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 17.55.109 pertaining to incorporation by reference

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

(CECRA REMEDIATION)

TO: All Concerned Persons

1. On May 14, 2012, the Department of Environmental Quality proposes to amend the above-stated rule.

2. The department will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice. If you require an accommodation, contact Elois Johnson, Paralegal, no later than 5:00 p.m., April 23, 2012, 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 rule proposed to be amended provides as follows, stricken matter interlined, new matter underlined:

17.55.109 INCORPORATION BY REFERENCE (1) For the purposes of this subchapter, the department adopts and incorporates by reference:

(a) Department Circular DEQ-7, Montana Numeric Water Quality Standards (~~February 2008~~ August 2010);

(b) Drinking Water Maximum Contaminant Levels, published at 40 CFR 141.11, 40 CFR 141.61, 40 CFR 141.62, 40 CFR 141.63, 40 CFR 141.64, 40 CFR 141.65, and 40 CFR 141.66 (~~2008~~ 2010);

(d) U.S. Environmental Protection Agency, Regional Screening Levels for Chemical Contaminants at Superfund Sites (~~April 2009~~ November 2011), except when:

(i) through (5) remain the same.

AUTH: 75-10-702, 75-10-704, MCA

IMP: 75-10-702, 75-10-704, 75-10-711, MCA

REASON: It is necessary to update these references to ensure the most recent versions of the documents are used by the department.

DEQ-7 standards are appropriate as they have already been adopted by the Board of Environmental Review as the standards that apply to surface water and ground water. The department has used these levels consistently when evaluating potential risk to surface water and ground water. Use of the maximum contaminant levels is appropriate as they have been adopted by EPA for protection of public drinking water supplies. The department has used these levels consistently when evaluating potential risks to drinking water.

The regional screening levels are being used by various states and EPA and provide screening values that provide the same levels of protection for non-petroleum compounds as are provided by the risk-based guidance for petroleum previously adopted by the department. The regional screening levels are based on ingestion, inhalation, and dermal contact and include residential and industrial exposure and are used to screen potential risk at a wide variety of sites. These regional screening levels also provide soil screening levels that address migration to ground water. The department is incorporating the most recent version of the regional screening levels to ensure updates, based on new toxicity data or other factors, are adequately considered. EPA updated the regional screening levels in November 2011 and the primary updates are summarized. EPA completed its health risk assessment of trichloroethylene, which resulted in new screening levels to evaluate the potential for vapor intrusion and ground water contamination. For soil, air, and tapwater, there are two health-based regional screening levels for trichloroethylene, one that screens for potential cancer risk and another one that screens for potential non-cancer health hazards. Tapwater "non-cancer" regional screening levels have been modified to incorporate child-specific exposure factors for a 1-6 year old, similar to the regional screening level approach used for soils. Previously, non-cancer tapwater screening levels were based on adult exposure assumptions. This focus on children results in a lowering of the non-cancer tapwater regional screening levels by a factor of two or three. Cancer-based regional screening levels are not affected, as they already incorporate both child and adult exposure factors. In addition, tapwater regional screening levels now consider dermal exposures as per EPA's Risk Assessment Guidance for Superfund (RAGS), Part E, for chemicals for which data are available.

All of the documents incorporated by reference are available on the department's web site at: http://deq.mt.gov/StateSuperfund/default.mcpx. In addition, these documents are available upon request from the Department of Environmental Quality, Remediation Division, P.O. Box 200901, Helena, MT 59620-0901.

4. Concerned persons may submit their data, views, or arguments concerning the proposed action in writing to 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], no later than May 10, 2012. To be guaranteed consideration, mailed comments must be postmarked on or before that date.

5. If persons who are directly affected by the proposed action wish to express their data, views, or arguments orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments they have to 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], no later than May 10, 2012.

6. If the department receives requests for a public hearing on the proposed action from either 10% or 25, whichever is less, of the persons who are directly affected by the proposed action; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date. Notice of the hearing will be published in the Montana Administrative Register. Ten percent of those persons directly affected has been determined to be six based on 60 liable or potentially liable persons under 75-10-715, MCA, who have received notice letters at facilities DEQ is currently addressing.

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, do not apply.

Reviewed by: DEPARTMENT OF ENVIRONMENTAL

QUALITY

/s/ John F. North BY: /s/ Richard H. Opper

JOHN F. NORTH RICHARD H. OPPER, Director

Rule Reviewer

Certified to the Secretary of State, April 2, 2012.