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| Montana Administrative Register Notice 17-317 | No. 20 10/27/2011 | |
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BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY OF THE STATE OF MONTANA
TO: All Concerned Persons 1. On April 14, 2011, the Department of Environmental Quality published MAR Notice No. 17-317 regarding a notice of public hearing on the proposed amendment, adoption, and repeal of the above-stated rules at page 493, 2011 Montana Administrative Register, issue number 7. On May 12, 2011, the department published MAR Notice No. 17-317 regarding a notice of second public hearing and extension of comment period on the proposed amendment, adoption, and repeal of the above-stated rules at page 718, 2011 Montana Administrative Register, issue number 9. 2. The department has amended ARM 17.74.301, 17.74.350, 17.74.351, 17.74.352, 17.74.353, 17.74.356, 17.74.357, 17.74.359, 17.74.360, 17.74.361, 17.74.364, 17.74.365, adopted New Rules I (17.74.369), II (17.74.370), III (17.74.371), and IV (17.74.372), and repealed ARM 17.74.303 exactly as proposed, and has amended ARM 17.74.354 and 17.74.355 as proposed, but with the following changes, new matter underlined, stricken matter interlined: 17.74.354 INSPECTION REQUIREMENTS FOR DEMOLITION AND RENOVATION ACTIVITIES (1) remains as proposed. (2) The owner or operator shall ensure that a copy of the inspection report is kept on site during the asbestos project (3) A department-accredited asbestos inspector conducting an inspection in accordance with this subchapter shall: (a) through (c)(iii) remain as proposed. (d) collect samples from thermal system insulation as follows: (i) and (ii) remain as proposed. (iii) no bulk samples where the accredited inspector has determined that the thermal system insulation is fiberglass, foam, glass, rubber, or other non-ACM; (e) through (4)(c)(vi) remain as proposed. (5) For the purposes of an inspection conducted under (3): (a) a material is considered to be ACM if the analytical results of at least one sample collected from that material show that asbestos is present in an amount greater than (b) remains as proposed. (6) For inspections conducted under (3), the asbestos inspector shall report the findings in a written inspection report to the owner of the building or the operator conducting the planned demolition or renovation activity. The asbestos inspection report must include: (a) through (i) remain as proposed. (j) a copy of the sample analytical report, specified in (4)(c), with the name and address of each laboratory performing an analysis, the date of analysis, and the name and signature of the person performing the analysis; and (k) through (9) remain as proposed.
17.74.355 ASBESTOS PROJECT PERMITS (1) through (6) remain as proposed. (7) A copy of the asbestos project permit application, permit, project design, (8) remains as proposed. 3. The following comments were received and appear with the department's responses: COMMENT NO. 1: Comments were made asking the department to clarify why it inserted "certain" in ARM 17.74.301(2). RESPONSE: The department added the word "certain" before "asbestos practices" to make it clear that the department does not regulate and establish criteria for all asbestos practices. Specifically, the department has no authority to regulate practices addressed by the Occupational Safety and Health Act (OSH Act) and its implementing regulations. COMMENT NO. 2: One commentor suggested that the purpose of the department's asbestos rules as set forth in ARM 17.74.301(2) should not be to regulate and establish criteria, but to protect public and worker health. RESPONSE: The department's authority to adopt rules to implement the Asbestos Control Act is derived from 75-2-503(1), MCA, which specifically directs the department to adopt rules "establishing standards and procedures for accreditation of asbestos-related occupations and control of the work performed by persons in asbestos-related occupations" (emphasis added). The specific items that the rules are to address are generally listed in 75-2-503(1), MCA, as "standards," "requirements," and "criteria." The department does make it a point to consider public health and welfare, as well as the environment, in crafting the rules it proposes to adopt, but the specific purpose of the rules is to regulate and establish criteria as mandated by the Asbestos Control Act. The department has no authority to address worker safety issues already addressed in the OSH Act and its implementing regulations. Therefore, the department declines to modify ARM 17.74.301(2) in response to this comment. COMMENT NO. 3: One commentor asked why 40 CFR 61.145(a)(1), and other sections of 40 CFR 145 that discuss quantities, are still incorporated by reference in ARM 17.74.351(1)(a). RESPONSE: ARM 17.74.351 adopts by reference the asbestos National Emissions Standards for Hazardous Air Pollutants (NESHAP) (40 CFR 61, subparts A and M), except for 40 CFR 61.145(a)(2). The department has specifically excepted section 145(a)(2) because that entire provision is inapplicable to Montana's regulatory system in light of the fact that the Asbestos Control Act applies to all ACM over three square feet in surface area or three linear feet of pipe. All other provisions in the asbestos NESHAP that reference quantities of ACM or RACM are applicable in Montana because the quantities were changed to reflect Montana's jurisdictional amount in existing ARM 17.74.353(1)(a) and (b). The department believes it would be inappropriate to delete entire provisions of the asbestos NESHAP from adoption by reference when simply substituting the different jurisdictional quantities can reconcile the provisions with the provisions of the Asbestos Control Act. COMMENT NO. 4: One commentor suggested that the prescribed testing methodologies adopted by reference in ARM 17.74.351 should include other methods as well. RESPONSE: The department recognizes that testing methods other than those specifically adopted by reference in this rule may be as appropriate or even more appropriate in particular situations. The department has addressed this issue in ARM 17.74.354(4)(b) by allowing the use of other testing methods accepted by the department. Accordingly, the department declines to modify ARM 17.74.351 in response to this comment. COMMENT NO. 5: One commentor asked if a standard could be created for the NIOSH 7402 analytical method for analyzing TEM samples incorporated by reference in ARM 17.74.351. RESPONSE: The department recognizes that testing methods, other than those specifically incorporated by reference in this rule, may be as appropriate, or even more appropriate, in particular situations. The department has addressed this issue in ARM 17.74.354(4)(b) by allowing the use of other testing methods accepted by the department. Accordingly, the department declines to modify ARM 17.74.351 in response to this comment. COMMENT NO. 6: One commentor suggested the addition of a hyphen between "asbestos" and "containing waste" in ARM 17.74.352(4). RESPONSE: The rule was proposed with the hyphen in the original notice, so no changes are necessary in response to this comment. COMMENT NO. 7: A commentor suggested adding the word "who" following "person" in the revised definition provided for in ARM 17.74.352(9). RESPONSE: The existing definition in ARM 17.74.352(9) already includes the suggested wording, so no changes are necessary in response to this comment. COMMENT NO. 8: One commentor suggested that the reference to 75-2-502(3), MCA, in the definition of "asbestos project" does not exist. RESPONSE: The proposed rules do not change the definition of "asbestos project" and the reference to 75-2-502(3), MCA, remains the correct citation. COMMENT NO. 9: One commentor suggested adding the word "abatement" in the last sentence between the words "asbestos" and "project" in the definition of "asbestos project contractor/supervisor." RESPONSE: The term "asbestos project contractor/supervisor" contains the term "asbestos project," which is a term of art defined in 75-2-502, MCA. The definition of "asbestos project" in 75-2-502, MCA, does not include the term "abatement." Also, 40 CFR 61, subpart M, does not use the term "abatement." Accordingly, the department declines to include the word "abatement" as requested by the commentor. COMMENT NO. 10: One commentor suggested changing the definition of "asbestos project worker" to add "containment construction" to the definition and delete "or transports or disposes of asbestos-containing waste material" unless supervised by a contractor/supervisor. RESPONSE: As stated in the original notice, the United States Supreme Court held, in Gade v. National Solid Wastes Management Association, 505 U.S. 88 (1992), that, unless a state has adopted a comprehensive worker protection program that has been approved by the Occupational Safety and Health Administration OSHA (which Montana has not done), any state regulatory provisions that address standards already addressed by the OSH Act, or its implementing regulations, are preempted. Because containments are required by the OSH Act, but not by the Asbestos Control Act or the asbestos NESHAP, the department has determined that it has no authority to require containments in its rules. Since it has no authority to regulate containments, the department has determined it has no authority to designate who can construct containments. That must be left up to OSHA to regulate. Accordingly, the department declines to add "containment construction" to the definition as suggested by this comment. Concerning transportation and disposal of asbestos-containing waste, see the Response to Comment No. 39. COMMENT NO. 11: One commentor asked why the definitions of "category I non-friable ACM" and "category II non-friable ACM" were removed from the definitions. RESPONSE: The definitions of "category I non-friable ACM" and "category II non-friable ACM" are proposed to be deleted because the terms are defined in the NESHAP regulations that were adopted by reference, and the only places where the terms appear are in those NESHAP regulations. The terms do not appear anywhere else in subchapter 3. For additional explanation, please refer to the Response to Comment No. 22. COMMENT NO. 12: One commentor suggested that the definition of "encapsulation" should be changed to insert the word "and" between "previously painted" and "undamaged RACM." RESPONSE: The rule was proposed with the "and" between "previously painted" and "undamaged RACM" in the original notice, so no changes are necessary in response to this comment. COMMENT NO. 13: One commentor asked why the definition of "engaged in an asbestos-related occupation" is needed. RESPONSE: The department proposed to define "engaged in an asbestos-related occupation" to clarify the meaning of the term, which is found in ARM 17.74.301 and in 75-2-511, MCA. The department has come across several instances where persons have conducted asbestos projects without being accredited, but have asserted that working on a single project does not mean they were "engaged in an asbestos-related occupation." This proposed definition clarifies the fact that a person is engaged in an asbestos-related occupation whenever a person engages in specified activities, even if those activities do not comprise the person's career. COMMENT NO. 14: One commentor asked why the definition of "visible emissions" was removed. RESPONSE: The term "visible emissions" is defined in the NESHAP regulations the department is proposing to adopt by reference and the term is not used elsewhere in subchapter 3 of the rules. For additional explanation, please refer to the Response to Comment No. 15. COMMENT NO. 15: One commentor asked why the department does not include the full text of the definition of RACM and other terms whose definitions are in CFR sections that are incorporated by reference in these rules. RESPONSE: When an outside source is adopted by reference into the ARM, that outside source becomes a part of the ARM, just as much as if it were actually written out in the ARM. Therefore, when a term is defined in a portion of the Code of Federal Regulations (CFR) that has been adopted by reference into the ARM, it would be duplicative and unnecessary to define the term again in the ARM. In addition, such a situation potentially could lead to confusion if one of the definitions is amended in the future while the other one is not. Accordingly, the department is repealing all definitions in its asbestos rules that are adopted by reference through the asbestos NESHAP. COMMENT NO. 16: Comments were received questioning the project design posting requirements contained in ARM 17.74.355(7). In the first comment, the department's authority to require that a copy of the project design be posted on site during an asbestos project was challenged because no project design parameters are referenced or defined in subchapter 3 or in ARM 17.74.355. In a second related comment, the rule was challenged based on the notion that the contracts for asbestos projects are not subject to public disclosure. RESPONSE: Although the existing rules require the owner or operator to submit to the department all of the documents described in ARM 17.74.355(7), other than the permit itself, the department is proposing to eliminate the submittal requirement in order to facilitate the move to electronic submission of permit applications. However, it is expected that a project plan and sketch still will be prepared in connection with all asbestos projects as described in NESHAP (40CFR, 61.145(xi)) and in the AHERA Model Accreditation Plan. As a best management practice and in compliance with approved training, the department has determined that it is important to have those documents made available at the work site to lessen the likelihood of ACM being overlooked and also as a reference for the department should any of its staff inspect the asbestos project. Accordingly, the department declines to make the requested change at this time. As for the contract, the department notes that existing rules require it to be submitted to the department and when it is received it becomes a public record. However, the department agrees that requiring the contract amount and its terms to be posted for public perusal would add little to protection of human health or the environment. Accordingly, the department has amended ARM 17.74.355(7) to delete the requirement that the contract be posted in a conspicuous place and replaced it with a requirement that the contract merely be maintained at the facility during the asbestos project and that it be made available for department employees or representatives to examine upon request. COMMENT NO. 17: One commentor suggested that ARM 17.74.355(3) might conflict with ARM 17.74.353(1)(c). RESPONSE: The department does not consider there to be conflict between ARM 17.74.355(3) and ARM 17.74.353(1)(c). ARM 17.74.353(1)(c) concerns the federal NESHAP notification requirement for intent to demolish or renovate. ARM 17.74.355(3) concerns an application for an asbestos project permit pursuant to the Montana Asbestos Control Act. Furthermore, the NESHAP notification requirement provides that the notice should be delivered at least ten working days before the asbestos project is to begin. There is no requirement that the asbestos project contractor/supervisor wait until ten working days before the proposed asbestos project start date to send either the NESHAP notice or the permit application. They can be sent earlier to ensure there is time to correct any deficiencies in the application. The department declines to modify any of the proposed rules in response to this comment. COMMENT NO. 18: A comment was made suggesting that a comma be placed between the terms "foam" and "glass" in ARM 17.74.354(3)(d)(iii). RESPONSE: The department agrees with the comment and has included the suggestion to aid in clarity. COMMENT NO. 19: A comment was made suggesting an editorial change from the symbol % to "percent" in ARM 17.74.354(5)(a). RESPONSE: The department agrees with the comment and has amended the rule as shown above. COMMENT NO. 20: A comment was made requesting that the statement in ARM 17.74.354(6)(j) be amended to read, "a copy of the sample analytical report specified in (4)(c);". RESPONSE: The department agrees with the comment and has amended the rule as shown above. COMMENT NO. 21: One commentor stated that inspectors are not usually given enough up-front information to comply with the requirements set out in the definition of "thoroughly inspect." RESPONSE: The department believes the definition of "thoroughly inspect" is sufficiently clear to allow an accredited inspector adequate information to ensure compliance with the asbestos program requirements, so no change will be made to the rule in response to the comment. COMMENT NO. 22: One commentor suggested that because the definition of "asbestos" in 75-2-502, MCA, does not mention anything about greater or lesser than one percent, all asbestos should be regulated. RESPONSE: The statutory authority granted the department through the provisions of the Asbestos Control Act (Act) contained in Title 75, chapter 2, part 5, MCA, states that the department shall adopt rules establishing occupational accreditation standards and procedures and control of the work performed by persons in asbestos-related occupations. Additionally, the department has chosen to adhere to the provisions of 40 CFR 61.141, which establish a minimum percentage of asbestos in a material, greater than one percent for regulatory coverage to apply. The combination of the authority derived from the Asbestos Control Act, the department's administrative rules implementing the Act, and the federal delegation of authority through NESHAP, establishes the specific regulatory framework regarding both the concentrations of asbestos and the types of structures to which the department's authority extends. COMMENT NO. 23: One commentor has suggested that the heading for ARM 17.74.354 should be more informative of what is included in the section. RESPONSE: The rule was proposed with the updated title language in the original notice, so no changes are necessary in response to this comment. COMMENT NO. 24: Regarding ARM 17.74.354(2), a commentor suggested that the owner, not the operator, should be responsible for maintaining the inspection report on site, because the operator may not be involved in, or have any control over, the demolition or renovation activities other than the asbestos project itself. RESPONSE: The department agrees with the comment and has amended the rule as shown above. COMMENT NO. 25: One commentor suggested that the proficiency analytical testing (PAT) rounds required in ARM 17.74.354(4) uses the wrong method. RESPONSE: The testing method referenced in ARM 17.74.354(4) applies to polarized light microscopy (PLM), rather than PAT rounds, and adheres to the standards established by the EPA and the department. COMMENT NO. 26: One commentor asked if the department would define or list the other methods acceptable to the department as referenced in ARM 17.74.354(4)(b). RESPONSE: The department proposes to allow other methods, if requested in writing, and the department finds the other method(s) to be at least as accurate as the method referenced in the proposed rule. No list of other acceptable methods is available at this time, but the department will consider preparing such a list and making it available in the event other methods are properly requested of the department and found to be acceptable. COMMENT NO. 27: One commentor suggested that, if sampling required under ARM 17.74.354(5)(b) is completed using EPA's PLM method, any result showing less than one percent asbestos should be confirmed through further testing because of the PLM method's deviation of plus or minus ten percent. Another commentor asked if point counting is, or should be, required for samples that contain less than ten percent asbestos. RESPONSE: EPA's PLM method details several methods for the quantitative analysis of asbestos fibers including comparison of the sample to calibration materials that have similar textures and fiber abundance and the point counting method. EPA's PLM method does not state a deviation of plus or minus ten percent but states that the range and sensitivity of the method are variable and dependent upon many factors, including matrix effects, diagnostic reflections selected and their relative intensities, preferred orientation, and instrumental limitations. The method states that a detection limit of one percent is feasible given certain sample characteristics. The EPA sampling methodology does not require point counting, but the technique may be used to quantify asbestos fibers in a sample in certain circumstances. The department believes the proposed changes to ARM 17.74.354(5)(b) adequately address sampling requirements during an inspection and declines to modify the provision. COMMENT NO. 28: One commentor noted that the information required to comply with ARM 17.74.354(6)(b) may not be known at the time of the inspection. RESPONSE: Please refer to the Response to Comment No. 21. COMMENT NO. 29: One commentor suggested that ARM 17.74.354(7)(b) should indicate that air testing alone is not sufficient to determine the extent and cause of asbestos contamination. RESPONSE: ARM 17.74.354(7)(b) specifically states that "air sampling may not be used by the department-accredited asbestos inspector as the sole means of evaluation whether asbestos is present;" (emphasis added). COMMENT NO. 30: One commentor asked what would make an asbestos inspection deficient so as to justify the department conducting its own inspection pursuant to ARM 17.74.354(8), what would be the qualifications of the department inspector, and what standards or protocols would be followed? RESPONSE: The inspection referenced in ARM 17.74.354(8) is authorized by 75-2-518, MCA, and is not intended to be a substitute for the inspection referenced in ARM 17.74.354(7). The department inspection in (8) is intended to ensure that the inspection that was conducted under (7) complied with the applicable requirements. An inspection would be deemed deficient if the inspection report indicated that samples were not taken of materials that were known to have been impacted by the renovation or demolition activities, that an insufficient number of samples were taken, that proper procedures or sampling techniques were not followed, or that the inspection otherwise did not comply with the requirements of (7). The program staff are not required to maintain accreditation, but are trained in sampling protocols for the purposes of compliance inspections. The department inspection would employ the same sampling standards and protocols set forth in (7). However, the inspection may be limited to those areas where deficiencies were observed or suspected, and may not constitute as thorough an inspection as would be required in (7). COMMENT NO. 31: One commentor asked what is meant by the term "complete" in the following sentence in ARM 17.74.353: "Delivery of the notice by U.S. Postal Service, commercial delivery service, or hand delivery is acceptable, and delivery of the notice will be considered complete when the department receives the notice." RESPONSE: The explanation of when delivery of notice is "complete" is proposed to be included in the rule to clarify that the ten-working-day time period in 40 CFR 61.145(b)(3)(i) begins when the notice of the intention to demolish or renovate is received by the department. The term "complete" does not refer to whether the notification documents are complete according to the applicable notification requirements. COMMENT NO. 32: One commentor asked, if work practices are preempted by the OSH Act and are no longer required by the Asbestos Control Program, then how can the program approve alternate work practices in ARM 17.74.353? RESPONSE: The OSH Act does not preempt all work practices to be employed during asbestos projects. Rather, Section 18 of the OSH Act has been interpreted by the Supreme Court of the United States as prohibiting a state from regulating anything for which a standard has already been established under the OSH Act, except where the state has implemented a worker protection program approved by OSHA, which Montana has not done. In this rulemaking procedure, the department is proposing to eliminate all provisions in its rules that address standards already addressed under the OSH Act, except provisions that are expressly required by Montana's Asbestos Control Act or that appear in the NESHAP, which the EPA has delegated to the department to enforce. In other words, the OSH Act does not preempt work practices that are not already addressed in the OSH Act or its implementing rules. Accordingly, the department declines to make any changes to the proposed rules in response to this comment. COMMENT NO. 33: One commentor stated that ARM 17.74.353, 17.74.355, and 17.74.359 will impose a burden on annual facility permit holders, particularly to the extent such permit holders will have to submit notice ten days in advance of every asbestos project in the facility as small as three square or linear feet, which could result in several notices needing to be prepared and sent each day. RESPONSE: The requirement to provide ten-working-days notice for every asbestos project is an existing rule. The proposed change establishes that the ten-working-day notice period for projects begins when the department receives the notification. Annual permit holders may make notice in their application for an annual permit of all anticipated removal projects during the coming year. COMMENT NO. 34: One commentor suggested that ARM 17.74.356, as it is proposed to be amended, is duplicative, confusing, and redundant, and suggested that it be eliminated. RESPONSE: The department is not aware of any other rules, existing or proposed, that include the same requirements as ARM 17.74.356. Without specific examples of redundancy, how the rule duplicates another regulatory requirement, or that the rule is confusing, the department declines to modify or eliminate ARM 17.74.356 in response to this comment. COMMENT NO. 35: One commentor noted that ARM 17.74.356(2) states that the department may approve alternate control measures that are equivalent to those required under this chapter and asked if there is a list of control measures that are currently approved. RESPONSE: The department does not have such a list at this time. Furthermore, control measures that may be appropriate for one asbestos project may be inappropriate for another project, so the department may not be able to compile a general list of acceptable alternate control measures. Rather, a written request to employ alternative control measures for a particular project should be submitted to the department in advance and the department will make a determination if the proposed alternate measures would be equivalent to those required, before allowing them to be employed in a specific asbestos project. This is intended to be similar to the waiver provision that was found at section 4.02 of the Montana Asbestos Work Practices and Procedures Manual. COMMENT NO. 36: Another commentor asked if the provision for alternate control measures in ARM 17.74.356(2) infringes on "OSHA territory." RESPONSE: The commentor is correct in that the department may not approve alternate control measures that are also required by the OSH Act unless the alternate control measure is also provided for in the asbestos NESHAP. The department believes the proposed amendment to ARM 17.74.356(2) is crafted to allow the department to approve alternative control measures that are within the department's delegated authority. COMMENT NO. 37: One commentor stated that requiring that the owner or operator of a facility maintain an asbestos health and safety program in order to qualify for an annual asbestos project permit, as described in ARM 17.74.359, is also an OSHA requirement. RESPONSE: The requirement that the owner or operator of a facility maintain an asbestos health and safety program in order to qualify for an annual asbestos project permit was mandated by the Montana Legislature in 75-2-504, MCA. The department is required to comply with statutes enacted by the Legislature. Accordingly, the department declines to make any changes to ARM 17.74.359 in response to this comment. COMMENT NO. 38: Concerning ARM 17.74.364, one commentor stated that the department should further examine the needs, training, and requirements for training providers, and that the department should look to Minnesota for guidance. RESPONSE: The department establishes program performance objectives in its annual business plan. The department acknowledges the importance of administering effective training programs for providers and will take the comment into consideration in subsequent rulemaking proposals. COMMENT NO. 39: One commentor suggested that New Rule I should not allow a worker to escort a load, as a contractor/supervisor would still need to be present. RESPONSE: The definition of "asbestos project" found in 75-2-502, MCA, includes the transportation and disposal of asbestos-containing waste. ARM 17.74.356 requires that a contractor/supervisor must be present when regulated work is being conducted on an asbestos project. The intent behind the provisions of New Rule I is to ensure that the transportation of asbestos-containing waste is as protective of human health and the environment as is reasonably possible. The language of New Rule I is designed to require that transportation and disposal activities must be conducted by accredited workers or, in the event that an unaccredited worker is tasked with transportation and disposal, escorted and supervised by a contractor/supervisor or an accredited worker. This provision strikes a balance between allowing some flexibility during the course of an asbestos project and dictating on-site decisions based on the regulatory framework of the Asbestos Control Act, federal rules contained in NESHAP, and this subchapter. The department believes that the training required for accreditation of asbestos workers qualifies them to safely transport asbestos-containing waste and to respond appropriately to any incidents that could arise in the course of that transportation, and believes the language in New Rule I precludes a situation where an unaccredited worker would transport or dispose of asbestos containing waste. Additionally, the provisions of ARM 17.74.356(3), offer asbestos contractors the ability to propose for departmental approval any alternative control measures, if those alternative measures are equivalent to the written requirements in the rules. Accordingly, the department declines to modify New Rule I and believes the previous response clarifies the intent of the rule. COMMENT NO. 40: One commentor suggested that New Rule I(3)(b)(ii) and (iii) are redundant and should be eliminated. RESPONSE: The department believes it is important that the person transporting asbestos-containing waste take such steps as are within the transporter's control to ensure that all packaging and labeling requirements are met before transporting asbestos-containing waste from the work site. The transporter should not be allowed to ignore obvious errors or omissions by the operator that could result in a heightened risk of asbestos exposure to the general public or the environment. Accordingly, the department declines to make any changes to New Rule I in response to this comment. COMMENT NO. 41: One commentor suggested that the language for "all" of the subsections in New Rule II(2) are the same, so why not combine them. RESPONSE: The department agrees that New Rule II(2)(c) and (d) begin with the words "ensure that," but notes that all the subsections address entirely different issues. The standard protocol for drafting administrative rules is to separate different requirements into different sections or subsections. Furthermore, New Rule II(2)(a), (b), and (e) begin differently, so could not be combined in any event. Accordingly, the department declines to make any changes to New Rule II in response to this comment. COMMENT NO. 42: One commentor suggested that New Rule III, "Encapsulation of Asbestos-Containing Material," is not necessary. RESPONSE: Section 75-2-502(3), MCA, includes "encapsulation" in the definition of "asbestos project," and 75-2-503(1)(g), MCA, requires the department to adopt rules establishing "criteria to determine whether and what type of control measures are necessary for an asbestos project." Because the Montana Legislature has mandated that the department adopt rules governing control measures for asbestos projects, and the Legislature has stated that encapsulation of ACM is an asbestos project, the department declines to delete New Rule III in response to this comment. COMMENT NO. 43: One commentor suggested that the department should reconsider repealing ARM 17.74.303, because the department does not appear to have sufficient resources to enforce asbestos-related requirements if all residences would be covered by the Asbestos Control Act and its implementing rules. RESPONSE: The repeal of ARM 17.74.303 does not result in all residential buildings being subject to regulation under the Act. Rather, the existing definition of "facility" in the asbestos NESHAP regulations exempts from regulation all residential buildings having four or fewer dwelling units. Because the department has adopted by reference the NESHAP, including its definition of "facility," the provisions contained in ARM 17.74.303 have resulted in confusion about whether residential buildings having four or fewer dwelling units are regulated. Repealing ARM 17.74.303 clarifies that the NESHAP definition of "facility" governs what buildings are regulated by the department under the Asbestos Control Act, and that residential buildings having four or fewer dwelling units are not regulated. COMMENT NO. 44: One commentor has stated that the requirement in ARM 17.74.357(3)(b)(iii), that the air be continually agitated before taking air clearance samples, is in excess of AHERA. RESPONSE: AHERA is limited to identifying asbestos in schools and is not enforced by the department (EPA has delegated the administration of the AHERA Model Accreditation Plan to DEQ). However, 40 CFR 736.90(i)(2)(i), in the regulations implementing AHERA, specifically requires that air samples be collected using aggressive sampling conditions to dislodge any remaining dust. COMMENT NO. 45: One commentor has suggested that aggressive sampling in the area where ACM was removed using a glove bag, as required in ARM 17.74.357(3)(d), could disturb a preexisting situation and that personal sampling is sufficient. RESPONSE: The department recognizes that there are instances where a preexisting situation could bias the sampling results. The department has drafted the rule to allow asbestos workers a reasonable amount of flexibility in an effort to comply with sampling regulations. In the event of a preexisting situation that may bias results, a sampler may request an alternative method for clearing the project as provided for in ARM 17.74.357(10). COMMENT NO. 46: One commentor suggested that asbestos workers should not be allowed to conduct final visual inspections pursuant to ARM 17.74.357(11)(a). RESPONSE: Montana-accredited asbestos workers must have taken a department-approved training course for accreditation as an asbestos project worker. The course must meet the requirements of 40 CFR 763, subpart E, Appendix C, section B.1, Workers (ARM 17.74.365(1)) to be approved by the department. A person must be accredited as a worker to carry out a response action, with respect to friable asbestos, a maintenance activity, or a response action for a major fiber release episode (40 CFR Part 763 Asbestos Model Accreditation Plan). They must also be trained on the physical characteristics of asbestos, state-of-the-art work practices, and air monitoring. The department believes that the proposed rule establishes appropriate safeguards and criteria to ensure an asbestos worker is qualified to conduct final visual inspections. Accordingly, the department declines to modify the rule in response this comment. COMMENT NO. 47: A comment was made to add the word "prior" between the words "surface" and "to" in ARM 17.74.357(3)(b)(ii). RESPONSE: The current version of ARM 17.74.357(3)(b)(ii), in the proposed rule reads: "… once the work area has passed the final visual inspection, sweep an air stream from a high-speed blower or equivalent air-blowing device across all surfaces in the work area for a time adequate to disturb air in all areas of the work area prior to beginning final air clearance sampling; …". The department believes the provision as written is sufficiently clear and declines to make the proposed change. COMMENT NO. 48: One commentor suggested that the air clearance sampling results should be maintained and distributed. RESPONSE: The recordkeeping provisions contained in ARM 17.74.360(1) stating that "records of asbestos projects that are being, or have been, conducted must be retained for at least 30 years and made available to the department upon request." have not been amended in this proposal. While the rule does not specifically provide for "distribution" of the air clearance sampling results, any person interested in the records may request a copy from the department. COMMENT NO. 49: Comments were made stating that OSHA covers glove bags, so the department should not also cover them. RESPONSE: The department agrees the United States Supreme Court stated in Gade v. National Solid Wastes Management Association, 505 U.S. 88 (1992), that the OSH Act preempts any state requirements that address the same standards addressed in the OSH Act, unless the state has adopted a comprehensive worker protection program that has been approved by OSHA, and Montana has not adopted such a program. However, the department's rules relating to the use of glove bags are derived from the asbestos NESHAP regulations found in 40 CFR Part 61, subpart M, which the EPA has delegated to the department to enforce. The OSH Act and its implementing regulations do not preempt other federal statutes and rules, such as the Clean Air Act or the NESHAP. Because the department has been delegated authority by the EPA to enforce the NESHAP regulations, the department has determined there is no issue of preemption by the OSH Act. Accordingly, the department declines to make any changes to ARM 17.24.357 in response to this comment. 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, October 17, 2011.
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