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| Montana Administrative Register Notice 17-320 | No. 8 04/28/2011 | |
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BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY OF THE STATE OF
TO: All Concerned Persons 1. On May 18, 2011, at 10:00 a.m., the Department of Environmental Quality will hold a public hearing in Room 35, 2. The department 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, please contact Elois Johnson, Paralegal, no later than 5:00 p.m., May 9, 2011, to advise us of the nature of the accommodation that you need. Please contact Elois Johnson at Department of Environmental Quality, 3. The proposed new rules provide as follows: NEW RULE I APPLICABILITY (1) The rules in this subchapter apply to a person who submits electronic documents to the department, or to the U.S. Environmental Protection Agency (EPA), pursuant to a specific rule of the board or department or pursuant to a department permit or license condition that allows submission of electronic documents in lieu of paper documents and that requires conformance with this subchapter. (2) The rules in this subchapter do not apply to a person who submits a document via: (a) facsimile transmission; or (b) magnetic or optical media such as a diskette, compact disc, digital video disc, or tape. AUTH: 30-18-118, MCA IMP: 30-18-117, MCA NEW RULE II DEFINITIONS (1) For the purposes of this subchapter, the following definitions apply: (a) "Electronic record" means any electronic record, as defined in 30-18-102, MCA, that is submitted to the department or to EPA, pursuant to this subchapter. (b) "Electronic record receiving system" means the information processing system, including the apparatus, procedures, software, records, and documentation, established and used by the department or EPA to receive electronic records submitted pursuant to this subchapter. (c) "Electronic signature" has the meaning given in 30-18-102, MCA. (d) "Electronic signature device" means a code, such as a password, or other mechanism that is used to create electronic signatures. The code or mechanism must be unique to the individual person creating the signature at the time the signature is created, and that person must be uniquely entitled to use it. (e) "Electronic subscriber agreement" means a written agreement prepared by the department and signed by an individual person with respect to submittal of electronic records to the department, requiring the individual to: (i) protect any account security information from compromise; (ii) promptly report to the department any evidence discovered that account security information has been compromised; (iii) be held as legally bound, obligated, or responsible by the submittal and content of electronic records as by the submittal and content of paper documents for which the electronic records are substituted; and (iv) for electronic records submitted by the person in lieu of paper documents on which a signature is required: (A) protect the person's electronic signature device from compromise; (B) promptly report to the department any evidence discovered that the person's electronic signature device has been compromised; and (C) be held as legally bound, obligated, or responsible by the electronic signature created as by a handwritten signature. (f) "Handwritten signature" means the scripted name or legal mark of an individual, handwritten by that individual, with the present intention to authenticate a writing in a permanent form. (g) "Information" has the meaning given in 30-18-102, MCA. (h) "Information processing system" has the meaning given in 30-18-102, MCA. (i) "Record" has the meaning given in 30-18-102, MCA. (j) "Signatory" means an individual who is authorized to sign, and who signs, a record submitted to the department's or EPA's electronic record receiving system, pursuant to an electronic subscriber agreement. (k) "Valid electronic signature" means an electronic signature on an electronic record that has been created with an electronic signature device that the identified signatory is uniquely entitled to use for signing that record, when the device has not been compromised and the signatory is an individual person who is authorized to sign the record by virtue of legal status or relationship to the entity on whose behalf the signature is executed. AUTH: 30-18-118, MCA IMP: 30-18-102, 30-18-117, MCA NEW RULE III USE OF ELECTRONIC RECORD RECEIVING SYSTEM (1) If the board or department has adopted a rule, or, if the department has issued a permit or license that includes a provision or condition allowing submission of an electronic record pursuant to this subchapter in lieu of submission of a paper document, a person who submits an electronic record pursuant to the rule, permit, or license shall submit the record to the department's electronic record receiving system that is appropriate for the particular record, or an authorized EPA electronic record receiving system, such as EPA's NetDMR system, that meets the requirements of 40 CFR Part 3, EPA's Cross-Media Electronic Reporting Regulation, and that is appropriate for the particular record. (2) All electronic records submitted pursuant to this subchapter must bear a valid electronic signature of a signatory if the signatory would be required to sign the paper document for which the electronic record is substituted. (3) A person submitting an electronic record pursuant to this subchapter is legally bound, obligated, or responsible by the submittal and content of the record to the same extent as by the submittal and content of the paper document for which the electronic record is substituted.
AUTH: 30-18-118, MCA IMP: 30-18-117, MCA
NEW RULE IV ELECTRONIC SUBSCRIBER AGREEMENT (1) Before submitting an electronic record pursuant to a specific rule of the board or department or a department permit or license condition that allows submission of electronic records in lieu of paper documents and that requires conformance with this subchapter, a person shall first execute a written electronic subscriber agreement on a form provided by the department and submit the original signed paper agreement by U.S. Mail or hand delivery to the department staff member designated in the rule, permit, or license. (2) The agreement form may be obtained from the department or downloaded and printed from the department's web site and must include the following agreements by each person who will submit electronic records: (a) to protect the person's account security information and any required electronic signature device from compromise and from use by anyone other than that person; (b) to contact the department staff member designated in the rule, permit, or license as soon as possible, but no later than 24 hours, after suspecting or determining that the person's account security information or any required electronic signature device has become lost, stolen, or otherwise compromised; (c) to review the contents of all electronic submissions prior to submission; (d) to be held as legally bound, obligated, or responsible by the submittal and content of electronic records as by the submittal and content of the paper documents for which the electronic records are substituted; (e) for a person submitting an electronic record for which a signature is required, to be obligated and legally bound by use of an electronic signature in the same manner as with a handwritten signature; (f) to contact the department staff member designated in the rule, permit, or license within five business days after submitting an electronic record pursuant to this subchapter if the person submitting the record does not receive an electronic notification identifying the record received, the signatory or other person submitting the record, and the date and time of receipt; (g) if the person represents any person or entity other than himself or herself as an individual, to notify the department staff member designated in the rule, permit, or license if the person ceases to represent the other person or entity, as soon as this change in relationship occurs; and (h) to retain a copy of the electronic subscriber agreement as long as the person is a signatory, or otherwise is responsible, for electronic submissions to the department or EPA pursuant to this subchapter. (3) The identity and authority of each person submitting an electronic subscriber agreement must be verified by the department. After the department has completed the verification, the department shall notify the person electronically, forward account security information, as applicable, and issue an electronic signature device to the person, if the person will be submitting records for which a signature is required. AUTH: 30-18-118, MCA IMP: 30-18-117, MCA
NEW RULE V VALID ELECTRONIC SIGNATURE (1) When a person uses an electronic signature device to create the person's electronic signature, the code or mechanism must be unique to that person at the time the signature is created. (2) An authorized signatory may not allow another person to use the electronic signature device unique to his or her electronic signature. (3) A signatory shall protect his or her electronic signature device from use by any other person and shall report to the department staff member designated in the rule, permit, or license, within one business day of discovery, any evidence that the security of the device has been compromised.
AUTH: 30-18-118, MCA IMP: 30-18-117, MCA
NEW RULE VI EFFECT OF ELECTRONIC SIGNATURE (1) The presence of an electronic signature on an electronic record submitted pursuant to this subchapter establishes that the signatory intended to sign the electronic record and submit it to fulfill the purpose of the record. (2) When an electronic record submitted pursuant to this subchapter bears an electronic signature, the electronic signature obligates and legally binds the person to the same extent as the signatory's handwritten signature on a paper document submitted to satisfy the same requirement.
AUTH: 30-18-118, MCA IMP: 30-18-108, 30-18-117, MCA
NEW RULE VII ENFORCEMENT (1) If a person submitting an electronic record pursuant to this subchapter fails to comply with a requirement of this subchapter or a requirement of an electronic subscriber agreement, the person is subject to the same penalties or other remedies available for failure to submit the record. (2) Nothing in this subchapter is intended to limit the use of an electronic record, copy of an electronic record, or other information derived from an electronic record as evidence in an enforcement proceeding or other proceeding.
AUTH: 30-18-118, MCA IMP: 30-18-117, MCA REASON: New Rules I through VII would provide general procedures for submission of electronic records. The department is proposing these rules pursuant to the Uniform Electronic Transactions Act (UETA), codified at 30-18-101, et seq., MCA. Section 30-18-117(1), MCA, states, in relevant part, that: ". . . each governmental agency shall determine whether, and the extent to which, it will send and accept electronic records and electronic signatures to and from other persons and otherwise create, generate, communicate, store, process, use, and rely upon electronic records and electronic signatures." Section 30-18-118(2), MCA, states, in relevant part, that: "Any state agency may adopt rules to implement this part." Receipt of electronic records can increase the timeliness of reporting by simplifying and expediting the reporting process, can reduce the administrative burden of extracting data from paper reports, and can reduce the costs of reporting, recordkeeping, and compliance monitoring for both the regulated community and the department. Electronic documents also facilitate quicker data retrieval, improved accuracy and analyses of data, quicker responses to compliance issues, and reduction of the environmental impacts related to paper documents. Adoption of rules is necessary to provide uniform, secure procedures for receiving electronic documents and ensuring the authenticity and integrity of submissions. The proposed rules also are intended to meet the requirements of the Cross Media Electronic Reporting Rule (CROMERR), promulgated by the U.S. Environmental Protection Agency (EPA) with an effective date of January 11, 2006, and published at 70 Fed. Reg. 59848 (October 13, 2005). In order for a state administering an EPA-authorized federal program to accept electronic reports in lieu of required paper reports, CROMERR requires the state to enact statutes or adopt rules meeting the requirements of CROMERR, certify to EPA that the state has the authority to meet the requirements of CROMERR, submit an application to EPA for approval, and receive EPA approval. 40 CFR 3.1000(b)(1)(i). EPA's requirements are intended to ensure that electronic documents are authentic and as legally binding and admissible in enforcement actions as their paper counterparts. The proposed rules are intended to meet EPA's requirements for acceptance of electronic reports. The department is proposing these particular rules because they would be consistent with both UETA and CROMERR requirements. The proposed rules are based on rules adopted by the Oklahoma Department of Environmental Quality that were approved by EPA on October 7, 2008, as meeting CROMERR requirements. 73 Fed. Reg. 58587 (October 7, 2008). New Rule I would describe the applicability of the proposed new rules. This rule is necessary to clarify that the proposed new rules apply only to certain types of electronic records and only to electronic records submitted pursuant to a specific rule of the Board of Environmental Review (board) or department or pursuant to a department permit or license condition that allows submission of electronic records in lieu of paper documents and that requires conformance with the new rules. The proposed new rules would not require or allow electronic submissions. The proposed new rules would establish general procedures that could be incorporated by the board or the department into specific rules, or if rule amendments were not necessary, into permit or license conditions that allow electronic submissions if done in conformance with the presently proposed rules. Other submissions of electronic records, allowed by the board or the department, would not be affected by these proposed new rules. New Rule II would provide definitions for certain terms used in the proposed new rules. The new rule would include definitions for certain terms used in the rules that are not defined in UETA. The new rule also would include definitions of a few terms used in the rules that are defined in UETA. These definitions are necessary for completeness so that a reader does not need to refer to the statutes in order to understand the meaning of the rules. New Rule III(1) would require a person to submit an electronic record to either the department's electronic record receiving system or an authorized EPA electronic record receiving system, such as EPA's Network Discharge Monitoring Report (NetDMR) system, if appropriate, when submitting an electronic record pursuant to a board or department rule or department permit or license condition that allows submission of an electronic record pursuant to the new rules in lieu of submission of a paper document. The department anticipates that certain electronic records required under EPA-authorized programs will be submitted directly to EPA in order to avoid unnecessary duplication or unnecessary forwarding of electronic records to EPA by the department. New Rule III(2) would require a valid electronic signature on electronic records submitted pursuant to the proposed new rules if a signature would be required on the paper document for which the electronic record is substituted. Electronic signatures are necessary on such documents because state rules and EPA regulations require signatures on certain documents, and electronic signatures are necessary to verify the authenticity of, and retain the ability to take any necessary enforcement action based on, electronic records submitted in lieu of those paper documents. New Rule IV would require a person to complete, and submit to the department, an electronic subscriber agreement before submitting an electronic record pursuant to the new rules. The rule would specify additional electronic signature requirements for persons who will be submitting electronic documents in lieu of paper documents for which a signature is required. An electronic subscriber agreement is necessary to ensure that electronic records submitted to the department or EPA, pursuant to the proposed new rules, are authorized and authentic and to ensure that the department or EPA retain the ability to take enforcement action, based on an electronic record, when appropriate. Where applicable, agreement to conditions concerning protection of the security of an electronic signature device is necessary to ensure that a person using the electronic record receiving system is familiar with the requirements for protecting an electronic signature device from use by other persons and is aware that an electronic signature has the same binding effect as a handwritten signature on a paper document. New Rule V would provide the substantive requirements applicable to use of electronic signature devices and protection of the security of such devices. As discussed above, state rules and EPA regulations require signatures on certain documents, and electronic signatures are necessary on electronic documents filed in lieu of such paper documents in order to verify authenticity of, and take any appropriate enforcement action based on, electronic records submitted in lieu of those paper documents. Use, and protection of security, of electronic signature devices is necessary to ensure that electronic signatures are authentic. New Rule VI would give an electronic signature the same binding effect as a handwritten signature on a paper document for which the electronic record is substituted. In order for the department or EPA to accept an electronic record in lieu of a paper document that must be signed, it is necessary for an electronic signature to have the same binding effect as a handwritten signature on the paper document. Section 30-18-102(9), MCA, defining "electronic signature," states that an electronic signature shows intent to sign the record. However, 30-18-108(2), MCA, states that the effect of an electronic signature is determined from the context and surrounding circumstances. New Rule VI is necessary to clarify the binding nature of use of an electronic signature, within the context and circumstances of the proposed new rules. New Rule VII(1) would state that, if a person submitting an electronic record pursuant to the new rules fails to comply with a requirement of the rules or a requirement of an electronic subscriber agreement, the person is subject to the same penalties or other remedies available for failure to submit the record. New Rule VII(2) would state that the new rules are not intended to limit the use of an electronic record, copy of an electronic record, or other information derived from an electronic record as evidence in an enforcement proceeding or other proceeding. These provisions are necessary to ensure that use of electronic records does not adversely affect the ability of the department or EPA to take any appropriate enforcement action based on an electronic record or a person's failure to comply with the new rules. The department's intent is that, in a future rulemaking, the department, or the board, for rules under its jurisdiction, will propose to amend certain specific program rules to require conformance with these new rules when electronically submitting certain specified documents to the department or EPA, or the department or board will propose to list, in the new rules, those documents that may be submitted electronically if submitted in conformance with the new rules. 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 May 26, 2011. To be guaranteed consideration, mailed comments must be postmarked on or before that date. 5. David Rusoff, attorney, has been designated to preside over and conduct the hearing. 6. 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. 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 (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. 7. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor was contacted by letter dated December 16, 2010. Reviewed by: DEPARTMENT OF ENVIRONMENTAL QUALITY /s/ David Rusoff BY: /s/ Richard H. Opper DAVID RUSOFF RICHARD H. OPPER, Director Rule Reviewer Certified to the Secretary of State, April 18, 2011.
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