HomeMy WebLinkAboutMontana Department of Environmental QualityLECE?dE
NOV 1 3 2009
Montana Department of
ENmom=n
CITY OF
November 5, 2009
To: Persons Interested in Solid Waste Management System Rulemaking
From: Ed Thamke, Chief, Waste and Underground Tank Management Bureau
Re: Department Testimony on Stringency Issues at November 4, 2009 Hearing
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Based on comments received by the Department on its Solid Waste rulemaking notice,
Montana Administrative Register (MAR) Notice 17-284, published on February 26, 2009, the
Department published a supplemental notice on August 13, 2009, that it would offer and take
testimony at a hearing on November 4, 2009, on whether proposed rules or amendments
were more stringent than comparable federal regulations or guidelines.
The Department presented testimony at the hearing. As a courtesy, we are enclosing the
testimony so that you can review and comment on it if you wish. To save money and paper,
the testimonies are on the enclosed CD. Documents on the CD include: 1) 8/13/09
Supplemental Notice of Public Hearing and Extension of Comment Period on Proposed
Amendment, Adoption, and Repeal; 2) Testimony of DEQ Staff Attorney Norm Mullen; 3)
Testimony of Solid Waste Program Manager Rick Thompson. The documents are also
available on our website: http://www.deg.mt.gov/SolidWaste/Newsletters.asp. You may
request hardcopies by calling the Waste & Underground Tank management Bureau at 406-
444-5300.
The comment period runs through November 23, 2009. If you wish to submit comments,
they must be submitted to Elois Johnson, Paralegal, Department of Environmental Quality,
1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana 59620-0901; faxed to (406) 444-
4386; or e-mailed to ejohnson@mt.gov, no later than November 23, 2009. To be guaranteed
consideration, mailed comments must be postmarked on or before that date.
Enc: CD-SW Stringency Testimonies
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BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY
OF THE STATE OF MONTANA
In the matter of the amendment of ARM
17.50.403, 17.50.410, 17.50.501 through
17.50.503, 17.50.508, 17.50.509, and
17.50.513; the adoption of New Rules I
through LI; and the repeal of ARM
17.50.505, 17.50.506, 17.50.510,
17.50.511, 17.50.526, 17.50.530,
17.50.531, 17.50.542, 17.50.701,
17.50.702, 17.50.705 through 17.50.710,
17.50.715, 17.50.716, and 17.50.720
through 17.50.726 pertaining to the
licensing and operation of solid waste
landfill facilities
AMENDED NOTICE OF PUBLIC
HEARING AND EXTENSION OF
COMMENT PERIOD ON
PROPOSED AMENDMENT,
ADOPTION, AND REPEAL
(SOLID WASTE)
TO: All Concerned Persons
1. On February 26, 2009, the Department of Environmental Quality published
MAR Notice No. 17-284 regarding a notice of public hearing on the proposed
amendment, adoption, and repeal of the above-stated rules at page 164, 2009
Montana Administrative Register, issue number 4. The department is publishing this
amended notice to provide notice of a second hearing, extend the public comment
period, offer and receive evidence and comments on matters of stringency
compared to comparable federal regulations or guidelines, and provide additional
statements of reasonable necessity and offer and receive evidence and comments
on.these additional statements of reasonable necessity. These matters are set forth
below in paragraphs 3 through 8.
2. The department will hold the second public hearing on November 4, 2009,
at 10:00 a.m. in Room 111, Metcalf Building, 1520 East Sixth Avenue, Helena,
Montana.
3. Section 75-10-107(1), MCA, prohibits the Department of Environmental
Quality from adopting "(1) ... a rule to implement this chapter that is more stringent
than the comparable federal regulations or guidelines that address the same
circumstances" unless "(2) ... the department makes a written finding after a public
hearing and public comment and based on evidence in the record that:
(a) the proposed state standard or requirement protects public health or the
environment of the state; and
(b) the state standard or requirement to be imposed can mitigate harm to the
public health or environment and is achievable under current technology."
Section 75-10-107(3), MCA, provides that the written finding "must reference
information and peer-reviewed scientific studies contained in the record that farms
MAR Notice No. 17-284 15-8/13/09
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[sic] the basis for the department's conclusion. The written finding must also include
information from the hearing record regarding the costs to the regulated community
that are directly attributable to the proposed state standard or requirement."
4. Comments made by the public on MAR Notice 17-284 have raised
questions concerning whether the following rule adoptions and amendments would
make the state rules more stringent than comparable federal regulations or
guidelines addressing the same circumstances, and whether they can be adopted or
amended without the department making the written findings referred to in 75-10-
107, MCA. The department has not determined that all of the rule adoptions and
amendments in question are more stringent than comparable federal regulations or
guidelines, but will offer and take testimony and other evidence and comments on
whether the listed provisions are more stringent than comparable federal regulations
or guidelines that address the same circumstances, whether the proposed state
rules protect public health or the environment and are achievable under current
technology, and whether peer-reviewed studies exist to justify more stringent rules,
and on the costs of the proposed rules to the regulated community.
5. The following rules will be addressed at the hearing and during the
comment period:
a. Requirements in the proposed amendments and new rules for an owner or
operator to make a submission to the department and to obtain approval of that
submission, except where the submission is required as part of a license application.
Review-and-approval requirements that will be addressed at the hearing are found
in:
ARM 17.50.509(3), concerning approval of operation and maintenance plan
updates;
NEW RULE IV(1), concerning a demonstration that airplanes will be protected
from birds within a lesser setback;
NEW RULE V, concerning approval of a demonstration regarding floodplains;
NEW RULE VI, concerning a demonstration allowing a landfill unit in
wetlands;
NEW RULE VII, concerning a demonstration for an alternative setback for
location in a fault area;
NEW RULE VIII, concerning a demonstration allowing location in a seismic
area;
NEW RULE IX, concerning a demonstration that the structural components of
a unit located in an unstable area will not be disrupted;
NEW RULE XVII(4)(c), concerning submission of a remediation plan for an
exceedance of the concentration limit for explosive gases;
NEW RULE XXII, concerning exclusion of bulk or noncontainerized liquids,
unless approved;
NEW RULE XXIV(1)(a), concerning a deed notation to be recorded by the
owner of the land where a facility is located;
NEW RULE XXV(1), concerning a policy of general liability insurance;
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NEW RULE XXVII(2)(a), concerning confining waste to areas where it can
effectively be managed by supervision, fencing, signs, or similar means;
NEW RULE XXIX(1)(b), concerning the application at a Class IV landfill unit
of an approved cover at least every three months;
NEW RULE XXXII(4), concerning a demonstration that the owner or operator
meets the requirements for a small community exemption;
NEW RULE XXXIII(1), concerning design of a Class II or Class IV landfill unit;
NEW RULE XXXIV(4), concerning recirculation of leachate at a Class II
landfill unit, and (5) and (6), concerning construction quality control (CQC) and
construction quality assurance (CQA) manuals for assuring construction in
accordance with design;
NEW RULE XXXVIII(4)(a), concerning a ground water monitoring plan, (b) an
update to that plan, and (6) the number, spacing, and depth of ground water
monitoring wells;
NEW RULE XXXIX(1), concerning a ground water sampling and analysis
plan;
NEW RULE XL(5)(b), concerning implementing an assessment monitoring
program if significant changes from background are found through drinking water
detection monitoring, and (7), concerning avoiding assessment monitoring through a
demonstration that another source caused the significant change;
NEW RULE XLI(5), concerning a return to detection monitoring if assessment
monitoring reveals concentrations of all constituents in Appendix II to 40 CFR Part
258 to be at or below background values, (6), concerning continuation of
assessment monitoring if such concentrations are above background values but
below protection standards, and (7)(b), concerning a return to detection monitoring
based on a demonstration that another source caused the ground water
contamination;
NEW RULE XLII(1)(b), concerning an assessment of corrective measures;
NEW RULE XLIII(1)(b), concerning a selected remedy report addressing
ground water contamination;
NEW RULE XLIV(1)(a), concerning a corrective action ground water
monitoring program, (1)(c) concerning interim measures to correct ground water
contamination, (3)(a) concerning impracticability of achieving ground water
remediation goals, (3)(b) concerning implementation of alternate measures to
protect health and the environment, and (3)(c) concerning implementation of
alternate measures to control sources of contamination, (7) concerning certification
that the remedy has been completed, and (8) concerning release from requirements
for financial assurance for corrective action;
NEW RULE XLV(1)(b), concerning a hydrogeologic and soils work plan;
NEW RULE XLIX(4), concerning a closure plan for a Class II or Class IV
landfill unit, (5) concerning closure construction plans, specifications, reports, and
certifications, and (10) concerning certification of closure completion;
NEW RULE L(3), concerning a post-closure plan, (5) concerning a
certification that post-closure care has been completed, (6), concerning necessary
amendments to a closure or post-closure plan, and (7) concerning post-closure
construction plans, specifications, reports, and certifications; and
NEW RULE LI(3), concerning closure and post-closure plans for a Class III
MAR Notice No. 17-284 15-8/13/09
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landfill unit.
b. Design requirements for a Class II landfill unit in NEW RULE XXXIV, such
as the minimum slope of the base of the leachate collection layer or the maximum
side slope on the liner, elements of an alternative liner, and CQC and CQA
requirements for design and construction of a landfill unit.
c. Requirements for a Class II landfill unit that are not contained in 40 CFR
Part 258, such as insurance requirements, in proposed new ARM 17.50.508(2) and
NEW RULE XXV; intermediate cover requirements at a Class II landfill unit that will
not receive waste for 90 days in NEW RULE XV(2)(c); updates to operating and
maintenance plans in proposed new ARM 17.50.509(4); and a progress report on
corrective action due by each April 1, in NEW RULE XLIV(1)(d).
d. Requirements for a Class II landfill unit that does not accept municipal
solid waste, to the extent that they are more stringent than requirements in 40 Part
257. This includes all proposed amendments and adoptions that address a Class II
landfill unit, because the definition in ARM 17.50.503 of Group II waste, which can
be disposed of only at a Class II landfill unit, is broader than the definition of
municipal solid waste in 40 CFR 258.2.
e. Requirements in NEW RULES XXXIII and XXXIV that a Class IV landfill
unit have a liner, and other prescriptive design elements, other than those necessary
to prevent contamination of a ground water drinking water source.
f. The requirement in NEW RULE XXIV that a deed notation for a Class II
landfill unit must be recorded before the initial receipt of waste or within 60 days after
the effective date of the requirement, rather than at closure.
g. Locational restrictions for a Class II landfill unit that are more stringent
than those in 40 CFR Part 258, such as the inclusion in NEW RULE VIII of "landfill
cover" and "gas control system" in a "containment system" that must be designed to
resist the maximum horizontal acceleration in a seismic impact zone.
h. Locational restrictions for a Class III or Class IV landfill unit that are more
stringent than 40 CFR Part 257, subpart A and B, regulations, respectively. This
includes restrictions concerning locating a Class III landfill unit in wetlands (NEW
RULE XI(1)(h), and restrictions concerning locating a Class III or Class IV landfill unit
in the following areas: fault areas (NEW RULE VII); seismic areas (NEW RULE
VIII); and unstable areas (NEW RULE IX); and other restrictions in NEW RULE XI.
i. Locational restrictions for a Class IV landfill unit, including: NEW RULE VII,
concerning fault areas; NEW RULE VIII, concerning seismic areas; and NEW RULE
IX, concerning unstable areas.
j. Certain operational requirements for a Class III or Class IV landfill unit that
may not be required in 40 CFR Part 257, subpart A and B, regulations, respectively.
Examples are: insurance requirements, in proposed new ARM 17.50.508(2) and
NEW RULE XXV; requirements concerning updates to operating and maintenance
plans in proposed new ARM 17.50.509(4); requirements concerning deed notations
in NEW RULE XXVIII(1)(f) for a Class III landfill unit and in NEW RULE XXIX(1)(e)
for a Class IV landfill unit; and bulk liquids restrictions in NEW RULE XXVIII for a
Class III landfill unit and NEW RULE XXIX(2)(h) for a Class IV landfill unit.
k. Operational requirements for a Class III landfill unit, including: placement
of six inches of cover at least every three months, in NEW RULE XXVIII(1)(b); and
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requirements in NEW RULE XXVIII that make requirements for a Class II landfill unit
concerning access, in NEW RULE XIX, and run-on and run-off control systems in
NEW RULE XX, applicable to a Class III landfill unit.
1. Operational requirements for a Class IV landfill unit, including: control for
aesthetics in NEW RULE XXIX(1)(a); exclusion of liquids, and other materials that
may be "conditionally exempt small quantity generator wastes" that may be disposed
of at a 40 CFR Part 257, subpart B, landfill unit, in NEW RULE XXIX(1)(c); waste
screening requirements in NEW RULE XXIX(2)(a); and financial assurance
requirements in NEW RULE XXIX(1)(d).
m. A requirement that a Class II or Class IV landfill unit undertaking ground
water corrective action submit a progress report on corrective action by April 1 of
each year, in NEW RULE XLIV(1)(d).
n. Closure and post-closure requirements in NEW RULE LI for a Class III
landfill unit, and in NEW RULES XLIX and L for a Class IV landfill unit.
6. The department also intends to take comment and submit evidence on the
approach it has proposed in new ARM 17.50.508(1)(aa), and in other proposed rule
amendments and new rules, to require additional information and criteria when it
determines that information or those criteria to be necessary to protect human health
or the environment. Other examples of the use of that language are in: ARM
17.50.509(2)(k) and proposed new (2)(m), concerning plans for handling of special
waste and concerning other plans as part of operation and maintenance plans,
respectively; NEW RULE IX(1), concerning factors to be used to determine whether
an area is unstable; NEW RULE XI, concerning additional locational requirements;
NEW RULE XXVI(1)(c), concerning types of special waste; NEW RULE XXXIII(2)
and (3), concerning an alternative design for a Class 11 or Class IV landfill unit, and
the location of the relevant point of compliance for ground water protection
standards, respectively; NEW RULE XXXIV(1)(d) and (3)(e), concerning design
standards for a Class II or Class IV landfill unit, and leachate collection systems,
respectively; NEW RULE XXXVIII(4)(a)(iv), concerning required elements of a
ground water monitoring plan; NEW RULE XXXIX(1)(f), concerning procedures and
techniques contained in a sampling and analysis plan; NEW RULE XLII(1)(b),
concerning criteria to be addressed in the assessment of corrective measures to
remediate an exceedance of a ground water protection standard; NEW RULE
XLIII(4)(g), concerning selection of a remedy for exceedance of a ground water
protection standard; NEW RULE XLV(2)(g), concerning the information required to
be included in a hydrogeological and soils report; NEW RULE XLIX(4), concerning
information required in a closure plan; and NEW RULE L(1)(e) and (3), concerning
measures required as part of post-closure care or information required in a post-
closure plan.
7. In preparing its response to comments on the February 26, 2009, notice of
public hearing, the department identified areas where it believes supplements to the
statements of reasonable necessity would be useful to provide the public with a
better understanding of the reasons for the proposed amendments and new rules
and to allow the public to submit comments on those supplements. Those
supplemental statements follow:
MAR Notice No. 17-284 15-8/13/09
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a. For NEW RULE XXVIII(1), concerning operating criteria for a Class III
landfill unit, the department proposed to make the requirements of a Class II landfill
unit for protection of air quality (NEW RULE XVIII), access (NEW RULE XIX), and
deed notations (NEW RULE XXIV) applicable to a Class III landfill unit. The reasons
are as follows:
i. For air quality, the requirements set forth for a Class II unit are basically the
same as those required in the federal regulations at 40 CFR 257.3-7 for all landfill
units, including Class III landfills. Therefore, the department proposed to adopt the
Class II standards for Class III landfill units;
ii. The requirements in NEW RULE XIX for access restrictions for a Class II
unit are identical to the requirements in 40 CFR 258.25. The requirements in 40
CFR 257.3-8 for access, which apply to a Class III landfill unit, are more general.
However, the department chose to adopt the Class II landfill unit access
requirements for a Class III landfill unit because access to a Class III landfill unit
poses physical risks to the public similar to the risks at a Class II unit, it is simpler to
adopt a uniform standard, and a uniform standard will provide more guidance
without being unnecessarily burdensome.
iii. For a deed notation: A deed notation is required in 40 CFR 258.60 for a
Class II landfill unit when it closes. In the statement of reasonable necessity for
proposed new ARM 17.50.508(1)(y) and for the adoption of NEW RULE XXIV, the
department explained the reason for requiring a proposed deed notation with the
application for a license for all landfill units. The department also explained the
reason for requiring a deed notation to be recorded before any class of landfill unit
accepts waste, and, for a landfill unit that is already operating, the department
explained the reasons that a deed notation must be recorded within 60 days after
the new rule takes effect. While the waste disposed of in a Class III or Class IV
landfill unit does not pose as high a risk to ground water as waste in a Class II
landfill unit, it still can pose risks for human health and the environment. The
department has had to take, or threaten to take, enforcement actions against
purchasers of land where a Class III landfill unit previously had been operated.
These landfill units had not been properly closed with the proper amount of cover,
and wetlands that had been filled with waste in violation of administrative rules had
not been remediated. New purchasers bought these properties and claimed to be
unaware that they had been run as landfill units. A Class III or Class IV landfill unit
might not be properly closed if purchased before closure when no deed notation had
been recorded. This could unnecessarily consume scarce department resources
and subject the new owner to unforeseen liabilities. If a purchaser is not informed
of, and bound by, restrictions in a deed notation, that purchaser might conduct
activities that disturb the cover, liner, or other elements of a landfill unit exposing the
waste to water, causing leachate to form, and allowing leachate to migrate down to
contaminate a drinking water source. Therefore, it is reasonable to require that a
deed notation for a Class III or Class IV landfill unit be recorded before the first
acceptance of waste at a unit or, for a landfill unit that is already operating, within 60
days after the rule takes effect.
b. Concerning the requirements for review and approval by the department of
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submittals by owners or operators that were discussed above at 5.a., the department
believes that its review and approval are necessary to ensure that the requirements
of the rules are met. When the submittals are part of a license application, the
department's review and approval are necessary, because the department is
charged by 75-10-224, MCA, with reviewing a license application to determine
whether it meets the requirements of the law and rules. The federal Environmental
Protection Agency (EPA) recognized that such review and approval were necessary
when it issued its regulations concerning state licensing programs in 40 CFR Part
239. It required in 40 CR 239.6 that a state licensing program require, as a condition
of a license to operate a landfill unit, compliance with the landfill unit regulations in
40 CFR Part 258.
c. When a submittal is for an action that is not subject to license approval, for
example, remediation of a methane gas concentration that exceeds a standard,
there may be no federal requirement for department approval. However, department
review and approval is still necessary. It is wise for the department, as regulator, to
conduct reviews before an activity can occur. Without department review, it is
possible that the landfill unit owner or operator could fail to provide information or
consider a factor that is required or appropriate to be considered under the rules,
especially when the rules, frequently following federal language, are open-ended in
that they often set minimum requirements, but indicate that more information or
factors might be needed, by using such terms as "at least" or "at a minimum." The
department has received many submittals for design and construction of landfill units
under its existing rules, and has often found that the submittals do not adequately
address the factors required to be addressed in the rules. After the department
points out the deficiencies, an owner or operator can then submit corrections to
make the submittal comply. In addition, it is inefficient for the owner or operator not
to submit documents to the department for approval initially. The department
believes that one of its functions as a regulator is to work with regulated entities to
provide resources and guidance to help them develop submittals that satisfy the
requirements of the law and rules. The department's staff has expertise from
regulating landfill units around the state, and from being trained to protect the public
interest by enforcing regulatory requirements. If no approval is required, regulated
entities are less likely to request guidance from the department, and the department
will then have to inform the entity after the fact if it considers a submittal to be
insufficient. Then the department's remedy would be to commence an enforcement
action or to revoke a license or deny a license application. The department believes
that it would be more efficient for the regulated entity to make submittals for
department review and approval before taking the action that is the subject of the
submittal.
d. Department pre-approval is especially important for certification under
NEW RULE XLIX(10), NEW RULE L(5), or NEW RULE XLIV that closure, post-
closure care, or corrective action is complete. The reasons cited above for
department approval are applicable to a certification that one of those processes has
been completed. In addition, financial assurance is released when closure, post-
closure care, or corrective action is certified by an independent professional
engineer to be complete and that certification is approved by the department. It is
critical for completion of those processes that the costs of completing them are
MAR Notice No. 17-284 15-8/13/09
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secured by financial assurance that is subject only to the control of the department
while work remains to be done. Until the department has determined, through
approval of a certification, that the required work has been completed, it is
necessary that financial assurance be maintained.
e. The department proposed in NEW RULE XXIX to adopt operating criteria
for a Class IV landfill unit. Many of the criteria were carried forward from existing
rules. However, there was no previous requirement for a deed notation for a Class
IV landfill unit. The department supplements the statements of reasonable necessity
for the requirement of a deed notation as follows: The reasons for a deed notation
for a Class IV landfill unit are the same as provided in 6.a.iii. above for a Class III
landfill unit, except that the wastes in a Class IV landfill unit pose a greater threat to
human health and the environment than the wastes in a Class III landfill unit.
8. Concerned persons may submit their data, views, or arguments, either
orally or in writing, at the hearing. Written data, views, or arguments may also be
submitted to Elois Johnson, Paralegal, Department of Environmental Quality, 1520
E. Sixth Avenue, P.O. Box 200901, Helena, Montana 59620-0901; faxed to (406)
444-4386; or e-mailed to ejohnson@mt.gov, no later than November 23, 2009. To
be guaranteed consideration, mailed comments must be postmarked on or before
that date.
9. John F. North, Chief Counsel, has been designated to preside over and
conduct the hearing.
10. The department maintains a list of interested persons who wish to
receive notices of rulemaking actions proposed by this agency. Persons who wish
to have their name added to the list shall make a written request that includes the
name and mailing address of the person to receive notices and specifies that the
person wishes to receive notices regarding: air quality; hazardous waste/waste oil;
asbestos control; water/wastewater treatment plant operator certification; solid
waste; junk vehicles; infectious waste; public water supplies; public sewage systems
regulation; hard rock (metal) mine reclamation; major facility siting; opencut mine
reclamation; strip mine reclamation; subdivisions; renewable energy grants/loans;
wastewater treatment or safe drinking water revolving grants and loans; water
quality; CECRA; underground/above ground storage tanks; MEPA; or general
procedural rules other than MEPA. Such written request may be mailed or delivered
to Elois Johnson, Paralegal, Legal Unit, 1520 E. Sixth Ave., P.O. Box 200901,
Helena, Montana 59620-0901, faxed to the office at (406) 444-4386, e-mailed to
ejohnson@mt.gov, or may be made by completing a request form at any rules
hearing held by the department.
11. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
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Reviewed by: DEPARTMENT OF ENVIRONMENTAL
QUALITY
/s/ David Rusoff BY: LsL_R,ichard H. OQaer
DAVID RUSOFF Richard H. Opper, Director
Rule Reviewer
Certified to the Secretary of State, August 3, 2009.
MAR Notice No. 17-284 15-8/13/09
TESTIMONY OF NORMAN J. MULLEN, STAFF ATTORNEY,
MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY
AT HEARING ON SOLID WASTE RULEMAKING ON NOVEMBER 4, 2009
(MAR NOTICE NO. 17-28415-8/13/09)
My name is Norman J. Mullen. I am a staff attorney for the Montana Department of
Environmental Quality. I have been employed in that capacity for the past 10 years. My area of
responsibility is solid waste, septic cleaning and disposal, and junk vehicles. I have also
represented the Department on water quality and drinking water matters. My duties are to draft
legislation, review and edit proposed rules and amendments, draft and edit administrative and
judicial enforcment actions, and otherwise advise the Department on legal matters. I have a
bachelor's degree from the University of Colorado in economics and environmental
conservation, and a juris doctor degree from the University of Colorado School of Law. I have
been an attorney for 22 years.
The Department received comments on this rulemaking that many of the proposed new rules and
amendments were more stringent than comparable federal regulations or guidelines.
To aid the Department in responding to this stringency issue, I reviewed the existing rules,
proposed rules and amendments, and the federal Environmental Protection Agency's rulemaking
notices and regulations. On behalf of the Department, I offer the following testimony concerning
stringency.
Commenters stated that the Department's use of the term "any other matter determined by the
Department to be necessary to protect human health or the environment," or a similar term,
constituted a vague and inappropriate extension of Department discretion that was also more
stringent than comparable language used by the federal Environmental Protection Agency (EPA)
in its solid waste regulations. The following analysis shows that, in many instances where this or
similar language was used, the federal regulatory scheme anticipated that a regulating state
would need flexibility and should exercise its discretion to protect health and the environment. I
note that the Montana Supreme Court just last year reviewed language concerning a rule
implementing the Water Quality Act, and cited with approval language in a Montana Board of
Environmental Review rule notice stating that the use the phrase "any other information deemed
relevant to the department and that relates to the criteria in (1) [concerning water quality
degradation]" was permissible and indeed "important" for "[DEQ] [to] have discretion to make a
determination of significance independent of the criteria in [ARM 17.30.715(1)]." Indeed,
"when an agency, because of a misinterpretation of its rule, does not exercise its discretion it
abuses its discretion." Clark Fork Coalition v. Mont. Dept of Envd. Quality, 2008 MT 407, P43
(Mont. 2008).
Testimony of Norman J. Mullen
Staff Attorney, Montana Department of Environmental Quality
Solid Waste Rules- Stringency Hearing
November 4, 2009
Page 2
In the statements accompanying its notice of proposed rulemaking on which the proposed
Montana rules being analyzed here are based, EPA stated numerous times that it intended states
to have flexibility in addressing solid waste regulatory issues.
For instance, in 53 Fed. Reg. 33314 8/30/88, EPA stated, under General Approach to Today's
Proposal at 33322- "EPA's primary goals in developing today's proposal were to develop
standards that are protective of human health and the environment, that are within the practicable
capability of the regulated community, and that provide state flexibility in implementation."
Specific examples of EPA's intent to authorize states to be flexible are for exclusion of
hazardous waste: "measures that MSWLF owners and operators must incorporate in their
programs to exclude receipt of hazardous waste include, at a minimum, random inspections of
incoming loads, recordkeeping of inspection results, training of personnel to recognize hazardous
waste, and procedures for notifying the proper state authorities if a regulated hazardous waste is
found at the facility. The state may require additional program elements. ... In developing this
proposal, EPA considered specifying the program in detail, delineating all activities and
procedures needed to exclude hazardous waste. The agency decided against a strictly defined
program because each landfill will receive different amounts of waste that could contain
questionable material. Today's proposal gives states and MSWLF owners and operators
flexibility in implementing this requirement." 53 Fed. Reg. 33314, 33335 (8/30/88).
Regarding recordkeeping, EPA stated: "EPA has not defined the time period for retaining these
records, required that reports should be submitted, nor specified in what form records should be
maintained because the Agency believes it is more appropriate for these requirements to be
specified by States, which are directly responsible for implementing these provisions. EPA
believes this requirement is flexible enough to allow the States to establish specific requirements
for recordkeeping and to determine if additional records should be maintained." 53 Fed. Reg.
33314, 33341 (8/30/88).
Regarding closure, EPA stated: "Owners or operators must prepare a closure plan, to be
approved the by State, that describes the activities to be undertaken at the landfill to close it in
accordance with the closure performance standard." 53 Fed. Reg. 33314, 33342 (8/30/88).
EPA modified its approach in the adoption notice for the municipal solid waste landfill rules, at
56 Fed Reg. 50992 (10/9/1991), to make many of the regulations self-implementing, because it
was not confident that states would be prepared to oversee compliance with the regulations
within the two years provided. However, EPA was clear that it expected states to have oversight
over implementation: "Despite the promulgation of self-implementing standards in today's
rulemaking, EPA continues to believe that requirements such as those pertaining to landfill
design, ground water monitoring, corrective action, and closure should optimally be
implemented under the oversight of a State implementing agency. Today's rule does not
represent a shift away from the longstanding Agency policy of requiring regulatory oversight of
Testimony of Norman J. Mullen
Staff Attorney, Montana Department of Environmental Quality
Solid Waste Rules- Stringency Hearing
November 4, 2009
Page 3
such important procedures. Rather, the inclusion of self-implementing standards in today's rule
is a recognition that, due to resource limitations, States may not have adequate programs in place
by the effective date of the revised Criteria. This scheme will insure that in States that do not act
to establish adequate programs, human health and the environment will be protected and the
Federal requirements will be enforceable. ... EPA's approach to State program approval [EPA
required states to have permitting programs to enforce the 40 CFR part 258 requirements in a
rulemaking that promulgated 40 CFR part 239, in 1998] recognizes the traditional State role in
implementing landfill standards and protecting groundwater. EPA fully intends that States will
maintain the lead role in implementing this program. EPA's goal is for all States to apply for
and receive approval of their programs. Under this rule States will have the flexibility to tailor
standards to meet their state-specific conditions." 56 Fed. Reg. 50978, 50992 (10/9/1991).
Regarding post-closure care, EPA stated: "In addition to the minimum post-closure activities
specified in today's proposal, the Agency encourages States to specify more detailed post-
closure care requirements, such as maintaining the vegetative cover through periodic mowing,
replanting, and regarding to preclude erosion that occurs naturally over time and as a result of
sever storms, and repairing the cap when necessary to prevent the cap from becoming
permeable." 53 Fed. Reg. 33314, 33345 (8/30/88).
In addition, in its rulemaking notices addressing regulation of non-municipal solid waste
landfills, EPA stated that: "One aim in developing these criteria was to be as specific as possible
to facilitate the distinction or classification of disposal facilities, without reducing the flexibility
of State solid waste management and enforcement agencies to take into account the site-by-site
variation and makes assessments based on local conditions. These criteria are not intended to
prevent or restrict the authority or discretion of States to develop or utilize more stringent State
or site-specific (situational standards or criteria. States may choose to require mores stringent
location, design, construction, operation, maintenance, and performance standards where local
conditions indicate." 43 Fed. Reg. 4942 (2/6/1978).
So, it is clear that the EPA's approach to its rulemaking was to include basic requirements, and
then to give the states flexibility in regulating. This raises the question of whether the stringency
findings required in 75-10-107, MCA, are relevant to these rules, because the EPA regulations
were designed to allow a state to tailor rules to meet state-specific concerns.
EPA's use of phrases such as "including, but not limited to," "at least," and "at a minimum,"
which are found throughout EPA's solid waste regulations at 40 CFR parts 257 and 258, make it
clear that the requirements are not all-inclusive or limiting, but rather intended to give states
flexibility in implementing them, with the purpose of protecting human health and the
environment.
Testimony of Norman I Mullen
Staff Attorney, Montana Department of Environmental Quality
Solid Waste Rules- Stringency Hearing
November 4, 2009
Page 4
The Department requested the EPA to review the proposed rules and amendments, and EPA
wrote a letter dated October 22, 2009, that states that the rules are consistent with federal
requirements. That letter is attached to my testimony.
Therefore, it is appropriate, and not a violation of the "no-more-stringency" requirement of
section 75-10-107, MCA, for the Department to adopt the phrase "any other matter determined
by the Department to be necessary to protect human health or the environment" or similar
language when discretion is provided in a comparable regulation of the federal EPA.
My analysis of specific rules follows:
ARM 17.50.508
(1)(aa) would authorize the Department to request additional information in a license
application if necessary to protect human health or the environment. The federal regulations do
not address the licensing of solid waste management systems, so there is no comparable federal
license application regulation or guideline.
Montana statute, § 75-10-221(3), MCA, authorizes the Department to require, in a license
application, "the name and business address of the applicant, the location of the proposed solid
waste management system, a plan of operation and maintenance, and other information that the
department may by rule require."
There is language in the existing license application rule, ARM 17.50.508, authorizing
the application form "to require at least the following information." The requirement proposed
in ARM 17.50.508(1)(aa) gives the Department less discretion than that in the existing rule, and
provides standards for review of a department request for more information.
ARM 17.50.509
(2)(k) would require plans for handling of special waste streams. Special waste would be
defined in ARM 17.50.502(37) as that term is defined in § 75-10-802, MCA, which is "solid
waste that has unique handling, transportation, or disposal requirements to ensure protection of
the public health, safety, and welfare and the environment." This carries forward language from
the existing rule, and provides examples of common types of special wastes. It gives the
Department the flexibility to require special handling plans for other types of special waste.
There is no comparable federal regulation.
(2)(m) would require, in operation and maintenance plans, "any other plans or
information determined by the department to be necessary to protect human health or the
environment." Rules governing operation and maintenance plans are required by § 75-10-
204(1), MCA. There is no comparable federal regulation requiring operation and maintenance
plans.
Testimony of Norman I Mullen
Staff Attorney, Montana Department of Environmental Quality
Solid Waste Rules- Stringency Hearing
November 4, 2009
Page 5
(4) would require that an operation and maintenance plan be updated within 45 days, or a
longer period if requested and approved, after the Department mailed notice that an update was
necessary to protect human health or the environment. There is no comparable federal regulation
concerning operation and maintenance plans.
New Rule II
(4) would require the Department to mail notice when an additional requirement is
needed to protect human health or the environment. This was proposed to make it clear that the
burden is on the Department to notify a person of any additional requirement or information.
This is a requirement on the Department, not regulated entities, and does not implicate
stringency.
New Rule IX
(1) concerns the factors to be used in determining whether an area is an unstable area.
The Department proposed language requiring consideration of "any other factor determined by
the department to be necessary to protect human health or the environment." Existing ARM
17.50.505(2)(g) uses the term "at a minimum." The comparable federal regulation, 40 CFR
258.15, states "at a minimum". Therefore, the Department's ability to exercise discretion in the
proposed rule is narrower, with standards, than allowed in the comparable federal regulation.
New Rule XI
(1)0) would require a landfill to comply with "any other locational requirement
determined by the department to be necessary to protect human health or the environment."
There is no comparable federal regulation.
New Rule XVI Disease Vector Control
(1) requires a landfill to use techniques to prevent or control disease vectors "appropriate
for the protection of human health and the environment. There is identical language in 40 CFR
258.22(a).
New Rule XVII Explosive Gases Control
(4) requires, if methane levels exceed limits, the landfill to take and report all steps
necessary to protect human health. This is identical to 40 CFR 258.23(c).
(7) would allow the Department to establish, for small landfills, alternative methane
monitoring frequencies that are protective of human health and the environment.
Testimony of Norman J. Mullen
Staff Attorney, Montana Department of Environmental Quality
Solid Waste Rules- Stringency Hearing
November 4, 2009
Page 6
This is identical to 40 CFR 258.23(e)(3).
New Rule XIX Access
(1) would require access control at a Class II landfill as "appropriate to protect human
health and the environment." This is identical to 40 CFR 258.25
XXVI Special Waste
(1)(c) would require management of special wastes such as asbestos-contaminated
material and infectious wastes according to the plan provided under ARM 17.50.509 and under
the laws and rules applicable to them, and for "any other special waste, in the manner determined
by the department to be necessary to protect human health or the environment." As discussed
above in the analysis of ARM 17.50.509, there is no comparable federal regulation concerning
special waste.
XXVII Operating Criteria
(2)(f) requires that "a solid waste management facility must be designed, constructed,
and operated in a manner to prevent harm to human health and the environment". This provision
is carried forward from existing ARM 17.50.506(17). It reflects the purpose of the solid waste
regulatory approach adopted by EPA: "EPA's primary goals in developing today's proposal were
to develop standards that are protective of :human health and the environment, that are within the
practicable capability of the regulated community, and that provide state flexibility in
implementation." 53 Fed. Reg. 33322 (8/30/1988).
New Rule XXXIII - Design for Class II and IV
(2) would require the Department, in considering approval of a design for an alternative
liner, to consider "any other matter determined by the department to be necessary to protect
human health or the environment." The comparable federal regulation, 40 CFR 258.40(c),
requires "at least the following". Existing ARM 17.50.506(2) contains the same "at least"
language as the federal regulation. Therefore, the Department's ability to exercise discretion in
the proposed rule is narrower, with standards, than is allowed in the comparable federal
regulation and existing department rule.
(3) authorizes the Department, when determining the location of the Relevant Point of
Compliance for measuring potential ground water contamination, to consider "any other matter
determined by the department to be necessary to protect human health or the environment" In 40
CFR 258.40(d), addressing the same matter, the language "at least the following" is used.
Therefore, the Department's ability to exercise discretion in the proposed rule is narrower, with
standards, than allowed in the comparable federal regulation.
Testimony of Norman J. Mullen
Staff Attorney, Montana Department of Environmental Quality
Solid Waste Rules- Stringency Hearing
November 4, 2009
Page 7
New Rule XXXIV
(1)(d) would require a Class II or IV landfill unit to comply with "any other design
standard determined by the department to be necessary to meet the requirements of [NEW RULE
XXXIII(1)]", which is the basic landfill liner design standard. This matter was addressed
immediately above in the discussion of New Rule XXXIII(2).
(3)(e) would require a Class II or IV landfill leachate collection system to "meet any
other requirements determined by the department to be necessary to protect human health or the
environment". Because the design of a leachate collection system is part of the overall design,
the same analysis as for the design rule, New Rule XXXIII, applies. The Department's ability to
exercise discretion in the proposed rule is narrower, with standards, than allowed in the
comparable federal regulation.
New Rule XXXVIII
(4)(a)(iv) would require a Class II or IV landfill to provide a ground water monitoring
plan including "any other information determined by the department to be necessary to protect
human health or the environment". Federal regulations do not require a ground water
monitoring plan, so they are not comparable. A ground water monitoring plan, and rules
concerning a ground water monitoring plan, are required in § 75-10-204(5)(b), MCA. In
addition, 40 CFR 258.53(c) concerns ground water sampling procedures and frequency, which
are two elements of a ground water monitoring plan, and it states they must be protective of
human health and the environment. Aspects of a ground water monitoring plan must be
designed, so the above discussion of New Rule XXXIII is relevant. Therefore, (4)(a)(iv) is not
more stringent than a comparable federal regulation.
New Rule XXXIX Ground Water Sampling and Analysis
(1)(f) requires a landfill required to monitor ground water to submit a sampling and
analysis plan that documents procedure and techniques for ... "any other matter determined by
the department to be necessary to protect human health or the environment." As noted above, 40
CFR 258.53(c) states that groundwater sampling procedures and frequency must be protective of
human health and the environment. Therefore, the proposed rule is not more stringent than the
comparable federal regulation.
(9)(c)-(e) concerns statistical methods for analysis of ground water monitoring. Those
subsections require the methods to "be protective of human health and the environment." These
provisions are the same as in existing ARM 17.50.708(13), and are identical to comparable
regulations at 40 CFR 258.53(3)-(5).
Testimony of Norman J. Mullen
Staff Attorney, Montana Department of Environmental Quality
Solid Waste Rules- Stringency Hearing
November 4, 2009
Page 8
New Rule XLII Assessment of Corrective Measures
(1)(b) would require a landfill with a statistically significant exceedance of a ground
water protection standard to assess corrective measures, addressing "any other criteria
determined by the department to be necessary to protect human health or the environment."
Existing ARM 17.50.710(6)(b) states that the assessment shall include an analysis of the
effectiveness of potential corrective measures in meeting all of the requirements and objectives of
the remedy as described under (7) of this rule, addressing at least the following. ONE OF THE
objectives of the remedy described under (7) is that it "must [b]e protective of human health and the
environment." The comparable federal regulation is 40 CFR 258.56, which states at (c) that the
assessment must satisfy all requirements and objectives of the remedy in 40 CFR 258.57,
"addressing at least the following..." 40 CFR 258.57(d)(1) remedy requires remedies to be
protective of health & environment. The Department's ability to exercise discretion in the
proposed rule is narrower, with standards, than allowed in the existing rule and the comparable
federal regulation.
New Rule XLIII Selection of Remedy
(4)(g), concerning "any other factor determined by the department to be necessary to
protect human health or the environment," see discussion of 40 CFR 258.57(d)(1) in analysis of
New Rule XLII (1)(b) immediately above;
XLIV Implementation of Corrective Action
(1)(c)(vii)- The Department and a landfill owner would be required to consider, when
determining if interim measures are necessary, "other situations that may pose threats to human
health and the environment." This is identical to the comparable regulation in 40 CFR
258.58(a)(3)(vii), except for Department approval.
New Rule XLV Hydrogeological and Soils Report
(2)(g) requires a landfill to submit a hydrogeological and soils report that includes, for
each ground water monitoring well, "any other information determined by the department to be
necessary to protect human health or the environment." Existing ARM 17.50.705(1) concerns
the hydrogeological and soils report, and states that "[a]t a minimum, the scope of each report
will include the following components." The hydrogeologic and soils work plan is a
fundamental element of a site-specific ground water monitoring plan. Submittal and approval of
the hydrogeologic and soils work plan, as part of a ground water monitoring plan is required
under 75-10-207(4), MCA. Because this submittal and approval is required by state law, 75-10-
107, MCA, does not apply.
In addition, the federal regulations at 40 CFR 258.51(b) require that a multiunit ground
water monitoring network be as protective of human health and the environment as individual
Testimony of Norman I Mullen
Staff Attorney, Montana Department of Environmental Quality
Solid Waste Rules- Stringency Hearing
November 4, 2009
Page 9
monitoring systems, based on, among other things, the hydrogeological setting. This is quite
broad and encompasses other information that could be requested under (2)(g). Therefore, the
proposed rule is not more stringent than a comparable federal regulation.
New Rule XLIX Closure
(4) requires that a closure plan must contain "any other information determined by the
department to be necessary to protect human health or the environment". Similar requirements
in 40 CFR 258.60(c) state that a closure plan must contain, "at a minimum ..." Therefore, the
Department's ability to exercise discretion in the proposed rule is narrower, with standards, than
allowed in the comparable federal regulation.
(8) authorizes the Department to grant an extension of the one-year deadline for
beginning closure if the landfill demonstrates that the unit has capacity to receive additional
waste and that it has taken all steps necessary to protect human health and the environment; 40
CFR 258.60(f) uses identical language.
(9) has similar language to (8) for an extension to the 180-day deadline for completing
closure. The federal regulation is identical.
New Rule L Post-Closure
(1)(e) provides that post-closure care must consist of any other measure necessary to
protect human health or the environment. The comparable federal regulation, 40 CFR 258.61(a),
states that post-closure care must consist of "at least" the following. Therefore, the Department's
ability to exercise discretion in the proposed rule is narrower, with standards, than allowed in the
comparable federal regulation.
(2) would provide that the post-closure care period may be decreased or increased based
on a demonstration or determination of protection of health and environment. This is based on
the existing rule at ARM 17.50.531. The comparable regulation, 40 CFR 258.61(b), uses
identical language. Therefore, the proposed rule is not more stringent than the comparable
federal regulation.
(3) would provide that the post-closure plan must include "any other information
determined by the department to be necessary to protect human health or the environment" 40
CFR 258.61(c) p-c plan "includes, as a minimum, the following information". Therefore, the
Department's ability to exercise discretion in the proposed rule is narrower, with standards, than
allowed in the comparable federal regulation.
Testimony of Norman I Mullen
Staff Attorney, Montana Department of Environmental Quality
Solid Waste Rules- Stringency Hearing
November 4, 2009
Page 10
(3)(c) would allow the Department to approve certain disturbances to a landfill during the
post-closure care period if it approved a demonstration that the disturbance "will not increase the
potential threat to human health or the environment." This is identical to 40 CPR 258.61(c)(3).
.,• 1?'k??: ir?;ti?,1??,?. ii?????twrt?t'1??? ?ttf
tir:aai'?clawcie.:r:. G;:?c•^s ::-
I'.:y. Bo:r 2000 a Aelenu_ '1ST 4 .,._ -..
59620-0901 , y-a.atal ?-?4254 •++, Department of Environmental Qualit%
Testimony- in the. platter of Amended Notice Of Public Hearing Anti Fxtension Of
Comment Period On Proposed Amendment. Adoption, And Repeal of
Solid NVaste Program Flutes
For the rexrd, rn\ name is hickeyold Thompson. I'm, the Section Supervisor of the tit7lid
Waste Nlanagcnient Program with the Niontatta Department of L.nvironnaental Qualit\-
(l)cpartrnent) located in the. Metcalf Building in Helena, " lontana. 1 am presenting tesiirnony, for
the T)epartment's Solid \k'aste Prot;ratrt. 1 he Program would like. to offer te;stinaony° concemirig
the stringency anal\, sis o[certain proposed rule antcndtnents and adoptions ill "Subchapter 5"
rulemaking (NIAR.. Notice. No- 17-29,41,
1 hUrvc 17 N'C;arS of experience, in solid waste management %vith the. Department. My
educatloa includes a Bachelors degree in 1310-gLography and many }-ears of specialized training
ill solid Wrt.tite Management since being employed with the department. I3ascd. on my knn"vlccige.
experience. and education in solid wasic management, as well as %),,ith input from the
dep;artnacnt's Solid NVaste l'rc. grain staff of environmental scientists and engineers. I find the
enclosed stringency analysis to he accurate..
The Department recci-,°ed several cornrlients on the "Subchaptcr 5" ruletitaki.ng
concerning whether certain rule adoptions and amendments would make the state solid Nvaste
rules more stringent than comparable federal regulations or guidelines addressing the sarr7c
circumstances, and whetlrer they can he adopted or amended without the Department making the
ticritten fi ndings referenced in Title 75. Chapter 10. Para 107. NICJA. In response to the
o:trnments. the Department made the Nvrittc:n stringency Findings necessary to retrain m anly
roquirements that aro more stringent than comparable tcdera.i requirements including the
folio?sin??'
(1) in `ear Mule XV111(4)(c), concerning cuhmissiun of a remediation plan for an
uxceedance of the concentration limit for evplosi%e lases. In ttte w ritten finding. the
Department has prof ided anecdotal evidence that the submitted quad approval of a renaediration
plan i, necessary to ensure protection of human health and tile cnvironincilt.
(2) in New Oulu XXIV(1)(a), that a deed notation must be recrrrded b` the owner of
the land where a facility is located. '['he Department believes a deed natation as an operating
condition liar ncN? and existing landfills is necessary to protect and in.lbrm future owners of the
prop rty that the propert-, vas used as a landfill. In the %ti ittea finding, the Department has-
provided anecdotal evidence of problems with licensees tailing to record decd notations at
closure of landfills and then -v+.as forccd tta litigatc to require land oNkners to record notations;
(3) in Nl v Rule X147), concerning approval of a demonstration that a source other
than a Class 11 or Class 18' landfill unit caused the statisticalh significant change. The
Pepartlncnt's ruic requiring assestinaent Izwnitotink +hen there has been a statistically significant
1.nabeeem?nt UnW+?ai? PrinMpnt & (.umpaunci rti?tsiutt r'lennur, Pre+cntiun & ,\s??ltaha lai+isiu?r RemeJsala.n LtMtsi?a
tncrea?e o\er bacl.gruultd for contill IIIIla its in A pivridi.r' Ito 40 ( R Part, '?S. Is corT parablC U,
the tederaal regulations at 44) (.'YR 258.`?Ic,ii? i. Although LPA dues not r'egture revie%% aatacl
approval by the 1)epaartlnent ofan assessment monituring program. the Department lu.lie.ves such
revieW anc,f lpproNal is necessary- If a :icen;ee pan denTonstrate that a source other than a C'I&SS
11 ar (_ mss IV landfill 111111 catlScd the statistically significant change. the Implementation of an
anti-cs,tncnt morworint; program would r1ot he required. I herctore. thti: 1)epartlnMT hilies'iy that
is re" iew and appro-'al of a demonstration that a source other than ;l Class lI or C"1 ass IV unit
caused the stalimicalk significant increatse is necessary to ensure protection of"liumalt health and
the environment;
(4) in Nev., Rule X1..1(7)(b), concerning approval of a determination that a source
other than a Class .11 or Class IV landfill unit caused the contamination, or that the
statisticalh significant increase resulted from an error in sampling;, anah'sis, statistical
evaluation, or natural variation in ground water quality set as to allow the system to
continue assessment monitoring and avoid a corrective measures assessment. It'a Licensee
can diln0IIs1T-.1L that a source other than a Class 11 or Class IV landfill unit. caused the
statisllcalk' SigT1111cattt change, or the t\cCedance Was Cause by in error itT sampling- analysis,
titalti.sticail e?altiatioyi. or Ilaltural Variation in Lr()u.iid ,tatCr quality, the implementation ofa
0)rrectivc measures als.sessinent ?Nould not be required. 'flie.rcfOrc, the Depa.rtntent believes that
its rc% lc?% and appro\ al ol'suC.h a detenaunatiun is ntrcCSxars to etTYUrc prc)teCUUT1 of 11'1,11MU)
health and the en% irunment:
(5) in New Rule XV12)(e), that a Class 11 landfill for which some portion will not
receive Additional waste within 90 dais must place on that portion an intermediate cover of
at least one foot of approved cotter soil. The Department believes that this rule is ni_Ce%sary to
kc;vp birds and father, scavenger species out of`ihc % akste. and to protect waste frorn precipitation
that could rrt.ix avith it and form leachate. .Prior to the rc:qu.iretnent irnplenTCnttrlg t17L proposed
rule by Solid Waste Prognim policy in 1995. lxtrtiuns of ia?ndfills not slated to receive waste for
long periods became a source oflittcr u; shell as a source of food .lor birds and other scavenger
species. I he unused but not vet final] y-covered Ixtrtions of"landtills .verc otten. coverod with the
i,;lrc: min.itmuni of k.o? er soils (I.e. six IIIC:Ics i. -11-11C insult ic'iGrnt UTI)MIrlt fiat cover solids over the
?,,a !,tcs :fief little to p:-c? crit animals or h:rd.; U0111 getting inlet the ?.<t5te rtTa s. ("he lack Of
ti;.ltliciGrTt 0.41,CT° .;tail .ti;ct n.tirrlteci In precipitatiurt entering the %,?a tc-,s and generazinz: le.achate:
Mid
(h) in -Nev. Rule. XXIV, that a deed notation for a Class 11 landfill unit must be
recorded before the initial receipt of waste or within 60 days after the effective date of the
requirement, rather than at closure. The Department believes a deed notation as a license
condition tear nest ami existing landfills is necessa r-N to protc;:t and inform future o?%Ticrs of"the
proneriv that the propertc xNati used as a ;andfill, The [)epartnnent has experienced probtems with
hcenti4es fitilir;, to rect)rd clec d.ncltatictrrs at closure of landfills and has been forucd to litigate 10
require lalad a\\-nerS to record notations, This i,, wasteful ofthe Department's resources and
could lead to a person buy ing a former landfill property - c. ithoui being fully astiare than the laud
contains a lancitil;. it is simpler and %.tser to require an o%%ncr to rcc;urd a ruxatiOrl tithcn the
??ner has an uwentkc to do so. Then. the ohs rler v of ld he able to accept viastt and reccive
p,ivni 'Itt :Or JOIr1l `o M11% alter a ljota[Ioij has hcen reco-Jed
House Bill 521 (1995) codified at sections 75-10-107 and 75-10-405(2),
MCA, requires the Department of Environmental Quality (Department) make certain
written findings after a public hearing and public comment prior to adopting a rule
that is more stringent than a comparable federal standard or guideline.
The Department has received several comments concerning whether certain
rule adoptions and amendments would make the state solid waste rules more
stringent than comparable federal regulations or guidelines addressing the same
circumstances, and whether they can be adopted or amended without the
Department making the written findings referred to in 75-10-107. MCA. On August
13, 2009, the Department published an amended notice to provide notice of a
second hearing on November 4. 2009, to receive comments on stringency pursuant
to 75-10-107, MCA_ In the amended notice the Department identified the following
rule adoptions and amendments which must be analyzed for stringency pursuant to
75-10-107, MCA, as follows
111 requirements in the proposed amendments and new rules for an owner or
operator to make a submission to the Department and to obtain approval of that
submission:
(a) subsection ARM 17.50.509(3), concerning approval of operation and
maintenance (O & M) plan updates. An operation and maintenance plan and plan
updates are not addressed in the federal solid waste regulations (40 CFR parts 257
and 258) Therefore, the requirement to submit a plan update for approval does not
trigger the findings requirements of 75-10-107, MCA, because EPA has no
comparable regulations that address the same circumstances. Also. 75-10-204(1),
MCA, provides that the Department shall adopt rules for requirements for an
operation and maintenance plan that must be submitted with a license application.
The Department believes that it is reasonable and authorized under 75-10-204(1).
MCA to adopt ARM 17.50.509(.31, which requires an update of the plan for
significant changes in conditions or requirements. Because, as provided in the
statement of reasonable necessity in the proposal notice (MAR Notice No. 17-284)
for ARM 17 50.509. solid waste management: is not a static activity, and the
originally-approved a & M plan can become outdated and may require revision
when circumstances or requirements change at the facility. In five years much can
change, so it is reasonable to require the owner, operator, or licensee to review it at
least that frequently to determine if an update is necessary,"
Proposed new (4) would require an owner. operator, or licensee to update the
O & M plan for a solid waste management system within 45 days after the
Department has mailed written notice that the update is necessary to protect human
health or the environment The Department would be able to approve a longer
period in response to an extension request. This is necessary because
circumstances or requirements at a facility could change to the point that the
Department believes an updated plan is necessary to protect human health or the
environment before five years have elapsed.' Also, statute requires that "The
Department may require submission of a new application if the Department
determines that the plan of operation, the management of the solid waste system, or
the geological or ground water conditions have changed since the license was
initially approved." § 75-10-221(5). MCA. This implies that the Department may
require wjpdates to the operation and maintenance plan or ground water monitoring
plan.
1 04
I h; New Rule IV(1 r corvmerning a demonstration that airplanes will be
protected from birds within a lesser setback. In the Federal Register adoption notice
(56 FR 50997, October 9. 1991) for its municipal solid waste landfill regulations
found in 40 CFR Part 258, the EPA was unclear about which demonstrations
concerning locational criteria required state approval and which did not. For
example, for wetlands, the regulation language states that a landfill may not be
located in a wetland unless the owner or operator "can" snake a demonstration.
However, in its explanation of the regulation in the adoption notice, EPA stated that
the owner or operator must make a demonstration to the satisfaction of the director
of an approved state. See 56 FR 51045. Elsewhere in the locational criteria, EPA
states "like ail of the demonstrations in today's regulation, this one [setbacks from a
seismic impact zone] is self-implementing," See 56 FR 51046.
Because EPA is unclear, the Department has concluded that, except for the
demonstration for wetlands, it must err on the side of caution and assume that EPA
intended that each locational restriction was to be self implementing. However, this
does not apply to a demonstration to vary a restriction that. is part of a license
application Because the Department reviews all submittals required as part of a
license application to determine if the application complies with the solid waste laws
and rules, a demonstration that is required as part of license application will be
subject to Department review and approval. This is a duty imposed on the
Department by the Legislature under 75-10-221 and 224, MCA. A rule adopted to
implement a direct requirement of Montana state law is not subject to stringency
review under 75-10-107, MCA_ In addition, EPA requires in its 40 CFR Part 239
regulations for approval of state solid waste management programs that a state
have a permitting (or licensing) program that ensures compliance with the
requirements in 40 CFR Part 258- See 40 CFR 239.4 and 239.6. Because the
requirements of 40 CFR Part 258 include locational restrictions and demonstrations
to allow variances from them, where those restrictions and demonstrations are part
of a license application, there is no stringency issue with a requirement that a
demonstration be submitted to the Department for its review and approval.
Therefore. the findings requirements of 75-10-107. MCA, are not triggered for New
Rule NI 1 i
(c) New Rule V, concerning approval of a demonstration regarding
floodplains, Pursuant to the stringency analysis in (1)(b), the findings requirements
of 75-10-107. MCA, are not triggered for New Rule V:
(d) New Rule Vl. concerning a demonstration allowing a landfill unit in
wetlands As discussed in (1.)((b) above, EPA intended that the demonstration for
location of a unit in a wetlands had to be reviewed and approved by the state
director, See 56 FR 51045. 'Therefore, the requirement is not more stringent than
comparable federal regulations. In addition, because it is a demonstration required
in a license application. the stringency analysis in (1)(b) applies, and the findings
requirements of 75-10-107. MCA, are not triggered for New Rule VI:
(c I New Rule VII. concerning a demonstration for an alternative setback fns
location in a fault area. Pursuant to the stringency analysis in (1)(b), the findings
requirements of 75-10-107 MCA, are not triggered for New Rule VII
(f) New Rule VIII concerning a demonstration allowing location in a seismic
area Pursuant to the stringency analysis in (1)(b), the findings requirements of 75-
10-107. MCA. are not triggered for New Rule VIII
rg) New Rule IX, concerning a demonstration that the structural components
of a unit located in an unstable area will not be disrupted. The same analysis set
forth above in (1)(b) applies, and therefore the findings requirements of 75-10-107,
MCA, are not triggered for New Rule IV:
(h) New Rule XVII(4)(c), concerning submission of a remediation plan for an
exceedance of the concentration limit for explosive gases. If methane levels exceed
the prescribed maximum, human health is potentially jeopardized by risk of
explosion. Review by the Department, which has experience in reviewing methane
remediation plans around the state since 1996, makes it more likely that problems
with a remedration plan would be identified and corrected and that the public health
will be protected by reducing the risk of explosion. It is technologically achievable
for landfills to submit these plans to the Department for its review. Landfills where
methane gas concentrations have exceeded the lower explosive limit include those
in Missoula, Bozeman, Livingston and Kalispell, Helena and Billings-
The written finding required in 75-10-107(2)., MCA, necessary to retain the
requirement in New Rule XVII(4)(c) concerning submission of a remediation plan for
an exceedance of the concentration limit for explosive gases, must also include
information regarding the costs to the regulated community that are directly
attributable to the proposed requirement. Since 40 CFR 258.23(c)(3) already
requires the remediation plan to be placed in the operating record. the estimated
costs to the regulated community that are directly attributable to the proposed
requirement would just be the cost of mailing the plan (less than five dollars for a
facility) to the Department, Approximately 50 facilities would incur this expense;
6) New Rule XXII(1), concerning exclusion of bulk or noncontainerized
liquids, unless approved. The Department recognizes that this requirement is not
provided in 40 CFR 258.28(a). The Department believes it would be difficult to make
the necessary findings required under 75-10-107, MCA, to justify retaining this
requirement. Therefore, the Department has amended New Rule XXII(1),
(j) New Rule XXIV(1)(a), concerning Department review and approval of a
deed notation to be recorded by the owner of the land where a facility is located.
Because this is a requirement of a license application, and the Department is
required by 75-10-221 and 224, MCA., to review license applications to determine if
they comply with the solid waste laws and rules, the Department's approval of an
insurance policy is not subject to the stringency findings of 75-10-107, MCA. The
analysis of the substantive requirement of the recording of a deed notation before
the acceptance of waste or within 60 days after the effective date of the rule follows-
a deed notation as an operating condition for new and existing landfills is necessary
to protect and inform future owners of the property that the property was used as a
landfill. The Department has experienced problems with licensees failing to record
deed notations at closure of landfills and has been forced to litigate to require land
owners to record notations. Two such examples are the Norm Close and Kerry
Drew Class III landfills in Missoula County, In the Norm Close landfill case, the
purchaser claimed that it did not know that the property had not been closed, and
that it was unfair to require it to complete closure. This has been wasteful of the
Department's resources and has led and could lead to a person buying a former
landfill property without being fully aware that the land contains a landfill. It is
simpler and wiser to require an owner to record a notation when the owner has an
incentive to do so Then, the owner would be able to accept waste and receive
payment for doing so only after a notation has been recorded. If a person buys a
titrini'.L1-., . t .l1 111 `lio + t'als
landfili mat does not have a deed notation, and disturbs the cover or other landfill
systems because they were not aware that it had been used as a landfill- water from
precipitation could combine with the waste to form leachate and contaminate ground
water. Water combining with waste also increases the decomposition rate of the
waste and can increase methane production. and could cause to exceed the
explosive limit in certain locations. This could subject the public to the risk of being
hurt by an explosion. The recording of a deed notation before the acceptance of
waste at a landfill or within 60 days after the effective date of the rule will protect the
public from these potential harms.
There is no technological barrier, to Department review and approval of the
recording a deed notation.
Some commentors have stated that it is expensive to provide an exhibit to a
certificate of survey to show the waste boundary at a Class III landfill.. The
Department intends to respond by amending the rule to require that the entire
property may be subject to a deed notation and restriction, and that if the owner
wishes to shrink the notation to match the waste boundary., then the owner may do
that. That way, a prospective purchaser will be aware that the property is a landfill
but the owner or operator will not have to go to the expense to modify the extent of
the property covered by a notation until the landfill unit closes. when the extent could
be adjusted to match the waste boundary.
The written finding required in 75-10-107(2). MCA. necessary to retain the
requirement in New Rule XXIV(1)(a) concerning a deed notation to be recorded by
the owner of the land where a facility is located. must also include information
regarding the costs to the regulated community that are directly attributable to the
proposed requirement. The estimated costs to the regulated community for each of
50 facilities that are directly attributable to the proposed requirement would be $1040
- $2240 based on either (i) eight hours of consultant time at $1301hr to notate entire
lot or an additional (ii) eight hours of two-man survey crew time at S1501hr to notate
the licensed waste boundary:
(k) New Rule XXV(1), concerning Department approval of a policy of general
liability insurance. There is no comparable federal regulation or guideline
addressing the same circumstances. The Department believes it is important that a
iicensee demonstrate that it will have insurance coverage for bodily injury or property
damages to ensure the financial health of the facility. The statement of reasonable
necessity it, the proposal notice (MAR Notice No. 17-284) for ARM 17 50,508
provides that, "It is important that a licensee demonstrate that it will have insurance
coverage for bodily injury or property damages to ensure the financial health of the
facility. Solid waste management facilities can be dangerous places with trucks and
other heavy machinery in close proximity to small vehicles and people unloading
refuse. A claim made against a facility that has no or inadequate insurance could
jeopardize the financial stability of the facility and interfere with its ability to comply
with these rules " If the landfills financial stability was jeopardized, it might not be
able to conduct. Closure or post-;;iosure activities, and cover might not be applied. o,
the integrity of the cover could be harmed without ongoing inspection and
maintenance. This could lead to leachate fort-nation and contamination of ground
water Department review is necessary to determine if the insurance meets the
requirements of the rule Because this is a requirement of a license application. and
the Department is required by 75-10-221 and 224, MCA, to review license
applications to determine if trey comply with the solid waste 1ay°1s and rules, the
Departments approval of an insurance policy is not subject to the stringency findings
of 75-10-107. MCA.;
(11 New Rule XXVII(2)ta), concerning confining waste to areas where it can
effectively he managed by supervision, fencing, signs, or similar means approved by
the Department. The requirement to confine wastes to areas where it can be
effectively managed is a component of a facility's operation and maintenance plan-
T herefore. the requirement for the approval of these approaches to confining wastes
to manageable areas is included in the approval of an operation and maintenance
plan that is required under 75-10-204. MCA. Because the submittal and approval of
an operation and maintenance plan is required by state taw, 75-10-107. MCA, does
not apply:
(m) New Rule XXIX(1)(b), concerning the application at a Class IV landfill
unit of an approved cover at least every three months. EPA provides that for
protection from fires or disease vectors, the "periodic application of cover material'
may be required 40 CFR 257.3-8(b). '-Periodic application of cover material" is
defined as the 'application and compaction of soil or other suitable material over
disposed solid waste at the end of each operating day or at such frequencies and in
such a manner as to reduce the risk of fire and to impede disease vectors' access to
the waste.' 40 CFR 257.3-8(e)(6). Based on the experience of the Department's
solid waste section supervisor in managing the program and inspecting solid waste
landfills over 17 years, six inches of cover placed at least every three months is
necessary to reduce the risk of fire and to impair the disease vectors' access to the
waste. In at least two Class III units that have not placed at least 6 inches of cover
at least every three months, fires have occurred and large numbers of mosquitoes
have been observed. This requirement has been shown to be achievable because
it has been followed under existing rule and has been shown to be good
management practice for many years. There are no technological barriers to
meeting this requirement. Because this requirement is equivalent to the EPA's
regulation, there is no additional cost.
Therefore the Department believes this requirement for the application of an
approved cover is cornparabie to the federal requirement in 40 CFR 257.3-8_ and
the finding requirements of 75-10-107, MCA, are not triggered;
(n) New Rule XXXII(4), concerning approval of a demonstration that the
owner or operator meets the requirements for a small community exemption.
Montana law at §§ 75-10-212 and 221, MCA. requires each solid waste
management system. ineluarng a small community landfill unit, to be licensed. The
Department is required by § 75-10-224. MCA to review all submittals required as
part of a license application to determine if the application complies with the solid
waste laws and rules. The appropriate solid waste rules are applicable to a unit
Unless it qualifies for the small community exemption. Therefore, it is necessary for
the applicant for a unit that claims the exemption to demonstrate that the exemption
is applicable as part of its license application.. A rule adopted to implement a direct
requirement of Montana state law is not subject to stringency review Therefore, the
findings requirements of the stringency statute are not triggered;
(o) New Rule XXXIW 1), concerning approval of a design of a Class II or
Class IV landfill unit. Montana law, at § 75-10-204. MCA, requires the Department
to adopt rules governing -'{31 the procedures to be followed in the disposal,
treatment, o, transport of solid wastes, and (4) the suitability of the site from a public
health standpoint when hydrology. geology. and climatology are considered Tne
Departrient s license application rule, at 17,50 508. which was adopted pursuant to
this statute requires submission of a unit design as part of a license application,
the Department is required by statute to review all submittals required as part of a
license application to determine if the application complies with the solid waste laws
and rules A rule adopted to implement a direct requirement of Montana state law is
not subject to stringency review.
In addition, EPA's design regulation for an MSVVLF unit, at 40 CRF 258.401ar
requires the Department, as the state regulatory agency, to review for approval each
alternative landfill unit design. For a non-MSVVLF unit, EPA's regulation, at 40 CFR
257.3-4(a). requires a landfill not to pollute ground water drinking water source in
excess of an MCL for a contaminant listed in Appendix I of 40 CFR Part 257, which
is the same as Table I of New Rule XXXIII. Under this requirement the Department
must review an application for a Class IV landfill unit to determine if it is designed to
Meet that ground water protection standard.
For the reasons stated above, the findings requirements of the stringency
statute are not triggered for submission of a Class 11 or IV landfill unit design for
approval.
While the following is not related to the stringency analysis required in 75-10-
107. MCA. the Department believes it is necessary to inform the public at the
hearing on stringency that it intends to amend New Rule XXXIII(1) to remove a
requirement that a new Class II or IV landfill unit or lateral expansion meet
applicable ground water quality standards (GLrVQS) The Department is proposing to
remove that requirement because the reason for adopting the GWQS was not
discussed in the statement of reasonable necessity in the notice of public hearing
that proposed adoption of the rule. However, the Department believes that the
Montana Water Quality Act requires the use of GWQS, and intends to propose
adoption of the GVVQS at the uppermost aquifer as the appropriate design,
monitoring, and corrective action standards for all classes of landfill units in a future
rulet7iaking
(p) New Rule XXXIV(4), concerning Department approval of recirculation of
leachate at a Class II landfill unit. The EPA's liner design rule does not explicitly
address recirculation of leachate, However. its bulk liquids rule. 40 CFR
258 28(a)(2). does allow for leachate to be disposed of at a landfiii unit with a
c..omposile, liner and a leachate collection system. Because this is part of a unit
design, which must be submitted to the Department for review and approval as part
of a license application (see discussion above under New Rule XXXIII(1)), the
finding requirements of 75-10-107, MCA, are not triggered.-
(qr New Rule XXXIV(5) concerning construction quality control (CQC) ana
construction quality assurance (CQA) manuals for assuring construction in
accordance with Department-approved design plans. The Department recognizes
that the requirements for CQC and CQA manuals and the associated submission for
approval are not provided in 40 CFR 258, subpart D However, the use of CQC and
CQA Mdl-Wals is recommended by FPA in Quality Assurance rind Quality control for-
Waste Containment Facilities EPA/600/R-93/1$2. section t 1.1. The Department
believes that because EPA recommends the use of CQC and CQA manuals in the
above-listed guidance. the proposed requirement to have CQC and CQA manuals is
comparable to the federal guideline,
Recarding Department approval of the CQC and CQA manuals in New Rule
XXXIV(5 CQC and CQA r7lanuals are a necessary component Gf a design plan.
The design plan is required as part of a license application (see discussion above
under New Rule XXXIII(1)). Because the Department reviews all submittals required
as part of a license application to determine if the application complies with the solid
waste laws and rules, a submission that is required as part of license application will
be subject to Department review and approval. This is a duty imposed on the
Department by the Legislature under 75.10-221 and 224, MCA. A rule adopted to
irplement a direct requirement of Montana state law is not subject to stringency
review under 75-10-107. MCA In addition, EPA requires in its 40 CFR Part 239
regulations for approval of state solid waste management programs that a state
have a permitting (or licensing) program that ensures compliance with the
requirements in 40 CFR Part 258 See 40 CFR 2394 and 239.6_ Because the
requirements of 40 CFR Part 258 includes design plans that are part of a license
application there is no stringency issue. Therefore, the requirement to submit the
manuals for approval does not trigger the findings requirements of 75-10-107, MCA;
(r d New Rule.XXXIV(6).. concerning a final CQC and GQA report. The
Department recognizes that the requirements for COG and GQA reports and the
associated submission for approval are not provided in 40 C1=R 258, subpart D.
However, the requirement to have CQC and CQA reports is recommended by EPA
in Quality Assurance and Quality control for Waste Containment Facilities,
EPA/600/R-93/1$2. section 1.1 1 Thus. the submittal of final CQA/CQC: reports is a
standard "state of the practice" at MSW facilities and, to date, has been required for
all landfill design. The Department believes that because EPA recommends the use
of CQC and CQA report requirement in the above listed guidance, then the
proposed requirement to have final CQC and CQA reports is comparable to the
federal guideline. Failure to comply with the approved CQA/CQC plan has caused
non-conformance with design requirements at the Butte and Logan landfills. causing
expensive and inefficient repairs. A QA/QC program also provides a structure that
allows for efficient review and approval of significant deviations that are necessary
during construction. Consequently, the Department believes that an approved
QA/QC program is necessary to protect human health and the environment.
CQC plans and CQA reports are a necessary component of a design plan
(New Rule XXXIV(5)). 'The design plan is required as part of a license application..
Because the Department reviews all submittals required as part of a license
application to determine if the application complies with the solid waste laws and
rules, a si.ibmission that is required as part of license application will be subject to
Department review and approval. This is a duty imposed on the Department by the
Legislature under 75-10-221 and 224, MCA_ A rule adopted to implement a direct
requirement of Montana state law is not subject to stringency review under 75-10-
107. MCA.. In addition, EPA requires in its 40 CFR Part 239 regulations for approval
of state solid waste management programs that a state have a permitting (or
licensing) program that ensures compliance with the requirements in 40 CFR Part
258. See 40 CFR 239.4 and 239.6_ Because the requirements of 40 CFR Part 258
include design plans that are part of a license application. and because COG and
CQA repors are necessary components of a design plan that is subject to
Department approval as part of a license application, there is no stringency issue.
Therefore, the requirement to submit the final CQC and GQA reports for approval
does not trigger the findings requirements of 75-10-107. MCA.
Research conducted by the Solid Waste Association of North America
(SWANAi Applied Research Foundation Disposal Group indicated that long-term
StiiI 1, ?i1-Al
environmental risks from Subtitle D" landfills are reduced by CQCtCQA of the liners
and covers. As provided in the September 2009 edition of the MSW Management
Magazine at p_ 12. `Recent studies of Subtitle 'D' landfills have yielded important
findings about their design, construction and operation. These studies have found
that good design and appropriate CQC testing and CQA oversight during
construction are important to provide bottom-liner and final cover systems that
function
(s) New Rule XXXVIIlr4)(ai and (b) concerning a ground water monitoring
plan and plan updates. The requirement for submittal and approval of the ground
water monitoring plan is required by 75-10-207(4), MCA. Because this submittal and
approval is required by state law, 75-10-107. MCA, does not apply..A ground water
monitoring plan and plan updates are not addressed in the federal solid waste
regulations (40 CFR parts 257 and 258). Therefore, the requirement to submit a
plan update for approval does not trigger the findings requirements of 75-10-107
MCA, because EPA has no comparable regulations that address the same
circumstances.
(t) New Rule XXXVIII`6), the number. spacing, and depth of ground water
monitoring wells. The Department considers the number, spacing, and depth of
ground water monitoring wells as necessary components of a ground water
monitoring plan. Comparable components are set out in EPA's regulation for a
multiunit ground water monitoring system in 40 CFR 258.51(b) so the requirement is
riot more stringent than a comparable federal regulation. In addition, submittal and
approval of a ground water monitoring plan is required under 75-10-207, MCA.
Because a ground water monitoring plan is required by state law, the findings
requirements of 75-10-107. MCA, are not triggered,
(u) New Rule XXXIX(11, concerning a ground water sampling and analysis
plan Section 75-10-207(1).. MCA, requires ground water monitoring. Ground water
sampling and associated analysis fundamental aspects of the ground water
monitoring plan required by 75-10.207, MCA_ Without a sampling and analysis plan.
a ground water monitoring plan would be meaningless. The EPA, in 40 CFR 258.53,
requires sampling and analysis procedures in a ground water r-tionitoring program,
The ground water monitoring plan required in ARM 17.50.508 and New Ruie XXXVII
is the method used by the Department to implement the ground water monitoring
program required by EPA, and the elements of the sampling and analysis plan in the
rule are taken from the EPA regulation. Therefore, New Rule XXXIX(1) is not more
stringent than a comparable federal regulation. Because a ground water monitoring
plan is required by state law, and because a sampling and analysis prograrn is
required under the EPA regulations, 75-10-107. MCA, does not apply;
(v) New Rule XL(51(b), concerning approval of an assessment monitoring
program Section 75-10-207(4) MCA, requires the submittal of a ground water
monitoring plan for Department review and approval. Ground water sampling and
the associated analyses and determinations are all fundamental aspects of the
ground water monitoring required by 75-10-207(4), MCA. The assessment
monitoring program in New Rule XL(5)(b) contains the elements of a ground water
assessment monitoring plan Because Department review and approval of a ground
water monitoring plan is required by Montana law. the findings requirements of § 75-
'10-107 , %ICA. do not apply
In addition, the design and implementation of an assessment monitoring
program is required under the EPA regulations. EPA does not regWre review ano
approval by the Department of an assessment monitoring program. However, the
Department believes such review and approval is necessary. Several licensed
landfills are located adjacent to population centers where Department review of the
monitoring results and network has noted the exceedance over background, which
led to the initiation of assessment monitoring programs and the placement of
additional monitoring wells to define the nature and extent of the contaminant
plumes. Examples include the Missoula. Bozeman. Havre, Wolf Point. Kalispell,
Logan. Livingston, closed Sidney, closed City of Helena and closed Beaverhead
County landfills The Department's rule requiring assessment monitoring when there
has been a statistically significant increase over background for contaminants in
Appendix I to 40 CFR Part 258., is comparable to the federal regulations at 40 CFR
258.54tc)(2), and is not more stringent than the comparable federal regulation.
Therefore. 75-10-107. MCA, does not apply;
(w) New Rule XL17), concerning approval of a demonstration that a source
other than a Class II or Class IV landfill unit caused the statistically significant
change The Department's rule requiring assessment monitoring when there has
been a statistically significant increase over background for contaminants in
Appendix I to 40 CFR Part 258, is comparable to the federal regulations at 40 CFR
258.54tc1(2). Although EPA does not require review and approval by the
Department of an assessment monitoring program, the Department believes such
review and approval is necessary- An owner or operator has an incentive to
demonstrate that another source caused the contamination, because it ?s costly to
undertake assessment monitoring. The Department's review is necessary to provide
an unbiased evaluation by a party that does not have a financial stake in the
determination. If the owner determined that another source caused the
contamination. and that determination was not correct, contamination could go
untreated and harm ground water quality. The Department's review could protect
ground water quality by determining in a specific case that the other source did not
cause the contamination, and by requiring assessment monitoring and eventually
requiring corrective action that could remediate contamination, No landfill has made
this determination to date, There is no barrier to achieving this requirement because
the owner or operator is already required by 40 CFR 258.54(c)(3) to place the
demonstration into the operating record.
The written finding required in 75-10-107(2). MCA, necessary to retain the
requirement to New Rule XL( 7), concerning approval of a demonstration that a
source other than a Class II or Class IV landfill unit caused the statistically significant
change, must also include information regarding the costs to the regulated
community that are directly attributable to the proposed requirement. Since 40 CFR
258.54(c)(3) already requires the demonstration to be placed in the operating record.
the estimated costs to the regulated community that are directly attributable to the
proposed requirement would lust be the cost of mailing the plan (less than five
dollars for a facility) to the Department. Up to 50 facilities could be subject to this
requirement, although only eight are currently in assessment monitoring-,
1x) New Rule XLI(5), concerning Department approval of a return to
detection monitoring if an owner or operator determines that Appendix II constituents
are at or below background, and (6), concerning Department approval of a
determination by an owner or operator that Appendix II constituents are above
background but below ground water protection standards- the determination allows
the owner or operator to continue assessment monitoring rather than move toward
.\;1,I,; \tiiti- 1 1 11 -7 . tn. , l .1Le
assessment of corrective action under (7). The Department recognizes that these
requirements are not provided in 40 CFR 258.55(e) and (f). The Department
believes it is necessary for it to review these determinations to ensure that the facility
has made a reasonable assessment of the monitoring data- The Department
believes that an unbiased review by its technical staff who are educated and trained
in ground water analysis is necessary to ensure that the correct interpretation is
made to protect the public from being subjected to ground water contamination that
is not further analyzed or remediated. The Department has found problems when a
landfill reported a significant decrease in pH, which could lead to the leaching of
heavy metals from the waste, which could pose a threat to private drinking water
supply wells. The Department placed the landfill on assessment monitoring, This
could result in the protection of public health by monitoring to ensure that the
downgradient water users are not affected by contamination from the landfill, and to
trigger corrective action to correct a problem if it is indicated. There is no barrier to
achieving this requirement because the determination is currently required to be
submitted to the state director by 40 CFR 258.55(e)..
The written finding required in 75-10-107(2), MCA- necessary to retain the
requirement in New Rule XLI(5), concerning Department approval of a return to
detection monitoring and (6) concerning Department approval of a determination by
an owner or operator that Appendix II constituents are above background but below
ground water protection standards, must also include information regarding the costs
to the regulated community that are directly attributable to the proposed
requirement. Since 40 CFR 258.29(a)(5) and 258.55(8) already require these
demonstrations to be placed in the operating record, the estimated costs to the
regulated community that are directly attributable to the proposed requirement would
just be the cost of mailing the plan (less than five dollars for a facility) to the
Department- Up to 50 facilities could be subject to this requirement, although only
eight are currently in assessment monitoring:
(y) New Rule XLI(7)(b) concerning approval of a determination that a source
other than a Class II or Class IV landfill unit caused the contamination, or that the
statistically significant increase resulted from an error in sampling. analysis,
statistical evaluation, or natural variation in ground water quality so as to allow the
system to continue assessment monitoring and avoid a corrective measures
assessment. If a licensee can demonstrate that a source other than a Class 11 or
Class IV landfill unit caused the statistically significant change, or the exceedance
was cause by an error in sampling, analysis, statistical evaluation, or natural
variation in ground water quality, the implementation of a corrective measures
assessment would not be required. No landfill has made a determination under this
rule. The reasons for the Department's review and approval of this determination
are the same as offered for (w) and (x) above. There is no barrier to achieving this
requirement because the determination is currently required under 40 CFR
258.29(a)(5). and an owner or operator could make the demonstration by analyzing,
using existing technology the source of the contamination.
The written finding required in 75-10-107(2), MCA. necessary to retain the
requirement in New Rule XLI(7), concerning approval of a demonstration that a
source other than a Class II or Glass IV landfill unit caused the statistically significant
change must also include information regarding the costs to the regulated
community that are directly attributable to the proposed requirement. Since 40 CFR
258.29i.a)(5) already requires the demonstration to be placed in the operating
record. the estimated costs to the regulated community that are directly attributable
to the proposed requirement would just be the cost of mailing the plan (less than five
dollars for a facility) to the Department:
(z) New Rule XLII(1}(b). concerning Department review and approval of an
assessment of corrective measures. The reasons for the Department's review and
approval of assessment of corrective measures are the same as offered for (w)
through (y) above. The Department has reviewed at least eight assessments and
commented on at least three corrective measures assessments by owners or
operators of landfill units and has provided guidance and requested that additional
measures to be implemented, or requested that measures identified in the original
corrective measures assessment be implemented. This has resulted in improved
conditions at these facilities by helping to correct releases of contaminants to ground
water that could affect public drinking water and therefore public health. There is no
barrier to having the Department approve an assessment, because the assessment
is currently required to be placed in the operating record by under to 40 CFR 258.56
and 258.29(a)(5), and no additional technological barriers are imposed by
Department review and approval.
The written finding required in 75-10-107(2), MCA, necessary to retain the
requirement in New Rule XI-11(1)(b), concerning Department review and approval of
an assessment of corrective measures, must also include information regarding the,
costs to the regulated community that are directly attributable to the proposed
requirement Since 40 CFR 258.56 and 258.29(x)(5) already require the
demonstration to be placed in the operating record, the estimated costs to the
regulated community that are directly attributable to the proposed requirement would
just be the cost of mailing the plan (less than five dollars for a facility) to the
Department;
(aa) New Rule XI-111(1)(b). concerning Department approval of a selected
remedy report addressing ground water contamination. This requirement is not
provided in 40 CFR 258.57(x), The reasons for Department review and approval of
a selected remedy report are the same as discussed in (w through z) above. In
landfills where the Department's review of the corrective measures assessment
indicated that additional measures were necessary (see z above). additional
remedies were selected and implemented. 1 "his resulted in greater protection from
contamination of ground water that could be used as a drinking water source, thus
better protecting public health. There is no barrier to having the Department
approve a selected remedy report, because the report is currently required to be
placed in the operating record by 40 CFR 258.57(a), and there are no technological
barriers to Department review and approval,
The written finding required in 75-10-107(2), MCA, necessary to retain the
requirement in New Rule XI-111(7)(b), concerning Department approval of a selected
remedy report addressing ground water contamination. must also include
information regarding the costs to the regulated community that are directly
attributable to the proposed requirement- Since 40 CFR 258.57(a) already requires
the demonstration to be placed in the operating record, the estimated costs to the
regulated community that are directly attributable to the proposed requirement would
just be the cost of mailing the plan (less than five dollars for a facility) to the
Department:
(ab) New Rule XLIV(1)(a)_ concerning approval of a corrective action ground
water monitoring program. Ground water monitoring is required under 75-10-207,
MCA. DepaIment review and approval of a ground water monitoring plan is
required En 5 75 10-207(4). MCA. So, approval of a corrective action ground water
monitorirg program required by New Rule XLIV would also be required by 75-10--
207(4), M.A. Because the corrective action ground water rriorntorrng plan is
required by state law, 75-10-107, MCA, does not apply,
(ac) New Rule XLIV(1)(c), concerning interim measures to correct ground
water contamination, The Department believes that its review and approval of
interim measures is necessary to protect public health, for the same reasons stated
in {w) through (aa) above- The Department's review of interim measures at two
landfills found that the interim measures implemented by the landfill did not
adequately address or acriieve the objective of decreasing the extent of the
contamination by VOCs of ground water that could affect public drinking water
sources. The Departments review resulted in implementation of additional
measures that enhanced the effectiveness of the interim measures to protect public
health by reducing the contamination caused by the landfills leachate to
contaminate drinking water. There is no barrier to having the Department approve
interim measures, because the owner or operator is currently required to consider
and implement interim measures, and to placed there in the operating record by 40
CFR 258 58(x)(3), and 258 29(a)(5). There are no technological barriers to
Department review and approval
The written finding required in 75-10-107(2). MCA, necessary to retain the
requiremer>,t in New Rule XLIV(1)(c). concerning interim measures to correct ground
water contamination, must also include information regarding the costs to the
regulated community that are directly attributable to the proposed requirement.
Since 40 CFR 258 58(a)(3) and 258 29(a)(5) already require the demonstration to be
placed in the operating record, the estimated costs to the regulated community that
are directly attributable to the proposed requirement would just be the cost of mailing
the plan less than five dollars for a facility) to the Department,
(ad) New Rule XLIV(3)(,a) and (d), concerning Department, approval of a
determination of impracticability of achieving ground water remediation goals- No
landfill has submitted such a determination. The Department's review and approval
of interim measures is necessary to protect public health, for the same reasons
stated in (w) through (aa). and (ac), above. There is no barrier, to having the
Department approve a determination of impracticability, because the owner or
operator is currently required to make such a determination if it wishes to avoid
continued implementation of a remedy, and such a determination and alternatives
must be placed in the operating record under 258 58(c)(4) and 258.29(a)(5), There
are no other technological barriers to Department review and approval.
The written finding required in 75-10-107(2). MCA, necessary to retain the
requirement in New Rule XL.IV(3)(a) and (d), concerning Department approval of a
determination of impracticability of achieving ground water remediation goals, must
also include information regarding the costs to the regulated community that are
directly attributable to the proposed requirement Since 40 CFR 258.58(c)(4) and
258.29(a)(5) already require the demonstration to be placed in the operating record,
the estimated costs to the regulated community that are directly attributable to the
proposed requirement would just be the cost of mailing the plan (less than five
dollars fo a facility) to the Department,
iae, New Rule Xt M7) and (8), concerning Department approval of a
cert+ficat3or that a corrective action remedy has been completed The Department
recogn 7es that these requirements are not provided in 40 C[-R 258.58{fi and (gt
The Departments review and approval of remedy completion is necessary to protect
public health, for the same reasons stated in (w) through (aa), (ac), and (ad), above.
If the remedy has not accomplished its purposes in reducing ground water
contamination, it is necessary for corrective action to continue to reduce exposure of
the public to contaminants from landfill leachate that. could move to a ground water
aquifer that could be or is used for drinking water. The Department's review of
completion of the remedy is necessary to continue the remedy in effect until it has
accomplished its purposes In addition, upon certification of remedy completion, an
owner or operator is released from financial assurance for corrective action, This is
a critical decision, because without money, a remedy cannot be implemented- To
protect public health by assuring that there is money available to complete a
corrective action remedy, which in turn protects public health by reducing ground
water, contamination that may be used as a drinking water source. it is necessary far
the Department to review the certification that the remedy is complete. No owner o,
operator has yet certified, or, requested the Department to determine, that a
corrective action remedy is complete. There is no barrier to having the Department
approve a certification of remedy completion, because the owner or operator is
currently required by 40 CFR 258.58 to make such a certification and place it in the
operating record if it wishes to terminate a corrective measure. There are no other
technological barriers to Department review and approval;
The written finding required in 75-10-107(2). MCA, necessary to retain the
requirement in New Rule XLIV(r) and (8), concerning Department approval of a
certification that a corrective action remedy has been completed, must also include
information regarding the costs to the regulated community that are directly
attributable to the proposed requirement. Since 40 CFR 258.58(f) already requires
the demonstration to be placed in the operating record, the estimated costs to the
regulates r:ommunity that are directly attributable to the proposed requirement would
just. be the cost of mailing the plan (less than five dollars for a facility) to the
Department,
(af) New Rule XLV(1)(b), concerning Department review and approval of a
hydrogeaiogic and soils work plan for ground water monitoring- Ground water
monitoring is required under 75-10-207. MCA The hydrogeologic and soils work
plan is a fundamental element of a site-specific ground water monitoring plan.
Submittai and approval of the hydrogeologic and soils work plan. as part of a ground
water monitoring plan is required under 7510-207(4), MCA. Because this scabmittai
and approval is required by state law., 75-10-107. MCA, does not apply;
(ag) New Rule XLIX(4), (5) and (10), concerning a closure plan for a Class II
or Class IV landfill unit The closure plan is required as part of a license application.
Because the Department reviews all submittals required as part of a license
application to determine if the application complies with the solid waste laws and
rules. a submittal that is required as part of license application will be subject to
Department review and approval. This is a duty imposed on the Department by the
Legislature under 75-10-221 and 224, MCA. A rule adopted to implement a direct
requirement of Montana state law is not subject to stringency review under 75-10-
107, MCA, In addition, EPA requires in its 40 CFR Part 239 regulations for approval
of state solid waste management programs that a state have a permitting (or
licensing, program that ensures compliance with the requirements in 40 CFR Part
258 See 40 CFR 239 4 and 239.6. Because the requirements of 40 CFR Part 258
include closure plans which are part of a license application, there is no stringency
issue In addition, a closure plan is a component of unit design, because it specifies
the type of cover and vegetation that will be used to help isolate water from the
waste in the unit. Without the cover proposed in the unit design and closure plan. a
unit is unlikely to perform as required to protect ground water quality at the
uppermost aquifer (for a Class II unit) or in a drinking water source aquifer (for- Class
IV unit). The requirement for approval of a design was addressee in the discussion
of New Rules XXXIII(1), above. Therefore, the requirement to submit the closure plan
for approval does not trigger the findings requirements of 75-10-107 MCA;
rah) New Rule L(3), (5) through (7), concerning Department review and
approval of a post-closure plan, The post-closure plan is required as part of a
license application. Because the Department reviews all submittals required as part
of a license application to determine if the application complies with the solid waste
laws and rules, a demonstration that is required as part of license application will be
subject to Department review and approval. This is a duty imposed on the
Department by the Legislature under 75-10-221 and 224, MCA. A rule adopted to
implement a direct requirement of Montana state law is not subject to stringency
review under 75-10-107, MCA. In addition. EPA requires in its 40 CFR Part 239
regulations for approval of state solid waste management programs that a state
have a permitting (or licensing) program that ensures compliance with the
requirements in 40 CFR Part 25$. See 40 CFR 239.4 and 239.0. Because the
requirements of 40 CFR Par, 258 includes post-closure plans which are part of a
license application, there is no stringency issue. In addition, a post-closure plan is a
component of unit design. because it ensures that the cover, vegetation, and other
landfill systems that will be used to help isolate water from the waste in the unit will
be protected and maintained so that they continue to function as designed. If the
cover and vegetation, and other landfill systems proposed in the unit design and
closure plan are not protected and maintained, a unit is unlikely to perform as
required to protect ground water quality at the uppermost aquifer (for a Class II unit)
or in a drinking water source aquifer (for Class IV unit).. The requirement for
approval of a design was addressed in the discussion of New Rule XXXIII(1), above.
Therefore, the requirement to submit the post-closure plan for approval does not
trigger the findings requirements of 75-10-107. MCA, and
(ail New Rule L I(3). concerning closure and post-closure plans for a Class lil
landfill unit There is no comparable federal regulation or guideline addressing the
same circumstances. so the stringency findings of 75-10-107., MCA. do not apply. In
addition closure and post-closure plans and requirements are necessary to protect
the public from potential asks at landfills such as sharp objects, breeding grounds for
disease carrying organisms such as rats. skunks, birds, insects. and other disease
vectors. The placement and maintenance of cover can protect the public from these
risks Regulated facilities have been submitting closure and post-closure plans for
many years under the existing rules, and there are not other technological barriers to
achieving this requirement, so it is achievable under current techi-Vogy.
The written finding required in 75-10-107(2). MCA, necessary to retain the
requirement in New Rule 1-I(3). concerning closure and post-closure plans for a
Class III landfill unit, must also include information regarding the costs to the
regulated community that are directly attributable to the proposea requirement (he
estimated costs to the regulated community for earn of 33 facilities that are directiy
attributable to the proposed requirement would he approximately 32 500 based on
consultant costs of $130ihr
)2a requirements in proposed New Rule XXXIV concerning design
requirements for a Class II landfill unit, as follows..
(a) provide a demonstration of adequate leachate flow and slope stability.
The Department recognizes that this standard is not provided in 40 CFR 258.40.
However, this standard is recommended by EPA in Municipal Solid Waste Disposal
Facility Criteria Technical Manual, Subpart D Design Criteria, F.P.A 530-R•.93-017
page 152, and Sanitary Landfill Des gn and Operation, SW-65ts, page 9-35.
Because EPA recommends the two percent minimum slope requirement in the
above-listed guidance. the proposed standard is not more stringent than a
comparable federal guideline. Therefore, the finding requirements of 75-10-107.
MCA, are not triggered:
(b) a maximum side slope on the liner less than or equal to 33 percent. The
Department recognizes that this standard is not provided in 40 CFR 258, subpart D.
The Department believes it would be difficult to make the necessary findings
required under 75-10-107, MCA, to justify retaining this standard. Therefore the
Department has amended New Rule XXXIV(3pb):
(c) elements of an alternative liner. The Department has decided to remove
this requirement in response to a comment received on the proposed notice (MAR
Notice No. 17-284): and
(d) CQC and CQA requirements for design and construction of a landfill unit-
The Department recognizes that this requirement is not provided in 40 CFR 2.58,
subpart D. However, this requirement is recommended by EPA in Quality
Assurance and Quality control for Waste Containment Facilities, EPA/600/R-931182
page iv. Research conducted by the Solid Waste Association of North America
(SWANA) Applied Research Foundation Disposal Group indicated that long-term
environmental risks from Subtitle 'D' landfills are reduced by CQCICQA of the liners
and covers. As provided in the September 2009 edition of the MSW Management
Magazine at p_ 12, "Recent studies of Subtitle D" landfills have yielded important
findings about their design, construction and operation These studies have found
that good design and appropriate CQC testing and CQA oversight during
construction are important to provide bottom-liner and final cover systems that
function
Because EPA recommends the use of CQC and CQA manuals in the above-
listed guidance, the proposed requirement is not more stringent than a comparable
federal guideline. Also, CQC and CQA manuals are a component of a design plan.
See New Rule XXXIV(5) and stringency discussion, above, for that rule and for New
Rule XXXIV(6), The design plan is required as part of a license application, See
discussion of New Rule XXXIII(1), above- Licensing is a duty imposed on the
Department by the Legislature under 75-10-221 and 224, MCA. A rule adopted to
implernent a direct requirement of Montana state law is not subject to stringency
review Under 75-10-107 MCA. In addition, EPA requires in its 40 CFR Part 239
regulations for approval of state solid waste management progranis that a state
have a permitting (or licensing) program that ensures compliance with the
requirements in 40 CFR Part 258, See 40 CFR 239.4 and 239.6. Because the
requirements of 40 CFR Part 258 includes design, and the Department is required
by statute to review design as part of a license application. there is no stringency
issue Therefore, the requirement to have CQC and CQA manuals does not trigger
the findings requirements of 75-10-107. MCA
i3 requirements for a C ass 11 landfill unit that are not contained in 40 CJR
Part 258, as follows:
(a) insurance requirements proposed in ARM 17.50.508(2) and New Rule
X.XV 'Tnere is no comparable requirement addressing the same circumstances in a
federal regulation or guideline, so the findings requirements of 75--10-107, MCA, do
not apply The reasons for the requirement were set forth in (1)(k) above,
(br in New Rule XV(2)(c). the proposed requirement for a Class 11 landfill for
which some portion will not receive additional waste within 90 days that it must place
on that portion an intermediate cover of at least one foot of approved cover soil.
There is no comparable federal regulation or guideline addressing the same
circumstances, so the findings requirements of 75-10-107, MCA, do not apply- This
standard is not provided in 40 CFR 258,21 However, this rule is necessary to keep
birds and other scavenger species out of the waste, and to protect waste from
precipitation that could mix with it and form leachate. Prior to the requirement
implementing the proposed rule by Solid Waste Program policy in 1995, portions of
landfills not slated to receive waste for long periods became a source of litter as well
as a source of food for birds and other scavenger species- The unused but not yet
finally-covered portions of landfills were often covered with the bare minimum of
cover soils o.e. six inches). The insufficient amount of cover solids over the wastes
did little to prevent animals or birds from getting into the waste mass. The lack of
sufficient cover soil also resulted in precipitation entering the wastes and generating
leachate.
An example of this was noted at the Powell County landfill several years ago
when a portion of the waste unit was filled to the maximum capacity and had to sit
idle until the other cells in the unit were filled to the same elevation to effect a
uniform closure of the unit- During a routine facility inspection, waste from the idle
portion of the facility was scattered around the facility and birds and other small
animals were seen in the waste mass. The six inch daily cover left on the cell was
eroded and did not present a deterrent to precipitation or animals from entering the
waste. The solution was long-term intermediate cover over the unused portion of the,
landfill. This policy has been in place since 1995 and has worked well to prevent
these problems.
The written finding regLiired in 75-10-107ti2j. MCA, necessary to retain the
requirement in New Rule XV(2)(c) that a Class II landfill for which some portion will
not receive, additional waste within 90 days must place on that portion an
intermediate cover of at least one foot of approved cover soil (six inches more than
the federal daily cover requirement), must also include information regarding the
costs to the regulated community that are directly attributable to the proposed
requirement. The estimated costs to the regulated community for each of 50
facilities that are directly attributable to the proposed requirement would be
52018/acre based on the S2 50/cubic yard cost of the placement of 807 cubic yards
of additional six-inch soil cover per acre of open area The on-site soil would already
be available for placement after excavation to build each landfill unit and provide
daily cover as designed. The site-specific magnitude of these additional costs would
vary depending on the open area chosen by each facility operator;
(c) updates to operating and maintenance plans in proposed new ARM
17.50 509(4'). An operation ana maintenance plan and plan updates are not
addressee in the federal solid waste regulations 140 CFR parts 257 and 258).
The,ef ;re ;ne requirement to submit a plan update for approval crow not trigger trie
findings requirements of 75-10-1037, MCA, because EPA has no comparable
regulations that address the same circumstances. Also_ 75-10-20411), MCA,
provides that the Department shall adopt rules for requirements for an operation and
maintenance plan that must be submitted with a license application. The
Department believes that it is reasonable and authorized under 75-1; -204(1), MCA,
to adopt ARM 17.50.509(41, which requires an update of the plan for significant
changes in conditions or requirements. In addition. 75-10-221. MCA, requires a new
license application if there has been a significant change in the plan of operations for
a facility. The only way for the Department to become aware if there have been
significant changes to a plan of operations is to require owners or operators to
submit updates. As noted in the statement of reasonable necessity for the proposed
amendment to ARM 17.50.509(4) (MAR Notice No- 17-284), solid waste is not a
static activity, and many aspects of a facility's operations can change over five
years: and
(d) in New Rule XLIV(1)(d), the proposed requirement to submit to the
Department by April 1 an annual corrective measures progress report. This
requirement is not provided in 40 CFR 258.58. The Department proposes to delete
the requirement, but will make a final decision based on the evidence in the record.
(4) requirements for a Class II landfill unit that does not accept municipal
solid waste. to the extent that they are more stringent than requirements in 40 Part
257. This includes all proposed amendments and adoptions that address a Class iI
landfill unit because the definition in ARM 17.50503 of Group Ii waste, which can
be disposed of only at a Class II landfill unit, is broader than the definition of
municipal solid waste in 40 CFR 258.2. The definition of a Class II landfill
(considering the wastes it can receive) is broader than the definition of MSWLF in 40
CFR 258.2 The Department may adopt the following approach in the adoption
notice for these rules: If an owner or licensee wishes not to follow all requirements of
a MSW landfill unit for non-MSW waste. because it will not contain waste that poses
the same threat to human health or the environment that is posed by putrescible
MSW it may demonstrate to the Department in its design. plan of operations and
maintenance, and closure and post-closure plans that it will not contaminate the
underground drinking water source in excess of applicable ground water quality
standards The owner or operator then must also demonstrate that MSW will not be
disposed of in that unit, and must plan to screen and otherwise exclude
inappropriate waste from being disposed of in that unit;
t.5) requirements in New Rules XXXIII and XXXIV that a Class IV landfill unit
have a liner and other prescriptive design elements. The Department intends to
delete requirements for prescriptive design elements for a Class IV landfill unit
Instead, the. Department intends to substitute the requirement that a Class IV landfill
unit be designed not to exceed an MCL listed in Table I of New Rule XXXIII, which is
the same as Appendix I of 40 CFR Part 257- This would make a Class IV landfill
subject to the same requirements as EPA imposes on a comparable class of landfill,
and so it is not more stringent than a comparable federal regulation.
t6i the requirement in New Rule XXIV that a deed notat:on for a Class II
landfui unit must be recorded before the initial receipt of waste or within 60 days after
the effective date of the requirement, rather than at closure. The reasons for this
requirement were set forth in +,1)(j) above:
?'71 in New Rule VIII locational restrictions for a Class II landfill unit that are
more stringent than those in 40 CFR fart 258 including of "landfill cover" and "gas
Y
control system" in a "containment system" that must be aesigned to resist the
maximum horizontal acceleration in a seismic impact zone. The Department has
decided to remove these requirements in response to a comment received at the
public hearing for MAR Notice No 17-284:
(8) locational restrictions for a Class III or Class IV landfill unit that are more
stringent than 40 CFR Part 257, subpart A and B. regulations, respectively. This
includes restrictions concerning
(ai locating a Class III landfill unit in wetlands (New Rule XI(1)(h)i_ This
requirement is not provided in 40 CFR 251' or 258. The Department proposes to
delete the requirement, but will make a final decision based on the evidence in the
record
(h) locating a Class IV landfill unit in fault areas (New Rule VII). There are
additional fault area location requirements in New Rule VII for Class IV landfills that
are not provided in 40 CFR 257_ The Department proposes to delete the
requirement, but will make a final decision based on the evidence in the record
(c) locating a Class IV landfill unit in seismic areas (New Rule Vill). There
are additional seismic area location requirements in New Rule Vill for Class IV
landfills that are not provided in 40 CFR 257. The Department proposes to delete
the requirement, but will make a final decision based on the evidence in the record
and
(d) locating a Class IV landfill unit in unstable areas (New Rule IX); There
are additional unstable area location requirements in New Rule IX for Class IV
landfills that are not provided in 40 CFR 257, The Department proposes to delete
the requirement, but will make a final decision based on the evidence in the record
(9) operational requirements for a Class III or Class IV landfill unit that are
not required in 40 CFR Part 257, as follows:
(a) liability insurance requirements in proposed ARM 17,50.508(2) and New
Rule XXV There is no comparable federal regulation or guideline addressing the
same circumstances, so the findings requirements of 75-10-107 _ MCA, are not
applicable The reasons for this requirement were set forth in (1)(k), above:
(b) requirements concerning updates to operating and maintenance plans in
proposed new ARM 17,50-509(4 ) An operation and maintenance plan and plan
updates are not addressed in the federal solid waste regulations (40 CFR parts 257
and 258) Therefore, the requirement to submit a plan update for approval does not
tugger the findings requirements of 75-10-107. MCA, because EPA nas no
comparable regulations that address the same circumstances. Also., 75-10-204(1),
MCA. provides that the Department shall adopt rules for requirements for an
operation and maintenance plan that must be submitted with a license application.
The Department believes that it is reasonable and authorized under 75-10-204(1),
MCA, to adopt ARM 17.50.509(4) which requires an update of the plan for significant
changes in conditions or requirements. The statement of reasonable necessity in
the proposal notice (MAR Notice No_ 17-284) for ARM 17.50 509 provides that solid
waste management is not a static activity This is necessary because solid waste
management is not a static activity. and the originally-approved O & M plan can
become outdated and may require revision when circumstances or requirements
change at the facility. In five years much can change, so it is reasonable to require
the ownee. operator. or licensee to review it at least that frequently to determine if an
update is necessary':
ici requirements concerning deed nctatiors in New Rule XXVIII{1)(f) for a
?Ir n? .i,`-? 1•?.:l?.?i?-) 1 ilk };u ?, L,`i,,, lti
Class III landfill unit and jr-, New Rule XXIX(1)te? for a Class IV landfill Unit. There is
no cor;oarable federal regulation or guideline addressing the same circumstances.
so the findings requirements of 75-10-107. MCA. are not applicable- The reasons
for this requirement were set forth in (1)0), above; and
(d) bulk liquids restrictions in New Rule XXVIII(1)(c) for a Class III landfill unit
and New Rule XXIX(21(h) for a Class IV landfill unit. There is no comparable federal
regulation or guideline addressing the same circumstances, so the findings
requirements of 75-10-107, NICA" are not applicable The proposed requirement is
consistent with EPA's discussion of one of the purposes of cover being to reduce
infiltration of rainwater and to increase runoff and decrease leachate formation 43
FR 4950 (2/6178). A Class III landfill unit will not have a liner, leachate collection or
removal system, or a ground water monitoring network or plan, and it is not
appropriate to dispose of liquid waste in such unit, when the liquid waste could move
unimpeded to ground water, causing contamination that would not be detected- In
addition" although the wastes disposed of in a Class III unit are relatively inert, the
addition of bulk liquids to those wastes could result in the leaching of tannin and
lignins from wood waste, which could result in odor and taste problems in drinking
water- Water in wood waste could also result in accelerated decomposition and
settling, which could harm the cover and render it ineffective to protect the public
from sharp objects or habitat for disease vectors.
For Class IV landfills. which can accept painted wood waste. drywall, and
other construction waste. the conditions created by bulk liquids could result in the
same harms lust described for Class III units plus the environment created by the
presence of liquids can create leachate that can contaminate a ground water
drinking water source in excess of the applicable ground water quality standard.
The exclusion of bulk liquids from Class III and IV landfills is necessary to protect.
Public health because it will prevent the harms described above.
I his requirement has been show to be achievable because it has been followed
under existing rule and has been shown to be good management practice for the
many years. There are no technological barriers to meeting this requirement;
(10) operational requirements for a Class III landfill unit, as follows:
(a) in New Rule XXVIII(1)(b), the placement of six inches of cover at least
every three months- EPA provides that, for protection from fires or disease vectors
the ' periodic application of cover material' may be required. 40 CFR" 257.3-8(b)
'Periodic application of cover matenal" is defined as the 'application and compaction
of soil or other suitable material over disposed solid waste at the end of each
operating day or at such frequencies and in such a manner as to reduce the risk of
fire and to impede disease vectors' access to the waste." 40 CFR 257.3-8(e)(6),
Fused on the experience of the Department's solid waste section :supervisor in
managing the program and inspecting sold waste landfills over 17 years, six inches
of cover placed at least every three months is necessary to reduce the risk of fire
and to impair the disease vectors access to the waste. In at least two Class III units
that have not placed at least 6 inches of cover at least every three months, fires
have occurred and large numbers of mosquitoes have been observed- This
requirement has been shown to be achievable because it has been followed under
existing rule and has been shown to be good management pract ce for many years
There are no technological barriers to meeting this requirement. Because this
requirement is equivalent to the FPA's regulation. there is no additional cost.
Therefore" the Department believes this requirement for the application of an
0
approveo cover is comparable to the federal requirement in 40 CFR 257 3-8. and
the finding requirements of °5-10-107, MCA, are not triggered.
The estimated costs to the regulated community for each of 33 facilities that
are directly attributable to the proposed requirement would be $2018/acre based on
the $2.50.,cubic yard cost of the placement of 807 cubic yards of additional six-inch
soil cover per acre of open area, There would be four applications of cover per year
for a total cost of $8,072/acre. and
(b) in New Rule XXVIII(d)(ii), concerning access These access
requirements do riot trigger the findings requirements of 75-10-107, MCA, because
EPA has no comparable regulations that address the same circumstances;
(,1 1 ; operational requirements for a Class IV landfill unit, as follows
(a) in New Rule XXIX(1)ia). concerning control for aesthetics. EPA mentions
aesthetics in its rulemaking notices, concerning cover, for example., at 43 FR 4950
(February E. 1978). but the discussion of aesthetics is related to litter, odor, or air
emissions. Because the rules provide for adequate regulation of these matters, the
Department is amending New Rule XXIX(1)(a) to eliminate the regulation of
aesthetics,
(b;) in New Rule XXIX(1)(c). concerning the exclusion of liquids, and other
materials that may be conditionally exempt small quantity generator (CESQG)
wastes that may be disposed of at a 40 CFR Part 257, subpart B, landfill unit,
Exclusion of bulk. liquids has been addressed in (9)(d). above Concerning the
acceptance of containerized liquids at a Class IV landfill unit there is no comparable
federal regulation addressing the same circumstances- Therefore. it is not
necessary to make findings under 75-10-107. MCA;
(c) in New Rule XXIX(2)(a), concerning waste screening requirements.
There is no comparable federal regulation addressing the same circumstances
Therefore. it s not necessary to make findings under 75-10-107. MCA.
All hazardous wastes are prohibited from disposal at Class IV solid waste
management systems, and a waste screening program must be implemented to
ensure protection of human health and the environment from the release of
hazardous contaminants to ground water that could be used as a drinking water
source If hazardous wastes were not screened from a Class IV unit, the public
could be exposed to contamination that is harmfu! to hurnan health. The
requirement is achievable because all solid waste management Systems currently
screen as part of their plans of operation. and there are no technological barriers to
comply with the screening requirement, and
(d) in New Rule XXIXf 111d) concerning financial assurance requirements-
There is no comparable federal requirement for financial assurance for a Class IV
unit, and the findings requirements of 75-10-107. MCA, do not apply. Financial
assurance ensures that money is available to complete closure and post-closure
care at a landfill. If this money was riot available. closure might not be completed,
and post-closure care might not be conducted, and increased leachate could form
and threaten a ground water drinking source. The requirement could prevent this
from occui-rang. The requirement is achievable because Class IV units have been
providing financial assurance for many years, and there is no technological barrier to
comp?iance'
(12 1 in New Rule LI, concerning closure and post-closure requirements for a
Class III landfill unit There are no comparable federal requirements for closure or
post-clos:jre care for a Class III unit (-herefore, the closure and post-closure
1', IA. ,.,„t' I' lit
requirements do not trigger the findings requirements of 75-10-107, MCA,
(13) in New Rules XLIX and L, concerning closure and post-closure
requirements for a Class IV landfill unit. There are no comparable federal
requirements for closure or post-closure care for a Class IV unit. Therefore, the
closure and post-closure requirements do not trigger the findings requirements of
75-10-1 07, MCA. Also, closure and post-closure plans are required as part of a
license application. They are part of the design required in New Rules XXXIII and
XXXIV to ensure that the waste in a unit will not contaminate ground water, If the
planned cover and vegetation are not properly installed and maintained, water from
precipitation can enter the waste and form leachate, which can then migrate to a
ground water drinking water source.
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