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Montana Administrative Register Notice 17-304 No. 7   04/15/2010    
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BEFORE THE BOARD OF ENVIRONMENTAL REVIEW

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 17.38.201A, 17.38.203, 17.38.206, 17.38.216, 17.38.234, and 17.38.239 pertaining to incorporation by reference, maximum inorganic chemical contaminant levels, maximum radiological contaminant, chemical and radiological quality samples, testing and sampling records and reporting requirements and public notification for community and noncommunity supplies

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

(PUBLIC WATER AND SEWAGE SYSTEM REQUIREMENTS)

 

            TO:  All Concerned Persons

 

            1.  On May 11, 2010, at 1:30 p.m., the Board of Environmental Review will hold a public hearing in Room 111, Metcalf Building, 1520 East Sixth Avenue, Helena, Montana, to consider the proposed amendment of the above-stated rules.  In addition, the department will hold an informal question/answer session at 1:00 p.m., at the same address, to answer questions regarding those proposed amendments.

 

            2.  The board will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice.  If you require an accommodation, contact Elois Johnson, Paralegal, no later than 5:00 p.m., May 3, 2010, to advise us of the nature of the accommodation that you need.  Please contact Elois Johnson at Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-2630; fax (406) 444-4386; or e-mail ejohnson@mt.gov.

 

            3.  The rules proposed to be amended provide as follows, stricken matter interlined, new matter underlined:

 

            17.38.201A  INCORPORATION BY REFERENCE--PUBLICATION DATES AND AVAILABILITY OF REFERENCED DOCUMENTS  (1)  Unless expressly provided otherwise, in this subchapter where the board has adopted and incorporated by reference a federal regulation, the reference is to the July 1, 2007 2009, edition of the Code of Federal Regulations (CFR).

            (2) through (4) remain the same.

 

            AUTH:  75-6-103, MCA

            IMP:  75-6-103, MCA

 

            REASON:  The proposed amendment to ARM 17.38.201A(1) updates the incorporation by reference rule to adopt the newest edition of the Code of Federal Regulations (CFR).  As a condition of primacy, the department may not have rules that are less stringent than comparable federal requirements.  The proposed amendment is necessary to conform the state rules to current federal requirements.

            Changes from the 2007 to the 2009 editions of the CFR are not extensive.  One substantive change addresses alternative testing methods.  For each regulated contaminant, EPA specifies in rule an approved testing method.  In order to expedite the ability of regulated systems to utilize new methods, EPA adopted Appendix A to Subpart C of Part 141: Alternative Testing Methods Approved for Analyses Under the Safe Drinking Water Act.  The 2009 edition of the CFR adds approximately 25 new or modified methods that regulated systems may use to conduct contaminant analysis.

            The 2009 edition of the CFR also includes new requirements for aircraft drinking water.  Because EPA has not given the state primacy to enforce these requirements, they are not incorporated in this rulemaking.

            The remainder of the changes in the 2009 edition of the CFR affect the formatting of the rules and tables and are not substantive.

 

            17.38.203  MAXIMUM INORGANIC CHEMICAL CONTAMINANT LEVELS

            (1)  The board adopts and incorporates by reference:

            (a) through (c) remain the same.

            (d)  40 CFR 141.80(c), as modified by 72 Fed. Reg. 57,782 (Oct. 10, 2007), which sets forth the action levels for lead and copper.

 

            AUTH:  75-6-103, MCA

            IMP:  75-6-103, MCA

 

            REASON:  The proposed amendment would remove an unnecessary reference to the Federal Register.  The Federal Register was referenced in order to incorporate modifications to the federal rules that were final but not yet published in the CFR.  The 2009 edition of the CFR contains those modifications, so the reference to the Federal Register is no longer necessary.

 

            17.38.206  MAXIMUM RADIOLOGICAL CONTAMINANT  (1)  The board hereby adopts and incorporates by reference 40 CFR 141.15, 141.16, and 141.66(b), (c), (d), (e), and (f), which set forth maximum contaminant levels for radiological contaminants.

 

            AUTH:  75-6-103, MCA

            IMP:  75-6-103, MCA

 

            REASON:  The proposed amendment would remove a reference to two federal rule sections that no longer exist.  The proposed amendment does not have any substantive effect, and is necessary to eliminate incorrect references from the state rules.

 

            17.38.216  CHEMICAL AND RADIOLOGICAL QUALITY SAMPLES

            (1) through (2) remain the same.

            (3)  The board adopts and incorporates by reference the following monitoring and analytical requirements:

            (a) through (j) remain the same.

            (k)  40 CFR 141.80, as modified by 72 Fed. Reg. 57,782 (Oct. 10, 2007), which sets forth general requirements for the control of lead and copper;

            (l)  40 CFR 141.86, as modified by 72 Fed. Reg. 57,782 (Oct. 10, 2007), which sets forth sampling and analytical method requirements for lead and copper;

            (m)  40 CFR 141.87, as modified by 72 Fed. Reg. 57,782 (Oct. 10, 2007), which sets forth sampling requirements for water quality parameters;

            (n)  40 CFR 141.88, as modified by 72 Fed. Reg. 57,782 (Oct. 10, 2007), which sets forth sampling requirements for lead and copper in source water;

            (o)  40 CFR 141.89, as modified by 72 Fed. Reg. 57,782 (Oct. 10, 2007), which sets forth analytical method requirements for lead, copper, and water quality parameters;

            (p) through (5) remain the same.

 

            AUTH:  75-6-103, MCA

            IMP:  75-6-103, MCA

 

            REASON:  See the Reason statement for the amendment to ARM 17.38.203.

 

          17.38.234  TESTING AND SAMPLING RECORDS AND REPORTING REQUIREMENTS  (1) through (5) remain the same.

            (6)  The board adopts and incorporates by reference the following:

            (a) through (c) remain the same.

            (d)  40 CFR 141.75, which sets forth reporting requirements for public water supplies that use surface water or GWUDISW, except for the following changes that, for the purposes of this subchapter:

            (i)  "5 NTU" means 5.0 nephelometric turbidity units for the purposes of this subchapter; and

            (ii)  "not detected" with respect to residual chlorine concentration means less than 0.20 by the DPD method, or 0.10 by the amperometric titration method for the purposes of this subchapter.;

            (e) remains the same.

            (f)  40 CFR 141.90 and 141.91, as modified by 72 Fed. Reg. 57,782 (Oct. 10, 2007), which set forth reporting and recordkeeping requirements for lead and copper;

            (g) through (9) remain the same.

 

            AUTH:  75-6-103, MCA

            IMP:  75-6-103, MCA

 

            REASON:  The proposed amendment to ARM 17.38.234(6)(d) would delete the numeric value associated with the term "not detected."  The board has already made this change to the substantive provisions of ARM 17.38.208 and 17.38.225.  This amendment is necessary to make the reporting requirements in this rule consistent with the substantive provisions, as well as to conform the state rules to comparable federal requirements.  The proposed amendment to ARM 17.38.234(6)(f) would remove an unnecessary reference to the Federal Register.  See the Reason statement for the amendment to ARM 17.38.203.

 

            17.38.239  PUBLIC NOTIFICATION FOR COMMUNITY AND NONCOMMUNITY SUPPLIES  (1) and (2) remain the same.

            (3)  The board adopts and incorporates by reference 40 CFR Part 141.85, as modified by 72 Fed. Reg. 57,782 (Oct. 10, 2007), which sets forth the public education and supplemental monitoring requirements for exceedances of the lead action level.

 

            AUTH:  75-6-103, MCA

            IMP:  75-6-103, MCA

 

            REASON:  The proposed amendment would remove an unnecessary reference to the Federal Register.  See the Reason statement for the amendment to ARM 17.38.203.

 

            4.  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 5:00 p.m., May 13, 2010.  To be guaranteed consideration, mailed comments must be postmarked on or before that date.

 

            5.  Katherine Orr, attorney for the board, or another attorney for the Agency Legal Services Bureau, has been designated to preside over and conduct the hearing.

 

            6.  The board 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, e-mail, 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 supply; 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.  Notices will be sent by e-mail unless a mailing preference is noted in the request.  Such written request may be mailed or delivered to Elois Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Ave., P.O. Box 200901, Helena, Montana 59620-0901, faxed to the office at (406) 444-4386, e-mailed to Elois Johnson at ejohnson@mt.gov, or may be made by completing a request form at any rules hearing held by the board.

 

            7.  The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

Reviewed by:                                     BOARD OF ENVIRONMENTAL REVIEW

 

 

 

/s/ James M. Madden                         BY:  /s/ Joseph W. Russell                                  

JAMES M. MADDEN                                  JOSEPH W. RUSSELL, M.P.H.,

Rule Reviewer                                              Chairman

 

            Certified to the Secretary of State, April 5, 2010.

 

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