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pursuant to (3), that compliance with remedy requirements cannot be practically
achieved, before the implementation of alternative control measures. The
department does not believe this approval would cause unacceptable delay or risk.
The department has prepared findings, pursuant to 75-10-107, MCA, concerning the
stringency of the requirements in (3)(a) and (d) for department approval. See
Stringency Findings for this rule. Therefore, the department declines to revise the
language as requested in the comment.
Section (7) concerns certification of completion of the selected remedy by a
qualified ground water scientist and approval by the department. Department review
of the certification of completion is necessary to protect public health. In addition,
completion of a corrective action remedy triggers release of financial assurance,
which is critical to funding the remedy. Corrective action financial assurance should
not be released until the department has determined that the remedy is complete.
The department has prepared findings, pursuant to 75-10-107, MCA, concerning the
stringency of the requirement in (7) for department approval. See Stringency
Findings for this rule.
Therefore, the department declines to revise the language as requested in
the comment.
NEW RULE XLV
COMMENT NO. 61: A commentor stated that the department noted in its
testimony at the November 4, 2009, hearing on stringency that, in response to
comments, it has conducted an analysis of the phrase "necessary to protect human
health and the environment," found in (2)(g).
RESPONSE: Concerning (2)(g), in response to a comment that the use of
the phrase "necessary to protect human health or the environment" is vague and
overly broad, the department substituted the phrase "necessary to adequately
characterize the hydrogeologic characteristics of the solid waste landfill facility."
For the same reason discussed above, in the response to Comment No. 45,
the department has revised New Rule XLV(2)(c) to require a description of the
hydrogeologic units that overlie "the uppermost aquifer, or underground drinking
water source," as required in New Rule XXXIII.
NEW RULE XLIX
COMMENT NO. 62: A commentor stated that the department may not
impose closure requirements on facilities other than MSWLF landfill units, because
those requirements would be more stringent than comparable federal regulations.
A commentor criticized the department's use, in (4), of the phrase "any other
information determined by the department to be necessary to protect human health
or the environment" as being more stringent than comparable EPA regulations and
vague, arbitrary, capricious, and easily abused, and the commentor asked that this
phrase be deleted.
RESPONSE: Section 75-10-204, MCA, provides the authority for closure
requirements for Class II and Class IV landfill units. There are no comparable
federal requirements for closure or post-closure care for a Class IV landfill unit.
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