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| Montana Administrative Register Notice 17-417 | No. 6 03/25/2022 | |
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BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On April 22, 2022, at 10:00 a.m., the Department of Environmental Quality (DEQ) will hold a public hearing in Room 111 of the Metcalf Building, 1520 East Sixth Avenue, Helena, Montana, to consider the proposed amendment and adoption of the above-stated rules. DEQ is committed to preventing the spread of COVID-19 and promoting the health and wellness of others. Members of the public may participate either in person or virtually. For in-person meetings, while face masks are not required, meeting attendees are welcome to wear masks. If you are not feeling well, please do not attend the in-person meeting. Registration with Zoom may be made at the following link:
Join Zoom Meeting: https://mt-gov.zoom.us/j/86412151320?pwd=WUtQempiUU9ML2NNaFBBMldDRHNtZz09
Meeting ID: 864 1215 1320 Password: 339014
Dial by Telephone +1 646 558 8656 or +1 406 444 9999 Meeting ID: 864 1215 1320 Password: 339014 Find your local number: https://mt-gov.zoom.us/u/kcSrf2S2TA
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Please contact the Department of Environmental Quality at (406) 444-1388 or [email protected] should you encounter any difficulties.
2. The department will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the department no later than 5:00 p.m., April 15, 2022, to advise us of the nature of the accommodation that you need. Please contact the Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-1388; 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:
17.74.501 PURPOSE (1) This subchapter is adopted to protect the public health, safety, and welfare by providing specific cleanup standards for inhabitable
AUTH: 75-10-1304, MCA IMP: 75-10-1304, MCA
REASON: This proposed rulemaking is necessary to implement House Bill 116 (HB 116) adopted by the 67th Legislature. HB 116 amends 75-10-1301 through 75-10-1303, and 75-10-1305, MCA, by expanding the inhabitable property decontamination requirements. Previously, the statutory methamphetamine decontamination standard, disclosure, and cleanup requirements only applied to inhabitable properties contaminated by clandestine methamphetamine labs (CMLs). As of October 1, 2021, the effective date of HB 116, the decontamination standard, disclosure, and cleanup requirements of Title 75, chapter 10, part 13, MCA, apply to contamination of inhabitable property by smoke from methamphetamine use as well as contamination from CMLs. HB 116 also increases the decontamination standard from 0.1 µg/100 square centimeters to 1.5 µg/100 square centimeters.
17.74.504 DEFINITIONS For the purposes of this subchapter, unless the context clearly indicates otherwise, the following terms have meanings indicated below and are supplemental to the definitions in 75-10-1302, MCA: (1) "Assessment plan" means a plan submitted to the department by a certified methamphetamine cleanup contractor to investigate suspected contamination of inhabitable property, confirm, and evaluate the extent and magnitude of contamination by hazardous chemical residue from the manufacture of methamphetamine or by smoke from the use of methamphetamine. (1) and (2) remain the same but are renumbered (2) and (3).
(6) "Closure letter" means documentation issued by the department indicating that a potentially contaminated inhabitable property was disposed of in a manner that is at least as stringent as ARM 17.74.505, the structure will not be inhabited in the future, and public health, safety, and welfare will be adequately protected. (5) remains the same but is renumbered (7). (10) "Final clearance plan" means a plan submitted to the department by a certified methamphetamine cleanup contractor to collect representative samples and conduct a visual inspection of decontaminated areas to verify that the methamphetamine decontamination standard is met. (9) remains the same but is renumbered (11). (12) remains the same but is renumbered (13). (14) "Owner" means a person who has legal title to inhabitable property that is contaminated by a clandestine methamphetamine drug lab or by smoke from the use of methamphetamine.
(17) "Site assessment" means the evaluation of inhabitable property by a certified methamphetamine cleanup contractor to determine the nature and extent of contamination from a CML or from smoke from the use of methamphetamine.
(19) "Work plan" means a plan submitted to the department by a certified methamphetamine cleanup contractor to describe methods and means to decontaminate an inhabitable property and dispose of the waste stream, based on the assessment plan. (20) "Working day" means Monday through Friday and includes holidays that fall on working days.
AUTH: 75-10-1304, MCA IMP: 75-10-1304, MCA
REASON: Reference to the definitions in 75-10-1302, MCA, is necessary to cross reference and incorporate the definitions in the methamphetamine cleanup statute. It is necessary to adopt the proposed definition of "assessment plan" at (1) to describe the department's criteria for collecting relevant samples and other information to evaluate inhabitable properties that are potentially contaminated with methamphetamine. This definition is also necessary to explain assessment procedures so that the department, certified contractors, and the public understand the requirements and purpose of an assessment plan. The department is proposing to amend the definition of "certified contractor" at (4) by changing the defined term to "certified methamphetamine cleanup contractor." This change is necessary to better describe the specialized work for which these cleanup contractors are certified to perform. Additionally, amendments to the definition of "initial course" at (12), "refresher course" at (16), and "site assessment" at (17) are necessary to ensure the term "certified methamphetamine cleanup contractor" is used consistently within the defined terms applicable to this subchapter. Many of the definitions in ARM 17.74.504, including "certified methamphetamine cleanup contractor" at (4), "certified training provider" at (5), the definition of "contaminated" or "contamination" in (8), the definition of "decontaminated" or "decontamination" in (9), and the definition of "site assessment" in (17) are amended in response to House Bill 116 (HB 116), which expands the indoor inhabitable property decontamination requirements including the statutory methamphetamine decontamination standard, disclosure, training, and cleanup requirements to address contamination of inhabitable properties by smoke from methamphetamine use as well as contamination from CMLs. See the reason statement for ARM 17.74.501. It is necessary to adopt the proposed definition of "final clearance plan" at (10) to describe the process to ensure proper samples and other information are collected, reviewed, and approved to verify that the methamphetamine decontamination standard is met after contamination of an inhabitable structure with methamphetamine is confirmed. This proposed definition will explain final clearance procedures so that the department, certified methamphetamine cleanup contractors, and the public understand the requirements. It is necessary to adopt the proposed definition of "closure letter" at (6) to describe exceptions and extenuating circumstances when a certificate of fitness, defined in (3), cannot be issued due to the disposal of a potentially contaminated inhabitable structure. The closure letter is necessary to document that the inhabitable structure was disposed of in a manner that is at least as stringent as meeting the decontamination standard at ARM 17.74.505, the structure is disposed of in a manner that ensures it cannot be inhabited in the future, and public health, safety, and welfare are adequately protected. The proposed amendments to the definition of "contaminated" or "contamination" in (8) expand the definition, consistent with HB 116, to include contamination from smoke from the use of methamphetamine. Additionally, the proposed amendments to (8) are necessary to clarify that when inhabitable property is issued a closure letter, defined in (6), it is no longer considered contaminated under these rules. The proposed amendments to the definition of "decontaminated" or "decontamination" in (9) are necessary to expand the definition, consistent with HB 116, to include reduction of the levels of methamphetamine from smoke from the use of methamphetamine. Additionally, the proposed amendments to (9) are necessary to amend the definition to clarify that when inhabitable property is issued a closure letter, defined in (6), it is considered decontaminated under these rules. The department proposes to strike the definition of "department" formerly at (8) to conform with 2-4-305, MCA, whereby definitions already in statute are not repeated in rule. However, the definition of "inhabitable property" in (11) is retained for the convenience of the regulated community, with a cross reference to the statutory definition, because that term is referenced repeatedly within these rules. The proposed amendments to the definition of "initial course" in (12) are necessary to strike language pertaining to department-sponsored training courses as the department is not sponsoring methamphetamine cleanup contractor training courses. Language pertaining to contractor supervisor training is stricken because certified contractor training is limited to training on methamphetamine cleanup to meet the decontamination standard. Certified methamphetamine cleanup contractors are not required to supervise other certified methamphetamine cleanup contractors. As explained above, the language limiting cleanup training to decontamination of CMLs is removed because, after the effective date of HB 116, the training and the cleanup requirements and standards apply to inhabitable structures contaminated by CMLs and by smoke from the use of methamphetamine. The proposed addition of the definition of "owner" in (14) is necessary to define the person responsible for the notification requirements in 75-10-1305, MCA. The department is proposing to replace the existing definition of "property owner" with the definition of "owner" and proposes deleting the definition of "property owner" upon adoption of these rules. A clear definition of owner is necessary to define the person responsible for notifying occupants and future purchasers of inhabitable structures that are known by the owner to have been contaminated by a CML or by the smoke from the use of methamphetamine. The proposed amendment to the definition of "person" in (15) is necessary to expand the definition to include a state agency so that the definition is consistent with the definition of person in 75-2-502(6), MCA (the Montana Asbestos Control Act). The proposed amendment of the definition of person will provide consistency between the two programs administered by the department. The proposed amendments to the definition of "refresher course" in (16) are necessary to strike language pertaining to department-sponsored refresher training courses as the department is not sponsoring methamphetamine cleanup contractor training courses. Additionally, the language limiting refresher courses to decontamination of CMLs is removed because, after the effective date of HB 116, the refresher training requirements apply to certified methamphetamine cleanup contractors of inhabitable structures and will therefore address both contamination from CMLs and contamination from smoke from the use of methamphetamine. These proposed amendments will remove the definition of "initial site assessment," previously numbered (11), and add the proposed definition of "site assessment" in (17). This change is necessary to expand the definition of site assessment to include all evaluation of the extent and magnitude of methamphetamine contamination of an inhabitable property. The department does not intend to limit site assessments to the first evaluation of an inhabitable structure. A site assessment will evaluate the extent and magnitude of contamination of inhabitable properties from CMLs and from smoke from the use of methamphetamine. The department proposes to strike the definition of "surface material" in the former (16), to conform with 2-4-305, MCA, whereby definitions already in statute are not repeated in rule. The proposed amendments to the definition of "wipe sample" in (18) are necessary to clarify that wipe samples must be collected by wiping a sample medium on surface materials in accordance with common industry standards as well as the requirements of this subchapter. This change is necessary to ensure certified contractors are aware they must comply with the requirements of these methamphetamine cleanup rules as well as industry standards. The proposed definition of "work plan" in (19) is necessary to ensure certified methamphetamine cleanup contractors have a clear understanding of the necessary information required for the department to review and approve a work plan under ARM 17.74.507 so that the department can confirm the decontamination standard is met pursuant to 75-10-1305, MCA. The proposed definition of "working day" in (20) is necessary to clarify which calendar days count as working days and provide certainty to the regulated community as to how time is calculated to ensure methamphetamine cleanup timeframes are consistently applied and met.
17.74.505 DECONTAMINATION STANDARD (1) The
AUTH: 75-10-1303, MCA IMP: 75-10-1303, MCA
REASON: The proposed amendment is necessary to incorporate the current methamphetamine decontamination standard adopted in HB 116, which increases from 0.1 µg/100 square centimeters to 1.5 µg/100 square centimeters of surface material effective October 1, 2021. The department proposes to remove the application of the decontamination standard to surface wipe samples because sampling methods will be outlined in proposed NEW RULE I. The proposed amendments to ARM 17.74.505 are also necessary to expand the application of the decontamination standard to inhabitable property contaminated by CMLs and smoke from the use of methamphetamine and to reflect the decontamination standard in 75-10-1303, MCA, which applies to surface material.
17.74.506 DECONTAMINATION PERFORMANCE, ASSESSMENT, AND INSPECTION (1) (a) the assessment plan, which shall be prepared by a certified methamphetamine cleanup contractor in accordance with [NEW RULE II]; (b) the decontamination work plan, which shall be prepared by a certified methamphetamine cleanup contractor in accordance with [NEW RULE II]; and (c) documentation that the decontamination standard in 75-10-1303, MCA, is met pursuant to representative sampling and inspection conducted in accordance with the final clearance plan, which shall be prepared by a certified methamphetamine cleanup contractor in accordance with [NEW RULE II]. (2) Upon confirmation by the department that an inhabitable property has been properly remediated to the standards provided in 75-10-1303, MCA, and ARM 17.74.505, the department shall issue a certificate of fitness or closure letter to the property owner of record. (3) At any reasonable time, upon presentation of credentials, (a) enter and inspect any place at which (b) enter any place at which records pertinent to
AUTH: 75-10-1303, MCA IMP: 75-10-1303, MCA
REASON: The proposed amendments to ARM 17.74.506 are necessary to provide language consistent with HB 116, which expanded methamphetamine disclosure requirements to inhabitable properties contaminated by smoke from the use of methamphetamine as well as chemical contamination from CMLs. The proposed amendments to (1) are intended to align the rule with the new definitions of "assessment plan," "work plan," and "final clearance plan" and require that these plans are prepared by certified methamphetamine cleanup contractors and submitted to the department in accordance with NEW RULE II. Additionally, the proposed amendments to (1) are necessary to list the submittals and documents for the department's review so that it can confirm that the decontamination standard has been met in accordance with 75-10-1303, MCA. The proposed amendments to (2) are necessary to add "closure letter" as a method to document the department's determination that an inhabitable structure was disposed of in a manner that is at least as stringent as decontamination to the standard in 75-10-1303, MCA, and ARM 17.74.505 because the structure is disposed of in a manner that ensures it cannot be inhabited.
17.74.507 PERFORMANCE STANDARDS (1) (a) (b) (2) Department approval of
AUTH: 75-10-1304, MCA IMP: 75-10-1304, MCA
REASON: The proposed amendments to (1) and (2) are necessary to clarify the roles and responsibilities of certified methamphetamine cleanup contractors and the department's role in reviewing and approving site assessment plans, work plans, and final clearance plans so that the department can verify decontamination is achieved under 75-10-1306, MCA. The proposed amendments to (1)(c) are necessary to ensure final clearance plan sampling is conducted by an independent certified methamphetamine cleanup contractor who is not the certified methamphetamine cleanup contractor, or an employee of the certified methamphetamine cleanup contractor who conducted the decontamination work. It is necessary to strike (1)(c) because that provision is redundant and covered in (1)(a).
17.74.508 CONTRACTOR CERTIFICATION AND RENEWAL (1) An applicant for department certification as a (a) provide evidence of successful completion of HAZWOPER training, consisting of an (b) provide evidence of successful completion of (i) (ii) a copy of the training provider's initial methamphetamine cleanup contractor course roster, which includes the applicant's name; (e) if the applicant completed the initial methamphetamine cleanup contractor course more than six months prior to the application date, written evidence of completion of an eight-hour refresher class. (2) A (3) In order to renew a (a) a completed methamphetamine cleanup contractor certification renewal application form provided by the department; (b) written evidence the renewal applicant has successfully completed (c) remains the same. (4) If a previously certified methamphetamine cleanup contractor does not apply for a renewal of a (5) A
AUTH: 75-10-1304, MCA IMP: 75-10-1304, MCA
REASON: The proposed amendments to ARM 17.74.508 are necessary to provide language consistent with HB 116, which expanded disclosure requirements to inhabitable properties contaminated by smoke from the use of methamphetamine as well as chemical contamination from CMLs. The proposed amendments to ARM 17.74.508 are also necessary to clarify methamphetamine cleanup contractor certification standards and requirements under 75-10-1304, MCA, and ensure the title "certified methamphetamine cleanup contractor" is used throughout the rules. The proposed changes address the documentation required for the department to verify required methamphetamine cleanup contractor training course attendance information, to clarify the length of time methamphetamine cleanup contractor training remains valid, to address time allowed for a methamphetamine cleanup contractor course participant to apply for department certification, to address time allowed to apply for renewal of methamphetamine cleanup contractor certification, and to establish the minimum methamphetamine cleanup contractor training required to maintain methamphetamine cleanup contractor certification. Additionally, the proposed amendment of (3)(b) is necessary to strike language pertaining to department-sponsored refresher training courses as the department is not sponsoring methamphetamine cleanup contractor training courses .
17.74.511 INITIAL TRAINING COURSE (1) (a) (i) and (ii) remain the same. (b) chemical terminology, classifications, and properties related to clandestine methamphetamine manufacturing or the smoke from the use of methamphetamine; (c) characteristics of clandestine methamphetamine (d) remains the same. (e) adverse health effects of exposure to clandestine methamphetamine manufacturing or the smoke from the use of methamphetamine including, but not limited to: (i) and (ii) remain the same. (f) compatibility of chemicals related to (g) techniques and equipment used for (h) and (i) remain the same. (j) techniques for obtaining information to make site assessments, including: (i) (ii) (iii) through (vi) remain the same. (2) To receive certification, the initial methamphetamine cleanup contractor training course attendee must pass a written or electronic test with a minimum score of 70 percent. The test must be comprised of no less than 50 questions, with no less than 50 percent of the questions specific to this subchapter or the provisions of 75-10-1301 through 75-10-1306, MCA.
AUTH: 75-10-1304, MCA IMP: 75-10-1304, MCA
REASON: The proposed amendment to the title of ARM 17.74.511 is necessary to better reflect the purpose of the rule, which is not to describe the required content of initial methamphetamine cleanup contractor training courses but to list minimum requirements necessary to successfully obtain methamphetamine cleanup contractor certification. Additionally, the department is not approving methamphetamine cleanup contractor training courses, but establishing requirements and procedures for certification of methamphetamine cleanup contractors as authorized by 75-10-1304, MCA. The proposed amendment to (1) is necessary to clarify that initial methamphetamine cleanup contractor training courses must be taught by a person with a current department-issued methamphetamine cleanup contractor training provider certificate pursuant to ARM 17.74.514. Proposed amendments to (1) are also necessary to incorporate changes to the Methamphetamine Cleanup Act by HB 116, which expands methamphetamine cleanup contractor training requirements to contractors working on inhabitable properties contaminated by smoke from the use of methamphetamine as well as chemical contamination from CMLs. The addition of (2) is necessary to add a testing requirement to verify methamphetamine cleanup contractors have met the requirements for certification under 75-10-1304, MCA, and this subchapter.
17.74.512 REFRESHER TRAINING COURSE REQUIREMENTS (1) (a) through (d) remain the same. (2) A training provider may maintain their certification as an inhabitable property decontamination contractor by either: (a) attending a refresher training course that meets all the requirements in (1); or (b) teaching a refresher course that meets all the requirements of (1) and is attended by three or more students, not including the training provider.
AUTH: 75-10-1304, MCA IMP: 75-10-1304, MCA
REASON: The proposed amendment to the title of ARM 17.74.512 is necessary to reflect the purpose of the rule, which is to describe the requirements to maintain current training as a methamphetamine cleanup contractor. The proposed amendments to (1) are necessary to clarify that the department is not approving refresher training courses but establishing requirements and procedures for methamphetamine cleanup contractors to maintain current certification pursuant to the department's authority in 75-10-1304, MCA. The proposed amendments to (1) are also necessary to clarify that initial methamphetamine cleanup contractor training courses must be taught by a person with a current department-issued training provider certificate pursuant to ARM 17.74.514, and to incorporate changes to the Methamphetamine Cleanup Act by HB 116, which expands methamphetamine decontamination requirements to inhabitable properties contaminated by smoke from the use of methamphetamine as well as chemical contamination from CMLs. The proposed amendment in (2) allows two options for training providers to maintain current certification as methamphetamine cleanup contractors: 1) attend a refresher course that meets all the requirements in ARM 17.74.512(1); or 2) teach a refresher course to three or more students. This change is made in response to stakeholder comments and formalizes the department's process for maintaining current certification for training providers.
17.74.513 RECIPROCITY (1) remains the same. (2) An applicant for reciprocity shall submit to the department: (a) a completed application (b) documentation of specialized training for (c) evidence of successful completion of HAZWOPER training, consisting of an (d) remains the same. (3) Prior to certificate approval, the department may require the applicant to: (a) submit additional information; or (b) successfully complete a refresher course
AUTH: 75-10-1304, MCA IMP: 75-10-1304, MCA
REASON: The proposed amendments to ARM 17.74.513 are necessary to incorporate changes to the Methamphetamine Cleanup Act by HB 116, which expands methamphetamine disclosure requirements to inhabitable properties contaminated by smoke from the use of methamphetamine as well as chemical contamination from CMLs. The proposed amendment to (2)(b) is necessary to describe documentation that would provide satisfactory evidence to the department that the applicant for reciprocity has completed training that is similar to the requirements for training and certification in this subchapter. The proposed amendment to (2)(c) is necessary to remove the HAZWOPER supervisor training requirement, which was eliminated as a training requirement in previous amendments to the methamphetamine cleanup rules but overlooked in ARM 17.74.513, the reciprocity rule. The amendment to (3)(c) is necessary to remove the examination requirement because the department intends to assess other state certification requirements to determine whether they are comparable to the training requirements in this subchapter rather than require an applicant to take a department-administered examination.
17.74.514 TRAINING PROVIDER CERTIFICATION (1) A person may not provide initial or refresher (2) An applicant for methamphetamine cleanup contractor training provider certification shall submit to the department at least 45 working days before the requested methamphetamine cleanup contractor training (a) a completed (b) a list of all (c) and (d) remain the same. (e) a list of 50 questions for (f) a copy of the methamphetamine cleanup contractor certificate that will be provided to attendees who successfully complete the course and pass the examination. A copy of the methamphetamine cleanup contractor certificate shall be submitted to the department. Each certificate must be identified with a unique number assigned by the methamphetamine cleanup contractor training provider and include: (i) the methamphetamine cleanup contractor certification course completed; (ii) the course attendee's name and address; (iii) the date of the methamphetamine cleanup contractor examination; (iv) the signature of the methamphetamine cleanup contractor course instructor; (v) the inclusive dates of the methamphetamine cleanup contractor course; (vi) the name, address, and telephone number of the methamphetamine cleanup contractor training provider who issued the methamphetamine cleanup contractor certificate; (vii) the name and address of the state or agency that approved the methamphetamine cleanup contractor course; (viii) a statement that the person receiving the methamphetamine cleanup contractor certificate has completed the methamphetamine cleanup contractor training required for methamphetamine cleanup contractor certification under this subchapter; (ix) a statement that the trainee, by name, has successfully passed the examination for the methamphetamine cleanup contractor course; (x) a methamphetamine cleanup contractor training expiration date of two years after the date upon which the person successfully completed the methamphetamine cleanup contractor course and examination; and (xi) a clear notation if the methamphetamine cleanup contractor course was performed in person or online;
(g) remains the same but is renumbered (h). (3) remains the same. (4) Upon the department's determination that an applicant for methamphetamine cleanup contractor training provider certification has met all the requirements for methamphetamine cleanup contractor training provider certification in (2), the department shall certify the methamphetamine cleanup contractor training provider and assign a three-digit methamphetamine cleanup contractor training provider certification number.
AUTH: 75-10-1304, MCA IMP: 75-10-1304, MCA
REASON: The proposed amendments to (1) are necessary to incorporate changes to the Methamphetamine Cleanup Act by HB 116, which expands methamphetamine decontamination training and certification requirements to persons who will train and certify contractors to assess, decontaminate, and clear inhabitable properties contaminated by smoke from the use of methamphetamine as well as chemical contamination from CMLs. Section 75-10-1304, MCA, authorizes the department to provide procedures and standards for methamphetamine cleanup contractor training and certification. The department's proposed amendments to (2) are necessary to extend the review time to 45 working days from 45 calendar days to allow adequate time for the department to review and certify the training course provider. The proposed amendments to (2)(a) through (h) are necessary to list the documentation of training provider qualifications including current methamphetamine cleanup contractor certification in (2)(b), a list of exam questions to ensure the certification requirements in ARM 17.74.511 will be met in (2)(e), a copy of the certificate that will be provided on successful course completion in (2)(f), and a copy of training course materials in (2)(g). The proposed amendments are necessary to ensure the department has information necessary to verify training courses will ensure methamphetamine cleanup contractors will be trained to perform methamphetamine decontaminations that meet the standards and requirements of this subchapter and the provisions of the Methamphetamine Cleanup Act, 75-10-1301 through 75-10-1306, MCA. Proposed (4) is necessary to assist the department in verifying completion of methamphetamine training provider certification so the department can meet its obligation to ensure contractors are properly trained and maintain current training under 75-10-1304, MCA, and this subchapter.
17.74.515 CERTIFIED TRAINING PROVIDER RESPONSIBILITIES (1) A certified (a) notify the department in writing at least (b) and (c) remain the same. (d) (2) remains the same. (3) A methamphetamine cleanup contractor training provider shall submit to the department a list of attendees within (a) and (b) remain the same. (c) the names and signatures of each participant; (d) each participant's methamphetamine cleanup contractor certificate number, which is assigned by the methamphetamine cleanup contractor training provider as follows: (i) the first four digits are the year the methamphetamine cleanup contractor training course was completed; (ii) the next three digits are the methamphetamine cleanup contractor training provider's certification number assigned by the department pursuant to ARM 17.74.514; (iii) the last three digits are the methamphetamine cleanup contractor's certification number assigned by the methamphetamine cleanup contractor training provider in consecutive order beginning with 001 for each year the certified methamphetamine cleanup contractor training provider issues methamphetamine cleanup contractor training certificates; and (e) and (4) remain the same.
AUTH: 75-10-1304, MCA IMP: 75-10-1304, MCA
REASON: The proposed amendment to (1) is necessary to incorporate changes to the Methamphetamine Cleanup Act by HB 116, which expands methamphetamine cleanup contractor training and certification requirements to persons who will train and certify methamphetamine cleanup contractors to assess, decontaminate, and clear inhabitable properties contaminated by smoke from the use of methamphetamine as well as chemical contamination from CMLs. The department's proposed amendments to (1)(a) through (d) are necessary to extend the timeframe for notice to the department of a methamphetamine cleanup contractor training course to 10 working days from 10 calendar days and clarify the contents of the methamphetamine cleanup contractor training course notification. This will provide adequate notice to the department and information necessary for the department to ensure methamphetamine cleanup contractor training requirements, assessments, testing, and proof of training in accordance with 75-10-1304, MCA, are met by methamphetamine cleanup contractor training providers. Additionally, the changes to (1)(d) and (3) are necessary to clarify that the department is not approving methamphetamine cleanup contractor training courses but establishing requirements and procedures for certification of methamphetamine cleanup contractors as authorized by 75-10-1304, MCA. The proposed amendments to (3) are necessary to: 1) specify that the timeframe to provide a list of methamphetamine cleanup contractor training course attendees to the department is 10 working days following course completion; and 2) to specify the requirement to provide signatures and methamphetamine cleanup contractor certificate numbers for each attendee. The department is also proposing a method for assignment of methamphetamine cleanup contractor certificate numbers to prescribe a number that provides useful information to the department. The department is proposing the first four numbers are the date of methamphetamine cleanup contractor course completion, the next three digits identify the methamphetamine cleanup contractor training provider, and the last three are assigned in consecutive order beginning with 001 as methamphetamine cleanup contractor training certificates are issued by the methamphetamine cleanup contractor training provider. For example, 2021-001-001 would indicate methamphetamine cleanup contractor course completion in 2021, the methamphetamine cleanup contractor training provider was issued certificate 001, and the methamphetamine cleanup contractor was issued certificate 001 by methamphetamine cleanup contractor training provider 001. This information will assist the department in verifying completion of methamphetamine cleanup contractor training so the department can meet its obligation to certify methamphetamine cleanup contractors under 75-10-1304, MCA, and this subchapter.
17.74.516 TRAINING PROVIDER CERTIFICATION RENEWAL (1) An applicant for renewal of (a) a completed methamphetamine cleanup contractor training provider application as prescribed in ARM 17.74.514(2); (b) a copy of the current methamphetamine cleanup contractor certification issued by the department; (d) any information required under ARM 17.74.514 and requested by the department, to verify the methamphetamine cleanup contractor training provider will offer courses that are up to date and will adequately train methamphetamine cleanup contractors to perform methamphetamine assessment, decontamination work, and final clearances to meet the standards and requirements of this subchapter and the provisions of the Methamphetamine Cleanup Act, 75-10-1301 through 75-10-1306, MCA.
AUTH: 75-10-1304, MCA IMP: 75-10-1304, MCA
REASON: The proposed amendments to (1) are necessary to incorporate changes which provide consistency to persons who will train and certify contractors to assess, decontaminate, and clear inhabitable properties contaminated by smoke from the use of methamphetamine as well as chemical contamination from CMLs. The amendment to (1) is proposed to extend the timeframe for submitting information to the department for renewal of methamphetamine cleanup contractor training provider certification to 30 working days from 30 calendar days. The proposed amendments to (1)(a) through (d) are necessary to clarify the information necessary for the department to verify the methamphetamine cleanup contractor training course curriculum remains valid and current to ensure adequate training of methamphetamine cleanup contractors in assessment, remediation, and testing of inhabitable properties for methamphetamine residue.
17.74.517 DENIAL, SUSPENSION, AND REVOCATION OF CERTIFICATION (1) The department may deny, suspend, or revoke the certification of a (2) The department may suspend or revoke the certification of a methamphetamine cleanup contractor or methamphetamine cleanup contractor training provider who obtains a certificate as either a methamphetamine cleanup contractor or methamphetamine cleanup contractor training provider by error, fraud, or misrepresentation. (3) When the department believes
AUTH: 75-10-1304, MCA IMP: 75-10-1304, MCA
REASON: The proposed amendments to (1) and (2) are necessary to incorporate changes to the Methamphetamine Cleanup Act by HB 116, which expands methamphetamine cleanup contractor requirements to inhabitable properties contaminated by smoke from the use of methamphetamine as well as chemical contamination from CMLs. The proposed amendments to (3) are necessary to simplify and clarify the department's procedures for providing notice of failure to meet requirements of the Methamphetamine Cleanup Act and this subchapter, which may provide cause for denial, suspension, or revocation of a methamphetamine cleanup contractor or methamphetamine cleanup contractor training provider certificate. The proposed amendment to (3) also eliminates the requirement to serve the alleged violator personally or by certified mail and extends the timeframe to request a hearing before the department to 30 working days.
17.74.518 FEES (a) $500 for each initial, renewal, or reciprocal (b) $500 for each initial or renewal (a) The department may refund fees unnecessarily paid by an applicant receiving an incorrect methamphetamine cleanup contractor certification or methamphetamine cleanup contractor training provider approval due to an error by the department. (b) The director, or the director's designee, may authorize a refund of fees due to extenuating circumstances causing the methamphetamine cleanup contractor certification or methamphetamine cleanup contractor training provider to be unable to use the accreditation or permit because of, but not limited to: (i) declaration of war or police action; or (ii) catastrophic, major natural disaster, or any event that requires assistance from a state or federal emergency management agency. (3) The department may request documentation from a certified methamphetamine cleanup contractor or methamphetamine cleanup contractor training provider seeking a refund under this rule. (4) In those cases where refunds are granted, an administrative fee of 15 percent shall be retained by the department.
AUTH: 75-10-1304, MCA IMP: 75-10-1304, MCA
REASON: The proposed amendments to ARM 17.74.518 eliminate (1) because DEQ is not offering or sponsoring methamphetamine cleanup contractor training courses, testing methamphetamine cleanup contractor training course providers, or testing methamphetamine cleanup contractors and will not collect related fees. The proposed amendment in renumbered (1) is necessary to incorporate changes to the Methamphetamine Cleanup Act by HB 116, which expands disclosure requirements to sites where consumption of methamphetamine has occurred. The proposed amendments to (2) and (3) are necessary to establish criteria for refunding fees. Under this proposal the department will only issue a fee refund in the event the department makes an error or extenuating circumstances, out of the certified methamphetamine cleanup contractor or training provider's control, or there is an occurrence that make use of the certification impossible. A refund policy is necessary to save the department time and costs incurred in processing refunds. The department has based this proposed refund policy on Montana Fish, Wildlife, and Parks Department ARM 12.3.402 refund policy for hunting, fishing, and trapping licenses and the asbestos fee refund policy in ARM 17.74.409. The department proposes to amend (4) as it is necessary to withhold a portion of the refunded fee to cover the department's administrative costs in reviewing and processing refunds.
4. The rules proposed to be adopted provide as follows:
NEW RULE I SAMPLING PROCEDURES (1) The following sampling procedures must be followed to assess contamination and to verify the attainment of the decontamination standards within inhabitable structures: (a) all sample locations shall be photographed prior to sampling; (b) all samples shall be collected in accordance with a department-approved assessment plan from areas representative of materials or surfaces where contamination is suspected, confirmed, or was known to be present; (c) all samples shall be obtained, preserved, handled, and maintained under chain of custody protocol in accordance with industry standards and department-approved plans for the types of samples and analytical testing to be conducted; (d) the individual conducting the sampling shall put on a new pair of gloves to obtain each sample; (e) all reusable sampling equipment shall be decontaminated prior to sampling; (f) each sample shall be placed in a sterile sample container and sealed tightly. Security seals must be used on sample containers to maintain integrity of the sample from time of sampling to sample analysis. The sample container shall be labeled with site or project identification number, date, time, and sample location; and (g) each sample shall be analyzed for methamphetamine using NIOSH Manual of Analytical Method (NMAM) 9111 or equivalent method approved by the department in advance. The reagent utilized for the collection of samples shall be methanol; (h) at least three samples must be taken in accordance with the assessment plan from each location of the inhabitable property where methamphetamine manufacturing or smoking is suspected to have occurred, including: (i) at least three samples must be taken from each location of the inhabitable property where methamphetamine is suspected to have been stored; (ii) at least three samples must be taken from each location of the inhabitable property where chemical staining is observed; (iii) at least three samples must be taken from representative areas of the inhabitable property's heating, ventilation, and air conditioning (HVAC) system; (iv) at least three samples must be taken from each bathroom countertop, sink, toilet, shower/bathtub, and any other bathroom surface where methamphetamine contamination is suspected; (v) at least three samples must be taken from any other enclosed space within the inhabitable property where methamphetamine activities are suspected to have occurred, hazardous materials associated with methamphetamine use or manufacture are suspected to have been stored, or where chemical staining or contamination is observed; and (vi) at least three samples must be taken from any other areas where methamphetamine contamination is suspected. (2) Separate samples shall be obtained from surface material in each room or from each location within the inhabitable structure where methamphetamine contamination is suspected. Samples shall not be composited and, to avoid contamination, sample media shall not be combined or mixed with other sampling media. (3) Each sampling event shall include a minimum of one laboratory blank, identified in a manner that avoids identification as a blank. (4) Each sampling plan shall include a minimum of two discretionary samples, to be utilized at the methamphetamine certified contractor's discretion based on updated field observations. When utilized these samples will be incorporated into the chain of custody, analysis by the laboratory, and final report.
AUTH: 75-10-1303, MCA IMP: 75-10-1303, MCA
REASON: The department is proposing new Rule I to establish the number and location of surface material samples based on the circumstances of contamination and acceptable testing methods in accordance with 75-10-1303, MCA. Proposed NEW RULE I is necessary to establish consistent sampling protocols so that the department can meet its obligation to confirm the decontamination standard is met after the inhabitable structure has been remediated. NEW RULE I is necessary to adopt standardized analytical methodology, based on established NIOSH protocols and sampling standards. Adoption of these standardized testing and sampling protocols is necessary to reduce variables and ensure consistency in the assessment, decontamination, and final clearance of methamphetamine-contaminated inhabitable structures to the standard in 75-10-1303, MCA. In (1)(g), DEQ is specifying the use of methanol because methanol allows for an efficacy of 87 percent as opposed to 64 percent for isopropanol. This increase in collection efficiency ensures the requirements under 75-10-1303, MCA, are met. NEW RULE I(1)(h) lists areas for sample collection where surface materials are likely to be contaminated within an inhabitable structure contaminated by smoke from the use of methamphetamine or by a CML. The sampling at an inhabitable structure will be based on the circumstances of the contamination and in accordance with the assessment plan. NEW RULE I(2) is necessary to disallow composite sampling because composite sampling is ineffective to ensure the decontamination standard of 1.5 micrograms is achieved and contaminated surfaces in an inhabitable property are remediated. For example, if four walls were sampled using composite methodologies a given result may be provided as 1.4 micrograms for all four walls, when wall A was 0, wall B was 0, wall C was 0, and wall D was 5.6 micrograms. Composite sampling would not identify the contaminated surface and ensure required remediation and final clearance of all surface contamination. NEW RULE I(3) provides for a sample "blank," which is necessary for quality assurance to ensure no cross contamination or interference in the sample media, containers, collection methods, and laboratory performance. NEW RULE I(4) provides for the collection of surface material samples from two discretionary locations determined at the methamphetamine certified cleanup contractor's discretion. The inclusion of discretionary samples is necessary to allow for flexibility so that additional samples may be obtained based on site conditions, field observations, and other variables without the need to vary from the assessment or final clearance plan.
NEW RULE II Recordkeeping, Reports, and Submittals (1) Each assessment, work, and final clearance plan must: (a) be prepared by the certified methamphetamine cleanup contractor; (b) be submitted to the department no less than 10 working days before the intended plan implementation; (c) include the following: (i) assessment plans shall include the information in (3)(a) through (h), (j), and (k); (ii) work plans shall include the information in (3)(a) through (c), (i), and (k); and (iii) final clearance plans shall include the information in (3)(a) through (h), (j), and (k). (2) The certified methamphetamine cleanup contractor must address any comments by the department in an assessment, work, or final clearance plan submittal, and resubmit until the plan is approved. The completed and department-approved version of an assessment, work, or final clearance plan shall be retained by the certified methamphetamine cleanup contractor and inhabitable property owner for a minimum of three years. (3) The completed version of each plan shall include information and documentation necessary for the department to determine decontamination is achieved including: (a) information identifying the contaminated inhabitable property, including the street address, mailing address, owner(s), legal description, latitude/longitude, and vehicle identification numbers of mobile homes or motorized vehicles; (b) the name, certification number, and expiration date of the certified methamphetamine cleanup contractor who will implement the department approved plan; (c) a detailed description of assessment, work, or final clearance activities planned at the site; (d) photographs documenting the assessment or final clearance activities showing each sample location; (e) a drawing or sketch of all structures on the property depicting proposed sample locations; (f) a description of the sampling procedure used for each material sampled; (g) a copy of the chain of custody and testing results from each analytical laboratory; (h) a written discussion interpreting the test results for all analytical testing and recommendation(s) from the methamphetamine cleanup contractor(s); (i) the work plan shall include a letter from the intended landfill showing planned acceptance of methamphetamine-contaminated debris from the site. To complete the approved work plan, the contractor must submit documentation of the waste characterization, transportation, and disposal documents, including bills of lading, weight tickets, and/or manifests for all materials removed from the property; (j) to complete an assessment plan or final clearance plan a written discussion summarizing the sample results with a comparison to the decontamination standard in 75-10-1303, MCA; and (k) a written summary of any deviations from the department-approved plan(s) by the certified methamphetamine cleanup contractor. (4) Once each completed plan is executed, the plan should be supplemented to verify completion of the tasks described in the completed and approved version.
AUTH: 75-10-1306, MCA IMP: 75-10-1306, MCA
REASON: The department is proposing NEW RULE II to meet the department's obligation to confirm the decontamination standard is met after the inhabitable structure has been remediated. NEW RULE II is necessary to promote consistency and efficiency and reduce the variability in the documentation provided by certified methamphetamine cleanup contractors. Since 2015, the department has provided informal guidance in the form of check lists that cover items (3)(a) through (k) to ensure proper documentation. Section 75-10-1306, MCA, allows the department to establish by rule the reasonable requirements for sufficiency of documentation provided to the department. The consistency of a standardized format for work plan submittals allows for reduced review times by department staff and will provide for a protective regulatory framework.
NEW RULE III INCORPORATION BY REFERENCE (1) For the purposes of this subchapter, the department adopts and incorporates by reference the National Institute for Occupational Safety and Health (NIOSH) method 9111, METHAMPHETAMINE on Wipes by Liquid Chromatography/Mass Spectrometry. As specified in [NEW RULE I], the reagent used for the collection of samples shall be limited to methanol. (2) Copies of the documents incorporated by reference in (1) may be obtained from the Department of Environmental Quality, Waste Management and Remediation Division, P.O. Box 200901, Helena, MT 59620-0901.
AUTH: 75-10-1306, MCA IMP: 75-10-1306, MCA
REASON: NEW RULE III is necessary to incorporate consistent sampling methodology and analytical processes. Adopting the NIOSH standard by reference will provide consistency in analysis and confirmation that the decontamination standard in 75-10-1303, MCA, is achieved. Standardized analytical methodology will reduce variables in the sampling process and assure that the decontamination standard established in 75-10-1303, MCA, is reported consistently. NIOSH 9111 is the national standard for wipe sampling using liquid methodology for analysis and provides a scientifically proven methodology for the analysis of samples for methamphetamine. NIOSH 9111 provides high accuracy and affordability, increasing the number of samples that may be obtained economically to ensure decontamination of inhabitable structures and protection of the public.
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 the Department of Environmental Quality, 1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana 59620-0901; faxed to (406) 444-4386; or emailed to [email protected], no later than 5:00 p.m., April 26, 2022. To be guaranteed consideration, mailed comments must be postmarked on or before that date.
6. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, 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 supply; public sewage systems regulation; hard rock (metal) mine reclamation; major facility siting; opencut mine reclamation; strip mine reclamation; subdivisions; renewable energy grants/loans; wind energy, 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 the Department of Environmental Quality, 1520 E. Sixth Ave., P.O. Box 200901, Helena, Montana 59620-0901, faxed to the office at (406) 444-4386, e-mailed to DEQMETHAMPHETAMINECLEANUP @mt.gov, or may be made by completing a request form at any rules hearing held by the department.
7. Kirsten Bowers, attorney for the department, has been designated to preside over and conduct the hearing.
8. The bill sponsor contact requirements of 2-4-302, MCA, apply. The bill sponsor was notified by a letter on June 3, 2021, and again on January 24, 2022.
9. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment and adoption of the above-referenced rules will not significantly and directly impact small businesses.
10. The stringency provisions at 75-10-107, MCA, do not apply because there are no comparable federal regulations or guidelines that address decontamination of inhabitable structures contaminated by methamphetamine.
/s/ Angela Colamaria BY: /s/ Christopher Dorrington ANGELA COLAMARIA CHRISTOPHER DORRINGTON Rule Reviewer Director Department of Environmental Quality
Certified to the Secretary of State March 15, 2022.
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