Issue 3 - the Montana Secretary of State Website

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However, in that adoption, EPA made it clear that it intended to preserve the
traditional primary role of the state in implementing compliance, and that an
upcoming state implementation rulemaking would carry that traditional role forward.
When EPA adopted the state implementation regulations in 1999, it required states
to adopt a permit or licensing program that ensured compliance with the
requirements in 40 CFR Part 258, the comparable federal regulations. EPA did not
require merely that a state adopt a licensing program with the elements in the
federal regulations, but rather EPA required that a licensing program ensure
compliance with those elements. See 40 CFR 239.6. The department believes that
this requirement, that its regulatory program must ensure compliance with the EPA's
solid waste regulations, means that that department has the flexibility to require
submission and approval of important solid waste management determinations and
actions.
COMMENT NO. 72: A commentor stated that 75-10-107(3), MCA, clearly
states that, in order to adopt a more stringent rule, the department must have
scientific proof that the rule is necessary to "mitigate harm to public health and the
environment" and that this is made clear by the requirements in 75-10-107(3), MCA,
that "[t]he written finding must reference information and peer-reviewed scientific
studies contained in the record that forms the basis for the department's
conclusion." Both elements are needed, "information and peer-reviewed scientific
studies," not just one or the other.
In its testimony, the department clearly stated that its evidence was merely
"anecdotal" and was based on what "the department believes," rather than
proffering any scientific papers on the matters challenged as being "more stringent
than the comparable federal regulations." (For example, see Mr. Thompson's
testimony on New Rules XVII(4)(c) and XVIV(1)(a) for use of the term "anecdotal,"
and see the rest of the New Rules analyzed on pages 1 and 2 of his testimony for
the constant use of the term "believes.") Anecdotal comments were supplied
without any analysis of the actual number of potential problems versus the number
of facilities affected by the proposed rules. Information was scant and science was
absent. The commentor stated that only two instances of problems with lack of a
deed notation before closure did not justify requiring recording of a deed notation
before accepting waste, as proposed by the department, compared with at the end
of the closure process, as is required by EPA.
RESPONSE: Section 75-10-107(3), MCA, does not contain the phrase
"scientific proof." See Response to Comment No. 2. The department produced
evidence in the record of problem areas that proposed rules and amendments were
reasonably designed to correct. The department has experienced problems with the
recording of deed notations at four landfills out of the six landfills (two Class II and
four Class III) that have recently closed under the existing deed notation
requirements.
COMMENT NO. 73: A commentor stated that the department contends that,
because a license application or O & M plan is required in solid waste statutes at 75-
10-204(1) and 221, MCA, the department has broad authority to adopt rules
regarding applications and O & M plans. This is inconsistent with the limitation
Montana Administrative Register 3-2/11/10