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| Montana Administrative Register Notice 17-319 | No. 7 04/14/2011 | |
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BEFORE THE BOARD OF ENVIRONMENTAL REVIEW OF THE STATE OF
TO: All Concerned Persons 1. On May 11, 2011, at 2:00 p.m., or upon the conclusion of the public hearing for MAR Notice No. 17-318, the Board of Environmental Review will hold a public hearing in Room 111, Metcalf Building, Department of Environmental Quality, 1520 East Sixth Avenue, Helena, Montana, to consider the proposed amendment of the above-stated rules. 2. The board 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 25, 2011, to advise us of the nature of the accommodation that you need. Please contact Elois Johnson at Department of Environmental Quality, 3. The rules proposed to be amended provide as follows, stricken matter interlined, new matter underlined: 17.36.922 LOCAL VARIANCES (1) As provided in this rule, a local board of health, as defined in 50-2-101, MCA, may grant variances from the requirements in this subchapter and in Department Circular DEQ-4, (2) The local board of health may grant a variance from a requirement only if it finds (a) granting the variance will not: (a) through (f) remain the same, but are renumbered (i) through (vi). (b) compliance with the requirement from which the variance is requested would result in undue hardship to the applicant; (c) the variance is necessary to address extraordinary conditions that the applicant could not reasonably have prevented; (d) no alternatives that comply with the requirement are reasonably feasible; and (e) the variance requested is not more than the minimum needed to address the extraordinary conditions. (4) remains the same, but is renumbered (3). IMP: 75-5-305, MCA REASON: As required by 75-5-305(2)(a), MCA, this subchapter sets out the board's minimum requirements for control and disposal of sewage. Local boards of health are required to adopt sewage regulations that are not less stringent than these minimum standards. Section 50-2-116(1)(k), MCA. The board is also required to adopt criteria for variances from the minimum standards, and the statutes provide for an appeal to the department of local board decisions on variances from the minimum standards. Section 75-5-305(3), MCA. The board's variance criteria are set out in ARM 17.36.922(2). The current variance criteria in ARM 17.36.922(2) prohibit variances that would cause adverse health or environmental effects. When adopted, these criteria were not intended to be exclusive. ARM 17.36.922(3) authorizes local boards to adopt criteria in addition to those in ARM 17.36.922(2). The current rules treat the state variance criteria, like the state substantive standards, as minimum requirements that local boards may supplement. A recent department legal opinion determined that the state variance criteria rules were not consistent with statutory requirements. Section 50-2-116(1)(k), MCA, requires that local variance criteria be "identical" to the state board criteria. ARM 17.36.922(3), which allows additional local variance criteria, is inconsistent with 50-2-116(1)(k), MCA. In addition, 75-5-305(4), MCA, requires that the department use the state Board of Environmental Review's variance criteria when reviewing local variance decisions. ARM 17.36.924(9), which allows the department to apply local variance criteria in variance appeals, is inconsistent with 75-5-305(4), MCA. The proposed repeal of ARM 17.36.922(3) and 17.36.924(9) is necessary to conform the board rules to these statutory requirements. Local variance criteria typically require a variance applicant to make a showing of hardship to justify a variance. Because the department may not use local criteria when reviewing variances, the board is proposing to adopt hardship criteria in the state rules. Based on recommendations from local health departments and sanitarians, the board is proposing to adopt four additional variance criteria. Proposed ARM 17.36.922(2)(b) requires a showing that compliance with the requirement from which the variance is requested would result in undue hardship for the applicant. This provision is necessary to limit variances to situations in which compliance with a requirement creates a significantly greater burden for the applicant than for others to whom the requirement applies. Proposed ARM 17.36.922(2)(c) requires a showing that the variance is necessary to address extraordinary conditions that the applicant could not reasonably have prevented. This provision is necessary to limit variances to situations that are not typical, and to require applicants to use reasonable care to avoid placing themselves in those situations. Proposed ARM 17.36.922(2)(d) requires a showing that there are no reasonably feasible alternatives for complying with the requirement. This provision is necessary to limit variances to situations in which no reasonable alternative exists. Finally, proposed ARM 17.36.922(2)(e) requires a showing that the variance requested is not more than the minimum needed to address the extraordinary conditions. This provision is necessary to limit the scope of a variance to what is needed to alleviate the particular conditions that create undue hardship. The proposed amendments also make several changes for clarification. The reference to the 2004 edition of DEQ-4 in ARM 17.36.922(1) is proposed to be deleted because the current edition of DEQ-4 is 2009, which is correctly referenced in ARM 17.36.914(2). ARM 17.36.922(1) is amended to clarify that local boards cannot grant variances from statutory requirements, such as the restrictions on gray water irrigation set out in ARM 17.36.919(3)(c). Finally, a minor change is proposed to ARM 17.36.922(2) to delete a requirement for compliance with other rule conditions when granting a variance. This provision is inconsistent with the authority of local boards to grant variances to any of the requirements in this subchapter and DEQ-4, except those established by statute. 17.36.924 VARIANCE APPEALS TO THE DEPARTMENT (1) through (3) remain the same. (4) If the appeal fulfills the requirements of (2), the department shall (5) As provided in 2-4-612, MCA, the common law and statutory rules of evidence apply in department proceedings to review local board variance decisions. The parties may provide evidence and testimony to the department in addition to that presented to the local board. (6) In evaluating the local board variance decision, the department shall apply the variance criteria in ARM 17.36.922(2), and may not consider local variance criteria. The department may substitute its judgment for that of the local board as to the interpretation and application of the variance criteria in ARM 17.36.922(2). However, the department shall be bound by the local board's interpretation of other local board rules in effect at the time of the local board's decision. (7) Challenges to the applicability or validity of a rule of the local board are outside the scope of department review. Variance requests that do not seek to go below a state minimum standard are also outside the scope of department review. If a variance is requested from a local requirement that is more stringent than the requirements in this subchapter, the department may review the local board's decision only if the variance, if granted, would also require a variance from the requirements in this subchapter. IMP: 75-5-305, MCA REASON: The proposed amendments to ARM 17.36.924(4) and repeal of ARM 17.36.924(9) implement the statutory requirement that the department use the state Board of Environmental Review's variance criteria when hearing appeals of local board variance decisions. See Reason statement for the amendments to ARM 17.36.922. The proposed repeal of ARM 17.36.924(5) would eliminate the requirement that hearings be held within 90 days of filing a complete appeal. Pursuant to 75-5-305(4), MCA, appeals must be conducted under the contested case procedures of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, MCA (MAPA). Under MAPA procedures, pre-hearing steps such as discovery and motions can take longer than 90 days. Repealing the 90-day requirement is necessary to allow the parties to fully utilize MAPA. The current rule requiring MAPA procedures is proposed to be moved from ARM 17.36.924(5) to ARM 17.36.924(4). The proposed repeal of ARM 17.36.924(6) and (7) would eliminate the requirement for the department to conduct environmental review under the Montana Environmental Policy Act (MEPA) when it issues a decision in a local variance appeal. Repeal of this provision is necessary because MEPA does not require environmental review when the department issues a decision in a variance contested case. The proposed amendments would repeal ARM 17.36.924(8), which allows comments for two weeks following a hearing. Repeal is necessary because this comment process does not follow MAPA contested case procedures. Variance appeals are typically conducted by hearing examiners. Under MAPA, the parties to variance appeals must be given an opportunity to file post-hearing exceptions and briefs and make oral arguments to the director. Section 2-4-621(1), MCA. MAPA does not limit the post-hearing exceptions and briefing process to two weeks. Proposed new ARM 17.36.924(5), (6), and (7) set out procedural requirements applicable to the department contested case proceedings to review a local variance decision. These requirements are based on statutory provisions and past precedent. The proposed new sections are necessary to provide guidance to parties about the contested case process. The proposed amendment to ARM 17.36.924(10), renumbered as (8), clarifies that the statutory 30-day period starts to run after the MAPA hearing process is completed and the matter is fully submitted for final department decision. The MAPA hearing process includes an oral argument hearing before the department director if the evidentiary hearing is held by a hearing examiner and a party files exceptions to the hearing examiner's proposed decision. 4. Concerned persons may submit their data, views, or arguments, either orally or in writing, at the hearing. Written data, views, or arguments may also be submitted to Elois Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana 59620-0901; faxed to (406) 444-4386; or e-mailed to [email protected], no later than 5:00 p.m., May 12, 2011. To be guaranteed consideration, mailed comments must be postmarked on or before that date. 5. Katherine Orr, attorney for the board, or another attorney for the Agency Legal Services Bureau, has been designated to preside over and conduct the hearing. 6. The board 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; 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 the office at (406) 444-4386, e-mailed to Elois Johnson at [email protected], or may be made by completing a request form at any rules hearing held by the board. 7. The bill sponsor contact requirements of 2-4-302, MCA, do not apply. Reviewed by: BOARD OF ENVIRONMENTAL REVIEW /s/ James M. Madden BY: /s/ Joseph W. Russell JAMES M. MADDEN JOSEPH W. RUSSELL, M.P.H., Rule Reviewer Chairman Certified to the Secretary of State, April 4, 2011.
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