BEFORE THE BOARD OF ENVIRONMENTAL REVIEW
OF THE STATE OF MONTANA
In the matter of the amendment of ARM 17.8.102 and 17.8.103 pertaining to incorporation by reference--publication dates and incorporation by reference and availability of referenced documents
NOTICE OF PROPOSED AMENDMENT
NO PUBLIC HEARING CONTEMPLATED
TO: All Concerned Persons
1. On September 30, 2016, the Board of Environmental Review proposes to amend the above-stated rules.
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 Denise Hartman, Administrative Rules Coordinator, no later than 5:00 p.m., July 29, 2016, to advise us of the nature of the accommodation that you need. Please contact Denise Hartman at Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-2630; fax (406) 444-4386; or e-mail firstname.lastname@example.org.
3. The rules proposed to be amended provide as follows, stricken matter interlined, new matter underlined:
17.8.102 INCORPORATION BY REFERENCE--PUBLICATION DATES
(1) In this chapter where the board has:
(a) adopted a federal regulation by reference, the reference is to the July 1,
2014 2015, edition of the Code of Federal Regulations (CFR), as it is published on the web site of the U.S. Government Printing Office at http://www.gpo.gov/fdsys/ browse/collectionCfr.action?selectedYearFrom=2014&go=Go https://www.gpo.gov/fdsys/browse/collectionCfr.action?selectedYearFrom=2015&go=Go;
(b) adopted a section of the United States Code (USC) by reference, the reference is to the
2013 2014 edition of the USC as it is published on the web site of the U.S. Government Printing Office at http://www.gpo.gov/fdsys/browse/ collectionUScode.action?selectedYearFrom=2013&go=Go https://www.gpo.gov/fdsys/browse/collectionUScode.action?selectedYearFrom=2014&go=Go;
(c) adopted a rule of the state of Montana from another chapter of the Administrative Rules of Montana (ARM), the reference is to the rule in effect on September 30,
(2) through (2)(b) remain the same.
AUTH: 75-2-111, MCA
IMP: Title 75, chapter 2, MCA
REASON: See reason statement below.
17.8.103 INCORPORATION BY REFERENCE AND AVAILABILITY OF REFERENCED DOCUMENTS (1) through (3) remain the same.
(4) Copies of the CFR may be obtained from the U.S. Government Printing Office
at http://www.gpo.gov/fdsys/browse/collectionCfr.action?selectedYearFrom =2014&go=Go as set forth in ARM 17.8.102. When printed versions are available, they may be obtained as described in (3)(c).
(5) Copies of the U.S. Code may be obtained from the U.S. Government Printing Office
at http://www.gpo.gov/fdsys/browse/collectionUScode.action? selectedYearFrom=2013&go=Go as set forth in ARM 17.8.102. When printed versions are available, they may be obtained as described in (3)(c).
AUTH: 75-2-111, MCA
IMP: Title 75, chapter 2, MCA
REASON: The board adopts and incorporates by reference, federal regulations to ensure that Montana's air quality rules are at least as stringent as air quality regulations adopted by the Environmental Protection Agency to maintain primacy and federal delegation of Montana's air quality program, and to implement federal emission standards according to a federal program of emissions control.
The board is proposing to amend the air quality rules to update editions of federal and state statutes, rules, and regulations, available online, that are incorporated by reference. The board is proposing to amend ARM 17.8.102(1) and 17.8.103(4) and (5) to adopt revisions to federal regulations published in the July 1, 2015, edition of the Code of Federal Regulations (CFR) as it is published on the web site of the U.S. Government Printing Office (U.S. GPO); the 2014 edition of the U.S. Code, as it is published on the web site of the U.S. GPO; and the September 30, 2015, edition of the ARM. The reason for the reference to a specific web page of the CFR is that the CFR is published in a new codified version every year. For Title 40, which contains most of the federal regulations adopted by reference by the board for air quality regulation, the official version is dated July 1 of each year. However, the online version is not available by that date, and the printed version is not available for more than four months after that date. The board adopts the July 1 edition after the online version has been made available. The reason for the reference to a specific web page for the U.S. Code is that the U.S. Code is published in a new codified, printed version every six years. The most recent printed version is 2012. It is updated online by the U.S. Law Revision Counsel, which is associated with the U.S. House of Representatives, as new laws are enacted. It then takes approximately eight months before all titles of the U.S. Code are updated on the web site of the U.S. GPO with the changes enacted into law by the previous session of Congress. It takes about another ten months for a printed annual supplement to be distributed. The U.S. GPO publishes the printed versions, and its web site is the most authoritative site for the official online version of the U.S. Code. It is this web site that the board is proposing to use as the version of the updated U.S. Code referred to in its rules in ARM Title 17, chapter 8 every year.
The only Montana administrative rules not contained in the air quality rules in ARM Title 17, chapter 8, that are incorporated by reference in those rules are Title 17, chapter 53, subchapters 5 and 10, which pertain to hazardous waste. These are referenced in ARM 17.8.103, 17.8.302, and 17.8.602. Neither of those hazardous waste subchapters has been modified since April 1, 2005. Even though they have not been modified, the board is proposing to update the reference to them to the September 30, 2015, version of the ARM because that more recent version is more readily available for the use of the regulated community, public, and the Department of Environmental Quality in researching and determining the applicable requirements of the rules.
4. Concerned persons may submit their data, views, or arguments concerning the proposed action in writing to Denise Hartman at Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-2630; fax (406) 444-4386; or e-mail email@example.com, no later than
August 5, 2016. To be guaranteed consideration, mailed comments must be postmarked on or before that date.
5. If persons who are directly affected by the proposed action wish to express their data, views, or arguments orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments they have to Denise Hartman at Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-2630; fax (406) 444-4386; or e-mail firstname.lastname@example.org, no later than August 5, 2016.
6. If the board receives requests for a public hearing on the proposed action from either 10 percent or 25, whichever is less, of the persons who are directly affected by the proposed action; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date. Notice of the hearing will be published in the Montana Administrative Register. Ten percent of those persons directly affected has been determined to be 25, based on the more than 250 persons who potentially could wish to appeal air quality permits and therefore could be affected by this rulemaking.
7. 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 Denise Hartman, Administrative Rules Coordinator, 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 Denise Hartman at email@example.com, or may be made by completing a request form at any rules hearing held by the board.
8. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
9. With regard to the requirements of 2-4-111, MCA, the board has determined that the amendment of the above-referenced rules will not significantly and directly impact small businesses.
Reviewed by: BOARD OF ENVIRONMENTAL REVIEW
/s/ John F. North BY: /s/ Joan Miles
JOHN F. NORTH JOAN MILES, CHAIRMAN
Certified to the Secretary of State, June 27, 2016.