) was to require that the design of a leachate removal system, which could create a column of leachate in a pipe above a liner greater than 30 cm as it was being pumped away, had to take this increased head into account to protect against leachate contamination of ground water due to stress caused by the increased head on the liner. This is a necessary element of protecting ground water at a landfill, and should be addressed in a design. This requirement is contained in existing ARM 17.50.506(8)(c). However, in response to the comment, the department is eliminating the specific requirement as unnecessary, because it must be addressed as part of the design of the unit to show that ground water will not be contaminated at the RPOC. Concerning (6), CQA and CQC plans are necessary to ensure a landfill was correctly constructed, and it is necessary for the department to review them to determine whether they are adequate. Use of CQA and CQC plans is contained in comparable EPA guidelines and the scientific literature. See, Quality Assurance and Quality Control for Waste Containment Facilities, EPA/600/R-93/182, page 11, which was expanded into a book by D.E. Daniel, Ph.D, P.E., and R.M. Koerner Ph.D, P.E., entitled Waste Containment Facilities- Guidance for CQA and CQC of Liner and Cover Systems (American Society of Civil Engineers 2d ed. 2007). Research conducted by the Solid Waste Association of North America (SWANA) Applied Research Foundation Disposal Group indicated that long-term environmental risks from Subtitle 'D' landfills are reduced by CQC\CQA of the liners and covers. As provided in the September 2009 edition of the MSW Management Magazine at p. 12, "Recent studies of Subtitle 'D' landfills have yielded important findings about their design, construction and operation. These studies have found that good design and appropriate CQC testing and CQA oversight during construction are important to provide bottom-liner and final cover systems that function." Because EPA recommends the use of CQC and CQA plans in the above-listed guideline, the requirement is not more stringent than a comparable federal guideline. Also, CQC and CQA plans are a component of a design plan. See New Rule XXXIV(5) and stringency discussion, above, for that rule and for New Rule XXXIV(6). The design plan is required as part of a license application. See discussion of New Rule XXXIII(1), above. See also, EPA guideline Quality Assurance and Quality Control for Waste Containment Facilities, EPA/600/R-93/182, page 11: "Most state and federal regulatory agencies require that a MQA/CQA plan be submitted by the owner/operator and be approved by that agency prior to construction. The MQA/CQA plan is usually part of the permit application." See also D.E. Daniel, Ph.D, P.E., and R.M. Koerner Ph.D, P.E., Waste Containment Facilities- Guidance for CQA and CQC of Liner and Cover Systems, page 26 (American Society of Civil Engineers 2d ed. 2007): "The permitting agency reviews the owner/operator's permit application, including plans, specifications, and the site-specific MQA/CQA document, for compliance with the agency's regulations and to make a decision to issue or deny a permit based on this review." Licensing is a duty imposed on the department by the Legislature under 75-10-221 and 75-10-224, MCA. A rule adopted to implement a direct requirement of The comment concerning (6) does not address a specific rule requirement, but addresses the department's CQA and CQC report review and approval procedures. It is prudent to require the submission of the CQA and CQC reports to ensure that the construction has been completed according to the approved design. This is suggested in the EPA guideline, Quality Assurance and Quality Control for Waste Containment Facilities, EPA/600/R-93/182, page 14, and D.E. Daniel, Ph.D, P.E., and R.M. Koerner Ph.D, P.E., Waste Containment Facilities- Guidance for CQA and CQC of Liner and Cover Systems, page 37 (American Society of Civil Engineers 2d ed. 2007). "The permitting agency also has the responsibility to review all MQA/CQA documentation during or after construction of a facility, possibly including visits to the manufacturing facility and construction site to observe the MQC/CQC and MQA/CQA practices and to confirm that the approved MQA/CQA plan was followed and that the facility was constructed as specified in the design." Quality Assurance and Quality Control for Waste Containment Facilities, EPA/600/R-93/182, page 3, and D.E. Daniel, Ph.D, P.E., and R.M. Koerner Ph.D, P.E., Waste Containment Facilities- Guidance for CQA and CQC of Liner and Cover Systems, page 27 (American Society of Civil Engineers 2d ed. 2007). Because the submission of CQA and CQC reports, and their approval by the department, is contained in comparable EPA guidelines, and because the department is charged by law to review and approve design as part of the licensing process, findings under 75-10-107, MCA, are not required. Concerning the comment on (7), because of the potential for a conflict of interest, it is not appropriate for a licensed professional engineer to certify the proper construction of a landfill that is owned by the engineer's employer. To avoid a conflict of interest, the certification must be conducted by a third party. See Quality Assurance and Quality Control for Waste Containment Facilities, EPA/600/R-93/182, page 8: "The MQA/CQA engineer is normally hired by the owner/operator and functions separately of the contractors and owner/operator." Because this requirement is contained in comparable EPA guidelines, stringency findings under 75-10-107, MCA, are not required. Therefore, the department declines to remove the language as requested in the comment. In New Rule XLIII, in referring to CQC and CQA, the department used the word "plan," but, in New Rule XXXIV, the department used the word "manual," to refer to the same document. Both terms are used in the solid waste field, but, for consistency, the department has amended New Rule XXXIV to use "plan" exclusively. COMMENT NO. 50: A commentor stated that (1)(d) allows the department to ask for any other design standards determined by the department to be necessary to meet the requirements of New Rule XXXIII(1) and that this type of requirement is too open-ended and vague. The department could ask for anything that could drive away the applicant because of the cost, and there is no provision in the rules for a landfill owner or operator to disagree that the department needs this additional information. If it is unreasonable or too expensive, an owner or operator could be forced to drop an application after spending tens of thousands of dollars to get to that point, and this rule should be revised or deleted. RESPONSE: The requirements of New Rule XXXIII(1), which are referenced in New Rule XXXIV(1)(d), are the same as those in 40 CFR 258.40(a) and existing rule ARM 17.50.506(1). An owner or operator is required to obtain department approval of a design, and in considering whether to approve the design, the department is required to consider "at least" the factors listed in New Rule XXXIII(2)(a) through (c), which is the same language used by EPA in 40 CFR 258.40(c)(1) through (3). The use of "at least" indicates that the EPA intended the department to have flexibility in determining if other information should be considered. By adopting "at least," the department retains the flexibility intended by EPA. Because that flexibility is available in New Rule XXXIII(2), and New Rule XXXIV(1)(d) refers to that provision, New Rule XXXIV(1)(d) is redundant and is being stricken. COMMENT NO. 51: A commentor noted that (3)(c) requires secondary containment, monitoring of leachate and removal systems, and monitoring of leachate in collection sumps within an alternatively lined cell. The commentor asked whether this all needs to be completed within a lined cell, and the commentor questioned the justification and cost versus benefits for this requirement. The commentor also questioned the legality, due to the proposed rule being more stringent than the Subtitle D federal regulations, found at 40 CFR Parts 257 and 258. The commentor stated that this rule provision is unnecessary, unwarranted, and very expensive and should be deleted because the applicant already would have demonstrated that the alternative liner system meets the Subtitle D ground water protection standards, or the alternative liner wouldn't have been approved. RESPONSE: The department agrees that the phrase "monitoring of leachate in collection sumps within alternative liners" is not justified in New Rule XXXIV. Alternative liners may be approved under New Rule XXXIII(1)(a) or New Rule I. The requirements for an alternative liner would be determined based on engineering submissions and reviews pursuant to those rules. The department agrees that "secondary containment" is not defined. Therefore, the department has stricken New Rule XXXIV(3)(c). Subsection (3)(e) was stricken for the same reasons as in the Response to Comment No. 46. COMMENT NO. 52: A commentor stated that the conjunction at the end of (4)(a), and the entire (4)(b) should be changed to read: "…; or (b) is approved by the department under the requirements of [NEW RULE I]." Proposed (4)(b) needs to be deleted. RESPONSE: Because New Rule XXXIV(1)(d), which required an owner of a Class II or IV landfill to meet any other design standard determined by the department to be necessary to meet the requirements of New Rule XXXIII(1), has been stricken, and the only requirement being referred to in New Rule XXXIV(4)(b) is in New Rule XXXIV(1)(d), New Rule XXXIV(4)(b) has also been stricken. Regarding the commentor's suggestion that New Rule XXXIV(4) should be amended to state that a unit approved under New Rule I may recirculate leachate, New Rule I authorizes leachate to be circulated at a landfill unit approved under that rule if recirculation of leachate is part of the approved design and operation of the unit; therefore, it is unnecessary to insert a reference to New Rule I in New Rule XXXIV. NEW RULE XXXVI For the same reason discussed in the Response to Comment No. 45, the department is revising New Rules XXXVII and XXXVIII to use the phrase "underground drinking water source." New Rules XXXVII and XXXVIII are in New Subchapter IV. Because that phrase was not defined in this rule, which includes definitions for use in New Subchapter IV, it is necessary to revise this rule to include a definition of that phrase. The department has revised New Rule XXXVI to include a definition of "underground drinking water source." NEW RULE XXXVII For the same reason discussed in the Response to Comment No. 45, the department has revised New Rule XXXVII(2) to refer to "the uppermost aquifer, or underground drinking water source," as required in New Rule XXXIII. For the same reason, similar revisions have been made to New Rule XXXVIII and New Rule XLV.
NEW RULE XXXVIII COMMENT NO. 53: A commentor suggested adding the following language as (1)(c), to coordinate this rule with the requirements of other agencies and Montana laws: "Ground water monitoring wells must be drilled by a driller licensed according to the requirements of ARM Title 36, chapter 21, subchapter 4. Ground water monitoring wells at solid waste management facilities must be installed by a person licensed under ARM Title 36, chapter 21, subchapter 7." A commentor stated that (3) should be replaced with: "Ground water monitoring wells must be constructed according to the standards found in ARM Title 36, chapter 21, subchapter 6." The rules from the Board of Water Well Contractors provide necessary construction requirements and provide a single, uniform source of regulation. A commentor stated that (4)(a) should be revised to read: "submit a ground water monitoring plan, prepared by a qualified ground water scientist,". The necessity for department approval should be removed from this rule because state approval is not required by EPA. The plans simply need to be prepared by a competent person and placed in the operating record and submitted to the department. To do more, would place an undue regulatory burden on the facilities. The commentor stated that (4)(a)(iv) and (d), which authorize the department to require any other information determined to be necessary, should not be adopted because they are vague and overly broad. Commentors stated that they disagreed with the requirement in (4)(b) of updating ground water monitoring plans at least every five years. A commentor stated that monitoring networks need to be updated only if new units are added that are outside the monitoring network approved in (2). A commentor requested that the requirement be revised to read: "to be reviewed and updated if necessary every five years," and that an update not be automatically required every five years. A commentor stated that it costs up to several thousand dollars to update a network, that, especially at smaller landfills, it takes 10 to 15 years to fill a cell, and there isn't really anything that changes at these landfills. A commentor stated that, while ground water monitoring plan updates may be needed every five years at other facilities, they were not needed at the 16 facilities where the commentor worked. A commentor stated that (4)(c) is duplicative of (6)(b) and should be deleted. A commentor stated that (6)(b) should read: "be certified by a qualified ground water scientist or approved by the department," which would conform to the requirements of 40 CFR 258.51(d)(2). RESPONSE: In (1)(b) the word "disposal" has been stricken in response to Comment No. 6. The department agrees that it is worthwhile to inform persons regulated under these rules that the drilling and construction of ground water monitoring wells at solid waste management systems is governed by laws and rules of the Department of Natural Resources and Conservation (DNRC). However, the adoption of the DNRC's ground water monitoring well rules in ARM Title 36, chapter 21, subchapters 4 and 7, may be beyond the scope of the current rulemaking because it would impose additional enforcement consequences on an owner, operator, or licensee--the $1,000 per day penalty provision of 75-10-228, MCA, and the injunction provision of 75-10-231, MCA. In addition, it could make the Department of Environmental Quality responsible for determining compliance with the DNRC rules. Existing ARM 17.50.707(1) required compliance with ARM Title 36, chapter 21, subchapter 8, and it was adopted by reference in existing ARM 17.50.707(13). Because it may be beyond the scope of this rulemaking to adopt subchapters 4 and 7 of the DNRC rules, the department has determined not to adopt subchapter 8 either. Rather, New Rule XXXVII(7) refers to that subchapter so that landfill unit owners and operators will be aware that it applies to construction of monitoring wells. Therefore, the department is adding a new (7), instead of a new (1)(c) as the commentor suggested, that does not adopt the DNRC rules, but rather gives notice that the drilling and construction of ground water monitoring wells at solid waste management systems is governed by the DNRC's rules at ARM Title 36, chapter 21, subchapters 4, 7, and 8. In (4)(a), concerning department approval of ground water monitoring plans, submission and department approval of a ground water monitoring plan is required under 75-10-207(4), MCA. The number, spacing, and depth of ground water monitoring wells are necessary components of a ground water monitoring plan. These are required elements of a multiunit ground water monitoring system, which is subject to review and approval by the state, in EPA's regulations at 40 CFR 258.51(b). Because approval of a ground water monitoring plan is required by state law, the findings requirements of 75-10-107, MCA, are not triggered. Therefore, the department declines to revise the language as requested in the comment. In response to the comment, the department has stricken (4)(a)(iv) and (d). Subsection (4)(b), concerning updating of a ground water monitoring plan, is equivalent to existing ARM 17.50.709(1)(b)(iii). Existing ARM 17.50.709 is being repealed. It is necessary to require an update to a ground water monitoring plan every five years because of the dynamic nature of a landfill. Because waste units can expand, or new units can be located in a different part of a property in relation to the area covered by monitoring wells, it is important to have the ground water monitoring plan updated every five years to capture those changes. If the owner or operator believes that nothing has changed at the landfill that would affect the ground water monitoring plan, the update should provide the basis for that position, and no further submission would be necessary. A ground water monitoring plan and plan updates are not addressed in the federal solid waste regulations (40 CFR Parts 257 and 258). Therefore, the requirement to submit a plan update for approval does not trigger the findings requirements of 75-10-107, MCA, because EPA has no comparable regulations that address the same circumstances. Subsection (4)(c) requires that the ground water monitoring plan be placed in the operating record, and (6)(b) requires that a certification of the number, spacing, and depths of monitoring wells by a qualified ground water monitoring scientist be placed in the operating record. The department does not agree that the sections are redundant and duplicative. If the owner or operator wished to provide the certification as part of the ground water monitoring plan that is placed in the operating record, only one such placement would be necessary. Therefore, the department declines to delete the language as requested in the comment. In (6)(b), it is necessary for the department to review certification by a qualified ground water monitoring scientist to ensure the number, spacing, and depths of the monitoring wells are appropriate. Because this information is an integral part of a ground water monitoring plan, and the department is required to review and approve such plans under 75-10-207(4), MCA, its review of the certification is required by law and does not require findings under 75-10-107, MCA. Therefore, the department declines to revise the language as requested in the comment. For the same reason discussed above, in the Response to Comment No. 45, the department has revised New Rule XXXVIII(1) to refer to "the uppermost aquifer, or underground drinking water source," as required in New Rule XXXIII. NEW RULE XXXIX COMMENT NO. 54: A commentor expressed concern for the requirements in (3) that inorganic metal constituents must be monitored for "total" metals and that samples may not be field-filtered. The commentor stated that monitoring should be conducted for "dissolved" metals rather than for "total" metals. RESPONSE: The department agrees with the comment and has amended New Rule XXXIX to require monitoring for dissolved metal concentrations. Existing ARM 17.50.708(9) provides that: "Laboratory analysis must be for the dissolved metals concentration in the ground water, unless another alternative for analysis is approved in writing by the department on an individual facility basis." Existing ARM 17.50.708 is being repealed. Similar language to that quoted from ARM 17.50.708(9) has been added to New Rule XXXIX with a reference to Appendix I or II to 40 CFR Part 258 (July 1, 2008), because these appendices contain the lists of metals that must be analyzed. In addition, those Appendices, which were in the proposed rulemaking at the end of New Rules XL and XLI, respectively, are being amended to eliminate references to monitoring for "total" metals as opposed to "dissolved" metals. COMMENT NO. 55: A commentor stated that 40 CFR 258.53(a) and 40 CFR 257.23(a), concerning sampling and analysis plans for ground water monitoring, are self-implementing and any additional requirements beyond the requirements of the federal regulations must be justified under the requirements of 75-10-107, MCA. The commentor stated that EPA regulations do not require department approval as in New Rule XXXIX(1). The commentor stated that (1)(f), which requires an owner or operator to submit a sampling and analysis plan along with any other information determined by the department to be necessary, should not be adopted because it is vague and overly broad. RESPONSE: Ground water sampling and associated analysis are fundamental aspects of the ground water monitoring plan required by 75-10-207, MCA. Without a sampling and analysis plan, a ground water monitoring plan would be meaningless. The EPA, in 40 CFR 258.53(a) and 258.23(a), requires sampling and analysis procedures in a ground water monitoring program. The ground water monitoring plan required in ARM 17.50.508 and New Rule XXXVII is the method used by the department to implement the ground water monitoring program required by EPA, and the elements of the sampling and analysis plan in the rule are taken from the EPA regulation. Therefore, New Rule XXXIX(1) is not more stringent than a comparable federal regulation. Because a ground water monitoring plan is required by state law, and because a sampling and analysis program is required under the EPA regulations, 75-10-107, MCA, does not apply. Subsection (1)(f) was stricken in response to the comment. NEW RULE XL COMMENT NO. 56: A commentor stated that, as it applies to Class IV landfills, (3) should be revised because it is more stringent than EPA requirements found in 40 CFR 257.24(a)(1), and the department has broader authority to require removal of constituents under Part 257 than under Part 258. Sections (5) and (6) are more stringent than EPA requirements found in 40 CFR 257.24(c) and 40 CFR 258.54(c). The director of an approved state, i.e., the department, is given no intervention authority by EPA. The determination of any statistically significant increase that would trigger assessment monitoring resides with the owner or operator alone. The department has no authority to second guess the results of the statistical tests, or to conduct different statistical testing on its own initiative, and the language in (5), (5)(a), and (5)(b) should be revised to reflect this. Detection begins a mandatory regulatory sequence that requires no department approval as is found in (5)(b); the department must only be notified. Section (6) should be deleted entirely. Section (7) is more stringent than EPA requirements in 40 CFR 257.24(c)(3) and 40 CFR 258.54(c)(3). The department has no authority to nullify a certification by a qualified ground water scientist. Section (7) should be changed to reflect the language of 40 CFR 257.24(c)(3) and 40 CFR 258.54(c)(3). RESPONSE: New Rule XL(3), concerning an alternative list of inorganic indicator parameters, is substantially identical to the comparable EPA regulations at 40 CFR 257.24(a)(2) and 258.54(a)(2). In addition, it is equivalent to existing ARM 17.50.708(4)(b). Existing ARM 17.50.708 is being repealed. Because New Rule XL(3) is not more stringent than comparable federal regulations, no findings are required by 75-10-107, MCA. The department declines to make the requested change. The requirements in (5)(b) and (6) for department review and approval of the assessment monitoring program and the statistically significant change in an alternative list parameter are not subject to the stringency requirements of 75-10-107, MCA. Section 75-10-207(4), MCA, requires the submittal of a ground water monitoring plan for department review and approval. Ground water sampling and the associated analyses and determinations are all fundamental aspects of the ground water monitoring required by 75-10-207(4), MCA. The assessment monitoring program in New Rule XL(5)(b) contains the elements of a ground water assessment monitoring plan. Because department review and approval of a ground water monitoring plan is required by Montana law, the findings requirements of 75-10-107, MCA, do not apply. It is necessary for the department to review the assessment monitoring program developed pursuant to (5)(b), and the statistically significant change in an alternative list parameter pursuant to (6), to ensure the ground water monitoring program meets the requirements of New Rule XLI. Concerning a statistically significant change in an alternative list parameter triggering assessment monitoring, in 40 CFR 258.54(a)(2), EPA allows the department to use an alternative list of inorganic indicator parameters in place of some or all of the metals in Appendix I. One of those parameters is pH. pH is a measure of acidity. An increase in acidity is demonstrated by a decrease in pH. Therefore, for pH, a statistically significant increase in acidity will be indicated by a statistically significant decrease in pH. Because acids are highly reactive solvents, heavy metals that are potentially harmful to human health are stripped off by higher acidity and made more available to come into contact with people. For pH, then, a statistically significant decrease is the appropriate measure for determining whether assessment monitoring should be triggered. However, EPA designated only a statistically significant increase in a constituent or parameter as triggering assessment monitoring. Yet, as noted above, pH is an inorganic indicator parameter that could be required to be monitored for on an alternative list. It would be unreasonable for EPA to allow the department to use pH as an alternative list indicator parameter for detection monitoring, and then not to have a consequence for a statistically significant decrease. The omission of decreased pH from triggering a consequence, while allowing it to be used as an alternative parameter, means that EPA's regulation is not comparable and does not address the same circumstances as New Rule XL(6). Therefore, New Rule XL(6) is not more stringent than the comparable EPA regulation. Because the department did not wish to subject a unit owner or operator to the increased cost of assessment monitoring, when decreased pH was detected, unless the department had determined that it was necessary, the department proposed to require assessment monitoring only when it was necessary to protect health or the environment. Therefore, the department declines to revise the language as requested in the comment. Concerning department review of a demonstration of a statistically significant change revealed by detection monitoring, it is necessary for the department to review the demonstration, developed pursuant to (7) concerning a statistically significant decrease from background levels for a pH, to determine whether assessment monitoring is required. The department has prepared findings, pursuant to 75-10-107, MCA, concerning the stringency of the requirement in (7) for department approval. See Stringency Findings for this rule. Therefore, the department declines to revise the language as requested in the comment. The department notes that the word "total" in Appendix I, and a reference to the word "total" in footnote 2, were stricken in response to Comment No. 54. NEW RULE XLI COMMENT NO. 57: A commentor stated that the next to the last sentence in (2) should read: "The department may specify an appropriate subset of wells to be sampled and analyzed for Appendix II constituents during assessment monitoring." This language would be more consistent with the language in 40 CFR 258.55(b). Subsection (4)(d) should include: "The groundwater protection standard must be established in accordance with (8) or (9)." Section (5) should be revised to be no more stringent than federal regulations, and department approval should not be required. Return to detection monitoring is the choice of the owner or operator of the facility after two consecutive sampling events. Subsection (7)(b) is more stringent than the comparable requirements of 40 CFR 258.55(g)(2) and 40 CFR 257.25(g)(2). The department has no approval authority over the certification of a qualified ground water scientist. 40 CFR 258.55(g)(2) reads "... certified by a qualified groundwater scientist or approved by the Director ..." 40 CFR 257.25(g)(2) uses identical language. If the owner or operator of a facility cannot make a positive determination, then the requirements of (7) are automatic. RESPONSE: The proposed language in the second-to-the-last sentence of New Rule XLI(2), and the suggested language in the comment are the same in substance. The language chosen by the department in the proposed rule uses the active voice and makes it clear that the regulated entity has the duty to monitor as specified by the department. Therefore, the department declines to revise the language as requested in the comment. Subsection (4)(d) references the establishment of a ground water protection standard pursuant to (8). Subsection (8)(d) references the establishment of a ground water protection standard pursuant to (9). A citation to (9) in (4)(d) is not necessary. Therefore, the department declines to revise the language as requested in the comment. Concerning New Rule XLI(5), which provides for department review of a determination that assessment monitoring has shown that constituent concentrations are at or below background, it is necessary for the department to review the determination, developed pursuant to (5) concerning whether concentrations of all Appendix II constituents are at or below background levels, to ensure that a return to detection monitoring is appropriate. The department has prepared findings, pursuant to 75-10-107, MCA, concerning the stringency of the requirement in (5) for department approval. See Stringency Findings for this rule. Therefore, the department declines to revise the language as requested in the comment. Concerning the requirement in (7)(b), for department approval of a demonstration that a statistically significant increase of a contaminant over background levels was caused by a source other than a landfill, it is necessary for the department to review that demonstration to determine whether it is appropriate for assessment monitoring to continue. The department has prepared findings, pursuant to 75-10-107, MCA, concerning the stringency of the requirement in (7)(b) for department approval. See Stringency Findings for this rule. Therefore, the department declines to revise the language as requested in the comment. New Rule XLI(3) and (4), concerning alternate frequencies for monitoring, included, through the use of improper punctuation, the post-closure care period in the active life of a facility. The post-closure care period is not part of the active life and the department has corrected the punctuation to correct that mistake. The word "total" in Appendix II, and a reference to the word "total" in footnote 2, were stricken in response to Comment No. 54. NEW RULE XLII COMMENT NO. 58: A commentor stated that (1)(b), which requires an owner or operator to submit to the department for approval an assessment of corrective measures that addresses any other criteria determined by the department to be necessary to protect human health and the environment, should not be adopted because it is more stringent than EPA requirements and is vague and overly broad. RESPONSE: New Rule XLII(1)(b) concerns the department's review and approval of an assessment of corrective measures. It is necessary for the department to review these determinations to ensure that the facility has made a reasonable assessment of the monitoring data. The department has prepared findings, pursuant to 75-10-107, MCA, concerning the stringency of the requirement in (1)(b) for department approval. See Stringency Findings for this rule. The department declines to remove the requirement as requested in the comment. In response to the comment, the phrase in (1)(b) concerning "necessary to protect human health or the environment" was stricken. Because the department did not provide a statement of reasonable necessity for the adoption of the phrase "applicable Montana ground water quality standards" in (1), the department has stricken the phrase. NEW RULE XLIII COMMENT NO. 59: A commentor stated that, in the 1988 EPA rulemaking proposal, 40 CFR 258.57(a) contained the following language: "Based on the results of the corrective measure study conducted under § 258.56, the State must select a remedy ...." In the final rule adopted in 1991, the responsibility was on the owner/operator, and New Rule XLIII should reflect this significant change. Concerning (1)(b), there is no "corrective measures plan" required in New Rule XLII(1); only an assessment is required. New Rule XLIII(1)(b) imposes a numeric performance standard, a 90-day period for submitting a selected remedy report after department approval of the corrective measures assessment, on the owner or operator that is more stringent than EPA requirements. 40 CFR 258.57(a) and 40 CFR 257.27(a) include no deadline, but include only a requirement to send the state director, within 14 days after a remedy is selected, a report, placed in the operating record, describing how the requirements of 40 CFR 258.57(b) and 40 CFR 257.27(b) are met. 40 CFR 258.56(a) simply states: "Such assessment must be completed within a reasonable period of time," and 40 CFR 257.26(a) uses identical language. In 40 CFR 258.57 and 40 CFR 257.27, there are no requirements for the items required in (1)(c). Department approval would delay implementation, and the selection of remedy is the sole responsibility of the owner/operator. Section (4) includes the phrase: "the factors in (4)(a) through (h)," however, there is no (4)(h) in the rule. A commentor stated that (4)(g), which requires an owner or operator to consider certain factors in determining the schedule of remedial activities, including any other factor determined by the department to be necessary to protect human health and the environment, should not be adopted because it is more stringent than EPA requirements and is vague and overly broad. RESPONSE: New Rule XLIII(1)(b), concerning department approval of an owner or operator's selection of a remedy, is equivalent to existing ARM 17.50.710(7)(b)(v), which is being repealed, and 40 CFR 258.57(a). It is necessary to retain approval over selection of a remedy because it is critical to its regulatory role in protecting human health and the environment. The department has prepared findings, pursuant to 75-10-107, MCA, concerning the stringency of the requirement in (1)(b) for department approval. See Stringency Findings for this rule. Therefore, the department declines to revise the language as requested in the comment. The department agrees with the comment on (2)(b) that New Rule XLII(1)(b) does not use the word "plan" in association with the corrective measure assessment, and the department has stricken the word "plan" from New Rule XLIII(1)(b). The department agrees with the comment on (1)(b) that 40 CFR 258.57(a) does not establish a 90-day period for submitting a selected remedy report. The reasons for the requirement for approval of the report, and the stringency findings for it, were discussed immediately above. Because EPA regulations do not set a deadline for such a report, there is no comparable federal regulation or guideline addressing the same circumstances. It is necessary for the department's rules to set a deadline for the report, which is a critical aspect of corrective action. Concerning department approval of the design plans for the selected remedy and associated CQC and CQA plans in (1)(c), it is necessary for the department to review the design, CQC, and CQA plans, developed pursuant to (1), to ensure the selected remedy meets the requirements of New Rule XLIII. It entails designs that could affect the integrity of the systems that isolate solid waste and leachate from the environment, and should be subject to the same quality control review as other designs. As discussed above, the department determined that similar provisions in new Rule XXXIV(5) and (6) were not more stringent than a comparable federal guideline, and that findings under 75-10-107, MCA, were not required. In addition, design, CQC, and CQA plans are basic to determining whether a project has been built according to requirements. The same rationale applies to the requirement in New Rule XLIII(1)(c). Department review and approval of the design, CQC, and CQA plans is necessary to ensure compliance with corrective action requirements. Because 40 CFR 239.6 requires the department to adopt a regulatory program that ensures compliance with EPA's corrective action requirements, and approval of the selected remedy design, CQC, and CQA plans is necessary to ensure compliance, the requirements are not more stringent than a comparable federal regulation or guideline. Therefore, the department declines to revise the language as requested in the comment. In response to the comment, the department has stricken (4)(g). The department agrees with the comment concerning (4)(h), and has amended the rule to delete the reference to (4)(h). NEW RULE XLIV COMMENT NO. 60: A commentor stated that (1)(a) is more stringent than EPA regulations because department approval of a corrective action ground water monitoring plan is not required in 40 CFR 258.58(a)(1) or in 40 CFR 257.28(a)(1). A commentor stated that (1)(c) is more stringent than the comparable EPA regulation at 40 CFR 258.57 because the federal regulation does not give the department authority to approve interim measures, and that the department is prohibited by 75-10-107, MCA, from adopting an approval rule. The commentor also stated that a delay in the department's consideration of interim measures submitted by a landfill owner or operator could cause delay in implementing the measures and could cause harm to health or the environment. Concerning (3), the owner or operator should be solely responsible for making a determination of technical impracticability. In the 1988 proposed version of 40 CFR 258.58(b), the state was to make this determination, but, in the final regulation, EPA placed the responsibility on the owner or operator. EPA has published at least one guidance document on technical impracticability to assist in implementation of this rule. Section (7) is more stringent than the comparable requirements of 40 CFR 258.58(f) and 40 CFR 257.28(f). RESPONSE: The department's review and approval of a ground water monitoring plan is required in 75-10-207(4), MCA. A corrective action ground water monitoring plan is such a plan. Therefore, review and approval of a corrective action ground water monitoring program required by New Rule XLIV(1)(a) would also be required by 75-10-207(4), MCA. Because the corrective action ground water monitoring plan is required by state law, 75-10-107, MCA, does not apply. Concerning (1)(c), interim measures review and approval by the department, department review and approval is necessary and appropriate to determine if they are protective of human health and the environment. The department's solid waste program is committed to swift review in the case of a genuine threat to human health or the environment. See Response to Comment No. 3. The department has prepared findings, pursuant to 75-10-107, MCA, concerning the stringency of the requirement in (1)(c) for department approval. See Stringency Findings for this rule. The department has determined to strike the requirement in (1)(d) for an annual corrective measures progress report. During department discussions with the Solid Waste Advisory Committee, an informal group representing landfill owners and operators that meets regularly with the department, the issue of stringency was discussed, and pursuant to those discussions, the department determined to eliminate this provision. It is necessary for the department to review the determination, developed pursuant to (3), that compliance with remedy requirements cannot be practically achieved, before the implementation of alternative control measures. The department does not believe this approval would cause unacceptable delay or risk. The department has prepared findings, pursuant to 75-10-107, MCA, concerning the stringency of the requirements in (3)(a) and (d) for department approval. See Stringency Findings for this rule. Therefore, the department declines to revise the language as requested in the comment. Section (7) concerns certification of completion of the selected remedy by a qualified ground water scientist and approval by the department. Department review of the certification of completion is necessary to protect public health. In addition, completion of a corrective action remedy triggers release of financial assurance, which is critical to funding the remedy. Corrective action financial assurance should not be released until the department has determined that the remedy is complete. The department has prepared findings, pursuant to 75-10-107, MCA, concerning the stringency of the requirement in (7) for department approval. See Stringency Findings for this rule. Therefore, the department declines to revise the language as requested in the comment. NEW RULE XLV COMMENT NO. 61: A commentor stated that the department noted in its testimony at the November 4, 2009, hearing on stringency that, in response to comments, it has conducted an analysis of the phrase "necessary to protect human health and the environment," found in (2)(g). RESPONSE: Concerning (2)(g), in response to a comment that the use of the phrase "necessary to protect human health or the environment" is vague and overly broad, the department substituted the phrase "necessary to adequately characterize the hydrogeologic characteristics of the solid waste landfill facility." For the same reason discussed above, in the response to Comment No. 45, the department has revised New Rule XLV(2)(c) to require a description of the hydrogeologic units that overlie "the uppermost aquifer, or underground drinking water source," as required in New Rule XXXIII. NEW RULE XLIX COMMENT NO. 62: A commentor stated that the department may not impose closure requirements on facilities other than MSWLF landfill units, because those requirements would be more stringent than comparable federal regulations. A commentor criticized the department's use, in (4), of the phrase "any other information determined by the department to be necessary to protect human health or the environment" as being more stringent than comparable EPA regulations and vague, arbitrary, capricious, and easily abused, and the commentor asked that this phrase be deleted. RESPONSE: Section 75-10-204, MCA, provides the authority for closure requirements for Class II and Class IV landfill units. There are no comparable federal requirements for closure or post-closure care for a Class IV landfill unit. Therefore, the closure and post-closure requirements for a Class IV landfill unit do not trigger the findings requirements of 75-10-107, MCA. For issues concerning the regulation of MSW and non-MSW at a Class II unit in New Rules XVII and XXIX, see the response to Comment No. 12. Also, closure and post-closure plans are required as part of a license application. They are part of the design required in New Rules XXXIII and XXXIV to ensure that the waste in a unit will not contaminate ground water. If the planned cover and vegetation are not properly installed and maintained, water from precipitation can enter the waste and form leachate, which can then migrate to a ground water drinking water source. The department needs flexibility to require more information in a closure plan if necessary. EPA's comparable regulations provide that an owner or operator must provide a closure plan that "at a minimum, must include the following information ...." In response to the comment, the department is modifying (4) to state "at a minimum." This retains the department's flexibility to require additional information if necessary, while removing the language objected to and replacing it with the comparable EPA language. COMMENT NO. 63: A commentor stated that most landfill owners and operators will seek approval of an alternative final cover that meets the requirements of New Rule XLIX(2)(a) and that the department needs to set fixed standards, based on scientific research, so the regulated community has an attainable goal. In 1998, EPA funded research to study alternative covers, under the Alternative Cover Assessment program, or ACAP. For the two ACAP test sites in Montana, infiltration of 3 mm/year or less was determined to be equivalent to a standard Subtitle D cover, as required in 40 CFR 258.60(a)(2) and ARM 17.50.530(1)(b)(i), which use identical language. New Rule XLIX(2)(a) should explicitly state 3 mm or less per year infiltration through the cover, in accordance with the EPA ACAP study. The full deed notation requirements should be placed in this rule because they are closure requirements for MSWLF units. RESPONSE: New Rule XLIX(2)(a) uses the same standard for alternative final cover as provided in ARM 17.50.530(1)(b) and 40 CFR 258.60(a)(2). Therefore, the department declines to use the ACAP standard as requested in the comment. It is not necessary to include the deed notation requirement in the closure criteria rule, because the deed notation already would be completed under New Rule XXIV. New Rule XXIV provides: "… before the initial receipt of waste at the facility or, if the facility is licensed and accepting waste on [THE EFFECTIVE DATE OF THIS RULE], by [60 DAYS AFTER THE EFFECTIVE DATE OF THIS RULE], the owner of the land where a facility is located shall submit for department approval a notation to the deed …." NEW RULE L In response to other comments, the department has conducted an analysis of the use of the phrase "necessary to protect human health and the environment." The phrase "necessary to protect human health or the environment" in (1)(e) and (3) was stricken, and the phrases used by EPA in 40 CFR 258.61(a) and (c) to address the same subject, "at least" and "at a minimum," respectively, were added. This language gives the department the flexibility to exercise its discretion to require different post-closure care practices and to request more information in a post-closure care plan if necessary to fulfill the purposes of the subchapter. NEW RULE LI COMMENT NO. 64: A commentor stated that EPA regulates Class III facilities under 40 CFR Part 257, Subpart A, which deliberately include no closure or post-closure care requirements. The requirements in the state rule, found in 40 CFR Part 258, apply only to MSWLF units. This rule is more stringent than comparable EPA requirements and should not be adopted. RESPONSE: There are no federal requirements comparable to New Rule LI concerning closure or post-closure care requirements for a Class III landfill unit that address the same circumstances. Therefore, the closure and post-closure requirements do not trigger the findings requirements of 75-10-107, MCA. Under 40 CFR 257.3-4(a), a Class III landfill unit must not contaminate an underground drinking water source. In addition, the public should be protected from exposed waste that could pose a danger from sharp objects or that could collect water or harbor disease vectors such as insects and rodents, and that could cause litter. In addition, if construction of cover at a Class III landfill unit is not properly engineered, subsidence of the cover can occur. Therefore, the department believes that closure and post-closure care and plans at Class III landfill units are appropriate measures to provide for the sanitary disposal of solid waste there. The department is, therefore, not making the changes requested by the commentor. COMMENT NO. 65: A commentor stated that the most objectionable provisions in the rulemaking proposal are the various permutations of the phrase, "and any other information determined by the department to be necessary for the protection of human health and the environment," which normally follows after a list of items that duplicate EPA requirements and that are sufficient for the department to evaluate an application or a plan. RESPONSE: EPA's regulations concerning closure and post-closure plans for MSW landfill units state that a plan must contain, "at a minimum," the elements specified in the regulation. In response to the comment, the department has deleted (1)(d) and (2)(d) and has amended (1) and (2) to state "at a minimum." This retains the department's flexibility to require additional information if necessary, while removing the language objected to and replacing it with the language EPA used in similar circumstances for MSW units. COMMENT NO. 66: A commentor asked how the department will address disposal of coal combustion waste, because it is difficult for consultants and landfill operators to know how to address it given that there is no rule. RESPONSE: The department has drafted rules for the management of coal combustion wastes that will be proposed in a future rulemaking. COMMENT NO. 67: A commentor that operates a landfill stated that it has sought approval of an alternative final cover that meets the requirements of New Rule XLIX(2)(a) but that, after four years, it is still waiting for final approval. RESPONSE: This comment is outside the scope of this rulemaking. However, the department is actively working with the commentor on the review and approval of the requested alternative final cover. COMMENT NO. 68: A commentor stated that EPA regulations concerning the topics covered by New Rule I are found in 40 CFR 258.4 but that the EPA regulations specifically refer to MSWLF units. Class II wastes in RESPONSE: For issues concerning the regulation of MSW and non-MSW at a Class II unit in New Rule I, see Response to Comment No. 12. Public Hearing Comments (November 4, 2009): COMMENT NO. 69: A commentor stated that he and his clients are disappointed in the process that the department has followed in this rulemaking. He understands that the Solid Waste Program will be proposing additional rules in the near future, and he hopes that the new rules will be better reviewed by the regulated public before they are submitted to the Secretary of State and before the public and the department become embroiled in long, legal, letter-writing discussions. RESPONSE: The department has fully complied with the Montana Administrative Procedure Act (MAPA) in this rulemaking. In addition, the department held many meetings with the regulated community concerning the rulemaking both before and after the proposed changes were published, and has made several informational mailings. The department will follow MAPA and fully involve all interested parties in the future solid waste program rulemakings. COMMENT NO. 70: A commentor stated that the department has grossly failed to meet the requirements of 75-10-107, MCA, for adopting a rule more stringent than comparable federal regulations. The department presented no peer-reviewed scientific studies as required by 75-10-107(3), MCA. RESPONSE: Section 75-10-107(3), MCA, provides that the written finding that is a prerequisite to adoption of a rule that is more stringent than a comparable federal rule or guideline "must reference information and peer-reviewed scientific studies contained in the record that forms [sic] the basis for the department's conclusion." Procedural requirements are not commonly the subject of peer-reviewed scientific studies. Furthermore, had the Legislature intended to require peer-reviewed studies in all instances in which HB 521 is applicable, it could have provided that an agency cannot adopt a more stringent rule unless there is a peer-reviewed study to support it. It did not do so. The Senate Natural Resources Committee took executive action on HB 521 on March 28, 1995. Sen. Loren Grosfield proposed an amendment that would have inserted the words "if any" after the requirement to reference peer-reviewed scientific studies. Sen. Keating opposed the motion on the ground that "this bill doesn't say you have to have a peer-reviewed study, it only says you review any studies contained in the record that form the basis for the board's conclusion [sic] and 'if any' doesn't add anything." Sen. Grosfield then indicated that he thought that the bill could be interpreted that way, but "if it is clear to the committee that the bill will not require peer-reviewed studies," it was okay with him and he would withdraw the pertinent amendments. He then withdrew the amendments. In addition, the preamble to HB 521 provides that the written finding "must include but is not limited to a discussion of the policy reasons and an analysis that supports the board's or the department's decision that the proposed state standards or requirements protect public health or the environment of the state and that the state standards or requirements protect public health and are achievable under current technology." The preamble contains no reference to peer-reviewed scientific studies. Given the statements from the legislative history and the language of the preamble, it is the department's opinion that citation to peer-reviewed scientific studies in the record is not a prerequisite to adoption of a rule that is more stringent than a comparable federal regulation or guideline. Rather, a written finding required by HB 521 must reference peer-reviewed scientific studies if the rulemaking record contains them. In addition, the department introduced into the record language from EPA rulemakings concerning the regulations that the commentor alleges are less stringent. It is clear that EPA contemplated that states would have flexibility in implementing the licensing and oversight of regulation of solid waste landfills. COMMENT NO. 71: A commentor stated that the department's analysis of the actual breadth of the requirements of the federal regulations found in 40 CFR Parts 257 and 258 misrepresents the flexibility granted to states by EPA and is fatally flawed. EPA allows states flexibility only to have programs that are more stringent than minimum EPA requirements. Because 40 CFR Part 258 is designed to be self-implementing, most of the flexibility offered to states concerns items that facilities would desire, such as approval to use multi-unit groundwater monitoring arrays rather than monitoring each unit individually and such as approval to locate a landfill in a seismically active area. RESPONSE: Because the commentor did not identify a specific rule where the department had misrepresented the flexibility granted to states by EPA, the department will provide a general response. The department believes the stringency analysis and findings were capably prepared and adequately address the applicable elements of 75-10-107, MCA. In addition, the department believes that the commentor has misstated EPA's regulatory approach in creating the federal regulations and in approving state programs. The regulations proposed in 1988 were, to some degree, based on state implementation. Concerns raised by regulated entities and state governments in comments on the proposed regulations led EPA to adopt regulations in 1991 that emphasized a self-implementing approach, so as not to delay the effect of regulatory requirements such as a landfill owner's duty to respond to ground water contamination by taking action when a state might not yet have the capacity to review the contamination and require action. However, in that adoption, EPA made it clear that it intended to preserve the traditional primary role of the state in implementing compliance, and that an upcoming state implementation rulemaking would carry that traditional role forward. When EPA adopted the state implementation regulations in 1999, it required states to adopt a permit or licensing program that ensured compliance with the requirements in 40 CFR Part 258, the comparable federal regulations. EPA did not require merely that a state adopt a licensing program with the elements in the federal regulations, but rather EPA required that a licensing program ensure compliance with those elements. See 40 CFR 239.6. The department believes that this requirement, that its regulatory program must ensure compliance with the EPA's solid waste regulations, means that that department has the flexibility to require submission and approval of important solid waste management determinations and actions. COMMENT NO. 72: A commentor stated that 75-10-107(3), MCA, clearly states that, in order to adopt a more stringent rule, the department must have scientific proof that the rule is necessary to "mitigate harm to public health and the environment" and that this is made clear by the requirements in 75-10-107(3), MCA, that "[t]he written finding must reference information and peer-reviewed scientific studies contained in the record that forms the basis for the department's conclusion." Both elements are needed, "information and peer-reviewed scientific studies," not just one or the other. In its testimony, the department clearly stated that its evidence was merely "anecdotal" and was based on what "the department believes," rather than proffering any scientific papers on the matters challenged as being "more stringent than the comparable federal regulations." (For example, see Mr. Thompson's testimony on New Rules XVII(4)(c) and XVIV(1)(a) for use of the term "anecdotal," and see the rest of the New Rules analyzed on pages 1 and 2 of his testimony for the constant use of the term "believes.") Anecdotal comments were supplied without any analysis of the actual number of potential problems versus the number of facilities affected by the proposed rules. Information was scant and science was absent. The commentor stated that only two instances of problems with lack of a deed notation before closure did not justify requiring recording of a deed notation before accepting waste, as proposed by the department, compared with at the end of the closure process, as is required by EPA. RESPONSE: Section 75-10-107(3), MCA, does not contain the phrase "scientific proof." See Response to Comment No. 2. The department produced evidence in the record of problem areas that proposed rules and amendments were reasonably designed to correct. The department has experienced problems with the recording of deed notations at four landfills out of the six landfills (two Class II and four Class III) that have recently closed under the existing deed notation requirements. COMMENT NO. 73: A commentor stated that the department contends that, because a license application or O & M plan is required in solid waste statutes at 75-10-204(1) and 221, MCA, the department has broad authority to adopt rules regarding applications and O & M plans. This is inconsistent with the limitation found in the first paragraph of 75-10-204, MCA, that "[t]he department shall, subject to the provisions of 75-10-107, adopt rules governing solid waste management systems ...." The department is not given carte blanche when specifying what must be in a license application or in an O & M plan. RESPONSE: The department believes its interpretation of 75-10-204 and 75-10-221, MCA, with respect to the components of license applications and O & M plans that would be required by ARM 17.50.508, is correct. The department must require a license application to include all information necessary for the department to determine whether to issue or deny the license. The commentor did not identify a requirement in the licensing rule, ARM 17.50.508, that he believes to be inappropriate as more stringent than a comparable federal regulation or guideline. The department responded to comments on ARM 17.50.508 under the responses to comments for that rule. Under 75-10-221(3), MCA, an applicant is required to provide "the name and business address of the applicant, the location of the proposed solid waste management system, a plan of operation and maintenance, and other information that the department may by rule require." There is no federal regulation listing the information that is required in a license application. ARM 17.50.508 implements 75-10-221(3), MCA. An application must contain the information necessary for the department to determine whether the requirements of the solid waste laws and rules are being met by the applicant for the proposed system. The department has analyzed substantive requirements, such as for an insurance policy or a deed notation, which are required in a license application, under the responses to comments on the operating rules containing those requirements. Where the department has determined that the substantive provisions are appropriate, either through the required stringency findings or because there is no comparable federal requirement addressing the same circumstances, it is necessary to require them in an application. A proposed O & M plan is one of the items that is required by law to be submitted as part of an application. See 75-10-204(1) and 221(3), MCA. The substantive requirements of an O & M plan have been addressed in the response to comments for each O & M rule. If the proposed substantive requirement is not more stringent than a comparable federal regulation or guideline, or if there is no comparable federal regulation or guideline, the requirement that the department review the submission to determine whether the requirement has been met does not trigger stringency findings, because the department is required by law to review and approve license applications and O & M plans. The commentor has not identified any items listed in the application rule, ARM 17.50.508, or in the O & M rule, cite that are not needed for that determination. Regarding the requirements for an O & M plan, many of the department's requirements are taken directly from the EPA regulations covering O & M in 40 CFR 258.20 through 28. The following table shows the federal regulation and the state rule covering the same topic: Excluding hazardous waste: 40 CFR 258.20 New Rule XIV Cover materials: 40 CFR 258.21 New Rule XV Disease vector control: 40 CFR 258.22 New Rule XVI Explosive gases control: 40 CFR 258.23 New Rule XVII Air criteria: 40 CFR 258.24 New Rule XVIII Access: 40 CFR 258.25 New Rule XIX Run-on/run-off controls: 40 CFR 258.26 New Rule XX Surface water: 40 CFR 258.27 New Rule XXI Liquids restrictions: 40 CFR 258.28 New Rule XXII Recordkeeping: 40 CFR 258.29 New Rule XXIII Requirements that are not based on a federal regulation, such as requirements for liability insurance in New Rule XXV, management of special wastes, in New Rule XXVI, and salvaging, confining waste to appropriate areas, controlling litter, and designing, constructing, operating, and maintaining a system to protect against threats to environmental and health concerns, in New Rule XXVII, are not more stringent because there are no comparable federal regulations or guidelines addressing the same circumstances. Therefore, no stringency findings are required. COMMENT NO. 74: A commentor stated that the department's cost evaluations are simplistic and grossly underestimate the cost of submitting plans of all types to the department and obtaining department approval. While the cost of mailing is negligible, the department has failed to evaluate the additional cost of obtaining approval of plans submitted by licensed engineers and qualified ground water scientists and the cost to the facility of waiting for department approval. RESPONSE: The cost evaluations that contained only a mailing cost were for the submittal of plans that are required by other rules to be placed in the operating record. Because these plans would have to be prepared anyway, the only additional cost would be the cost of submitting the plan to the department. If the department determines that a submittal is inadequate, then the department has done its job in ensuring compliance with the rules, and the cost to correct the deficiency would not have been caused by the review, but by the fact that the original submission was deficient. COMMENT NO. 75: A commentor stated that, in ARM 17.50.513(3), the department arbitrarily proposed requiring updates to plans of operation and other plans every five years, based on the regulatory authority in 75-10-221(5), MCA. This portion of the solid waste statute states: "The department may require submission of a new application if the department determines that the plan of operation, the management of the solid waste system, or the geological or ground water conditions have changed since the license was initially approved." The requirement that a new application or operation and management plan be submitted requires an affirmative declaration from the department that something at the facility has changed. Absent an inspection by the department, and an affirmative declaration that something has changed, the five-year requirement is arbitrary, capricious, and presumptuous, and proposed rule changes based on this reasoning are without merit or legal basis. The cost to upgrade an O & M plan at most facilities is at least $2,000, with the cost for major landfills being between $7,000 and $10,000. RESPONSE: ARM 17.50.513(3) does not require an update of the O & M plan every five years. ARM 17.50.513(3) requires that an owner, operator, or licensee "review the operation and maintenance plan every five years after the date of the issuance of the solid waste management system license to determine if significant changes in conditions or requirements have occurred. If the review indicates that significant changes have occurred, the owner, operator, or licensee shall update the operation and maintenance plan to reflect changed conditions and requirements, and submit the update to the department for approval." If the owner, operator, or licensee determines that significant changes have not occurred then an update of the plan is not necessary. COMMENT NO. 76: A commentor stated that the department's assertion that there are no comparable federal requirements for Class III and IV facilities is not correct. Comparable federal requirements for Class III and IV facilities are found in 40 CFR Part 257, and the federal government deliberately limited the regulations based on the threats from different types of facilities to human health and the environment. The department cannot adopt rules for Class III or Class IV facilities that are more stringent or that cover additional areas without presenting full scientific evidence of the threats to the environment, as required in 75-10-107, MCA. RESPONSE: The department conducted a stringency analysis of the proposed requirements for Class III and Class IV landfill facilities. The department introduced testimony on the stringency factors at the November 4, 2009, public hearing. Each rule for which specific comments were received has been addressed in the responses to comments in this notice, and, where the department determined that findings were required under 75-10-107, MCA, the factors specified in that statute have been addressed in the findings. For those rules on which a specific comment was received, the following discussion cites to the number of the response to comments for that rule. For those rules for which no specific comment was received, an analysis follows. (a) the prohibition in New Rule XI(1)(h) against locating a Class III landfill unit in wetlands unless a demonstration has been made. See Response to Comment No. 29. (b) the locational restriction in New Rule VII for a Class IV landfill unit in a fault area unless a demonstration has been made. See Response to Comment No. 24. (c) the locational restriction in New Rule VIII for a Class IV landfill unit in a seismic area unless a demonstration has been made. See Response to Comment No. 26. (d) the locational restriction in New Rule IX for a Class IV landfill unit in an unstable area unless a demonstration has been made. See Response to Comment No. 27. (e) liability insurance requirements in proposed ARM 17.50.508(2) and New Rule XXV. See Response to Comment No. 38. (f) requirements concerning updates to operating and maintenance plans in proposed new ARM 17.50.509(4). Operation and maintenance plan and plan updates are not addressed in the federal solid waste regulations in 40 CFR Parts 257 and 258. Therefore, the requirement to submit a plan update for approval does not trigger the findings requirements of 75-10-107, MCA, because EPA has no comparable regulations that address the same circumstances. The reason for the requirement was provided in the statement of necessity for the rule. (g) requirements concerning deed notations in New Rule XXVIII(1)(f) for a Class III landfill unit and in New Rule XXIX(1)(e) for a Class IV landfill unit. See Response to Comment No. 36. (h) bulk liquids restrictions in New Rule XXVIII(1)(c) for a Class III landfill unit and in New Rule XXIX(2)(h) for a Class IV landfill unit. See Responses to Comment Nos. 39 and 44 for Class III and Class IV units, respectively. (i) the requirement in New Rule XXVIII(1)(b) for placement of six inches of cover at a Class III landfill unit at least every three months. See Response to Comment No. 39. (j) restrictions concerning access at a Class III landfill unit in New Rule XXVIII(1)(d)(ii). See Response to Comment No. 39. (k) requirements in New Rule XXIX(1)(a), concerning control for aesthetics at a Class IV landfill unit. See Response to Comment No. 43. (l) requirements in New Rule XXIX(1)(c), for Class IV landfill units, concerning excluding liquids, and other materials, that may be conditionally exempt small quantity generator (CESQG) wastes that may be disposed of at a 40 CFR Part 257, subpart B, landfill unit. Exclusion of bulk liquids has been addressed in the Response to Comment No. 44. Concerning the prohibition on accepting containerized liquids at a Class IV landfill unit, there is no comparable federal regulation addressing the same circumstances. Therefore, it is not necessary to make findings under 75-10-107, MCA; (m) waste screening requirements at a Class IV landfill unit in New Rule XXIX(2)(a). See Response to Comment No. 44. (n) requirements in New Rule XXIX(1)(d) for financial assurance for a Class IV unit. See Response to Comment No. 44. (o) requirements in New Rule LI for closure and post-closure care for a Class III landfill unit. See Response to Comment No. 65. (p) requirements in New Rules XLIX and L for closure and post-closure care for a Class IV landfill unit. See Response to Comment No. 62. COMMENT NO. 77: A commentor stated that, in the department's analysis of the deed notation requirements in New Rule XXIV(1)(a), there is no evaluation of the number of problem facilities versus the number of existing facilities of the same type. Two cases in 16 years is not a significant burden on the legal assets of the department. There are only a few, perhaps two, small private landfills of the type involved left in RESPONSE: The department believes two cases in 16 years demonstrate recording a deed notation, before the initial receipt of waste, is necessary to protect public health or the environment of the state, and can mitigate harm to the public health or environment. See Responses to Comment Nos. 34 and 35. Only a few facilities have closed, but the department has experienced problems with deed notations not being recorded at a high percentage of those that have closed. COMMENT NO. 78: A commentor stated that any ground water quality protection standard established at a landfill may not exceed the requirements of 40 CFR 258.55(h) and (i) without a full scientific analysis under 75-10-107, MCA. RESPONSE: The department believes that the commentor is referring to the process in New Rule XLI(9) for adopting a ground water protection standard for a contaminant for which no maximum contaminant level exists. The process is identical to the process EPA established in 40 CFR 258.55(h), except that the department has provided that it will request the Montana Board of Environmental Review (BER), to which the Legislature has delegated the authority to adopt water quality standards, adopt any such standards it believes to be necessary. EPA's regulation gives that authority to the department. The department is not adopting a rule that is more stringent than a comparable federal regulation that addresses the same circumstances. In addition, the rule provides very stringent criteria for the adoption of a standard, which include some of the same elements required for stringency findings under 75-10-107, MCA. Also, the appropriate time for the consideration of stringency matters, and the making of any required findings for the adoption of a standard under New Rule XLI(9), would be when the BER considers the adoption of a standard under that rule. Therefore, the stringency requirements of 75-10-107, MCA, do not apply at this time. COMMENT NO. 79: A commentor stated that the assertion that EPA's use of the term "at least the following" means that the department can require anything it wants, even if it is more than the minimum required by EPA regulations, without the analysis required in 75-10-107, MCA, is illogical. Allowing the department to request "any other information ..." is not narrower than the EPA regulations that specify minimum requirements. When EPA regulations specify minimum required items, anything beyond that minimum is more stringent, and a full scientific justification is required by 75-10-107, MCA, in order for the department to add to the list. The phrase "or any other matter determined by the department ..." makes the rule requirements, in virtually all cases, subject to the whim of anyone in the department who would assert that, correctly or not, something was necessary for the "protection of human health and the environment," and this language should be deleted. The regulated community needs clear regulations, not a moving target. A letter from a mid-level EPA Region VIII employee stating that the proposed rules are equivalent to federal requirements should not be given too much credence. To EPA, use of the word "equivalent," means "at least as stringent as" and does not constitute an evaluation as to whether the rules are more stringent than comparable federal regulations. RESPONSE: See the Response to Comment No. 46 and other responses concerning "any other matter," above. COMMENT NO. 80: A commentor stated that the department's comments to the effect that EPA not having a rule is equal to allowing requirements that are more stringent is ludicrous, at best. If the department wants to have rules that are more stringent or require additional items, it should state what those items are and prove the validity of its claim through a true stringency test and analysis. If the requirements were reasonable, the commentor would have no trouble supporting them. RESPONSE: The department believes that its analysis of the requirements of 75-10-107, MCA, is appropriate. The department has addressed the requirements of each rule where stringency appeared to be an issue, and has provided a discussion of stringency for each such rule. The department has also provided the findings required in that statute for each rule provision it found to be more stringent than a comparable federal regulation or guideline, or has deleted the rule provision. 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, February 1, 2010.
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