Issue 3 - the Montana Secretary of State Website

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Comment No. 6.
The department agrees that it is worthwhile to inform persons regulated
under these rules that the drilling and construction of ground water monitoring wells
at solid waste management systems is governed by laws and rules of the
Department of Natural Resources and Conservation (DNRC). However, the
adoption of the DNRC's ground water monitoring well rules in ARM Title 36, chapter
21, subchapters 4 and 7, may be beyond the scope of the current rulemaking
because it would impose additional enforcement consequences on an owner,
operator, or licensee--the $1,000 per day penalty provision of 75-10-228, MCA, and
the injunction provision of 75-10-231, MCA. In addition, it could make the
Department of Environmental Quality responsible for determining compliance with
the DNRC rules. Existing ARM 17.50.707(1) required compliance with ARM Title
36, chapter 21, subchapter 8, and it was adopted by reference in existing ARM
17.50.707(13). Because it may be beyond the scope of this rulemaking to adopt
subchapters 4 and 7 of the DNRC rules, the department has determined not to
adopt subchapter 8 either. Rather, New Rule XXXVII(7) refers to that subchapter so
that landfill unit owners and operators will be aware that it applies to construction of
monitoring wells.
Therefore, the department is adding a new (7), instead of a new (1)(c) as the
commentor suggested, that does not adopt the DNRC rules, but rather gives notice
that the drilling and construction of ground water monitoring wells at solid waste
management systems is governed by the DNRC's rules at ARM Title 36, chapter 21,
subchapters 4, 7, and 8.
In (4)(a), concerning department approval of ground water monitoring plans,
submission and department approval of a ground water monitoring plan is required
under 75-10-207(4), MCA. The number, spacing, and depth of ground water
monitoring wells are necessary components of a ground water monitoring plan.
These are required elements of a multiunit ground water monitoring system, which is
subject to review and approval by the state, in EPA's regulations at 40 CFR
258.51(b). Because approval of a ground water monitoring plan is required by state
law, the findings requirements of 75-10-107, MCA, are not triggered. Therefore, the
department declines to revise the language as requested in the comment.
In response to the comment, the department has stricken (4)(a)(iv) and (d).
Subsection (4)(b), concerning updating of a ground water monitoring plan, is
equivalent to existing ARM 17.50.709(1)(b)(iii). Existing ARM 17.50.709 is being
repealed. It is necessary to require an update to a ground water monitoring plan
every five years because of the dynamic nature of a landfill. Because waste units
can expand, or new units can be located in a different part of a property in relation to
the area covered by monitoring wells, it is important to have the ground water
monitoring plan updated every five years to capture those changes. If the owner or
operator believes that nothing has changed at the landfill that would affect the
ground water monitoring plan, the update should provide the basis for that position,
and no further submission would be necessary. A ground water monitoring plan and
plan updates are not addressed in the federal solid waste regulations (40 CFR Parts
257 and 258). Therefore, the requirement to submit a plan update for approval
does not trigger the findings requirements of 75-10-107, MCA, because EPA has no
comparable regulations that address the same circumstances.
3-2/11/10 Montana Administrative Register