Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY

OF THE STATE OF MONTANA

In the matter of the amendment of ARM 17.36.103, 17.36.106, 17.36.108, 17.36.110, 17.36.116, and 17.36.322 pertaining to application contents, review procedures, compliance with local requirements, certificate of approval, certification of local department or board of health, and sewage systems

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

(SUBDIVISIONS/ON-SITE SUBSURFACE WASTEWATER TREATMENT)

TO: All Concerned Persons

1. On September 14, 2011, at 2:00 p.m., the Department of Environmental Quality will hold a public hearing in Room 35, Metcalf Building, 1520 East Sixth Avenue, Helena, Montana, to consider the proposed amendment of the above-stated rules.

2. The department will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice. If you require an accommodation, please contact Elois Johnson, Paralegal, no later than 5:00 p.m., September 6, 2011, to advise us of the nature of the accommodation that you need. Please contact Elois Johnson at Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-2630; fax (406) 444-4386; or e-mail [email protected].

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

17.36.103 APPLICATION--CONTENTS (1) In addition to the completed application form required by ARM 17.36.102, the following information must be submitted to the reviewing authority as part of a subdivision application:

(a) through (o) remain the same.

(p) for an application that is not subject to review by a local reviewing authority under 76-4-104, MCA, a certification from the local health officer having jurisdiction that the design for non-public water supply and wastewater disposal facilities complies with applicable laws and regulations of local government;

(p) remains the same, but is renumbered (q).

(r) a copy or a summary of any public comments on preliminary sanitation information collected as provided in 76-3-604(7), MCA;

(q) and (r) remain the same, but are renumbered (s) and (t).

AUTH: 76-4-104, MCA

IMP: 76-4-104, 76-4-125, MCA

REASON: In the 2011 session, the Montana Legislature amended 76-4-125, MCA, to require that the department provide an informational notice to subdivision applicants, within five days after receipt of an application, if an application does not contain the following information: (1) a certification from the local health department that non-public systems for water supply and sewage disposal comply with local laws and regulations; (2) if applicable, an approval from local government under the Montana Subdivision and Platting Act, Title 76, chapter 3, MCA (MSPA); and (3) public comments or summaries of comments regarding proposed water and sewer systems, collected under the MSPA as provided in 76-3-604(7)(a), MCA. Section 76-4-125(1)(b), MCA, Chapter 217, Laws of 2011, which was entitled Senate Bill 89 ("Senate Bill 89"). To assist applicants in completing a subdivision application, the proposed amendments to ARM 17.36.103 include two of these three items in the rule setting out the required contents of applications. The third item, local approval under the MSPA, if applicable, is already required by ARM 17.36.103(1)(o).

17.36.106 REVIEW PROCEDURES--APPLICABLE RULES (1) The procedures for review of subdivision applications by the reviewing authority are as follows:

(a) Upon receipt of a subdivision application, a resubmittal, or additional information provided by the applicant, the department will have 60 55 days to deny, approve, or conditionally approve the subdivision application. If an environmental impact statement is required, action must be taken within 120 days.

(b) If a local department or board of health has been certified as the reviewing authority pursuant to 76-4-104, MCA, the local reviewing authority shall, within 50 days after receipt of a subdivision application, review the application and forward the application to the department together with a recommended action for approval, conditional approval, or denial. The department shall take final action on the application within ten days after receiving the recommendation of the local reviewing authority, but not later than the time remaining in the 60 55-day or 120-day period set out in (1)(a).

(i) If the local reviewing authority recommends denial of an application, the recommendation must be in the form of a denial letter sent to the applicant within 50 45 days after receipt of the application. The local reviewing authority shall send a copy of the application and denial letter to the department. A denial letter issued by the local reviewing authority shall constitute the department's final action regarding the denial unless the department finds, pursuant to ARM 17.36.116, that the recommended denial was in error.

(c) If an application is incomplete, the reviewing authority shall deny the application, setting forth, in writing, the deficiencies to the applicant or the applicant's representative. ~~When~~ If the additional information is submitted within 30 days after the date of the denial letter, the reviewing authority shall review ~~such additional information within the timeframes specified in (1)(a) or (b) as applicable~~ the resubmitted application within 30 days after receipt. If the review is conducted by a local department or board of health that is certified under 76-4-104, MCA, the department shall make a final decision on the resubmitted application within ten days after the local reviewing authority completes its review.

(2) Pursuant to 76-4-125(1)(b), MCA, for an application that is not subject to review by a local reviewing authority under 76-4-104, MCA, the department shall provide an informational written notice to the applicant, within five working days after receipt of an application, if any of the following items is not submitted with the application:

(a) the certification required by ARM 17.36.108(1)(a);

(b) if applicable, an approval from the local governing body under Title 76, chapter 3, MCA; or

(2) through (2)(e) remain the same, but are renumbered (3) through (3)(e).

AUTH: 76-4-104, MCA

IMP: 76-4-104, 76-4-125, MCA

REASON: In the 2011 session, the Montana Legislature amended 76-4-125, MCA, to shorten the department's application review time from 60 to 55 days and to shorten the local reviewing authority's review time from 50 to 45 days. Senate Bill 89. Senate Bill 89 also requires that, if an application is resubmitted within 30 days after the date of the denial letter, review of the resubmitted application must be completed within 30 days after receipt. If a local reviewing authority reviews an application that is timely resubmitted, the department must make a final decision within ten days after the local review is complete. The proposed amendments to ARM 17.36.106(1)(b) are necessary to include the new statutory review periods in the subdivision rules.

Senate Bill 89 also requires the department to provide an informational notice to the applicant, within five days after receipt of an application, if the application does not contain certain information. See Reason statement for amendments to ARM 17.36.103. Proposed new ARM 17.36.106(2) is necessary to implement the statutory five-day notice period.

17.36.108 COMPLIANCE WITH LOCAL REQUIREMENTS (1) The applicant shall provide the department with evidence~~, as set out in (2),~~ as to whether non-public facilities for the supply of water, and disposal of wastewater~~, disposal of solid waste, and drainage of storm water~~ are in compliance with applicable laws and regulations of local government. ~~A facility that has an MPDES surface water discharge permit issued pursuant to ARM Title 17, chapter 30, subchapter 13 is exempt from the requirements of this rule.~~

(2) The evidence required by (1) must show whether the facilities are in compliance with the laws and regulations of local government relating to water quality, water supply, wastewater disposal, solid waste disposal, and storm water drainage, which are in effect at the time of the submittal of the application to the reviewing authority pursuant to this chapter. The evidence must be in one of the following forms:

(a) for an application that is not subject to review by a local reviewing authority under 76-4-104, MCA, a ~~certificate~~ certification of compliance ~~or a denial letter, in a format approved by the department,~~ that is signed by the local health officer having jurisdiction. ~~A certificate of compliance may contain conditions of approval~~ The applicant shall submit the certification to the department with the subdivision application; or

(b) ~~if the proposed subdivision is reviewed by the local health officer under authority delegated by the department under Title 76, chapter 4~~ for an application that is subject to review by a local reviewing authority under 76-4-104, MCA, a signed certificate of subdivision approval~~; or~~.

(c) a written demonstration by the applicant, in a format approved by the department, that the applicant has requested a certificate of compliance from the local health officer having jurisdiction and the health officer has not issued a denial letter or a certificate of compliance within 50 days of receiving a copy of the application. The department shall presume in such cases that the facilities in the proposed subdivision application are in compliance with the applicable laws and regulations of local government.

(3) The department shall identify, in its certificate of subdivision approval, all conditions of approval imposed by the local health officer in its review pursuant to this rule. Requirements of the local health officer may not be less stringent than state standards for the control and disposal of sewage promulgated pursuant to 75-5-305(2), MCA.

~~(4)~~ (2) As provided in ARM 17.36.110, the department may not issue a certificate of subdivision approval if non-public facilities for water supply or for the disposal of wastewater are proposed, unless the applicant has submitted evidence, in accordance with ~~this rule~~ (1), that the design for the non-public water supply and wastewater disposal facilities complies with applicable laws and regulations of local government.

AUTH: 76-4-104, MCA

IMP: 76-4-104, 76-4-125, MCA

REASON: In the 2011 session, the Montana Legislature amended 76-4-125, MCA, to require the department to provide an informational notice to the applicant, within five days after receipt of an application, if the application does not contain certain information. Senate Bill 89. See Reason for amendments to ARM 17.36.103. One of the application items required by Senate Bill 89 is a certification from the local health department that non-public systems for water supply and sewage disposal comply with local laws and regulations. As described below, the amendments to ARM 17.36.108 are necessary to implement Senate Bill 89 and to make other minor changes to clarify the department's process for determining compliance with local requirements.

Senate Bill 89 amended 76-4-104(6)(j), MCA, to require certification from the local health department that non-public methods of water supply and sewage disposal are in compliance with local regulations. The proposed amendments to ARM 17.36.108(1) and (2) incorporate the term "non-public" in the rule. The proposed amendments also delete the references to local certification of solid waste and storm water facilities, because these facilities are not included in 76-4-104(6)(j), MCA. These amendments are necessary to conform the rule to the applicable statute. The proposed amendments to ARM 17.36.108(1) also remove an exemption for facilities with Montana Pollutant Discharge Elimination System (MPDES) permits. This amendment is necessary because Senate Bill 89 does not provide for this exemption.

The proposed amendments to ARM 17.36.108(2)(a) and (b) clarify that the form of the local certification depends on whether the local health department has delegated authority under 76-4-104, MCA, to conduct the initial review of subdivision applications. If the local department is a delegated reviewer, the local department's proposed approval of the subdivision application will satisfy the certification requirement. A separate local certification letter is not needed in that case. When the Department of Environmental Quality (DEQ) is the sole reviewing authority, the applicant must provide DEQ with a separate compliance certification letter from the local health department. These amendments are necessary to implement Senate Bill 89.

The proposed amendments delete ARM 17.36.108(2)(c), which allows an applicant to submit an application without a local certification of compliance if the applicant requests certification but the local department fails to respond. In that situation, the rule creates a presumption of compliance with local requirements. Deletion of ARM 17.36.108(2)(c) is necessary to implement Senate Bill 89, which does not provide for a presumption of compliance based on a lack of response from the local health department.

The proposed amendments delete ARM 17.36.108(3), which requires DEQ to include in its certificate of subdivision approval (COSA) any "conditions of approval" identified by the local health department. Pursuant to 76-4-104(6)(j), MCA, DEQ has authority to deny a subdivision application if the subdivision does not comply with local laws and regulations applicable to non-public water supply and sewage disposal. However, DEQ lacks authority under the Sanitation Act to enforce other local "conditions of approval." Deletion of ARM 17.36.108(3) is necessary to avoid placing conditions in a COSA that DEQ lacks authority to enforce.

17.36.110 CERTIFICATE OF APPROVAL (1) Subject to the local certification requirements set out in (2) ~~and (3)~~, the reviewing authority shall issue a certificate of subdivision approval if:

(a) through (c)(v) remain the same.

(2) The reviewing authority may not issue a certificate of subdivision approval if non-public facilities for water supply or for the disposal of wastewater are proposed, unless the applicant has submitted evidence, in accordance with ARM 17.36.108(1), that the design for the non-public water supply and wastewater disposal facilities complies with applicable laws and regulations of local government.

(3) The reviewing authority shall identify, in its certificate of subdivision approval, all conditions of approval imposed by the local health officer in its review pursuant to ARM 17.36.108. Requirements of the local health officer may not be less stringent than state standards for the control and disposal of sewage promulgated pursuant to 75-5-305(2), MCA.

(4) through (4)(b) remain the same, but are renumbered (3) through (3)(b).

AUTH: 76-4-104, MCA

IMP: 76-4-104, 76-4-125, MCA

REASON: The proposed amendments would delete ARM 17.36.110(3), which requires DEQ to include in its certificate of subdivision approval (COSA) any "conditions of approval" identified by the local health department. Deletion of ARM 17.36.108(3) is necessary to avoid placing conditions in a COSA that DEQ lacks authority to enforce. See Reason statement for amendments to ARM 17.36.108.

17.36.116 CERTIFICATION OF LOCAL DEPARTMENT OR BOARD OF HEALTH (1) through (2)(b) remain the same.

(3) The department's oversight of a certified local reviewing authority's review of subdivision applications shall be limited to the following:

(a) within the 60 55-day review period, the department shall determine, by reference to the local reviewing authority's review checklist or by other means, whether the local reviewer has conducted a completeness review of the application and whether the local reviewer has completed a compliance review of all systems designated by the contract between the department and the local reviewing authority. If the department determines that either of these tasks was not completed, the department may return the application to the local reviewing authority for further review or may itself complete the review;

(b) within the 60 55-day review period, the department may check the accuracy of the local reviewing authority's review of subdivision applications. The department's accuracy checks must be limited to 10% of the applications submitted to the department by the local reviewing authority, except that the department may also review an application:

(i) through (c) remain the same.

(d) in addition to, or instead of, examining locally reviewed applications during the 60 55-day review period, the department may conduct an annual audit of a representative sample of locally reviewed applications.

(4) remains the same.

AUTH: 76-4-104, MCA

IMP: 76-4-104, 76-4-125, MCA

REASON: In the 2011 session, the Montana Legislature amended 76-4-125, MCA, to shorten the department's application review time from 60 to 55 days and shorten the local reviewing authority's review time from 50 to 45 days. The proposed amendments to ARM 17.36.116 are necessary to include the new statutory review periods in the subdivision rules. See Reason statement for amendments to ARM 17.36.106.

17.36.322 SEWAGE SYSTEMS: SITING (1) through (3) remain the same.

(4) Pursuant to 76-4-104(6)(i), MCA, a proposed drainfield mixing zone must be located wholly within the proposed subdivision where the drainfield is to be located unless an easement or, for public land, other authorization is obtained from the landowner to place the proposed mixing zone outside the boundaries of the proposed subdivision. A mixing zone may extend outside the boundaries of the proposed subdivision onto adjoining land that is dedicated for use as a right-of-way for roads, railroads, or utilities. This section does not apply to the divisions provided for in 76-3-207, MCA, except those under 76-3-207(1)(b), MCA.

(4) and (5) remain the same, but are renumbered (5) and (6).

AUTH: 76-4-104, MCA

IMP: 76-4-104, MCA

REASON: In the 2011 session, the Montana Legislature amended 76-4-104, MCA, to require that proposed drainfield mixing zones in proposed subdivisions be located wholly within the subdivision unless an easement or other authorization is obtained. An exception is provided if the adjoining land is dedicated for use as a right-of-way for roads, railroads, or utilities. HB 28 (2011). The proposed amendment to ARM 17.36.322 implements HB 28 by referencing the statutory requirements in the department's subdivision rule that sets out siting restrictions for sewage systems. The amendment to ARM 17.36.322 is necessary to implement HB 28 and to ensure that the department subdivision rules inform applicants of applicable restrictions for siting sewage systems.

5. Concerned persons may submit their data, views, or arguments, either orally or in writing, at the hearing. Written data, views, or arguments may also be submitted to Elois Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana 59620-0901; faxed to (406) 444-4386; or e-mailed to [email protected], no later than 5:00 p.m., September 22, 2011. To be guaranteed consideration, mailed comments must be postmarked on or before that date.

6. James Madden, attorney, has been designated to preside over and conduct the hearing.

7. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name and mailing address of the person to receive notices and specifies that the person wishes to receive notices regarding: air quality; hazardous waste/waste oil; asbestos control; water/wastewater treatment plant operator certification; solid waste; junk vehicles; infectious waste; public water supplies; public sewage systems regulation; hard rock (metal) mine reclamation; major facility siting; opencut mine reclamation; strip mine reclamation; subdivisions; renewable energy grants/loans; wastewater treatment or safe drinking water revolving grants and loans; water quality; CECRA; underground/above ground storage tanks; MEPA; or general procedural rules other than MEPA. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to Elois Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Ave., P.O. Box 200901, Helena, Montana 59620-0901; faxed to (406) 444-4386; e-mailed to [email protected]; or may be made by completing a request form at any rules hearing held by the department.

8. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsors were notified on June 10, 2011, by regular mail.

Reviewed by: DEPARTMENT OF ENVIRONMENTAL

QUALITY

/s/ James M. Madden BY: /s/ Richard H. Opper

JAMES M. MADDEN RICHARD H. OPPER, Director

Rule Reviewer

Certified to the Secretary of State, August 15, 2011.