Issue 3 - the Montana Secretary of State Website

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In 40 CFR 258.57 and 40 CFR 257.27, there are no requirements for the
items required in (1)(c). Department approval would delay implementation, and the
selection of remedy is the sole responsibility of the owner/operator.
Section (4) includes the phrase: "the factors in (4)(a) through (h)," however,
there is no (4)(h) in the rule.
A commentor stated that (4)(g), which requires an owner or operator to
consider certain factors in determining the schedule of remedial activities, including
any other factor determined by the department to be necessary to protect human
health and the environment, should not be adopted because it is more stringent than
EPA requirements and is vague and overly broad.
RESPONSE: New Rule XLIII(1)(b), concerning department approval of an
owner or operator's selection of a remedy, is equivalent to existing ARM
17.50.710(7)(b)(v), which is being repealed, and 40 CFR 258.57(a). It is necessary
to retain approval over selection of a remedy because it is critical to its regulatory
role in protecting human health and the environment. The department has prepared
findings, pursuant to 75-10-107, MCA, concerning the stringency of the requirement
in (1)(b) for department approval. See Stringency Findings for this rule. Therefore,
the department declines to revise the language as requested in the comment.
The department agrees with the comment on (2)(b) that New Rule XLII(1)(b)
does not use the word "plan" in association with the corrective measure
assessment, and the department has stricken the word "plan" from New Rule
XLIII(1)(b).
The department agrees with the comment on (1)(b) that 40 CFR 258.57(a)
does not establish a 90-day period for submitting a selected remedy report. The
reasons for the requirement for approval of the report, and the stringency findings
for it, were discussed immediately above. Because EPA regulations do not set a
deadline for such a report, there is no comparable federal regulation or guideline
addressing the same circumstances. It is necessary for the department's rules to
set a deadline for the report, which is a critical aspect of corrective action.
Concerning department approval of the design plans for the selected remedy
and associated CQC and CQA plans in (1)(c), it is necessary for the department to
review the design, CQC, and CQA plans, developed pursuant to (1), to ensure the
selected remedy meets the requirements of New Rule XLIII. It entails designs that
could affect the integrity of the systems that isolate solid waste and leachate from
the environment, and should be subject to the same quality control review as other
designs. As discussed above, the department determined that similar provisions in
new Rule XXXIV(5) and (6) were not more stringent than a comparable federal
guideline, and that findings under 75-10-107, MCA, were not required. In addition,
design, CQC, and CQA plans are basic to determining whether a project has been
built according to requirements. The same rationale applies to the requirement in
New Rule XLIII(1)(c). Department review and approval of the design, CQC, and
CQA plans is necessary to ensure compliance with corrective action requirements.
Because 40 CFR 239.6 requires the department to adopt a regulatory program that
ensures compliance with EPA's corrective action requirements, and approval of the
selected remedy design, CQC, and CQA plans is necessary to ensure compliance,
the requirements are not more stringent than a comparable federal regulation or
guideline.
3-2/11/10 Montana Administrative Register