Issue 3 - the Montana Secretary of State Website

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NEW RULE XLI
COMMENT NO. 57: A commentor stated that the next to the last sentence in
(2) should read: "The department may specify an appropriate subset of wells to be
sampled and analyzed for Appendix II constituents during assessment monitoring."
This language would be more consistent with the language in 40 CFR 258.55(b).
Subsection (4)(d) should include: "The groundwater protection standard
must be established in accordance with (8) or (9)."
Section (5) should be revised to be no more stringent than federal
regulations, and department approval should not be required. Return to detection
monitoring is the choice of the owner or operator of the facility after two consecutive
sampling events.
Subsection (7)(b) is more stringent than the comparable requirements of 40
CFR 258.55(g)(2) and 40 CFR 257.25(g)(2). The department has no approval
authority over the certification of a qualified ground water scientist. 40 CFR
258.55(g)(2) reads "... certified by a qualified groundwater scientist or approved by
the Director ..." 40 CFR 257.25(g)(2) uses identical language. If the owner or
operator of a facility cannot make a positive determination, then the requirements of
(7) are automatic.
RESPONSE: The proposed language in the second-to-the-last sentence of
New Rule XLI(2), and the suggested language in the comment are the same in
substance. The language chosen by the department in the proposed rule uses the
active voice and makes it clear that the regulated entity has the duty to monitor as
specified by the department. Therefore, the department declines to revise the
language as requested in the comment.
Subsection (4)(d) references the establishment of a ground water protection
standard pursuant to (8). Subsection (8)(d) references the establishment of a
ground water protection standard pursuant to (9). A citation to (9) in (4)(d) is not
necessary. Therefore, the department declines to revise the language as requested
in the comment.
Concerning New Rule XLI(5), which provides for department review of a
determination that assessment monitoring has shown that constituent
concentrations are at or below background, it is necessary for the department to
review the determination, developed pursuant to (5) concerning whether
concentrations of all Appendix II constituents are at or below background levels, to
ensure that a return to detection monitoring is appropriate. The department has
prepared findings, pursuant to 75-10-107, MCA, concerning the stringency of the
requirement in (5) for department approval. See Stringency Findings for this rule.
Therefore, the department declines to revise the language as requested in the
comment.
Concerning the requirement in (7)(b), for department approval of a
demonstration that a statistically significant increase of a contaminant over
background levels was caused by a source other than a landfill, it is necessary for
the department to review that demonstration to determine whether it is appropriate
for assessment monitoring to continue. The department has prepared findings,
pursuant to 75-10-107, MCA, concerning the stringency of the requirement in (7)(b)
for department approval. See Stringency Findings for this rule. Therefore, the
3-2/11/10 Montana Administrative Register