Issue 3 - the Montana Secretary of State Website

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COMMENT NO. 67: A commentor that operates a landfill stated that it has
sought approval of an alternative final cover that meets the requirements of New
Rule XLIX(2)(a) but that, after four years, it is still waiting for final approval.
RESPONSE: This comment is outside the scope of this rulemaking.
However, the department is actively working with the commentor on the review and
approval of the requested alternative final cover.
COMMENT NO. 68: A commentor stated that EPA regulations concerning
the topics covered by New Rule I are found in 40 CFR 258.4 but that the EPA
regulations specifically refer to MSWLF units. Class II wastes in Montana are
broader than municipal solid waste, therefore, the state rules apply the requirements
at more units than under the EPA regulations. The term "Class II landfill" should be
replaced with MSWLF, for consistency with the EPA.
RESPONSE: For issues concerning the regulation of MSW and non-MSW at
a Class II unit in New Rule I, see Response to Comment No. 12.
Public Hearing Comments (November 4, 2009):
COMMENT NO. 69: A commentor stated that he and his clients are
disappointed in the process that the department has followed in this rulemaking. He
understands that the Solid Waste Program will be proposing additional rules in the
near future, and he hopes that the new rules will be better reviewed by the regulated
public before they are submitted to the Secretary of State and before the public and
the department become embroiled in long, legal, letter-writing discussions.
RESPONSE: The department has fully complied with the Montana
Administrative Procedure Act (MAPA) in this rulemaking. In addition, the
department held many meetings with the regulated community concerning the
rulemaking both before and after the proposed changes were published, and has
made several informational mailings. The department will follow MAPA and fully
involve all interested parties in the future solid waste program rulemakings.
COMMENT NO. 70: A commentor stated that the department has grossly
failed to meet the requirements of 75-10-107, MCA, for adopting a rule more
stringent than comparable federal regulations. The department presented no peerreviewed
scientific studies as required by 75-10-107(3), MCA.
RESPONSE: Section 75-10-107(3), MCA, provides that the written finding
that is a prerequisite to adoption of a rule that is more stringent than a comparable
federal rule or guideline "must reference information and peer-reviewed scientific
studies contained in the record that forms [sic] the basis for the department's
conclusion." Procedural requirements are not commonly the subject of peerreviewed
scientific studies. Furthermore, had the Legislature intended to require
peer-reviewed studies in all instances in which HB 521 is applicable, it could have
provided that an agency cannot adopt a more stringent rule unless there is a peerreviewed
study to support it. It did not do so.
The Senate Natural Resources Committee took executive action on HB 521
on March 28, 1995. Sen. Loren Grosfield proposed an amendment that would have
inserted the words "if any" after the requirement to reference peer-reviewed
Montana Administrative Register 3-2/11/10