Issue 3 - the Montana Secretary of State Website

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scientific studies. Sen. Keating opposed the motion on the ground that "this bill
doesn't say you have to have a peer-reviewed study, it only says you review any
studies contained in the record that form the basis for the board's conclusion [sic]
and 'if any' doesn't add anything." Sen. Grosfield then indicated that he thought that
the bill could be interpreted that way, but "if it is clear to the committee that the bill
will not require peer-reviewed studies," it was okay with him and he would withdraw
the pertinent amendments. He then withdrew the amendments.
In addition, the preamble to HB 521 provides that the written finding "must
include but is not limited to a discussion of the policy reasons and an analysis that
supports the board's or the department's decision that the proposed state standards
or requirements protect public health or the environment of the state and that the
state standards or requirements protect public health and are achievable under
current technology." The preamble contains no reference to peer-reviewed scientific
studies.
Given the statements from the legislative history and the language of the
preamble, it is the department's opinion that citation to peer-reviewed scientific
studies in the record is not a prerequisite to adoption of a rule that is more stringent
than a comparable federal regulation or guideline. Rather, a written finding required
by HB 521 must reference peer-reviewed scientific studies if the rulemaking record
contains them.
In addition, the department introduced into the record language from EPA
rulemakings concerning the regulations that the commentor alleges are less
stringent. It is clear that EPA contemplated that states would have flexibility in
implementing the licensing and oversight of regulation of solid waste landfills.
COMMENT NO. 71: A commentor stated that the department's analysis of
the actual breadth of the requirements of the federal regulations found in 40 CFR
Parts 257 and 258 misrepresents the flexibility granted to states by EPA and is
fatally flawed. EPA allows states flexibility only to have programs that are more
stringent than minimum EPA requirements. Because 40 CFR Part 258 is designed
to be self-implementing, most of the flexibility offered to states concerns items that
facilities would desire, such as approval to use multi-unit groundwater monitoring
arrays rather than monitoring each unit individually and such as approval to locate a
landfill in a seismically active area.
RESPONSE: Because the commentor did not identify a specific rule where
the department had misrepresented the flexibility granted to states by EPA, the
department will provide a general response. The department believes the
stringency analysis and findings were capably prepared and adequately address the
applicable elements of 75-10-107, MCA. In addition, the department believes that
the commentor has misstated EPA's regulatory approach in creating the federal
regulations and in approving state programs. The regulations proposed in 1988
were, to some degree, based on state implementation. Concerns raised by
regulated entities and state governments in comments on the proposed regulations
led EPA to adopt regulations in 1991 that emphasized a self-implementing
approach, so as not to delay the effect of regulatory requirements such as a landfill
owner's duty to respond to ground water contamination by taking action when a
state might not yet have the capacity to review the contamination and require action.
3-2/11/10 Montana Administrative Register