Issue 3 - the Montana Secretary of State Website

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the department to be necessary, should not be adopted because it is vague and
overly broad.
RESPONSE: Ground water sampling and associated analysis are
fundamental aspects of the ground water monitoring plan required by 75-10-207,
MCA. Without a sampling and analysis plan, a ground water monitoring plan would
be meaningless. The EPA, in 40 CFR 258.53(a) and 258.23(a), requires sampling
and analysis procedures in a ground water monitoring program. The ground water
monitoring plan required in ARM 17.50.508 and New Rule XXXVII is the method
used by the department to implement the ground water monitoring program required
by EPA, and the elements of the sampling and analysis plan in the rule are taken
from the EPA regulation. Therefore, New Rule XXXIX(1) is not more stringent than
a comparable federal regulation. Because a ground water monitoring plan is
required by state law, and because a sampling and analysis program is required
under the EPA regulations, 75-10-107, MCA, does not apply.
Subsection (1)(f) was stricken in response to the comment.
NEW RULE XL
COMMENT NO. 56: A commentor stated that, as it applies to Class IV
landfills, (3) should be revised because it is more stringent than EPA requirements
found in 40 CFR 257.24(a)(1), and the department has broader authority to require
removal of constituents under Part 257 than under Part 258.
Sections (5) and (6) are more stringent than EPA requirements found in 40
CFR 257.24(c) and 40 CFR 258.54(c). The director of an approved state, i.e., the
department, is given no intervention authority by EPA. The determination of any
statistically significant increase that would trigger assessment monitoring resides
with the owner or operator alone. The department has no authority to second guess
the results of the statistical tests, or to conduct different statistical testing on its own
initiative, and the language in (5), (5)(a), and (5)(b) should be revised to reflect this.
Detection begins a mandatory regulatory sequence that requires no department
approval as is found in (5)(b); the department must only be notified. Section (6)
should be deleted entirely.
Section (7) is more stringent than EPA requirements in 40 CFR 257.24(c)(3)
and 40 CFR 258.54(c)(3). The department has no authority to nullify a certification
by a qualified ground water scientist. Section (7) should be changed to reflect the
language of 40 CFR 257.24(c)(3) and 40 CFR 258.54(c)(3).
RESPONSE: New Rule XL(3), concerning an alternative list of inorganic
indicator parameters, is substantially identical to the comparable EPA regulations at
40 CFR 257.24(a)(2) and 258.54(a)(2). In addition, it is equivalent to existing ARM
17.50.708(4)(b). Existing ARM 17.50.708 is being repealed. Because New Rule
XL(3) is not more stringent than comparable federal regulations, no findings are
required by 75-10-107, MCA. The department declines to make the requested
change.
The requirements in (5)(b) and (6) for department review and approval of the
assessment monitoring program and the statistically significant change in an
alternative list parameter are not subject to the stringency requirements of 75-10-
107, MCA. Section 75-10-207(4), MCA, requires the submittal of a ground water
3-2/11/10 Montana Administrative Register