Issue 3 - the Montana Secretary of State Website

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MQC/CQC and MQA/CQA practices and to confirm that the approved MQA/CQA
plan was followed and that the facility was constructed as specified in the design."
Quality Assurance and Quality Control for Waste Containment Facilities,
EPA/600/R-93/182, page 3, and D.E. Daniel, Ph.D, P.E., and R.M. Koerner Ph.D,
P.E., Waste Containment Facilities- Guidance for CQA and CQC of Liner and Cover
Systems, page 27 (American Society of Civil Engineers 2d ed. 2007). Because the
submission of CQA and CQC reports, and their approval by the department, is
contained in comparable EPA guidelines, and because the department is charged
by law to review and approve design as part of the licensing process, findings under
75-10-107, MCA, are not required.
Concerning the comment on (7), because of the potential for a conflict of
interest, it is not appropriate for a licensed professional engineer to certify the proper
construction of a landfill that is owned by the engineer's employer. To avoid a
conflict of interest, the certification must be conducted by a third party. See Quality
Assurance and Quality Control for Waste Containment Facilities, EPA/600/R-
93/182, page 8: "The MQA/CQA engineer is normally hired by the owner/operator
and functions separately of the contractors and owner/operator." Because this
requirement is contained in comparable EPA guidelines, stringency findings under
75-10-107, MCA, are not required. Therefore, the department declines to remove
the language as requested in the comment.
In New Rule XLIII, in referring to CQC and CQA, the department used the
word "plan," but, in New Rule XXXIV, the department used the word "manual," to
refer to the same document. Both terms are used in the solid waste field, but, for
consistency, the department has amended New Rule XXXIV to use "plan"
exclusively.
COMMENT NO. 50: A commentor stated that (1)(d) allows the department to
ask for any other design standards determined by the department to be necessary
to meet the requirements of New Rule XXXIII(1) and that this type of requirement is
too open-ended and vague. The department could ask for anything that could drive
away the applicant because of the cost, and there is no provision in the rules for a
landfill owner or operator to disagree that the department needs this additional
information. If it is unreasonable or too expensive, an owner or operator could be
forced to drop an application after spending tens of thousands of dollars to get to
that point, and this rule should be revised or deleted.
RESPONSE: The requirements of New Rule XXXIII(1), which are referenced
in New Rule XXXIV(1)(d), are the same as those in 40 CFR 258.40(a) and existing
rule ARM 17.50.506(1). An owner or operator is required to obtain department
approval of a design, and in considering whether to approve the design, the
department is required to consider "at least" the factors listed in New Rule
XXXIII(2)(a) through (c), which is the same language used by EPA in 40 CFR
258.40(c)(1) through (3). The use of "at least" indicates that the EPA intended the
department to have flexibility in determining if other information should be
considered. By adopting "at least," the department retains the flexibility intended by
EPA. Because that flexibility is available in New Rule XXXIII(2), and New Rule
XXXIV(1)(d) refers to that provision, New Rule XXXIV(1)(d) is redundant and is
being stricken.
Montana Administrative Register 3-2/11/10