Issue 3 - the Montana Secretary of State Website

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XXXVII(2), which contains the no-migration rule.
Subsection (1)(b) is more stringent than EPA requirements. EPA has
permeability requirements for the standard composite liner only. For alternate
designs, even designs using natural materials, the owner or operator needs to
demonstrate only that they will prevent migration of contaminants to the uppermost
aquifer over the life of the unit and the post-closure care period, and (1)(b) should
be deleted.
There are no federal recordkeeping requirements for leachate measurement
or removal volumes as are found in (3)(a). Facilities in the United States use the
English System of units and have measuring devices that read in feet, inches, and
tenths of a foot. If this proposal is retained, the department should at least provide
an appropriate standard in English units.
There are no slope requirements in 40 CFR Part 258 as are arbitrarily
required in (3)(b). EPA specifies only the performance standard found in New Rule
XXXIII(1)(a), or the standard design found in New Rule XXXIII(1)(b), and engineers
are free to choose any design that meets those requirements.
Subsection (3)(c) goes far beyond the EPA design requirements for MSWLF
units. "Secondary containment" is not defined, but double liners are not required by
40 CFR 258.40 for leachate collection sumps. In addition, (3)(c) is grammatically
incorrect, as well as being more stringent than federal regulations.
A commentor questioned the meaning of (3)(d), which states that an owner or
operator of a Class II or Class IV landfill unit shall design a required leachate
collection and removal system to provide for increased hydraulic head in the
leachate removal system. The commentor stated that a design for a prescriptive
liner could not allow for an increased head of more than 30 cm of leachate over the
liner, and that there was no such requirement for an alternative liner.
Concerning (6), CQA and CQC reports are the engineer's assurance to the
department that the unit was constructed as designed, and they should be placed in
the operating record and submitted to the department. Department approval is not
needed or desired, unless the department is signing and sealing the document and
taking responsibility for the design and construction. Department approval may
expose the department to liability for failure of the unit.
In (7), the commentor suggested striking the word "independent" in front of
"Montana licensed professional engineer". Any engineer licensed to practice in
Montana is capable of supplying the required certification, regardless of their
employer. "A professional engineer licensed to practice in Montana" is a better
phrase.
RESPONSE: In response to the comment regarding (1)(a), the department
agrees that the rule would be clarified by inserting a reference to New Rule
XXXVII(2). However, the department believes that it would be helpful to the reader
to retain the narrative describing the no-migration demonstration. Therefore, the
department is adding the reference, but retaining the narrative.
Subsection (1)(b), concerning the hydraulic conductivity of soil in a liner, is
equivalent to existing ARM 17.50.506(4)(f). See Response to Comment No. 44. In
response to comments, the department is eliminating many prescriptive
requirements in New Rule XXXIII for a Class II landfill unit with an alternative design
to the prescriptive liner and leachate removal system. Instead, the department is
3-2/11/10 Montana Administrative Register