Mont. Admin. R. tit. 17 | Mont. Admin. R. Title 17 — Environmental Quality

Chapter 17.1 Organization of Department

Subchapter 17.1.1 Organizational Rule

Mont. Admin. R. 17.1.101 Organization of Department

(1) The Department of Environmental Quality was created by Chapter 418, Laws of 1995. The department administers most of Montana's environmental regulatory, environmental cleanup, environmental monitoring, pollution prevention, and energy conservation laws.

(2) The department is headed by the director, who is appointed by the Governor. Within the director's office are the deputy director, the legal unit, the public policy unit, and an operations analyst. The deputy director, legal unit, and public policy unit report to the director, while the operations analyst reports to the deputy director. Below the director's office, the department is divided into three divisions that report directly to the director as well as four departmental centralized support programs that report to the deputy director. The divisions are the Water Quality Division, the Air, Energy and Mining Division, and the Waste Management and Remediation Division. Each division is headed by an administrator and is divided into bureaus, each of which is headed by a chief. The four centralized support programs include the Information Technology Bureau, the Financial Services Bureau, the Enforcement Program, and Human Resources. Two boards are attached to the department for administrative purposes only as provided in 2-15-121, MCA. The Board of Environmental Review exercises adjudicatory functions. The Petroleum Tank Release Compensation Board exercises rulemaking and adjudicatory functions. Two advisory councils advise the department and one of the boards. Advisory councils do not have any rulemaking or adjudicatory function. They have advisory roles only.

(3) The organizational structure of the department and the allocation of its functions are as follows:

(a) The director's office is responsible for the administration of all functions vested by law in the department and for establishing policy to be followed by the department. In addition, the work units in the director's office provide legal and communications services to the director and the divisions within the agency and administers Montana Environmental Policy Act and Montana Major Facility Siting Act coordination.

(b) The Water Quality Division performs water quality planning, pollution prevention, permitting, financing assistance, monitoring, and compliance functions. The division also regulates public water supply and public sewage systems, sanitation in subdivisions, and water and wastewater operator training and certification. The division is divided into the following bureaus:

(i) The Water Quality Planning Bureau develops water quality standards, supports statewide water quality monitoring networks, conducts inventories of pollution sources, identifies impaired streams and lakes and develops load allocations to remedy these impairments, and maintains statewide environmental monitoring databases.

(ii) The Engineering Bureau administers the drinking water revolving funds and water pollution control revolving funds that provide loans to communities for the construction and improvement of drinking water and wastewater systems. The bureau also reviews sanitary and storm drainage features of subdivisions. The bureau also requires that proposed subdivisions meet minimum standards and reviews and regulates public water and wastewater system designs.

(iii) The Water Protection Bureau regulates discharges into state waters through issuance of permits, monitors compliance with those permits, training, technical assistance to discharges of wastewater, storm water, and other wastes into surface water and ground water. The bureau operates the source water protection and nonpoint source programs and conducts development and implementation of water quality improvement plans.

(iv) The Public Water Supply Bureau regulates public drinking water systems and public wastewater systems. The bureau ensures that public water systems comply with established monitoring requirements and with standards for drinking water quality. The bureau provides training and certifies operators of public drinking water systems and wastewater treatment plants.

(c) The Air, Energy and Mining Division administers the department's air quality, energy conservation, and mine reclamation statutes. The division is divided into the following bureaus:

(i) The Air Quality Bureau regulates air quality by issuing air quality permits, inspecting and providing compliance assistance for air emission sources, issuing permits for open burning activities, developing state implementation plans to ensure compliance with state and federal air quality standards, and administering air quality monitoring and assessment programs.

(ii) The Mining Bureau permits and regulates:

(A) prospecting and mining of coal and uranium;

(B) mining of sand, gravel, bentonite, scoria, peat, soil, and clay; and

(C) exploration for and mining of metal ores and industrial minerals such as talc, limestone, and building stone under the Metal Mine Reclamation Act.

(iii) The Energy Bureau conducts inventories of pollution sources and provides small business assistance, public education, and research and development activities to prevent air and water pollution and to promote energy conservation, the use of alternative and renewable energy sources, and the reduction, reuse, recycling, and composting of wastes. The bureau also provides energy retrofits to hospitals and public buildings, and technical assistance regarding energy efficiency, indoor air quality, and radon in public and commercial facilities.

(d) The Waste Management and Remediation Division oversees and conducts investigation and cleanup activities at state and federal superfund sites; voluntary cleanup activities; reclamation of abandoned mine lands; development and implementation of corrective actions at sites with leaking underground storage tanks; administration of solid waste, junk vehicle, hazardous waste, asbestos control, septic tank and privy cleaner, underground storage tank laws; and oversight of ground water remediation at sites where improper placement of wastes has caused ground water contamination. The division also administers provisions of the federal Comprehensive Environmental Response Compensation and Liability Act (CERCLA) and the state Comprehensive Environmental Cleanup and Responsibility Act (CECRA). The division is divided into the following bureaus:

(i) The Tanks, Brownfields, and Federal Facilities Bureau oversees or conducts the investigation and cleanup of sites contaminated by chemical spills, hazardous substances, and petroleum. These sites include leaking underground storage tank sites, brownfields, and federal defense sites. The bureau provides grants to local governments for compliance assistance. The bureau implements the underground storage tank leak prevention program, including the permitting of underground storage tank installations.

(ii) The Superfund, Abandoned Mine Lands, and Construction Services Bureau is responsible for administering and overseeing remedial actions or reclamation at historic mine sites, abandoned mines, ore transport and processing facilities, or anywhere there has been a release of substances that pose a risk to human health or the environment.

(iii) The Waste Management Bureau permits and regulates landfills and other solid waste facilities; motor vehicle wrecking facilities and graveyards; cesspools, septic tanks, and privy cleaners; hazardous waste sites; and asbestos removal activities. The bureau implements the methamphetamine cleanup program.

(e) The department also contains centralized support programs that provide agency-wide managerial and administrative support, centralized coordination, information services, and enforcement activities for the department. The centralized support programs include the following:

(i) The Information Technology Bureau provides central coordination and support of information technology services to the department.

(ii) The Fiscal Services Bureau provides services to the department in accounting, budget and financial management, fiscal reporting, payroll, internal auditing, procurements including contracts for services, and the purchasing of supplies and equipment.

(iii) The Enforcement Program develops enforcement policies and conducts enforcement activities to obtain compliance with permitting and regulatory statutes. The program also accepts and investigates citizen complaints.

(iv) Human Resources administers the personnel, payroll, labor relations, and safety programs for the department.

(4) The boards attached to the department for administrative purposes are as follows:

(a) The Board of Environmental Review is appointed by the Governor and consists of seven members with expertise in health, hydrology, local government planning, environmental sciences, and law. The board determines appeals under some of the regulatory statutes administered by the department.

(b) The Petroleum Tank Release Compensation Board administers the petroleum tank release cleanup fund. The board is appointed by the Governor and consists of seven members consisting of representatives from the financial or banking industry, small business, environmental law, various petroleum industries, the petroleum release remediation consulting industry, the insurance industry, and the general public. The board determines eligibility of owners and operators of petroleum tanks from which there has been a release and reimburses eligible owners and operators for a portion of their corrective action costs.

(5) The following advisory councils are created by statute:

(a) The Water Pollution Control Advisory Council advises the department on matters related to water pollution and the adoption of rules under the Water Quality Act.

(b) The Water and Wastewater Operators' Advisory Council advises and assists the department in the administration of its program for certification of water and wastewater treatment plant operations.

(6) General inquiries regarding the department, boards, or advisory councils may be addressed to the director. Specific inquiries regarding the functions of a division may be addressed to the administrator of that division. All requests for department policy, hearings, declaratory rulings, and participation in rulemaking should be addressed to the director unless the notice in the Montana Administrative Register makes specific provisions for submissions.

(7) Following are addresses of key officials of the Department of Environmental Quality and boards. If no address is given after the name, that official can be reached by writing to the Department of Environmental Quality, 1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana 59620-0901 or phoning 1 (406) 444-2544.

(a) department officials:

(i) director;

(ii) deputy director;

(iii) chief legal counsel;

(iv) administrator, Air, Energy and Mining Division;

(v) administrator, Water Quality Division;

(vi) administrator, Waste Management and Remediation Division, 1225 Cedar Street, P.O. Box 200901, Helena, Montana 59620-0901;

(vii) program manager, Enforcement Program;

(viii) chief financial officer;

(ix) chief information officer;

(x) Public Policy & Government Affairs Officer;

(xi) manager, Human Resources;

(b) board chairpersons:

(i) chairperson, Petroleum Tank Release Compensation Board, 1225 Cedar Street, P.O. Box 200902, Helena, Montana 59620-0902;

(ii) chairperson, Board of Environmental Review, 1520 East Sixth Street, P.O. Box 200901, Helena, Montana 59620-1901.

(8) A descriptive chart of the Department of Environmental Quality follows:

Official policy figure

Organization Chart Department of Environmental Quality NOVEMBER 2025 /s/ Sonja Nowakowski Director /s/ Greg Gianforte Governor

History

Authorizing statute(s): 2-4-201, MCA
Implementing statute(s): 2-4-201, MCA
History: NEW, Eff. 9/30/98; AMD, Eff. 7/1/00; AMD, Eff. 3/1/04; AMD, Eff. 3/31/05; AMD, Eff. 9/30/07; AMD, Eff. 12/31/07; AMD, Eff. 3/31/14; AMD, Eff. 9/30/15; AMD, Eff. 12/31/16; AMD, Eff. 12/31/17; AMD, Eff. 12/31/18; AMD, Eff. 4/25/22; AMD, Eff. 1/10/23; AMD, Eff. 11/12/25.

Chapter 17.4 Procedural Rules

Subchapter 17.4.1 Model Rules

Mont. Admin. R. 17.4.101 Model Rules

(1) The Department of Environmental Quality adopts and incorporates the Attorney General's Organizational and Procedural Rules, ARM 1.3.201, 1.3.202, 1.3.211 through 1.3.224, and 1.3.226 through 1.3.233, effective August 15, 2008, and the Secretary of State's Model Rules of Practice, ARM 1.4.101 through 1.4.109, and 44.17.101, including the sample forms which follow the Attorney General's model rules, except as modified by (2), as authorized by 2-4-302, MCA.

(2) ARM 1.3.201, 1.3.202, 1.3.211 through 1.3.224, and 1.3.226 through 1.3.233 are organizational and procedural rules required by the Montana Administrative Procedure Act. Copies of the model rules may be obtained from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

History

Authorizing statute(s): 2-4-201, 2-4-202, MCA
Implementing statute(s): 2-4-201, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, 1982 MAR p. 383, Eff. 2/26/82; AMD, 1983 MAR p. 1350, Eff. 9/30/83; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2000 MAR p. 472, Eff. 2/11/00; AMD, 2009 MAR p. 1011, Eff. 6/26/09; AMD, 2024 MAR p. 253, Eff. 2/10/24; AMD, 2025 MAR, Notice No. 17-449, Eff. 1/11/25.

Mont. Admin. R. 17.4.102 Procedures for Compliance with Mepa

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 2-4-201, 75-1-202, MCA
Implementing statute(s): 75-1-201 through 75-1-205, MCA
History: NEW, 1982 MAR p. 384, Eff. 2/26/82; TRANS, from DHES, 1996 MAR p. 1497; REP, 2024 MAR p. 253, Eff. 2/10/24.

Subchapter 17.4.2 Rulemaking Procedures (REPEALED)

Mont. Admin. R. 17.4.201 Water Pollution Rules

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 2-4-201, 2-4-202, MCA
Implementing statute(s): 75-5-307, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; TRANS, from DHES, 1996 MAR p. 1497; REP, 2016 MAR p. 517, Eff. 3/19/16.

Mont. Admin. R. 17.4.202 Occupational Health Rules (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 2-4-201, 2-4-202, MCA
Implementing statute(s): 50-70-111, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; TRANS, from DHES, 1996 MAR p. 1497; REP, 2025 MAR, Notice No. 17-449, Eff. 1/11/25.

Subchapter 17.4.3 Penalty Calculation Procedures

Mont. Admin. R. 17.4.301 Purpose

(1) This subchapter implements 75-1-1001 and 82-4-1001, MCA, which provide factors for calculating penalties assessed under:

(a) Title 75, chapters 2, 5, 6, 11 and 20, MCA;

(b) Title 75, chapter 10, parts 2, 4, 5 and 12, MCA;

(d) Title 82, chapter 4, parts 1, 2, 3, and 4, MCA.

(2) The purpose of the penalty calculation process is to calculate a penalty that is commensurate with the severity of the violation, that provides an adequate deterrent, and that captures the economic benefit of noncompliance. The department shall provide a copy of the penalty calculation to the alleged violator.

(3) The department may not assess a penalty that exceeds the maximum penalty amount authorized by the statutes listed in (1).

History

Authorizing statute(s): 75-2-111, 75-2-112, 75-2-503, 75-5-201, 75-6-104, 75-10-204, 75-10-405, 75-10-503, 75-10-1202, 75-11-204, 75-11-505, 75-20-105, 76-4-104, 82-4-112, 82-4-205, 82-4-321, 82-4-422, MCA
Implementing statute(s): 75-1-1001, 82-4-1001, MCA
History: NEW, 2006 MAR p. 1139, Eff. 5/5/06; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.4.302 Definitions

The following definitions apply throughout this subchapter:

(1) "Circumstances" means a violator's culpability associated with a violation.

(2) "Continuing violation" means a violation that involves an ongoing unlawful activity or an ongoing failure to comply with a statutory or regulatory requirement.

(3) "Extent" of the violation means the violator's degree of deviation from the applicable statute, rule or permit.

(4) "Gravity" of the violation means the degree of harm, or potential for harm, to human health or the environment, or the degree of adverse effect on the department's administration of the statute and rules.

(5) "History of violation" means the violator's prior history of any violation, which:

(a) must be a violation of a requirement under the authority of the same chapter and part of the violation for which the penalty is being assessed;

(b) must be documented in an administrative order or a judicial order or judgment issued within three years prior to the date of the occurrence of the violation for which the penalty is being assessed; and

(c) may not, at the time that the penalty is being assessed, be undergoing or subject to administrative appeal or judicial review.

(6) "Nature" means the classification of a violation as one that harms or has the potential to harm human health or the environment or as one that adversely affects the department's administration of the statute and rules.

History

Authorizing statute(s): 75-2-111, 75-2-112, 75-2-503, 75-5-201, 75-6-104, 75-10-204, 75-10-405, 75-10-503, 75-10-1202, 75-11-204, 75-11-505, 75-20-105, 76-4-104, 82-4-112, 82-4-205, 82-4-321, 82-4-422, MCA
Implementing statute(s): 75-1-1001, 82-4-1001, MCA
History: NEW, 2006 MAR p. 1139, Eff. 5/5/06; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.4.303 Base Penalty

(1) As provided in this rule, the department shall calculate the base penalty by multiplying the maximum penalty amount authorized by statute by a factor from the appropriate base penalty matrix in (2) or (3). In order to select a matrix from (2) or (3), the nature of the violation must first be established. For violations that harm or have the potential to harm human health or the environment, the department shall classify the extent and gravity of the violation as major, moderate, or minor as provided in (4) and (5). For all other violations, the extent factor does not apply, and the department shall classify the gravity of the violation as major, moderate, or minor as provided in (5).

(2) The department shall use the following matrix for violations that harm or have the potential to harm human health or the environment:

| GRAVITY

EXTENT | Major | Moderate | Minor Major | 0.85 | 0.70 | 0.55 Moderate | 0.70 | 0.55 | 0.40 Minor | 0.55 | 0.40 | 0.25

(3) The department shall use the following matrix for violations that adversely impact the department's administration of the applicable statute or rules, but which do not harm or have the potential to harm human health or the environment:

GRAVITY

Major | Moderate | Minor 0.50 | 0.40 | 0.30

(4) In determining the extent of a violation, the factors that the department may consider include, but are not limited to, the volume, concentration, and toxicity of the regulated substance, the severity and percent of exceedance of a regulatory limit, and the duration of the violation. The department shall determine the extent of a violation as follows:

(a) a violation has a major extent if it constitutes a major deviation from the applicable requirements;

(b) a violation has a moderate extent if it constitutes a moderate deviation from the applicable requirements;

(5) The department shall determine the gravity of a violation as follows:

(a) A violation has major gravity if it causes harm to human health or the environment, poses a serious potential to harm human health or the environment, or has a serious adverse impact on the department's administration of the statute or rules. Examples of violations that may have major gravity include a release of a regulated substance that causes harm or poses a serious potential to harm human health or the environment, construction or operation without a required permit or approval, an exceedance of a maximum contaminant level or water quality standard, or a failure to provide an adequate performance bond.

(b) A violation has moderate gravity if it:

(i) is not major or minor as provided in (5)(a) or (c); and

(ii) poses a potential to harm human health or the environment, or has an adverse impact on the department's administration of the statute or rules. Examples of violations that may have moderate gravity include a release of a regulated substance that does not cause harm or pose a serious potential to harm human health or the environment, a failure to monitor, report, or make records, a failure to report a release, leak, or bypass, or a failure to construct or operate in accordance with a permit or approval.

(c) A violation has minor gravity if it poses no risk of harm to human health or the environment, or has a low adverse impact on the department's administration of the statute or rules. Examples of violations that may have minor gravity include a failure to submit a report in a timely manner, a failure to pay fees, inaccurate recordkeeping, or a failure to comply with a minor operational requirement specified in a permit.

History

Authorizing statute(s): 75-2-111, 75-2-112, 75-2-503, 75-5-201, 75-6-104, 75-10-204, 75-10-405, 75-10-503, 75-10-1202, 75-11-204, 75-11-505, 75-20-105, 76-4-104, 82-4-112, 82-4-205, 82-4-321, 82-4-422, MCA
Implementing statute(s): 75-1-1001, 82-4-1001, MCA
History: NEW, 2006 MAR p. 1139, Eff. 5/5/06; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.4.304 Adjusted Base Penalty - Circumstances, Good Faith and Cooperation, Amounts Voluntarily Expended

(1) As provided in this rule, the department may consider circumstances, good faith and cooperation, and amounts voluntarily expended to calculate an adjusted base penalty. Circumstances may be used to increase the base penalty. Good faith and cooperation and amounts voluntarily expended may be used to decrease the base penalty. The amount of adjustment for each of the above factors is based upon a percentage of the base penalty. The amount of the adjustment is added to the base penalty to obtain an adjusted base penalty.

(2) The department may increase a base penalty by up to 30% based upon the circumstances of the violation. To determine the penalty adjustment based upon circumstances, the department shall evaluate a violator's culpability associated with the violation. In determining the amount of increase for circumstances, the department's consideration must include, but not be limited to, the following factors:

(a) how much control the violator had over the violation;

(b) the foreseeability of the violation;

(d) the foreseeability of the impacts associated with the violation; and

(e) whether the violator knew or should have known of the requirement that was violated.

(3) The department may decrease a base penalty by up to 10% based upon the violator's good faith and cooperation. In determining the amount of decrease for good faith and cooperation, the department's consideration must include, but not be limited to, the following factors:

(a) the violator's promptness in reporting and correcting the violation, and in mitigating the impacts of the violation;

(b) the extent of the violator's voluntary and full disclosure of the facts related to the violation; and

(4) The department may decrease a base penalty by up to 10% based upon the amounts voluntarily expended by the violator, beyond what is required by law or order, to address or mitigate the violation or the impacts of the violation. The amount of a decrease is not required to match the amounts voluntarily expended. In determining the amount of decrease for amounts voluntarily expended, beyond what is required by law or order, the department's consideration must include, but not be limited to, the following factors:

(a) expenditures for resources, including personnel and equipment, to promptly mitigate the violation or impacts of the violation;

(b) expenditures of resources to prevent a recurrence of the violation or to eliminate the cause or source of the violation; and

(c) revenue lost by the violator due to a cessation or reduction in operations that is necessary to mitigate the violation or the impacts of the violation.

History

Authorizing statute(s): 75-2-111, 75-2-112, 75-2-503, 75-5-201, 75-6-104, 75-10-204, 75-10-405, 75-10-503, 75-10-1202, 75-11-204, 75-11-505, 75-20-105, 76-4-104, 82-4-112, 82-4-205, 82-4-321, 82-4-422, MCA
Implementing statute(s): 75-1-1001, 82-4-1001, MCA
History: NEW, 2006 MAR p. 1139, Eff. 5/5/06; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.4.305 Total Adjusted Penalty - Days of Violation

(1) The department may consider each day of each violation as a separate violation subject to penalties. The department may multiply the adjusted base penalty calculated under ARM 17.4.304 by the number of days of violation to obtain a total adjusted penalty.

(2) For continuing violations, if the application of (1) results in a penalty that is higher than the department believes is necessary to provide an adequate deterrent, the department may reduce the number of days of violation.

History

Authorizing statute(s): 75-2-111, 75-2-112, 75-2-503, 75-5-201, 75-6-104, 75-10-204, 75-10-405, 75-10-503, 75-10-1202, 75-11-204, 75-11-505, 75-20-105, 76-4-104, 82-4-112, 82-4-205, 82-4-321, 82-4-422, MCA
Implementing statute(s): 75-1-1001, 82-4-1001, MCA
History: NEW, 2006 MAR p. 1139, Eff. 5/5/06; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.4.306 Total Penalty - History of Violation

(1) As provided in this rule, the department may increase the total adjusted penalty based upon the violator's history of violation. Any penalty increases for history of violation must be added to the total adjusted penalty calculated under ARM 17.4.305 to obtain a total penalty.

(2) The department may calculate a separate increase for each historic violation. The amount of the increase must be calculated by multiplying the base penalty calculated under ARM 17.4.303 by the appropriate percentage from (3). This amount must then be added to the total adjusted penalty calculated under ARM 17.4.305.

(3) The department shall determine the nature of each historic violation in accordance with ARM 17.4.302(6). The department may increase the total adjusted penalty for history of violation using the following percentages:

(a) for each historic violation that, under these rules, would be classified as harming or having the potential to harm human health or the environment, the penalty increase must be 10% of the base penalty calculated under ARM 17.4.303; and

(b) for each historic violation that, under these rules, would be classified as adversely impacting the department's administration of the applicable statute or rules, but not harming or having the potential to harm human health or the environment, the penalty increase must be 5% of the base penalty calculated under ARM 17.4.303.

(4) If a violator has multiple historic violations and one new violation, for which a penalty is being calculated under these rules, the percentages from (3) for each historic violation must be added together. This composite percentage may not exceed 30%. The composite percentage must then be multiplied by the base penalty for the new violation to determine the amount of the increase. The increase must be added to the total adjusted penalty for the new violation calculated under ARM 17.4.305.

(5) If a violator has one historic violation and multiple new violations, each with a separate penalty calculation under these rules, the base penalties for the new violations calculated under ARM 17.4.303 must be added together. This composite adjusted base penalty must then be multiplied by the percentage from (3) for the historic violation to determine the amount of the increase. The increase must then be added to the sum of the total adjusted penalties calculated for each new violation under ARM 17.4.305.

(6) If a violator has multiple historic violations and multiple new violations, for which a separate penalty is being calculated under these rules, the percentages from (3) for each historic violation must be added together, not to exceed 30%, and the base penalties for each new violation calculated under ARM 17.4.303 must be added together. The composite base penalties must be multiplied by the composite percentage to determine the amount of the increase. The increase must be added to the sum of the total adjusted penalties calculated for each violation under ARM 17.4.305.

History

Authorizing statute(s): 75-2-111, 75-2-112, 75-2-503, 75-5-201, 75-6-104, 75-10-204, 75-10-405, 75-10-503, 75-10-1202, 75-11-204, 75-11-505, 75-20-105, 76-4-104, 82-4-112, 82-4-205, 82-4-321, 82-4-422, MCA
Implementing statute(s): 75-1-1001, 82-4-1001, MCA
History: NEW, 2006 MAR p. 1139, Eff. 5/5/06; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.4.307 Economic Benefit

(1) The department may increase the total adjusted penalty, as calculated under ARM 17.4.305, by an amount based upon the violator's economic benefit. The department shall base any penalty increase for economic benefit on the department's estimate of the costs of compliance, based upon the best information reasonably available at the time it calculates a penalty under these rules. The economic benefit must be added to the total adjusted penalty calculated under ARM 17.4.305 to obtain the total penalty.

History

Authorizing statute(s): 75-2-111, 75-112, 75-2-503, 75-5-201, 75-6-104, 75-10-204, 75-10-405, 75-10-503, 75-10-1202, 75-11-204, 75-11-505, 75-20-105, 76-4-104, 82-4-112, 82-4-205, 82-4-321, 82-4-422, MCA
Implementing statute(s): 75-1-1001, 82-4-1001, MCA
History: NEW, 2006 MAR p. 1379, Eff. 5/5/06; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.4.308 Other Matters as Justice May Require

(1) The department may consider other matters as justice may require to increase or decrease the total penalty.

History

Authorizing statute(s): 75-2-111, 75-2-112, 75-2-503, 75-5-201, 75-6-104, 75-10-204, 75-10-405, 75-10-503, 75-10-1202, 75-11-204, 75-11-505, 75-20-105, 76-4-104, 82-4-112, 82-4-205, 82-4-321, 82-4-422, MCA
Implementing statute(s): 75-1-1001, 82-4-1001, MCA
History: NEW, 2006 MAR p. 1139, Eff. 5/5/06; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Subchapter 17.4.5 Major Facility Siting Act

Mont. Admin. R. 17.4.501 Opportunity for Public Comment After Application Received

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-2-111, 75-5-201, 75-20-105, MCA
Implementing statute(s): 75-20-216(3), MCA
History: NEW, 1980 MAR p. 3114, Eff. 12/27/80; AMD, 1981 MAR p. 1100, Eff. 10/1/81; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2001 MAR p. 2410, Eff. 12/7/01; REP, 2023 MAR p. 764, Eff. 8/5/23.

Mont. Admin. R. 17.4.502 Public Hearing After Preliminary Decision

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-2-111, 75-5-201, 75-20-105, MCA
Implementing statute(s): 75-20-216(3), 75-20-231, MCA
History: NEW, 1980 MAR p. 3114, Eff. 12/27/80; AMD, 1981 MAR p. 1100, Eff. 10/1/81; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2001 MAR p. 2410, Eff. 12/7/01; REP, 2023 MAR p. 764, Eff. 8/5/23.

Subchapter 17.4.6 Montana Environmental Policy Act

Mont. Admin. R. 17.4.601 Purpose and Procedural Policy

(1) The purpose of these rules is to implement Title 75, chapter 1, MCA, the Montana Environmental Policy Act (MEPA), through the establishment of administrative procedures. In order to fulfill the stated policy of that act, the Department of Environmental Quality shall conform to the following rules prior to reaching a final decision on proposed actions covered by MEPA.

(2) MEPA is an informational and procedural statute that requires state agencies to comply with its provisions to the fullest extent possible. It is not a source of independent regulatory authority.

History

Authorizing statute(s): 2-4-201, 2-15-112, MCA
Implementing statute(s): 75-1-201, MCA
History: NEW, 1980 MAR p. 88, Eff. 1/18/80; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2026 MAR, Notice No. 2026-36, Eff. 9/26/26.

Mont. Admin. R. 17.4.602 Policy Statement Concerning Mepa Rules (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 2-3-103, 2-4-201, MCA
Implementing statute(s): 2-3-104, 75-1-201, MCA
History: NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497; REP, 2026 MAR, Notice No. 2026-36, Eff. 9/26/26.

Mont. Admin. R. 17.4.603 Definitions

(1) "Agency" means the Department of Environmental Quality.

(2) "Alternative" means:

(a) any of the following:

(i) an alternate approach or course of action that would substantially accomplish the same objectives or results as the proposed action;

(ii) design parameters, mitigation, or controls other than those included in a proposed action by an applicant or by an agency before preparing an EA or draft EIS;

(iii) no action or denial option; and

(iv) for agency-initiated actions, a different program or series of activities that would achieve different objectives or use resources in a different way than the proposed action.

(b) The agency is required to consider only those alternatives that are realistic, technically feasible, and have a logical relationship to the proposal being evaluated.

(3) "Applicant" means a person or other entity that applies to the agency for a grant, loan, subsidy, or other funding assistance, or for a lease, permit, license, certificate, or other entitlement for use or permission to act.

(4) “Categorical exclusion checklist” means a method the agency uses to document that a proposed action fits within a categorical exclusion supported by a programmatic review and to screen for any extraordinary circumstances requiring additional review.

(5) "Compensation" means replacing or providing substitute resources or environments to offset an impact on the quality of the Montana environment. The agency may not consider compensation when determining the significance of impacts (see ARM 17.4.607(4)).

(6) "Emergency actions" include, but are not limited to:

(a) projects undertaken, carried out, or approved by the agency to repair or restore property or facilities damaged or destroyed as a result of a disaster when a disaster has been declared by the governor or other appropriate government entity;

(b) emergency repairs to public service facilities necessary to maintain service; and

(c) public or private projects undertaken to address immediate threats to public health, safety, welfare, or the environment.

(7) "Environmental assessment" (EA) means a written analysis of a proposed action to determine whether an EIS is required or to serve one or more of the other purposes described in ARM 17.4.607(2).

(8) "Environmental impact statement" (EIS) means the detailed written statement required by 75-1-201, MCA, which may take several forms:

(a) "draft environmental impact statement" means a detailed written statement prepared in accordance with 75-1-201, MCA, and these rules;

(b) "final environmental impact statement" means a written statement prepared in accordance with 75-1-201, MCA, and ARM 17.4.618 or 17.4.619, and which responds to substantive comments received on the draft environmental impact statement;

(c) "joint environmental impact statement" means an EIS prepared jointly by more than one state or federal agency, when the agencies are involved in the same or a closely related proposed action.

(9) "Environmental Quality Council" (EQC) means the council established pursuant to Title 75, chapter 1, MCA, and 5-16-101, MCA.

(10) “Extraordinary circumstances” means site- or project-specific conditions under which a normally categorically excluded action requires additional environmental review.

(11) "Lead agency" means the state agency that has primary authority to commit the government to a course of action or the agency designated by the governor to supervise the preparation of a joint EA or EIS.

(12) "Mitigation" means:

(a) avoiding an impact by not taking an action or parts of an action;

(b) minimizing an impact by limiting the degree or size of an action or how it is carried out;

(d) reducing or eliminating an impact over time through preservation and maintenance during the life of an action or for as long as the impact continues.

(13) "Montana environment" includes, but is not limited to biological, physical, social, economic, cultural, and aesthetic factors that together make up the environment in Montana. For deciding whether an EIS is necessary under ARM 17.4.607(1), economic and social impacts alone do not require preparation of an EIS. However, when an EIS is prepared, it must briefly describe economic and social impacts and how they relate to biological, physical, cultural, and aesthetic impacts.

(14) "Programmatic review" means an EA or EIS that analyzes the impacts on the quality of the Montana environment from a group of related actions, programs, or policies, and that may be used to support categorical exclusions and other review of individual actions within its scope.

(15) “Proximate impact” means an impact on Montana's environment that is directly produced by the proposed action. The term does not include an impact produced by an upstream, downstream, or other secondary action, including an action that intervenes between the proposed action and the impact and that occurs independently or is caused only in part by the proposed action.

(16) "Residual impact" means an impact that remains after mitigation.

(17) "Scope" means the range of reasonable alternatives, mitigation, issues, and potential impacts that will be considered in an EA or EIS.

(18) "Secondary impact" means a further impact to the Montana environment that may be stimulated or induced by or otherwise result from a direct impact of the action.

(19) "State agency" means an office, commission, committee, board, department, council, division, bureau, or section of the executive branch of state government.

History

Authorizing statute(s): 2-3-103, 2-4-201, MCA
Implementing statute(s): 2-3-104, 75-1-201, MCA
History: NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2026 MAR, Notice No. 2026-36, Eff. 9/26/26.

Mont. Admin. R. 17.4.607 General Requirements of the Environmental Review Process

Section 75-1-201, MCA requires state agencies to use an interdisciplinary approach and relevant scientific and technical information in planning and decision-making, and to prepare a detailed written statement (an EIS) for a proposed action that significantly affects the quality of the Montana environment. To decide what level of environmental review is needed for a proposed action, the agency shall apply the following criteria:

(1) The agency shall prepare an EIS whenever:

(a) an EA indicates that an EIS is necessary; or

(b) based on the criteria in ARM 17.4.608, the proposed action is a major action of state government significantly affecting the quality of the Montana environment.

(2) An EA may serve one or more of the following purposes:

(a) ensure that the agency uses an interdisciplinary approach and environmental design information in planning and decision-making, either on its own or together with other agency planning and decision-making processes;

(b) to assist in evaluating reasonable alternatives and in developing conditions, stipulations, or modifications that may be added to a proposed action;

(c) to determine whether an EIS is needed by making an initial evaluation and determination of the significance of impacts from a proposed action;

(d) to provide an opportunity for public review and comment on a proposed action using the procedures in ARM 17.4.610, including alternatives and planned mitigation, when residual impacts do not require preparation of an EIS; and

(e) to examine and document the effects of a proposed action on the quality of the Montana environment, and to provide the basis for public review and comment whenever statutory deadlines do not allow enough time for the agency to prepare an EIS. In applying this subsection, the agency shall compare the statutory deadline for its decision on the proposed action with the time required under ARM 17.4.620 for public review of an EIS plus a reasonable period to prepare a draft EIS and, if required, a final EIS.

(3) The agency shall prepare an EA whenever:

(a) the proposed action is not excluded under (5) and it is not clear, without preparing an EA, whether the proposed action is a major one significantly affecting the quality of the Montana environment under the criteria in ARM 17.4.608;

(b) the proposed action is not excluded under (5) and, although an EIS is not needed, the agency has not otherwise carried out the interdisciplinary analysis and public review purposes listed in (2)(a) and (d) through a similar planning and decision-making process; or

(c) statutory deadlines do not allow sufficient time for the agency to prepare an EIS and the agency uses an environmental assessment under (2)(e).

(4) As an alternative to preparing an EIS, the agency may prepare an EA whenever the proposed action is one that might normally require an EIS, but effects which might otherwise be deemed significant appear capable of being reduced below the level of significance through design, enforceable controls, stipulations, or a combination of these imposed by the agency or other government agencies. For an EA to suffice in this instance, the agency must determine that all impacts of the proposed action have been accurately identified, that those impacts will be mitigated below the level of significance, and that no significant impact is likely to occur. The agency may not consider compensation when determining whether impacts have been mitigated below the level of significance.

(5) The agency is not required to prepare an EA or an EIS for the following categories of proposed action:

(a) proposed actions that qualify for a categorical exclusion under (6);

(b) administrative actions, including routine, clerical, or similar functions of the agency such as administrative procurement, contracts for consulting services, and personnel actions;

(d) investigation and enforcement actions, including data collection, inspection of facilities, and enforcement of environmental standards;

(e) ministerial actions in which the agency has no discretion and must act upon a given set of facts in a prescribed manner; and

(f) proposed actions that are primarily social or economic in nature and that do not otherwise affect the Montana environment.

(6) The agency may establish categorical exclusions for proposed actions that do not individually, collectively, or cumulatively result in significant adverse impacts on the quality of the Montana environment, as provided in 75‑1‑220(3), MCA.

(a) The agency may establish categorical exclusions by:

(i) formal rulemaking, which must describe the category of proposed action, explain why it normally does not cause significant impacts, and identify any extraordinary circumstances that would require preparation of an EA or EIS; or

(ii) a programmatic review, which must evaluate the impacts of a group of related proposed actions or programs, explain why proposed actions within the scope of that programmatic review normally do not cause significant impacts, and identify any extraordinary circumstances that would require additional project‑specific review.

(b) For a state proposed action identified by the agency as qualifying for a categorical exclusion, there is a rebuttable presumption that extraordinary circumstances do not exist and that neither an EA nor an EIS is required, unless the agency determines, based on identified extraordinary‑circumstance factors tied to ARM 17.4.608, that additional review is necessary.

(c) When relying on a categorical exclusion supported by a programmatic review, the agency shall complete a categorical exclusion checklist or similar documentation to confirm that:

(i) the proposed action fits within the scope of the categorical exclusion; and

(ii) no extraordinary circumstances are present that would require preparation of an EA or EIS. The documentation must, at a minimum, identify the project, cite the applicable categorical exclusion, and document the extraordinary‑circumstance screening.

History

Authorizing statute(s): 2-3-103, 2-4-201, MCA
Implementing statute(s): 2-3-104, 75-1-201, 75-1-209, 75-1-220, MCA
History: NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2026 MAR, Notice No. 2026-36, Eff. 9/26/26.

Mont. Admin. R. 17.4.608 Determining the Significance of Impacts

(1) In order to implement 75-1-201, MCA, the agency shall determine the significance of the proximate environmental impacts of the proposed action. This determination is the basis for deciding whether to prepare an EIS and for evaluating proximate impacts in either EAs or EISs. The agency shall consider the following criteria in determining the significance of each impact on the quality of the Montana environment:

(a) the severity, duration, geographic extent, and frequency of the impact;

(b) the probability that the impact will occur if the proposed action occurs; or conversely, the degree of reasonable assurance, commensurate with the potential severity of the impact, that the impact will not occur;

(c) growth-inducing or growth-inhibiting aspects of the impact, including its relationship or contribution to cumulative impacts;

(d) the quantity and quality of each environmental resource or value that would be affected, including the uniqueness and fragility of those resources or values;

(e) the importance to the state and to society of each environmental resource or value that would be affected;

(f) any precedent that would be set by an impact of the proposed action that would commit the department to future actions with significant impacts, or to a decision in principle about such future actions; and

(g) potential conflict with local, state, or federal laws, requirements, or formal plans.

(2) An impact may be adverse, beneficial, or both. If none of the adverse effects of the impact are significant, an EIS is not required. An EIS is required if an impact has a significant adverse effect, even if the agency believes that the effect on balance will be beneficial.

History

Authorizing statute(s): 2-3-103, 2-4-201, MCA
Implementing statute(s): 2-3-104, 75-1-201, MCA
History: NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2026 MAR, Notice No. 2026-36, Eff. 9/26/26.

Mont. Admin. R. 17.4.609 Preparation and Contents of Environmental Assessments

(1) The agency shall prepare an EA, regardless of its length or the depth of analysis, using an interdisciplinary approach. The agency may determine the scope of issues to be addressed in an EA and when it does so, it shall follow the procedures in ARM 17.4.615.

(2) For a routine proposed action with limited environmental impact, the contents of an EA may be presented in a standard checklist format. At the other extreme, whenever a proposed action would normally require an EIS but effects that otherwise might be significant are mitigated in project design or through controls imposed by the agency, the analysis, format, and content of the EA must be more substantial. The agency shall prepare the evaluations and present the information described in (3), as applicable, in a level of detail appropriate to:

(a) the complexity of the proposed action;

(b) the environmental sensitivity of the area affected by the proposed action;

(c) the degree of uncertainty that the proposed action will have a significant impact on the quality of the Montana environment; and

(d) the need for and complexity of mitigation required to avoid significant impacts.

(3) To the degree required under (2), an EA must include:

(a) a description of the proposed action, including maps or figures as appropriate;

(b) a description of the purpose and benefits of the proposed action;

(c) a list of any state, local, or federal agencies that have overlapping or additional jurisdiction or environmental review responsibility for the proposed action, and the permits, licenses, and other authorizations required;

(d) an evaluation of the impacts, including cumulative and secondary impacts, on the physical environment. This evaluation may take the form of an environmental checklist and, as appropriate, a narrative with more detailed analysis of topics and impacts that are potentially significant, including, where appropriate: terrestrial and aquatic life and habitats; water quality, quantity, and distribution; geology; soil quality, stability, and moisture; vegetation cover, quantity, and quality; aesthetics; air quality; unique, endangered, fragile, or limited environmental resources; historical and archaeological sites; demands on environmental resources of land, water, air, and energy; and greenhouse gas emissions;

(e) an evaluation of the impacts, including cumulative and secondary impacts, on Montana’s population in the area to be affected by the proposed action. This evaluation may take the form of an environmental checklist and, as appropriate, a narrative with more detailed analysis of topics and impacts that are potentially significant, including where appropriate: cultural uniqueness and diversity; access to and quality of recreational and wilderness activities; local and state tax base and tax revenues; agricultural or industrial production; human health; quantity and distribution of employment; distribution and density of population and housing; demands for government services; industrial and commercial activity; locally adopted environmental plans and goals; and other appropriate social and economic circumstances;

(f) a description and analysis of reasonable alternatives to a proposed action, whenever alternatives are reasonably available and prudent to consider, and a discussion of how each alternative would be implemented;

(g) a list and appropriate evaluation of mitigation, stipulations, and other controls enforceable by the agency or another government agency;

(h) a list of other agencies or groups that have been contacted or have contributed information;

(i) the names of persons responsible for preparation of the EA; and

(j) a finding on the need for an EIS and, if appropriate, an explanation of the reasons for preparing the EA. If an EIS is not required, the EA must describe why the EA is an appropriate level of analysis.

History

Authorizing statute(s): 2-3-103, 2-4-201, MCA
Implementing statute(s): 2-3-104, 75-1-201, MCA
History: NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2026 MAR, Notice No. 2026-36, Eff. 9/26/26.

Mont. Admin. R. 17.4.610 Public Review of Environmental Assessments

(1) The level of analysis in an EA will vary with the complexity and seriousness of environmental issues associated with a proposed action. The level of public interest will also vary. The agency is responsible for adjusting public review to match these factors. The agency has discretion to determine the appropriate type, scope, and timing of public review based on the totality of the circumstances, including applicable statutory deadlines, the completeness of information available about the proposed action, and the level of public interest. Nothing in this rule requires the agency to issue a draft EA and solicit public comment for every proposed action.

(2) An EA is a public document and may be inspected upon request. Any person may obtain a copy of an EA by making a request to the agency. If the document is out-of-print, a copying charge may be levied.

(3) The agency has discretion to provide additional opportunities for public review consistent with the seriousness and complexity of the environmental issues associated with a proposed action and the level of public interest. Methods of accomplishing public review include publishing a news release or legal notice to announce the availability of an EA, summarizing its content and soliciting public comment; holding public meetings; maintaining mailing lists of persons interested in a particular action or type of action and notifying them of the availability of EAs on such actions; and distributing copies of EAs for review and comment.

(4) For an action with limited environmental impact and little public interest, no further public review may be warranted. However, where an action is one that normally requires an EIS, but effects that otherwise might be deemed significant are mitigated in the project proposal or by controls imposed by the agency, public involvement must include the opportunity for public comment, a public meeting or hearing, and adequate notice. The agency is responsible for determining appropriate methods to ensure adequate public review on a case by case basis.

(5) The agency shall maintain a log of all EAs completed by the agency and shall submit a list of any new EAs completed to the Office of the Governor and the Environmental Quality Council on a quarterly basis. In addition, the agency shall submit a copy of each completed EA to the EQC.

(6) The agency shall consider the substantive comments received in response to an EA.

(a) The agency shall proceed in accordance with one of the following steps, as appropriate:

(i) determine that an EIS is necessary;

(ii) determine that the EA did not adequately reflect the issues raised by the proposed action and issue a revised document; or

(iii) determine that an EIS is not necessary and make a final decision on the proposed action, with appropriate modification resulting from the analysis in the EA and the analysis of public comment.

(b) This subsection only applies when the agency has distributed a draft EA for public review and comment. When the agency has not distributed a draft EA, the agency may consider and respond to substantive comments under (7).

(7) Consistent with ARM 17.4.607(2)(a), an agency’s environmental review may be informed by public participation conducted in other contexts, including but not limited to public comment, public meetings, or public hearings held in connection with a permit, license, or other authorization under other applicable law. Comments received during such proceedings may be considered by the agency in the preparation of the EA and may be used to adjust public review under (1), provided that the agency considers and, as appropriate, responds to substantive comments relevant to the environmental review in its EA.

(8) The agency is not required to prepare or publish a draft EA prior to receiving a complete application, as defined in 75-1-220, MCA, or prior to the resolution of all deficiencies identified in the application through the applicable review process.

(9) Where the preparation and distribution of a draft EA for public review and comment would conflict with a statutory deadline imposed by a substantive permitting law, the statutory deadline controls.

History

Authorizing statute(s): 2-3-103, 2-4-201, MCA
Implementing statute(s): 2-3-104, 75-1-201, MCA
History: NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2026 MAR, Notice No. 2026-36, Eff. 9/26/26.

Mont. Admin. R. 17.4.615 Determining the Scope of an Eis

(1) Prior to preparing an EIS, the agency shall initiate a process to determine the scope of the EIS. This scoping process is an early effort to identify the issues, alternatives, and information that will be addressed in the EIS.

(2) To identify the scope of an EIS, the agency shall:

(a) invite the participation of affected federal, state, and local government agencies, Indian tribes, the applicant, if any, and interested persons or groups;

(b) identify the issues related to the proposed action that are likely to involve significant impacts and that will be analyzed in depth in the EIS;

(c) identify the issues that are not likely to involve significant impacts, indicating that, unless unanticipated effects are discovered during preparation of the EIS, the discussion of these issues in the EIS will be limited to a brief explanation of why they are not expected to significantly affect the quality of the Montana environment;

(d) identify the issues that have been adequately addressed by prior environmental review, indicating that the discussion of these issues in the EIS will be limited to a summary and reference to their coverage elsewhere; and

(e) identify possible alternatives to be considered.

History

Authorizing statute(s): 2-3-103, 2-4-201, MCA
Implementing statute(s): 2-3-104, 75-1-201, MCA
History: NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2026 MAR, Notice No. 2026-36, Eff. 9/26/26.

Mont. Admin. R. 17.4.616 Environmental Impact Statements--General Requirements

The following apply to the design and preparation of EISs:

(1) The agency shall prepare EISs that are analytic rather than encyclopedic.

(2) The agency shall discuss the impacts of a proposed action in a level of detail that is proportionate to their significance. For issues that are not significant, an EIS need only include enough discussion to show why more study is not warranted.

(3) The agency shall prepare with each draft and final EIS a brief summary that is available for distribution separate from the EIS. The summary must describe:

(a) the proposed action being evaluated by the EIS, its impacts, and the alternatives;

(b) areas of controversy and major conclusions;

(d) the agency's preferred alternative, if any.

History

Authorizing statute(s): 2-3-103, 2-4-201, MCA
Implementing statute(s): 2-3-104, 75-1-201, MCA
History: NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2026 MAR, Notice No. 2026-36, Eff. 9/26/26.

Mont. Admin. R. 17.4.617 Preparation and Contents of Draft Environmental Impact Statements

If required by these rules, a draft EIS must include:

(1) a description of the proposed action, including its purpose and benefits;

(2) a list of any state, local, or federal agencies that have overlapping or additional jurisdiction and a description of their responsibility for the proposed action;

(3) a description of the current environmental conditions in the area affected by the proposed action or alternatives, including maps and figures whenever appropriate. The description must be no longer than necessary to understand the effects of the action and alternatives. Data analysis must be commensurate with the importance of the impact, with less important material summarized, consolidated, or incorporated by reference;

(4) a description of the impacts of the proposed action on the quality of the Montana environment including, as appropriate:

(a) the factors listed in ARM 17.4.609(3)(d) and (e);

(b) direct, secondary, and cumulative impacts;

(d) irreversible and irretrievable commitments of environmental resources, including land, air, water, and energy;

(e) the environmental and economic benefits and costs of the proposed action to the extent they relate to changes in the Montana environment; and

(f) the relationship between local short-term uses of the environment and the effect on maintenance and enhancement of the long-term productivity of the environment. If the agency prepares a separate economic or cost analysis before the draft EIS, it may incorporate that analysis by reference or append it to the EIS, but the agency is not required to prepare a formal, quantitative cost-benefit analysis;

(5) an analysis of reasonable alternatives to the proposed action, including the no action alternative and other reasonable alternatives that may or may not be within the jurisdiction of the agency to implement, if any;

(6) a discussion of mitigation, stipulations, or other controls committed to and enforceable by the agency or other government agency;

(7) a discussion of any compensation related to impacts stemming from the proposed action;

(8) an explanation of the trade-offs among the reasonable alternatives;

(9) the agency's preferred alternative, if any, and its reasons for the preference;

(10) a section on consultation and preparation of the draft EIS that includes:

(a) the names of the individuals or groups responsible for preparing the draft EIS;

(b) a list of other agencies, groups, or individuals who were contacted or contributed information; and

(11) the summary required by ARM 17.4.616(3); and

(12) any other sections required by other statutes in a comprehensive evaluation of the proposed action, or by the National Environmental Policy Act or other federal statutes governing a cooperating federal agency.

History

Authorizing statute(s): 2-3-103, 2-4-201, MCA
Implementing statute(s): 2-3-104, 75-1-201, MCA
History: NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2026 MAR, Notice No. 2026-36, Eff. 9/26/26.

Mont. Admin. R. 17.4.618 Adoption of Draft Environmental Impact Statement as Final

(1) Depending upon the substantive comments received in response to a draft EIS, the draft statement may suffice as the final EIS. The agency shall determine whether to adopt the draft EIS within 30 days after the close of the comment period on the draft EIS.

(2) If the agency decides to adopt the draft EIS, the agency shall notify the Governor, the Environmental Quality Council, the applicant, if any, and all commenters of its decision and provide a statement describing its proposed course of action. This notification must be accompanied by either a copy of all comments or a summary of a representative sample of comments received in response to the draft statement, together with an explanation of why the issues raised do not warrant preparation of a final EIS.

(3) The agency shall provide public notice of its decision to adopt the draft EIS as a final EIS.

(4) If the agency adopts the draft EIS as the final EIS, it may make a final decision on the proposed action no sooner than 15 days after complying with (1) through (3).

History

Authorizing statute(s): 2-3-103, 2-4-201, MCA
Implementing statute(s): 2-3-104, 75-1-201, MCA
History: NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2026 MAR, Notice No. 2026-36, Eff. 9/26/26.

Mont. Admin. R. 17.4.619 Preparation and Contents of Final Environmental Impact Statement

Except as provided in ARM 17.4.618, a final EIS must include:

(1) a summary of the major conclusions and supporting information from the draft EA or EIS and the responses to substantive comments on the draft EIS, specifically identifying where those conclusions and information differ from the draft;

(2) a list of all sources of written and oral comments on the draft EA or EIS, including those received at public meetings, and, unless impractical, the text of comments received by the agency (in all cases, a representative sample of comments must be included);

(3) the agency's responses to substantive comments, including an evaluation of the comments and disposition of the issues raised;

(4) any data, information, and explanations obtained after circulation of the draft; and

(5) the agency's recommendation, preferred alternative, or proposed decision, together with an explanation of the reasons for that choice.

History

Authorizing statute(s): 2-3-103, 2-4-201, MCA
Implementing statute(s): 2-3-104, 75-1-201, MCA
History: NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2026 MAR, Notice No. 2026-36, Eff. 9/26/26.

Mont. Admin. R. 17.4.620 Time Limits and Distribution of Environmental Impact Statements

(1) Following preparation of a draft EIS, the agency shall distribute copies to the governor, Environmental Quality Council, appropriate local, state, and federal agencies, tribal governments in Montana, the applicant, if any, and persons who have requested copies.

(2) The listed transmittal date to the Governor and the Environmental Quality Council must not be earlier than the date that the draft EIS is mailed to other agencies, organizations, and individuals. The agency shall allow 30 days for comments and may extend this period by up to an additional 30 days at its discretion or upon application of any person for good cause. When preparing a joint EIS with a federal agency or agencies, the agency may also extend this period in accordance with time periods specified in regulations that implement the National Environmental Policy Act unless an extension is prohibited by law.

(3) In cases involving an applicant, after the period for comment on the draft EIS has expired, the agency shall send the applicant a copy of all written comments received. The agency shall advise the applicant that the applicant has a reasonable time to respond in writing to the comments and that the applicant's written response must be received before a final EIS can be prepared and circulated. The applicant may waive the right to respond to comments on the draft EIS.

(4) Following preparation of a final EIS, the agency shall distribute copies to the Governor, Environmental Quality Council, appropriate local, state, and federal agencies, tribal governments in Montana, the applicant, if any, persons who submitted comments on or received a copy of the draft EIS, and other members of the public upon request.

(5) Except as provided in ARM 17.4.618(4), a final decision must not be made on the proposed action evaluated in a final EIS until 15 days have passed from the date of transmittal of the final EIS to the Governor and the Environmental Quality Council. The listed transmittal date to the Governor and the Environmental Quality Council must not be earlier than the date the final EIS is mailed to other agencies, organizations, and individuals.

(6) All written comments received on an EIS, including written responses received from the applicant, must be made available to the public upon request.

(7) Until the agency reaches its final decision on the proposed action, no action concerning the proposal may be taken that would:

(a) have an adverse environmental impact; or

(b) limit the choice of reasonable alternatives, including the no-action alternative.

History

Authorizing statute(s): 2-3-103, 2-4-201, MCA
Implementing statute(s): 2-3-104, 75-1-201, MCA
History: NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2026 MAR, Notice No. 2026-36, Eff. 9/26/26.

Mont. Admin. R. 17.4.621 Supplements to an Environmental Review

(1) The agency shall prepare a supplement to a draft or final EA or EIS whenever:

(a) the agency or the applicant makes a substantial change in the proposed action;

(b) there are significant new circumstances, discovered before the final agency decision, including information bearing on the proposed action or its impacts that change the basis for the decision;

(c) after preparing a draft EA or EIS and before completing a final EA or EIS, the agency determines that substantial additional information is needed to evaluate the impacts of the proposed action or reasonable alternatives;

(d) a court directs the agency to supplement the EA or EIS; or

(e) based on the extraordinary circumstances screening criteria in a categorical exclusion checklist or similar documentation prepared in connection with a programmatic review, the agency determines additional review is required.

(2) A supplement must include, at a minimum:

(a) an explanation of the need for the supplement;

(b) a description of the proposed action;

(c) for EISs, any impacts, alternatives, or other items required by ARM 17.4.617 for a draft EIS or ARM 17.4.619 for a final EIS that were not covered in the original statement or that must be revised based on new information or circumstances concerning the proposed action; and

(d) for EAs, any impacts, alternatives, or other items required by ARM 17.4.609 that were either not covered in the original EA or that must be revised based on new information or circumstances concerning the proposed action.

(3) The same time periods that apply to draft and final EAs or EISs apply to the circulation and review of supplements.

History

Authorizing statute(s): 2-3-103, 2-4-201, MCA
Implementing statute(s): 2-3-104, 75-1-201, MCA
History: NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2026 MAR, Notice No. 2026-36, Eff. 9/26/26.

Mont. Admin. R. 17.4.625 Adoption of an Existing Environmental Review

(1) The agency shall adopt, as part of a draft EA or EIS, all or any part of the information, conclusions, comments, and responses to comments contained in an existing EA or EIS that has been previously or is being concurrently prepared under MEPA or the National Environmental Policy Act if the agency determines:

(a) the existing EA or EIS covers an action that parallels or is closely related to the action proposed by the agency or the applicant;

(b) based on the agency’s own independent evaluation, the information in the existing EA or EIS has been accurately presented; and

(2) A summary of the existing EA or EIS, or the portion adopted, and a list of places where the full text is available must be circulated as a part of the EA or EIS and treated as part of the EA or EIS for all purposes, including, if required, preparation of a final EA or EIS.

(3) Adoption of all or part of an existing EA or EIS does not relieve the agency of the duty to comply with ARM 17.4.617.

(4) The same time periods that apply to draft and final EISs apply to the circulation and review of EISs that include material adopted from an existing EIS.

(5) The agency shall take full responsibility for the portions of a previous EA or EIS it adopts. If the agency disagrees with any adopted portions, it shall specifically discuss the points of disagreement.

(6) No material may be adopted unless it is reasonably available for inspection by interested persons.

(7) Whenever part of an existing or concurrently prepared EA or EIS is adopted, the part adopted must include sufficient material to allow it to be understood in the context in which it was presented in the original EA or EIS.

History

Authorizing statute(s): 2-3-103, 2-4-201, MCA
Implementing statute(s): 2-3-104, 75-1-201, MCA
History: NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2026 MAR, Notice No. 2026-36, Eff. 9/26/26.

Mont. Admin. R. 17.4.626 Interagency Cooperation

(1) Whenever it is the lead agency responsible for preparing an EIS, the agency may:

(a) request the participation of other governmental agencies that have special expertise in areas that should be addressed in the EIS;

(b) allocate appropriate assignments for preparing the EIS among participating agencies; and

(2) When a lead agency requests the agency’s participation in preparing an EIS, the agency shall make a good-faith effort to participate as requested. The agency’s expenses for participation must be paid by the lead agency or by any other agency that collects an EIS fee, if one is collected.

History

Authorizing statute(s): 2-3-103, 2-4-201, MCA
Implementing statute(s): 2-3-104, 75-1-201, MCA
History: NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2026 MAR, Notice No. 2026-36, Eff. 9/26/26.

Mont. Admin. R. 17.4.627 Joint Environmental Review

(1) Whenever the agency and one or more other state agencies have jurisdiction over an applicant's proposal or proposed actions that individually, collectively, or cumulatively require an EIS and another agency is clearly the lead agency, the agency shall cooperate with the lead agency in preparing a joint EIS. Whenever the agency is clearly the lead agency, it shall coordinate the preparation of the EIS as required by this rule. Whenever the agency and one or more other agencies have jurisdiction over an applicant's proposal or proposed actions and lead-agency status cannot be resolved, the agency shall request a determination from the Governor.

(2) The agency shall cooperate with federal and local agencies in preparing EISs when the agency’s jurisdiction is involved. This cooperation may include, but is not limited to: joint environmental research studies, a joint process to determine the scope of an EIS, joint public meetings, joint EISs, and, whenever appropriate, joint issuance of a record of decision.

(3) Whenever the agency proposes or participates in an action that requires preparation of an EIS under both the National Environmental Policy Act and MEPA, the EIS must be prepared in compliance with both statutes and associated rules and regulations. The agency may, if required by a cooperating federal agency, follow more stringent requirements, such as additional content or public-review periods, but may not agree to requirements that provide for less than is required by these rules.

(4) The same general provisions for cooperation and joint issuance of documents provided for in this rule for EISs also apply to EAs.

History

Authorizing statute(s): 2-3-103, 2-4-201, MCA
Implementing statute(s): 2-3-104, 75-1-201, MCA
History: NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2026 MAR, Notice No. 2026-36, Eff. 9/26/26.

Mont. Admin. R. 17.4.628 Preparation, Content, and Distribution of a Programmatic Review

(1) Whenever the agency is contemplating a series of agency-initiated actions, programs, or policies that, in part or in total, may constitute a proposed action significantly affecting the Montana environment, it shall prepare a programmatic review discussing the impacts of the series of actions.

(2) The agency may also prepare a programmatic review whenever required by statute, whenever a series of actions under the agency’s jurisdiction warrants such an analysis as determined by the agency, or whenever a programmatic review is prepared jointly with a federal agency.

(3) The agency shall determine whether the programmatic review takes the form of an EA or an EIS in accordance with the provisions of ARM 17.4.607 and 17.4.608, unless otherwise provided by statute.

(4) A programmatic review must include, at a minimum, a concise, analytical discussion of reasonable alternatives and the cumulative environmental effects of those alternatives on the Montana environment. In addition, programmatic reviews must contain the information specified in ARM 17.4.617 for EISs or ARM 17.4.609 for EAs, as applicable.

(5) The agency shall follow the time limits specified for distribution and public comment on EISs or EAS, whichever is applicable.

(6) While work on a programmatic review is in progress, the agency may not take actions covered by the program during that interim period unless the action:

(a) is part of an ongoing program;

(b) is justified independently of the program; or

(c) will not prejudice the ultimate decision on the program. Interim action prejudices the ultimate decision on the program if it tends to determine subsequent development or foreclose reasonable alternatives.

(7) Actions taken under (6) must be accompanied by an EA or an EIS, if required.

(8) A programmatic review may be used to identify and justify categorical exclusions for a class of actions under applicable law. When a programmatic review serves as the basis for a categorical exclusion, the review must describe the types of actions covered, the expected environmental effects, and any extraordinary circumstances that would require preparation of an EA or EIS notwithstanding the categorical exclusion. A programmatic review used in this way does not change which actions are excluded or exempted from MEPA review by statute.

History

Authorizing statute(s): 2-3-103, 2-4-201, MCA
Implementing statute(s): 2-3-104, 75-1-201, MCA
History: NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2026 MAR, Notice No. 2026-36, Eff. 9/26/26.

Mont. Admin. R. 17.4.629 Record of Decision for Actions Requiring Environmental Impact Statements

(1) When making a decision on a proposed action for which an EIS was prepared, the agency shall prepare a concise public record of decision. There is no prescribed format for a record of decision, except that it must include the items considered by this rule. The record, which may be integrated into other documentation of the decision, is a public notice of what the decision is, the alternatives the agency considered, the reasons for the decision, any mitigation or other measures the agency relies on to address environmental effects, and any special conditions surrounding the decision or its implementation including monitoring and enforcement procedures for mitigation, if any.

(2) The agency may include in the final EIS, in addition to a statement of its proposed decision, preferred alternative, or recommendation on the proposed action, the other items required by (1). If the final decision and the reasons for that final decision are the same as set forth in the final EIS, the agency may comply with (1) by preparing a public notice of what the decision is and adopting by reference the information in the final EIS that addresses the items required by (1). If the final decision or any of the items required by (1) differ from what was presented in the final EIS, the agency shall prepare a separate record of decision.

(3) This rule does not define or affect the statutory decision-making authority of the agency.

History

Authorizing statute(s): 2-3-103, 2-4-201, MCA
Implementing statute(s): 2-3-104, 75-1-201, MCA
History: NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2026 MAR, Notice No. 2026-36, Eff. 9/26/26.

Mont. Admin. R. 17.4.632 Emergencies

(1) The agency may take or permit action having a significant impact on the quality of the Montana environment in an emergency situation without preparing an EIS. Within 30 days after initiating the action, the agency shall notify the Governor and the Environmental Quality Council of the need for the action and the impacts and results. Emergency actions must be limited to those actions immediately necessary to control the impacts of the emergency.

History

Authorizing statute(s): 2-3-103, 2-4-201, MCA
Implementing statute(s): 2-3-104, 75-1-201, MCA
History: NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2026 MAR, Notice No. 2026-36, Eff. 9/26/26.

Mont. Admin. R. 17.4.633 Confidentiality

(1) Information declared confidential by state law or by court order must be excluded from an EA and EIS. The agency shall briefly state the general topic of any confidential information that is excluded.

History

Authorizing statute(s): 2-3-103, 2-4-201, MCA
Implementing statute(s): 2-3-104, 75-1-201, MCA
History: NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2026 MAR, Notice No. 2026-36, Eff. 9/26/26.

Mont. Admin. R. 17.4.634 Resolution of Statutory Conflicts

(1) Whenever a conflicting provision of another state law prevents the agency from fully complying with these rules, the agency shall comply to the fullest extent possible with the provisions of MEPA and use other available methods of public review described in ARM 17.4.607(2)(a) and 17.4.610(3) and (7).

History

Authorizing statute(s): 2-3-103, 2-4-201, MCA
Implementing statute(s): 2-3-104, 75-1-201, MCA
History: NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2026 MAR, Notice No. 2026-36, Eff. 9/26/26.

Mont. Admin. R. 17.4.635 Contracts and Disclosure

(1) The agency may contract for preparation of an EIS or portions of an EIS. Whenever an EIS or a portion of an EIS is prepared by a contractor, the agency shall provide guidance and participate in the preparation, independently evaluate the statement or portion before approving it, and take responsibility for its scope and content.

(2) A person contracting with the agency to prepare an EIS must execute a disclosure statement, on a form prepared by the agency, stating under oath that the person has no financial or other interest in the outcome of the proposed action other than the contract with the agency.

History

Authorizing statute(s): 2-3-103, 2-4-201, MCA
Implementing statute(s): 2-3-104, 75-1-201, MCA
History: NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2026 MAR, Notice No. 2026-36, Eff. 9/26/26.

Mont. Admin. R. 17.4.636 Public Meetings

(1) When the agency holds a public meeting on an EIS or an EA, it shall issue a news release or legal notice to newspapers of general circulation in the area to be affected by the proposed action before the meeting. The news release or legal notice must advise the public of the nature of testimony the agency wishes to receive. A meeting must be held, if at all, after the draft EIS has been circulated and before preparation of the final EIS. A meeting involving an action for which an EA was prepared must be held, if at all, after the EA has been circulated and before any final agency determinations concerning the proposed action. In cases involving an applicant, the agency shall allow the applicant a reasonable time to respond in writing to comments made at a public meeting, notwithstanding the time limits contained in ARM 17.4.620. The applicant may waive the right to respond to comments made at a meeting.

(2) In addition to the procedure in (1), the agency shall take other reasonable and appropriate steps to promote awareness by interested parties of a scheduled meeting.

(3) The agency shall hold a public meeting on a draft EIS whenever, within 20 days of issuance of the draft EIS, a meeting is requested by:

(a) ten percent or 25, whichever is less, of the persons who will be directly affected by the proposed action;

(b) another agency that has jurisdiction over the proposed action;

(d) the applicant, if any.

(4) In determining whether a sufficient number of persons have requested a meeting under (3), the agency shall resolve any doubt in favor of holding a public meeting.

(5) No person may give testimony at the meeting as a representative of a participating agency. Such a representative may, however, at the discretion of the agency, give a statement regarding the agency's authority or procedures and answer questions from the public.

History

Authorizing statute(s): 2-3-103, 2-4-201, MCA
Implementing statute(s): 2-3-104, 75-1-201, MCA
History: NEW, 1989 MAR p. 226, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497; AMD, 2026 MAR, Notice No. 2026-36, Eff. 9/26/26.

Subchapter 17.4.7 Environmental Impact Statement--Fees

Mont. Admin. R. 17.4.701 Fees: Determination of Authority to Impose

(1) Whenever an application for a lease, permit, contract, license or certificate is expected to result in the agency incurring expenses in excess of $2,500 to compile an EIS, the applicant is required to pay a fee in an amount the agency reasonably estimates, as set forth in this rule, will be expended to gather information and data necessary to compile an EIS.

(2) The agency shall determine within 30 days after a completed application is filed whether it will be necessary to compile an EIS and assess a fee as prescribed by this rule. If it is determined that an EIS is necessary, the agency shall make a preliminary estimate of its costs. This estimate must include a summary of the data and information needs and the itemized costs of acquiring the data and information, including salaries, equipment costs and any other expense associated with the collection of data and information for the EIS.

(3) Whenever the preliminary estimated costs of acquiring the data and information to prepare an EIS total more than $2,500, the agency shall notify the applicant that a fee must be paid and submit an itemized preliminary estimate of the cost of acquiring the data and information necessary to compile an EIS. The agency shall also notify the applicant to prepare and submit a notarized and detailed estimate of the cost of the project being reviewed in the EIS within 15 days. In addition, the agency shall request the applicant to describe the data and information available or being prepared by the applicant which can possibly be used in the EIS. The applicant may indicate which of the agency's estimated costs of acquiring data and information for the EIS would be duplicative or excessive. The applicant must be granted, upon request, an extension of the 15-day period for submission of an estimate of the project's cost and a critique of the agency's preliminary EIS data and information accumulation cost assessment.

History

Authorizing statute(s): 75-1-202, MCA
Implementing statute(s): 75-1-202, 75-1-203, 75-1-205 through 75-1-207, MCA
History: NEW, 1989 MAR p. 398, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

Mont. Admin. R. 17.4.702 Fees: Determination of Amount

(1) After receipt of the applicant's estimated cost of the project and analysis of an agency's preliminary estimate of the cost of acquiring information and data for the EIS, the agency shall notify the applicant within 15 days of the final amount of the fee to be assessed. The fee assessed must be based on the projected cost of acquiring all of the information and data needed for the EIS. If the applicant has gathered or is in the process of gathering information and data that can be used in the EIS, the agency shall only use that portion of the fee that is needed to verify the information and data. Any unused portion of the fee assessed may be returned to the applicant within a reasonable time after the information and data have been collected or the information and data submitted by the applicant have been verified, but in no event later than the deadline specified in these rules. The agency may extend the 15-day period provided for review of the applicant's submittal but not to exceed 45 days if it believes that the project cost estimate submitted is inaccurate or additional information must be obtained to verify the accuracy of the project cost estimate. The fee assessed must not exceed the limitations provided in 75-1-203 (2) , MCA.

(2) If an applicant believes that the fee assessed is excessive or does not conform to the requirements of this rule or Title 75, chapter 1, part 2, MCA, the applicant may request a hearing pursuant to the contested case provisions of the Montana Administrative Procedure Act. If a hearing is held on the fee assessed as authorized by this subsection, the agency shall proceed with its analysis of the project wherever possible. The fact that a hearing has been requested is not grounds for delaying consideration of an application except to the extent that the portion of the fee in question affects the ability of the department to collect the data and information necessary for the EIS.

History

Authorizing statute(s): 75-1-202, MCA
Implementing statute(s): 75-1-202, 75-1-203, 75-1-205 through 75-1-207, MCA
History: NEW, 1989 MAR p. 398, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

Mont. Admin. R. 17.4.703 Use of Fee

(1) The fee assessed hereunder may only be used to gather data and information necessary to compile an EIS. No fee may be assessed if an agency intends only to compile an EA or a programmatic review. If a department collects a fee and later determines that additional data and information must be collected or that data and information supplied by the applicant and relied upon by the agency are inaccurate or invalid, an additional fee may be assessed under the procedures outlined in these rules if the maximum fee has not been collected.

(2) Whenever the agency has completed work on the EIS, it shall submit to the applicant a complete accounting of how any fee was expended. If the money expended is less than the fee collected, the remainder of the fee shall be refunded to the applicant without interest within 45 days after work has been completed on the final EIS.

History

Authorizing statute(s): 75-1-202, MCA
Implementing statute(s): 75-1-202, 75-2-203, 75-1-205 through 75-1-207, MCA
History: NEW, 1989 MAR p. 398, Eff. 1/27/89; TRANS, from DHES, 1996 MAR p. 1497.

Mont. Admin. R. 17.4.720 Fee Assessment Categories: General Requirement

(1) The overall estimated cost of a project submitted by the applicant, as required by this rule shall include an itemized list of related costs showing the various component cost breakdown and how the costs were calculated for each component category. The functions of the department have been broken into 2 categories: reclamation and state lands, below. If any of the categories listed are not applicable it shall be so noted and explained if necessary. The list of categories is not exclusive but is intended as a basic guide.

History

Authorizing statute(s): 75-1-202, MCA
Implementing statute(s): 75-1-202, MCA
History: NEW, Eff. 4/15/76; TRANS, from DSL, 1996 MAR p. 1497.

Mont. Admin. R. 17.4.721 Fee Assessment Categories: Hard Rock

The Hard Rock Act fee assessment categories are as follows:

(1) Exploration related categories, include, but are not limited to: access rights; land acquisition; application information and preparation; bonding; license fees; resource data inventories; professional services and evaluations; prospecting facilities and construction; equipment; associated disturbance including road construction and renovations; blasting; core drilling; removal and deposition of overburden or other materials; mineral extraction and haulage; water and erosion control measures; and all other exploration activities.

(2) Reclamation related categories, include, but are not limited to: equipment; topsoil and spoil handling; backfilling; regrading; revegetation activities; water and erosion control measures; bulkheads and safety features; and all other reclamation activities.

(3) Contingency costs associated with the project, include but are not limited to the categories listed below: salaries, wages, insurance, fringe benefits, retainers, rents, premiums and all other costs associated with the project.

(4) Mining related activities, include but are not limited to: access rights; land acquisition; application information and preparation; permit fee; bonding; resource data inventories; professional services and evaluations; mining facilities and equipment; blasting; removal and deposition of overburden mine wastes or other materials; associated disturbances including road construction and renovations, leach dumps, conveyor systems, mineral excavation and haulage; water and air pollution controls and all other mining activities.

History

Authorizing statute(s): 75-1-202, MCA
Implementing statute(s): 75-1-202, MCA
History: NEW, Eff. 4/15/76; TRANS, from DSL, 1996 MAR p. 1497.

Mont. Admin. R. 17.4.722 Fee Assessment Categories: Open Cut

The Open Cut Mining Act categories are as follows:

(1) Costs associated with mining, include but are not limited to: pre-mining activities; access rights; land acquisition; application information and preparation; contract fees; resource data inventories; professional services and evaluations; bonding; equipment; road construction and renovation; core drilling; blasting; removal and deposition of overburden and other materials; mineral extraction and haulage and all other mining activities.

(2) Costs associated with reclamation, include but are not limited to: equipment; topsoil salvage, haulage and redistribution; problem spoil or waste handling procedures;

backfilling; regrading; revegetation activities; erosion control measures and all other reclamation activities.

(3) Contingency costs associated with the project, include but are not limited to: salaries; wages; fringe benefits; insurance; retainers; rents; premiums and all other costs associated with the project.

History

Authorizing statute(s): 75-1-202, MCA
Implementing statute(s): 75-1-202, MCA
History: NEW, Eff. 4/15/76; TRANS, from DSL, 1996 MAR p. 1497.

Mont. Admin. R. 17.4.723 Fee Assessment Categories: Strip and Underground Mine Siting

The Strip and Underground Mine Siting Act categories are as follows:

(1) Costs associated with the siting of facilities include but are not limited to: land acquisition; construction and other disturbance activities; blasting; equipment; all facilities, railroad loops and spurs; road construction and renovation; power and transmission lines; resource data inventories covering the proposed mining acreage for the life of the operation; erection of equipment; professional services and evaluations; application information and preparation; permit fee; bonding; waste disposal areas; treatment ponds; water and pollution control measures and all other cost categories related to facility siting projects.

(2) Costs associated with dismantling and removal of facilities and reclamation of all disturbances shall be identified and itemized. The categories include but are not limited to: facility removal activities; necessary equipment; topsoil salvage storage, haulage, and redistribution; problem material burial; waste disposal areas; backfilling; regrading; water and pollution control measures; revegetation activities; testing and monitoring for bond release; and all other facility and associated disturbance reclamation activities.

(3) Contingency costs associated with the project, include but are not limited to: salaries; wages; fringe benefits; insurance; rents; premiums; retainers; and all other costs associated with the project.

History

Authorizing statute(s): 75-1-202, MCA
Implementing statute(s): 75-1-202, MCA
History: NEW, Eff. 4/15/76; TRANS, from DSL, 1996 MAR p. 1497.

Mont. Admin. R. 17.4.724 Fee Assessment Categories: Strip and Underground Mine Reclamation

The Strip and Underground Mine Reclamation Act categories are as follows:

(1) Prospecting categories, include, but are not limited to: access rights; land acquisition; application information and preparation; bonding; license fees; resource data inventories; professional services and evaluations; equipment; all disturbances including road construction and renovations; core drilling; blasting; removal and deposition of overburden and other materials; mineral extraction and haulage; water and pollution control measures; and all other prospecting activities.

(2) Costs associated with prospecting reclamation, include, but are not limited to: equipment; topsoil salvage, haulage and redistribution; problem spoil; cuttings or waste handling procedures; backfilling; regrading; core hole plugging; sealing of artesian wells or other aquifers; subsidence controls; water and pollution control measures; revegetation activities and all other reclamation activities.

(3) Contingency costs associated with the prospecting project include but are not limited to: salaries; wages; fringe benefits; insurance; rents; premiums; retainers; and all other costs associated with the project.

(4) Costs associated with facility construction, include, but are not limited to: land acquisition; construction and other disturbance activities; blasting; equipment; all facilities, railroad loops and spurs; road construction and renovation; power and transmission lines; resource data inventories on the proposed facility; professional services and evaluations; application information and preparation; erection sites; waste disposal areas; treatment ponds; water and pollution control measures; and other facility related component costs.

(5) Costs associated with mining include but are not limited to: land acquisition; application information and preparation; permit fee; bonding; resource data inventories covering the future mining acreage; professional services and evaluations; equipment; road construction and renovation; waste disposal areas; treatment ponds; water and erosion control measures; blasting; overburden removal and deposition; mineral extraction, haulage, and further processing prior to shipment; and all other mining related activities.

(6) Costs associated with mining reclamation include but are not limited to: equipment; topsoil salvage; haulage and redistribution; problem soil; spoil and debris burial; treatment procedures; highwall reduction; backfilling and subsidence controls; regrading; revegetation activities; water and erosion control measures; post mining spoil, vegetation, and wildlife testing and monitoring for bond release; dismantling and removal of facilities; and all other costs associated with reclamation of facility site and mining disturbance.

(7) Contingency costs associated with the mining project include but are not limited to: salaries; wages; fringe benefits; insurance; rents; premiums; retainers; and all other costs associated with the project.

(8) Coal conservation costs are any additional costs to the mining project incurred because of the coal conservation requirements shall be submitted by the applicant. The various costs should be broken down and itemized under the various categories. All categories, including but not limited to those listed below, should be addressed. The categories are: mining of additional seams; removal of pit wedges; change in mining plans and all other related coal conservation categories.

History

Authorizing statute(s): 75-1-202, MCA
Implementing statute(s): 75-1-202, MCA
History: NEW, Eff. 4/15/76; TRANS, from DSL, 1996 MAR p. 1497.

Mont. Admin. R. 17.4.725 Departmental Assistance to Applicants

(1) The department will make every effort to assist the applicant in preparing an estimated cost of a project. Furthermore, the department will make appropriate personnel available to the applicant to discuss the department's estimated cost of compiling the information and data necessary for the EIS. After a fee has been collected and work on the compilation of data and information necessary for the EIS is begun, it is the intention of the department to return all unused or unneeded portions of the fee as promptly as possible.

History

Authorizing statute(s): 75-1-202, MCA
Implementing statute(s): 75-1-202, MCA
History: NEW, Eff. 4/15/76; TRANS, from DSL, 1996 MAR p. 1497.

Subchapter 17.4.8 Electronic Filing of Documents

Mont. Admin. R. 17.4.801 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 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.

History

Authorizing statute(s): 30-18-118, MCA
Implementing statute(s): 30-18-117, MCA
History: NEW, 2011 MAR p. 1135, Eff. 6/24/11; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.4.802 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.

(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.

History

Authorizing statute(s): 30-18-118, MCA
Implementing statute(s): 30-18-102, 30-18-117, MCA
History: NEW, 2011 MAR p. 1135, Eff. 6/24/11.

Mont. Admin. R. 17.4.803 Use of Electronic Record Receiving System

(1) If the 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.

History

Authorizing statute(s): 30-18-118, MCA
Implementing statute(s): 30-18-117, MCA
History: NEW, 2011 MAR p. 1135, Eff. 6/24/11; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.4.804 Electronic Subscriber Agreement

(1) Before submitting an electronic record pursuant to a specific rule of the 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 one business day, after suspecting or determining that the person's account security information or any required electronic signature device has become lost, stolen, or otherwise compromised;

(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.

History

Authorizing statute(s): 30-18-118, MCA
Implementing statute(s): 30-18-117, MCA
History: NEW, 2011 MAR p. 1135, Eff. 6/24/11; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.4.805 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.

History

Authorizing statute(s): 30-18-118, MCA
Implementing statute(s): 30-18-117, MCA
History: NEW, 2011 MAR p. 1135, Eff. 6/24/11.

Mont. Admin. R. 17.4.806 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.

History

Authorizing statute(s): 30-18-118, MCA
Implementing statute(s): 30-18-108, 30-18-117, MCA
History: NEW, 2011 MAR p. 1135, Eff. 6/24/11.

Mont. Admin. R. 17.4.807 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.

History

Authorizing statute(s): 30-18-118, MCA
Implementing statute(s): 30-18-117, MCA
History: NEW, 2011 MAR p. 1135, Eff. 6/24/11.

Chapter 17.8 Air Quality

Subchapter 17.8.1 General Provisions

Mont. Admin. R. 17.8.101 Definitions

As used in this chapter, unless indicated otherwise in a specific subchapter, the following definitions apply:

(1) "Administrator" means the administrator of the U.S. Environmental Protection Agency or the administrator's designee.

(2) "Air pollutants" has the meaning provided in 75-2-103(2), MCA.

(3) "Air quality operating permit" means any permit or group of permits issued, renewed, revised, amended, or modified pursuant to subchapter 12 of this chapter.

(4) "Montana air quality permit" means a permit issued, altered or modified pursuant to subchapters 7, 8, 9, or 10 of this chapter.

(5) "Allowable emissions" means the emissions rate of a stationary source calculated using the maximum rated capacity of the source (unless the source is subject to federally enforceable limits which restrict the operating rate or hours of operation, or both) and the most stringent of the following:

(a) the applicable standards as set forth in ARM 17.8.340 or 17.8.341;

(b) the applicable emissions limitation contained in the Montana state implementation plan, including those with a future compliance date; or

(6) "Ambient air" means that portion of the atmosphere, external to buildings, to which the general public has access.

(7) "Ambient air monitoring" means measurement of any air pollutant, odor, meteorological or atmospheric characteristic, or any physical or biological condition resulting from the effects of air pollutants or meteorological atmospheric conditions provided the measurement is performed in an area constituting ambient air.

(8) "Board" means the Board of Environmental Review as provided for in 2-15-3502, MCA.

(9) "Boiler or industrial furnace" means any source or emitting unit that is subject to the provisions of 75-10-405(2)(e) and 75-10-406, MCA, and rules promulgated thereunder defining the class of activities subject to regulation under those sections, found at ARM Title 17, chapter 53, subchapter 10.

(10) "Commercial hazardous waste incinerator" has the meaning provided in 75-2-103(6), MCA.

(11) "Commercial medical waste incinerator" means any incinerator that incinerates medical waste, except that "commercial medical waste incinerator" does not include hospital or medical facility incinerators that primarily incinerate medical waste generated onsite.

(12) "Control equipment" means any device or contrivance which prevents, removes, controls or abates emissions.

(13) "Department" means the Department of Environmental Quality as provided for in 2-15-3501, MCA.

(14) "Emission" has the meaning provided in 75-2-103(8), MCA.

(15) "Emission standard" means an allowable rate of emissions or level of opacity, or a requirement that certain equipment, work practices or operating conditions be employed to assure continuous emission control. An emission standard may be contained in a rule or regulation, consent decree, judicial or administrative order, or permit condition.

(16) "EPA" means the U.S. Environmental Protection Agency.

(17) "FCAA" means the Federal Clean Air Act, 42 USC 7401, et seq.

(18) "Federally enforceable" means all limitations and conditions which are enforceable by the administrator, including those requirements developed pursuant to 40 CFR Parts 60 and 61, requirements within the Montana State Implementation Plan, and any permit requirement established pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR Part 51, subpart I, including operating permits issued under an EPA-approved program that is incorporated into the Montana State Implementation Plan and expressly requires adherence to any permit issued under such program.

(19) "Fuel burning equipment" means any furnace, boiler, apparatus, stack, or appurtenances thereto used in the process of burning fuel or other combustible material for the primary purpose of producing heat or power by indirect heat transfer.

(20) "Fugitive emissions" means those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.

(21) "Hazardous air pollutant (HAP)" means any air pollutant listed as a hazardous air pollutant pursuant to section 112(b)(1) of the FCAA.

(22) "Hazardous waste" has the meaning provided in 75-2-103(11), MCA.

(23) "Hazardous waste incinerator" means any incinerator that incinerates hazardous waste.

(24) "Incinerator" has the meaning provided in 75-2-103(12), MCA.

(25) "Medical waste" has the meaning provided in 75-2-103(13), MCA.

(26) "Montana state implementation plan" means the state implementation plan adopted by EPA for the state of Montana pursuant to the FCAA, found at 40 CFR Part 52, subpart BB.

(27) "Multiple chamber incinerator" means any incinerator consisting of three or more refractory lined combustion furnaces in series physically separated by refractory walls, interconnected by gas passage ports or ducts and employing adequate parameters necessary for maximum combustion of the material to be burned.

(28) "Odor" means that property of an emission which stimulates the sense of smell.

(29) "Opacity" means the degree, expressed in percent, to which emissions reduce the transmission of light and obscure the view of an object in the background. Where the presence of uncombined water is the only reason for failure of an emission to meet an applicable opacity limitation contained in this chapter, that limitation shall not apply. For the purpose of this chapter, opacity determination shall follow all requirements, procedures, specifications, and guidelines contained in 40 CFR Part 60, Appendix A, method 9, or by an in-stack transmissometer which complies with all requirements, procedures, specifications and guidelines contained in 40 CFR Part 60, Appendix B, performance specification 1.

(30) "Owner or operator" means any person who owns, leases, operates, controls, or supervises a source or alteration, or the authorized agent of the owner, or the person who is legally responsible for the overall operation of the source or alteration.

(31) "Particulate matter" means any material, except water in uncombined form, that is or has been airborne, and exists as a liquid or a solid at standard conditions. For the purposes of this definition, standard conditions are defined in the applicable test method.

(32) "Person" has the meaning provided in 75-2-103(15), MCA.

(33) "PM" means all applicable definitions of particulate matter that specify an aerodynamic size class.

(34) "PM-2.5" means particulate matter with an aerodynamic diameter of less than or equal to a nominal 2.5 micrometers as measured by a reference method based on 40 CFR Part 50, Appendix L, and designated in accordance with 40 CFR Part 53, or by an equivalent method designated in accordance with 40 CFR Part 53.

(35) "PM-10" means particulate matter with an aerodynamic diameter of less than or equal to a nominal 10 micrometers as measured by a reference method based on 40 CFR Part 50, Appendix J, and designated in accordance with 40 CFR Part 53, or by an equivalent method designated in accordance with 40 CFR Part 53.

(36) "PM-10 emissions" means finely divided solid or liquid material, with an aerodynamic diameter less than or equal to a nominal 10 micrometers emitted to the ambient air as measured by an applicable reference method as specified in 40 CFR Part 51, Appendix M and condensable emissions measured by an impinger method, or by an alternative equivalent test method approved by the department. If the use of an alternative test method requires approval by the administrator, that approval must also be obtained.

(37) "Premises" means any property, piece of land or real estate or building.

(38) "Solid waste" has the meaning provided in 75-2-103(18), MCA.

(39) "Solid waste incinerator" means any incinerator that incinerates solid waste.

(40) "Source" means any person, real property or personal property located on one or more contiguous or adjacent properties under the control of the same owner or operator which contributes or would contribute to air pollution, including associated control equipment that affects or would affect the nature, character, composition, amount or environmental impacts of air pollution.

(41) "Stack, vent, or roof monitor" means any flue, conduit, chimney, vent, or duct arranged to conduct emissions.

(42) "Total suspended particulate" means particulate matter as measured by the method described in 40 CFR Part 50, Appendix B.

(43) "Volatile organic compounds (VOC)" means the same as defined in 40 CFR 51.100(s).

(44) "Wood waste burner" means a device commonly called a tepee burner, silo, truncated cone, wigwam burner, or other similar burner commonly used by the wood products industry for the disposal of wood.

History

Authorizing statute(s): 75-2-111, MCA
Implementing statute(s): Title 75, chapter 2, MCA
History: Eff. 12/31/72; AMD, 1978 MAR p. 1727, Eff. 12/29/78; AMD, 1982 MAR p. 697, Eff. 4/16/82; AMD, 1985 MAR p. 1326, Eff. 9/13/85; AMD, 1986 MAR p. 2007, Eff. 12/12/86; AMD, 1988 MAR p. 826, Eff. 4/29/88; AMD, 1993 MAR p. 2919, Eff. 12/10/93; AMD, 1995 MAR p. 2410, Eff. 11/10/95; AMD, 1996 MAR p. 1843, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1998 MAR p. 1725, Eff. 6/26/98; AMD, 2000 MAR p. 836, Eff. 3/31/00; AMD, 2001 MAR p. 976, Eff. 6/8/01; AMD, 2002 MAR p. 1747, Eff. 6/28/02; AMD, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2003 MAR p. 645, Eff. 4/11/03; AMD, 2006 MAR p. 1956, Eff. 8/11/06; AMD, 2015 MAR p. 370, Eff. 4/17/15; AMD, 2025 MAR, 17-451, Eff. 3/29/25.

Mont. Admin. R. 17.8.102 Incorporation by Reference--Publication Dates and Availability of Reference Documents

(1) Unless expressly provided otherwise in this chapter, where the department has:

(a) adopted a federal regulation by reference, the reference is to the July 1, 2023, edition of the Code of Federal Regulations (CFR), as it is published on the web site of the U.S. Government Printing Office at https://www.govinfo.gov/app/collection/cfr/2023/;

(b) adopted a section of the United States Code (USC) by reference, the reference is to the 2022 edition of the USC as it is published on the web site of the U.S. Government Printing Office at https://www.govinfo.gov/app/collection/uscode/2022;

(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 August 24, 2024.

(2) For purposes of this chapter, the following subparts of 40 CFR Part 60 are excluded from incorporation by reference:

(a) 40 CFR Part 60, subpart TTTT, Standards of Performance for Greenhouse Gas Emissions for Electric Generating Units; and

(b) 40 CFR Part 60, subpart OOOOa, Standards of Performance for Crude Oil and Natural Gas Facilities for which Construction, Modification or Reconstruction Commenced After September 18, 2015.

(3) Copies of material incorporated by reference in this chapter are available for public inspection and copying at the Department of Environmental Quality, 1520 E. 6th Ave., P.O. Box 200901, Helena, MT 59620-0901.

(4) A copy of federal materials also may be obtained from:

(a) National Technical Information Service (NTIS), 5301 Shawnee Road, Alexandria, VA 22312; phone: (800) 553-6847 or (703) 605-6000; fax: (703) 605-6900; e-mail: info@ntis.gov; web: http://www.ntis.gov ;

(b) U.S. Government Publishing Office, 732 North Capital Street, NW, Washington, DC 20401-001; phone: (866) 512-1800 or (202) 512-1800; fax: (202) 512-2104; e-mail: contactcenter@gpo.gov; web: https://www.gpo.gov ; and

History

Authorizing statute(s): 75-2-112, MCA
Implementing statute(s): 75-2-112, MCA
History: NEW, 1996 MAR p. 1844, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1997 MAR p. 1581, Eff. 9/9/97; AMD, 1998 MAR p. 1725, Eff. 6/26/98; AMD, 1999 MAR p. 2250, Eff. 10/8/99; AMD, 2000 MAR p. 2696, Eff. 10/6/00; AMD, 2001 MAR p. 1468, Eff. 8/10/01; AMD, 2002 MAR p. 1747, Eff. 6/28/02; AMD, 2003 MAR p. 645, Eff. 4/11/03; AMD, 2004 MAR p. 724, Eff. 4/9/04; AMD, 2005 MAR p. 959, Eff. 6/17/05; AMD, 2006 MAR p. 1956, Eff. 8/11/06; AMD, 2007 MAR p. 1663, Eff. 10/26/07; AMD, 2008 MAR p. 2267, Eff. 10/24/08; AMD, 2009 MAR p. 411, Eff. 4/17/09; AMD, 2009 MAR p. 1784, Eff. 10/16/09; AMD, 2011 MAR p. 143, Eff. 2/11/11; AMD, 2012 MAR p. 2603, Eff. 12/21/12; AMD, 2014 MAR p. 1256, Eff. 6/13/14; AMD, 2015 MAR p. 817, Eff. 6/26/15; AMD, 2016 MAR p. 1848, Eff. 10/15/16; AMD, 2018 MAR p. 438, Eff. 2/24/18; AMD, 2024 MAR p. 253, Eff. 2/10/24; AMD, 2024 MAR p. 2056, Eff. 8/24/24.

Mont. Admin. R. 17.8.103 Incorporation by Reference

(1) For the purposes of this subchapter, the department adopts and incorporates by reference the following:

(a) 40 CFR Part 50, Appendix B, pertaining to the reference method for the determination of suspended particulate matter in the atmosphere (high-volume method);

(b) 40 CFR Part 50, Appendix J, pertaining to reference methods for the determination of particulate matter as PM-10 in the atmosphere;

(d) 40 CFR Part 51, Appendix P, pertaining to EPA minimum emission monitoring requirements;

(e) 40 CFR Part 53, pertaining to ambient air monitoring reference methods and equivalent methods;

(f) 40 CFR Part 60, Appendix A, pertaining to EPA emission source reference test methods for stationary sources;

(g) 40 CFR Part 60, Appendix B, pertaining to EPA performance specification and test procedures for continuous emission monitoring systems;

(h) 40 CFR Part 61, Appendix B, pertaining to EPA emission source reference test methods for sources subject to national emission standards for hazardous air pollutants;

(i) 40 CFR Part 63, pertaining to emission standards for hazardous air pollutant source categories;

(j) ARM Title 17, chapter 53, subchapter 5, pertaining to the identification and listing of hazardous waste;

(k) ARM Title 17, chapter 53, subchapter 10, pertaining to standards for the management of specific hazardous wastes and specific types of hazardous waste management facilities;

(l) section 75-10-403(8), MCA, pertaining to the statutory definition of "hazardous waste";

(m) section 112(b)(1) of the Federal Clean Air Act (FCAA), as codified in 42 USC 7412(b)(1), pertaining to substances designated as hazardous air pollutants; and

(n) the Montana Source Test Protocol and Procedures Manual (July 1994 ed.), a department manual pertaining to sampling and data collection, recording, analysis, and transmittal requirements.

(2) Copies of materials incorporated by reference in this subchapter may be obtained as referenced in ARM 17.8.102(3) and (4).

History

Authorizing statute(s): 75-2-112, MCA
Implementing statute(s): 75-2-112, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; AMD, 1994 MAR p. 2828, Eff. 10/28/94; AMD, 1996 MAR p. 1844, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1997 MAR p. 1581, Eff. 9/9/97; AMD, 1999 MAR p. 2250, Eff. 10/8/99; AMD, 2000 MAR p. 2696, Eff. 10/6/00; AMD, 2001 MAR p. 1468, Eff. 8/10/01; AMD, 2003 MAR p. 645, Eff. 4/11/03; AMD, 2004 MAR p. 724, Eff. 4/9/04; AMD, 2005 MAR p. 959, Eff. 6/17/05; AMD, 2006 MAR p. 1956, Eff. 8/11/06; AMD, 2007 MAR p. 1663, Eff. 10/26/07; AMD, 2015 MAR p. 370, Eff. 4/17/15; AMD, 2015 MAR p. 817, Eff. 6/26/15; AMD, 2016 MAR p. 1848, Eff. 10/15/16; AMD, 2018 MAR p. 438, Eff. 2/24/18; AMD, 2024 MAR p. 253, Eff. 2/10/24; AMD, 2024 MAR p. 2056, Eff. 8/24/24.

Mont. Admin. R. 17.8.105 Testing Requirements

(1) Any person or persons responsible for the emission of any air contaminant into the outdoor atmosphere shall upon written request of the department provide the facilities and necessary equipment including instruments and sensing devices and shall conduct tests, emission or ambient, for such periods of time as may be necessary using methods approved by the department. Such emission or ambient tests shall include, but not be limited to, a determination of the nature, extent, and quantity of air contaminants which are emitted as a result of such operation at all sampling points designated by the department. These data shall be maintained for a period of not less than one year and shall be available for review by the department. Such testing and sampling facilities may be either permanent or temporary at the discretion of the person responsible for their provision, and shall conform to all applicable laws and regulations concerning safe construction or safe practice.

(2) All sources subject to the requirements of 40 CFR Part 51, Appendix P, incorporated by reference in ARM 17.8.103, must install, calibrate, maintain, and operate equipment for continuously monitoring and recording emissions. All subject sources must have installed all necessary equipment and shall have begun monitoring and recording emissions data in accordance with Appendix P by January 31, 1988.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: Eff. 12/31/72; AMD, 1987 MAR p. 159, Eff. 2/14/87; AMD, 1996 MAR p. 1844, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.106 Source Testing Protocol

(1) The requirements of this rule apply to any emission source testing conducted by the department, any source, or any other entity as required by any rule in this chapter, or any permit or order issued pursuant to this chapter, or the provisions of the Clean Air Act of Montana, 75-2-101 , et seq., MCA.

(2) All emission source testing, sampling and data collection, recording, analysis, and transmittal must be performed as specified in the Montana Source Test Protocol and Procedures Manual, unless alternate equivalent requirements are determined by the department and the source to be appropriate, and prior written approval has been obtained from the department. If the use of an alternative test method requires approval by the administrator, that approval must also be obtained.

(3) Unless otherwise specified in the Montana Source Test Protocol and Procedures Manual or elsewhere in this chapter, all emission source testing must be performed as specified in any applicable sampling method contained in: 40 CFR Part 60, Appendix A; 40 CFR Part 60, Appendix B; 40 CFR Part 61, Appendix B; 40 CFR Part 51, Appendix M; 40 CFR Part 51, Appendix P; and 40 CFR Part 63. Such emission source testing must also be performed in compliance with the requirements of the EPA Handbook for Air Pollution Measurement Systems. Alternative equivalent requirements may be used if the department and the source have determined that such alternative equivalent requirements are appropriate, and prior written approval has been obtained from the department. If approval by the administrator of an alternative test method is required, that approval must also be obtained.

(4) Failure to comply with this rule shall constitute a violation of this rule, and may result in the partial or complete rejection by the department of the appropriate emission source testing data. The partial or complete rejection by the department of the appropriate emission source testing data may subsequently result in a determination by the department that a permit application is incomplete, that insufficient data is available to determine compliance with an emission limitation or standard and additional testing is necessary to demonstrate compliance, or that insufficient data is available to determine the correct fee required under subchapter 5 and additional testing is necessary.

(5) Any changes to the Montana Source Test Protocol and Procedures Manual shall follow the appropriate rulemaking procedures.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1999 MAR p. 2767, Eff. 10/8/99; AMD, 2003 MAR p. 645, Eff. 4/11/03; AMD, 2004 MAR p. 724, Eff. 4/9/04.

Mont. Admin. R. 17.8.110 Malfunctions

(1) "Malfunction" means any sudden and unavoidable failure to operate in a normal manner by air pollution control equipment, process equipment, or a process that affects emissions. A failure caused entirely or in part by poor maintenance, careless operation, poor design, or any other preventable upset condition or preventable equipment breakdown is not a malfunction.

(2) The department must be notified promptly by telephone whenever a malfunction occurs that is expected to create emissions in excess of any applicable emission limitation, or to continue for a period greater than four hours. If telephone notification is not immediately possible, notification at the beginning of the next working day is acceptable. The notification must include the following information:

(a) identification of the emission points and equipment causing the excess emissions;

(b) magnitude, nature, and cause of the excess emissions;

(d) description of the corrective actions taken or expected to be taken to remedy the malfunction and to limit the excess emissions;

(e) information sufficient to assure the department that the failure to operate in a normal manner by the air pollution control equipment, process equipment, or processes was not caused entirely or in part by poor maintenance, careless operation, poor design, or any other preventable upset condition or preventable equipment breakdown; and

(f) readings from any continuous emission monitor on the emission point and readings from any ambient monitors near the emission point.

(3) Upon receipt of notification pursuant to (2) , the department shall promptly investigate and determine whether a malfunction has occurred.

(4) If a malfunction occurs and creates emissions in excess of any applicable emission limitation, the department may elect to take no enforcement action if:

(a) the owner or operator of the source provided the notification required by (2) ;

(b) the malfunction did not interfere with the attainment and maintenance of any state or federal ambient air quality standard; and

(5) Within one week after a malfunction has been corrected, the owner or operator must submit a written report to the department that includes:

(a) a statement that the malfunction has been corrected, the date of correction, and proof of compliance with all applicable air quality standards contained in this chapter or a statement that the source is planning to install or has installed temporary replacement equipment in accordance with the requirements of (7) ;

(b) a statement of the specific cause of the malfunction;

(d) a statement affirming that the failure to operate in a normal manner by the air pollution control equipment, process equipment, or processes was not caused entirely or in part by poor maintenance, careless operation, poor design, or any other preventable upset condition or preventable equipment breakdown.

(6) The burden of proof is on the owner or operator of the source to provide sufficient information to demonstrate that a malfunction occurred.

(7) Malfunctioning process or emission control equipment may be temporarily replaced without obtaining a Montana air quality permit under the requirements of ARM Title 17, chapter 8, subchapter 7, if:

(a) the department has been notified of the malfunction in compliance with the requirements of (2) ; and

(b) continued operation or non-operation of the malfunctioning equipment would:

(i) create a health or safety hazard for the public;

(ii) cause a violation of any applicable air quality rule;

(iii) damage other process or control equipment; or

(iv) cause a source to lay-off or suspend a substantial portion of its work force for an extended period.

(8) If construction, installation, or use of temporary replacement equipment under (7) constitutes a major modification and subjects a major stationary source to the requirements of ARM Title 17, chapter 8, subchapters 8, 9, or 10, the source must comply with the requirements of the applicable subchapter prior to construction, installation, or use of the temporary replacement equipment.

(9) Any source that constructs, installs, or uses temporary replacement equipment under (7) shall comply with the following conditions:

(a) Prior to operation of the temporary replacement equipment, the source shall notify the department in writing of its intent to construct, install, or use temporary replacement equipment.

(b) Prior to operation of the temporary replacement equipment, the source shall demonstrate to the department that the estimated actual emissions from the temporary replacement equipment, operating at its maximum expected operating rate, are no greater than the potential to emit of the malfunctioning process or control equipment prior to the malfunction.

(c) The source shall record, and report to the department at its request, operating information sufficient to demonstrate that the temporary replacement equipment operated within the maximum expected operating rate.

(d) The temporary replacement equipment and the malfunctioning process or emission control equipment may not be operated simultaneously, except during a brief shakedown period or as otherwise approved in writing by the department.

(e) The temporary replacement equipment must be removed or rendered inoperable within 180 days after initial startup of the temporary replacement equipment, or within 30 days after startup of the repaired malfunctioning process or emission control equipment, whichever is earlier, unless the source has submitted to the department an application for a Montana air quality permit for the temporary replacement equipment or the department has approved a plan for removing the temporary replacement equipment or rendering the temporary replacement equipment inoperable by a specific date.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: NEW, 1982 MAR p. 1201, Eff. 6/18/82; AMD, 1995 MAR p. 2411, Eff. 11/10/95; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2003 MAR p. 645, Eff. 4/11/03.

Mont. Admin. R. 17.8.111 Circumvention

(1) No person shall cause or permit the installation or use of any device or any means which, without resulting in reduction in the total amount of air contaminant emitted, conceals or dilutes an emission of air contaminant which would otherwise violate an air pollution control regulation.

(2) No equipment that may produce emissions shall be operated or maintained in such a manner that a public nuisance is created.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: Eff. 12/31/72; AMD, 1985 MAR p. 1326, Eff. 9/13/85; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.120 Variance Procedures--Initial Application

(1) Initial application for exemption may be in the form of a letter, and must be submitted to the department with copies sent to the parties. The application must contain or be accompanied by information and data to show that:

(a) the emissions occurring or proposed to occur do not constitute a danger to public health or safety; and

(b) compliance with the rules from which exemption is sought would produce hardship without equal or greater benefits to the public.

(2) Upon filing of the application, public hearing thereon will be scheduled. No hearing will be held until the requirements of the Montana Environmental Policy Act have been fulfilled. Time for hearing will also take into consideration due notice requirements set forth herein.

(3) Notice of hearing is to be served upon the applicant and the general public not later than 30 days prior to the hearing. Notice of hearing is also to be given to the local air pollution control officer having jurisdiction, to all known interested persons and to any person or group upon request.

(a) Notice may be served upon applicant by mail.

(b) Notice is to be published at least once in a newspaper of general circulation published in the geographical area wherein the plant or equipment of applicant is located.

(i) name and address of the applicant;

(ii) time, location and nature of the hearing;

(iii) brief description of applicant's activities, matters asserted, or operations which result in the emissions described in the application;

(iv) a brief description of the purpose of the hearing, including a reference to the particular statute and rules involved;

(v) address and phone number of the premises at which interested persons may obtain further information, inspect, copy or obtain a copy of the application;

(vi) the legal authority and jurisdiction under which the hearing is to be held.

(4) Hearings held pursuant to this subchapter are for the purpose of determining whether the application for exemption should be granted. In making its determination, the department shall resolve issues raised by parties, and shall consider comments submitted by the general public.

(a) Members of the general public may submit comments concerning the application for exemption. Comments must be submitted in writing to the department within 20 days after date of publication of public notice pursuant to (3). If written comments are timely filed, a commenter may orally present those comments to the department at the hearing.

(b) Any person may submit a request to be a party within 20 days after date of publication of public notice pursuant to (3). Requests to be a party under this section shall be directed to the department and shall state:

(i) name and address of the person making the request;

(ii) identify the interest of the requester and any person or group requester represents;

(iii) include an agreement by requester and any person represented by requester to be subject to examination and cross-examination, and in case of a corporation, to make an employee available for examination and cross-examination at his own expense upon request of the presiding officer, on his own motion or by motion of any party;

(iv) any request to be made a party shall state the position of the requester on the issues to be considered at the hearing.

(c) Except as provided in (4) (d) , conduct of the hearing must be in accordance with "contested case" procedures of the Montana Administrative Procedure Act (MAPA) and the model rules of the Attorney General promulgated in pursuance thereto.

(d) MAPA contested case procedures do not apply to that portion of the hearing conducted for the purpose of receiving comments from the general public. The department may use such public comment procedures as it finds are appropriate under the circumstances of a particular case.

History

Authorizing statute(s): 75-2-112, MCA
Implementing statute(s): 75-2-212, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1997 MAR p. 1189, Eff. 7/8/97; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.8.121 Variance Procedures--Renewal Application

(1) No renewal of exemption shall be granted except on application, submitted on a form designated "application for renewal" form obtained from the department.

(2) Public notice of the renewal application shall be given at the applicant's expense immediately prior to the submission of the application, in the following manner:

(a) By publication and notice at least once in a newspaper of general circulation published within the geographical area wherein the plant or equipment is located.

(b) The notice shall state, in effect, that application is being made to the department to renew an exemption permit to allow the continued operation of equipment or plant at a specified address, which equipment or plant emits air contaminants not otherwise allowed by rules of the department. The notice shall also state the name and business address of the applicant.

(c) A copy of the notice, certified as to the manner of publication, shall be filed with the department concurrent with the publication.

(3) If complaint is made to the department on the application for renewal:

(a) Public hearing shall be held on due notice served upon the holder of the exemption complained of, upon the complainants, and upon the general public.

(b) Manner of service and publication of notice shall be the same as provided in ARM 17.8.120(3).

(d) The form of the complaint shall include, but is not limited to, the name and address of the complainant, the name and address of the holder of the exemption complained of, and a sufficient statement of the complainant to allow the department to give notice of the issues involved at the hearing.

History

Authorizing statute(s): 75-2-112, MCA
Implementing statute(s): 75-2-212, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.8.130 Enforcement Procedures--Notice of Violation--Order to Take Corrective Action

(1) A written notice of violation may contain, but is not limited to:

(a) the name of the alleged violator;

(b) the last known address of the alleged violator;

(d) a summary of the complaint made by the department including:

(i) the specific provisions of the statute, rule or permit alleged to be violated; and

(ii) the specific facts alleged to constitute a violation; and

(e) any order to take corrective action, order to pay an administrative penalty, or both; and

(f) if the department has issued an order to take corrective action, a statement in conspicuous type stating that the alleged violator will be found in default and the order will become final and enforceable unless, not later than 30 days after the notice is received, the person named requests, in writing, a hearing before the board.

(2) Notice of violation shall be served personally upon the alleged violator, and acknowledgement of service obtained from the alleged violator or affidavit of service will be completed by the person making the service and made part of the file.

History

Authorizing statute(s): 75-2-111, MCA
Implementing statute(s): 75-2-401, MCA
History: Eff. 12/31/72; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2004 MAR p. 724, Eff. 4/9/04.

Mont. Admin. R. 17.8.131 Enforcement Procedures--Appeal to Board

(1) If the alleged violator desires to petition the board for hearings, the form of the petition shall be in substantially the following form:

(a) The name, address and telephone number of the petitioner, or other person authorized to receive service of notices.

(b) The type of business or activity involved, and the address of such business.

(d) A statement that petitioner denies the allegations in full or in part, and that he seeks a hearing to protest the issuance of any corrective order.

(e) The petitioner shall sign the petition, or it shall be signed by some person on his behalf, and the authority of such other person so signing must appear.

(2) If hearing is held, rules of practice as provided in contested cases shall apply.

History

Authorizing statute(s): 75-2-111, MCA
Implementing statute(s): 75-2-401, MCA
History: Eff. 12/31/72; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.132 Credible Evidence

(1) For the purpose of submitting a compliance certification required pursuant to this chapter, or establishing whether or not a person has violated or is in violation of any standard or limitation adopted pursuant to this chapter or Title 75, chapter 2, MCA, nothing in these rules shall preclude the use, including the exclusive use, of any credible evidence or information, relevant to whether a source would have been in compliance with such standard or limitation if the appropriate performance or compliance test procedures or methods had been performed. However, when compliance or noncompliance is demonstrated by a test or procedure provided by permit or other applicable requirement, the owner or operator shall then be presumed to be in compliance or noncompliance unless that presumption is overcome by other relevant credible evidence.

History

Authorizing statute(s): 75-2-111, 75-2-201, 75-2-203, 75-2-217, MCA
Implementing statute(s): 75-2-203, 75-2-217, MCA
History: NEW, 2000 MAR p. 3363, Eff. 12/8/00.

Mont. Admin. R. 17.8.140 Rehearing Procedures--Form and Filing of Petition

(1) The petition shall contain the following information:

(a) The name, address and telephone number of the aggrieved party or other party authorized to receive service of notices.

(b) The file or docket number assigned by the board to the original hearing from which rehearing is requested, and any additional identifying title assigned to the original hearing.

(d) A statement of which subsection under the statute the petitioner asserts is the jurisdictional basis for the grant of a rehearing.

(e) A summary argument stating why petitioner is entitled to a rehearing under the subsection cited as his jurisdictional basis.

History

Authorizing statute(s): 75-2-111, MCA
Implementing statute(s): 75-2-411, MCA
History: Eff. 12/31/72; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.141 Rehearing Procedures--Filing Requirements

(1) The aggrieved party shall file his petition for a rehearing within 20 days following his receipt of the board's written decision adverse to his interest.

History

Authorizing statute(s): 75-2-111, MCA
Implementing statute(s): 75-2-411, MCA
History: Eff. 12/31/72; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.142 Rehearing Procedures--Board Review

(1) The board must act within a reasonable time to grant or deny petitioner's request for rehearing, but in no event shall such time exceed 30 days following receipt of said petition.

(2) Procedure shall be in accordance with the rules of procedure for adversary or contested cases if the original hearing concerned enforcement, emergency procedures or where adjudicated facts were at issue; if the original hearing concerned variance procedure, substantive rulemaking or the establishment of local air pollution control programs, rules of procedure for appellate type hearings will be used.

History

Authorizing statute(s): 75-2-111, MCA
Implementing statute(s): 75-2-411, MCA
History: Eff. 12/31/72; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.150 Definitions

For purposes of this subchapter, the following terms have the following meanings:

(1) "Board" means the Board of Environmental Review provided for in 2-15-3502, MCA.

(2) "Potential conflict of interest" means:

(a) any income from a regulated person; or

(b) any interest or relationship that would preclude the individual having the interest or relationship from being considered one who represents the public interest.

(3) "Regulated person" means:

(a) a person, other than a department or agency of a state, local, or regional government, who is subject to a permit or an enforcement order that implements the federal Clean Air Act; or

(b) any trade or business association of which a person described in (3)(a) is a member.

(4) "Represent the public interest" means that the person does not:

(a) own a controlling interest in or have five percent or more of his or her capital invested in a regulated person;

(b) serve as attorney for, act as consultant for, or serve as an officer or director of a regulated person; or

(5) "Significant portion of income" means ten percent or more of gross personal income for a calendar year, including retirement benefits, consultant fees, and stock dividends, except that it shall mean 50 percent or more of gross personal income for a calendar year if the recipient is over 60 years of age and is receiving such portion pursuant to retirement, pension, or similar arrangement. For purposes of this section, income derived from mutual-fund payments, or from other diversified investments as to which the recipient does not know the identity of the primary sources of income, shall be considered part of the recipient's gross personal income but shall not be treated as income derived from persons subject to permits or enforcement orders under the Clean Air Act.

History

Authorizing statute(s): 75-2-111, MCA
Implementing statute(s): 75-2-111, MCA
History: NEW, 2015 MAR p. 1903, Eff. 10/30/15.

Mont. Admin. R. 17.8.151 Board Action

(1) The board may not take action on any contested case matter that arises under the Clean Air Act of Montana unless a majority of members of the board at the time of the action:

(a) represent the public interest; and

(b) do not derive a significant portion of income from regulated persons.

History

Authorizing statute(s): 75-2-111, MCA
Implementing statute(s): 75-2-111, MCA
History: NEW, 2015 MAR p. 1903, Eff. 10/30/15.

Mont. Admin. R. 17.8.152 Reporting

(1) At the first meeting each calendar year and prior to the first meeting following a change in the board's membership, each board member who represents the public interest and does not derive a significant portion of income from regulated persons shall file with the board secretary a written certification of this status.

(2) If, subsequent to making a certification under (1), a board member no longer represents the public interest or has begun to derive a significant portion of income from regulated persons, the member shall file with the board a written withdrawal of certification.

(3) Whenever the board is prohibited by ARM 17.8.151 from taking action, the chairman shall notify the Governor of this fact in writing and shall in the notice list the members of the board who do not represent the public interest or who derive a significant portion of income from regulated persons.

(4) Each board member who has a potential conflict of interest shall file with the board a written disclosure of the interest that creates the potential conflict.

History

Authorizing statute(s): 75-2-111, MCA
Implementing statute(s): 75-2-111, MCA
History: NEW, 2015 MAR p. 1903, Eff. 10/30/15.

Subchapter 17.8.2 Ambient Air Quality

Mont. Admin. R. 17.8.201 Definitions

In this subchapter, the following words and phrases shall have the following meanings:

(1) "Act" means the Montana Clean Air Act.

(2) "Administrator," as used in 40 CFR Part 58, means the department.

(3) "Ambient air quality standards" means a permissible level of an air contaminant in the ambient air as defined by the maximum frequency with which a specified level may be exceeded or by a maximum level of an air contaminant in or on body or plant tissues.

(4) "Annual average" means an arithmetic average of any four consecutive valid calendar quarterly averages, where calendar quarterly averages are determined as specified in (3)(a) and (b); except that for hourly data at least 6,570 valid hourly averages must be contained in the four consecutive calendar quarters.

(a) For hourly data, the calendar quarterly average is the arithmetic average of all valid hourly averages collected during the quarter, except that the minimum number of valid hourly averages necessary to determine a valid quarterly average is 65% of the hourly averages contained in the quarter.

(b) For 24-hour data, the calendar quarterly average is the arithmetic average of all valid interval averages, except that the minimum number of valid interval averages necessary to determine a valid quarterly average is 80% of the interval averages contained in the quarter.

(5) "Approved equivalent method" means any method of measuring concentrations of air contaminants regulated in this subchapter which has been approved as an equivalent method by the U.S. EPA pursuant to 40 CFR Part 53, or which has been approved by the department. Methods approved by the department are kept on file and are available for inspection and copying.

(6) "Carbon monoxide" means the gas having the molecular composition of one carbon atom and one oxygen atom.

(7) "Eight-hour average" means the arithmetic average of all valid recorded values during any consecutive eight hours but not less than six valid hourly averages.

(8) "Fluoride" means fluorine combined with one or more other substances.

(9) "Forage" means any plant part which is grazed or browsed.

(10) "Grams per square meter" (gm/m 2 ) means a concentration numerically equal to the mass of an air contaminant (in grams) deposited on one square meter of surface.

(11) "Grazing season average" means, for each sample plot, an arithmetic average of all monthly averages for which sampling occurred in accordance with ARM 17.8.230. The minimum number of monthly averages shall be at least three for any sample plot.

(12) "Hourly average" means an arithmetic average of all valid values recorded between the first minute and 60th minute of the hour (e.g. 1:00 to 2:00), but not less than 2/3 of the data obtainable from the monitoring device during the hour, or an integral sample of more than 40 minutes.

(13) "Hydrogen fluoride" means the gas having the molecular composition of one fluorine atom and one hydrogen atom.

(14) "Hydrogen sulfide" means the gas having molecular composition of one sulfur atom and two hydrogen atoms.

(15) "Interval average" means the arithmetic average of all valid 24-hour averages collected during a specific scheduled sampling interval, except that the minimum number of valid 24-hour averages necessary to determine a valid interval average is one. If a scheduled sampling interval extends into two calendar quarters or two 90-day averaging periods the interval average shall be assigned to the calendar quarter or 90-day averaging period containing the start date of the interval.

(16) "Lead" means elemental lead or lead in combination with any other substance.

(17) "Micrograms per cubic meter" (µg/m 3 ) means a concentration numerically equal to the mass of an air contaminant present (in micrograms) in a one cubic meter of air, corrected to standard conditions.

(18) "Micrograms per gram" (µg/g) means a concentration numerically equal to the mass of an air contaminant (in micrograms) in one gram of dry material.

(19) "Monthly average" means the arithmetic average for a sample plot, taken for all applicable months in accordance with ARM 17.8.230 of all sample plot values of fluoride in or on forage samples collected. The minimum number of sample plot values must be two. The two sample plot values must be separated by at least a 12-day interval. Any number of sample plot values in excess of two for any month must be sampled at least X days from each other, where X is the integer value described by the following equation:

X = (30/number of sample plot values) - 2

Regardless of the number of sample plot values used to calculate a monthly average, at least one sample plot value must lie within 12 days of the end of the month.

(20) "Ninety-day average" means the arithmetic average of all valid interval averages recorded during any 90 consecutive days except that the minimum number of valid interval averages necessary to determine a valid 90-day average is 80% of the interval averages contained in the 90 days.

(21) "Nitrogen dioxide" means the gas having the molecular composition of one nitrogen atom and two oxygen atoms.

(22) "Ozone" means the gas having the molecular composition of three oxygen atoms.

(23) "Particle scattering coefficient" means the fractional change in the light intensity per meter of sight path due to particulate matter.

(24) "Parts per billion" (ppb) means a concentration of an air contaminant numerically equal to the volume of a gaseous air contaminant present in one billion volumes of air at the same conditions of temperature and pressure.

(25) "Parts per million" (ppm) means a concentration of an air contaminant numerically equal to the volume of a gaseous air contaminant present in one million volumes of air at the same conditions of temperature and pressure.

(26) "Regional administrator," as used in 40 CFR Part 58, means the department.

(27) "Sample plot value" means the results of any chemical analysis performed on a composite of forage clippings taken from a given sample plot on a specific sampling day.

(28) "Scheduled sampling interval" means the time period commencing with the start of one scheduled sampling day and ending at the start of the next scheduled sampling day, where "scheduled" means a predetermined routine sampling frequency. If the sampling schedule is changed during any calendar quarter or 90-day averaging period the scheduled sampling interval shall be the largest possible time period based on any of the sampling schedules.

(29) "Standard conditions" means a temperature of 25º Celsius and a pressure of 760 millimeters of mercury.

(30) "Sulfur dioxide" means the gas having the molecular composition of one sulfur atom and two oxygen atoms.

(31) "Thirty-day average" means an arithmetic average of all recorded values during any consecutive 30 days, but not less than 20 valid 24-hour average recorded values or an integral sample of more than 20 days.

(32) "Twenty-four hour average" means an arithmetic average of each valid recorded value during any consecutive 24 hours, but not less than 18 valid hourly averages or an integral sample of more than 18 hours.

(33) "Valid recorded value" means data recorded, collected, transmitted, and analyzed as required by ARM 17.8.212.

(34) "Year" means any 12 consecutive months.

History

Authorizing statute(s): 75-2-111, 75-2-202, MCA
Implementing statute(s): 75-2-202, MCA
History: NEW, 1980 MAR p. 2399, Eff. 8/15/80; AMD, 1981 MAR p. 847, Eff. 8/14/81; AMD, 1986 MAR p. 2007, Eff. 12/12/86; AMD, 1988 MAR p. 826, Eff. 4/29/88; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2007 MAR p. 1663, Eff. 10/26/07; AMD, 2015 MAR p. 370, Eff. 4/17/15.

Mont. Admin. R. 17.8.202 Incorporation by Reference

(1) For the purposes of this subchapter, the department adopts and incorporates by reference the following:

(a) The Montana Ambient Air Monitoring Program Quality Assurance Project Plan (2023), a department manual that specifies ambient air sampling and data collection, recording, analysis, and transmittal requirements that pertain only to the department's monitoring program;

(b) 40 CFR Part 50, specifying the national ambient air quality standards and ambient air quality monitoring reference methods;

(d) 40 CFR Part 58, specifying criteria and requirements for ambient air quality monitoring and reporting.

(2) Copies of materials incorporated by reference in this subchapter may be obtained as referenced in ARM 17.8.102(3) and (4).

History

Authorizing statute(s): 75-2-112, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: NEW, 1996 MAR p. 1844, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1997 MAR p. 1581, Eff. 9/9/97; AMD, 1999 MAR p. 2250, Eff. 10/8/99; AMD, 2005 MAR p. 959, Eff. 6/17/05; AMD, 2007 MAR p. 1663, Eff. 10/26/07; AMD, 2015 MAR p. 370, Eff. 4/17/15; AMD, 2018 MAR p. 438, Eff. 2/24/18; AMD, 2023 MAR p. 1863, Eff. 12/23/23; AMD, 2024 MAR p. 2056, Eff. 8/24/24.

Mont. Admin. R. 17.8.204 Ambient Air Monitoring

(1) The requirements of this rule apply to any ambient air monitoring performed by the department or any other entity that is:

(a) required by this chapter;

(b) used to demonstrate compliance with this chapter;

(d) used to satisfy any applicable requirement of Title 75, chapter 2, MCA, or the federal Clean Air Act, 42 USC 7401 through 7671g, or implementing regulations, for which the department has oversight.

(2) Any entity performing ambient air monitoring within the state of Montana for a purpose listed in (1) shall perform it according to a Quality Assurance Project Plan (QAPP) prepared to satisfy the applicable requirements of 40 CFR Parts 50, 53, and 58. If the ambient air monitoring is to be performed to comply with subchapter 8 of this chapter, an entity shall also consider the EPA Ambient Monitoring Guidelines for Prevention of Significant Deterioration (PSD), EPA-450/4-87-007 (May 1987).

(3) If monitoring for a purpose in (1) is performed by:

(a) the department, it must be performed in compliance with the Montana Ambient Air Monitoring Program Quality Assurance Project Plan; or

(b) any other entity, it must be performed in compliance with a project-specific QAPP that has been submitted to and approved by the department.

(4) The department shall notify the entity in writing of approval, conditional approval, or disapproval within 60 days after receiving a project-specific QAPP required by (3)(b). If the department receives additional information in response to a notice of conditional approval or disapproval, the 60-day review period begins again.

(5) The department may invalidate, in whole or in part, ambient air monitoring data that was not obtained in compliance with this rule. Invalidated data may not be used for the purposes listed in (1).

History

Authorizing statute(s): 75-2-111, MCA
Implementing statute(s): 75-2-201, 75-2-202, MCA
History: NEW, 1986 MAR p. 2007, Eff. 12/12/86; AMD, 1989 MAR p. 2059, Eff. 12/8/89; AMD, 1992 MAR p. 144, Eff. 1/31/92; AMD, 1995 MAR p. 535, Eff. 4/14/95; AMD, 1996 MAR p. 1844, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1999 MAR p. 2250, Eff. 10/8/99; AMD, 2015 MAR p. 370, Eff. 4/17/15.

Mont. Admin. R. 17.8.205 Enforceability

(1) Any person who violates any provision of this subchapter shall be subject to the enforcement provisions of the Act. Except as otherwise provided in this subchapter, the ambient air quality standards are applicable throughout the state of Montana.

History

Authorizing statute(s): 75-2-111, 75-2-202, MCA
Implementing statute(s): 75-2-202, MCA
History: NEW, 1980 MAR p. 2399, Eff. 8/15/80; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.206 Methods and Data

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-2-111, 75-2-202, MCA
Implementing statute(s): 75-2-202, MCA
History: NEW, 1980 MAR p. 2399, Eff. 8/15/80; AMD, 1986 MAR p. 2007, Eff. 12/12/86; AMD, 1989 MAR p. 2059, Eff. 12/8/89; AMD, 1992 MAR p. 144, Eff. 1/31/92; AMD, 1996 MAR, p. 1844, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1999 MAR p. 2250, Eff. 10/8/99; REP, 2015 MAR p. 370, Eff. 4/17/15.

Mont. Admin. R. 17.8.210 Ambient Air Quality Standards for Sulfur Dioxide

(1) No person shall cause or contribute to concentrations of sulfur dioxide in the ambient air which exceed any of the following standards:

(a) hourly average: 0.50 ppm, one-hour average, not to be exceeded more than 18 times in any 12 consecutive months;

(b) twenty-four hour average: 0.10 ppm, 24-hour average, not to be exceeded more than once per year;

(2) For determining compliance with this rule, sulfur dioxide shall be measured by the pararosaniline method as more fully described in 40 CFR Part 50, Appendix A, incorporated by reference in ARM 17.8.202, or by an approved equivalent method.

History

Authorizing statute(s): 75-2-111, 75-2-202, MCA
Implementing statute(s): 75-2-202, MCA
History: NEW, 1980 MAR p. 2399, Eff. 8/15/80; AMD, 1987 MAR p. 1482, Eff. 8/28/87; AMD, 1996 MAR p. 1844, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1997 MAR p. 1582, Eff. 9/9/97.

Mont. Admin. R. 17.8.211 Ambient Air Quality Standards for Nitrogen Dioxide

(1) No person shall cause or contribute to concentrations of nitrogen dioxide in the ambient air which exceed any of the following standards:

(a) hourly average: 0.30 ppm, one-hour average, not to be exceeded more than once per year;

(b) annual average: 0.05 ppm, annual average, not to be exceeded.

(2) For determining compliance with this rule, nitrogen dioxide shall be measured by the chemiluminescence method, as more fully described in 40 CFR Part 50, Appendix F, incorporated by reference in ARM 17.8.202, or by an approved equivalent method.

History

Authorizing statute(s): 75-2-111, 75-2-202, MCA
Implementing statute(s): 75-2-202, MCA
History: NEW, 1980 MAR p. 2399, Eff. 8/15/80; AMD, 1996 MAR p. 1844, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.212 Ambient Air Quality Standards for Carbon Monoxide

(1) No person shall cause or contribute to concentrations of carbon monoxide in the ambient air which exceed any of the following standards:

(a) Hourly average: 23 ppm, hourly average, not to be exceeded more than once per year.

(b) Eight-hour average: 9 ppm, eight-hour average, not to be exceeded more than once per year.

(2) Measurement method: For determining compliance with this rule, carbon monoxide shall be measured by the nondispersive infrared method, as more fully described in 40 CFR Part 50, Appendix C (1979), or by an approved equivalent method.

History

Authorizing statute(s): 75-2-111, 75-2-202, MCA
Implementing statute(s): 75-2-202, MCA
History: NEW, 1980 MAR p. 2399, Eff. 8/15/80; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.213 Ambient Air Quality Standard for Ozone

(1) No person shall cause or contribute to concentrations of ozone in the ambient air which exceed the following standard:

(a) hourly average: 0.10 ppm one-hour average, not to be exceeded more than once per year.

(2) For determining compliance with this rule, ozone shall be measured by the chemiluminescence method, as more fully described in 40 CFR Part 50, Appendix D, incorporated by reference in ARM 17.8.202, or by an approved equivalent method.

History

Authorizing statute(s): 75-2-111, 75-2-202, MCA
Implementing statute(s): 75-2-202, MCA
History: NEW, 1980 MAR p. 2399, Eff. 8/15/80; AMD, 1996 MAR p. 1844, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.214 Ambient Air Quality Standard for Hydrogen Sulfide

(1) No person shall cause or contribute to concentrations of hydrogen sulfide in the ambient air which exceed the following standard:

(a) hourly average: 0.05 ppm, one-hour average, not to be exceeded more than once per year.

(2) Measurement method: For determining compliance with this rule, hydrogen sulfide shall be measured by the methylene blue spectrophotometric method, as more fully described in "Methods of Air Sampling and Analysis, Second Edition" (1977) Method P and CAM 126-6, or by an approved equivalent method.

History

Authorizing statute(s): 75-2-111, 75-2-202, MCA
Implementing statute(s): 75-2-202, MCA
History: NEW, 1980 MAR p. 2399, Eff. 8/15/80; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.220 Ambient Air Quality Standard for Settled Particulate Matter

(1) No person shall cause or contribute to concentrations of particulate matter in the ambient air such that the mass of settled particulate matter exceeds the following standard:

(a) thirty-day average: 10 gm/m 2 , 30-day average, not to be exceeded.

(2) Measurement method: For determining compliance with this rule, settled particulate matter shall be measured by the dust fall method, as more fully described in "Methods of Air Sampling and Analysis, Second Edition" (1977), Method No. 21101-0170T, or by an approved equivalent method.

History

Authorizing statute(s): 75-2-111, 75-2-202, MCA
Implementing statute(s): 75-2-202, MCA
History: NEW, 1980 MAR p. 2399, Eff. 8/15/80; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.221 Ambient Air Quality Standard for Visibility

(1) No person shall cause or contribute to concentrations of particulate matter such that the scattering coefficient of particulate matter in the ambient air exceeds the following standard:

(a) annual average: 3 x 10 -5 per meter, annual average, not to be exceeded.

(2) The provisions of (1) are applicable only in Class I areas as are designated under the Montana Clean Air Act rules, Prevention of Significant Deterioration of Air Quality, (ARM Title 17, chapter 8, subchapter 8) on the effective date of this rule. Areas redesignated Class I subsequent to the effective date of this rule shall be subject to the provisions of (1) only upon a finding by the department that visibility is an important attribute of such area.

(3) Measurement method: For determining compliance with this rule, visibility shall be measured by the integrating nephelometer method, as more fully described in "Methods of Air Sampling and Analysis, Second Edition" (1977) Method No. 11203-03-76 T, as modified by the addition of a heated sample inlet line and green spectral sensitivity; or by an approved equivalent method.

History

Authorizing statute(s): 75-2-112, 75-2-202, MCA
Implementing statute(s): 75-2-202, MCA
History: NEW, 1980 MAR p. 2399, Eff. 8/15/80; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.8.222 Ambient Air Quality Standard for Lead

(1) No person shall cause or contribute to concentrations of lead in the ambient air which exceed the following standard:

(a) ninety-day average: 1.5 µg/m 3 of air, 90-day average, not to be exceeded.

(2) For determining compliance with this rule, lead shall be measured by the high-volume method as more fully described in 40 CFR Part 50, Appendix B, and by the atomic absorption method as more fully described in 40 CFR Part 50, Appendix G, both incorporated by reference in ARM 17.8.202, or by an approved equivalent method.

History

Authorizing statute(s): 75-2-111, 75-2-202, MCA
Implementing statute(s): 75-2-202, MCA
History: NEW, 1980 MAR p. 2399, Eff. 8/15/80; AMD, 1988 MAR p. 826, Eff. 4/29/88; AMD, 1996 MAR p. 1844, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.223 Ambient Air Quality Standard for Pm-10

(1) No person may cause or contribute to concentrations of PM-10 in the ambient air which exceed the following standards:

(a) Twenty-four hour average: 150 µg/m 3 of air, 24-hour average, with no more than one expected exceedance per calendar year.

(b) Annual average: 50 µg/m 3 of air, expected annual average, not to be exceeded.

(2) For the purposes of this rule, expected exceedance and expected annual average shall be determined in accordance with 40 CFR Part 50, Appendix K, incorporated by reference in ARM 17.8.202.

(3) For determining compliance with this rule, PM-10 shall be measured by an applicable reference method based on 40 CFR Part 50, Appendix J, and designated in accordance with 40 CFR Part 53 or by an equivalent method designated in accordance with 40 CFR Part 53, all incorporated by reference in ARM 17.8.202.

History

Authorizing statute(s): 75-2-111, 75-2-202, MCA
Implementing statute(s): 75-2-202, MCA
History: NEW, 1980 MAR p. 2399, Eff. 8/15/80; AMD, 1988 MAR p. 826, Eff. 4/29/88; AMD, 1996 MAR p. 1844, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.230 Fluoride in Forage

(1) No person may cause or contribute to concentrations of fluoride in or on forage which exceed the following standards:

(a) monthly average: 50 µg/g.

(b) grazing season average: 35 µg/g.

(2) The following sampling protocol must be applied:

(a) A sample plot must be located on an area which has forage being grazed by domestic livestock, or an area upon which forage is grown for use or commercial sale as a livestock feed. A sample plot must be located on a US geological survey map, or on an aerial photograph, for consistency of resampling. A written description of the plot location is acceptable, in the alternative, if the area can be verbally defined to the satisfaction of the department. Plot descriptions must be filed with the department on standard site identification forms provided by the department. The location of sample plots must be approved by the department.

(b) The sample plot must be a minimum of one acre in area. At locations where forage growth is sparse, the sample plot must be large enough to allow a sampling capability, which meets the provisions of sample number and size, as described in this protocol under (e). Location of the plot must be chosen according to the predicted location of maximum fluoride impact. This location must be determined through modeling, historical monitoring data or other scientifically supportable procedures acceptable to the department. In the event that the predicted location of maximum concentration lies in an area unsuitable for sampling, another nearby plot suitable for sampling must be chosen. Locations where grasses are less than three cm in height or locations less than 100 meters from dirt roads or at locations less than 30 meters from paved roads must not be sampled.

(c) Sampling of each plot must be performed at least twice per month. The sampling schedule, if twice per month, must provide a minimum of 12 days between sampling periods. Should additional sampling be conducted, sampling intervals must be spaced in accordance with the definition of monthly average to represent the entire monthly forage fluoride uptake. Grazing season sampling must commence and terminate on the appropriate month following the constraints in (a) and (f).

(d) Samples must be collected through the sample period by alternately using S, U, W, S, U, W, etc., shaped transects, which traverse the full sample plot. Samples must be collected at regularly spaced distances as one progresses along the transect. Regardless of the plot size, a minimum of 25 clippings per plot must be collected. Clippings collected at each plot must be placed into a single composite sample. Samples must not be washed or in any way treated to remove particulate material from the plant.

(e) Approximately equal-sized clippings of at least ten grams each must be cut from the forage in a given sample plot. The entire aerial portion above three-cm of the base of the plant must be collected, unless the splashline is clearly above the three-cm mark, in which case the vegetation must be cut slightly above the splashline. The clipping must include old and new leaves. Entire leaves must be collected and analyzed rather than only leaf tips or edges. An attempt must be made whenever possible to obtain plant tissue that is free of dew or other moisture.

(f) Only forage grasses must be sampled and only on sample plots on which livestock are actively grazing or sample plots on which forage is grown for use or commercial sale as livestock feed. In order to determine compliance with this rule, forage sampling must occur during months for which any livestock can obtain its minimum nutritional requirements by grazing the land. Sampling may not take place on forage grown for use or commercial sale as a livestock feed unless the sampling takes place during a month in which the forage is growing and the growth is expected to be harvested for use in livestock feeding.

(g) Plant tissue must be stored in the laboratory in labeled and ventilated kraft bags, or other acceptable containers, at temperatures of 2º-8ºC. The sample tissue must be air dried at a temperature of 80ºC (±5ºC) for 24 to 48 hours prior to grinding. The tissue shall be milled to pass a 40-mesh sieve.

(h) The composite sample must be thoroughly mixed prior to any chemical analysis. Replicate aliquots are to be taken using a sample splitter or any other unbiased technique, and analyzed chemically for fluoride using a method approved by the department.

(i) A five-gram replicate aliquot from each plot must be forwarded to the department for quality control purposes. Another aliquot of the collected plant material must be saved for a minimum of three years in labeled air-tight plastic containers in the event additional analyses are required.

History

Authorizing statute(s): 75-2-111, 75-2-202, MCA
Implementing statute(s): 75-2-202, MCA
History: NEW, 1980 MAR p. 2399, Eff. 8/15/80; AMD, 1981 MAR p. 850, Eff. 8/14/81; AMD, 1996 MAR p. 1844, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2015 MAR p. 370, Eff. 4/17/15.

Subchapter 17.8.3 Emission Standards

Mont. Admin. R. 17.8.301 Definitions

For purposes of this subchapter, the following definitions apply:

(1) "112(g) exemption" means a document issued by the department on a case-by-case basis, finding that a major source of HAP meets the criteria contained in 40 CFR 63.41 (definition of "construct a major source", (2) (i) through (vi) ) , and is thus exempt from the requirements of 42 USC 7412(g) .

(2) "Airborne particulate matter" means any particulate matter discharged into the outdoor atmosphere which is not discharged from the normal exit of a stack or chimney for which a source test can be performed in accordance with 40 CFR Part 60, Appendix A, method 5 (determination of particulate emissions from stationary sources) .

(3) "Best available control technology (BACT) " means an emission limitation (including a visible emission standard) , based on the maximum degree of reduction for each air pollutant which would be emitted from any source or alteration which the department, on a case-by-case basis, taking into account energy, environment, and economic impacts and other costs, determines is achievable for such sources or alterations through application of production processes or available methods, systems, and techniques, including fuel cleaning or treatment or innovative fuel combustion techniques for control of such air contaminant. In no event shall application of BACT result in emission of any air contaminant which would exceed the emissions allowed by any applicable standard under this chapter. If the department determines that technological or economic limitations on the application of measurement methodology to a particular class of sources or alterations would make the imposition of an emission standard infeasible, it may instead prescribe a design, equipment, work practice or operational standard or combination thereof, to require the application of BACT. Such standard shall, to the degree possible, set forth the emission reduction achievable by implementation of such design, equipment, work practice or operation and shall provide for compliance by means which achieve equivalent results.

(4) "Beginning actual construction" means, in general, initiation of physical on-site construction activities of a permanent nature. Such activities include, but are not limited to, installation of building supports and foundations, laying of underground pipework, and construction of permanent storage structures.

(5) "Building, structure, facility, or installation" means all of the pollutant-emitting activities which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control) except the activities of any vessel. Pollutant-emitting activities shall be considered as part of the same industrial grouping if they belong to the same major group (i.e., which have the same two-digit code) as described in the standard industrial classification manual, 1987 or the North American Industry Classification System of 2022 at https://www.census.gov/naics.

(6) "Construct a major source of HAP" means:

(a) to fabricate, erect, or install a major source of HAP; or

(b) to reconstruct a major source of HAP, by replacing components at an existing process or production unit that in and of itself emits or has the potential to emit ten tons per year of any HAP, or 25 tons per year of any combination of HAP, whenever:

(i) the fixed capital cost of the new components exceeds 50% of the fixed capital cost that would be required to construct a comparable process or production unit; and

(ii) it is technically and economically feasible for the reconstructed major source to meet the applicable maximum achievable control technology emission limitation for new sources established under 40 CFR 63 Subpart B.

(7) "Existing fuel burning equipment" means fuel burning equipment constructed or installed prior to November 23, 1968.

(8) "Greenfield site" means a contiguous area under common control that is an undeveloped site.

(9) "Hazardous air pollutant" ("HAP") means any air pollutant listed in or pursuant to 42 USC 7412(b) .

(10) "Lowest achievable emission rate" ("LAER") means, for any source, that rate of emissions which reflects:

(a) the most stringent emission limitation which is contained in the implementation plan of any state for such class or category of source, unless the owner or operator of the proposed source demonstrates that such limitations are not achievable; or

(b) the most stringent emission limitation which is achieved in practice by such class or category of source, whichever is more stringent. In no event shall the application of this term permit a proposed new or modified source to emit any pollutant in excess of the amount allowable under applicable new source standards of performance under 40 CFR Parts 60 and 61.

(11) "Major source of HAP" means:

(a) at any greenfield site, a stationary source or group of stationary sources which is located within a contiguous area and under common control and which emits or has the potential to emit ten tons per year of any HAP or 25 tons per year of any combination of HAP; or

(b) at any developed site, a new process or production unit which in and of itself emits or has the potential to emit ten tons per year of any HAP or 25 tons per year of any combination of HAP.

(12) "Maximum achievable control technology" ("MACT") means the emission limitation which is not less stringent than the emission limitation achieved in practice by the best controlled similar source, and which reflects the maximum degree of reduction in emissions that the department, taking into consideration the cost of achieving such emission reduction, and any nonair quality health and environmental impacts and energy requirements, determines is achievable by the constructed or reconstructed major source of HAP.

(13) "New fuel burning equipment" means fuel burning equipment constructed, installed or altered after November 23, 1968.

(14) "Notice of MACT approval" means a document issued by the department containing all federally enforceable conditions necessary to enforce MACT or other control technologies such that the MACT emission limitation is met.

(15) "Process or production unit" means any collection of structures and/or equipment, that processes, assembles, applies, or otherwise uses material inputs to produce or store an intermediate or final product. A single facility may contain more than one process or production unit.

(16) "Process weight" means the total weight of all materials introduced into any specific process which may cause emissions. Solid fuels charged will be considered as part of the process weight, but liquid and gaseous fuels and combustion air will not.

(17) "Process weight rate" means the rate established as follows:

(a) for continuous or long-run steady-state operations, the total process weight for the entire period of continuous operation or for a typical portion thereof, divided by the number of hours of such period or portion thereof;

(b) for cyclical or batch operations, the total process weight for a period that covers a complete operation or an integral number of cycles, divided by the hours of actual process operation during such a period. Where the nature of any process or operation or the design of any equipment is such as to permit more than one interpretation of this definition, the interpretation that results in the minimum value for allowable emissions shall apply.

(18) "Reasonable precautions" mean any reasonable measures to control emissions of airborne particulate matter. Determination of what is reasonable will be accomplished on a case-by-case basis taking into account energy, environmental, economic, and other costs.

(19) "Reasonably available control technology" means devices, systems, process modifications, or other apparatus or techniques that are determined on a case-by-case basis to be reasonably available, taking into account the necessity of imposing such controls in order to attain and maintain a national or Montana ambient air quality standard, the social, environmental, and economic impact of such controls, and alternative means of providing for attainment and maintenance of such standard.

History

Authorizing statute(s): 75-2-112, 75-2-203, 75-2-204, MCA
Implementing statute(s): 75-2-203, MCA
History: NEW, 1993 MAR p. 2530, Eff. 10/29/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1999 MAR p. 1658, Eff. 7/23/99; AMD, 2001 MAR p. 976, Eff. 6/8/01; AMD, 2008 MAR p. 2267, Eff. 10/24/08; AMD, 2024 MAR p. 2056, Eff. 8/24/24.

Mont. Admin. R. 17.8.302 Incorporation by Reference

(1) For the purposes of this subchapter, the department adopts and incorporates by reference the following:

(a) 40 CFR Part 60, pertaining to standards of performance for new stationary sources and modifications, with the following exceptions:

(i) 40 CFR 60.1500 through 1940 and tables 1 through 8 (subpart BBBB), emission guidelines for existing small municipal waste combustion units, are not incorporated by reference;

(b) 40 CFR Part 61, pertaining to emission standards for hazardous air pollutants;

(d) 40 CFR 81.327, pertaining to the air quality attainment status designations for Montana;

(e) ARM Title 17, chapter 53, subchapter 5, pertaining to the identification and listing of hazardous waste; and

(f) the Standard Industrial Classification Manual (1987), Office of Management and Budget (PB 87-100012), or the North American Industry Classification System of 2022 at https://www.census.gov/naics, pertaining to a system of industrial classification and definition based upon the composition and structure of the economy.

(2) Copies of materials incorporated by reference in this subchapter may be obtained as referenced in ARM 17.8.102(3) and (4).

History

Authorizing statute(s): 75-2-112, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: NEW, 1993 MAR p. 2530, Eff. 10/29/93; AMD, 1994 MAR p. 2828, Eff. 10/28/94; AMD, 1995 MAR p. 1572, Eff. 8/11/95; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1996 MAR p. 2298, Eff. 8/23/96; AMD, 1997 MAR p. 1191, Eff. 7/8/97; AMD, 1997 MAR p. 1581, Eff. 9/9/97; AMD, 1998 MAR p. 1725, Eff. 6/26/98; AMD, 1998 MAR p. 3106, Eff. 11/20/98; AMD, 1999 MAR p. 2250, Eff. 10/8/99; AMD, 2000 MAR p. 1316, Eff. 5/26/00; AMD, 2001 MAR p. 1468, Eff. 8/10/01; AMD, 2001 MAR p. 2022, Eff. 10/12/01; AMD, 2002 MAR p. 1747, Eff. 6/28/02; AMD, 2003 MAR p. 9, Eff. 12/27/02; AMD, 2003 MAR p. 645, Eff. 4/11/03; AMD, 2005 MAR p. 959, Eff. 6/17/05; AMD, 2006 MAR p. 1956, Eff. 8/11/06; AMD, 2007 MAR p. 1663, Eff. 10/26/07; AMD, 2009 MAR p. 1784, Eff. 10/16/09; AMD, 2018 MAR p. 438, Eff. 2/24/18; AMD, 2024 MAR p. 253, Eff. 2/10/24; AMD, 2024 MAR p. 2056, Eff. 8/24/24.

Mont. Admin. R. 17.8.304 Visible Air Contaminants

(1) No person may cause or authorize emissions to be discharged into the outdoor atmosphere from any source installed on or before November 23, 1968, that exhibit an opacity of 40% or greater averaged over six consecutive minutes. The provisions of this section do not apply to transfer of molten metals or emissions from transfer ladles.

(2) No person may cause or authorize emissions to be discharged into the outdoor atmosphere from any source installed after November 23, 1968, that exhibit an opacity of 20% or greater averaged over 6 consecutive minutes.

(3) During the building of new fires, cleaning of grates, or soot blowing, the provisions of (1) and (2) shall apply, except that a maximum average opacity of 60% is permissible for not more than one four-minute period in any 60 consecutive minutes. Such a four-minute period means any four consecutive minutes.

(4) This rule does not apply to emissions from:

(a) wood-waste burners;

(b) incinerators;

(d) those new stationary sources listed in ARM 17.8.340 for which a visible emission standard has been promulgated;

(e) residential solid-fuel combustion devices such as fireplaces and wood or coal stoves; or

(f) recovery furnaces at kraft pulp mills.

History

Authorizing statute(s): 75--2 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: Eff. 12/31/72; AMD, 1978 MAR p. 1727, Eff. 12/29/78; AMD, 1986 MAR p. 1021, Eff. 6/13/86; AMD, 1995 MAR p. 1572, Eff. 8/11/95; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.308 Particulate Matter, Airborne

(1) No person shall cause or authorize the production, handling, transportation, or storage of any material unless reasonable precautions to control emissions of airborne particulate matter are taken. Such emissions of airborne particulate matter from any stationary source shall not exhibit an opacity of 20% or greater averaged over six consecutive minutes, except for emission of airborne particulate matter originating from any transfer ladle or operation engaged in the transfer of molten metal which was installed or operating prior to November 23, 1968.

(2) No person shall cause or authorize the use of any street, road, or parking lot without taking reasonable precautions to control emissions of airborne particulate matter.

(3) No person shall operate a construction site or demolition project unless reasonable precautions are taken to control emissions of airborne particulate matter. Such emissions of airborne particulate matter from any stationary source shall not exhibit an opacity of 20% or greater averaged over six consecutive minutes.

(4) Within any area designated nonattainment in 40 CFR 81.327 for PM, any person who owns or operates:

(a) any existing source of airborne particulate matter shall apply reasonably available control technology (RACT);

(b) any new source of airborne particulate matter that has a potential to emit less than 100 tons per year of particulate matter shall apply best available control technology (BACT);

(c) any new source of airborne particulate matter that has a potential to emit more than 100 tons per year of particulate matter shall apply lowest achievable emission rate (LAER).

(5) The provisions of this rule shall not apply to emissions of airborne particulate matter originating from:

(a) any agricultural activity or equipment that is associated with the use of agricultural land or the planting, production, processing, harvesting, or storage of agricultural crops by an agricultural producer and that is not subject to the requirements of 42 USC 7475, 7503, or 7661, as set forth in 75-2-111(1), MCA; or

(b) a business relating to the activities or equipment referred to in (5)(a) that remains in a single location for less than 12 months and is not subject to the requirements of 42 USC 7475, 7503, or 7661, as set forth in 75-2-111(1), MCA.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: Eff. 12/31/72; AMD, 1979 MAR p. 145, Eff. 2/16/79; AMD, 1993 MAR p. 2530, Eff. 10/29/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2000 MAR p. 836, Eff. 3/31/00; AMD, 2009 MAR p. 142, Eff. 2/13/09; AMD, 2025 MAR, 17-451, Eff. 3/29/25.

Mont. Admin. R. 17.8.309 Particulate Matter, Fuel Burning Equipment

(1) No person shall cause or authorize particulate matter caused by the combustion of fuel to be discharged from any stack or chimney into the outdoor atmosphere in excess of the rates in the following table:

Maximum Allowable Emissions of

Particulate Matter in lbs. per

Million British Thermal Units

Heat Input in Million Existing New

British Thermal Units Fuel Burning Fuel Burning

per Hour Equipment Equipment

10 and below 0.60 0.60

100 0.40 0.35

1,000 0.28 0.20

10,000 and above 0.19 0.12

(2) When the heat input falls between any two consecutive heat input values in the preceding table, maximum allowable emissions of particulate matter for existing fuel burning equipment and new fuel burning equipment must be calculated using the following equations:

For existing fuel burning equipment: E = 0.882 * H -0.1664

For new fuel burning equipment: E = 1.026 * H -0.233

Where H is the heat input capacity in MMBtu per hour and E is the maximum allowable particulate emissions rate in lbs. per MMBtu.

For the purposes of this rule, heat input will be calculated as the aggregate heat content of all fuels (using the upper limit of their range of heating value) whose products of combustion pass through the stack or chimney.

(3) When two or more fuel burning units are connected to a single stack, the combined heat input of all units connected to the stack shall not exceed that allowable for the same unit connected to a single stack.

(4) This rule does not apply to emissions from residential solid fuel combustion devices such as fireplaces and wood and coal stoves.

(5) This rule does not apply to particulate matter emitted from:

(a) those new stationary sources listed in ARM 17.8.340 for which a particulate emission standard has been promulgated; and

(b) sources constructed after March 16, 1979, that have a specific particulate emission limitation contained in a Montana air quality permit obtained under ARM Title 17, chapter 8, subchapter 7, a court order, board order or department order, or a process-specific rule.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: Eff. 12/31/72; AMD, 1988 MAR p. 500, Eff. 3/11/88; AMD, 1995 MAR p. 2413, Eff. 11/10/95; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2002 MAR p. 3567, Eff. 12/27/02.

Mont. Admin. R. 17.8.310 Particulate Matter, Industrial Processes

(1) No person shall cause or authorize particulate matter to be discharged, from any operation, process or activity, into the outdoor atmosphere in excess of the amount shown in the following table:

(2) When the process weight rate falls between two process weight rate values in the table, or exceeds 3,000 tons per hour, the maximum hourly allowable emissions of particulate matter must be calculated using the following equations:

(a) Maximum hourly allowable emissions of particulate matter, for process weight rates up to 30 tons per hour, must be calculated using the following equation:

E = 4.10 P 0.67

(b) Maximum hourly allowable emissions of particulate matter, for process weight rates in excess of 30 tons per hour, must be calculated using the following equation:

E = 55.0 P 0.11 - 40

Where E = rate of emission in pounds per hour and P = process weight rate in tons per hour.

(3) This rule does not apply to particulate matter emitted from:

(a) the reduction cells of a primary aluminum reduction plant;

(b) those new stationary sources listed in ARM 17.8.340 for which a particulate emission standard has been promulgated;

(d) incinerators; and

(e) sources constructed after March 16, 1979, that have a specific particulate emission limitation contained in a Montana air quality permit obtained under ARM Title 17, chapter 8, subchapter 7, a court order, board order or department order, or a process-specific rule.

Maximum Hourly Allowable

Emissions of Particulate Matter

Process Weight Rate lb/hr

Tons/hr

0.05 0.551

0.10 0.877

0.20 1.40

0.30 1.83

0.40 2.22

0.50 2.58

0.75 3.38

1.00 4.10

1.25 4.76

1.50 5.38

1.75 5.96

2.00 6.52

2.50 7.58

3.00 8.56

3.50 9.49

4.00 10.40

4.50 11.20

5.00 12.00

6.00 13.60

8.00 16.50

9.00 17.90

10.00 19.20

15.00 25.20

20.00 30.50

25.00 35.40

30.00 40.00

35.00 41.30

40.00 42.50

45.00 43.60

50.00 44.60

60.00 46.30

70.00 47.80

80.00 49.00

100.00 51.20

500.00 69.00

1,000.00 77.60

3,000.00 92.70

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: Eff. 12/31/72; AMD, Eff. 7/5/74; AMD, Eff. 9/5/75; AMD, 1995 MAR p. 2413, Eff. 11/10/95; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2002 MAR p. 3567, Eff. 12/27/02.

Mont. Admin. R. 17.8.315 Odors

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: Eff. 12/31/72; AMD, Eff. 9/5/75; AMD, 1993 MAR p. 2530, Eff. 10/29/93; TRANS, from DHES, 1996 MAR p. 2285; REP, 2001 MAR p. 976, Eff. 6/8/01.

Mont. Admin. R. 17.8.316 Incinerators

(1) An incinerator may not be used to burn solid or hazardous waste unless the incinerator is a multiple chamber incinerator or has a design of equal effectiveness approved by the department prior to installation or use.

(2) A person may not cause or authorize to be discharged into the outdoor atmosphere from any incinerator, particulate matter in excess of 0.10 grains per standard cubic foot of dry flue gas, adjusted to 12% carbon dioxide and calculated as if no auxiliary fuel had been used.

(3) A person may not cause or authorize to be discharged into the outdoor atmosphere from any incinerator emissions which exhibit an opacity of 10% or greater averaged over six consecutive minutes.

(4) To determine compliance with this rule, the department may direct that an incinerator not be operated at any time other than between the hours of 8:00 a.m. and 5:00 p.m. When operation of an incinerator is prohibited by the department, the owner or operator of the incinerator shall store any solid or hazardous waste in a manner that will not create a fire hazard or arrange for removal and disposal of the solid or hazardous waste in a manner consistent with ARM Title 17, chapter 50, subchapter 5.

(5) This rule applies to performance tests for determining emissions of particulate matter from incinerators. All performance tests shall be conducted while the affected facility is burning solid or hazardous waste representative of normal operation. Testing shall be conducted in accordance with ARM 17.8.106 and the Montana Source Test Protocol and Procedures Manual.

(6) This rule does not apply to incinerators for which a Montana air quality permit has been issued under 75-2-215 , MCA, and ARM 17.8.770.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: Eff. 12/31/72; AMD, Eff. 9/5/75; AMD, 1978 MAR p. 1731, Eff. 12/29/78; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1997 MAR p. 1193, Eff. 7/8/97; AMD, 1999 MAR p. 2250, Eff. 10/8/99; AMD, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2004 MAR p. 724, Eff. 4/9/04.

Mont. Admin. R. 17.8.320 Wood-Waste Burners

(1) It is hereby declared to be the policy of the department to encourage the complete utilization of wood-waste residues and to restrict, wherever reasonably practical, the disposal of wood-waste residues by combustion in wood-waste burners. Recent technological and economic developments have enhanced the degree to which wood-waste residues currently being disposed of in wood-waste burners may be utilized or otherwise disposed of in ways not damaging the environment. While recognizing that complete utilization of wood-waste is not presently possible in all instances, this policy applies to the extent practical and consistent with economic and geographical conditions in Montana.

(2) Construction, reconstruction, or substantial alteration of wood-waste burners is prohibited unless the requirements of subchapter 7 of this chapter have been met.

(3) No person shall cause or authorize to be discharged into the outdoor atmosphere from any wood-waste burner any emissions which exhibit an opacity of 20% or greater averaged over six consecutive minutes. The provisions of this section may be exceeded for not more than 60 minutes in eight consecutive hours for building of fires in wood-waste burners.

(4) A thermocouple and a recording pyrometer or other temperature measurement and recording device approved by the department shall be installed and maintained on each wood-waste burner. The thermocouple shall be installed at a location near the center of the opening for the exit gases, or at another location approved by the department.

(5) Except as provided in (6) , a minimum temperature of 700ºF shall be maintained during normal operation of all wood-waste burners. A normal start-up period of one hour is allowed during which the 700ºF minimum temperature does not apply. The burner shall maintain 700ºF operating temperature until the fuel feed is stopped for the day.

(6) Wood-waste burners in existence on February 10, 1989, do not have to comply with the requirements of (5) if they are located outside of PM nonattainment areas.

(7) The owner or operator of a wood-waste burner must maintain a daily written log of the wood-waste burner's operation to determine optimum patterns of operations for various fuel and atmospheric conditions. The log shall include, but not be limited to, the time of day, draft settings, exit gas temperature, type of fuel, and atmospheric conditions. The log or a copy of it must be submitted to the department within ten days after it is requested.

(8) No person shall use a wood-waste burner for the burning of other than production process wood-waste transported to the burner by continuous flow conveying methods.

(9) Rubber products, asphaltic materials, or other prohibited materials specified in ARM 17.8.604(1) (b) through (d) , (f) through (r) , (t) , (u) , (w) and (y) may not be burned or disposed of in wood-waste burners.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: Eff. 12/31/72; AMD, 1978 MAR p. 1732, Eff. 12/29/79; AMD, 1989 MAR p. 270, Eff. 2/10/89; AMD, 1993 MAR p. 2530, Eff. 10/29/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2000 MAR p. 836, Eff. 3/31/00; AMD, 2004 MAR p. 724, Eff. 4/9/04.

Mont. Admin. R. 17.8.321 Kraft Pulp Mills

(1) For the purposes of this rule, the following definitions apply:

(a) "Continual monitoring" means sampling and analysis, in a continuous or times sequence, using techniques which will adequately reflect actual emission levels or concentrations on a continuous basis.

(b) "Cross recovery furnace" means a furnace used to recover chemicals consisting primarily of sodium and sulfur compounds by burning black liquor that on a quarterly basis contains more than seven weight percent of the total pulp solids from the neutral sulfite semichemical process and has a green liquor sulfidity of more than 28%.

(c) "Kraft mill" or "mill" means any pulping process which uses, for cooking liquor, an alkaline sulfate solution containing sodium sulfide.

(d) "Noncondensables" means gases and vapors from the digestion and evaporation processes of a mill that are not condensed with the equipment used in those processes.

(e) "Parts per million" means parts of a contaminant per million parts of gas by volume.

(f) "Recovery furnace" means either a straight kraft recovery furnace or a cross recovery furnace, and includes the direct-contact evaporator for a direct-contact furnace.

(g) "Recovery furnace stack" means the stack from which the products of combustion from the recovery furnace are emitted to the ambient air.

(h) "Straight kraft recovery furnace" means a furnace used to recover chemicals consisting primarily of sodium and sulfur compounds by burning black liquor that on a quarterly basis contains seven weight percent or less of the total pulp solids from the neutral sulfite semichemical process or has green liquor sulfidity of 28% or less.

(i) "Total reduced sulfur (TRS) " means hydrogen sulfide, mercaptans, dimethyl sulfide, dimethyl disulfide, and any other organic sulfides present.

(2) No person or persons shall cause, suffer, allow or permit to be discharged into the outdoor atmosphere from any kraft pulping mill total reduced sulfur in excess of 0.087 pounds per 1,000 pounds of black liquor from each recovery furnace stack or 17.5 parts per million, expressed as hydrogen sulfide on a dry gas basis, whichever is more restrictive or such other limit of TRS that proves to be reasonably attainable utilizing the latest in design of recovery furnace equipment, controls and procedures but not more than 0.087 pounds of TRS per 1,000 pounds of black liquor.

(3) Noncondensables from digesters and multiple-effect evaporators shall be treated to reduce the emission of TRS equal to the reduction achieved by thermal oxidation in a lime kiln.

(4) Every kraft mill in the state shall install equipment for the continual monitoring of TRS.

(a) The monitoring equipment shall be capable of determining compliance with these standards and shall be capable of continual sampling and recording of the concentrations of TRS contaminants during a time interval not greater than 30 minutes.

(b) The sources monitored shall include, but are not limited to, the recovery furnace stacks and the lime kiln stacks.

(c) Each mill shall sample the recovery furnace, lime kiln, and smelt tank for particulate emissions on a regularly scheduled basis in accordance with its approved sampling program.

(d) Equipment shall be ordered within 30 days after a monitoring program has been approved in writing by the director. The equipment shall be placed in effective operation in accordance with the approved program within 60 days after delivery.

(5) Unless otherwise authorized by the director, data shall be reported by each mill at the end of each calendar month as follows:

(a) Daily average emission of TRS gases expressed in pounds of sulfur per 1,000 pounds of black liquor fired for each source included in the approved monitoring program.

(b) The number of hours each day that the emission of TRS gases from each recovery furnace stack exceeds 17.5 parts per million dry and the maximum concentration of TRS measured each day.

(c) Emission of TRS gases in pounds of sulfur per 1,000 pounds of black liquor fired in the kraft recovery furnace on a monthly basis and pounds of sulfur per hour for the other sources included in the approved monitoring program. Emission of particulates in pounds per hour based upon a sampling conducted in accordance with the approved monitoring program.

(d) Average daily kraft pulp production in air-dried tons and average daily black liquor burning rate.

(e) Other emission data as specified in the approved monitoring program.

(6) Each kraft mill shall furnish, upon request of the director, such other pertinent data as may be required to evaluate the mill's emission control program. Each mill shall immediately report abnormal mill operations which result in increased emissions of air contaminants, following procedures set forth in the approved monitoring program.

(7) All TRS emission standards in this rule will be based on average daily emissions. The TRS limitations in this rule will not preclude a requirement to install the highest and best practicable treatment and control available. New mills or mills expanding existing facilities may be required to meet more restrictive TRS emission limits.

(8) No person may cause or authorize to be discharged into the outdoor atmosphere, from any recovery furnace installed on or before November 23, 1968, emissions that exhibit 35% opacity or greater averaged over six consecutive minutes. For recovery furnaces, this opacity limitation supersedes any other opacity limitation contained in this chapter, including ARM 17.8.304 and 17.8.340.

(9) No person may cause or authorize to be discharged into the outdoor atmosphere, from any recovery furnace installed after November 23, 1968, emissions that exhibit 20% opacity or greater averaged over six consecutive minutes for more than 6% of the six-minute time periods during which a source is operating within any calendar quarter.

(10) No person may cause or authorize to be discharged into the outdoor atmosphere, from any recovery furnace installed after September 4, 1976, emissions that exhibit 20% opacity or greater averaged over six consecutive minutes for more than 3% of the six-minute time periods during which a source is operating within any calendar quarter.

(11) For the purposes of this rule, excess opacity emissions means any six-minute average opacity of 35% or greater for any recovery furnace installed on or before November 23, 1968, and 20% or greater for any recovery furnace installed after November 23, 1968.

(12) No person may cause or authorize to be discharged into the outdoor atmosphere, from any recovery furnace subject to (9) or (10) , emissions that exhibit 20% opacity or greater averaged over a 24-hour period, starting at 5:00 a.m. each calendar day.

(13) During any period of excess opacity emissions, any person subject to (8) , (9) , or (10) must operate the recovery furnaces and associated control equipment in accordance with good air pollution control practices for minimizing emissions.

(14) Any person subject to (8) , (9) , or (10) of this rule shall install, calibrate, maintain, and operate a continuous opacity monitoring system (COMS) to monitor and record the opacity of emissions discharged into the atmosphere from any recovery furnace subject to this rule. The COMS shall be installed, calibrated, maintained, and operated in compliance with the requirements of 40 CFR Part 60.13 and Appendix B thereto, performance specification 1. In addition, the COMS shall comply with any other requirements of 40 CFR Part 60 regarding the installation, calibration, maintenance, and operation of COMS for kraft pulp mill recovery furnaces and any other applicable requirement in this chapter regarding the installation, calibration, maintenance, and operation of COMS.

(15) COMS will be the primary measure of compliance with the opacity limits specified in (8) , (9) , and (10) of this rule, except that 40 CFR Part 60, appendix A, method 9, may be used as a measure of compliance when there is reason to believe that COMS data is not accurate or when COMS data is unavailable.

(16) Any person subject to (14) shall report every time period of excess opacity emissions from any recovery furnace, as determined by the COMS or other compliance determination method as provided for in (15) , and shall report every time period when the COMS was not operational. These reports must be submitted on forms provided by the department and must be made in compliance with department procedures and applicable requirements for submittal of excess emissions reports. These reports must be submitted to the department quarterly, within 30 days after the end of each calendar quarter.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: Eff. 12/31/72; AMD, 1995 MAR p. 1572, Eff. 8/11/95; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1999 MAR p. 279, Eff. 2/12/99.

Mont. Admin. R. 17.8.322 Sulfur Oxide Emissions--Sulfur in Fuel

(1) "Btu" means British thermal unit which is the heat required to raise the temperature of one pound of water through one Fahrenheit degree.

(2) Commencing July 1, 1970, no person shall burn liquid or solid fuels containing sulfur in excess of 2 pounds of sulfur per million Btu fired.

(3) Commencing July 1, 1971, no person shall burn liquid or solid fuels containing sulfur in excess of 1.5 pounds of sulfur per million Btu fired.

(4) Commencing July 1, 1972, no person shall burn liquid or solid fuels containing sulfur in excess of 1 pound of sulfur per million Btu fired.

(5) Commencing July 1, 1971, no person shall burn any gaseous fuel containing sulfur compounds in excess of 50 grains per 100 cubic feet of gaseous fuel, calculated as hydrogen sulfide at standard conditions. The provisions of (5) shall not apply to:

(a) The burning of sulfur, hydrogen sulfide, acid sludge or other sulfur compounds in the manufacturing of sulfur or sulfur compounds.

(b) The incinerating of waste gases provided that the gross heating value of such gases is less than 300 Btus per cubic foot at standard conditions and the fuel used to incinerate such waste gases does not contain sulfur or sulfur compounds in excess of the amount specified in this rule.

(d) Small refineries (under 10,000 barrels per day crude oil charge) provided that they meet other provisions of this rule.

(6) The following are exceptions to this rule:

(a) A permit may be granted by the director to burn fuels containing sulfur in excess of the sulfur contents indicated in (2) through (5) provided it can be shown that the facility burning the fuel is fired at a rate of 1 million Btu per hour or less.

(b) For purpose of this rule, a higher sulfur-containing fuel may, upon application to the director, be utilized in (2) , (3) or (4) if such fuel is mixed with one or more lower sulfur-containing fuels which results in a mixture, the equivalent sulfur content of which is not in excess of the stated values when fired.

(c) The requirements of (2) , (3) , or (4) shall also be deemed to have been satisfied if, upon application to the director, a sulfur dioxide control process is applied to remove the sulfur dioxide from the gases emitted by burning of fuel of any sulfur content which results in an emission of sulfur in pounds per hour not in excess of the pounds per hour of sulfur that would have been emitted by burning fuel of the sulfur content indicated without such a cleaning device.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: Eff. 12/31/72; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.323 Sulfur Oxide Emissions--Primary Copper Smelters

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: Eff. 12/31/72; AMD, 1981 MAR p. 203, Eff. 3/13/81; TRANS, from DHES, 1996 MAR p. 2285; REP, 2001 MAR p. 560, Eff 4/6/01.

Mont. Admin. R. 17.8.324 Hydrocarbon Emissions--Petroleum Products

(1) No person shall place, store or hold in any stationary tank, reservoir or other container of more than 65,000 gallons capacity any crude oil, gasoline or petroleum distillate having a vapor pressure of 2.5 pounds per square inch absolute or greater under actual storage conditions, unless such tank, reservoir or other container is a pressure tank maintaining working pressures sufficient at all times to prevent hydrocarbon vapor or gas loss to the atmosphere, or is designed and equipped with one of the following vapor loss control devices, properly installed, in good working order and in operation:

(a) A floating roof, consisting of a pontoon type or double deck type roof, resting on the surface of the liquid contents and equipped with a closure seal, or seals to close space between the roof edge and tank wall. The control equipment provided for in this subsection shall not be used if the gasoline or petroleum distillate has a vapor pressure of 13.0 pounds per square inch absolute or greater under actual storage conditions. All tank gauging and sampling devices shall be gas-tight except when gauging or sampling is taking place.

(b) A vapor recovery system, consisting of a vapor gathering system capable of collecting the hydrocarbon vapors and gases discharged and a vapor disposal system capable of processing such hydrocarbon vapors and gases so as to prevent their emission to the atmosphere and with all tank gauging and sampling devices gas-tight except when gauging or sampling is taking place.

(2) No person shall use any compartment of any single or multiple compartment oil-effluent water separator which compartment receives effluent water containing 200 gallons a day or more of any petroleum product from any equipment processing, refining, treating, storing or handling kerosene or other petroleum product of equal or greater volatility than kerosene, unless such compartment is equipped with one of the following vapor loss control devices, constructed so as to prevent any emission of hydrocarbon vapors to the atmosphere, properly installed, in good working order and in operation.

(a) A solid cover with all openings sealed and totally enclosing the liquid contents. All gauging and sampling devices shall be gas-tight except when gauging or sampling is taking place.

(b) A floating roof, consisting of a pontoon type or double deck type roof, resting on the surface of the liquid contents and equipped with a closure seal, or seals, to close the space between the roof edge and containment wall. All gauging and sampling devices shall be gas-tight except when gauging or sampling is taking place.

(c) A vapor recovery system, consisting of a vapor gathering system capable of collecting the hydrocarbon vapors and gases discharged and a vapor disposal system capable of processing such hydrocarbon vapors and gases so as to prevent their emission to the atmosphere and with all tank gauging and sampling devices gas-tight except when gauging or sampling is taking place.

(d) Other equipment of equal efficiency provided such equipment has been approved by the department.

(e) This rule shall not apply to any oil-effluent water separator used exclusively in conjunction with the production of crude oil.

(3) No person shall load or permit the loading of gasoline into any stationary tank with a capacity of 250 gallons or more from any tank truck or trailer, except through a permanent submerged fill pipe, unless such tank is equipped with a vapor loss control device as described in (1) , or is a pressure tank as described in (1) .

(a) The provisions of the first paragraph of (3) shall not apply to the loading of gasoline into any tank having a capacity of 2,000 gallons or less, which was installed prior to June 30, 1971 nor any underground tank installed prior to June 30, 1971 where the fill line between the fill connection and tank is offset.

(b) A person shall not install any gasoline tank with a capacity of 250 gallons or more unless such tank is equipped as described in the first paragraph of (3) .

(4) The provisions of this rule do not apply to any stationary tank which is used primarily for the fueling of implements of husbandry.

(5) Existing refineries normally processing less than 7,000 barrels per day of crude oil charge shall be exempt from the provisions of this rule.

(6) Refineries normally processing 7,000 barrels per day or more of crude oil charge shall comply with (1) by January 1, 1977.

(7) Facilities used exclusively for the production of crude oil are exempt from this rule.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: Eff. 12/31/72; AMD, Eff. 9/5/75; AMD, 1993 MAR p. 2530, Eff. 10/29/93; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.325 Motor Vehicles

(1) No person shall intentionally remove, alter or otherwise render inoperative, exhaust emission control, crank case ventilation or any other air pollution control device which has been installed as a requirement of federal law or regulation.

(2) No person shall operate a motor vehicle originally equipped with air pollution control devices as required by federal law or regulation unless such devices are in place and in operating condition.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: Eff. 12/31/72; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.326 Prohibited Materials for Wood or Coal Residential Stoves

(1) No person may cause or authorize the use of the following materials to be combusted in any residential solid-fuel combustion device such as a wood, coal, or pellet stove or fireplace:

(a) food wastes;

(b) Styrofoam and other plastics;

(d) poultry litter;

(e) animal droppings;

(f) dead animals or dead animal parts;

(g) tires;

(h) asphalt shingles;

(i) tar paper;

(j) insulated wire;

(k) treated lumber and timbers including railroad ties;

(l) pathogenic wastes;

(m) colored newspaper or magazine print;

(n) hazardous wastes as defined by administrative rules found at ARM Title 17, chapter 54, subchapter 3; or

(o) chemicals.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: NEW, 1986 MAR p. 1021, Eff. 6/13/86; AMD, 1993 MAR p. 2530, Eff. 10/29/93; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.330 Emission Standards for Existing Aluminum Plants--Definitions

For the purposes of this rule, the following definitions apply:

(1) "Aluminum manufacturing" means the electrolytic reduction of alumina (aluminum oxide) to aluminum.

(2) "Emission" means a release into the outdoor atmosphere of total fluorides.

(3) "Existing primary aluminum reduction plant" means any facility manufacturing aluminum, by electrolytic reduction, which was in existence and operating on February 26, 1982.

(4) "Owner or operator" means any person who owns, leases, operates, controls, or supervises an existing primary aluminum reduction plant.

(5) "Pot" means a reduction cell.

(6) "Potroom" means a building unit which houses a group of electrolytic cells in which aluminum is produced.

(7) "Potroom group" means an uncontrolled potroom, a potroom which is controlled individually as a group of potrooms or potroom segments ducted to a common control system.

(8) "Total fluorides" means all fluoride compounds as measured by methods approved by the department.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: NEW, 1982 MAR p. 390, Eff. 2/26/82; AMD, 1989 MAR p. 270, Eff. 2/10/89; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.331 Emission Standards for Existing Aluminum Plants--Standards for Fluoride

(1) No owner or operator subject to the provisions of this rule may cause the emission into the atmosphere from any existing primary aluminum reduction plant of any gasses which contain total fluorides in excess of 1.3 kg/Mg (2.6 lb/ton) of aluminum produced at Soderberg plants averaged over any calendar month.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: NEW, 1982 MAR p. 390, Eff. 2/26/82; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.332 Emission Standards for Existing Aluminum Plants--Standard for Visible Emissions

(1) No owner or operator subject to this rule may cause the emission into the atmosphere from any potroom group of any gasses or particles which exhibit 10% opacity or greater, as determined by EPA Reference Method 9 in Appendix A of 40 CFR Part 60, incorporated by reference in ARM 17.8.302.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: NEW, 1982 MAR p. 390, Eff. 2/26/82; AMD, 1989 MAR p. 270, Eff. 2/10/89; AMD, 1996 MAR p. 1844, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.333 Emission Standards for Existing Aluminum Plants--Monitoring and Reporting

(1) For the purpose of this rule the department adopts and incorporates by reference 40 CFR 60.195 which sets forth test methods and procedures for primary aluminum reduction plants. A copy of this incorporated material may be obtained from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

(2) An owner or operator shall submit by May 1, 1982 to the department a detailed monitoring program including, but not limited to, a description of monitoring equipment, monitoring procedures, monitoring frequency, and any other information requested by the department. The monitoring program must be approved by the department and may be revised from time to time by the department.

(3) In order to be approved by the department, the monitoring plan must meet the requirements of 40 CFR 60.195 or equivalent requirements established by the department.

(4) An owner or operator of an existing primary aluminum reduction plant shall submit a quarterly emission report to the department, no later than 45 days following the end of the calendar quarter reported, in a format and reporting parameters as requested by the department.

History

Authorizing statute(s): 75-2-112, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: NEW, 1982 MAR p. 390, Eff. 2/26/82; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.8.334 Emission Standards for Existing Aluminum Plants--Startup and Shutdown

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: NEW, 1982 MAR p. 390, Eff. 2/26/82; TRANS, from DHES, 1996 MAR p. 2285; REP, 2016 MAR p. 512, Eff. 3/19/16.

Mont. Admin. R. 17.8.335 Maintenance of Air Pollution Control Equipment for Existing Aluminum Plants

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-2-111, MCA
Implementing statute(s): 75-2-203, MCA
History: NEW, 2002 MAR p. 2189, Eff. 8/16/02; AMD, 2005 MAR p. 321, Eff. 2/25/05; REP, 2016 MAR p. 512, Eff. 3/19/16.

Mont. Admin. R. 17.8.340 Standard of Performance for New Stationary Sources and Emission Guidelines for Existing Sources

(1) For the purpose of this rule, the following definitions apply:

(a) "Administrator", as used in 40 CFR Part 60, means the department, except in the case of those duties which cannot be delegated to the state by the U.S. Environmental Protection Agency, in which case "administrator" means the administrator of the U.S. Environmental Protection Agency.

(b) "Stationary source" means any building, structure, facility, or installation which emits or may emit any air pollutant subject to regulation under the FCAA.

(2) The terms and associated definitions specified in 40 CFR 60.2, shall apply to this rule, except as specified in (1) (a) .

(3) The owner and operator of any stationary source or modification, as defined and applied in 40 CFR Part 60, shall comply with the standards and provisions of 40 CFR Part 60.

(4) The following apply to designated municipal solid waste landfill facilities under 40 CFR Part 60, Subpart Cc:

(a) Designated facilities under Subpart Cc shall comply with the requirements in 40 CFR 60.33c, 60.34c, and 60.35c that are applicable to designated facilities and that must be included in a state plan for state plan approval.

(b) Designated facilities under Subpart Cc, that meet the conditions in 40 CFR 60.33c(a) (1) , regarding operation or design capacity, shall submit an initial design capacity report and an initial emission rate report, in accordance with 40 CFR 60.757, within 90 days of EPA's publication in the Federal Register of approval of this rule. If the design capacity report reflects that the facility meets the condition in 40 CFR 60.33c(a) (2) and the emission rate report reflects that the facility meets the condition in 40 CFR 60.33c(a) (3) , the facility shall:

(i) submit a final control plan to the department for review and final approval within 12 months after the date of EPA's publication of approval of this rule in the Federal Register, or within 12 months after the date the condition in 40 CFR 60.33c(a) (3) is met (i.e., the date of the first annual nonmethane organic compound (NMOC) report which demonstrates that NMOCs equal or exceed 50 Mg/yr) , whichever occurs later;

(ii) award contracts for any necessary control systems/process changes within 15 months after the date of EPA's publication of approval of this rule in the Federal Register, or within 15 months after the date the condition in 40 CFR 60.33c(a) (3) is met, whichever occurs later;

(iii) initiate on-site construction or installation of any necessary air pollution control devices, and initiate any necessary process changes, within 21 months after the date of EPA's publication of approval of this rule in the Federal Register, or within 21 months after the date the condition in 40 CFR 60.33c(a) (3) is met, whichever occurs later;

(iv) complete on-site construction or installation of any necessary air pollution control devices, and complete any necessary process changes, within 27 months after the date of EPA's publication of approval of this rule in the Federal Register, or within 27 months after the date the condition in 40 CFR 60.33c(a) (3) is met, whichever occurs later; and

(v) achieve final compliance within 30 months after the date of EPA's publication of approval of this rule in the Federal Register, or within 30 months after the date the condition in 40 CFR 60.33c(a) (3) is met, whichever occurs later.

(c) Designated facilities under Subpart Cc shall comply with the final site-specific collection and control system design plan approved by the department and, in accordance with 40 CFR 60.8, shall demonstrate compliance with the emission standards specified in Subpart Cc, not later than 180 days following initial startup of the collection and control system.

(5) Designated hospital/medical/infectious waste incinerator facilities under 40 CFR Part 60, Subpart Ce, shall comply with the requirements in 40 CFR 60.33e, 60.34e, 60.35e, 60.36e, 60.37e and 60.38e that are applicable to designated facilities and that must be included in a state plan for state plan approval. Designated facilities under 40 CFR Part 60, Subpart Ce, that are not excluded under 40 CFR 60.32e, shall:

(a) submit a final control plan to the department for review and final approval within 15 months after the date of EPA's publication of approval of the state plan in the Federal Register;

(b) award contracts for any necessary control systems/process changes within 21 months after the date of EPA's publication of approval of the state plan in the Federal Register;

(c) initiate on-site construction or installation of any necessary air pollution control devices, and initiate any necessary process changes, within 24 months after the date of EPA's publication of approval of the state plan in the Federal Register;

(d) complete on-site construction or installation of any necessary air pollution control devices, and complete any necessary process changes, within 30 months after the date of EPA's publication of approval of the state plan in the Federal Register; and

(e) achieve final compliance with all requirements of the state plan within 36 months after the date of EPA's publication of approval of the state plan in the Federal Register, or by September 15, 2002, whichever is earlier.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: NEW, Eff. 9/5/75; AMD, Eff. 9/5/76; AMD, 1978 MAR p. 1621, Eff. 12/15/78; AMD, 1982 MAR p. 1744, Eff. 10/1/82; AMD, 1985 MAR p. 1326, Eff. 9/13/85; AMD, 1987 MAR p. 744, Eff. 7/20/87; AMD, 1988 MAR p. 500, Eff. 3/11/88; AMD, 1991 MAR p. 1143, Eff. 7/12/91; AMD, 1992 MAR p. 2741, Eff. 12/25/92; AMD, 1993 MAR p. 2530, Eff. 10/29/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1997 MAR p. 1191, Eff. 7/8/97; AMD, 1998 MAR p. 3106, Eff. 11/20/98; AMD, 2001 MAR p. 2022, Eff. 10/12/01; AMD, 2004 MAR p. 724, Eff. 4/9/04; AMD, 2006 MAR p. 1956, Eff. 8/11/06.

Mont. Admin. R. 17.8.341 Emission Standards for Hazardous Air Pollutants

(1) For the purpose of this rule, the terms and associated definitions specified in 40 CFR 61.02, shall apply, except that:

(a) "Administrator", as used in 40 CFR Part 61, means the department, except in the case of those duties which cannot be delegated to the state by the U.S. Environmental Protection Agency, in which case "administrator" means the administrator of the U.S. Environmental Protection Agency.

(2) The owner or operator of any existing or new stationary source, as defined and applied in 40 CFR Part 61, shall comply with the standards and provisions of 40 CFR Part 61.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: NEW, Eff. 9/5/76; AMD, 1978 MAR p. 1621, Eff. 12/15/78; AMD, 1982 MAR p. 1744, Eff. 10/1/82; AMD, 1985 MAR p. 1326, Eff. 9/13/85; AMD, 1987 MAR p. 744, Eff. 7/20/87; AMD, 1988 MAR p. 500, Eff. 3/11/88; AMD, 1991 MAR p. 1143, Eff. 7/12/91; AMD, 1992 MAR p. 2741, Eff. 12/25/92; AMD, 1993 MAR p. 2530, Eff. 10/29/93; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.342 Emission Standards for Hazardous Air Pollutants for Source Categories

(1) The owner or operator of any affected source, as defined and applied in 40 CFR Part 63, shall comply with the requirements of 40 CFR Part 63, incorporated by reference in ARM 17.8.302. All references in 40 CFR Part 63, Subpart B to "permitting authority" refer to the Montana Department of Environmental Quality ("department") .

(2) Any owner or operator who constructs a major source of HAP is required to obtain from the department a notice of MACT approval or a 112(g) exemption pursuant to this rule, prior to beginning actual construction, unless:

(a) the major source has been specifically regulated or exempted from regulation under a standard issued pursuant to 42 USC 7412(d) , (h) , or (j) and incorporated into 40 CFR Part 63;

(b) the owner or operator of the major source has already received all necessary air quality permits for such construction, as of July 23, 1999; or

(3) Unless granted a 112(g) exemption under (5) below, at least 180 days prior to beginning actual construction, an owner or operator who constructs a major source of HAP shall apply to the department for a notice of MACT approval. The application must be made on forms provided by the department, and must include all information required under 40 CFR 63.43(e) .

(4) When acting upon an application for a notice of MACT approval, the department shall comply with the principles of MACT determination specified in 40 CFR 63.43(d) .

(5) The owner or operator of a new process or production unit which in and of itself emits or has the potential to emit 10 tons per year of any HAP or 25 tons per year of any combination of HAP, may apply to the department for a 112(g) exemption, if the process or production unit meets the criteria contained in 40 CFR 63.41 (definition of "construct a major source", (2) (i) through (vi) ) . Application must be made on forms provided by the department, at least 180 days prior to beginning actual construction. The applicant shall include such information as may be necessary to demonstrate that the process or production unit meets the criteria referenced herein.

(6) As further described below, and except as expressly modified by this rule, the procedural requirements of ARM Title 17, chapter 8, subchapter 7 apply to an application for a notice of MACT approval or 112(g) exemption. For purposes of this rule:

(a) all references in applicable provisions of ARM Title 17, chapter 8, subchapter 7 to "permit" or "Montana air quality permit" or "air quality permit" mean "notice of MACT approval" or "112(g) exemption," as appropriate;

(b) all references in applicable provisions of ARM Title 17, chapter 8, subchapter 7 to "new or modified facility" or "new or modified emitting unit" mean "major source of HAP".

(7) The following sections of ARM Title 17, chapter 8, subchapter 7 govern the application, review, and final approval or denial of a notice of MACT approval or 112(g) exemption: ARM 17.8.748, 17.8.749, 17.8.755, 17.8.756, 17.8.759 and 17.8.760.

(8) The department shall notify the applicant in writing of any final approval or denial of an application for a notice of MACT approval or 112(g) exemption.

(9) A notice of MACT approval must contain the elements specified in 40 CFR 63.43(g) . The notice shall expire if fabrication, erection, installation or reconstruction has not commenced within 18 months of issuance, except that the department may grant an extension which may not exceed an additional 12 months.

(10) An owner or operator of a major source of HAP that receives a notice of MACT approval or a 112(g) exemption from the department shall comply with all conditions and requirements contained in the notice of MACT approval or 112(g) exemption.

(11) If a standard is promulgated pursuant to 42 USC 7412(d) , (h) or (j) , before the date an applicant for a notice of MACT approval or 112(g) exemption has received a final and legally effective determination for a major source of HAP subject to the standard, the applicant shall comply with the promulgated standard.

(12) If a standard is promulgated pursuant to 42 USC 7412(d) , (h) or (j) , after the owner or operator of a major source of HAP subject to the standard has received a notice of MACT approval, the department shall issue an initial operating permit or reopen an existing operating permit pursuant to ARM Title 17, chapter 8, subchapter 12, as appropriate, consistent with the requirements of 40 CFR 63.44.

(13) The department may revoke a notice of MACT approval or 112(g) exemption if it determines that the notice or exemption is no longer appropriate because a standard has been promulgated pursuant to 42 USC 7412(d), (h), or (j) . In pursuing revocation, the department shall follow the procedures specified in ARM 17.8.763. A revocation under this subsection may not become effective prior to the date an owner or operator is required to be in compliance with a standard promulgated pursuant to 42 USC 7412(d), (h), or (j), unless the owner or operator agrees in writing otherwise.

History

Authorizing statute(s): 75-2-112, 75-2-203, 75-2-204, MCA
Implementing statute(s): 75-2-203, 75-2-204, 75-2-211, MCA
History: TRANS, from DHES, 1996 MAR p. 2285; NEW, 1996 MAR p. 2298, Eff. 8/23/96; AMD, 1999 MAR p. 1658, Eff. 7/23/99; AMD, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2024 MAR p. 2056, Eff. 8/24/24.

Subchapter 17.8.4 Stack Heights and Dispersion Techniques

Mont. Admin. R. 17.8.401 Definitions

In this subchapter, the following definitions apply:

(1) The following apply to the definition of the term "dispersion technique":

(a) "Dispersion technique" means any technique which attempts to affect the concentration of a pollutant in the ambient air by:

(i) using that portion of a stack which exceeds good engineering practice stack height;

(ii) varying the emission of a pollutant according to atmospheric conditions or ambient concentrations of that pollutant; or

(iii) increasing final exhaust gas plume rise by manipulating source process parameters, stack parameters, or combining exhaust gases from several existing stacks into one stack; or other selective handling of exhaust gas streams so as to increase the exhaust gas plume rise.

(b) The term "dispersion technique" does not include:

(i) the reheating of a gas stream, following use of a pollution control system, for the purpose of returning the gas to the temperature at which it was originally discharged from the facility generating the gas stream;

(ii) the merging of gas streams when:

(A) the source owner or operator demonstrates that the facility was originally designed and constructed with such merged gas streams;

(B) after July 8, 1985, such merging is part of a change in operation at the facility that includes the installation of pollution controls and is accompanied by a net reduction in the allowable emissions of a pollutant (this exclusion from the definition of "dispersion technique" applies only to the emission limitation for the pollutant affected by such change in operation); or

(C) before July 8, 1985, such merging is part of a change in operation at the facility that included the installation of emissions control equipment or was carried out for sound economic or engineering reasons. If there was an increase in the emission limitation or, if no emission limitation was in existence prior to the merging, an increase in the quantity of pollutant actually emitted prior to the merging, the department shall presume that merging was significantly motivated by the

intent to gain emissions credit for greater dispersion. Absent a demonstration by the source owner or operator that merging was not significantly motivated by such intent, the department shall deny credit for the effects of such merging in calculating the allowable emissions for the source.

(iii) smoke management in agricultural or silvicultural prescribed burning programs;

(iv) episodic restrictions on residential solid-fuel burning and open burning; or

(v) techniques under (1)(a)(iii) that increase final exhaust gas plume rise when the resulting allowable emissions for sulfur dioxide from the facility do not exceed 5,000 tons per year.

(2) "Good engineering practice" (GEP) stack height means the greater of:

(a) sixty-five meters, measured from the ground-level elevation at the base of the stack;

(b) either of the following:

(i) for stacks in existence on January 12, 1979, for which the owner or operator had obtained all applicable permits or approvals required by this chapter,

GEP = 2.5H

if the owner or operator produces evidence that this equation was actually relied on in establishing an emission limitation;

(ii) for all other stacks,

GEP = H + 1.5L

where:

GEP = good engineering practice stack height, measured from the ground-level elevation at the base of the stack,

H = height of nearby structure(s) measured from the ground-level elevation at the base of the stack, and

L = lesser dimension, height or projected width, of nearby structure(s);

however, the department may require the use of a field study or fluid model to verify GEP stack height for the source; or

(c) the height demonstrated by a fluid model or a field study approved by the department that ensures that the emissions from a stack do not result in excessive concentrations of any air pollutant as a result of atmospheric downwash, wakes, or eddy effects created by the source itself, or nearby structures or nearby terrain features.

(3) "Nearby" as used in this subchapter for a specific structure or terrain feature means:

(a) for purposes of applying the formula provided in (2)(b), that distance up to five times the lesser of the height or the width dimension of a structure, but not greater than 0.8 kilometers (1/2 mile); and

(b) for purposes of conducting demonstrations under (2)(c), not greater than 0.8 kilometers, except that the portion of a terrain feature may be considered to be nearby which falls within a distance of up to ten times the maximum height (Ht) of the feature, not to exceed two miles if the feature achieves a height 0.8 kilometers from the stack that is at least 40% of the GEP stack height determined by the formula provided in (2)(b)(ii) or 26 meters, whichever is greater, as measured from the ground-level elevation at the base of the stack. The height of the structure or terrain feature is measured from the ground-level elevation at the base of the stack.

(4) "Excessive concentration" as used in (2)(c) means:

(a) For sources seeking credit for stack height exceeding that established under (2)(b), a maximum ground-level concentration due to emissions from a stack due in whole or in part to downwash, wakes, and eddy effects produced by nearby structures or nearby terrain features that individually is at least 40% in excess of the maximum concentration experienced in the absence of such downwash, wakes, or eddy effects and that contributes to a total concentration due to emissions from all sources greater than an ambient air quality standard as provided in subchapter 2. For sources subject to the prevention of significant deterioration program (subchapter 8), an excessive concentration alternatively means a maximum ground-level concentration due to emissions from a stack due in whole or in part to downwash, wakes, or eddy effects produced by nearby structures or nearby terrain features that individually is at least 40% in excess of the maximum concentration experienced in the absence of such downwash, wakes, or eddy effects and greater than a prevention of significant deterioration increment. The allowable emission rate to be used in making demonstrations under this part is prescribed by the new source performance standard that is applicable to the source category unless the owner or operator demonstrates to the satisfaction of the department that this emission rate is infeasible. Where such a demonstration has been made, the department shall establish an alternative emission rate after consultation with the source owner or operator.

(b) For sources seeking credit after October 11, 1983, for increases in existing stack heights up to the heights established under (2)(b), either:

(i) a maximum ground-level concentration due in whole or in part to downwash, wakes, or eddy effects as provided in (a), except that the emission rate specified by any applicable state implementation plan (or, in the absence of such a limit, the actual emission rate as defined in ARM 17.8.801(1)(b)) will be used, or

(ii) the actual presence of a public nuisance caused by the existing stack, as determined by the department.

(c) For sources seeking credit after January 12, 1979, for a stack height determined under (2)(b) if the department requires the use of a field study or fluid model to verify GEP stack height, for sources seeking stack height credit after November 9, 1984, based on the aerodynamic influence of cooling towers, and for sources seeking stack height credit after December 31, 1970, based on the aerodynamic influence of structures not adequately represented by the equations in (2)(b), a maximum ground-level concentration due in whole or in part to downwash, wakes or eddy effects that is at least 40% in excess of the maximum concentration experienced in the absence of such downwash, wakes, or eddy effects.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: NEW, 1986 MAR p. 1021, Eff. 6/13/86; AMD, 1995 MAR p. 535, Eff. 4/14/95; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2002 MAR p. 1747, Eff. 6/28/02; AMD, 2003 MAR p. 645, Eff. 4/11/03; AMD, 2004 MAR p. 724, Eff. 4/9/04.

Mont. Admin. R. 17.8.402 Requirements

(1) The degree of emission limitation required of any source or stack for control of any air pollutant regulated under the Clean Air Act of Montana may not be affected by so much of any source's stack height that exceeds good engineering practice or by any other dispersion technique, except as provided in ARM 17.8.403.

(2) Before a new or revised state implementation plan emission limitation that is based on good engineering practice stack height that exceeds the height allowed by ARM 17.8.401(2)(b)(i) or (ii) is submitted to the Environmental Protection Agency, the department must provide notice and opportunity for public hearing of the availability of any demonstration study as provided by ARM 17.8.401(2)(c). Such notice and public hearing will be conducted in accordance with the Montana Administrative Procedure Act.

(3) This rule does not require a source owner or operator to restrict, in any manner, the actual stack height of any source.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: NEW, 1986 MAR p. 1021, Eff. 6/13/86; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2003 MAR p. 645, Eff. 4/11/03.

Mont. Admin. R. 17.8.403 Exemptions

(1) The requirements of ARM 17.8.402 do not apply to stack heights in existence or dispersion techniques implemented on or before December 31, 1970, except when pollutants are being emitted from such stacks or using such dispersion techniques by stationary sources (as defined by ARM 17.8.801(28)) that were constructed or reconstructed or for which major modifications (as defined in ARM 17.8.801(20)) were carried out after December 31, 1970.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: NEW, 1986 MAR p. 1021, Eff. 6/13/86; AMD, 1995 MAR p. 535, Eff. 4/14/95; TRANS, from DHES, 1996 MAR p. 2285.

Subchapter 17.8.5 Air Quality Permit Application, Operation, and Open Burning Fees

Mont. Admin. R. 17.8.501 Definitions

For the purposes of this subchapter, the following definitions apply:

(1) "Facility" means any real or personal property that is either stationary or portable and is located on one or more contiguous or adjacent properties under the control of the same owner or operator and that emits or has the potential to emit any air pollutant subject to regulation under the Clean Air Act of Montana or the Federal Clean Air Act, including associated control equipment that affects or would affect the nature, character, composition, amount, or environmental impacts of air pollution and that has the same two-digit standard industrial classification code. A facility may consist of one or more emitting units.

(2) "Major modification" has the same meaning as in ARM 17.8.801.

(3) "Modified facility" means a facility for which an application to modify, as defined in ARM 17.8.740, is submitted to the department.

(4) "New facility" means a facility for which the department has not previously issued a Montana air quality permit.

(5) "New major stationary source" means a major stationary source, as defined in ARM 17.8.801, for which the department has not previously issued a Montana air quality permit.

(6) "Portable facility" means an emitting source designated by the department in its database with the county code number "777," based on ability to move the source to other locations.

(7) "Registered oil and gas well facility" means any registration eligible oil or gas well facility that has been registered for operation under the requirements in ARM Title 17, chapter 8, subchapter 17.

(8) "Registered sand and gravel, asphalt, and concrete facility" means any facility registered in accordance with ARM Title 17, chapter 8, subchapter 18.

History

Authorizing statute(s): 75-2-111, MCA
Implementing statute(s): 75-2-211, MCA
History: NEW, 1991 MAR p. 2606, Eff. 12/27/91; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2003 MAR p. 2271, Eff. 10/17/03; AMD, 2006 MAR p. 2410, Eff. 10/6/06; AMD, 2007 MAR p. 1664, Eff. 10/26/07; AMD, 2009 MAR p. 1785, Eff. 10/16/09; AMD, 2014 MAR p. 2455, Eff. 10/10/14; AMD, 2020 MAR p. 2335, Eff. 12/25/20.

Mont. Admin. R. 17.8.504 Air Quality Permit Application Fees

(1) An applicant submitting a Montana air quality permit application required in ARM Title 17, chapter 8, subchapters 7, 8, 9, or 10, shall submit the appropriate application fee as follows:

(a) for a facility subject to ARM Title 17, chapter 8, subchapters 7 and 8, 9, or 10:

(i) for a new major stationary source - $15,000;

(ii) for a major modification - $3,500;

(iii) for a modification other than a major modification - $500;

(b) for a facility subject to ARM Title 17, chapter 8, subchapter 7, and not subject to subchapters 8, 9, or 10, that is:

(i) required by ARM Title 17, chapter 8, subchapter 12 to obtain an operating permit:

(A) for a new facility - $2,000;

(B) for a modified facility - $1,500;

(ii) a new facility that is requesting an exemption under ARM 17.8.1204(3) - $1,000; or

(iii) a modified facility that has received or is requesting an exemption under ARM 17.8.1204(3) - $500;

(i) for a new facility - $800;

(ii) for a modified facility - $500;

(iii) for a portable facility - $500.

(2) An applicant submitting an air quality operating permit application required in ARM Title 17, chapter 8, subchapter 12, shall submit an appropriate application fee, as follows:

(a) for a new permit - $6,500;

(b) for permit renewal - $2,000; or

(3) An air quality permit application is incomplete until the appropriate application fee is paid to the department.

(4) An air quality permit application fee is separate and distinct from any air quality operation fee required to be submitted to the department pursuant to ARM 17.8.505.

(5) Concurrent with submittal of a registration form, as specified in ARM 17.8.1701 through 17.8.1705, the owner or operator of an oil and gas facility shall submit a registration fee of $500.

History

Authorizing statute(s): 75-2-111, 75-2-220, 75-2-234, MCA
Implementing statute(s): 75-2-211, 75-2-220, 75-2-234, MCA
History: NEW, 1991 MAR p. 2606, Eff. 12/27/91; AMD, 1993 MAR p. 2531, Eff. 10/29/93; AMD, 1994 MAR p. 3189, Eff. 12/23/94; AMD, 1995 MAR p. 535, Eff. 4/14/95; AMD, 1995 MAR p. 2415, Eff. 11/10/95; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1996 MAR p. 2581, Eff. 10/4/96; AMD, 1997 MAR p. 1585, Eff. 9/9/97; AMD, 1998 MAR p. 2486, Eff. 9/11/98; AMD, 1999 MAR p. 2254, Eff. 10/8/99; AMD, 2000 MAR p. 2697, Eff. 10/6/00; AMD, 2003 MAR p. 2271, Eff. 10/17/03; AMD, 2005 MAR p. 2058, Eff. 10/28/05; AMD, 2006 MAR p. 893, Eff. 4/7/06; AMD, 2009 MAR p. 142, Eff. 2/13/09; AMD, 2009 MAR p. 1785, Eff. 10/16/09; AMD, 2014 MAR p. 2455, Eff. 10/10/14; AMD, 2020 MAR p. 2335, Eff. 12/25/20.

Mont. Admin. R. 17.8.505 Air Quality Operation Fees

(1) An annual air quality operation fee must be submitted to the department by the owner or operator of each facility:

(a) for which a Montana air quality permit has been issued by the department and remains in effect;

(b) for which an air quality operating permit has been issued by the department and remains in effect;

(d) that is a registered sand and gravel, asphalt, and concrete facility.

(2) Pursuant to this rule, fees shall be assessed to the owner or operator of record on the date of billing, for all facilities that meet the description in (1) as of March 1 of the calendar year in which fees are billed.

(3) Air quality permit fee schedules must require owners and operators of all facilities required to obtain a Montana air quality permit or an air quality operating permit to contribute to those department activities funded by air quality permit fees. The department shall attempt to identify all facilities subject to the annual air quality operating fee requirement and shall require payment from the owners or operators of all facilities.

(4) Annually, the department shall provide the owner or operator of each facility required to pay an air quality operation fee with written notice of the amount of the fee and the basis for the fee assessment.

(5) The air quality operation fee is due within 30 days after receipt of the notice, unless the fee assessment is appealed pursuant to ARM 17.8.511. If any portion of the fee is not appealed, that portion of the fee that is not appealed is due within 30 days after receipt of the notice. Any remaining fee that is due after completion of an appeal is due within 30 days after issuance of the board's decision or within 30 days after issuance of the final decision in any judicial review of the board's decision.

(6) If an owner or operator assessed an air quality operation fee fails to pay the required fee (or any required portion of an appealed fee) within 30 days after the due date, the department may impose a late payment charge of 10 percent of the fee (or of any required portion of an appealed fee), plus interest on the fee (or on any required portion of an appealed fee) computed at the interest rate established under 75-2-220(5)(a)(i), MCA.

(7) Except as provided in (8), the air quality operation fee for:

(a) a facility other than a portable facility, registered sand and gravel, asphalt, and concrete facility, or registered oil and gas well facility is:

(i) an administrative fee of $900; and

(ii) a tonnage fee of $44.35 per ton of the actual, or the estimated actual, emissions by the facility during the previous calendar year of PM-10, sulfur dioxide, lead, oxides of nitrogen, and volatile organic compounds.

(b) a portable facility subject to ARM Title 17, chapter 8, subchapter 7 is $800; and

(c) a registered sand and gravel, asphalt, and concrete facility is determined by multiplying total tons produced annually at:

(i) asphalt plants by $0.05;

(ii) crushers/screeners by $0.01; and

(iii) concrete batch plants by $0.05.

(8) If the amount determined under (7)(c) is:

(a) less than $500, the fee is $500; or

(b) greater than $13,000, the fee is $13,000.

(9) The air quality operation fee for registered oil and gas well facilities is $850.

(10) The owner or operator of a facility may not be required to pay more than one administrative fee if the facility is subject to more than one Montana air quality permit issued by the department.

(11) An air quality operation fee is separate and distinct from any air quality permit application fee required to be submitted to the department pursuant to ARM 17.8.504.

(12) Annual assessment and collection of the air quality operation fee will be on a calendar year basis. The department may include conditions in a permit requiring payment of an air quality operation fee on a calendar year basis, including provisions prorating the required fee.

(13) The owner or operator of each facility subject to (1) shall submit to the department, on the date specified by the department, all information necessary to complete an inventory of estimated actual emissions for the preceding calendar year. The department shall notify the owner or operator of the facility of the date by which the information must be submitted. The information submittal date may not be earlier than February 15.

History

Authorizing statute(s): 75-2-111, 75-2-220, 75-2-234, MCA
Implementing statute(s): 75-2-211, 75-2-220, 75-2-234, MCA
History: NEW, 1991 MAR p. 2606, Eff. 12/27/91; AMD, 1992 MAR p. 2390, Eff. 10/30/92; AMD, 1993 MAR p. 2531, Eff. 10/29/93; AMD, 1994 MAR p. 3189, Eff. 12/23/94; AMD, 1995 MAR p. 535, Eff. 4/14/95; AMD, 1995 MAR p. 2415, Eff. 11/10/95; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1996 MAR p. 2581, Eff. 10/4/96; AMD, 1997 MAR p. 1585, Eff. 9/9/97; AMD, 1998 MAR p. 2486, Eff. 9/11/98; AMD, 1999 MAR p. 2254, Eff. 10/8/99; AMD, 2000 MAR p. 2697, Eff. 10/6/00; AMD, 2001 MAR p. 2412, Eff. 12/7/01; AMD, 2002 MAR p. 2902, Eff. 10/18/02; AMD, 2003 MAR p. 2271, Eff. 10/17/03; AMD, 2004 MAR p. 2547, Eff. 10/22/04; AMD, 2005 MAR p. 2058, Eff. 10/28/05; AMD, 2006 MAR p. 893, Eff. 4/7/06; AMD, 2006 MAR p. 2410, Eff. 10/6/06; AMD, 2007 MAR p. 1664, Eff. 10/26/07; AMD, 2008 MAR p. 2270, Eff. 10/24/08; AMD, 2009 MAR p. 1785, Eff. 10/16/09; AMD, 2018 MAR p. 2046, Eff. 10/20/18; AMD, 2020 MAR p. 2335, Eff. 12/25/20.

Mont. Admin. R. 17.8.506 Credit Against Air Permitting Fees for Certain Uses of Postconsumer Glass

(1) Sections 75-2-224 through 75-2-227 , MCA, provide a credit against the fees imposed under this subchapter for using postconsumer glass in recycled material.

(2) For the purposes of this rule, "postconsumer glass" and "recycled material" mean the same as defined in 75-2-224 , MCA.

History

Authorizing statute(s): 75-2-227, MCA
Implementing statute(s): 75-2-211, 75-2-224, 75-2-225, 75-2-226, 75-2-227, MCA
History: NEW, 2002 MAR p. 529, Eff. 3/1/02.

Mont. Admin. R. 17.8.510 Annual Review

(1) No later than September 30 of each year, the department shall report to the board regarding fees associated with air quality permits and facility registrations, which are anticipated for the next calendar year. This report shall include a description of the legislative appropriation to be recovered, the status of the specific appropriation account as of the end of the previous fiscal year, the emissions upon which such fees will be based, the fee structure to be implemented, and the status of any anticipated rulemaking activity necessary to adopt the new fees.

History

Authorizing statute(s): 75-2-111, MCA
Implementing statute(s): 75-2-211, MCA
History: NEW, 1991 MAR p. 2606, Eff. 12/27/91; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2002 MAR p. 2902, Eff. 10/18/02; AMD, 2020 MAR p. 2335, Eff. 12/25/20.

Mont. Admin. R. 17.8.511 Air Quality Permit Application/Operation Fee Assessment Appeal Procedures

(1) The department's fee assessment may be appealed by the owner or operator of the facility to the Board of Environmental Review within 20 days of:

(a) receipt of the fee assessment notice; or

(b) issuance of a determination of incompleteness of a permit application based on the lack of the proper permit application fee.

History

Authorizing statute(s): 75-2-111, MCA
Implementing statute(s): 75-2-211, MCA
History: NEW, 1991 MAR p. 2606, Eff. 12/27/91; AMD, 1992 MAR p. 2061, Eff. 9/11/92; AMD, 1992 MAR p. 2285, Eff. 10/16/92; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1996 MAR p. 3041, Eff. 11/22/96; AMD, 2003 MAR p. 2271, Eff. 10/17/03.

Mont. Admin. R. 17.8.514 Air Quality Open Burning Fees

(1) Concurrent with submittal of an air quality major open burning permit application, as required in ARM 17.8.610, the applicant shall submit an air quality major open burning permit application fee.

(2) Air quality major open burning fees are separate and distinct from any air quality operation fee required to be submitted to the department pursuant to ARM 17.8.505 or Montana air quality permit application fee required to be submitted to the department pursuant to ARM 17.8.504.

(3) An air quality major open burning permit application is incomplete until the proper air quality major open burning fee is paid to the department. If the department determines that the fee submitted with the application is insufficient, it shall notify the applicant in writing of the appropriate fee which must be paid before the major open burning permit application can be processed. If the fee assessment is appealed to the board pursuant to ARM 17.8.511, and if the fee deficiency is not corrected by the applicant, the major open burning permit application is incomplete until issuance of the board's decision or until any judicial review of the board's decision has been completed, whichever is later. Upon final disposition of an appeal, any portion of the fee due to either the department or the applicant as a result of the decision is due within 30 days after issuance of the board's decision or within 30 days after issuance of the final decision in any judicial review of the board's decision.

(4) The air quality major open burning permit application fee shall be based on the actual, or estimated actual, amount of air pollutants emitted by the applicant in the last calendar year during which the applicant conducted open burning pursuant to an air quality major open burning permit required under ARM 17.8.610.

(5) The air quality major open burning permit application fee is the greater of the following, as adjusted by any amount determined pursuant to (6):

(a) a fee calculated using the following formula:

tons of total particulate emitted in the previous appropriate calendar year, multiplied by $20.60; plus tons of oxides of nitrogen emitted in the previous appropriate calendar year, multiplied by $5.15; plus tons of volatile organic compounds emitted in the previous appropriate calendar year, multiplied by $5.15; or

(b) a minimum fee of $350.

(6) The department may reduce or eliminate, as appropriate, the air quality major open burning permit application fee to be collected from an applicant in recognition of the nonmonetary contributions made by the applicant to the smoke management program. The department may recognize only those nonmonetary contributions made by the applicant in the last calendar year during which the applicant conducted open burning pursuant to an air quality open burning permit for major open burning sources, required under ARM 17.8.610. To be accepted for the purpose of reducing an applicant's fees for the subsequent calendar year, a written claim for nonmonetary contributions to the smoke management program must be filed with the department no later than 60 days after the close of the calendar year during which the nonmonetary contributions were made by the applicant. A claim must describe in detail both the nature of the nonmonetary contributions and the dollar value of the contributions. Nonmonetary contributions may consist of, but are not limited to, staff time and the use of equipment, supplies, or space. The department shall review any written claims submitted, and may adjust the dollar value of the nonmonetary contributions upon finding that the value assigned to the contributions is not reasonable, the nonmonetary contributions that were made were not reasonably related to the smoke management program, or both. In no case may an applicant be reimbursed for nonmonetary contributions in excess of the applicant's assessed open burning permit fee.

History

Authorizing statute(s): 75-2-111, MCA
Implementing statute(s): 75-2-211, 75-2-220, MCA
History: NEW, 1992 MAR p. 2061, Eff. 9/11/92; AMD, 1994 MAR p. 2130, Eff. 8/12/94; AMD, 1995 MAR p. 1669, Eff. 8/25/95; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1997 MAR p. 1587, Eff. 9/9/97; AMD, 1998 MAR p. 1729, Eff. 6/26/98; AMD, 2000 MAR p. 2697, Eff. 10/6/00; AMD, 2001 MAR p. 2023, Eff. 10/12/01; AMD, 2002 MAR p. 2902, Eff. 10/18/02; AMD, 2003 MAR p. 2271, Eff. 10/17/03; AMD, 2004 MAR p. 2547, Eff. 10/22/04; AMD, 2005 MAR p. 2058, Eff. 10/28/05; AMD, 2006 MAR p. 2410, Eff. 10/6/06; AMD, 2007 MAR p. 1664, Eff. 10/26/07; AMD, 2008 MAR p. 2270, Eff. 10/24/08; AMD, 2009 MAR p. 1785, Eff. 10/16/09.

Mont. Admin. R. 17.8.515 Air Quality Open Burning Fees for Conditional, Emergency, Christmas Tree Waste, Commercial Film Production, and Firefighter Training Open Burning Permits

(1) Concurrent with submittal of an air quality open burning permit application, as required in ARM 17.8.611, 17.8.612, 17.8.613, 17.8.614, or 17.8.615, the applicant shall submit an air quality open burning fee.

(2) Air quality open burning fees are separate and distinct from any other air quality fee required to be submitted to the department pursuant to this subchapter.

(3) An air quality open burning permit application is incomplete until the proper air quality open burning fee is paid to the department, except as provided in (4) (c) . If the department determines that the fee submitted with the application is insufficient, it shall notify the applicant in writing of the appropriate fee which must be paid before the open burning permit application can be processed. If the fee assessment is appealed to the board pursuant to ARM 17.8.511, and if the fee deficiency is not corrected by the applicant, the permit application is incomplete until issuance of the board's decision or until any judicial review of the board's decision has been completed, whichever is later. Upon final disposition of an appeal, any portion of the fee due to either the department or the applicant as a result of the decision is due within 30 days after issuance of the board's decision or within 30 days after issuance of the final decision in any judicial review of the board's decision.

(4) The air quality open burning permit application fees are:

(a) $100 for an emergency open burning permit under ARM 17.8.611. A fee for an emergency open burning permit application need not be submitted with the initial oral request to the department, but must be submitted with the subsequent written application required under ARM 17.8.611. Submittal of the fee is a condition of any authorization given by the department under ARM 17.8.611, and the failure to submit the fee is considered a violation of such authorization and may be subject to enforcement action;

(b) $100 for a wood and wood byproduct trade waste open burning permit under ARM 17.8.612;

(c) $100 for an untreated wood-waste open burning permit at a licensed landfill site under ARM 17.8.612. The required fee for this activity is included in the solid waste management system licensing fee, submitted pursuant to ARM Title 17, chapter 50, subchapter 4. Therefore, the applicant is not required to submit a fee with the untreated wood-waste open burning permit application;

(d) $100 for a Christmas tree waste open burning permit under ARM 17.8.613;

(e) $100 for a commercial film production open burning permit under ARM 17.8.614; and

(f) $25 for a firefighter training open burning permit under ARM 17.8.615. As a condition of a firefighter training open burning permit, the department may require submission of an annual fee to maintain the permit.

History

Authorizing statute(s): 75-2-111, 75-2-211, 75-2-220, MCA
Implementing statute(s): 75-2-211, 75-2-220, MCA
History: NEW, 1992 MAR p. 2743, Eff. 10/16/92; AMD, 1994 MAR p. 2830, Eff. 10/28/94; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2003 MAR p. 2271, Eff. 10/17/03.

Subchapter 17.8.6 Open Burning

Mont. Admin. R. 17.8.601 Definitions

(1) "Best available control technology" (BACT) means those techniques and methods of controlling emission of pollutants from an existing or proposed open burning source which limit those emissions to the maximum degree which the department determines, on a case-by-case basis, is achievable for that source, taking into account impacts on energy use, the environment, and the economy, and any other costs, including cost to the source.

(a) Such techniques and methods may include the following:

(i) scheduling of burning during periods and seasons of good ventilation;

(ii) applying dispersion forecasts;

(iii) utilizing predictive modeling results performed by and available from the department to minimize smoke impacts;

(iv) limiting the amount of burning to be performed during any one time;

(v) using ignition and burning techniques which minimize smoke production;

(vi) selecting fuel preparation methods that will minimize dirt and moisture content;

(vii) promoting fuel configurations which create an adequate air to fuel ratio;

(viii) prioritizing burns as to air quality impact and assigning control techniques accordingly;

(ix) promoting alternative treatments and uses of materials to be burned; and

(x) selecting sites that will minimize smoke impacts.

(b) For essential agricultural open burning, prescribed wildland open burning, conditional air quality open burning, commercial film production open burning, Christmas tree waste open burning, or any other minor open burning during September, October, or November, BACT includes burning only during the time periods specified by the department, which may be determined by calling the department at (800) 225-6779.

(c) For essential agricultural open burning, prescribed wildland open burning, conditional air quality open burning, commercial film production open burning, Christmas tree waste open burning, or any other minor open burning during December, January, or February, BACT includes burning only during the time periods specified by the department, which may be determined by calling the department at (800) 225-6779.

(2) "Christmas tree waste" means wood waste from commercially grown Christmas trees left in the field where the trees were grown, after harvesting and on-site processing.

(3) "Eastern Montana open burning zone" means the following counties or portions of counties: Big Horn, Blaine, Carbon, Carter, Cascade, Chouteau, Custer, Daniels, Dawson, Fallon, Fergus, Garfield, Glacier, Golden Valley, Hill, Judith Basin, Liberty, McCone, Meagher, Musselshell, Park (that portion north of Interstate 90), Petroleum, Phillips, Pondera, Powder River, Prairie, Richland, Roosevelt, Rosebud, Sheridan, Stillwater, Sweet Grass, Teton, Toole, Treasure, Valley, Wheatland, Wibaux and Yellowstone.

(4) "Essential agricultural open burning" means any open burning conducted on a farm or ranch to:

(a) eliminate excess vegetative matter from an irrigation ditch when no reasonable alternative method of disposal is available;

(b) eliminate excess vegetative matter from cultivated fields after harvest has been completed when no reasonable alternative method of disposal is available;

(d) improve wildlife habitat when no reasonable alternative method is available.

(5) "Major open burning source" means any person, agency, institution, business, or industry conducting any open burning that, on a statewide basis, will emit more than 500 tons per calendar year of carbon monoxide or 50 tons per calendar year of any other pollutant regulated under this chapter, except hydrocarbons.

(6) "Minor open burning source" means any person, agency, institution, business, or industry conducting any open burning that is not a major open burning source.

(7) "Open burning" means combustion of any material directly in the open air without a receptacle, or in a receptacle other than a furnace, multiple chambered incinerator, or wood waste burner, with the exception of detonation of unexploded ordnance, small recreational fires, construction site heating devices used to warm workers, or safety flares used to combust or dispose of hazardous or toxic gases at industrial facilities, such as refineries, gas sweetening plants, oil and gas wells, sulfur recovery plants, or elemental phosphorus plants.

(8) "Prescribed wildland open burning" means any planned open burning, either deliberately or naturally ignited, that is conducted on forest land or relatively undeveloped rangeland to:

(a) improve wildlife habitat;

(b) improve range conditions;

(d) reduce fire hazards resulting from forestry practices, including reduction of log deck debris when the log deck is close to a timber harvest site;

(e) control forest pests and diseases; or

(f) promote any other accepted silvicultural practices.

(9) "Salvage operation" means any operation conducted in whole or in part to salvage or reclaim any product or material, except the silvicultural practice commonly referred to as a salvage cut.

(10) "Trade wastes" means solid, liquid, or gaseous material resulting from construction or operation of any business, trade, industry, or demolition project. Wood product industry wastes such as sawdust, bark, peelings, chips, shavings, and cull wood are considered trade wastes. Trade wastes do not include wastes generally disposed of by essential agricultural open burning, prescribed wildland open burning, or Christmas tree waste, as defined in this rule.

(11) "Wood waste burner" means a device commonly called a tepee burner, silo, truncated cone, wigwam burner, or other similar burner commonly used by the wood products industry to dispose of wood.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: NEW, 1982 MAR p. 688, Eff. 4/16/82; AMD, 1994 MAR p. 2528, Eff. 9/9/94; AMD, 1995 MAR p. 2412, Eff. 11/10/95; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1999 MAR p. 1660, Eff. 7/23/99; AMD, 2002 MAR p. 3586, Eff. 12/27/02.

Mont. Admin. R. 17.8.602 Incorporation by Reference

(1) For the purposes of this subchapter, the department adopts and incorporates by reference ARM Title 17, chapter 53, subchapter 5, identifying and defining hazardous wastes.

(2) A copy of ARM Title 17, chapter 53, subchapter 5, may be obtained as referenced in ARM 17.8.102(3).

History

Authorizing statute(s): 75-2-112, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: NEW, 1996 MAR p. 1844, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1997 MAR p. 1581, Eff. 9/9/97; AMD, 2001 MAR p. 1468, Eff. 8/10/01; AMD, 2005 MAR p. 959, Eff. 6/17/05; AMD, 2007 MAR p. 1663, Eff. 10/26/07; AMD, 2018 MAR p. 438, Eff. 2/24/18; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.8.604 Materials Prohibited from Open Burning

(1) The following material may not be disposed of by open burning:

(a) any waste which is moved from the premises where it was generated, except as provided in ARM 17.8.604(2), 17.8.611, or 17.8.612(4)(a) or (b);

(b) food wastes;

(d) wastes generating noxious odors;

(e) wood and wood byproducts that have been coated, painted, stained, treated, or contaminated by a foreign material, unless open burning is allowed under ARM 17.8.614 or 17.8.615;

(f) poultry litter;

(g) animal droppings;

(h) dead animals or dead animal parts;

(i) tires, except as provided in ARM 17.8.615;

(j) rubber materials;

(k) asphalt shingles, except as provided in ARM 17.8.614 or 17.8.615;

(l) tar paper, except as provided in ARM 17.8.614 or 17.8.615;

(m) automobile or aircraft bodies and interiors, except as provided in ARM 17.8.614 or 17.8.615;

(n) insulated wire, except as provided in ARM 17.8.614 or 17.8.615;

(o) oil or petroleum products, except as provided in ARM 17.8.614 or 17.8.615;

(p) treated lumber and timbers;

(q) pathogenic wastes;

(r) hazardous wastes, as defined by 40 CFR Part 261, incorporated by reference in ARM 17.8.602;

(s) trade wastes, except as provided in ARM 17.8.611 or 17.8.612;

(t) any materials resulting from a salvage operation;

(u) chemicals, except as provided in ARM 17.8.614 or 17.8.615;

(v) Christmas tree waste as defined in ARM 17.8.601, except as provided in ARM 17.8.613;

(w) asbestos or asbestos-containing materials;

(x) standing or demolished structures containing prohibited material, except as provided in ARM 17.8.612, 17.8.614, or 17.8.615; and

(y) paint, except as provided in ARM 17.8.614 or 17.8.615.

(2) A person may not conduct open burning of any wood waste that is moved from the premises where it was generated, except as provided in ARM 17.8.611 or 17.8.612(4)(a) or (4)(b), or unless the department determines:

(a) the material is wood or wood byproducts that have not been coated, painted, stained, treated, or contaminated by a foreign material; and

(b) alternative methods of disposal are unavailable or infeasible.

(3) A person conducting open burning of wood waste which is moved from the premises where it was generated shall comply with BACT.

(4) A person intending to conduct open burning of wood waste which is moved from the premises where it was generated shall contact the department by calling the number listed in ARM 17.8.601(1) prior to conducting open burning.

(5) Except as provided in ARM 17.8.606, a person may not open burn any nonprohibited material without first obtaining an air quality open burning permit from the department.

History

Authorizing statute(s): 75-2-112, 75-2-203, MCA
Implementing statute(s): 75-2-203, 75-2-211, MCA
History: NEW, 1982 MAR p. 689, Eff. 4/16/82; AMD, 1991 MAR p. 126, Eff. 2/1/91; AMD, 1994 MAR p. 2528, Eff. 9/9/94; AMD, 1995 MAR p. 535, Eff. 4/14/95; AMD, 1996 MAR p. 1844, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2002 MAR p. 3586, Eff. 12/27/02; AMD, 2011 MAR p. 569, Eff. 4/15/11; AMD, 2024 MAR p. 2056, Eff. 8/24/24.

Mont. Admin. R. 17.8.605 Special Burning Periods

(1) The following categories of open burning may be conducted during the entire year:

(a) prescribed wildland open burning;

(b) open burning to train firefighters under ARM 17.8.615;

(d) essential agricultural open burning;

(e) conditional air quality open burning;

(f) commercial film production open burning;

(g) Christmas tree waste open burning; and

(h) any minor open burning that is not prohibited by ARM 17.8.604 or that is allowed by ARM 17.8.606.

(2) Open burning other than those categories listed in (1) may be conducted only during the months of March through November.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: NEW, 1982 MAR p. 691, Eff. 4/16/82; AMD, 1994 MAR p. 2528, Eff. 9/9/94; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2002 MAR p. 3586, Eff. 12/27/02.

Mont. Admin. R. 17.8.606 Minor Open Burning Source Requirements

(1) Unless required to obtain an open burning permit under another provision of this subchapter, a minor open burning source need not obtain an air quality open burning permit.

(2) A minor open burning source must:

(a) conform with BACT;

(b) comply with all rules in this subchapter, except ARM 17.8.610; and

(c) comply with any requirements or regulations relating to open burning established by any agency of local government, including local air pollution agencies established under 75-2-301 , MCA, of the Montana Clean Air Act, or any other municipal or county agency responsible for protecting public health and welfare.

(3) During September, October, or November, to conduct any minor open burning not prohibited by ARM 17.8.604, a minor open burning source must adhere to the burning restrictions established by the department that are available by calling the department at (800) 225-6779.

(4) During December, January, or February, to conduct any minor open burning that is not prohibited by ARM 17.8.604, a minor open burning source must comply with the following conditions:

(a) Outside the eastern Montana open burning zone, a minor open burning source must:

(i) submit a written request to the department, demonstrating that the essential agricultural open burning or prescribed wildland open burning, or any minor open burning that is not prohibited by ARM 17.8.604 must be conducted prior to reopening of open burning in March;

(ii) receive permission for each specific burn from the department; and

(iii) adhere to the time periods set for burning by the department that are available by calling the department at (800) 225-6779.

(b) Inside the eastern Montana open burning zone, a minor open burning source need only notify the department by telephone of any essential agricultural open burning, prescribed wildland open burning, or any other minor open burning that is not prohibited by ARM 17.8.604 prior to ignition. Burning is allowed when ventilation conditions are good or excellent. Ventilation conditions are determined by the department using a ventilation index, which is defined as the product of the mixing depth in feet at the time of the daily maximum temperature, times the average transport wind in knots through the mixed layer divided by 100. Good or excellent ventilation conditions exist when the ventilation index is 400 or higher. Forecasts of ventilation conditions may be obtained by calling the department at (800) 225-6779.

(5) During March through August, subject to (2), a minor open burning source may conduct open burning not prohibited under ARM 17.8.604.

(6) The requirements of this rule are in addition to any other applicable state, federal or local open burning requirements.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, MCA
History: NEW, 1982 MAR p. 690, Eff. 4/16/82; AMD, 1994 MAR p. 2528, Eff. 9/9/94; AMD, 1995 MAR p. 2412, Eff. 11/10/95; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1999 MAR p. 1660, Eff. 7/23/99; AMD, 2002 MAR p. 3586, Eff. 12/27/02.

Mont. Admin. R. 17.8.610 Major Open Burning Source Restrictions

(1) Prior to open burning, a major open burning source must submit an application to the department for an air quality major open burning permit. The application must be accompanied by the appropriate air quality permit application fee required under ARM 17.8.514 and must contain the following information:

(a) a legal description of each planned site of open burning or a detailed map showing the location of each planned site of open burning;

(b) the elevation of each planned site of open burning;

(d) the average fuel loading or total fuel loading at each site to be burned.

(2) Proof of publication of public notice, consistent with this rule, must be submitted to the department before an application will be considered complete. An applicant for an air quality major open burning permit shall notify the public of the application for permit by legal publication, at least once, in a newspaper of general circulation in each airshed (as defined by the department) affected by the application. The notice must be published no sooner than ten days prior to submittal of an application and no later than ten days after submittal of an application. The form of the notice must be provided by the department and must include a statement that public comments concerning the application may be submitted to the department within 20 days after publication of notice or filing of the application, whichever is later. A single public notice may be published for multiple applicants.

(3) When the department approves or denies the application for a permit under this rule, a person who is directly and adversely affected by the department's decision may request a hearing before the board in the manner provided in 75-2-211, MCA.

(4) A major open burning source must:

(a) conform with BACT; and

(b) comply with the conditions in any air quality open burning permit issued to it by the department, which will be in effect for one year from its date of issuance or another time frame as specified in the permit by the department.

(5) To open burn in a manner other than that described in the application for an air quality open burning permit, the source must submit to the department, in writing or by telephone, a request for a change in the permit, including the information required by (1), and must receive approval from the department.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, 75-2-211, MCA
History: NEW, 1982 MAR p. 690, Eff. 4/16/82; AMD, 1992 MAR p. 2061, Eff. 9/11/92; AMD, 1994 MAR p. 2528, Eff. 9/9/94; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1999 MAR p. 1660, Eff. 7/23/99; AMD, 2002 MAR p. 3586, Eff. 12/27/02; AMD, 2011 MAR p. 569, Eff. 4/15/11; AMD, 2016 MAR p. 1164, Eff. 7/9/16.

Mont. Admin. R. 17.8.611 Emergency Open Burning Permits

(1) The department may issue an emergency air quality open burning permit to allow burning of a substance not otherwise approved for burning under this subchapter if the applicant demonstrates that the substance to be burned poses an immediate threat to public health and safety, or plant or animal life, and that no alternative method of disposal is reasonably available.

(2) Oral authorization to conduct emergency open burning may be granted by the department upon receiving the following information:

(a) facts establishing that alternative methods of disposing of the substance are not reasonably available;

(b) facts establishing that the substance to be burned poses an immediate threat to human health and safety or plant or animal life;

(d) the amount of material to be burned;

(e) the date and time of the proposed burn;

(f) the date and time that the spill or incident giving rise to the emergency was first noticed; and

(g) a commitment to pay the appropriate air quality permit application fee required under ARM 17.8.515 within ten working days of permit issuance.

(3) Within ten days of receiving oral authorization to conduct emergency open burning under (2), the applicant must submit to the department a written application for an emergency open burning permit containing the information required above under (2)(a) through (f). The applicant shall also submit the appropriate air quality permit application fee required under ARM 17.8.515.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, 75-2-211, MCA
History: NEW, 1982 MAR p. 692, Eff. 4/16/82; AMD, 1992 MAR p. 2285, Eff. 10/16/92; AMD, 1994 MAR p. 2528, Eff. 9/9/94; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1999 MAR p. 1660, Eff. 7/23/99.

Mont. Admin. R. 17.8.612 Conditional Air Quality Open Burning Permits

(1) The department may issue a conditional air quality open burning permit if the department determines that:

(a) alternative methods of disposal would result in extreme economic hardship to the applicant; and

(b) emissions from open burning will not endanger public health or welfare or cause or contribute to a violation of any Montana or federal ambient air quality standard.

(2) The department must be reasonable when determining whether alternative methods of disposal would result in extreme economic hardship to the applicant.

(3) Conditional open burning must conform with BACT.

(4) The department may issue a conditional air quality open burning permit to dispose of:

(a) solid wood and wood byproduct trade wastes by any business, trade, industry, or demolition project; or

(b) untreated wood waste at a licensed landfill site, if the department determines that:

(i) the proposed open burning will occur at an approved burn site, as designated in the solid waste management system license issued by the department pursuant to ARM Title 17, chapter 50, subchapter 5;

(ii) the material to be burned complies with ARM Title 17, chapter 50, subchapter 5; and

(iii) prior to each burn, the burn pile was inspected by the department or its designated representative and no prohibited materials listed in ARM 17.8.604 were present.

(5) A permit issued under this rule is valid for the following periods:

(a) solid wood and wood byproduct trade wastes--one year; and

(b) untreated wood waste at licensed landfill sites--one year.

(6) The department may place any reasonable requirements in a conditional air quality open burning permit that the department determines will reduce emissions of air pollutants or minimize the impact of emissions, and the recipient of a permit must adhere to those conditions. For a permit granted under (4)(a), BACT for the year covered by the permit will be specified in the permit; however, the source may be required, prior to each burn, to receive approval from the department of the date of the proposed burn to ensure that good ventilation exists and to assign burn priorities if other sources in the area request permission to burn on the same day. Approval may be requested by calling the department at (800) 225-6779.

(7) An application for a conditional air quality open burning permit must be made on a form provided by the department, and must be accompanied by the appropriate air quality permit application fee required under ARM 17.8.515. The applicant shall provide adequate information to enable the department to determine whether the application satisfies the requirements for a conditional air quality open burning permit contained in this rule. Proof of publication of public notice, as required in (8), must be submitted to the department before an application will be considered complete.

(8) An applicant for a conditional air quality open burning permit shall notify the public of the application by legal publication, at least once, in a newspaper of general circulation in the area affected by the application. The notice must be published no sooner than ten days prior to submittal of an application and no later than ten days after submittal of an application. Form of the notice must be provided by the department and must include a statement that public comments may be submitted to the department concerning the application within 20 days after publication of notice or filing of the application, whichever is later. A single public notice may be published for multiple applicants.

(9) A conditional air quality open burning permit granted under (4)(a) of this rule is a temporary measure to allow time for the entity generating the trade wastes to develop alternative means of disposal.

(10) When the department approves or denies the application for a permit under this rule, a person who is directly and adversely affected by the department's decision may request a hearing before the board in the manner provided in 75-2-211, MCA.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, 75-2-211, MCA
History: NEW, 1982 MAR p. 691, Eff. 4/16/82; AMD, 1991 MAR p. 126, Eff. 2/1/91; AMD, 1992 MAR p. 2285, Eff. 10/16/92; AMD, 1994 MAR p. 2528, Eff. 9/9/94; AMD, 1995 MAR p. 535, Eff. 4/14/95; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1999 MAR p. 1660, Eff. 7/23/99; AMD, 2002 MAR p. 3586, Eff. 12/27/02; AMD, 2011 MAR p. 569, Eff. 4/15/11; AMD, 2016 MAR p. 1164, Eff. 7/9/16.

Mont. Admin. R. 17.8.613 Christmas Tree Waste Open Burning Permits

(1) The department may issue an air quality open burning permit for disposal of Christmas tree waste, as defined in ARM 17.8.601(2).

(2) The department may issue an air quality Christmas tree waste open burning permit if the department determines that emissions from open burning will not endanger public health or welfare or cause or contribute to a violation of any Montana or federal ambient air quality standard.

(3) Christmas tree waste open burning must conform with BACT.

(4) A permit issued under this rule is valid for one year, and applicants may reapply for a permit annually.

(5) The department may place any reasonable requirements in an air quality Christmas tree waste open burning permit that the department determines will reduce emissions of air pollutants or minimize the impact of emissions, and the recipient of a permit must adhere to those conditions. The following conditions, at a minimum, must be included in any air quality Christmas tree waste open burning permit:

(a) BACT for the year covered by the permit; and

(b) a provision that the source may be required, prior to each burn, to receive approval from the department of the date and time of the proposed burn to ensure that good ventilation exists and to assign burn priorities, if necessary. Approval may be requested by calling the department at (800) 225-6779.

(6) An application for an air quality Christmas tree waste open burning permit must be made on a form provided by the department. The applicant shall provide adequate information to enable the department to determine whether the application satisfies the requirements of this rule for a permit.

(7) An applicant for an air quality Christmas tree waste open burning permit shall notify the public of its application either by publishing a notice in a newspaper of general circulation or by posting at least two public notices, one on the property as described in (a)(i), and one in a conspicuous location at the county courthouse as described in (a)(ii).

(a) Posted public notices must comply with the following conditions:

(i) at least one public notice must be posted on the property where the open burning is to occur, near the closest public right-of-way to the property, in a location clearly visible from the right-of-way;

(ii) at least one public notice must be posted in a conspicuous location at the county courthouse in the county where the burning is to take place;

(iii) the two public notices must be posted no sooner than ten days prior to submittal of the application and no later than ten days after submittal of the application and must remain posted in a visible condition for a minimum of 15 days; and

(iv) the two public notices must state the information in the application, the procedure for providing public comment to the department on the application, the date by which public comments must be submitted to the department, and the procedure for requesting a copy of the department's decision.

(b) Publication of public notices in a newspaper must:

(i) be by legal publication, at least once, in a newspaper of general circulation in the area affected by the application;

(ii) be published no sooner than ten days prior to submittal of the application and no later than ten days after submittal of the application; and

(iii) follow a form provided by the department, including a statement that public comments may be submitted to the department concerning the application within 20 days after publication of notice or filing of the application, whichever is later. A single public notice may be published for multiple applicants.

(8) When the department approves or denies the application for a permit under this rule, a person who is directly and adversely affected by the department's decision may request a hearing before the board in the manner provided in 75-2-211, MCA.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, 75-2-211, MCA
History: NEW, 1994 MAR p. 2528, Eff. 9/9/94; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1999 MAR p. 1660, Eff. 7/23/99; AMD, 2011 MAR p. 569, Eff. 4/15/11; AMD, 2016 MAR p. 1164, Eff. 7/9/16.

Mont. Admin. R. 17.8.614 Commercial Film Production Open Burning Permits

(1) The department may issue an air quality commercial film production open burning permit for open burning of otherwise prohibited material as part of a commercial, educational film, or video production for motion pictures or television. Use of pyrotechnic special effects materials, including bulk powder compositions and devices, smoke powder compositions and devices, matches and fuses, squibs and detonators, and fireworks specifically created for use by special effects pyrotechnicians for use in motion picture or video productions is not considered open burning.

(2) The department may issue an air quality commercial film production open burning permit under this rule if the department determines that emissions from open burning will not endanger public health or welfare or cause or contribute to a violation of any Montana or federal ambient air quality standard.

(3) A permit issued under this rule is valid for a single production.

(4) Open burning under this rule must conform with BACT.

(5) The department may place any reasonable requirements in an air quality commercial film production open burning permit issued under this rule that the department determines will reduce emissions of air pollutants or minimize the impact of emissions, and the recipient of a permit must adhere to those conditions.

(6) An application for an air quality commercial film production open burning permit must be made on a form provided by the department. The applicant shall provide adequate information to enable the department to determine whether the application satisfies the requirements of this rule for a permit. Proof of publication of public notice, as required by (7), must be submitted to the department before an application will be considered complete.

(7) An applicant for an air quality commercial film production open burning permit shall notify the public of its application by legal publication, at least once, in a newspaper of general circulation in the area affected by the application. The notice must be published no sooner than ten days prior to submittal of the application and no later than ten days after submittal of the application. Form of the notice must be provided by the department and must include a statement that public comments may be submitted to the department concerning the application within 20 days after publication of notice or filing of the application, whichever is later. A single public notice may be published for multiple applicants.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, 75-2-211, MCA
History: NEW, 1994 MAR p. 2528, Eff. 9/9/94; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2002 MAR p. 3586, Eff. 12/27/02; AMD, 2011 MAR p. 569, Eff. 4/15/11; AMD, 2016 MAR p. 1164, Eff. 7/9/16.

Mont. Admin. R. 17.8.615 Firefighter Training

(1) The department may issue an air quality open burning permit for open burning of asphalt shingles, tar paper, or insulated wire which is part of a building or standing structure, oil or petroleum products, and automobile or aircraft bodies and interiors, for training firefighters, if:

(a) the fire will be restricted to a building or structure, a permanent training facility, or other appropriate training site, in a site other than a solid waste disposal site;

(b) the material to be burned will not be allowed to smolder after the training session has terminated, and no public nuisance will be created;

(d) asphalt shingles, flooring material, siding, and insulation which might contain asbestos have been removed, unless samples have been analyzed by a certified laboratory and shown to be asbestos-free;

(e) all prohibited material that can be removed safely and reasonably has been removed;

(f) the open burning accomplishes a legitimate training need;

(g) clear educational objectives have been identified for the training;

(h) burning is limited to that necessary to accomplish the educational objectives;

(i) the training operations and procedures are consistent with nationally accepted standards of good practice; and

(j) emissions from open burning will not endanger public health or welfare or cause or contribute to a violation of any Montana or federal ambient air quality standard.

(2) The department may place any reasonable requirements in an air quality firefighter training open burning permit that the department determines will reduce emissions of air pollutants or will minimize the impact of emissions, and the recipient of a permit must adhere to those conditions.

(3) The applicant may be required, prior to each burn, to notify the department of the anticipated date and location of the proposed training exercise and the type and amount of material to be burned. The department may be notified by phone, fax, or in writing.

(4) An application for an air quality firefighter training open burning permit must be made on a form provided by the department. The applicant must provide adequate information to enable the department to determine whether the application satisfies the requirements of this rule for a permit.

(5) Proof of publication of public notice, consistent with this rule, must be submitted to the department before an application will be considered complete. An applicant for an air quality firefighter training open burning permit shall notify the public of the application for a permit by legal publication, at least once, in a newspaper of general circulation in the area affected by the application. The notice must be published no sooner than ten days prior to submittal of an application and no later than ten days after submittal of an application. The form of the notice must be provided by the department and must include a statement that public comments may be submitted to the department concerning the application within 20 days after publication of notice or filing of the application, whichever is later. A single public notice may be published for multiple applicants.

(6) When the department approves or denies the application for a permit under this rule, a person who is directly and adversely affected by the department's decision may request a hearing before the board in the manner provided in 75-2-211, MCA.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, 75-2-211, MCA
History: NEW, 1982 MAR p. 691, Eff. 4/1/82; AMD, 1994 MAR p. 2528, Eff. 9/9/94; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2011 MAR p. 569, Eff. 4/15/11; AMD, 2016 MAR p. 1164, Eff. 7/9/16.

History

Authorizing statute(s): 75-2-111, 75-2-204, MCA
Implementing statute(s): 75-2-204, 75-2-211, MCA
History: NEW, 1979 MAR p. 224, Eff. 3/16/79; AMD, 1982 MAR p. 1482, Eff. 7/30/82; AMD, 1987 MAR p. 159, Eff. 2/14/87; AMD, 1993 MAR p. 2930, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285; REP, 2002 MAR p. 3567, Eff. 12/27/02.

Mont. Admin. R. 17.8.740 Definitions

For the purposes of this subchapter:

(1) "Alternative mercury emission limit" means a mercury emission limit for a mercury-emitting generating unit, established by the department in a permit issued or modified pursuant to 75-2-211, MCA, in lieu of compliance with ARM 17.8.771(1)(a).

(2) "Best available control technology (BACT)" means an emission limitation (including a visible emission standard), based on the maximum degree of reduction for each pollutant subject to regulation under 42 U.S.C. 7410, et seq. or 75-2-101, et seq., MCA, that would be emitted from any proposed emitting unit or modification which the department, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such emitting unit or modification through application of production processes or available methods, systems, and techniques, including fuel cleaning or treatment or innovative fuel combustion techniques for control of such contaminant. In no event may application of BACT result in emission of any regulated air pollutant that would exceed the emissions allowed by any applicable standard under ARM Title 17, chapter 8, subchapter 3, and this subchapter. If the department determines that technological or economic limitations on the application of measurement methodology to a particular class of emitting units would make the imposition of an emission standard infeasible, it may instead prescribe a design, equipment, work practice, or operational standard or combination thereof, to require the application of BACT. Such standard must, to the degree possible, set forth the emission reduction achievable by implementation of such design, equipment, work practice, or operation and must provide for compliance by means that achieve equivalent results.

(3) "Commercial operation" means the time when the owner or operator supplies electricity for sale.

(4) "Construct" or "construction" includes a reasonable period of time for startup and shakedown and means:

(a) initiation of on-site fabrication, erection, or installation of an emitting unit or control equipment including, but not limited to:

(i) installation of building supports or foundations;

(ii) laying of underground pipework; or

(iii) construction of storage structures; or

(b) the installation of any portable or temporary equipment or facilities.

(5) "Day" means calendar day unless otherwise stated.

(6) "Emitting unit" means:

(a) any equipment that emits or has the potential to emit any regulated air pollutant under the Clean Air Act of Montana through a stack(s) or vent(s); or

(b) any equipment from which emissions consist solely of fugitive emissions of a regulated air pollutant under the Clean Air Act of Montana.

(7) "Existing emitting unit" means an emitting unit that was in existence and operating or was capable of being operated on March 16, 1979, or for which the department had issued a permit by that date.

(8) "Facility" means any real or personal property that is either stationary or portable and is located on one or more contiguous or adjacent properties under the control of the same owner or operator and that emits or has the potential to emit any air pollutant subject to regulation under the Clean Air Act of Montana or the Federal Clean Air Act, including associated control equipment that affects or would affect the nature, character, composition, amount, or environmental impacts of air pollution and that has the same two-digit standard industrial classification code. A facility may consist of one or more emitting units.

(9) "Install" or "installation" means to set into position and connect or adjust for use.

(10) "Mercury" means mercury or mercury compounds in either a gaseous or particulate form.

(11) "Mercury-emitting generating unit" means any emitting unit at a facility for which an air quality permit is required pursuant to 75-2-211 or 75-2-217, MCA, that generates electricity and combusts coal, coal refuse, or a synthetic gas derived from coal and that is defined as an electrical generating unit under 40 CFR 60.24.

(12) "Mercury-emitting generating unit that combusts lignite" means any mercury-emitting generating unit that combusts lignite in an amount equal to or greater than 75% of its total heat input, calculated for the prior calendar year on a calendar year basis.

(13) "Modify" does not include routine maintenance, repair, or replacement but means:

(a) construction or changes in operation at a facility or emitting unit for which the department has issued a Montana air quality permit under this chapter, except when a permit is not required under ARM 17.8.745;

(b) construction or changes in operation at a facility or emitting unit for which a Montana air quality permit has not been issued under this chapter but that subjects the facility or emitting unit to the requirements of ARM 17.8.743;

(c) construction or changes in operation at a facility or emitting unit that would violate any condition in the facility's Montana air quality permit, any board or court order, any control plan within the Montana state implementation plan, or any rule in this chapter, except as provided in ARM 17.8.745;

(d) construction or changes in operation at a facility or emitting unit that would qualify as a major modification of a major stationary source under subchapters 8, 9, or 10 of this chapter;

(e) construction or changes in operation at a facility or emitting unit that would affect the plume rise or dispersion characteristics of emissions in a manner that would cause or contribute to a violation of an ambient air quality standard or an ambient air increment, as defined in ARM 17.8.804; or

(f) any change in operation that affects emissions and that was not previously permitted, except that a change in operation that does not result in an increase in emissions because of the change is not a modification.

(14) "Montana air quality permit" means a preconstruction permit issued under this subchapter that may include requirements for the construction and subsequent operation of an emitting unit(s) or facility.

(15) "Negligible risk to the public health, safety, and welfare and to the environment" means an increase in excess lifetime cancer risk of less than 1.0 x 10 -6 , for any individual pollutant, and 1.0 x 10 -5 , for the aggregate of all pollutants, and an increase in the sum of the noncancer hazard quotients for all pollutants with similar toxic effects of less than 1.0, as determined by a human health risk assessment conducted according to ARM 17.8.767. The department shall also consider environmental impacts identified in any environmental analysis conducted pursuant to the Montana Environmental Policy Act, Title 75, chapter 1, parts 1 through 3, MCA, in determining compliance with all applicable rules or other requirements requiring protection of public health, safety, and welfare and the environment.

(16) "New or modified emitting unit" means an emitting unit that was not constructed or upon which construction was not commenced prior to March 16, 1979.

(17) "Owner or operator" means the owner of a facility or other person designated by the owner as responsible for overall operation of the facility.

(18) "Potential to emit" means the maximum capacity of a facility or emitting unit, within physical and operational design, to emit a pollutant. Any physical or operational limitation on the capacity of the facility or emitting unit to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, is treated as part of its design only if the limitation or the effect it would have on emissions is federally enforceable. Secondary emissions are not considered in determining potential to emit.

(19) "Routine maintenance, repair, or replacement" means any action taken upon an emitting unit by the owner or operator that is necessary on a periodic basis to assure proper operation of the emitting unit. The term routine does not include activities that:

(a) have associated fixed capital costs in excess of 50% of the fixed capital cost necessary to construct a comparable, entirely new emitting unit;

(b) change the design of the emitting unit, including associated control equipment; or

(20) "Secondary emissions" means emissions that would occur as a result of the construction or operation of a facility or emitting unit, but do not come from the facility or emitting unit itself. Secondary emissions must be specific, well defined, quantifiable, and impact the same general area as the facility or emitting unit which causes the secondary emissions. Secondary emissions may include, but are not limited to:

(a) emissions from trains coming to or from the facility or emitting unit;

(b) emissions from any off-site support facility that otherwise would not be constructed or increase its emissions as a result of the construction or operation of the facility or emitting unit.

History

Authorizing statute(s): 75-2-112, 75-2-204, MCA
Implementing statute(s): 75-2-211, MCA
History: NEW, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2006 MAR p. 2575, Eff. 10/27/06; AMD, 2024 MAR p. 2056, Eff. 8/24/24.

Mont. Admin. R. 17.8.743 Montana Air Quality Permits--When Required

(1) Except as provided in ARM 17.8.744, 17.8.745, and 17.8.1602, a person may not construct, install, modify, or operate any of the following without first obtaining a Montana air quality permit issued by the department:

(a) a new facility or emitting unit with the potential to emit airborne lead in an amount greater than five tons per year or a modification to an existing facility or emitting unit that results in an increase in the facility or emitting unit's potential to emit airborne lead by an amount greater than 0.6 tons per year;

(b) asphalt concrete plants, mineral crushers, and mineral screens that have the potential to emit more than 15 tons per year of any airborne pollutant, other than lead, that is regulated under this chapter;

(d) any facility or emitting unit upon which construction commenced, or that was installed, before November 23, 1968, when that facility or emitting unit is modified after that date and the modification increases the potential to emit by more than 25 tons per year of any airborne pollutant, other than lead, that is regulated under this chapter; or

(e) any other facility or emitting unit upon which construction was commenced, or that was installed, after November 23, 1968, that is not specifically excluded under ARM 17.8.744, and that has the potential to emit more than 25 tons per year of any airborne pollutant, other than lead, that is regulated under this chapter.

(2) An owner or operator who has submitted an application and received a completeness determination from the department pursuant to ARM 17.8.759 may, prior to receiving a Montana air quality permit, initiate the following seasonal construction activities that, when completed, would have no anticipated increases in emissions of regulated air pollutants associated with them:

(a) installing concrete foundation work;

(b) installing below-ground plumbing;

(d) other infrastructure and/or excavation work involving the same.

(3) Notwithstanding the ability to undertake the construction activities described above, the department may issue a letter instructing the owner or operator to immediately cease such activities pending a final determination on an application if it finds that the proposed project would result in a violation of the State Implementation Plan or would interfere with the attainment or maintenance of any federal or state ambient air quality standard.

(4) Nothing in (2) obligates the department to issue a Montana air quality permit. An owner or operator who has received a completeness determination and who elects to engage in initial construction activities accepts the regulatory risks of engaging in such activities. The owner or operator acknowledges that the department may subsequently order cessation of initial construction activities, ultimately decline to issue a Montana air quality permit, or issue a permit that diminishes or renders useless the value of work completed prior to permit issuance. In voluntarily choosing to engage in such activities while knowing of these risks, the owner or operator agrees that, in the event the department seeks injunctive relief to halt or prohibit construction, no irreparable harm has resulted in any way to the owner or operator from these activities.

(5) The provisions of (2) do not supersede any other local, state, or federal requirements associated with the activities set forth therein.

History

Authorizing statute(s): 75-2-111, 75-2-204, MCA
Implementing statute(s): 75-2-211, MCA
History: NEW, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2005 MAR p. 2660, Eff. 12/23/05; AMD, 2025 MAR, 17-451, Eff. 3/29/25.

Mont. Admin. R. 17.8.744 Montana Air Quality Permits--General Exclusions

(1) A Montana air quality permit is not required under ARM 17.8.743 for the following:

(a) residential fireplaces, barbecues, and similar devices for recreational, cooking, or heating use;

(b) mobile emitting units, including motor vehicles, trains, aircraft, and other such self-propelled vehicles;

(d) any agricultural activity or equipment that is associated with the use of agricultural land or the planting, production, processing, harvesting, or storage of agricultural crops by an agricultural producer and that is not subject to the requirements of 42 USC 7475, 7503, or 7661, as set forth in 75-2-112(2), MCA;

(e) a business relating to the activities or equipment referred to in (1)(d) that remains in a single location for less than 12 months and is not subject to the requirements of 42 USC 7475, 7503, or 7661, as set forth in 75-2-112(2), MCA;

(f) emergency equipment installed in hospitals or other public institutions or buildings for use when the usual sources of heat, power, or lighting are temporarily unobtainable or unavailable;

(g) emergency equipment installed in industrial or commercial facilities for use when the usual sources of heat, power, or lighting are temporarily unobtainable or unavailable and when the loss of heat, power, or lighting causes, or is likely to cause, an adverse effect on public health or facility safety. Emergency equipment use extends only to those uses that alleviate such adverse effects on public health or facility safety;

(h) any activity or equipment associated with the construction, maintenance, or use of roads except emitting units for which a permit is required under ARM 17.8.743;

(i) open burning, which is regulated under ARM Title 17, chapter 8, subchapter 6, and an open burning permit may be required under that subchapter;

(j) drilling rig stationary engines and turbines that do not have the potential to emit more than 100 tons per year of any pollutant regulated under this chapter and that do not operate in any single location for more than 12 months;

(k) temporary process or emission control equipment, replacing malfunctioning process or emission control equipment, and meeting the requirements of ARM 17.8.110(7) through (9);

(l) routine maintenance, repair, or replacement of equipment and equipment used to perform routine maintenance, repair, or replacement; or

(m) any facility that has been registered with the department in accordance with ARM Title 17, chapter 8, subchapter 17 or 18.

History

Authorizing statute(s): 75-2-112, 75-2-204, 75-2-234, MCA
Implementing statute(s): 75-2-211, 75-2-234, MCA
History: NEW, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2006 MAR p. 893, Eff. 4/7/06; AMD, 2009 MAR p. 142, Eff. 2/13/09; AMD, 2019 MAR p. 425, Eff. 4/27/19; AMD, 2024 MAR p. 2056, Eff. 8/24/24.

Mont. Admin. R. 17.8.745 Montana Air Quality Permits--Exclusion for De Minimis Changes

(1) A Montana air quality permit is not required under ARM 17.8.743 for de minimis changes as specified below:

(a) Construction or changed conditions of operation at a facility for which a Montana air quality permit has been issued that do not increase the facility's potential to emit by more than five tons per year of any pollutant except:

(i) any construction or changed conditions of operation at a facility that would violate any condition in the facility's existing Montana air quality permit or any applicable rule contained in this chapter is prohibited, except as allowed in (2);

(ii) any construction or changed conditions of operation at a facility that would qualify as a major modification of a major stationary source under subchapters 8, 9, or 10 of this chapter;

(iii) any construction or changed conditions of operation at a facility that would affect the plume rise or dispersion characteristics of the emissions in a manner that would cause or contribute to a violation of an ambient air quality standard or an ambient air increment, as defined in ARM 17.8.804;

(iv) any construction or improvement project with a potential to emit more than five tons per year may not be artificially split into smaller projects to avoid permitting under this subchapter; and

(v) emission reductions obtained through offsetting within a facility are not included when determining the potential emission increase from construction or changed conditions of operation, unless such reductions are made federally enforceable.

(b) The owner or operator of any facility making a de minimis change pursuant to (1)(a) shall notify the department if the change would include addition of a new emissions unit, a change in control equipment, stack height, stack diameter, stack flow, stack gas temperature, source location, or fuel specifications, or would result in an increase in source capacity above its permitted operation.

(i) day-to-day fluctuations of the parameters described in (1)(b), occurring as a result of the design or permitted operations of the facility, including startup and shutdown of emission sources at the facility; and

(ii) addition, modification, or replacement of pumps, valves, flanges, and similar emission sources. The department shall develop, maintain, and update a list of emission sources it believes qualify for exclusion from the notice requirements. Upon request, the department shall provide a copy of the list to interested persons.

(d) If notice is required under (1)(b), the owner or operator shall submit the following information to the department in writing at least ten days prior to startup or use of the proposed de minimis change or as soon as reasonably practicable in the event of an unanticipated circumstance causing the de minimis change:

(i) a description of the proposed de minimis change requiring notice, including the anticipated date of the change;

(ii) sufficient information to calculate the potential emissions resulting from the proposed de minimis change; and

(iii) if applicable, an explanation of the unanticipated circumstance causing the change.

(e) The notice requirements under (1)(d) do not supersede, or otherwise change, any requirements in 40 CFR Parts 60, 61, or 63.

(2) A Montana air quality permit may be amended pursuant to ARM 17.8.764, for changes made under (1)(a)(i) that would otherwise violate an existing condition in the permit. Conditions in the permit concerning control equipment specifications, operational procedures, or testing, monitoring, record keeping, or reporting requirements may be modified if the modification does not violate any statute, rule, or the state implementation plan. Conditions in the permit establishing emission limits, or production limits in lieu of emission limits, may be changed or added under (1)(a), if the owner or operator agrees to such changes or additions.

History

Authorizing statute(s): 75-2-111, 75-2-204, MCA
Implementing statute(s): 75-2-211, MCA
History: NEW, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2010 MAR p. 1292, Eff. 5/28/10.

Mont. Admin. R. 17.8.748 New or Modified Emitting Units--Permit Application Requirements

(1) The owner or operator of a proposed new or modified facility or emitting unit that is subject to ARM 17.8.743 , shall, no later than 180 days before construction begins, or if construction is not required, no later than 120 days before installation, modification, or operation begins, submit an application to the department for a Montana air quality permit on an application form provided by the department. The department may, for good cause shown, waive or shorten the time required for filing the application.

(2) The department may provide pre-application consultation and nonbinding, advisory opinions regarding any potential issues identified by the owner or operator that may arise regarding the permit application.

(3) A permit application submitted pursuant to this subchapter must contain certification by a responsible official of truth, accuracy, and completeness. This certification must state that, based on information and belief formed after reasonable inquiry, the statements and information in the application are true, accurate, and complete. The following persons are authorized to sign an application on behalf of the owner or operator of a new or modified facility or emitting unit(s) :

(a) an application submitted by a corporation or a limited liability company must be signed by an individual specified in the corporate bylaws or the limited liability company operating agreement as having the authority to bind the corporation or limited liability company in contracts, liabilities, and other company obligations;

(b) an application submitted by a partnership or a sole proprietorship must be signed by a general partner or the proprietor respectively;

(c) an application submitted by a municipal, state, federal or other public agency must be signed by a principal executive officer, appropriate elected official, or other duly authorized employee; and

(d) an application submitted by an individual must be signed by the individual or the individual's authorized agent.

(4) An application for a Montana air quality permit must include the following:

(a) a map and diagram showing the location of the proposed new or modified facility or emitting unit(s) . The map and diagram must also include the location of each associated stack, the property involved, the height and outline of associated buildings, and the height and outline of each associated stack;

(b) a description of the proposed new or modified facility or emitting unit(s) , including data on expected production capacity, raw materials to be processed, and major equipment components;

(d) a description of the composition, volume and temperatures of the effluent stream, including the nature and extent of air contaminants emitted, quantities and means of disposal of collected contaminants, and the air quality relationship of these factors to conditions created by existing stacks or emitting units or stacks associated with the proposed new or modified emitting unit(s) ;

(e) normal and maximum operating schedules;

(f) drawings, blueprints, specifications, or other information adequate to show the design and operation of process and air pollution control equipment involved;

(g) process flow diagrams showing material balances;

(h) a detailed schedule of construction or modification;

(i) a description of shakedown procedures to the extent shakedown is expected to affect emissions, and the anticipated duration of the shakedown period for each new or modified emitting unit;

(j) any other information requested by the department that is necessary for the department to review the application and determine whether the new or modified facility or emitting unit(s) will comply with applicable standards and rules;

(k) information regarding site characteristics necessary to conduct an assessment of impacts under the Montana Environmental Policy Act, 75-1-101 , et seq., MCA, as required on the application form; and

(l) the appropriate air quality permit application fee required under ARM 17.8.504 .

(5) An applicant is not required to submit information previously filed with the department. If an applicant does not want to submit information that has been submitted previously to the department, the applicant shall specify in the application the information previously submitted, and, wherever possible, shall specify the date upon which the information was submitted. Any information the department determines is in its possession becomes part of the application.

(6) Section 75-2-105 , MCA, specifies the procedure for filing a declaratory judgment action to establish the existence, and confidential status of, trade secret information provided in a permit application.

(7) An applicant for a permit shall notify the public of the application by legal publication in a newspaper of general circulation in the area affected by the application. The notice must be published within ten days before, or after, submittal of the application. The form of the notice must be as provided to the applicant by the department.

History

Authorizing statute(s): 75-2-111, 75-2-204, MCA
Implementing statute(s): 75-2-211, MCA
History: NEW, 2002 MAR p. 3567, Eff. 12/27/02.

Mont. Admin. R. 17.8.749 Conditions for Issuance or Denial of Permit

(1) When the department issues a Montana air quality permit, the permit must authorize the construction and operation of the facility or emitting unit subject to the conditions in the permit and to the requirements of this subchapter. The permit must contain any conditions necessary to assure compliance with the Federal Clean Air Act, with the Clean Air Act of Montana and rules adopted under those acts.

(2) The permit may contain a schedule for specified permit conditions to become effective, subject to the time limits stated in ARM 17.8.762 . The department may extend a deadline specified in the schedule, but an extension may not exceed five years.

(3) A Montana air quality permit may not be issued for a new or modified facility or emitting unit unless the applicant demonstrates that the facility or emitting unit can be expected to operate in compliance with the Clean Air Act of Montana and rules adopted under that Act, the Federal Clean Air Act and rules promulgated under that Act (as incorporated by reference in ARM 17.8.767 ) , and any applicable requirement contained in the Montana State Implementation Plan (as incorporated by reference in ARM 17.8.767 ) , and that it will not cause or contribute to a violation of any Montana or national ambient air quality standard.

(4) The department shall issue a Montana air quality permit for the following unless the department demonstrates that the emitting unit is not expected to operate in compliance with applicable rules, standards, or other requirements:

(a) emitting units constructed or installed between November 23, 1968, and March 16, 1979; and

(b) emitting units constructed or installed before November 23, 1968, and modified between November 23, 1968, and March 16, 1979.

(5) In a Montana air quality permit, the department shall identify those conditions that are derived from state law, and are not derived from the Federal Clean Air Act, 42 U.S.C. 7401, et seq., the Montana State Implementation Plan, or other federal air quality requirements. Compliance with these conditions is not required by the state implementation plan, and is not necessary for attainment or maintenance of federal ambient air quality standards. These conditions must be identified in the permit as "state-only," and are not intended by the department to be enforceable under federal law.

(6) Nothing in this subchapter obligates the department to issue a Montana air quality permit. The department may subsequently order cessation of initial construction activities, decide not to issue the permit, or issue a permit that diminishes or renders useless the value of work completed prior to permit issuance.

(7) If the department denies an application for a Montana air quality permit it shall notify the applicant in writing of the reasons for the permit denial and advise the applicant of the right to appeal the department's decision to the board as provided in 75-2-211 or 75-2-213, MCA, as applicable.

(8) If the department denies an application for a Montana air quality permit, it may not accept any further air quality permit application from the owner or operator for that project for which the permit was sought until:

(a) the time for requesting a hearing before the board has expired; or

(b) if a hearing before the board is requested, the board has issued a final decision in the matter; or

History

Authorizing statute(s): 75-2-111, 75-2-204, MCA
Implementing statute(s): 75-2-211, MCA
History: NEW, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2003 MAR p. 2272, Eff. 10/17/03; AMD, 2016 MAR p. 1164, Eff. 7/9/16.

Mont. Admin. R. 17.8.752 Emission Control Requirements

(1) The owner or operator of a new or modified facility or emitting unit for which a Montana air quality permit is required by this subchapter shall install on the new or modified facility or emitting unit the maximum air pollution control capability that is technically practicable and economically feasible, except that:

(a) BACT must be utilized.

(i) Existing emitting units and those emitting units constructed or installed after March 16, 1979, that were not previously subject to this subchapter become subject to this rule when any modification to the emitting unit requires a Montana air quality permit; however, only the specific emitting unit that is modified becomes subject to this rule.

(b) The lowest achievable emission rate must be met to the extent required by ARM Title 17, chapter 8, subchapters 9 and 10, for those emitting units subject to those subchapters.

(2) The owner or operator of a new or modified facility or emitting unit for which a permit is required by this subchapter shall operate all equipment to provide the maximum air pollution control for which it was designed.

History

Authorizing statute(s): 75-2-111, 75-2-204, MCA
Implementing statute(s): 75-2-211, MCA
History: NEW, 2002 MAR p. 3567, Eff. 12/27/02.

Mont. Admin. R. 17.8.755 Inspection of Permit

(1) Current Montana air quality permits must be made available for department inspection at the location of the facility or emitting unit for which the permit has been issued, unless the permittee and the department mutually agree on a different location.

History

Authorizing statute(s): 75-2-111, 75-2-204, MCA
Implementing statute(s): 75-2-211, MCA
History: NEW, 2002 MAR p. 3567, Eff. 12/27/02.

Mont. Admin. R. 17.8.756 Compliance with Other Requirements

(1) This subchapter does not relieve any owner or operator of the responsibility for complying with any applicable federal or Montana statute, rule or board or court order, except as specifically provided in this subchapter.

(2) Issuance of a Montana air quality permit does not affect the responsibility of a permittee to comply with the applicable requirements of any control strategy contained in the Montana State Implementation Plan.

(3) A permittee may not commence operation of a facility or emitting unit if construction, modification or installation has been completed in such a manner that the facility or emitting unit cannot operate in compliance with applicable statutes, rules, or requirements specified in the permit.

History

Authorizing statute(s): 75-2-111, 75-2-204, MCA
Implementing statute(s): 75-2-211, MCA
History: NEW, 2002 MAR p. 3567, Eff. 12/27/02.

Mont. Admin. R. 17.8.759 Review of Permit Applications

(1) Except for applications subject to ARM 17.8.760 , when an application for a permit does not require an environmental impact statement, the application is not considered filed until the owner or operator has submitted to the department all required fees and all information and completed application forms.

(2) The department shall notify the applicant in writing within 30 days after receiving an application if an application is incomplete. The notice must list the reasons the application is considered incomplete, any additional information required, and the date by which the applicant must submit any additional required information. If the requested additional information is not submitted by the date specified by the department in the notice, the application is considered withdrawn unless the applicant requests in writing an extension of time for submission of the additional information. If the department receives additional application information, whether prior to a determination of completeness or in response to a notice of incompleteness, the 30-day application completeness review period begins again.

(3) Within 40 days after receiving a complete application for a permit, the department shall make a preliminary determination as to whether the permit should be issued, issued with conditions, or denied.

(4) After making a preliminary determination, the department shall notify those members of the public who requested such notification subsequent to the notice required by ARM 17.8.748 and the applicant of the department's preliminary determination. The notice must specify that comments may be submitted on the information submitted by the applicant and on the department's preliminary determination. The notice must also specify the following:

(a) that a complete copy of the application and the department's analysis of the application is available from the department and in the air quality control region where the emitting unit is located;

(b) the date by which all comments on the preliminary determination must be submitted in writing, which must be within:

(i) 30 days after the notice is mailed for applications subject to the federal air permitting provisions of 42 U.S.C. 7475, 7503, or 7661 or the provisions of 75-2-215 , MCA, or applications that require preparation of an environmental impact statement; or

(ii) 15 days after the notice is mailed for all other applications, except as provided in (5) ; and

(5) The department may, on its own action, or at the request of the applicant or member of the public, extend by 15 days the period within which public comments may be submitted as described in (4) (b) (ii) and the date for issuing a final decision on a permit application as described in 75-2-211 (9) (b) , MCA, if the department finds that an extension is necessary to allow the department to make an informed decision.

(a) Any request for an extension, as provided under (5) , by the applicant or a member of the public must be submitted to the department by the date that written comments on the preliminary determination originally were due.

(b) The department shall extend the comment period if the preliminary determination contains one or more requirements of 40 CFR part 63, as incorporated by reference in this chapter, that require a 30-day comment period.

(6) The time for issuing a final decision may be extended for 30 days by written agreement of the department and the applicant. The department may grant additional 30-day extensions at the request of the applicant.

History

Authorizing statute(s): 75-2-111, 75-2-204, MCA
Implementing statute(s): 75-2-211, MCA
History: NEW, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2003 MAR p. 2272, Eff. 10/17/03; AMD, 2005 MAR p. 2663, Eff. 12/23/05.

Mont. Admin. R. 17.8.760 Additional Review of Permit Applications

(1) When an application for a Montana air quality permit requires an environmental impact statement under the Montana Environmental Policy Act, 75-1-101 , et seq., MCA, the procedures for public review are those required by the Montana Environmental Policy Act and the rules adopted by the department to implement the Act, ARM Title 17, chapter 4, subchapter 6, and ARM 17.4.701 through 17.4.703 .

(2) When an application for a Montana air quality permit is also an application for certification under the Major Facility Siting Act, public review is governed by the rules implementing that Act, ARM Title 17, chapter 20.

History

Authorizing statute(s): 75-2-112, 75-2-204, 75-20-216, MCA
Implementing statute(s): 75-2-211, 75-20-216, MCA
History: NEW, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.8.762 Duration of Permit

(1) A Montana air quality permit is in effect until the permit is revoked under ARM 17.8.763 , amended under ARM 17.8.764 , or modified under ARM 17.8.748 . Portions of a Montana air quality permit may be revoked, amended, or modified without invalidating the remainder of the permit.

(2) A permit issued prior to construction or installation of a new or modified facility or emitting unit may provide that the permit or a portion of the permit will expire unless construction or installation is commenced within the time specified in the permit, which may not be less than one year or more than three years after the permit is issued.

History

Authorizing statute(s): 75-2-111, 75-2-204, MCA
Implementing statute(s): 75-2-211, MCA
History: NEW, 2002 MAR p. 3567, Eff. 12/27/02.

Mont. Admin. R. 17.8.763 Revocation of Permit

(1) The department may revoke a Montana air quality permit or any portion of a permit upon written request of the permittee, or for violation of any requirement of the Clean Air Act of Montana, rules adopted under that Act, the Federal Clean Air Act and rules promulgated under that Act (as incorporated by reference in ARM 17.8.767), or any applicable requirement contained in the Montana State Implementation Plan (as incorporated by reference in ARM 17.8.767).

(2) The department shall notify the permittee in writing of its intent to revoke a permit or a portion of a permit. The department's decision to revoke a permit or any portion of a permit becomes final when 15 days have elapsed after the permittee's receipt of the notice unless the permittee requests a hearing before the board.

(3) When the department has attempted unsuccessfully by certified mail, return receipt requested, to deliver a notice of intent to revoke a permit to a permittee at the last address provided by the permittee to the department, the permittee is deemed to have received the notice on the date that the department publishes the last of three notices of revocation, once each week for three consecutive weeks, in a newspaper published in the county in which the permitted facility was located, if a newspaper is published in the county or if no newspaper is published in the county in a newspaper having a general circulation in the county.

(4) When the department revokes a permit under this rule, the permittee may request a hearing before the board. A hearing request must be in writing and must be filed with the board within 15 days after receipt of the department's notice of intent to revoke the permit. Filing a request for a hearing postpones the effective date of the department's decision until issuance of a final decision by the board.

(5) A hearing under this rule is governed by the contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, MCA.

History

Authorizing statute(s): 75-2-111, 75-2-204, MCA
Implementing statute(s): 75-2-211, MCA
History: NEW, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2003 MAR p. 2272, Eff. 10/17/03; AMD, 2011 MAR p. 568, Eff. 4/15/11.

Mont. Admin. R. 17.8.764 Administrative Amendment to Permit

(1) The department may amend a Montana air quality permit, or any portion of a permit, for the following reasons:

(a) changes in any applicable rules adopted by the department;

(b) changes in operation that do not result in an increase in emissions. The owner or operator of a facility may not increase the facility's emissions beyond permit limits unless the increase meets the criteria in ARM 17.8.745 for a de minimis change not requiring a permit, or unless the owner or operator applies for and receives another permit in accordance with ARM 17.8.748 , 17.8.749 , 17.8.752 , 17.8.755 , and 17.8.756 , and with all applicable requirements in ARM Title 17, chapter 8, subchapters 8, 9, and 10;

(2) The department shall notify the permittee in writing of any proposed amendments to the permit. The permit is deemed amended in accordance with the notice when 15 days have elapsed from the date of the department's decision to amend the permit, unless the permittee requests a hearing before the board.

(3) When the department amends a permit under this rule, the permittee may request a hearing before the board. A hearing request must be in writing and must be filed with the board within 15 days after the department issues its decision to amend the permit. Filing a request for hearing postpones the effective date of the department's decision until issuance of a final decision by the board.

(4) A hearing under this rule is governed by the contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, MCA.

History

Authorizing statute(s): 75-2-112, 75-2-204, MCA
Implementing statute(s): 75-2-211, MCA
History: NEW, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2003 MAR p. 2272, Eff. 10/17/03; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.8.765 Transfer of Permit

(1) A Montana air quality permit may be transferred from one location to another if:

(a) the department receives a complete notice of intent to transfer location, including:

(i) written notice of intent to transfer location on forms provided by the department; and

(ii) documentation that the permittee has published notice of the intended transfer by means of a legal publication in a newspaper of general circulation in the area to which the transfer is to be made. The notice must include a statement that public comment will be accepted by the department for 15 days after the date of publication and that comments should be addressed to: Air Permitting Section, Air Resources Management Bureau, Department of Environmental Quality, 1520 E. 6th Ave., P.O. Box 200901, Helena, MT 59620-0901;

(b) the permitted facility will operate in the new location for less than one year;

(i) the Federal Clean Air Act, the Clean Air Act of Montana and rules adopted under those acts, including the ambient air quality standards; and

(ii) the Montana State Implementation Plan.

(d) the owner or operator of the permitted facility complies with ARM Title 17, chapter 8, subchapters 8, 9 and 10, as applicable.

(2) A Montana air quality permit may be transferred from one owner or operator to another if the department receives written notice of intent to transfer, including the names and authorized signatures of the transferor and the transferee.

(3) The department may not approve or conditionally approve a permit transfer if approval would result in a violation of the Clean Air Act of Montana or rules adopted under that Act, including the ambient air quality standards. If the department does not approve, conditionally approve, or deny a permit transfer within 30 days after receipt of a complete notice of intent to transfer, as described in (1) (a) or (2) , the transfer is deemed approved.

History

Authorizing statute(s): 75-2-111, 75-2-204, MCA
Implementing statute(s): 75-2-211, MCA
History: NEW, 2002 MAR p. 3567, Eff. 12/27/02.

Mont. Admin. R. 17.8.767 Incorporation by Reference

(1) For the purposes of this subchapter, the department adopts and incorporates by reference:

(a) 40 CFR Part 51, subpart I, specifying requirements for state programs for issuing Montana air quality permits;

(b) 40 CFR Part 51, Appendix M, specifying recommended test methods for state implementation plans;

(d) 40 CFR Part 61, specifying emission standards for hazardous air pollutants;

(e) Tables 4-1 and 4-3 of the Department of Environmental Quality Air Quality Health Risk Assessment Procedures/Model, January 1995;

(f) 42 USC 7412, et seq., listing hazardous air pollutants; and

(g) 40 CFR Part 75, pertaining to mercury requirements.

(2) Copies of materials incorporated by reference in this subchapter may be obtained as referenced in ARM 17.8.102(3) and (4).

History

Authorizing statute(s): 75-2-112, 75-2-204, MCA
Implementing statute(s): 75-2-211, 75-2-215, MCA
History: NEW, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2005 MAR p. 959, Eff. 6/17/05; AMD, 2006 MAR p. 1956, Eff. 8/11/06; AMD, 2006 MAR p. 2575, Eff. 10/27/06; AMD, 2007 MAR p. 1663, Eff. 10/26/07; AMD, 2009 MAR p. 1784, Eff. 10/16/09; AMD, 2018 MAR p. 438, Eff. 2/24/18; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.8.770 Additional Requirements for Incinerators

(1) An applicant for a Montana air quality permit for an incineration facility subject to 75-2-215, MCA, shall submit a human health risk assessment protocol and a human health risk assessment as part of the application. The human health risk assessment must demonstrate that the ambient concentrations of pollutants resulting from emissions from the incineration facility subject to 75-2-215, MCA, constitute no more than a negligible risk to the public health, safety, and welfare and to the environment. At a minimum, the human health risk assessment must meet the following requirements:

(a) The human health risk assessment must include an emissions inventory listing potential emissions of all pollutants specified in the Federal Clean Air Act Hazardous Air Pollutants List (as defined in section 112(b) of the FCAA);

(b) A characterization of emissions and ambient concentrations of air pollutants, including hazardous air pollutants, from any existing emitting unit at the facility must be submitted as part of the permit application;

(c) The human health risk assessment must address the impacts of all pollutants inventoried in (1)(a), except as provided in (1)(c)(i) and (ii). Pollutants may be excluded from the human health risk assessment if the department determines that exposure from inhalation is the only appropriate pathway to consider in the human health risk assessment and if:

(i) the potential to emit the pollutant is less than 1.28 x 10 -13 grams per second, if the incineration facility subject to 75-2-215, MCA, has a stack height of at least two meters, a stack velocity of at least 0.645 meters per second, and a stack exit temperature of at least 800° F, and there is a distance of at least five meters from the stack to the property boundary; or

(ii) the ambient concentrations of the pollutants (calculated using the potential to emit; enforceable limits or controls may be considered) are less than the levels specified in Table 1 or Table 2.

(iii) The department shall periodically review accepted toxicity value databases to determine if the de minimis levels in (1)(c)(i) and (ii) should be updated;

(d) The human health risk assessment must address risks from all appropriate exposure pathways. For incineration facilities subject to 75-2-215, MCA, that do not emit or emit only minute amounts of hazardous air pollutants contained in Tables 4-1 or 4-2 of the department's health risk assessment procedures/model the application need address only impact from the inhalation exposure pathway and may use a department supplied screening model to assess human health risk;

(e) The human health risk assessment must address the human health risk impact of all hazardous air pollutants, as described in (1)(a), from the emitting unit or units that constitutes the incineration facility subject to 75-2-215, MCA, from all other existing incineration facilities subject to 75-2-215, MCA, at the facility, and from all other new or existing emitting units solely supporting any incineration facility subject to 75-2-215, MCA, such as fugitive emissions from fuel storage;

(i) Emissions from existing emitting units that partially support the incineration facility, but that do not change the type or amount of emissions allowed under any existing permit in effect at the time of the permit application, need not be considered in the human health risk assessment;

(ii) If an existing emitting unit, wholly or partially supporting the incineration facility, increases the types or amount of its emissions, so that a permit modification is required, that portion of the emissions increase attributable to the support of the incineration facility must be considered in the human health risk assessment;

(f) The health risk assessment must be performed in accordance with accepted human health risk assessment practices, or state or federal guidelines in effect at the time the human health risk assessment is performed, and must address impacts on sensitive populations. The human health risk must be calculated using the emitting unit's potential to emit. Enforceable limits or controls may be considered. The human health risk assessment procedures used may be modified if site-specific conditions warrant use of alternative procedures to appropriately assess human health risk;

(g) As part of the application, the applicant shall submit to the department a human health risk assessment protocol detailing the human health risk assessment procedures. At a minimum, the human health risk assessment protocol must include:

(i) a description of the pollutants considered in the analysis;

(ii) methods used in compiling the emission inventory;

(iii) ambient dispersion models and modeling procedures used;

(iv) toxicity values for each pollutant;

(v) exposure pathways and assumptions;

(vi) any statistical analysis applied; and

(vii) any other information necessary for the department to review the adequacy of the human health risk assessment;

(h) A summary of the human health risk assessment protocol must be included in the permit analysis. The summary must:

(i) clearly define the scope of the risk assessment;

(ii) describe the exposure pathways used;

(iii) specify any pollutants identified in the emission inventory that were not required to be included in the human health risk assessment;

(iv) state whether, and to what extent, the impacts of existing emissions, or the synergistic effect of combined pollutants, were considered in the final human health risk level calculated to determine compliance with the negligible risk standard; and

(v) state that environmental effects unrelated to human health were not considered in determining compliance with the negligible risk standard, but were evaluated as required by the Montana Environmental Policy Act, in determining compliance with all applicable rules or other requirements requiring protection of public health, safety, and welfare and the environment;

(i) The department may impose additional requirements for the human health risk assessment, on a case-by-case basis, if the department reasonably believes that the type or amount of material being incinerated, the proximity to sensitive populations, short-term emissions variations, acute health impact, or the local topographical or ventilation conditions require a more detailed health risk assessment to adequately define the potential public health impact. Additional requirements for the human health risk assessment may include specific emission inventory procedures for determining emissions from the incineration facility subject to 75-2-215, MCA, use of more sophisticated air dispersion models or modeling procedures and consideration of additional exposure pathways.

TABLE 1

CAS # | CHEMICAL | CANCER ANNUAL (µg/m3 ) 75070 | Acetaldehyde | 4.5455e-02 79061 | Acrylamide | 7.6923e-05 107131 | Acrylonitrile | 1.4706e-03 1332214 | Asbestos | 5.1546e-04 71432 | Benzene | 1.2048e-02 92875 | Benzidine | 1.4925e-06 117817 | Bis(2-Ethylhexyl) Phthalate (DEHP) | 4.1667e-02 542881 | Bis(Chloromethyl) Ether | 1.6129e-06 75252 | Bromoform | 9.0909e-02 106990 | 1,3-Butadiene | 3.5714e-04 56235 | Carbon Tetrachloride | 6.6667e-03 57749 | Chlordane | 2.7027e-04 67663 | Chloroform | 4.3478e-03 126998 | Chloroprene | 7.6923e-01 132649 | Dibenzofurans | 2.6316e-09 96128 | 1,2-Dibromo-3-Chloropropane | 5.0000e-05 106467 | 1,4-Dichlorobenzene (p) | 9.0909e-03 91941 | 3,3-Dichlorobenzidene | 2.9412e-04 111444 | Dichloroethyl Ether | 3.0303e-04 123911 | 1,4-Dioxane (1,4-Diethyleneoxide) | 1.2987e-02 122667 | 1,2-Diphenylhydrazine | 4.5455e-04 106898 | Epichlorohydrin | 8.3333e-02 51796 | Ethyl Carbamate (Urethane) | 3.4483e-04 106934 | Ethylene Dibromide | 4.5455e-04 107062 | Ethylene Dichloride | 3.8462e-03 75218 | Ethylene Oxide | 1.1364e-03 50000 | Formaldehyde | 7.6923e-03 76448 | Heptachlor | 7.6923e-05 118741 | Hexachlorobenzene | 2.1739e-04 87683 | Hexachlorobutadiene | 4.5455e-03 67721 | Hexachloroethane | 2.5000e-02 302012 | Hydrazine | 2.0408e-05 58899 | Lindane (All Isomers) | 9.0909e-05 75092 | Methylene Chloride | 2.1277e-01 62759 | N-Nitrosodimethylamine | 7.1429e-06 87865 | Pentachlorophenol | 2.1739e-02 1336363 | Polychlorinated Biphenyls | 7.1429e-05 75569 | Propylene Oxide | 2.7027e-02 1746016 | 2,3,7,8-TCDD | 2.6316e-09 79345 | 1,1,2,2-Tetrachloroethane | 1.7241e-03 127184 | Tetrachloroethylene (Perch) | 1.6949e-02 8001352 | Toxaphene | 3.1250e-04 79005 | 1,1,2-Trichloroethane | 6.2500e-03 79016 | Trichloroethylene | 5.0000e-02 88062 | 2,4,6-Trichlorophenol | 3.2258e-02 75014 | Vinyl Chloride | 1.2821e-03 75354 | Vinylidene Chloride | 2.0000e-03 | Arsenic Compounds | 2.3256e-05 | Beryllium Compounds | 4.1667e-05 | Cadmium Compounds | 5.5556e-05 | Chromium Compounds | 8.3333e-06 | Coke Oven Emissions | 1.6129e-04 | Nickel Compounds | 3.8462e-04 | Polycylic Organic Matter | 56553 | Benz(a)anthracene | 5.8824e-05 205992 | Benzo(b)fluoranthene | 5.8824e-05 207089 | Benzo(k)fluoranthene | 5.8824e-05 50328 | Benzo(a)pyrene | 5.8824e-05 53703 | Dibenz(a,h)anthracene | 5.8824e-05 193395 | Indeno(1,2,3-cd)pyrene | 5.8824e-05

TABLE 2

CAS # | CHEMICAL | NONCANCER CHRONIC ANNUAL (µg/m3 ) | NONCANCER ACUTE ANNUAL (µg/m3 ) 75070 | Acetaldehyde | 9.0000e-02 | 107028 | Acrolein | 2.2000e-04 | 2.5000e-02 79061 | Acrylamide | 7.0000e-03 | 79107 | Acrylic Acid | 1.0000e-02 | 107131 | Acrylonitrile | 2.0000e-02 | 107051 | Allyl Chloride | 1.0000e-02 | 62533 | Aniline | 1.0000e-02 | 71432 | Benzene | 7.1000e-01 | 92875 | Benzidine | 1.0000e-01 | 100447 | Benzyl Chloride | 1.2000e-01 | 5.0000e-01 117817 | Bis(2-Ethylhexyl) Phthalate (DEHP) | 7.0000e-01 | 75150 | Carbon Disulfide | 7.0000e+00 | 56235 | Carbon Tetrachloride | 2.4000e-02 | 1.9000e+00 7782505 | Chlorine | 7.1000e-01 | 2.3000e-01 532274 | 2-Chloroacetophenone | 3.0000e-04 | 108907 | Chlorobenzene | 7.0000e-01 | 67663 | Chloroform | 3.5000e-01 | 126998 | Chloroprene | 1.0000e-02 | 1319773 | Cresols/Cresylic Acid | 1.8000e+00 | 95487 | o-Cresol | 1.8000e+00 | 108394 | m-Cresol | 1.8000e+00 | 106445 | p-Cresol | 1.8000e+00 | 132649 | Dibenzofurans | 3.5000e-08 | 96128 | 1,2-Dibromo-3-Chloropropane | 2.0000e-03 | 106467 | 1,4-Dichlorobenzene (p) | 8.0000e+00 | 542756 | 1,3-Dichloropropene | 2.0000e-01 | 62737 | Dichlorvos | 5.0000e-03 | 68122 | Dimethyl Formamide | 3.0000e-01 | 123911 | 1,4-Dioxane (1,4-Diethyleneoxide) | 4.0000e-02 | 2.0000e+01 106898 | Epichlorohydrin | 1.0000e-02 | 106887 | 1,2-Epoxybutane | 2.0000e-01 | 140885 | Ethyl Acrylate | 4.8000e-01 | 100414 | Ethyl Benzene | 1.0000e+01 | 75003 | Ethyl Chloride (Chloroethane) | 1.0000e+02 | 106934 | Ethylene Dibromide | 4.6000e-02 | 107062 | Ethylene Dichloride | 9.5000e-01 | 75218 | Ethylene Oxide | 6.0000e+00 | 50000 | Formaldehyde | 3.6000e-02 | 3.7000e+00 118741 | Hexachlorobenzene | 2.8000e-02 | 77474 | Hexachlorocyclopentadiene | 2.4000e-03 | 822060 | Hexamethylene-1,6-Diisocyanate | 1.0000e-04 | 110543 | Hexane | 2.0000e+00 | 302012 | Hydrazine | 2.4000e-03 | 7647010 | Hydrochloric Acid | 2.0000e-01 | 3.0000e+01 7664393 | Hydrogen Fluoride (HF Acid) | 5.9000e-02 | 5.8000e+00 58899 | Lindane (All Isomers) | 1.0000e-02 | 108316 | Maleic Anhydride | 2.4000e-02 | 1.0000e-01 67561 | Methanol | 6.2000e+00 | 74839 | Methyl Bromide (Bromomethane) | 5.0000e-02 | 71556 | Methyl Chloroform | 3.2000e+00 | 1.9000e+03 78933 | Methyl Ethyl Ketone (2-Butanone) | 1.0000e+01 | 624839 | Methyl Isocyanate | 3.6000e-03 | 80626 | Methyl Methacrylate | 9.8000e+00 | 1634044 | Methyl Tert Butyl Ether | 3.0000e+01 | 75092 | Methylene Chloride | 3.0000e+01 | 3.5000e+01 101688 | Methylene Diphenyl Diisocyanate | 2.0000e-04 | 101779 | 4,4'-Methylenedianiline | 1.9000e-02 | 91203 | Naphthalene | 1.4000e-01 | 98953 | Nitrobenzene | 1.7000e-02 | 79469 | 2-Nitropropane | 2.0000e-01 | 87865 | Pentachlorophenol | 2.0000e-03 | 108952 | Phenol | 4.5000e-01 | 75445 | Phosgene | 1.2000e+00 | 7803512 | Phosphine | 3.0000e-03 | 7723140 | Phosphorus | 7.0000e-04 | 85449 | Phthalic Anhydride | 7.0000e+01 | 1336363 | Polychlorinated Biphenyls | 1.2000e-02 | 78875 | Propylene Dichloride | 4.0000e-02 | 75569 | Propylene Oxide | 3.0000e-01 | 1.0000e+01 100425 | Styrene | 1.0000e+01 | 1746016 | 2,3,7,8-TCDD | 3.5000e-08 | 127184 | Tetrachloroethylene (Perch) | 3.5000e-01 | 6.8000e+01 108883 | Toluene | 4.0000e+00 | 584849 | 2,4-Toluene Diisocyanate | 7.0000e-04 | 79016 | Trichloroethylene | 6.4000e+00 | 121448 | Triethylamine | 7.0000e-02 | 108054 | Vinyl Acetate | 2.0000e+00 | 593602 | Vinyl Bromide | 3.0000e-02 | 75014 | Vinyl Chloride | 2.6000e-01 | 75354 | Vinylidene Chloride | 3.2000e-01 | 1330207 | Xylenes (Isomers and Mixture) | 3.0000e+00 | 4.4000e+01 | Antimony Compounds | 2.0000e-03 | | Arsenic Compounds | 5.0000e-03 | | Beryllium Compounds | 4.8000e-05 | | Cadmium Compounds | 3.5000e-02 | | Chromium Compounds | 2.0000e-05 | | Cyanide Compounds | 7.0000e-01 | 3.3000e+01 | Ethyl Glycol But Ether | 2.0000e-01 | | Ethyl Glycol Ethyl Ether | 3.7000e+00 | | Ethyl Gly MonoBut Ether | 1.5000e+01 | | Ethyl Gly MonoEthyl Ether | 2.0000e+00 | | Ethyl Gly Ethyl Ether Acetate | 6.4000e-01 | | Ethyl Glycol Methyl Ether | 2.0000e-01 | 3.2000e+00 | Ethyl Gly Methyl Ether Acetate | 5.7000e-01 | | Ethyl Gly MonoEthyl Ether Acetate | 1.6000e+01 | | Lead Compounds | 1.5000e-02 | | Manganese Compounds | 5.0000e-04 | | Mercury Compounds | 3.0000e-03 | 3.0000e-01 | Fine Mineral Fibers | 2.4000e-01 | | Nickel Compounds | 2.4000e-03 | 1.0000e-02 | Selenium Compounds | 5.0000e-03 | 2.0000e-02

History

Authorizing statute(s): 75-2-111, 75-2-204, MCA
Implementing statute(s): 75-2-204, 75-2-211, 75-2-215, MCA
History: NEW, 2002 MAR p. 3567, Eff. 12/27/02.

Mont. Admin. R. 17.8.771 Mercury Emission Standards for Mercury-Emitting Generating Units

(1) Except as provided in (3) , the owner or operator of a mercury-emitting generating unit shall:

(a) if obtaining a Montana air quality permit pursuant to ARM 17.8.743 , install best available control technology for control of mercury emissions as required by ARM 17.8.752 ;

(b) except for any period for which another mercury emissions limit has been established pursuant to this rule, beginning January 1, 2010, or at commencement of commercial operation, whichever is later, limit mercury emissions from the mercury-emitting generating unit to an emission rate equal to or less than:

(i) 1.5 pounds of mercury per trillion Btu, calculated as a rolling 12-month average, for mercury-emitting generating units that combust lignite; or

(ii) 0.9 pounds of mercury per trillion Btu, calculated as a rolling 12-month average, for all other mercury-emitting generating units;

(c) by January 1, 2009, or 12 months prior to commencement of commercial operation, whichever is later, submit an application to the department for a Montana air quality permit or modification of an existing Montana air quality permit for the mercury-emitting generating unit solely to establish the mercury emission limit from (1) (b) and any necessary operational requirements as a condition of the permit. The owner or operator shall include in the application an analysis of potential mercury control options including, but not limited to, boiler technology, mercury emission control technology, and any other mercury control practices. The owner or operator shall also include in the application a proposed mercury emission control strategy projected to achieve compliance with the emission limit in (1) (b) and that must include boiler technology, mercury emission control technology, or any other mercury control practices used or anticipated to be used by the owner or operator to achieve compliance with (1) (b) . If the department determines that the mercury emission control strategy is projected to achieve compliance with the emission limit in (1) (b) , the department shall include the provisions of the mercury control strategy as conditions of the Montana air quality permit; and

(d) by January 1, 2010, or at commencement of commercial operation, whichever is later, implement the mercury emission control strategy approved pursuant to (1) (c) .

(2) If more than one mercury-emitting generating unit is located at a facility, the owner or operator may demonstrate compliance with the requirements of (1) (b) , an alternative emission limit, or a revised alternative emission limit on a facility-wide basis. An owner or operator choosing to demonstrate compliance with this rule on a facility-wide basis shall report the information required in (11) on a facility-wide basis.

(3) If the owner or operator of a mercury-emitting generating unit properly implements the mercury control strategy approved pursuant to (1) (c) , and the mercury control strategy fails under normal operation to meet the emission rate required in (1) (b) , the owner or operator:

(a) shall notify the department of the failure to meet the emission rate required in (1) (b) by March 1, 2011, or within two months of such failure, whichever is later; and

(b) may submit an application to the department for a Montana air quality permit or a modification of a Montana air quality permit solely to establish an alternative mercury emission limit. The owner or operator shall file any application for an alternative emission limit by July 1, 2011, or within six months of the failure to meet the emission rate required in (1) (b) , whichever is later, and shall include as part of the application:

(i) all mercury emission monitoring data, obtained pursuant to (11) , for the mercury-emitting generating unit;

(ii) a description of the reason(s) for the failure and any corrective action that may be appropriate;

(iii) a certification that the failure occurred during normal operation of the facility and was not caused entirely or in part by start-up, shakedown, or improper implementation of the mercury control strategy approved pursuant to (1) (c) ; and

(iv) a revised mercury control strategy demonstrating how compliance with (1) (b) is projected to be achieved as soon as reasonably practicable but no later than 2018. The revised mercury control strategy may include, but is not limited to, boiler technology, mercury emission control technology, and any other mercury control practices used or anticipated to be used by the owner or operator to achieve compliance with (1) (b) . The revised mercury control strategy must include measurable indicators of progress toward compliance with the emission limit in (1) (b) , which may include a plan of increasing levels of mercury control progressing to compliance with (1) (b) .

(4) If an application is submitted in accordance with (3) (b) , the failure of the owner or operator of the mercury-emitting generating unit to comply with the mercury emission limit in (1) (b) is not a violation of this rule or the permit until the department has issued its final decision on the application.

(5) If the information submitted pursuant to (3) (b) demonstrates that the owner or operator of the mercury-emitting unit cannot reasonably comply with the mercury emission limit in (1) (b) , the department may establish an alternative mercury emission limit, except that the department may not require the owner or operator to install a different boiler technology than is in use or contained in a final air quality permit. The department may establish an alternative mercury emission limit only if the owner or operator of the mercury-emitting unit demonstrates that the revised mercury control strategy constitutes a continual program of mercury control progression able to achieve the mercury emission rate requirement of (1) (b) . If the department establishes an alternative mercury emission limit, the department must include as a condition of the permit a requirement that the owner or operator of the mercury-emitting generating unit make reasonable efforts toward achieving the measurable indicators of progress contained in the revised mercury control strategy. Failure to make reasonable efforts toward achieving the measurable indicators of progress contained in the revised mercury control strategy is a violation of the permit. The department shall base any alternative mercury emission limit on the best level of emission control achieved or achievable by the revised mercury control strategy and shall consider the information submitted pursuant to (3) when establishing the alternative mercury emission limit.

(6) An alternative mercury emission limit established in a Montana air quality permit expires January 1, 2018, and must not exceed:

(a) 4.8 pounds of mercury per trillion Btu, calculated as a rolling 12-month average, for a mercury-emitting generating unit that combusts lignite and commenced commercial operation prior to October 1, 2006;

(b) 3.6 pounds of mercury per trillion Btu, calculated as a rolling 12-month average, for a mercury-emitting generating unit that combusts lignite and commenced commercial operation on or after October 1, 2006;

(c) 2.4 pounds of mercury per trillion Btu, calculated as a rolling 12-month average, for a mercury-emitting generating unit that does not combust lignite and commenced commercial operation prior to October 1, 2006; or

(d) 1.5 pounds of mercury per trillion Btu, calculated as a rolling 12-month average, for all other mercury-emitting generating units that do not combust lignite.

(7) The owner or operator of a mercury-emitting generating unit, for which the department has established an alternative mercury emission limit, shall, by January 1, 2014, submit an application to the department for a Montana air quality permit or a modification of a Montana air quality permit for the mercury-emitting generating unit to establish a revised alternative mercury emission limit. The owner or operator shall submit, as part of any application, the information required in (3) (b) (i) through (iv) , a best available control technology analysis for the control of mercury emissions, a review of the mercury-emitting generating unit's existing alternative mercury emission limit, including associated mercury emission monitoring and operational data, and a revised mercury control strategy.

(8) In reviewing an application submitted pursuant to (7) , the department shall establish a revised alternative mercury emission limit in a Montana air quality permit that will become effective beginning January 1, 2018. A revised alternative mercury emission limit must meet the requirements of (5) , except that the department may not require the owner or operator to install a different boiler technology than is in use or contained in a final air quality permit, or constitute best available control technology, whichever is more stringent, but must not exceed:

(a) 2.8 pounds of mercury per trillion Btu, calculated as a rolling 12-month average, for a mercury-emitting generating unit that combusts lignite; or

(b) 1.2 pounds of mercury per trillion Btu, calculated as a rolling 12-month average, for all other mercury-emitting generating units.

(9) No later than ten years after issuance of the permit containing the mercury emission limit, and every ten years thereafter, the owner or operator of a mercury-emitting generating unit, for which the department has established a mercury emission limit under (1) (b) or (8) , shall file an application with the department for a Montana air quality permit or a modification of a Montana air quality permit for the mercury-emitting generating unit to establish a revised mercury emission limit. The owner or operator shall submit, as part of the application, the information required in (3) (b) (i) through (iv) , a best available control technology analysis for the control of mercury emissions, and a review of the mercury-emitting generating unit's existing alternative mercury emission limit and the mercury control strategy, including associated mercury emission monitoring and operational data. The department shall establish a revised mercury emission limit in a Montana air quality permit that meets the requirements of (5) , except that the department may not require the owner or operator to install a different boiler technology than is in use or contained in a final air quality permit, or constitutes best available control technology whichever is more stringent, but that must not exceed:

(a) 2.8 pounds of mercury per trillion Btu, calculated as a rolling 12-month average, for a mercury-emitting generating unit that combusts lignite; or

(b) 1.2 pounds of mercury per trillion Btu, calculated as a rolling 12-month average, for all other mercury-emitting generating units.

(10) The owner or operator of a mercury-emitting generating unit shall comply with the monitoring, recordkeeping, and reporting provisions of 40 CFR Part 75. Any continuous emissions monitors used must be operated in compliance with 40 CFR Part 60, Appendix B.

(11) The owner or operator of any mercury-emitting generating unit shall report to the department within 60 days after the end of each calendar quarter, on forms as may be prescribed by the department:

(a) the monthly average mercury emission rate, for each month of the quarter; and

(b) the percentage of time the mercury emission monitoring method was operating during the quarter.

(12) If the federal Clean Air Mercury Rule (CAMR) , adopted in 70 Fed. Reg. 28606 (May 18, 2005) , is declared invalid by a court of competent jurisdiction, the provisions of 40 CFR Part 75 and Part 60, Appendix B, amended by CAMR, as they pertain to monitoring, recordkeeping, and reporting of mercury emissions, remain in effect as incorporated by reference in ARM 17.8.767 (1) .

History

Authorizing statute(s): 75-2-203, 75-2-204, 75-2-211, MCA
Implementing statute(s): 75-2-211, MCA
History: NEW, 2006 MAR p. 2575, Eff. 10/27/06.

Mont. Admin. R. 17.8.772 Mercury Allowance Allocations Under Cap and Trade Budget

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-2-203, 75-2-204, 75-2-211, MCA
Implementing statute(s): 75-2-211, MCA
History: NEW, 2006 MAR p. 2575, Eff. 10/27/06; REP, 2016 MAR p. 512, Eff. 3/19/16.

Subchapter 17.8.8 Prevention of Significant Deterioration of Air Quality

Mont. Admin. R. 17.8.801 Definitions

In this subchapter, the following definitions apply:

(1) "Actual emissions" means the actual rate of emissions of a pollutant from an emissions unit, as determined in accordance with (1)(a) through (c).

(a) Actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a two-year period which precedes the particular date and which is representative of normal source operation. The department may determine that a different time period is more representative of normal source operation. Actual emissions shall be calculated using the unit's actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period.

(b) The department may presume that source-specific allowable emissions for the unit are equivalent to the actual emissions of the unit.

(c) For any emissions unit which has not begun normal operations on the particular date, actual emissions shall equal the potential to emit of the unit on that date.

(2) "Allowable emissions" means the emissions rate of a stationary source calculated using the maximum rated capacity of the source (unless the source is subject to federally enforceable limits which restrict the operating rate or hours of operation, or both) and the most stringent of the following:

(a) the applicable standards as set forth in ARM 17.8.340 or 17.8.341;

(b) the applicable Montana State Implementation Plan emissions limitation, including those with a future compliance date; or

(c) the emissions rate specified as a federally enforceable permit condition, including those with a future compliance date.

(3) "Baseline area" means any intrastate area (and every part thereof) designated as attainment or unclassifiable in 40 CFR 81.327 in which the major source or major modification establishing the minor source baseline date would construct or would have an air quality impact equal to or greater than one µg/m 3 (annual average) of the pollutant for which the minor source baseline date is established, except baseline areas for PM-2.5 are designated when a major source or major modification establishing the minor source baseline date would construct or would have an air quality impact equal to or greater than 0.3 µg/m 3 as an annual average for PM-2.5.

(a) Area redesignations under section 107 of the FCAA to attainment or unclassifiable cannot intersect or be smaller than the area of impact of any major stationary source or major modification which:

(i) establishes a minor source baseline date; or

(ii) is subject to 40 CFR 52.21 or regulations approved pursuant to 40 CFR 51.166, and would be constructed in the same state as the state proposing the redesignation.

(b) Any baseline area established originally for the total suspended particulate increments shall remain in effect and shall apply for purposes of determining the amount of available PM-10 increments, except that such baseline area shall not remain in effect if the department rescinds the corresponding minor source baseline date in accordance with (21)(d).

(4) "Baseline concentration" means that ambient concentration level which exists in the baseline area at the time of the applicable minor source baseline date.

(a) A baseline concentration is determined for each pollutant for which a minor source baseline date is established and shall include:

(i) the actual emissions representative of sources in existence on the applicable minor source baseline date, except as provided in (4)(b); and

(ii) the allowable emissions of major stationary sources which commenced construction before the major source baseline date, but were not in operation by the applicable minor source baseline date.

(b) The following will not be included in the baseline concentration and will affect the applicable maximum allowable increase(s):

(i) actual emissions from any major stationary source on which construction commenced after the major source baseline date; and

(ii) actual emissions increases and decreases at any stationary source occurring after the minor source baseline date.

(5) "Begin actual construction" means, in general, initiation of physical on-site construction activities on an emissions unit which are of a permanent nature. Such activities include, but are not limited to, installation of building supports and foundations, laying of underground pipework, and construction of permanent storage structures. With respect to a change in method of operation this term refers to those on-site activities, other than preparatory activities, which mark the initiation of the change.

(6) "Best available control technology (BACT)" means an emissions limitation (including a visible emissions standard) based on the maximum degree of reduction for each pollutant subject to regulation under the FCAA, excluding hazardous air pollutants except to the extent that such hazardous air pollutants are regulated as constituents of more general pollutants listed in section 108(a)(1) of the FCAA, which would be emitted from any proposed major stationary source or major modification which the department, on a case-by-case basis, taking into account energy impacts, environmental impacts (including, but not limited to, the effect of the control technology option on hazardous air pollutants), and economic impacts and other costs, determines is achievable for such source or modification through application of production processes or available methods, systems, and techniques, including fuel cleaning or treatment or innovative fuel combustion techniques for control of such pollutant. In no event shall application of BACT result in emissions of any pollutant which would exceed the emissions allowed by any applicable standard under ARM 17.8.340 and 17.8.341. If the department determines that technological or economic limitations on the application of measurement methodology to a particular emissions unit would make the imposition of an emissions standard infeasible, any design, equipment, work practice, operational standard, or combination thereof, may be prescribed instead to satisfy the requirement for the application of BACT. Such standard shall, to the degree possible, set forth the emissions reduction achievable by implementation of such design, equipment, work practice, or operation, and shall provide for compliance by means which achieve equivalent results.

(7) "Building, structure, facility, or installation" means all of the pollutant-emitting activities which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control) except the activities of any vessel. Pollutant-emitting activities shall be considered as part of the same industrial grouping if they belong to the same major group (i.e., which have the same two-digit code) as described in the standard industrial classification manual, 1987.

(8) "Commence", as applied to construction of a major stationary source or major modification, means that the owner or operator has all necessary preconstruction approvals or permits and either has:

(a) begun, or caused to begin, a continuous program of actual on-site construction of the source, to be completed within a reasonable time; or

(b) entered into binding agreements or contractual obligations, which cannot be canceled or modified without substantial loss to the owner or operator, to undertake a program of actual construction of the source to be completed within a reasonable time.

(9) "Complete" means, in reference to an application for a permit, that the application contains all the information necessary for processing the application, except that designating an application complete for purposes of permit processing does not preclude the department from requesting or accepting any additional information.

(10) "Construction" means any physical change or change in the method of operation (including fabrication, erection, installation, demolition, or modification of an emissions unit) which would result in a change in actual emissions.

(11) "Emissions unit" means any part of a stationary source which emits or would have the potential to emit any pollutant subject to regulation under the FCAA.

(12) "Federal land manager" means, with respect to any lands in the United States, the secretary of the department with authority over such lands.

(13) "Federally enforceable" means all limitations and conditions which are enforceable by the administrator, including those requirements developed pursuant to 40 CFR Parts 60 and 61, requirements within the Montana State Implementation Plan, and any permit requirement established pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR Part 51, subpart I, including operating permits issued under an EPA-approved program that is incorporated into the Montana State Implementation Plan and expressly requires adherence to any permit issued under such program.

(14) "Fugitive emissions" means those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.

(15) "High terrain" means any area having an elevation 900 feet or more above the base of the stack of a source.

(16) "Indian governing body" means the governing body of any tribe, band, or group of Indians subject to the jurisdiction of the United States and recognized by the United States as possessing power of self-government.

(17) "Indian reservation" means any federally recognized reservation established by treaty, agreement, executive order, or act of Congress.

(18) "Innovative control technology" means any system of air pollution control that has not been adequately demonstrated in practice, but would have a substantial likelihood of achieving greater continuous emissions reduction than any control system in current practice or of achieving at least comparable reductions at lower cost in terms of energy, economics, or nonair quality environmental impacts.

(19) "Low terrain" means any area other than high terrain.

(20) "Major modification" means any physical change in, or change in the method of operation of, a major stationary source that would result in a significant net emissions increase of any pollutant subject to regulation under the FCAA, excluding hazardous air pollutants, except to the extent that such hazardous air pollutants are regulated as constituents of more general pollutants listed in section 108(a)(1) of the FCAA.

(a) Any net emissions increase that is significant for volatile organic compounds or NO x will be considered significant for ozone.

(b) A physical change or change in the method of operation shall not include:

(i) routine maintenance, repair, and replacement;

(ii) use of an alternative fuel or raw material by reason of any order under sections 2(a) and (b) of the Energy Supply and Environmental Coordination Act of 1974, 15 USC 791, et seq. (1988), or by reason of a natural gas curtailment plan pursuant to the Federal Power Act, 16 USC 791a, et seq. (1988 and Supp. III 1991);

(iii) use of an alternative fuel by reason of an order or rule under section 125 of the FCAA;

(iv) use of an alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solid waste;

(v) use of an alternative fuel or raw material by a stationary source which:

(A) the source was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975, pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR subpart I or section 51.166; or

(B) the source is approved to use under any permit issued under 40 CFR 52.21 or under regulations approved pursuant to 40 CFR 51.166;

(vi) an increase in the hours of operation or in the production rate, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975, pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR subpart I or section 51.166; or

(vii) any change in ownership at a stationary source.

(21) The following apply to the definitions of the terms "major source baseline date" and "minor source baseline date":

(a) "major source baseline date" means:

(i) in the case of PM-10 and sulfur dioxide (SO 2 ), January 6, 1975;

(ii) in the case of nitrogen dioxide (NO 2 ), February 8, 1988; and

(iii) in the case of PM-2.5, October 20, 2010.

(b) "Minor source baseline date" means the earliest date after the trigger date on which a major stationary source or a major modification subject to 40 CFR 52.21 or to regulations approved pursuant to 40 CFR 51.166 submits a complete application under the relevant regulation. The trigger date is:

(i) in the case of PM-10 and sulfur dioxide (SO 2 ), August 7, 1977;

(ii) in the case of nitrogen dioxide (NO 2 ), February 8, 1988; and

(iii) in the case of PM-2.5, October 20, 2011.

(c) The baseline date is established for each pollutant for which increments or other equivalent measures have been established if:

(i) the area in which the proposed source or modification would construct is designated as attainment or unclassifiable in 40 CFR 81.327 for the pollutant on the date of its complete application under 40 CFR 52.21 or under regulations approved pursuant to 40 CFR 51.166; and

(ii) in the case of a major stationary source, the pollutant would be emitted in significant amounts, or, in the case of a major modification, there would be a significant net emissions increase of the pollutant.

(d) Any minor source baseline date established originally for the total suspended particulate increments shall remain in effect and shall apply for purposes of determining the amount of available PM-10 increments, except that the department may rescind any such minor source baseline date where it can be shown, to the satisfaction of the department, that the emissions increase from the major stationary source, or the net emissions increase from the major modification, responsible for triggering that date did not result in a significant amount of PM-10 emissions.

(22) The following apply to the definition of the term "major stationary source":

(a) "major stationary source" means:

(i) any of the following stationary sources of air pollutants which emits, or has the potential to emit, 100 tons per year or more of any pollutant subject to regulation under the FCAA, excluding hazardous air pollutants, except to the extent that such hazardous air pollutants are regulated as constituents of more general pollutants listed in section 108(a)(1) of the FCAA: fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input, coal cleaning plants (with thermal dryers), kraft pulp mills, Portland cement plants, primary zinc smelters, iron and steel mill plants, primary aluminum ore reduction plants, primary copper smelters, municipal incinerators capable of charging more than 250 tons of refuse per day, hydrofluoric, sulfuric, and nitric acid plants, petroleum refineries, lime plants, phosphate rock processing plants, coke oven batteries, sulfur recovery plants, carbon black plants (furnace process), primary lead smelters, fuel conversion plants, sintering plants, secondary metal production plants, chemical process plants, fossil fuel boilers (or combinations thereof) totaling more than 250 million British thermal units per hour heat input, petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels, taconite ore processing plants, glass fiber processing plants, and charcoal production plants;

(ii) notwithstanding the stationary source size specified in (22)(a)(i), any stationary source which emits, or has the potential to emit, 250 tons per year or more of any air pollutant subject to regulation under the FCAA, excluding hazardous air pollutants, except to the extent that such hazardous air pollutants are regulated as constituents of more general pollutants listed in section 108(a)(1) of the FCAA; or

(iii) any physical change that would occur at a stationary source not otherwise qualifying under (22)(a)(i) or (ii), as a major stationary source if the change would constitute a major stationary source by itself.

(b) A major source that is major for volatile organic compounds or NO x will be considered major for ozone.

(c) The fugitive emissions of a stationary source may not be included in determining, for any of the purposes of this subchapter, whether it is a major stationary source, unless the source belongs to one of the following categories of stationary sources:

(i) coal cleaning plants (with thermal dryers);

(ii) kraft pulp mills;

(iii) Portland cement plants;

(iv) primary zinc smelters;

(v) iron and steel mills;

(vi) primary aluminum ore reduction plants;

(vii) primary copper smelters;

(viii) municipal incinerators capable of charging more than 250 tons of refuse per day;

(ix) hydrofluoric, sulfuric, or nitric acid plants;

(x) petroleum refineries;

(xi) lime plants;

(xii) phosphate rock processing plants;

(xiii) coke oven batteries;

(xiv) sulfur recovery plants;

(xv) carbon black plants (furnace process);

(xvi) primary lead smelters;

(xvii) fuel conversion plants;

(xviii) sintering plants;

(xix) secondary metal production plants;

(xx) chemical process plants;

(xxi) fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal units per hour heat input;

(xxii) petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels;

(xxiii) taconite ore processing plants;

(xxiv) glass fiber processing plants;

(xxv) charcoal production plants;

(xxvi) fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input; and

(xxvii) any other stationary source category which, as of August 7, 1980, is being regulated under sections 111 or 112 of the FCAA.

(23) "Necessary preconstruction approvals or permits" means those permits or approvals required under federal air quality control laws and regulations and those air quality control laws and regulations which are part of the Montana State Implementation Plan.

(24) The following apply to the definition of the term "net emissions increase":

(a) "net emissions increase" means the amount by which the sum of the following exceeds zero:

(i) any increase in actual emissions from a particular physical change or change in the method of operation at a stationary source; and

(ii) any other increases and decreases in actual emissions at the source that are contemporaneous with the particular change and are otherwise creditable.

(b) An increase or decrease in actual emissions is contemporaneous with the increase from the particular change only if it occurs between the date five years before construction on the particular change commenced, and the date that the increase from the particular change occurs.

(c) An increase or decrease in actual emissions is creditable only if the department has not relied on it in issuing a permit for the source under this subchapter, which permit is in effect when the increase in actual emissions from the particular change occurs.

(d) An increase or decrease in actual emissions of sulfur dioxide, particulate matter, or nitrogen oxides which occurs before the applicable minor source baseline date is creditable only if it is required to be considered in calculating the amount of maximum allowable increases remaining available. With respect to particulate matter, only PM-10 emissions may be used to evaluate the net emissions increase for PM-10.

(e) An increase in actual emissions is creditable only to the extent that the new level of actual emissions exceeds the old level.

(f) A decrease in actual emissions is creditable only to the extent that:

(i) the old level of actual emissions or the old level of allowable emissions, whichever is lower, exceeds the new level of actual emissions;

(ii) it is federally enforceable at and after the time that actual construction on the particular change begins; and

(iii) it has approximately the same qualitative significance for public health and welfare as that attributed to the increase from the particular change.

(g) An increase that results from a physical change at a source occurs when the emissions unit on which construction occurred becomes operational and begins to emit a particular pollutant. Any replacement unit that requires shakedown becomes operational only after a reasonable shakedown period, not to exceed 180 days.

(25) "Nitrogen oxides" or "NO x " means the sum of nitric oxide and nitrogen dioxide in the flue gas or emission point.

(26) "Potential to emit" means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design only if the limitation or the effect it would have on emissions is federally enforceable. Secondary emissions do not count in determining the potential to emit of a stationary source.

(27) "Secondary emissions" means emissions which would occur as a result of the construction or operation of a major stationary source or major modification, but do not come from the major stationary source or major modification itself. For the purpose of this chapter, secondary emissions must be specific, well defined, quantifiable, and impact the same general area as the stationary source or modification which causes the secondary emissions. Secondary emissions include emissions from any offsite support facility which would not be constructed or increase its emissions except as a result of the construction or operation of the major stationary source or major modification. Secondary emissions do not include any emissions which come directly from a mobile source such as emissions from the tailpipe of a motor vehicle, from a train, or from a vessel.

(28) The following apply to the definition of the term "significant":

(a) "significant" means, in reference to a net emissions increase or the potential of a source to emit any of the following pollutants, a rate of emissions that would equal or exceed any of the following rates:

Pollutant and Emissions Rate

Carbon monoxide: 100 tons per year (tpy)

Nitrogen oxides (NO x ): 40 tpy

Sulfur dioxide (SO 2 ): 40 tpy

Particulate matter: 25 tpy of particulate matter emissions

15 tpy of PM-10 emissions

PM-2.5: 10 tpy of direct PM-2.5 emissions, 40 tpy of sulfur dioxide emissions, or 40 tpy of nitrogen oxides (NOx) emissions unless demonstrated not to be a PM-2.5 precursor

Ozone: 40 tpy of volatile organic compounds or nitrogen oxides

Lead: 0.6 tpy

Fluorides: 3 tpy

Sulfuric acid mist: 7 tpy

Hydrogen sulfide (H 2 S): 10 tpy

Total reduced sulfur (including H 2 S): 10 tpy

Reduced sulfur compounds (including H 2 S): 10 tpy

Municipal waste combustor organics (measured as total tetra- through octa-chlorinated dibenzo-p-dioxins and dibenzofurans): 3.2 * 10 -6 megagrams per year (3.5 * 10 -6 tpy)

Municipal waste combustor metals (measured as particulate matter): 14 megagrams per year (15 tpy)

Municipal waste combustor acid gases (measured as sulfur dioxide and hydrogen chloride): 36 megagrams per year (40 tpy)

(b) "significant" means, in reference to a net emissions increase or the potential of a source to emit a pollutant subject to regulation under the FCAA, that (28)(a) does not list any emissions rate. This does not include hazardous air pollutants, except to the extent that such hazardous air pollutants are regulated as constituents of more general pollutants listed in section 108(a)(1) of the FCAA.

(c) Notwithstanding (28)(a), "significant" means any emissions rate or any net emissions increase associated with a major stationary source or major modification, which would construct within 10 kilometers of a Class I area, and have an impact on such area equal to or greater than one µg/m 3 (24-hour average).

(29) "Stationary source" means any building, structure, facility, or installation which emits or may emit any air pollutant subject to regulation under the FCAA, excluding hazardous air pollutants, except to the extent that such hazardous air pollutants are regulated as constituents of more general pollutants listed in section 108(a)(1) of the FCAA.

(30) "Volatile organic compounds (VOC)" means the same as defined in 40 CFR 51.100(s).

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; AMD, 1994 MAR p. 2829, Eff. 10/28/94; AMD, 1995 MAR p. 2410, Eff. 11/10/95; AMD, 1996 MAR p. 1843, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1998 MAR p. 1725, Eff. 6/26/98; AMD, 2002 MAR p. 1747, Eff. 6/28/02; AMD, 2003 MAR p. 645, Eff. 4/11/03; AMD, 2004 MAR p. 724, Eff. 4/9/04; AMD, 2006 MAR p. 1956, Eff. 8/11/06; AMD, 2007 MAR p. 1663, Eff. 10/26/07; AMD, 2011 MAR p. 2134, Eff. 10/14/11; AMD, 2012 MAR p. 2058, Eff. 10/12/12.

Mont. Admin. R. 17.8.802 Incorporation by Reference

(1) For the purposes of this subchapter, the department adopts and incorporates by reference the following:

(a) 40 CFR 51.102, pertaining to requirements for public hearings for state programs;

(b) 40 CFR Part 51, Appendix W, pertaining to the Guideline on Air Quality Models, as published January 17, 2017, and effective May 22, 2017;

(d) 40 CFR Part 61, pertaining to emission standards for hazardous air pollutants;

(e) 40 CFR 81.327, pertaining to the air quality attainment status designations for Montana; and

(f) the Standard Industrial Classification Manual (1987), Office of Management and Budget (PB 87-100012) or the North American Industry Classification System of 2022 at https://www.census.gov/naics, pertaining to a system of industrial classification and definition based upon the composition and structure of the economy.

(2) Copies of materials incorporated by reference in this subchapter may be obtained as referenced in ARM 17.8.102(3) and (4).

History

Authorizing statute(s): 75-2-112, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; AMD, 1994 MAR p. 2828, Eff. 10/28/94; AMD, 1996 MAR p. 1844, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1997 MAR p. 1581, Eff. 9/9/97; AMD, 2003 MAR p. 645, Eff. 4/11/03; AMD, 2005 MAR p. 959, Eff. 6/17/05; AMD, 2006 MAR p. 1956, Eff. 8/11/06; AMD, 2007 MAR p. 1663, Eff. 10/26/07; AMD, 2009 MAR p. 1784, Eff. 10/16/09; AMD, 2018 MAR p. 438, Eff. 2/24/18; AMD, 2022 MAR p. 694, Eff. 5/14/22; AMD, 2024 MAR p. 2056, Eff. 8/24/24.

Mont. Admin. R. 17.8.804 Ambient Air Increments

(1) In areas designated as Class I, II, or III, increases in pollutant concentration over the baseline concentration shall be limited to the following:

(2) For any period other than an annual period, the applicable maximum allowable increase may be exceeded during one such period per year at any one location.

Pollutant | Maximum allowable increase (micrograms per cubic meter)

CLASS I

Particulate matter: PM-2.5, annual arithmetic mean.................................................................................1 PM-2.5, 24-hr maximum..............................................................................................2 PM-10, annual arithmetic mean..................................................................................4 PM-10, 24-hr maximum...............................................................................................8 Sulfur dioxide (SO 2 ): Annual arithmetic mean...............................................................................................2 24-hr maximum.............................................................................................................5 3-hr maximum.............................................................................................................25 Nitrogen dioxide (NO 2 ): Annual arithmetic mean...............................................................................................2.5

CLASS II

Particulate matter: PM-2.5, annual arithmetic mean.................................................................................4 PM-2.5, 24-hr maximum..............................................................................................9 PM-10, annual arithmetic mean................................................................................17 PM-10, 24-hr maximum.............................................................................................30 Sulfur dioxide (SO 2 ): Annual arithmetic mean.............................................................................................20 24-hr maximum...........................................................................................................91 3-hr maximum...........................................................................................................512 Nitrogen dioxide (NO 2 ): Annual arithmetic mean.............................................................................................25

CLASS III

Particulate matter: PM-2.5, annual arithmetic mean.................................................................................8 PM-2.5, 24-hr maximum............................................................................................18 PM-10, annual arithmetic mean................................................................................34 PM-10, 24-hr maximum.............................................................................................60 Sulfur dioxide (SO 2 ): Annual arithmetic mean.............................................................................................40 24-hr maximum.........................................................................................................182 3-hr maximum............................................................................................................700 Nitrogen dioxide (NO 2 ): Annual arithmetic mean..............................................................................................50

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; AMD, 1994 MAR p. 2829, Eff. 10/28/94; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2011 MAR p. 2134, Eff. 10/14/11.

Mont. Admin. R. 17.8.805 Ambient Air Ceilings

(1) No concentration of a pollutant shall exceed the concentration permitted under either the applicable secondary or primary national ambient air quality standard, whichever concentration is lowest for the pollutant for a period of exposure.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.806 Restrictions on Area Classifications

(1) All of the following areas are designated Class I areas and may not be redesignated:

(a) Bob Marshall Wilderness Area;

(b) Anaconda Pintler Wilderness Area;

(d) Gates of the Mountains Wilderness Area;

(e) Glacier National Park;

(f) Medicine Lake Wilderness Area;

(g) Mission Mountains Wilderness Area;

(h) Red Rock Lake Wilderness Area;

(i) Scapegoat Wilderness Area;

(j) Selway-Bitterroot Wilderness Area;

(k) UL Bend Wilderness Area; and

(l) Yellowstone National Park.

(2) Areas which were redesignated as Class I under regulations promulgated before August 7, 1977, shall remain Class I, but may be redesignated as provided in this subchapter.

(3) The extent of the areas designated as Class I under (1) and (2) shall conform to any changes in the boundaries of such areas which have occurred subsequent to August 7, 1977, or which may occur subsequent to November 15, 1990.

(4) Any other area, unless otherwise specified in the legislation creating such an area, is initially designated Class II, but may be redesignated as provided in this subchapter.

(5) The following areas may be redesignated only as Class I or II:

(a) an area which, as of August 7, 1977, exceeded 10,000 acres in size and was a national monument, a national primitive area, a national preserve, a national recreational area, a national wild and scenic river, a national wildlife refuge, a national lakeshore or seashore; and

(b) a national park or national wilderness area established after August 7, 1977, which exceeds 10,000 acres in size.

(6) The following three areas have been designated as Class I by EPA and may be redesignated to another class only by EPA:

(a) Northern Cheyenne Reservation;

(b) Flathead Reservation; and

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.807 Exclusions from Increment Consumption

(1) The following concentrations will be excluded in determining compliance with a maximum allowable increase:

(a) concentrations attributable to the increase in emissions from stationary sources which have converted from the use of petroleum products, natural gas, or both by reason of an order in effect under sections 2(a) and (b) of the Energy Supply and Environmental Coordination Act of 1974, 15 USC 791, et seq. (1988) , over the emissions from such sources before the effective date of such an order;

(b) concentrations attributable to the increase in emissions from sources which have converted from using natural gas by reason of a natural gas curtailment plan in effect pursuant to the Federal Power Act, 16 USC 791a, et seq. (1988 and Supp. III 1991) , over the emissions from such sources before the effective date of such plan;

(c) concentrations of particulate matter attributable to the increase in emissions from construction or other temporary emission-related activities of new or modified sources;

(d) the increase in concentrations attributable to new sources outside the United States over the concentrations attributable to existing sources which are included in the baseline concentration; and

(e) concentrations attributable to the temporary increase in emissions of sulfur dioxide, particulate matter, or nitrogen oxides from stationary sources meeting the criteria specified in (3) .

(2) With respect to (1) (a) or (b) , no exclusion of such concentrations shall apply more than five years after the effective date of the order to which (1) (a) refers, or the plan to which (1) (b) refers, whichever is applicable. If both such order and plan are applicable, no such exclusion shall apply more than five years after the later of such effective dates.

(3) For purposes of excluding concentrations pursuant to (1) (e) :

(a) The time period for a temporary increase in emissions may not exceed two years and is not renewable.

(b) No emissions increase from a stationary source would be allowed which would:

(i) impact a Class I area or an area where an applicable increment is known to be violated; or

(ii) cause or contribute to the violation of a national ambient air quality standard.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.808 Redesignation

(1) All areas of the state (except as otherwise provided under ARM 17.8.806) are designated Class II. Redesignation (except as otherwise precluded by ARM 17.8.806) shall be subject to the redesignation procedures of this rule. Lands within the exterior boundaries of Indian reservations may be redesignated only by the appropriate Indian governing body, as required by 40 CFR 51.166(g) (4) .

(2) The department may submit to the administrator a proposal to redesignate areas of the state Class I or Class II, provided that:

(a) at least one public hearing has been held in accordance with procedures established in 40 CFR 51.102;

(b) other states, Indian governing bodies, and federal land managers whose lands may be affected by the proposed redesignation were notified at least 30 days prior to the public hearing;

(c) a discussion of the reasons for the proposed redesignation, including a satisfactory description and analysis of the health, environmental, economic, social, and energy effects of the proposed redesignation, was prepared and made available for public inspection at least 30 days prior to the hearing and the notice announcing the hearing contained appropriate notification of the availability of such discussion;

(d) prior to the issuance of notice respecting the redesignation of an area that includes any federal lands, the department has provided written notice to the appropriate federal land manager and afforded adequate opportunity (not in excess of 60 days) to confer with the department respecting the redesignation and to submit written comments and recommendations. In redesignating any area with respect to which any federal land manager had submitted written comments and recommendations, the department shall have published a list of any inconsistency between such redesignation and such comments and recommendations (together with the reasons for making such redesignation against the recommendation of the federal land manager) ; and

(e) the department has proposed the redesignation after consultation with the elected leadership of any local governmental bodies located within the area covered by the proposed redesignation.

(3) Any area other than an area to which ARM 17.8.806 refers may be redesignated as Class III if:

(a) the redesignation would meet the requirements of (2) ;

(b) the redesignation, except any established by an Indian governing body, has been specifically approved by the governor, after consultation with the appropriate committees of the legislature (if it is in session, or with the leadership of the legislature, if it is not in session) , and if the local governmental bodies representing a majority of the residents of the area to be redesignated enact ordinances or regulations (including resolutions where appropriate) concurring in the redesignation;

(c) the redesignation would not cause, or contribute to, a concentration of any air pollutant which would exceed any maximum allowable increase permitted under the classification of any other area or any national ambient air quality standard; and

(d) any permit application for any major stationary source or major modification subject to ARM 17.8.820, which could receive a permit under this subchapter only if the area in question were redesignated as Class III, and any material submitted as part of that application, were available, as was practicable, for public inspection prior to any public hearing on redesignation of any area as Class III.

(4) If the administrator disapproves any proposed area designation, the classification of the area will be that which was in effect prior to the proposed redesignation which was disapproved, and the state may resubmit the proposal after correcting the deficiencies noted by the administrator.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.809 Stack Heights

(1) The degree of emission limitation required for control of any air pollutant under this subchapter may not be affected in any manner by:

(a) so much of a stack height, not in existence before December 31, 1970, as exceeds good engineering practice; or

(b) any other dispersion technique not implemented before December 31, 1970.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.818 Review of Major Stationary Sources and Major Modifications--Source Applicability and Exemptions

(1) No major stationary source or major modification shall begin actual construction unless, as a minimum, requirements contained in ARM 17.8.819 through 17.8.827 have been met. A major stationary source or major modification exempted from the requirements of subchapter 7 under ARM 17.8.744 or 17.8.745 shall, if applicable, still be required to obtain a Montana air quality permit and comply with all applicable requirements of this subchapter.

(2) The requirements contained in ARM 17.8.819 through 17.8.827 shall apply to any major stationary source and any major modification with respect to each pollutant subject to regulation under the FCAA that it would emit, except as this subchapter would otherwise allow. This does not include hazardous air pollutants, except to the extent that such hazardous air pollutants are regulated as constituents of more general pollutants listed in section 108(a) (1) of the FCAA, or must be considered in the BACT analysis.

(3) The requirements contained in ARM 17.8.819 through 17.8.827 apply only to any major stationary source or major modification that would be constructed in an area which is designated as attainment or unclassifiable under 40 CFR 81.327, except that the requirements contained in ARM 17.8.819 through 17.8.827 do not apply to a particular major stationary source or major modification if:

(a) the major stationary source would be a nonprofit health or nonprofit educational institution or a major modification that would occur at such an institution; or

(b) the source or modification is a portable stationary source which has previously received a permit under requirements contained in ARM 17.8.819 through 17.8.827, but only if the source proposes to relocate and emissions at the new location would be temporary, the emissions from the source would not exceed its allowable emissions and would impact no Class I area and no area where an applicable increment is known to be violated, and reasonable notice is given to the department prior to the relocation identifying the proposed new location and the probable duration of operation at the new location. Such notice must be given to the department not less than ten days in advance of the proposed relocation unless a different time duration is previously approved by the department.

(c) The source or modification would be a major stationary source or major modification only if fugitive emissions, to the extent quantifiable, are considered in calculating the potential to emit of the stationary source or modification and such source does not belong to any of the following categories:

(i) coal cleaning plants (with thermal dryers) ;

(ii) kraft pulp mills;

(iii) Portland cement plants;

(iv) primary zinc smelters;

(v) iron and steel mills;

(vi) primary aluminum ore reduction plants;

(vii) primary copper smelters;

(viii) municipal incinerators capable of charging more than 250 tons of refuse per day;

(ix) hydrofluoric, sulfuric, or nitric acid plants;

(x) petroleum refineries;

(xi) lime plants;

(xii) phosphate rock processing plants;

(xiii) coke oven batteries;

(xiv) sulfur recovery plants;

(xv) carbon black plants (furnace process) ;

(xvi) primary lead smelters;

(xvii) fuel conversion plants;

(xviii) sintering plants;

(xix) secondary metal production plants;

(xx) chemical process plants;

(xxi) fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal units per hour heat input;

(xxii) petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels;

(xxiii) taconite ore processing plants;

(xxiv) glass fiber processing plants;

(xxv) charcoal production plants;

(xxvi) fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input;

(xxvii) any other stationary source category which, as of August 7, 1980, is being regulated under section 111 or 112 of the FCAA.

(4) The requirements contained in ARM 17.8.819 through 17.8.827 do not apply to a major stationary source or major modification with respect to a particular pollutant if the owner or operator demonstrates that, as to that pollutant, the source or modification is located in an area designated as nonattainment under 40 CFR 81.327.

(5) The requirements contained in ARM 17.8.820, 17.8.822, and 17.8.824 do not apply to a proposed major stationary source or major modification with respect to a particular pollutant, if the allowable emissions of that pollutant from a new source, or the net emissions increase of that pollutant from a modification, would be temporary and impact no Class I area and no area where an applicable increment is known to be violated.

(6) The requirements contained in ARM 17.8.820, 17.8.822, and 17.8.824 as they relate to any maximum allowable increase for a Class II area do not apply to a modification of a major stationary source that was in existence on March 1, 1978, if the net increase in allowable emissions of each pollutant subject to regulation under the FCAA from the modification after the application of BACT would be less than 50 tons per year. This does not include hazardous air pollutants, except to the extent that such hazardous air pollutants are regulated as constituents of more general pollutants listed in section 108(a)(1) of the FCAA.

(7) The department may exempt a proposed major stationary source or major modification from the requirements of ARM 17.8.822, with respect to monitoring for a particular pollutant, if:

(a) the emissions increase of the pollutant from a new stationary source or the net emissions increase of the pollutant from a modification would cause, in any area, air quality impacts less than the following amounts:

(i) carbon monoxide: 575 µg/m 3 , eight-hour average;

(ii) nitrogen dioxide (NO 2 ): 14 µg/m 3 , annual average;

(iii) PM-2.5: 0 µg/m 3 ;

(iv) PM-10: 10 µg/m 3 , 24-hour average;

(v) sulfur dioxide (SO 2 ): 13 µg/m 3 , 24-hour average;

(vi) ozone: no de minimus air quality level is provided for ozone. However, any net increase of 100 tons per year or more of volatile organic compounds or nitrogen oxides subject to this subchapter requires an ambient impact analysis, including the gathering of ambient air quality data;

(vii) lead: 0.1 µg/m 3 , three-month average;

(viii) fluorides: 0.25 µg/m 3 , 24-hour average;

(ix) total reduced sulfur: 10 µg/m 3 , one-hour average;

(x) hydrogen sulfide: 0.2 µg/m 3 , one-hour average;

(xi) reduced sulfur compounds: 10 µg/m 3 , one-hour average; or

(b) the concentrations of the pollutant in the area that the source or modification would affect are less than the concentrations listed in (7)(a); or

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; AMD, 1994 MAR p. 2829, Eff. 10/28/94; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2003 MAR p. 645, Eff. 4/11/03; AMD, 2006 MAR p. 1956, Eff. 8/11/06; AMD, 2007 MAR p. 1663, Eff. 10/26/07; AMD, 2011 MAR p. 2134, Eff. 10/14/11; AMD, 2012 MAR p. 2058, Eff. 10/12/12; AMD, 2014 MAR p. 2457, Eff. 10/10/14; AMD, 2016 MAR p. 1439, Eff. 8/20/16.

Mont. Admin. R. 17.8.819 Control Technology Review

(1) A major stationary source or major modification shall meet each applicable emissions limitation under the Montana State Implementation Plan and each applicable emission standard and standard of performance under ARM 17.8.340 and 17.8.341.

(2) A new major stationary source shall apply BACT for each pollutant subject to regulation under the FCAA that it would have the potential to emit in significant amounts, excluding hazardous air pollutants, except to the extent that such hazardous air pollutants are regulated as constituents of more general pollutants listed in section 108(a) (1) of the FCAA. In evaluating the environmental impacts of any control technology option, the BACT analysis shall consider all pollutants, including hazardous air pollutants.

(3) A major modification shall apply BACT for each pollutant subject to regulation under the FCAA for which it would be a significant net emissions increase at the source, excluding hazardous air pollutants, except to the extent that such hazardous air pollutants are regulated as constituents of more general pollutants listed in section 108(a) (1) of the FCAA. In evaluating the environmental impacts of any control technology option, the BACT analysis shall consider all pollutants, including hazardous air pollutants. This requirement applies to each proposed emissions unit at which a net emissions increase in the pollutant would occur as a result of a physical change or change in the method of operation in the unit.

(4) For phased construction projects, the determination of BACT will be reviewed and modified as appropriate at the latest reasonable time which occurs no later than 18 months prior to commencement of construction of each independent phase of the project. At such time, the owner or operator of the applicable stationary source may be required to demonstrate the adequacy of any previous determination of BACT for the source.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2003 MAR p. 645, Eff. 4/11/03; AMD, 2004 MAR p. 724, Eff. 4/9/04.

Mont. Admin. R. 17.8.820 Source Impact Analysis

(1) The owner or operator of the proposed source or modification shall demonstrate that allowable emission increases from the proposed source or modification, in conjunction with all other applicable emissions increases or reductions (including secondary emissions), would not cause or contribute to air pollution in violation of any national ambient air quality standard in any air quality control region or any applicable maximum allowable increase over the baseline concentration in any area.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2011 MAR p. 2134, Eff. 10/14/11; AMD, 2014 MAR p. 2457, Eff. 10/10/14.

Mont. Admin. R. 17.8.821 Air Quality Models

(1) All estimates of ambient concentrations required under this subchapter must be based on the applicable air quality models, data bases, and other requirements specified in the Guideline on Air Quality Models, 40 CFR Part 51, Appendix W.

(2) Where an air quality impact model specified in 40 CFR Part 51, Appendix W is inappropriate, the model may be modified or another model substituted. Such a modification or substitution of a model may be made on a case-by-case basis or, where appropriate, on a generic basis for a specific state program. Written approval of the administrator must be obtained for any modification or substitution. In addition, use of a modified or substituted model must be subject to notice and opportunity for public comment under procedures developed in accordance with ARM 17.8.826.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2003 MAR p. 645, Eff. 4/11/03.

Mont. Admin. R. 17.8.822 Air Quality Analysis

(1) Any application for a permit pursuant to this subchapter shall contain an analysis of ambient air quality in the area that the emissions from the major stationary source or major modification would affect.

(2) For a major stationary source, the analysis shall address each pollutant that it would have the potential to emit in a significant amount.

(3) For a major modification, the analysis shall address each pollutant for which it would result in a significant net emissions increase.

(4) With respect to any such pollutant for which no national ambient air quality standard exists, the analysis shall contain such air quality monitoring data as the department determines is necessary to assess ambient air quality for that pollutant in any area that the emissions of that pollutant would affect.

(5) With respect to any such pollutant (other than nonmethane hydrocarbons) for which such a standard does exist, the analysis shall contain continuous air quality monitoring data gathered for purposes of determining whether emissions of that pollutant would cause or contribute to a violation of the standard or any maximum allowable increase.

(6) The continuous air monitoring data that is required under this rule shall have been gathered over a period of one year and shall represent the year preceding receipt of the application, except that, if the department determines that a complete and adequate analysis can be accomplished with monitoring data gathered over a period shorter than one year (but not to be less than four months) , the data that is required shall have been gathered over at least that shorter period.

(7) The owner or operator of a proposed major stationary source or major modification of volatile organic compounds who satisfies all conditions of subchapter 9 may provide post-approval monitoring data for ozone in lieu of providing preconstruction data as required under (1) .

(8) The owner or operator of a major stationary source or major modification shall, after construction of the stationary source or modification, conduct such ambient monitoring as the department determines is necessary to determine the effect emissions from the stationary source or modification may have, or are having, on air quality in any area.

(9) Nitrogen oxides are presumed to be precursors to PM-2.5 in an area, unless the applicant demonstrates that emissions of nitrogen oxides from sources in the area are not a significant contributor to that area's ambient PM-2.5 concentrations.

(10) Volatile organic compounds and ammonia are presumed not to be precursors to PM-2.5 unless emissions of volatile organic compounds or ammonia from sources in the area are a significant contributor to that area's ambient PM-2.5 concentrations.

(11) PM-2.5 emissions and PM-10 emissions include gaseous emissions from a source or activity that condense to form particulate matter at ambient temperatures.

(12) Applicability determinations for PM-2.5 made prior to January 1, 2011, without accounting for condensable particulate matter, are not subject to (11).

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2004 MAR p. 724, Eff. 4/9/04; AMD, 2009 MAR p. 1784, Eff. 10/16/09; AMD, 2011 MAR p. 2134, Eff. 10/14/11.

Mont. Admin. R. 17.8.823 Source Information

(1) The owner or operator of a proposed source or modification shall submit the permit application fee required pursuant to ARM 17.8.504 and all information necessary to perform any analysis or make any determination required under procedures established in accordance with this subchapter.

(2) Such information shall include the following:

(a) a description of the nature, location, design capacity, and typical operating schedule of the source or modification, including specifications and drawings showing its design and plant layout;

(b) a detailed schedule for construction of the source or modification; and

(c) a detailed description as to what system of continuous emission reduction is planned by the source or modification, emission estimates, and any other information as necessary to determine that BACT as applicable would be applied.

(3) Upon request of the department, the owner or operator shall also provide information regarding the following:

(a) the air quality impact of the source or modification, including meteorological and topographical data necessary to estimate such impact; and

(b) the air quality impacts and the nature and extent of any or all general commercial, residential, industrial, and other growth which has occurred since August 7, 1977, in the area the source or modification would affect.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.824 Additional Impact Analyses

(1) The owner or operator shall provide an analysis of the impairment to visibility, soils, and vegetation that would occur as a result of the source or modification and general commercial, residential, industrial, and other growth associated with the source or modification. The owner or operator need not provide an analysis of the impact on vegetation having no significant commercial or recreational value.

(2) The owner or operator shall provide an analysis of the air quality impact projected for the area as a result of general commercial, residential, industrial, and other growth associated with the source or modification.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 919, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.825 Sources Impacting Federal Class I Areas--Additional Requirements

(1) The department shall transmit to the administrator a copy of each permit application relating to a major stationary source or major modification and provide notice to the administrator of every action related to the consideration of such permit.

(2) The federal land manager and the federal official charged with direct responsibility for management of Class I lands have an affirmative responsibility to protect the air quality related values (including visibility) of any such lands and to consider, in consultation with the administrator, whether a proposed source or modification would have an adverse impact on such values.

(3) Federal land managers with direct responsibility for management of Class I lands may present to the department, after reviewing the department's preliminary determination required under ARM 17.8.759, a demonstration that the emissions from the proposed source or modification would have an adverse impact on the air quality-related values (including visibility) of any federal mandatory Class I lands, notwithstanding that the change in air quality resulting from emissions from such source or modification would not cause or contribute to concentrations which would exceed the maximum allowable increases for a Class I area. If the department concurs with such demonstration, the department may not issue the permit.

(4) The owner or operator of a proposed source or modification may demonstrate to the federal land manager that the emissions from such source would have no adverse impact on the air quality-related values of such lands (including visibility), notwithstanding that the change in air quality resulting from emissions from such source or modification would cause or contribute to concentrations which would exceed the maximum allowable increases for a Class I area. If the federal land manager concurs with such demonstration and so certifies to the department, the department may, provided that applicable requirements are otherwise met, issue the permit with such emission limitations as may be necessary to assure that emissions of sulfur dioxide (SO 2 ), particulate matter, and nitrogen oxides would not exceed the following maximum allowable increases over the minor source baseline concentration for such pollutants:

Pollutant | Maximum allowable increase (micrograms per cubic meter)

PM-2.5 annual arithmetic mean..........................................................................................4 24-hr maximum........................................................................................................9 Particulate matter: PM-10, annual arithmetic mean...........................................................................17 PM-10, 24-hr maximum.........................................................................................30 Sulfur dioxide (SO 2 ): annual arithmetic mean.........................................................................................20 24-hr maximum......................................................................................................91 3-hr maximum......................................................................................................325 Nitrogen dioxide (NO 2 ): annual arithmetic mean.........................................................................................25 ___________________________________________________________________________

(5) The owner or operator of a proposed source or modification which cannot be approved under procedures developed pursuant to (4) may seek to obtain a sulfur dioxide variance from the Governor.

(a) The owner or operator of a proposed source or modification must demonstrate to the Governor that the source or modification cannot be constructed by reason of any maximum allowable increase for sulfur dioxide for periods of 24 hours or less applicable to any Class I area and, in the case of federal mandatory Class I areas, that a variance under this clause would not adversely affect the air quality-related values of the area (including visibility).

(b) The Governor, after consideration of the federal land manager's recommendation (if any) and subject to the concurrence of the federal land manager, may grant, after notice and an opportunity for a public hearing, a variance from such maximum allowable increase.

(c) If the federal land manager does not concur in the Governor's recommendations, the recommendations of the Governor and the federal land manager shall be transferred to the President, and the President may approve the Governor's recommendation if the President finds that such variance is in the national interest.

(d) If such a variance is granted under this rule, the department may issue a permit to such source or modification in accordance with provisions developed pursuant to (6), provided that the applicable requirements of the plan are otherwise met.

(6) In the case of a permit issued under procedures developed pursuant to (5), the source or modification shall comply with emission limitations as may be necessary to assure that emissions of sulfur dioxide from the source or modification would not (during any day on which the otherwise applicable maximum allowable increases are exceeded) cause or contribute to concentrations which would exceed the following maximum allowable increases over the baseline concentration and to assure that such emissions would not cause or contribute to concentrations which exceed the otherwise applicable maximum allowable increases for periods of exposure of 24 hours or less for more than 18 days, not necessarily consecutive, during any annual period:

MAXIMUM ALLOWABLE INCREASE [Micrograms per cubic meter]

| Terrain Areas PERIODS OF EXPOSURE | Low | High 24-hr maximum................................................................................................................ | 36 | 62 3-hr maximum.................................................................................................................. | 130 | 221

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; AMD, 1994 MAR p. 2829, Eff. 10/28/94; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2011 MAR p. 2134, Eff. 10/14/11.

Mont. Admin. R. 17.8.826 Public Participation

(1) The department shall notify all applicants in writing within 30 days of the date of receipt of an application as to the completeness of the application or any deficiency in the application or information submitted as provided in ARM 17.8.759. In the event of such a deficiency, the date of receipt of the application will be the date on which the department received all required information unless the department notifies the applicant in writing within 30 days thereafter that the application is still incomplete. This, and any subsequent notice of incompleteness shall follow the same form and requirements as the original notice of incompleteness.

(2) In accordance with ARM 17.8.759, the department shall:

(a) make a preliminary determination whether construction should be approved, approved with conditions, or disapproved;

(b) make available, in at least one location in each region in which the proposed source would be constructed, a copy of all materials the applicant submitted, a copy of the preliminary determination, and a copy or summary of other materials, if any, considered in making the preliminary determination;

(c) notify the public, by advertisement in a newspaper of general circulation in each region in which the proposed source would be constructed, of the application, the preliminary determination, the degree of increment consumption that is expected from the source or modification, and of the opportunity for comment at a public hearing as well as written public comment;

(d) send a copy of the notice of public comment to the applicant, the administrator, and to officials and agencies having cognizance over the location where the proposed construction would occur, including any local air pollution control agencies, the chief executives of the city and county where the source would be located, any comprehensive regional land use planning agency, and any state, federal land manager, or Indian governing body whose lands may be affected by emissions from the source or modification;

(e) provide opportunity for a public hearing for interested persons to appear and submit written or oral comments on the air quality impact of the source, alternatives to it, the control technology required, and other appropriate considerations;

(f) consider all written comments submitted within a time specified in the notice of public comment and all comments received at any public hearing(s) in making a final decision on the approvability of the application. The department shall make all comments available for public inspection in the same locations where the department made available preconstruction information relating to the proposed source or modification;

(g) make a final determination whether construction should be approved, approved with conditions, or disapproved; and

(h) notify the applicant in writing of the final determination and make such notification available for public inspection at the same locations where the department made available preconstruction information and public comments relating to the source or modification.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2002 MAR p. 3567, Eff. 12/27/02.

Mont. Admin. R. 17.8.827 Source Obligation

(1) Approval to construct shall not relieve any owner or operator of the responsibility to comply fully with applicable provisions and requirements under local, state or federal law.

(2) At such time that a particular source or modification becomes a major stationary source or major modification solely by virtue of a relaxation in any enforceable limitation which was established after August 7, 1980, on the capacity of the source or modification otherwise to emit a pollutant, such as a restriction on hours of operation, then the requirements of ARM 17.8.819 through 17.8.828 shall apply to the source or modification as though construction had not yet commenced on the source or modification.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.828 Innovative Control Technology

(1) An owner or operator of a proposed major stationary source or major modification may request the department approve a system of innovative control technology.

(2) The department may, with the consent of the governor of any other affected state, determine that the source or modification may employ a system of innovative control technology, if:

(a) the proposed control system would not cause or contribute to an unreasonable risk to public health, welfare, or safety in its operation or function;

(b) the owner or operator agrees to achieve a level of continuous emissions reduction equivalent to that which would have been required under ARM 17.8.819(2) , by a date specified by the department, provided that such date may not be later than four years from the time of start-up or seven years from permit issuance;

(c) the source or modification would meet the requirements equivalent to those in ARM 17.8.819 and 17.8.820, based on the emissions rate that the stationary source employing the system of innovative control technology would be required to meet on the date specified by the department;

(d) the source or modification would not, before the date specified by the department, cause or contribute to any violation of an applicable national ambient air quality standard or impact any area where an applicable increment is known to be violated;

(e) all other applicable requirements including those for public participation have been met; and

(f) the provisions of ARM 17.8.825 (relating to Class I areas) have been satisfied with respect to all periods during the life of the source or modification.

(3) The department shall withdraw any approval to employ a system of innovative control technology made under this subchapter if:

(a) the proposed system fails by the specified date to achieve the required continuous emissions reduction rate;

(b) the proposed system fails before the specified date so as to contribute to an unreasonable risk to public health, welfare, or safety; or

(c) the department decides at any time that the proposed system is unlikely to achieve the required level of control or to protect the public health, welfare, or safety.

(4) If a source or modification fails to meet the required level of continuous emissions reduction within the specified time period, or if the approval is withdrawn in accordance with (3) , the department may allow the source or modification up to an additional three years to meet the requirement for the application of BACT through use of a demonstrated system of control.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285.

Subchapter 17.8.9 Permit Requirements for Major Stationary Sources or Major Modifications Locating Within Nonattainment Areas

Mont. Admin. R. 17.8.901 Definitions

In this subchapter the following definitions apply:

(1) "Actual emissions" means the actual rate of emissions of a pollutant from an emissions unit as determined in accordance with (1) (a) through (c) .

(a) Actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a two-year period which precedes the particular date and which is representative of normal source operation. The department may determine that a different time is more representative of normal source operation. Actual emissions shall be calculated using the unit's actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period.

(b) If the department is unable to determine actual emissions consistent with (1) (a) , the department may presume that the source-specific allowable emissions for the unit are equivalent to the actual emissions of the unit.

(c) For any emissions unit which has not begun normal operations on the particular date, actual emissions shall equal the potential to emit of the unit on that date.

(a) the applicable standards as set forth in ARM 17.8.340 or 17.8.341;

(b) the applicable emissions limitation contained in the Montana State Implementation Plan, including those with a future compliance date; or

(c) the emissions rate specified as a federally enforceable permit condition, including those with a future compliance date.

(3) "Begin actual construction" means, in general, initiation of physical on-site construction activities of a permanent nature on an emissions unit. Such activities include, but are not limited to, installation of building supports and foundations, laying of underground pipework, and construction of permanent storage structures. With respect to a change in method of operation, this term refers to those on-site activities other than preparatory activities which mark the initiation of the change.

(4) "Building, structure, facility, or installation" means all of the pollutant-emitting activities which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control) , except the activities of any vessel. Pollutant-emitting activities shall be considered as part of the same industrial grouping if they belong to the same major group (i.e., having the same two-digit code) as described in the Standard Industrial Classification Manual, 1987.

(5) "Commence", as applied to construction of a major stationary source or major modification, means that the owner or operator has all necessary preconstruction approvals or permits and either has:

(a) begun, or caused to begin, a continuous program of actual on-site construction of the source, to be completed within a reasonable time; or

(6) "Construction" means any physical change or change in the method of operation (including fabrication, erection, installation, demolition, or modification of an emissions unit) which would result in a change in actual emissions.

(7) "Emissions unit" means any part of a stationary source which emits or would have the potential to emit any pollutant subject to regulation under the FCAA.

(8) "Federally enforceable" means all limitations and conditions which are enforceable by the administrator, including those requirements developed pursuant to 40 CFR Parts 60 and 61, requirements within the Montana State Implementation Plan, and any permit requirement established pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR Part 51, subpart I, including operating permits issued under an EPA-approved program that is incorporated into the Montana State Implementation Plan and expressly requires adherence to any permit issued under such program.

(9) "Fugitive emissions" means those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.

(10) "Lowest achievable emission rate" means, for any source, the more stringent rate of emissions based on the following:

(a) the most stringent emissions limitation which is contained in the implementation plan of any state for such class or category of stationary source, unless the owner or operator of the proposed stationary source demonstrates that such limitations are not achievable; or

(b) the most stringent emissions limitation which is achieved in practice by such class or category of stationary sources. This limitation, when applied to a modification, means the lowest achievable emissions rate for the new or modified emissions units within a stationary source. In no event shall the application of the term permit a proposed new or modified stationary source to emit any pollutant in excess of the amount allowable under applicable new source standards of performance under 40 CFR Parts 60 and 61.

(11) "Major modification" means any physical change in, or change in the method of, operation of a major stationary source that would result in a significant net emissions increase of any pollutant subject to regulation under the FCAA.

(a) Any net emissions increase that is considered significant for volatile organic compounds is considered significant for ozone.

(b) A physical change in, or change in the method of, operation does not include:

(i) routine maintenance, repair, and replacement;

(ii) use of an alternative fuel or raw material by reason of an order under (2)(a) and (2)(b) of the Energy Supply and Environmental Coordination Act of 1974, 15 USC 791, et seq. (1988), or by reason of a natural gas curtailment plan pursuant to the Federal Power Act, 16 USC 791a, et seq. (1988 and Supp. III 1991);

(iii) use of an alternative fuel by reason of an order or rule under section 125 of the FCAA;

(iv) use of an alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solid waste;

(v) use of an alternative fuel or raw material by a stationary source which:

(A) the source was capable of accommodating before December 21, 1976, unless such change would be prohibited under any federally enforceable permit condition which was established after December 12, 1976, pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR Part 51, subpart I, or section 51.166; or

(B) the source is approved to use under any permit issued under regulations approved pursuant to 40 CFR 51.165;

(vi) an increase in the hours of operation or in the production rate, unless such change is prohibited under any federally enforceable air quality preconstruction permit condition which was established after December 21, 1976 pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR Part 51, subpart I, or section 51.166;

(vii) any change in ownership at a stationary source.

(12) The following apply to the definition of the term "major stationary source":

(a) "major stationary source" means:

(i) any stationary source of air pollutants which emits, or has the potential to emit, 100 tons per year or more of any pollutant subject to regulation under the FCAA; or

(ii) any stationary source of air pollutants located in a serious particulate matter (PM-10) nonattainment area which emits, or has the potential to emit, 70 tons per year or more of PM-10; or

(iii) any physical change that would occur at a stationary source not qualifying under (12)(a)(i) or (ii) as a major stationary source, if the change would constitute a major stationary source by itself.

(b) The fugitive emissions of a stationary source will not be included in determining, for any of the purposes of this subchapter, whether it is a major stationary source, unless the source belongs to one of the following categories of stationary sources:

(i) coal cleaning plants (with thermal dryers) ;

(ii) kraft pulp mills;

(iii) Portland cement plants;

(iv) primary zinc smelters;

(v) iron and steel mills;

(vi) primary aluminum ore reduction plants;

(vii) primary copper smelters;

(viii) municipal incinerators capable of charging more than 250 tons of refuse per day;

(ix) hydrofluoric, sulfuric, or nitric acid plants;

(x) petroleum refineries;

(xi) lime plants;

(xii) phosphate rock processing plants;

(xiii) coke oven batteries;

(xiv) sulfur recovery plants;

(xv) carbon black plants (furnace process) ;

(xvi) primary lead smelters;

(xvii) fuel conversion plants;

(xviii) sintering plants;

(xix) secondary metal production plants;

(xx) chemical process plants;

(xxi) fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal units per hour heat input;

(xxii) petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels;

(xxiii) taconite ore processing plants;

(xxiv) glass fiber processing plants;

(xxv) charcoal production plants;

(xxvi) fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input; and

(xxvii) any other stationary source category which, as of August 7, 1980, is being regulated under sections 111 or 112 of the FCAA.

(13) "Necessary preconstruction approvals or permits" means those permits or approvals required under federal air quality control laws and regulations and those air quality control laws and regulations which are part of the Montana State Implementation Plan.

(14) The following apply to the definition of the term "net emissions increase":

(a) "net emissions increase" means the amount by which the sum of the following exceeds zero:

(i) any increase in actual emissions from a particular physical change or change in the method of operation at a stationary source; and

(ii) any other increases and decreases in actual emissions at the source that are contemporaneous with the particular change and are otherwise creditable.

(c) An increase or decrease in actual emissions is creditable only if the department has not relied on it in issuing a permit for the source under regulations approved pursuant to 40 CFR 51.165, which permit is in effect when the increase in actual emissions from the particular change occurs.

(d) An increase in actual emissions is creditable only to the extent that the new level of actual emissions exceeds the old level.

(e) A decrease in actual emissions is creditable only to the extent that:

(i) the old level of actual emissions or the old level of allowable emissions, whichever is lower, exceeds the new level of actual emissions;

(ii) it is federally enforceable at and after the time that actual construction on the particular change begins;

(iii) the department has not relied on it in issuing any Montana air quality permit under regulations approved pursuant to 40 CFR Part 51, subpart I (July 1, 1993 ed.), or the state has not relied on it in demonstrating attainment or reasonable further progress; and

(iv) it has approximately the same qualitative significance for public health and welfare as that attributed to the increase from the particular change.

(f) An increase that results from a physical change at a source occurs when the emissions unit on which construction occurred becomes operational and begins to emit a particular pollutant. Any replacement unit that requires shakedown becomes operational only after a reasonable shakedown period, not to exceed 180 days.

(15) "Potential to emit" means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design only if the limitation or the effect it would have on emissions is federally enforceable. Secondary emissions do not count in determining the potential to emit of a stationary source.

(16) "Precursor" means:

(a) volatile organic compounds and nitrogen oxides in ozone nonattainment areas; and

(b) sulfur dioxide (SO 2 ) in PM-2.5 nonattainment areas.

(17) "Reasonable further progress" means annual incremental reductions in emissions of the applicable air pollutant which are required by the FCAA or the administrator for attainment of the applicable national ambient air quality standard by the date required in section 172(a) of the FCAA.

(18) "Secondary emissions" means emissions which would occur as a result of the construction or operation of a major stationary source or major modification, but do not come from the major stationary source or major modification itself. For the purpose of this chapter, secondary emissions must be specific, well defined, quantifiable, and impact the same general area as the stationary source or modification which causes the secondary emissions. Secondary emissions include emissions from any offsite support facility which would not be constructed or increase its emissions except as a result of the construction or operation of the major stationary source or major modification. Secondary emissions do not include any emissions which come directly from a mobile source such as emissions from the tailpipe of a motor vehicle, from a train, or from a vessel.

(19) "Significant" means, in reference to a net emissions increase or the potential of a source to emit any of the following pollutants, a rate of emissions that would equal or exceed any of the following rates:

Pollutant Emission Rate

Carbon monoxide: 100 tons per year (tpy)

Nitrogen oxides: 40 tpy

Sulfur dioxide (SO 2 ): 40 tpy

Particulate matter: 25 tpy of particulate matter emissions or

15 tpy of PM-10 emissions

PM-2.5 10 tpy of direct PM-2.5 emissions, 40 tpy of sulfur dioxide (SO 2 ) emissions, or 40 tpy of nitrogen oxide emissions unless demonstrated not to be a PM-2.5 precursor

Lead: 0.6 tpy

(20) "Stationary source" means any building, structure, facility, or installation which emits or may emit any air pollutant subject to regulation under the FCAA.

(21) "Volatile organic compounds (VOC)" means the same as defined in 40 CFR 51.100(s).

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; AMD, 1995 MAR p. 2410, Eff. 11/10/95; AMD, 1996 MAR p. 1843, Eff. 7/4/96; AMD, 1996 MAR p. 1844, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1998 MAR p. 1725, Eff. 6/26/98; AMD, 2002 MAR p. 1747, Eff. 6/28/02; AMD, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2003 MAR p. 645, Eff. 4/11/03; AMD, 2007 MAR p. 1663, Eff. 10/26/07; AMD, 2008 MAR p. 2267, Eff. 10/24/08; AMD, 2011 MAR p. 2134, Eff. 10/14/11.

Mont. Admin. R. 17.8.902 Incorporation by Reference

(1) For the purposes of this subchapter, the department adopts and incorporates by reference the following:

(a) 40 CFR Part 60, pertaining to standards of performance for new stationary sources;

(b) 40 CFR Part 61, pertaining to emission standards for hazardous air pollutants;

(d) section 173 of the FCAA, as codified in 42 USC 7503, pertaining to permit requirements for permit programs in nonattainment areas;

(e) sections 188 through 190 of the FCAA, as codified in 42 USC 7513 through 7513b, pertaining to additional requirements for particulate matter in nonattainment areas; and

(f) the Standard Industrial Classification Manual (1987), Office of Management and Budget (PB 87-100012) or the North American Industry Classification System of 2022 at https://www.census.gov/naics/, pertaining to a system of industrial classification and definition based upon the composition and structure of the economy.

(2) Copies of materials incorporated by reference in this subchapter may be obtained as referenced in ARM 17.8.102(3) and (4).

History

Authorizing statute(s): 75-2-112, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; AMD, 1994 MAR p. 2828, Eff. 10/28/94; AMD, 1996 MAR p. 1844, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1997 MAR p. 1581, Eff. 9/9/97; AMD, 2001 MAR p. 1468, Eff. 8/10/01; AMD, 2003 MAR p. 645, Eff. 4/11/03; AMD, 2005 MAR p. 959, Eff. 6/17/05; AMD, 2006 MAR p. 1956, Eff. 8/11/06; AMD, 2007 MAR p. 1663, Eff. 10/26/07; AMD, 2009 MAR p. 1784, Eff. 10/16/09; AMD, 2018 MAR p. 438, Eff. 2/24/18; AMD, 2024 MAR p. 253, Eff. 2/10/24; AMD, 2024 MAR p. 2056, Eff. 8/24/24.

Mont. Admin. R. 17.8.904 When Montana Air Quality Permit Required

(1) Any new major stationary source or major modification which would locate anywhere in an area designated as nonattainment for a national ambient air quality standard under 40 CFR 81.327 and which is major for the pollutant for which the area is designated nonattainment, shall, prior to construction, obtain from the department a Montana air quality permit in accordance with subchapter 7 and all requirements contained in this subchapter if applicable. A major stationary source or major modification exempted from the requirements of subchapter 7 under ARM 17.8.744 and 17.8.745 which would locate anywhere in an area designated as nonattainment for a national ambient air quality standard under 40 CFR 81.327 and which is major for the pollutant for which the area is designated nonattainment, shall, prior to construction, still be required to obtain a Montana air quality permit and comply with the requirements of ARM 17.8.748, 17.8.749, 17.8.756, 17.8.759, and 17.8.760 and with all applicable requirements of this subchapter.

(2) Any source or modification located anywhere in an area designated as nonattainment for a national ambient air quality standard under 40 CFR 81.327 which becomes a major stationary source or major modification for the pollutant for which the area is designated nonattainment solely by virtue of a relaxation in any enforceable limitation which was established after August 7, 1980, on the capacity of the source or modification otherwise to emit a pollutant (such as a restriction on hours of operation) shall obtain from the department a Montana air quality permit as though construction had not yet commenced on the source or modification, in accordance with subchapter 7 and all requirements of this subchapter.

(3) Sulfur dioxide (SO 2 ) is a precursor to PM-2.5 in a PM-2.5 nonattainment area.

(4) Nitrogen oxides are presumed to be precursors to PM-2.5 in a PM-2.5 nonattainment area, unless the applicant demonstrates that emissions of nitrogen oxides from sources in the PM-2.5 nonattainment area are not a significant contributor to that area's ambient PM-2.5 concentrations.

(5) Volatile organic compounds and ammonia are presumed not to be precursors to PM-2.5 in a PM-2.5 nonattainment area unless emissions of volatile organic compounds or ammonia from sources in the area are a significant contributor to that area's ambient PM-2.5 concentrations.

(6) PM-2.5 emissions and PM-10 emissions shall include gaseous emissions from a source or activity that condense to form particulate matter at ambient temperatures.

(7) Applicability determinations made prior to January 1, 2011, without accounting for condensable particulate matter, are not subject to (6).

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2011 MAR p. 2134, Eff. 10/14/11; AMD, 2018 MAR p. 438, Eff. 2/24/18.

Mont. Admin. R. 17.8.905 Additional Conditions of Montana Air Quality Permit

(1) The department shall not issue a Montana air quality permit required under ARM 17.8.904, unless the requirements of subchapter 7 and the following additional conditions are met:

(a) The permit for the new source or modification contains an emission limitation which constitutes the lowest achievable emissions rate for such source.

(b) The applicant certifies that all existing major sources owned or operated by the applicant (or any entity controlling, controlled by, or under common control with the applicant) in the state of Montana are in compliance with all applicable emission limitations and standards under the FCAA or are in compliance with an expeditious schedule of compliance which is federally enforceable or contained in a court decree.

(c) The new source obtains from existing sources emission reductions (offsets) , expressed in tons per year, which provide both a positive net air quality benefit in the affected area in accordance with ARM 17.8.906(7) through (9) , and a ratio of required emission offsets to the proposed source's emissions of 1:1 or greater. The emissions reductions (offsets) required under this subsection must be:

(i) obtained from existing sources in the same nonattainment area as the proposed source, except as specified in ARM 17.8.906(6) (whether or not they are under the same ownership) ;

(ii) subject to the provisions of ARM 17.8.906;

(iii) sufficient to assure that there will be reasonable progress toward attainment of the applicable national ambient air quality standard;

(iv) for the same pollutant (e.g., carbon monoxide increases may only be offset against carbon monoxide reductions) ;

(v) permanent, quantifiable, and federally enforceable; and

(vi) reductions in actual emissions.

(d) The Montana air quality permit contains a condition requiring the source to submit documentation, prior to commencement of operation that the offsets required in the permit have occurred.

(e) The applicant submits an analysis of alternative sites, sizes, production processes and environmental control techniques for such proposed source that demonstrates that benefits of the proposed source significantly outweigh the environmental and social costs imposed as a result of its location, construction or modification.

(2) Any growth allowances which were included in an applicable state implementation plan prior to November 15, 1990 for the purpose of allowing for construction or operation of a new major stationary source or major modification shall not be valid for use in any area that received or receives a notice from the administrator that the applicable state implementation plan containing such allowances is substantially inadequate.

(3) The requirements of (1) (a) and (c) , shall only apply to those pollutants for which the major stationary source or major modification is major and for which the area has been declared nonattainment.

(4) The issuance of a Montana air quality permit shall not relieve any owner or operator of the responsibility to comply fully with applicable provisions of the Montana State Implementation Plan and any other requirements contained in or pursuant to local, state or federal law.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2003 MAR p. 645, Eff. 4/11/03.

Mont. Admin. R. 17.8.906 Baseline for Determining Credit for Emissions and Air Quality Offsets

(1) Pursuant to section 7503 of the FCAA, emission offsets in nonattainment areas are required to be in the form of, and against, actual emissions. Actual emissions preceding the filing of the application to construct or modify a source are the baseline for determining credit for emission and air quality offsets, as determined in compliance with this subchapter.

(2) Where the emission limitation under the Montana State Implementation Plan allows greater emissions than the actual emissions of the source, emission offset credit will be allowed only for control below the actual emissions.

(3) For an existing fuel combustion source, credit shall be based on the actual emissions for the type of fuel being burned at the time the application to construct is filed. If the existing source commits to switch to a cleaner fuel at some future date, emissions offsets credit based on the actual emissions for the fuels involved is not acceptable, unless the Montana air quality permit is conditioned to require the use of a specified alternative control measure which would achieve the same degree of emissions reduction should the source switch back to a dirtier fuel at some later date. The department shall ensure that adequate long-term supplies of the new fuel are available before granting emissions offset credit for fuel switches.

(4) Emission reductions achieved by shutting down an existing source or curtailing production or operating hours below baseline levels may be generally credited if such reductions are permanent, quantifiable, and federally enforceable, and if the area has an EPA-approved attainment plan. In addition, the shutdown or curtailment is creditable only if it occurred on or after the date specified for this purpose in the Montana State Implementation Plan, and if such date is on or after the date of the most recent emissions inventory used in the plan's demonstration of attainment. Where the plan does not specify a cutoff date for shutdown credits, the date of the most recent emissions inventory or attainment demonstration, as the case may be, shall apply. However, in no event may credit be given for shutdowns which occurred prior to August 7, 1977. For purposes of this (4) , the department may choose to consider a prior shutdown or curtailment to have occurred after the date of its most recent emissions inventory, if the inventory explicitly includes as current "existing" emissions the emissions from such previously shutdown or curtailed sources. Such reductions may be credited in the absence of an approved attainment demonstration only if the shutdown or curtailment occurred on or after the date the new source's air quality application is filed, or if the applicant can establish that the proposed new source is a replacement for the shutdown or curtailed source, and the cutoff date provisions described earlier in this (4) are observed.

(5) No emissions credit shall be allowed for replacing one hydrocarbon compound with another of lesser reactivity, except for those compounds listed in Table 1 of EPA's "Recommended Policy on Control of Volatile Organic Compounds" (42 FR 35314, July 8, 1977) .

(6) All emission reductions claimed as offset credit shall be federally enforceable.

(7) Emission offsets may only be obtained from the same source or other sources in the same nonattainment area, except that the department may allow the owner or operator of a proposed source to obtain such emission reductions in another nonattainment area if:

(a) the other nonattainment area has an equal or higher nonattainment classification for the same pollutant than the area in which the proposed source will locate; and

(b) emissions from the other nonattainment area contribute to a violation of a national ambient air quality standard in the nonattainment area in which the proposed source will locate.

(8) In the case of emission offsets involving oxides of nitrogen, offsets will generally be acceptable if obtained from within the same nonattainment area as the new source or from other nonattainment areas which meet the requirements of (6) . However, if the proposed offsets would be from sources located at considerable distances from the new source, the department shall increase the ratio of the required offsets and require a showing by the applicant that nearby offsets were investigated and reasonable alternatives were not available.

(9) In the case of emission offsets involving sulfur dioxide, particulates, and carbon monoxides, areawide mass emission offsets are not acceptable and the applicant shall perform atmospheric simulation modeling to ensure that the emission offsets provide a positive net air quality benefit. However, the department may exempt the applicant from the atmospheric simulation modeling requirement if the emission offsets provide a positive net air quality benefit, are obtained from an existing source on the same premises or in the immediate vicinity of the new source, and the pollutants disperse from substantially the same effective stack height.

(10) Credits for an emissions reduction can be claimed to the extent that the department has not relied on it in issuing any Montana air quality permit under subchapters 7, 8, 9, and 10, or Montana has not relied on it in a demonstration of attainment or reasonable further progress.

(11) Production of and equipment used in the exploration, production, development, storage, or processing of oil and natural gas from stripper wells, are exempt from the additional permitting requirements of subchapter I, part D, subpart IV of the FCAA, and the application of these additional permitting requirements in this subchapter and subchapter 10 to any nonattainment area designated as serious for particulate matter (PM-10) . These sources must comply with all other requirements of section 173 of the FCAA and this subchapter and subchapter 10.

(12) Emission reductions otherwise required by any applicable rule, regulation, Montana air quality permit condition or the FCAA are not creditable as emissions reductions for the purposes of the offset requirement in ARM 17.8.905(1) (c) . Incidental emission reductions which are not otherwise required by any applicable rule, regulation, Montana air quality permit or the FCAA shall be creditable as emission reductions for such purposes if such emission reduction meets the requirements of this rule.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2002 MAR p. 3567, Eff. 12/27/02.

Subchapter 17.8.10 Preconstruction Permit Requirements for Major Stationary Sources or Major Modifications Locating Within Attainment or Unclassified Areas

Mont. Admin. R. 17.8.1001 Definitions

For the purpose of this subchapter:

(1) The definitions contained in ARM 17.8.901 shall be applicable.

(2) "Cause or contribute" means, in regard to an ambient air quality impact caused by emissions from a major source or modification, an ambient air quality impact that exceeds the significance level as defined in (3) , for any pollutant at any location.

(3) "Significance level" means, for any of the following pollutants, an ambient air quality impact greater than any of the averages cited below:

(a) for sulfur dioxide:

(i) an annual average of 1.0 micrograms per cubic meter (µg/m 3 ) ;

(ii) a 24-hour average of 5.0 µg/m 3 ; or

(iii) a three-hour average of 25.0 µg/m 3 .

(b) for PM-10:

(i) an annual average of 1.0 µg/m 3 ; or

(ii) a 24-hour average of 5.0 µg/m 3 .

(d) for carbon monoxide:

(i) an eight-hour average of 0.5 milligrams per cubic meter (mg/m 3 ) ; or

(ii) a one-hour average of 2.0 mg/m 3 .

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.1002 Incorporation by Reference

(1) For the purposes of this subchapter, the department adopts and incorporates by reference the following:

(a) 40 CFR Part 60, pertaining to standards of performance for new stationary sources;

(b) 40 CFR Part 61, pertaining to emission standards for hazardous air pollutants;

(d) section 173 of the FCAA, as codified in 42 USC 7503, pertaining to requirements for permit programs in nonattainment areas;

(e) sections 188 through 190 of the FCAA, as codified in 42 USC 7513 through 7513b, pertaining to additional requirements for particulate matter in nonattainment areas; and

(f) the Standard Industrial Classification Manual (1987), Office of Management and Budget (PB 87-100012) or the North American Industry Classification System of 2022 at https://www.census.gov/naics/, pertaining to a system of industrial classification and definition based upon the composition and structure of the economy.

(2) Copies of materials incorporated by reference in this subchapter may be obtained as referenced in ARM 17.8.102(3) and (4).

History

Authorizing statute(s): 75-2-112, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; AMD, 1994 MAR p. 2828, Eff. 10/28/94; AMD, 1996 MAR p. 1844, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1997 MAR p. 1581, Eff. 9/9/97; AMD, 2001 MAR p. 1468, Eff. 8/10/01; AMD, 2003 MAR p. 645, Eff. 4/11/03; AMD, 2005 MAR p. 959, Eff. 6/17/05; AMD, 2006 MAR p. 1956, Eff. 8/11/06; AMD, 2007 MAR p. 1663, Eff. 10/26/07; AMD, 2009 MAR p. 1784, Eff. 10/16/09; AMD, 2018 MAR p. 438, Eff. 2/24/18; AMD, 2024 MAR p. 253, Eff. 2/10/24; AMD, 2024 MAR p. 2056, Eff. 8/24/24.

Mont. Admin. R. 17.8.1004 When Montana Air Quality Permit Required

(1) Any new major stationary source or major modification which would locate anywhere in an area designated as attainment or unclassified for a national ambient air quality standard under 40 CFR 81.327 and which would cause or contribute to a violation of a national ambient air quality standard for any pollutant at any locality that does not or would not meet the national ambient air quality standard for that pollutant, shall obtain from the department a Montana air quality permit prior to construction in accordance with subchapters 7 and 8 and all requirements contained in this subchapter if applicable. A major stationary source or major modification exempted from the requirements of subchapter 7 under ARM 17.8.744 or 17.8.745 which would locate anywhere in an area designated as attainment or unclassified for a national ambient air quality standard under 40 CFR 81.327 and which would cause or contribute to a violation of a national ambient air quality standard for any pollutant at any locality that does not or would not meet the national ambient air quality standard for that pollutant, shall, prior to construction, still be required to obtain a Montana air quality permit and comply with the requirements of ARM 17.8.748, 17.8.749, 17.8.756, 17.8.759 and 17.8.760 and other applicable requirements of this subchapter.

(2) In the absence of emission reductions compensating for the adverse impact of the source, the Montana air quality permit will be denied.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; AMD, 1995 MAR p. 535, Eff. 4/14/95; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2003 MAR p. 106, Eff. 12/27/02.

Mont. Admin. R. 17.8.1005 Additional Conditions of Montana Air Quality Permit

(1) The department will not issue a Montana air quality permit required under ARM 17.8.1004 unless the requirements of subchapters 7 and 8 and the following additional conditions are met:

(a) the new source is required to meet an emission limitation, as more fully described in (2) and (3) , which specifies the lowest achievable emission rate for such source;

(b) the applicant certifies that all existing major stationary sources owned or operated by the applicant (or any entity controlling, controlled by, or under common control with the applicant) in the state of Montana are in compliance with all applicable emission limitations and standards under the FCAA or are in compliance with an expeditious schedule of compliance which is federally enforceable or contained in a court decree;

(c) the new source must obtain from existing sources emission reductions (offsets) , expressed in tons per year, which provide both a positive net air quality benefit in the affected area as determined in accordance with (3) , ARM 17.8.1006 and 17.8.1007, and a ratio of required emission offsets to the proposed source's emissions of 1:1 or greater; and

(d) the Montana air quality permit contains a condition requiring the source to submit documentation, prior to commencement of operation that the offsets required in the Montana air quality permit have occurred.

(2) If the department determines that technological or economic limitations on the application of measurement methodology to a particular class of sources would make the imposition of an enforceable numerical emission standard infeasible, the department may, instead, prescribe a design, operational or equipment standard. In such cases, the department shall make its best estimate as to the emission rate that will be achieved, and must take such steps as are necessary to ensure that this rate is federally enforceable. Any Montana air quality permit issued without an enforceable numerical emission standard must contain enforceable conditions which assure that the design characteristics or equipment will be properly maintained (or that the operational conditions will be properly performed) so as to continuously achieve the assumed degree of control. As used in this subchapter, the term "emission limitation" shall also include such design, operational, or equipment standards.

(3) The requirements of (1) (a) and (c) , shall only apply to those pollutants for which the major stationary source or major modification is major and for which the source is causing or contributing to a violation of a national ambient air quality standard.

(4) If the emissions from the proposed source would cause a new violation of a national ambient air quality standard but would not contribute to an existing violation, the new source must meet a more stringent and federally enforceable emission limitation, as more fully described in (2) , and/or control existing sources below allowable levels through federally enforceable methods so that the source will not cause a violation of any national ambient air quality standard. The new emission limitation must be accomplished prior to the new source's startup date.

(5) The issuance of a Montana air quality permit does not relieve any owner or operator of the responsibility to comply fully with applicable provisions of the Montana State Implementation Plan and any other requirements of local, state or federal law.

(6) Emission reductions (air quality offsets) under (1) (c) must also comply with the additional requirements for determining the baseline and magnitude of emission reductions (air quality offsets) contained in ARM 17.8.905(1) (c) and 17.8.906, except that 17.8.906(7) through (9) shall not be applicable to offsets required under this subchapter.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; AMD, 1995 MAR p. 535, Eff. 4/14/95; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2002 MAR p. 1747, Eff. 6/28/02; AMD, 2002 MAR p. 3567, Eff. 12/27/02.

Mont. Admin. R. 17.8.1006 Review of Specified Sources for Air Quality Impact

(1) For "stable" air pollutants (i.e., sulfur dioxide, particulate matter and carbon monoxide) , the determination of whether a source will cause or contribute to a violation of a national ambient air quality standard generally should be made on a case-by-case basis as of the proposed new source's startup date using the source's allowable emissions in an atmospheric simulation model (unless a source will clearly impact on a receptor which exceeds a national ambient air quality standard) .

(2) For sources of nitrogen oxides, the initial determination of whether a source would cause or contribute to a violation of the national ambient air quality standard for nitrogen dioxide should be made using an atmospheric simulation model assuming all the nitric oxide emitted is oxidized to nitrogen dioxide by the time the plume reaches ground level. The initial concentration estimates may be adjusted if adequate data are available to account for the expected oxidation rate.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.1007 Baseline for Determining Credit for Emissions and Air Quality Offsets

(1) For the purposes of this subchapter, the following requirements apply:

(a) The requirements of ARM 17.8.906, except that ARM 17.8.906(7) through (9) do not apply to offsets required under this subchapter;

(b) Emission offsets must be reductions in actual emissions for the same pollutant obtained from the same source or other sources which are located in the same general area of the proposed major stationary source or modification, and that contribute to or would contribute to the violation of the national ambient air quality standard;

(c) In meeting the emissions offset requirements in this subchapter, emissions offsets for direct PM-2.5 emissions or emissions of precursors of PM-2.5 may be satisfied by offsetting reductions in direct PM-2.5 emissions or emissions of any precursor;

(d) In the case of emission offsets involving volatile organic compounds and oxides of nitrogen, offsets will generally be acceptable if they are obtained from within the areas specified in (1)(b). If the proposed offsets would be from sources located at considerable distances from the new source, the department shall increase the ratio of the required offsets and require a showing by the applicant that nearby offsets were investigated and reasonable alternatives were not available;

(e) In the case of emission offsets involving sulfur dioxide (SO 2 ), particulates, and carbon monoxide, areawide mass emission offsets are not acceptable, and the applicant shall perform atmospheric simulation modeling to ensure that emission offsets provide a positive net air quality benefit. The department may exempt the applicant from the atmospheric simulation modeling requirement if the emission offsets provide a positive net air quality benefit, are obtained from an existing source on the same premises or in the immediate vicinity of the new source, and the pollutants disperse from substantially the same effective stack height; and

(f) No emissions credit shall be allowed for replacing one hydrocarbon compound with another of lesser reactivity, except for those compounds listed in Table 1 of EPA's "Recommended Policy on Control of Volatile Organic Compounds"

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-202, 75-2-203, 75-2-204, MCA
History: NEW, 1993 MAR p. 2919, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2007 MAR p. 1663, Eff. 10/26/07; AMD, 2008 MAR p. 2267, Eff. 10/24/08; AMD, 2011 MAR p. 2134, Eff. 10/14/11.

Subchapter 17.8.11 Visibility Impact Assessment

Mont. Admin. R. 17.8.1101 Definitions

For the purposes of this subchapter:

(1) "Federal Class I area" means those areas listed in ARM 17.8.806(1) and any other federal land that is classified or reclassified as Class I.

(2) "Adverse impact on visibility" means visibility impairment which the department determines does or is likely to interfere with the management, protection, preservation, or enjoyment of the visual experience of visitors within a federal Class I area. The determination must be made on a case-by-case basis taking into account the geographic extent, intensity, duration, frequency, and time of visibility impairment, and how these factors correlate with times of visitor use of the federal Class I area, and the frequency and occurrence of natural conditions that reduce visibility.

(3) "Visibility impairment" means any humanly perceptible change in visual range, contrast, or coloration from that which would have existed under natural conditions. Natural conditions include fog, clouds, windblown dust from natural sources, rain, naturally ignited wildfires, and natural aerosols.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, 75-2-204, 75-2-211, MCA
History: NEW, 1985 MAR p. 1326, Eff. 9/13/85; AMD, 1995 MAR p. 535, Eff. 4/14/95; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.1102 Incorporation by Reference

(1) For the purposes of this subchapter, the department adopts and incorporates by reference the following:

(a) 40 CFR 81.327, providing attainment status designation for Montana pursuant to section 107 of the FCAA;

(b) "Workbook for Plume Visual Impact Screening and Analysis" (Revised) (EPA-454/R-92/023), specifying methods for estimating visibility impairment.

(2) Copies of materials incorporated by reference in this subchapter may be obtained as referenced in ARM 17.8.102(3) and (4).

History

Authorizing statute(s): 75-2-112, MCA
Implementing statute(s): Title 75, chapter 2, MCA
History: NEW, 1996 MAR p. 1844, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1997 MAR p. 1581, Eff. 9/9/97; AMD, 2005 MAR p. 959, Eff. 6/17/05; AMD, 2007 MAR p. 1663, Eff. 10/26/07; AMD, 2018 MAR p. 438, Eff. 2/24/18; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.8.1103 Applicability--Visibility Requirements

(1) This subchapter is applicable to the owner or operator of a proposed major stationary source, as defined by ARM 17.8.801(22), or of a source proposed for a major modification, as defined by ARM 17.8.801(20) proposing to construct such a source or modification after July 1, 1985, in any area within the state of Montana designated as attainment, unclassified, or nonattainment, in accordance with 40 CFR 81.327, incorporated by reference in ARM 17.8.1102. The requirements of this subchapter shall be integrated with the requirements of ARM Title 17, chapter 8, subchapters 7 (Permit, Construction, and Operation of Air Contaminant Sources) and 8 (Prevention of Significant Deterioration of Air Quality).

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, 75-2-204, 75-2-211, MCA
History: NEW, 1985 MAR p. 1326, Eff. 9/13/85; AMD, 1995 MAR p. 535, Eff. 4/14/95; AMD, 1996 MAR p. 1844, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.1106 Visibility Impact Analysis

(1) The owner or operator of a major stationary source or modification as described in ARM 17.8.1103, shall demonstrate that the actual emissions [as defined by ARM 17.8.801(1)] from the major source or modification (including fugitive emissions) will not cause or contribute to adverse impact on visibility within any federal Class I area or the department shall not issue a permit.

(2) The owner or operator of a proposed major stationary source or major modification shall submit all information necessary to support any analysis or demonstration required by these rules pursuant to ARM 17.8.748.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, 75-2-204, 75-2-211, MCA
History: NEW, 1985 MAR p. 1326, Eff. 9/13/85; AMD, 1995 MAR p. 535, Eff. 4/14/95; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2002 MAR p. 3567, Eff. 12/27/02.

Mont. Admin. R. 17.8.1107 Visibility Models

(1) All estimates of visibility impact required under this subchapter shall be based on those models contained in "Workbook for Plume Visual Impact Screening and Analysis" (Revised) (EPA-454/R-92/023), incorporated by reference in ARM 17.8.1102. Equivalent models may be substituted if approved by the department.

History

Authorizing statute(s): 75-2-112, 75-2-203, MCA
Implementing statute(s): 75-2-203, 75-2-204, 75-2-211, MCA
History: NEW, 1985 MAR p. 1326, Eff. 9/13/85; AMD, 1992 MAR p. 2741, Eff. 12/25/92; AMD, 1996 MAR p. 1844, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2024 MAR p. 2056, Eff. 8/24/24.

Mont. Admin. R. 17.8.1108 Notification of Permit Application

(1) Where a proposed major stationary source or major modification will impact or may impact visibility within a federal Class I area, the department shall provide written notice to the Environmental Protection Agency and to the appropriate federal land managers. Notification shall be in writing, include all information relevant to the permit application including an analysis of the anticipated impacts on visibility in any federal Class I area, and be within 30 days of the receipt of the application.

(2) Where the department receives advance notification of a permit application of a source that may affect federal Class I area visibility, the department will notify all affected federal land managers within 30 days of such advance notice.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, 75-2-204, 75-2-211, MCA
History: NEW, 1985 MAR p. 1326, Eff. 9/13/85; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.1109 Adverse Impact and Federal Land Manager

(1) Federal land managers may present to the department, after the preliminary determination required under ARM 17.8.759, a demonstration that the emissions from the proposed source or modification may cause or contribute to adverse impact on visibility in any federal Class I area, notwithstanding that the air quality change resulting from the emissions from such source or modification would not cause or contribute to concentrations which would exceed the maximum allowable increment defined in ARM 17.8.804 (PSD) for a federal Class I area.

(2) The department will consider the comments of the federal land manager in its determination of whether adverse impact on visibility may result. Should the department determine that such impairment may result, a permit for the proposed source will not be granted.

(3) Where the department finds such an analysis does not demonstrate to the satisfaction of the department that an adverse impact on visibility will result, the department will provide written notification to the affected federal land manager within five days of the department's final decision on the permit. The notification will include an explanation of the department's decision or give notice as to where the explanation can be obtained.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, 75-2-204, 75-2-211, MCA
History: NEW, 1985 MAR p. 1326, Eff. 9/13/85; AMD, 1995 MAR p. 535, Eff. 4/14/95; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2002 MAR p. 3567, Eff. 12/27/02.

Mont. Admin. R. 17.8.1110 Visibility Monitoring

(1) The owner or operator of a proposed major stationary source or major modification shall submit with the application an analysis of existing visibility in or immediately adjacent to the federal Class I area potentially impacted by the proposed project. The validity of the analysis shall be determined by the department.

(2) As necessary to establish visibility conditions within the mandatory Class I area prior to construction and operation of the source or modification, the analysis shall include a collection of continuous visibility monitoring data. Such data shall relate to and shall have been gathered over the year preceding receipt of the complete application, except that if the department determines that a complete and adequate analysis can be accomplished with monitoring data gathered over a period shorter than one year, the data that is required must have been gathered over at least that shorter period. Where applicable, the owner or operator may demonstrate that existing visibility monitoring data may be sufficient.

(3) Pursuant to the requirements of this subchapter, the owner or operator of the source shall submit a preconstruction visibility monitoring plan prior to the filing of a permit application. Within 30 days, the department must, after consultation with the affected federal land manager, review and either approve the monitoring program or specify the changes necessary for approval. If the department fails to act within the 30 days, the monitoring program shall be deemed approved.

(4) The owner or operator of a proposed major stationary source or major modification, after construction has been completed, shall conduct such visibility monitoring as the department may require as a permit condition to establish the effect the source has on visibility conditions within the mandatory Class I area being impacted.

(5) The department may waive the requirements of (1), (2), and (3) if the value of "V" in the equation below is less than 0.50 or, if for any other reason which can be demonstrated to the satisfaction of the department, an analysis of visibility is not necessary.

V = (Emissions) 1/2 ÷ Distance

where: Emissions = emissions from the major stationary source or modification

of nitrogen oxides, particulate matter, or sulfur dioxide, whichever

is highest, in tons per year.

Distance = distance, in kilometers, from the proposed major stationary source or

major modification to each federal Class I area.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, 75-2-204, MCA
History: NEW, 1985 MAR p. 1326, Eff. 9/13/85; AMD, 1988 MAR p. 826, Eff. 4/29/88; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.1111 Additional Impact Analysis

(1) The owner or operator of a proposed major stationary source or major modification subject to the requirements of ARM 17.8.824 (PSD) shall provide a visibility impact analysis of the visibility impact likely to occur as a result of the major source or major modification and as a result of general commercial, residential, industrial, and other growth associated with the source or major modification.

History

Authorizing statute(s): 75-2-111, 75-2-203, MCA
Implementing statute(s): 75-2-203, 75-2-204, 75-2-211, MCA
History: NEW, 1985 MAR p. 1326, Eff. 9/13/85; AMD, 1995 MAR p. 535, Eff. 4/14/95; TRANS, from DHES, 1996 MAR p. 2285.

Subchapter 17.8.12 Operating Permit Program

Mont. Admin. R. 17.8.1201 Definitions

In this subchapter, unless indicated otherwise, the following definitions apply:

(1) "Administrative permit amendment" means an air quality operating permit revision that:

(a) corrects typographical errors;

(b) identifies a change in the name, address, or phone number of any person identified in the air quality operating permit, or identifies a similar minor administrative change at the source;

(d) allows for a change in ownership or operational control of a source if the department has determined that no other change in the air quality operating permit is necessary, consistent with ARM 17.8.1225; or

(e) incorporates any other type of change which the department and EPA have determined to be similar to those revisions set forth in (1)(a) through (d).

(2) "Affected source" means a source that includes one or more affected units under Title IV of the FCAA.

(3) "Affected states" means all states that are:

(a) contiguous to Montana and whose air quality may be affected by a source requiring an air quality operating permit, permit modification, or permit renewal; or

(b) within 50 miles of a source requiring an air quality operating permit, permit modification, or permit renewal.

(4) "Affected unit" means a unit that is subject to emission reduction requirements or limitations under Title IV of the FCAA.

(5) "Air quality operating permit" or "permit" means any permit or group of permits issued, renewed, revised, amended, or modified pursuant to this subchapter.

(6) "Air quality operating permit modification" or "permit modification" means a revision to an air quality operating permit that does not meet the definition of an administrative permit amendment under this subchapter.

(7) "Air quality operating permit renewal" or "permit renewal" means the process by which an air quality operating permit is reissued at the end of its term.

(8) "Air quality permit revision" or "permit revision" means any air quality operating permit modification or administrative permit amendment.

(9) "Montana air quality permit" means a permit issued, altered, or modified pursuant to subchapters 7, 8, 9, or 10 of this chapter.

(10) "Applicable requirement" means all of the following as they apply to emissions units in a source requiring an air quality operating permit (including requirements that have been promulgated or approved by the department or the administrator through rulemaking at the time of issuance of the air quality operating permit, but have future-effective compliance dates, provided that such requirements apply to sources covered under the operating permit) :

(a) any standard, rule, or other requirement, including any requirement contained in a consent decree or judicial or administrative order entered into or issued by the department, that is contained in the Montana State Implementation Plan approved or promulgated by the administrator through rulemaking under Title I of the FCAA;

(b) any federally enforceable term, condition or other requirement of any Montana air quality permit issued by the department under subchapters 7, 8, 9, and 10 of this chapter, or pursuant to regulations approved or promulgated through rulemaking under Title I of the FCAA, including parts C and D;

(d) any requirement under section 112 of the FCAA, including any requirement concerning accident prevention under section 112(r) (7) , but excluding the contents of any risk management plan required under section 112(r) ;

(e) any standard or other requirement of the acid rain program under Title IV of the FCAA or regulations promulgated thereunder;

(f) any requirements established pursuant to section 504(b) or section 114(a) (3) of the FCAA;

(g) any requirement governing solid waste incineration, under section 129 of the FCAA;

(h) any requirement for consumer and commercial products, under section 183(e) of the FCAA;

(i) any requirement for tank vessels, under section 183(f) of the FCAA;

(j) any standard or other requirement of the regulations promulgated to protect stratospheric ozone under Title VI of the FCAA, unless the administrator determines that such requirements need not be contained in an air quality operating permit;

(k) any national ambient air quality standard, increment, or visibility requirement under part C of Title I of the FCAA, but only as it would apply to temporary sources permitted pursuant to section 504(e) of the FCAA; or

(l) any federally enforceable term or condition of any air quality open burning permit issued by the department under subchapter 6.

(11) "Designated representative" means a responsible person or official authorized by the owner or operator of an affected source and of all affected units at the source, to represent and legally bind each owner and operator in matters pertaining to the holding, transfer, or disposition of allowances allocated to a source, and the submission of and compliance with permits, permit applications, and compliance plans for the unit and all other matters pertaining to Title IV of the FCAA. Proof of such status shall be evidenced by a certificate of representation submitted pursuant to subpart B of 40 CFR Part 72, specifically 40 CFR 72.24 (58 FR 3590, January 11, 1993) .

(12) "Draft air quality operating permit" or "draft permit" means the version of an air quality operating permit which the department offers for public participation under ARM 17.8.1232 or affected state review under ARM 17.8.1233.

(13) "Emergency" means any situation arising from sudden and reasonably unforeseeable events beyond the control of the source, including acts of God, which situation requires immediate corrective action to restore normal operation, and that causes the source to exceed a technology-based emission limitation under the air quality operating permit due to unavoidable increases in emissions attributable to the emergency. An emergency shall not include noncompliance to the extent caused by improperly designed equipment, lack of reasonable preventative maintenance, careless or improper operation, or operator error.

(14) "Emissions allowable under the permit" means a federally enforceable air quality operating permit term or condition determined at issuance to be required by an applicable requirement that establishes an emissions limit (including a work practice standard) or a federally enforceable emissions cap that the source has assumed to avoid an applicable requirement to which the source would otherwise be subject.

(15) "Emissions unit" means any part or activity of a stationary source that emits or has the potential to emit any regulated air pollutant or any pollutant listed under section 112(b) of the FCAA. This term is not meant to alter or affect the definition of the term "unit" for purposes of Title IV of the FCAA.

(16) "FCAA" means the Federal Clean Air Act, as amended.

(17) "Federally enforceable" means all limitations and conditions which are enforceable by the administrator, including those requirements developed pursuant to 40 CFR Parts 60 and 61, requirements within the Montana State Implementation Plan, and any permit requirement established pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR Part 51, subpart I, including operating permits issued under an EPA-approved program that is incorporated into the Montana State Implementation Plan and expressly requires adherence to any permit issued under such program.

(18) "Final air quality operating permit" or "final permit" means the version of an air quality operating permit issued by the department that has completed all review procedures required by ARM 17.8.1220 through 17.8.1228, and 17.8.1231 through 17.8.1233.

(19) "Fugitive emissions" means those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.

(20) "General air quality operating permit" or "general permit" means an air quality operating permit that meets the requirements of ARM 17.8.1222, covers multiple sources in a source category, and is issued in lieu of individual permits being issued to each source.

(21) "Hazardous air pollutant" means any air pollutant listed as a hazardous air pollutant pursuant to section 112(b) of the FCAA.

(22) The following apply to the definition of the term "insignificant emissions unit":

(a) "insignificant emissions unit" means any activity or emissions unit located within a source that:

(i) has a potential to emit less than five tons per year of any regulated pollutant;

(ii) has a potential to emit less than 500 pounds per year of lead;

(iii) has a potential to emit less than 500 pounds per year of hazardous air pollutants listed pursuant to section 112(b) of the FCAA; and

(iv) is not regulated by an applicable requirement, other than a generally applicable requirement that applies to all emission units subject to this subchapter.

(b) Fugitive sources associated with an emissions unit are to be quantified with that emissions unit and are not considered insignificant emission units.

(23) "Major source" means any stationary source (or any group of stationary sources that are located on one or more contiguous or adjacent properties, and are under common control of the same person (or persons under common control)) belonging to a single major industrial grouping and that are described in (23)(a) through (c). For the purposes of defining "major source," a stationary source or group of stationary sources shall be considered part of a single industrial grouping if all of the pollutant emitting activities at such source or group of sources on contiguous or adjacent properties belong to the same major group (i.e., all have the same two-digit code) as described in the Standard Industrial Classification Manual, 1987.

(a) A major source under section 112 of the FCAA, which is defined as:

(i) for pollutants other than radionuclides, any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit, in the aggregate, ten tons per year or more of any hazardous air pollutant which has been listed pursuant to section 112(b) of the FCAA, 25 tons per year or more of any combination of such hazardous air pollutants, or such lesser quantity as the department may establish by rule. Notwithstanding the preceding sentence, emissions from any oil or gas exploration or production well (with its associated equipment) and emissions from any pipeline compressor or pump station are not aggregated with emissions from other similar units, whether or not such units are in a contiguous area or under common control, to determine whether such units or stations are major sources; or

(ii) for radionuclides, "major source" shall have the meaning specified by the department by rule.

(b) A major stationary source of air pollutants that directly emits or has the potential to emit, 100 tons per year or more of any air pollutant. The fugitive emissions of a stationary source shall not be considered in determining whether it is a major stationary source, unless the source belongs to one of the following categories of stationary source:

(i) coal cleaning plants (with thermal dryers) ;

(ii) kraft pulp mills;

(iii) Portland cement plants;

(iv) primary zinc smelters;

(v) iron and steel mills;

(vi) primary aluminum ore reduction plants;

(vii) primary copper smelters;

(viii) municipal incinerators capable of charging more than 250 tons of refuse per day;

(ix) hydrofluoric, sulfuric, or nitric acid plants;

(x) petroleum refineries;

(xi) lime plants;

(xii) phosphate rock processing plants;

(xiii) coke oven batteries;

(xiv) sulfur recovery plants;

(xv) carbon black plants (furnace process) ;

(xvi) primary lead smelters;

(xvii) fuel conversion plant;

(xviii) sintering plants;

(xix) secondary metal production plants;

(xx) chemical process plants;

(xxi) fossil-fuel boilers (or combination thereof) totalling more than 250 million British thermal units per hour heat input;

(xxii) petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels;

(xxiii) taconite ore processing plants;

(xxiv) glass fiber processing plants;

(xxv) charcoal production plants;

(xxvi) fossil-fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input; or

(xxvii) any other stationary source category, which as of August 7, 1980, is being regulated under section 111 or 112 of the FCAA.

(c) For particulate matter (PM-10) nonattainment areas classified as "serious" under Title I of the FCAA or regulations promulgated thereunder, sources with the potential to emit 70 tons per year or more of PM-10.

(24) The following apply to the definition of the term "nonfederally enforceable requirement":

(a) "nonfederally enforceable requirement" means, as applicable to emissions units in a source requiring an air quality operating permit, any requirement, including any requirement contained in a consent decree, or judicial or administrative order entered into or issued by the department, that is not contained in the Montana State Implementation Plan approved or promulgated by the administrator through rulemaking under Title I of the FCAA;

(b) "nonfederally enforceable requirement" does not include any Montana ambient air quality standard contained in subchapter 2 of this chapter.

(25) "Permittee" means the owner or operator of any source subject to the permitting requirements of this subchapter, as provided in ARM 17.8.1204, that holds a valid air quality operating permit or has submitted a timely and complete permit application for issuance, renewal, amendment, or modification pursuant to this subchapter.

(26) "Potential to emit" means the maximum capacity of a stationary source to emit any air pollutant under its physical and operational design. Any physical or operational limitation on the capacity of a source to emit an air pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design only if the limitation is federally enforceable. As used in this subchapter, this definition does not alter the use of this term for any other purposes under the FCAA, or the term "capacity factor" as used in Title IV of the FCAA or rules promulgated thereunder.

(27) "Proposed air quality operating permit" or "proposed permit" means the version of an air quality operating permit that the department proposes to issue and forwards to the administrator for review in compliance with ARM 17.8.1233. This includes any final permit which has been appealed to the Board of Environmental Review, if the board has directed the department to issue a permit that differs from the proposed permit previously forwarded to the administrator for review in compliance with ARM 17.8.1233.

(28) "Regulated air pollutant" means the following:

(a) nitrogen oxides or any volatile organic compounds;

(b) any pollutant for which a national ambient air quality standard has been promulgated;

(d) any Class I or II substance subject to a standard promulgated under or established by Title VI of the FCAA; or

(e) any pollutant subject to a requirement established or promulgated under section 112 of the FCAA including, but not limited to, the following:

(i) any pollutant subject to requirements under section 112(j) of the FCAA. If the administrator fails to promulgate a standard by the date established pursuant to section 112(e) of the FCAA, any pollutant for which a subject source would be major is considered to be regulated on the date 18 months after the applicable date established pursuant to section 112(e) of the FCAA; and

(ii) any pollutant for which the requirements of section 112(g) (2) of the FCAA have been met, but only with respect to the individual source subject to the section 112(g) (2) requirement.

(29) "Responsible official" means one of the following:

(a) For a corporation:

(i) a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function;

(ii) any other person who performs similar policy or decision-making functions for the corporation; or

(iii) a duly authorized representative of such person if the representative is responsible for the overall operation of one or more manufacturing, production, or operating facilities applying for or subject to a permit and either:

(A) the facilities employ more than 250 persons or have gross annual sales or expenditures exceeding $25 million (in second quarter 1980 dollars) ; or

(B) the delegation of authority to such representative is approved in advance by the department.

(b) For a partnership or sole proprietorship, a general partner or the proprietor, respectively.

(i) a ranking elected official; or

(ii) a principal executive officer. A principal executive officer of a federal agency includes the chief executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g., a regional administrator of the Environmental Protection Agency) .

(d) For affected sources, the designated representative concerning actions, standards, requirements, or prohibitions under Title IV of the FCAA or the regulations promulgated thereunder, and the designated representative for any other purposes under this subchapter.

(30) "Section 502(b)(10) changes" are changes that contravene an express permit term. Such changes do not include changes that would violate applicable requirements or contravene federally enforceable permit terms and conditions that are monitoring (including test methods), recordkeeping, reporting, or compliance certification requirements.

(31) "Source requiring an air quality operating permit" means any source subject to the permitting requirements of this subchapter, as provided in ARM 17.8.1204.

(32) "State" means any nonfederal air quality permitting authority, including any local agency, interstate association, or statewide program. Where such meaning is clear from the context, "state" shall have its conventional meaning.

(33) "Stationary source" means any building, structure, facility, or installation that emits or may emit any regulated air pollutant or any pollutant listed under section 112(b) of the FCAA.

History

Authorizing statute(s): 75-2-217, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; AMD, 1995 MAR p. 535, Eff. 4/14/95; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1998 MAR p. 350, Eff. 1/30/98; AMD, 2000 MAR p. 838, Eff. 3/31/00; AMD, 2002 MAR p. 2195, Eff. 8/16/02; AMD, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2003 MAR p. 645, Eff. 4/11/03; AMD, 2004 MAR p. 724, Eff. 4/9/04; AMD, 2007 MAR p. 1663, Eff. 10/26/07; AMD, 2008 MAR p. 2267, Eff. 10/24/08; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.8.1202 Incorporation by Reference

(1) For the purposes of this subchapter, the department adopts and incorporates by reference the following:

(a) 40 CFR 70.3, pertaining to those sources and source categories designated by the administrator as requiring an operating permit pursuant to Title V of the FCAA;

(b) 40 CFR Part 72, pertaining to the operating permit requirements for acid rain sources subject to Title IV of the FCAA;

(c) 40 CFR Part 75, pertaining to the continuous emission monitoring requirements for acid rain sources subject to Title IV of the FCAA and sources subject to mercury monitoring requirements;

(d) 40 CFR Part 76, pertaining to the nitrogen oxides emission reduction requirements for acid rain sources subject to Title IV of the FCAA;

(e) section 129(e) of the FCAA as codified in 42 USC 7429(e), pertaining to solid waste incineration units that are required to obtain operating permits under Title V of the FCAA;

(f) section 129(g) of the FCAA as codified in 42 USC 7429(g), pertaining to the definition of solid waste incineration unit for the purposes of Title V of the FCAA; and

(g) the Standard Industrial Classification Manual (1987), Office of Management and Budget (PB 87-100012) or the North American Industry Classification System of 2022 at https://www.census.gov/naics/, pertaining to a system of industrial classification and definition based upon the composition and structure of the economy.

(2) Copies of materials incorporated by reference in this subchapter may be obtained as referenced in ARM 17.8.102(3) and (4).

History

Authorizing statute(s): 75-2-217, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; AMD, 1994 MAR p. 2828, Eff. 10/28/94; AMD, 1995 MAR p. 535, Eff. 4/14/95; AMD, 1996 MAR p. 1844, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1997 MAR p. 1581, Eff. 9/9/97; AMD, 2003 MAR p. 645, Eff. 4/11/03; AMD, 2005 MAR p. 959, Eff. 6/17/05; AMD, 2006 MAR p. 1956, Eff. 8/11/06; AMD, 2007 MAR p. 1663, Eff. 10/26/07; AMD, 2018 MAR p. 438, Eff. 2/24/18; AMD, 2024 MAR p. 253, Eff. 2/10/24; AMD, 2024 MAR p. 2056, Eff. 8/24/24.

Mont. Admin. R. 17.8.1203 Air Quality Operating Permit Program Overview

(1) This subchapter provides for the establishment of a comprehensive air quality operating permit system consistent with the requirements of Title V of the FCAA and the federal operating permit program (57 FR 32250 July 21, 1992, to be codified as 40 CFR Part 70) . These regulations, when viewed as a whole, are not invariably limited to the minimum federal requirements and do not invariably impose the strictest optional alternatives. No air quality operating permit issued under this subchapter may be less stringent than necessary to meet all applicable requirements.

(2) The requirements of this subchapter, including provisions regarding schedules for submission and approval or disapproval of air quality operating permit applications, shall apply to the permitting of affected sources under the acid rain program, except as provided herein or in regulations promulgated pursuant to Title IV of the FCAA.

History

Authorizing statute(s): 75-2-217, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.1204 Air Quality Operating Permit Program Applicability

(1) The requirements of this subchapter apply to the following sources:

(a) any major source, as defined in this subchapter;

(b) any source, including an area source, subject to a requirement under section 111 of the FCAA;

(c) any source, including an area source, subject to a requirement under section 112 of the FCAA, except that a source is not required to obtain a permit solely because it is subject to requirements under section 112(r) of the FCAA;

(d) any affected source;

(e) any source required to obtain a permit under section 129(e) of the FCAA;

(f) any source in a source category designated by the administrator as requiring an operating permit pursuant to 40 CFR 70.3; and

(g) any source required by the FCAA to obtain a Title V operating permit.

(2) The following source categories are exempted from the obligation to obtain an air quality operating permit:

(a) all sources and source categories that would be required to obtain an air quality operating permit solely because they are subject to 40 CFR Part 60, subpart AAA (Standards of Performance for New Residential Wood Heaters) ; and

(b) all sources and source categories that would be required to obtain an air quality operating permit solely because they are subject to 40 CFR Part 61, subpart M (National Emission Standard for Hazardous Air Pollutants for Asbestos) , section 61.145, (Standard for Demolition and Renovation) .

(c) All sources listed in (1) that are not major or affected sources, or that are solid waste incineration units as defined in section 129(g) of the FCAA that are not required to obtain a permit pursuant to section 129(g) .

(3) The department may exempt a source listed in (1) from the requirement to obtain an air quality operating permit by establishing federally enforceable limitations which limit that source's potential to emit, such that the source is no longer a major stationary source, as defined by ARM 17.8.1201(23) .

(a) In applying for an exemption under this section the owner or operator of the source shall certify to the department that the source's potential to emit, when subject to the federally enforceable limitations, does not require the source to obtain an air quality operating permit. Such certification shall contain emissions measurement and monitoring data, location of monitoring records, and other information necessary to demonstrate to the department that the source is not required to obtain a permit under (1) .

(b) Any source that obtains a federally enforceable limit on potential to emit shall annually certify that its actual emissions are less than those that would require the source to obtain an air quality operating permit. Such certification shall include the type of information specified in (3) (a) .

(c) Federally enforceable limitations that limit a source's potential to emit may be established through conditions contained in a Montana air quality permit, or through a judicial order or an administrative order issued by the department or the board, that has been adopted into the Montana State Implementation Plan.

(d) In order to exempt a source from the requirement to obtain an air quality operating permit, the department may, at a source's request, issue a Montana air quality permit to establish federally enforceable permit terms, solely to limit a source's potential to emit, even if there is no associated construction at the source, the source has a Montana air quality permit or the source otherwise is not required to obtain a Montana air quality permit.

(4) Any source exempt from the requirement to obtain an air quality operating permit may nevertheless opt to apply for a permit under this subchapter.

(5) The air quality operating permit shall include all applicable requirements for all emissions units at a source required to obtain a permit. Nonfederally enforceable requirements and requirements for insignificant emission units shall be included, but shall not be subject to the other requirements of this subchapter except as required in ARM 17.8.1211(3) .

(6) Fugitive emissions from a source required to obtain an air quality operating permit shall be included in the permit application and permit in the same manner as stack emissions, regardless of whether the source category in question is included in the list of sources contained in the definition of major source.

(7) The department shall, upon written request of any person, make an informal determination as to whether a particular source, which that person operates or proposes to operate, is subject to the requirements of this subchapter. The request must contain such information as is believed sufficient for the department to make the requested determination. The department may request any additional information that is necessary for informally determining the applicability of this subchapter. The department shall supply any informal applicability determination to the requestor in writing. The department shall notify any person that has received an informal determination of applicability 15 days prior to withdrawal of or any change in that informal determination. An informal determination under this (7) may not be appealed to the board, and does not impair or otherwise limit the opportunity to seek a declaratory ruling under Title 2, chapter 4, part 5, MCA.

History

Authorizing statute(s): 75-2-217, MCA
Implementing statute(s): 75-2-217, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; AMD, 1995 MAR p. 535, Eff. 4/14/95; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2003 MAR p. 645, Eff. 4/11/03; AMD, 2004 MAR p. 724, Eff. 4/9/04.

Mont. Admin. R. 17.8.1205 Requirements for Timely and Complete Air Quality Operating Permit Applications

(1) For each source required to obtain an air quality operating permit, the owner or operator shall submit a timely and complete air quality operating permit or renewal application in accordance with this rule.

(2) To be considered timely for the purposes of this rule, a person required to obtain a permit pursuant to this subchapter shall file an application with the department as follows:

(a) An applicant applying for an air quality operating permit for the first time due to the applicability of newly promulgated regulations shall submit a permit application within 12 months after the source becomes subject to the permit program.

(b) Persons required to obtain an air quality operating permit or permit revision who are also required to obtain a Montana air quality preconstruction permit under this chapter shall file a complete application for an air quality operating permit or permit revision within 12 months after commencing operation, unless an existing operating permit would prohibit the construction or change in operation. If an existing operating permit would prohibit the construction or change in operation, the owner or operator shall obtain a permit revision before commencing operation.

(c) For renewal, a permittee shall submit a complete air quality operating permit application to the department not later than six months prior to the expiration of the existing permit, unless otherwise specified in that permit. If necessary to ensure that the existing permit will not expire before the renewal permit is issued, the department may notify the permittee in writing that the renewal application must be submitted by a specified deadline that is earlier than six months prior to permit expiration. Such written notification must be provided at least one year before the renewal application due date established in the existing permit. In no case may this extended time period or the time period established in the existing permit be greater than 18 months.

(3) To be deemed complete for the purposes of this rule, an application for an air quality operating permit or permit revision must be filed with the department as follows:

(a) An applicant shall provide all information required pursuant to this rule and ARM 17.8.1206. An applicant for permit revision shall submit all required information related to the proposed change. An application for renewal must address in detail those portions of the permit that require revision, updating, supplementation, or deletion. The applicant shall submit information pursuant to this rule and ARM 17.8.1206 sufficient for the department to evaluate the subject source and the application pursuant to all applicable requirements. If the applicant provides sufficient information to satisfy the requirements of application completeness, then the application shall be deemed to be administratively complete for the purposes of applying the application shield provided for in ARM 17.8.1221 and the department shall notify the applicant of such administrative completeness. A responsible official shall certify the submitted information consistent with ARM 17.8.1207. Except as otherwise provided in ARM 17.8.1220(6) and (7), or unless the department determines that an air quality operating application is not substantively complete within 60 days of receipt of the application, such application shall be deemed to be substantively complete.

(b) During the permit review process set forth in (3)(a), the department may determine that additional information is necessary to evaluate or take final action on the application and may request such information in writing and set a reasonable deadline for a response, which may not be less than 15 days.

(c) Applicants eligible for a general air quality operating permit shall provide written notification to the department of their intent to operate under the terms of the general permit, or shall apply for an air quality operating permit consistent with (1). The terms of the general permit adopted pursuant to ARM 17.8.1222 may provide for applications that deviate from the requirements of (1), and ARM 17.8.1206, if such applications are consistent with subchapter V of the FCAA, and include all information necessary for the department to determine qualification for, and assure compliance with, the general permit.

(d) An applicant for an air quality operating permit revision that submits an application for a minor permit modification shall meet the requirements of ARM 17.8.1206, and shall include the following with the application:

(i) a description of the change, the emissions resulting from the change, and any new applicable requirements that will apply if the change occurs;

(ii) the applicant's suggested draft permit;

(iii) certification by a responsible official, consistent with ARM 17.8.1207, that the proposed permit modification meets the criteria for use of minor modification procedures and a request that such procedures be used; and

(iv) completed forms for the department to use to notify the administrator and affected states as required under ARM 17.8.1233.

(e) An application for an air quality operating permit revision that is submitted as part of a group processing of minor modifications must meet the requirements of ARM 17.8.1206, and must include the following:

(i) a description of the change, the emissions resulting from the change, and any new applicable requirements that will apply if the change occurs;

(ii) the applicant's suggested draft permit;

(iii) certification by a responsible official, consistent with ARM 17.8.1207, that the proposed permit modification meets the criteria for use of group processing procedures and a request that such procedures be used;

(iv) a list of the applicant's other pending permit modification applications and a determination as to whether the requested modification, when aggregated with these other applications, equals or exceeds the threshold set under ARM 17.8.1226(7)(b);

(v) certification by a responsible official, consistent with ARM 17.8.1207, that the applicant notified the administrator of the proposed modification. Such notification need only contain a brief description of the requested modification; and

(vi) completed forms for the department to use to notify the administrator and affected states as required under ARM 17.8.1233.

(4) Any applicant who fails to submit any relevant facts or who has submitted incorrect information in an application for an air quality operating permit or permit revision shall, upon becoming aware of such failure or incorrect submittal, promptly submit such facts or corrected information. In addition, an applicant shall provide additional information as necessary to address any requirements that become applicable to the source after the date the applicant filed a substantively complete application, but prior to release of a draft permit.

(5) If an applicant submits information to the department under a judicial determination of confidentiality, the applicant shall submit a copy of such information directly to the administrator. This requirement does not preclude or limit the right of the applicant to assert to the administrator the confidential status and nature of the information.

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2009 MAR p. 142, Eff. 2/13/09.

Mont. Admin. R. 17.8.1206 Information Required for Air Quality Operating Permit Applications

(1) For each emissions unit at a source required to obtain an air quality operating permit the applicant shall include in its application for a permit, permit renewal, or permit revision the information described in this rule.

(2) The required information shall be submitted to the department and the administrator on a standard air quality permit application form or in a standard permit application format to be approved by the department. To the extent possible all required information shall also be submitted to the department in electronic form, in a word processing format convertible to or compatible with department software.

(3) Insignificant emissions units need not be addressed in an application for an air quality operating permit, except that the application must include a list of such insignificant emissions units and emissions from insignificant emissions units must be included in emission inventories and are subject to assessment of permit fees. Emission inventories are to be calculated or estimated using accepted engineering methods which may include, but are not limited to, use of appropriate emission factors, material balance calculations, or best engineering judgement or process knowledge. Insignificant emissions units may be listed by category.

(4) An application for an air quality operating permit or permit revision may not omit information that is necessary to determine the applicability of any applicable requirement, to impose any applicable requirement, or to evaluate the fee amount required under subchapter 5 of this chapter.

(5) The applicant shall, at a minimum, provide the information specified below:

(a) identifying information, including company name and address (or plant name and address if different from the company name), owner's name and agent, and telephone number and names of plant site manager/contact;

(b) a description of the source's processes and products (by standard industrial classification code) including any associated with each reasonably anticipated operating scenario identified by the source pursuant to ARM 17.8.1215(1);

(c) an emission inventory of all emissions of pollutants for which the source is major, and an emission inventory of all emissions of regulated air pollutants. An air quality operating permit application shall describe all emissions of regulated air pollutants emitted from any emissions unit. The applicant shall provide additional information related to such emissions of air pollutants as necessary to verify which requirements are applicable to the source, and other information that may be necessary to determine any permit fees owed under subchapter 5 of this chapter;

(d) identification and description of all points of emissions described in (5)(c), in sufficient detail to establish both the basis for fees and the applicability of any applicable requirement;

(e) emissions rates in tons per year, and in such terms as are necessary to establish compliance consistent with the applicable standard reference test method;

(f) information regarding fuels, fuel use, raw materials, production rates, and operating schedules, to the extent such information is needed to determine or regulate emissions;

(g) identification and description of air pollution control equipment and compliance monitoring devices or activities;

(h) limitations on source operation affecting emissions or any work practice standards, where applicable, for all regulated pollutants at the source;

(i) other information related to emissions as required by any applicable requirement (including information related to stack height limitations developed pursuant to section 123 of the FCAA) or this chapter (including the location of emission units, flow rate, building dimensions, and stack parameters such as height, diameter, and temperature);

(j) results of all dispersion modeling required by the department, except that this subsection may not be construed as a basis for requiring additional dispersion modeling to be done by the source;

(k) all calculations on which the information in (5)(a) through (j) is based;

(l) citation and description of all applicable requirements;

(m) description of or reference to any applicable test method for determining compliance with each applicable requirement;

(n) other specific information that may be necessary to implement and enforce other applicable requirements of the FCAA or of this chapter or to determine the applicability of such requirements;

(o) an explanation of any proposed exemptions from otherwise applicable requirements;

(p) additional information as determined to be necessary by the department to define reasonably anticipated alternative operating scenarios identified by the source pursuant to ARM 17.8.1215(1) or to define permit terms and conditions implementing ARM 17.8.1215(3) or 17.8.1224(3) and (4);

(q) a certification of compliance with all applicable requirements by a responsible official consistent with ARM 17.8.1207 and section 114(a)(3) of the FCAA;

(r) a statement of the methods used for determining compliance, including a description of monitoring, recordkeeping, and reporting requirements and test methods;

(s) a schedule for submission of compliance certifications during the permit term, to be submitted no less frequently than annually, or more frequently if specified by the underlying applicable requirement or by the department; and

(t) a statement indicating the source's compliance status with any applicable enhanced monitoring and compliance certification requirements of the FCAA.

(6) In addition to the information required in (5) of this rule, the applicant shall submit a compliance plan and schedule that contains a description of the compliance status of the source with respect to all applicable requirements, which shall include the following:

(a) for applicable requirements with which the source is in compliance, a statement that the source will continue to comply with such requirements;

(b) for applicable requirements that will become effective during the permit term, a statement that the source will meet such requirements on a timely basis. A statement that the source will meet in a timely manner applicable requirements that become effective during the permit term shall satisfy this provision, unless a more detailed plan or schedule is required by the applicable requirement or the department;

(c) for requirements for which the source is not in compliance at the time of permit issuance, a narrative description of how the source will achieve compliance with such requirements and a schedule of compliance. The compliance schedule shall include a schedule of remedial measures, including an enforceable sequence of actions with milestones, leading to compliance with any applicable requirements for which the source will be in noncompliance at the time of permit issuance. This compliance schedule shall resemble and be at least as stringent as that contained in any judicial consent decree or judicial, board or department order to which the source is subject. Any such schedule of compliance shall be supplemental to, and shall not sanction noncompliance with, the applicable requirements on which it is based; and

(d) a schedule for submission of certified progress reports no less frequently than every six months for sources required to have a schedule of compliance to remedy a violation.

(7) The compliance plan content requirements specified in (6) , shall apply and be included in the acid rain portion of a compliance plan for an affected source, except as otherwise provided in regulations promulgated under Title IV of the FCAA with regard to the schedule and method(s) the source will use to achieve compliance with the acid rain emissions limitations.

(8) As applicable, any application submitted pursuant to this subchapter shall use the nationally standardized forms for the acid rain portions of applications and compliance plans, consistent with regulations promulgated under Title IV of the FCAA.

(9) As part of any application for a permit or general permit submitted pursuant to this subchapter, the applicant shall provide to the department a copy of all general safety rules, policies or requirements that are applicable to a department inspector during an air quality inspection.

(10) Upon request, the department shall provide to the applicant a completeness checklist that contains the minimum information required under this rule, ARM 17.8.1205, and 17.8.1207 for an application under this subchapter to be determined to be administratively complete for the purpose of application of the application shield.

(11) An applicant is not required to submit information that has been previously submitted to the department, but must reference such previous submittal.

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2003 MAR p. 645, Eff. 4/11/03; AMD, 2007 MAR p. 1663, Eff. 10/26/07; AMD, 2008 MAR p. 2267, Eff. 10/24/08.

Mont. Admin. R. 17.8.1207 Certification of Truth, Accuracy, and Completeness

(1) Any application form, report, or compliance certification submitted pursuant to this subchapter shall contain certification by a responsible official of truth, accuracy, and completeness. This certification and any other certification required under this subchapter shall state that, based on information and belief formed after reasonable inquiry, the statements and information in the document are true, accurate, and complete.

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.1210 General Requirements for Air Quality Operating Permit Content

(1) Each air quality operating permit shall contain the following general information:

(a) name and mailing address of permittee;

(b) type of operation;

(c) permit milestone dates including, the date the permit application was received, the date the permit application was deemed complete, the date the draft permit was issued, the date the proposed permit was issued, the date the final permit was issued and the permit expiration date;

(d) permit number; and

(e) name of the designated representative.

(2) The following standard terms and conditions are applicable to each air quality operating permit issued pursuant to this subchapter:

(a) The permittee must comply with all conditions of the permit. Any noncompliance with the terms or conditions of a permit constitutes a violation of the Montana Clean Air Act, and may result in enforcement action, operating permit modification, revocation and reissuance, or termination, or denial of a permit renewal application under this subchapter. Permits may be modified, reopened, terminated or revoked and reissued for cause. Appropriate "cause" for permit termination is noncompliance with permit terms or conditions that is continuing or substantial in nature and scope.

(b) It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of the permit. If appropriate, this factor may be considered as a mitigating factor in assessing a penalty for noncompliance with an applicable requirement if the source demonstrates both that the health, safety, or environmental impacts of halting or reducing operations would be more serious than the impacts of continuing operations, and that such health, safety, or environmental impacts were unforeseeable and could not have otherwise been avoided.

(c) The filing of a request by the permittee for a permit modification, revocation and reissuance, or termination, or of a notification of planned changes or anticipated noncompliance does not stay any permit condition.

(d) The permit does not convey any property rights of any sort, or any exclusive privilege.

(e) The permittee shall furnish to the department, within a reasonable time set by the department (not to be less than 15 days) , any information that the department may request in writing to determine whether cause exists for modifying, revoking and reissuing, or terminating the permit, or to determine compliance with the permit. Upon request, the permittee shall also furnish to the department copies of those records that are required to be kept pursuant to the terms of the permit. This subsection does not impair or otherwise limit the right of the permittee to assert the confidentiality of the information requested by the department, as provided in 75-2-105 , MCA.

(f) A permittee must pay application and operating permit fees as a condition of the permit, pursuant to subchapter 5.

(g) Permits under this subchapter will be issued for a fixed term of five years.

(h) If a timely and complete permit application for permit renewal has been submitted, and consistent with the operation of the application shield pursuant to ARM 17.8.1221, the existing permit and all terms and conditions contained therein will not expire until the permit renewal has been issued or denied.

(i) The administrative appeal or subsequent judicial review of the issuance by the department of an initial permit under this subchapter shall not impair in any manner the underlying applicability of all applicable requirements, and such requirements continue to apply to the source as if a final permit decision had not been reached by the department.

(j) The department's final decision regarding issuance, renewal, revision, denial, revocation, reissuance, or termination of a permit is not effective until 30 days have elapsed from the date of the decision. The decision may be appealed to the board by filing a request for hearing within 30 days after the date of the decision. A copy of the request shall be served on the department. The filing of a request for a hearing does not stay the effective date of the department's decision. However, the board may order a stay as provided in 75-2-218, MCA. If effective, the permit shield, or application shield, as appropriate, shall remain in effect until such time as the board has rendered a final decision.

(k) The denial by the department of an application for permit issuance, renewal or revision under this subchapter which is the result of an objection by the administrator may not be appealed to the board. This shall not impair any separate right an applicant or the department may have under state or federal law to challenge an objection by the administrator.

(l) If any provision of a permit is found to be invalid, all valid parts that are severable from the invalid part remain in effect. If a provision of a permit is invalid in one or more of its applications, the provision remains in effect in all valid applications that are severable from the invalid applications.

(3) The following additional standard terms and conditions are applicable to each air quality operating permit issued to an affected source:

(a) Emissions shall not be permitted in excess of any allowances that the source lawfully holds under Title IV of the FCAA or the regulations promulgated thereunder.

(b) No permit revision shall be required for increases in emissions that are authorized by allowances acquired pursuant to the acid rain program, provided that such increases do not require a permit revision under any other applicable requirement.

(c) No limit shall be placed in the permit on the number of allowances held by the source. The source may not, however, use allowances as a defense to noncompliance with any other applicable requirement.

(d) Any allowances shall be accounted for according to the procedures established in regulations promulgated under Title IV of the FCAA.

(4) Each general air quality operating permit shall contain provisions regarding the following standard terms and conditions:

(a) Compliance shall be required with all requirements applicable to other air quality operating permits.

(b) The criteria by which sources may qualify for the general permit shall be set forth.

(5) Each air quality operating permit issued to temporary sources shall contain provisions regarding the following standard terms and conditions:

(a) Conditions that assure compliance with all applicable requirements at all authorized locations.

(b) Requirements that the owner or operator notify the department at least ten days in advance of each change in location.

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1998 MAR p. 350, Eff. 1/30/98; AMD, 2016 MAR p. 1164, Eff. 7/9/16.

Mont. Admin. R. 17.8.1211 Requirements for Air Quality Operating Permit Content Relating to Emission Limitations and Standards, and Other Requirements

(1) Each air quality operating permit issued pursuant to this subchapter shall contain the following:

(a) emission limitations and standards, including those operational requirements and limitations that assure compliance with all applicable requirements at the time of permit issuance;

(b) a specific description with appropriate references of the origin of, and authority for, each term or condition contained in the permit, including a description of any differences in form as compared to the applicable requirement upon which the term or condition is based; and

(c) all relevant terms and conditions applicable to a source, including those terms and conditions that are not applicable requirements, which shall be clearly designated as such.

(2) Every requirement contained in an air quality operating permit must be based upon the following:

(a) the FCAA and rules promulgated thereunder, including the Montana State Implementation Plan and other applicable requirements;

(b) rules, requirements, administrative orders, or permits that have been promulgated, adopted, or issued pursuant to Title 75, chapter 2, MCA; or

(c) requirements contained in a judicial order or consent decree entered in response to a violation of any rule, requirement, administrative order, or permit that has been promulgated, adopted, or issued pursuant to Title 75, chapter 2, MCA.

(3) In the air quality operating permit the department shall specifically designate as being nonfederally enforceable under the FCAA any terms or conditions included in the permit that are not required under the FCAA or any applicable requirements. Those terms and conditions which the department specifically designates as being nonfederally enforceable requirements are not subject to the following rules contained in this subchapter:

(a) ARM 17.8.1210, except for (2) and (5) . However, while noncompliance with a permit term or condition that is a nonfederally enforceable requirement may result in an enforcement action by the department, it shall not result in permit revocation and reissuance, termination, or denial of a permit renewal application under this subchapter;

(b) ARM 17.8.1211, except for (1) through (3) and (7) ;

(d) ARM 17.8.1213, except for (3) and (4) ;

(e) ARM 17.8.1215;

(f) ARM 17.8.1220, except for (1) (a) , (b) , and (d) , (6) through (9) , (12) and (13) ;

(g) ARM 17.8.1222, 17.8.1224 through 17.8.1228, 17.8.1231 and 17.8.1233.

(4) For those sources that are required to develop and register a risk management plan pursuant to section 7412(r) of the FCAA, the air quality operating permit will only require that the permittee comply with the requirement to register such a plan. The content of the plan will not be incorporated into the permit as an applicable requirement.

(5) For affected sources, the permit shall state that where an applicable requirement is more stringent than an applicable requirement from regulations promulgated under Title IV of the FCAA, both provisions shall be incorporated into the permit and shall be enforceable.

(6) If the Montana State Implementation Plan allows for the determination of an alternative emission limit that is equivalent to the limit contained in the plan, and during the air quality operating permit issuance, renewal, or significant modification process the department elects to make such a determination, any permit containing such alternative equivalent limit shall contain provisions to ensure that the limit is demonstrated to be quantifiable, accountable, enforceable, and based on replicable procedures.

(7) The requirement under this subchapter to obtain an air quality operating permit may not be construed as providing a basis for establishing new emission limitations beyond those contained in the underlying applicable requirements to be incorporated into the permit.

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.1212 Requirements for Air Quality Operating Permit Content Relating to Monitoring, Recordkeeping, and Reporting

(1) Each air quality operating permit shall contain the following requirements with respect to monitoring:

(a) All monitoring and analysis procedures or test methods required under the applicable monitoring and testing requirements, including ARM 17.8.1501 through 17.8.1514 and any other procedures and methods that may be promulgated pursuant to sections 504(b) or 114(a) (3) of the FCAA. If more than one monitoring or testing requirement applies, the permit may specify a streamlined set of monitoring or testing provisions if the specified monitoring or testing is adequate to assure compliance at least to the same extent as the monitoring or testing applicable requirements that are not included in the permit as a result of such streamlining;

(b) Where the applicable requirement does not require periodic testing or instrumental or noninstrumental monitoring (which may consist of recordkeeping designed to serve as monitoring) , periodic monitoring sufficient to yield reliable data from the relevant time period that are representative of the source's compliance with the air quality operating permit, as reported pursuant to (3) . Such monitoring requirements shall assure use of terms, test methods, units, averaging periods, and other statistical conventions consistent with the applicable requirement. Recordkeeping provisions may be sufficient to meet the requirements of this section; and

(c) as necessary, requirements concerning the use, maintenance, and, where appropriate, installation of monitoring equipment or methods.

(2) Each air quality operating permit shall incorporate all applicable recordkeeping requirements and require, where applicable, the following:

(a) Records of required monitoring information that include the following:

(i) the date, place as defined in the permit, and time of sampling or measurements;

(ii) the date(s) analyses were performed;

(iii) the company or entity that performed the analyses;

(iv) the analytical techniques or methods used;

(v) the results of such analyses; and

(vi) the operating conditions at the time of sampling or measurement.

(b) Retention of records of all required monitoring data and support information for a period of at least five years from the date of the monitoring sample, measurement, report, or application. Support information includes all calibration and maintenance records and all original strip-chart recordings for continuous monitoring instrumentation, and copies of all reports required by the permit. All monitoring data, support information, and required reports and summaries may be maintained in a computerized form at the plant site if the information is made available to department personnel upon request, which may be for either hard copies or computerized format. Strip-charts must be retained in their original form at the plant site and shall be made available to department personnel upon request.

(3) All applicable reporting requirements must be included in the permit. Each air quality operating permit shall incorporate the following requirements relating to reporting:

(a) submittal of reports of any required monitoring at least every six months. All instances of deviations from the permit requirements must be clearly identified in such reports. All required reports must be certified by a responsible official consistent with ARM 17.8.1207.

(b) prompt reporting of deviations from permit requirements, including those attributable to upset conditions as defined in the permit, the probable cause of such deviations, and any corrective actions or preventive measures taken. To be considered prompt, deviations shall be reported as part of the routine reporting requirements under (3)(b), and if applicable, in accordance with the malfunction reporting requirements under ARM 17.8.110, unless otherwise specified in an applicable requirement.

(4) The requirement to obtain a permit under this subchapter may not be used as the basis for establishing new monitoring, recordkeeping, or reporting requirements, except as may be required under (1)(b).

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2000 MAR p. 839, Eff. 3/31/00; AMD, 2003 MAR p. 645, Eff. 4/11/03; AMD, 2007 MAR p. 1663, Eff. 10/26/07; AMD, 2008 MAR p. 2267, Eff. 10/24/08.

Mont. Admin. R. 17.8.1213 Requirements for Air Quality Operating Permit Content Relating to Compliance

(1) All air quality operating permits shall contain the provisions required by this rule with respect to compliance.

(2) Consistent with ARM 17.8.1212, all permits shall contain compliance certification, testing, monitoring, reporting, and recordkeeping requirements sufficient to assure compliance with the terms and conditions of the permit. Any such data, generated as a condition of the permit, may be used to demonstrate compliance with the conditions of the permit and may be used for direct enforcement. Any document (including reports) required by a permit shall contain a certification by a responsible official that meets the requirements of ARM 17.8.1207.

(3) Each permit shall contain inspection and entry requirements which require that, upon presentation of credentials and other documents as may be required by law, the permittee shall allow the department, the administrator or an authorized representative (including an authorized contractor acting as a representative of the department or the administrator) to perform the following:

(a) enter the premises where a source required to obtain a permit is located or emissions-related activity is conducted, or where records must be kept under the conditions of the permit;

(b) have access to and copy, at reasonable times, any records that must be kept under the conditions of the permit;

(c) inspect at reasonable times any facilities, emission unit, equipment (including monitoring and air pollution control equipment) , practices, or operations regulated or required under the permit; and

(d) as authorized by the Montana Clean Air Act and rules promulgated thereunder, sample or monitor at reasonable times any substances or parameters at any location for the purpose of assuring compliance with the permit or applicable requirements.

(4) Inspections pursuant to (3) , shall be conducted in compliance with all applicable federal or state rules or requirements for workplace safety and source-specific facility workplace safety rules or requirements. The source shall inform the inspector of all applicable workplace safety rules or requirements at the time of the inspection. This section shall not limit in any manner the department's statutory right of entry and inspection as provided for in 75-2-403 , MCA.

(5) Each permit shall contain a schedule of compliance consistent with ARM 17.8.1206(6) .

(6) Consistent with ARM 17.8.1206(6) , the permit shall require progress reports to be submitted at least semiannually, or more frequently if specified in the applicable requirement or by the department. Such progress reports shall contain the following:

(a) dates for achieving the activities, milestones, or compliance required in the schedule of compliance, and dates when such activities, milestones or compliance were achieved; and

(b) an explanation of why any dates in the schedule of compliance were not or will not be met, and any preventive or corrective measures adopted.

(7) Each permit shall contain requirements for compliance certification with terms and conditions contained in the permit, including emission limitations, standards, or work practices. Permits shall include the following:

(a) A requirement that compliance certifications be submitted at least once per year or more frequently if otherwise specified in an applicable requirement or by the department. Notwithstanding any applicable requirement, the department may specify that compliance certifications be submitted more frequently for those emission units not in compliance with permit terms and conditions.

(b) In accordance with ARM 17.8.1212, a means for monitoring the compliance of the source with its emissions limitations, standards, and work practices that are contained in applicable requirements.

(i) the identification of each term or condition of the permit that is the basis of the certification;

(ii) the identification of the method(s) or other means used by the owner or operator for determining the status of compliance with each term and condition during the certification period. Such methods and other means include, at a minimum, the methods and means required under ARM 17.8.1212;

(iii) the status of compliance with the terms and conditions of the permit for the period covered by the certification, including whether compliance during the period was continuous or intermittent. The certification shall be based on the method or means designated in (7) (c) (ii) . The certification must identify each deviation and take it into account in the compliance certification. The certification must also identify as possible exceptions to compliance any periods during which compliance was required and in which an excursion or exceedance as defined in ARM 17.8.1501 occurred; and

(iv) such other facts as the department may require to determine the compliance status of the source.

(d) A requirement that all compliance certifications be submitted to the administrator as well as to the department.

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1998 MAR p. 350, Eff. 1/30/98; AMD, 2000 MAR p. 839, Eff. 3/31/00; AMD, 2003 MAR p. 645, Eff. 4/11/03; AMD, 2003 MAR p. 2856, Eff. 12/25/03.

Mont. Admin. R. 17.8.1214 Requirements for Air Quality Operating Permit Content Relating to the Permit Shield and Emergencies

(1) Except as provided in this section, the department shall include in an air quality operating permit a provision stating that compliance with the conditions of the permit shall be deemed compliance with any applicable requirements and any nonfederally enforceable requirements as of the date of permit issuance, provided that:

(a) such applicable requirements and nonfederally enforceable requirements are included and are specifically identified in the permit; or

(b) the department, in acting on the permit application or revision, determines in writing that other requirements specifically identified are not applicable to the source, and the permit includes the determination or a concise summary thereof.

(2) An air quality operating permit that does not expressly state that a permit shield extends to specific applicable requirements and to nonfederally enforceable requirements will be presumed not to provide such a shield for those requirements.

(3) The permit shield described in (1) shall remain in effect during the appeal of any permit action (renewal, revision, reopening, revocation or reissuance) to the board until such time as the board renders its final decision.

(4) Nothing in (1), (2) or (3) , or in any air quality operating permit affects the following:

(a) the provisions of section 303 of the FCAA, including the authority of the administrator under that section;

(b) the liability of an owner or operator of a source for any violation of applicable requirements prior to or at the time of permit issuance;

(d) the ability of the administrator to obtain information from a source pursuant to section 114 of the FCAA;

(e) the ability of the department to obtain information from a source pursuant to the Montana Clean Air Act, Title 75, chapter 2, MCA;

(f) the emergency powers of the department under the Montana Clean Air Act, Title 75, chapter 2, MCA; or

(g) the ability of the department to establish or revise requirements for the use of reasonably available control technology (RACT) as defined in this chapter. However, if the inclusion of a RACT into the permit pursuant to this subchapter is appealed to the board, the permit shield as it applies to the source's existing permit shall remain in effect until such time as the board has rendered its final decision.

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2003 MAR p. 645, Eff. 4/11/03; AMD, 2025 MAR, Notice No. 2025-174, Eff. 9/27/25.

Mont. Admin. R. 17.8.1215 Requirements for Air Quality Operating Permit Content Relating to Operational Flexibility

(1) If requested by the applicant, the department shall issue an air quality operating permit that contains terms and conditions for reasonably anticipated operating scenarios identified by the source in its application as approved by the department. Such terms and conditions shall:

(a) require the source, contemporaneously with making a change from one reasonably anticipated operating scenario to another, to record in a log at the permitted facility a record of the reasonably anticipated scenario under which it is operating;

(b) extend the permit shield described in ARM 17.8.1214 to all terms and conditions under each such reasonably anticipated operating scenario;

(c) require the source to provide contemporaneous written notification when the source shifts from one specified reasonably anticipated operating scenario to another such operating scenario; and

(d) ensure that the terms and conditions of each such reasonably anticipated operating scenario meet all applicable requirements and the requirements of this subchapter.

(2) A change in operating conditions at a source that does not violate an applicable requirement does not require the use of a reasonably anticipated operating scenario.

(3) If requested by the applicant, the department shall issue an air quality operating permit which contains terms and conditions for the trading or averaging of emissions increases and decreases in the permitted facility, to the extent that the applicable requirements provide for trading or averaging such increases and decreases without case-by-case review and approval. Emissions trading or averaging may occur subject to the terms and conditions in the permit without being included in a reasonably anticipated operating scenario. Such terms and conditions shall:

(a) include all terms required under ARM 17.8.1210 through 17.8.1213 and this rule to determine compliance;

(b) extend the permit shield described in ARM 17.8.1214 to all terms and conditions that allow such increases and decreases in emissions;

(c) provide for the written notification required in ARM 17.8.1224(1) (e) , which will state when the change will occur and shall describe the changes in emissions that will result and how these increases and decreases in emissions will comply with the terms and conditions of the permit; and

(d) meet all applicable requirements and requirements of this chapter.

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; AMD, 1995 MAR p. 535, Eff. 4/14/95; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.1220 Air Quality Operating Permit Issuance, Renewal, Reopening, and Modification

(1) An air quality operating permit, permit modification, or permit renewal may be issued only if all of the following conditions have been met:

(a) the department has received a complete application for a permit, permit revision, or permit renewal (applications for permit renewal or revision need only address those portions of the source that have or are proposed to be changed per the requirements of ARM 17.8.1205(3) (a) ) ;

(b) the department has complied with the requirements for public participation under ARM 17.8.1232;

(c) the department has complied with the requirements for notifying and responding to affected states under ARM 17.8.1233;

(d) the conditions of the permit provide for compliance with all applicable requirements and the requirements of this part; and

(e) the administrator has received a copy of the proposed permit, all necessary supporting documentation, and any notices required under ARM 17.8.1233, and has not objected to issuance of the permit under 17.8.1233 within 45 days of receipt of the proposed permit and all necessary supporting documentation; and

(f) if the administrator objects to the issuance of a permit, the department shall, within seven days of receipt of the administrator's objection, send the permit applicant a copy of the objection and any statement received from the administrator.

(2) Except as provided under the initial transition plan, (3) , or under regulations promulgated under Title IV or Title V of the FCAA for the permitting of affected sources under the acid rain program, the department shall take final action on each air quality operating permit application (including a request for permit modification or renewal) within 18 months of receiving a complete application.

(3) The department shall take final action on at least one-third of all air quality operating permit applications received during the initial transition period annually for a period of three years following approval of the permit program by the administrator.

(4) Within nine months after receiving a complete application, the department shall take final action on an air quality operating permit application containing an early reduction demonstration that has been approved by the administrator under section 112(i) (5) of the FCAA.

(5) The department shall ensure priority is given to taking action on Montana air quality permit applications for construction or modification submitted pursuant to subchapters 7, 8, 9, and 10 of this chapter.

(6) Upon filing, the department shall promptly make a determination as to whether the application is administratively complete, as provided for in ARM 17.8.1205(3) . The department shall provide notice to the applicant of whether the air quality operating permit application is substantively complete. Unless the department requests additional information or otherwise notifies the applicant of substantive incompleteness within 60 days of receipt of a permit application, the application shall be deemed complete. For modifications processed through the minor modification procedures contained in ARM 17.8.1226, the department does not have to provide a completeness determination.

(7) Within 30 days of receipt of a notice of substantive incompleteness, the source shall submit a response to the department supplying the requested information. The department may extend this time period upon request. If a response is not received within this time period the application shall be considered withdrawn, and may be resubmitted. The department shall notify the applicant in writing within 60 days thereafter if the application is still substantively incomplete. This, and any subsequent incomplete notice shall follow the same form and requirements as the original incomplete notice.

(8) The department shall provide a statement that sets forth the legal and factual basis for the draft air quality operating permit conditions (including references to the applicable statutory or regulatory provisions) . The department shall send this statement to the administrator and to any other person who requests it.

(9) The submittal of a complete air quality operating permit application does not affect a requirement that a source obtain a Montana air quality permit prior to commencement of construction under subchapters 7, 8, 9, or 10 of this chapter.

(10) An air quality operating permit modification for purposes of the acid rain portion of the permit shall be governed by regulations promulgated under Title IV of the FCAA.

(11) The renewal of an air quality operating permit is subject to the same procedural requirements that apply to permit issuance, including those for applications, content, public participation, and affected state and administrator review.

(12) Expiration of an air quality operating permit terminates the source's right to operate unless a timely and administratively complete permit renewal application has been submitted consistent with ARM 17.8.1205(2) (d) and 17.8.1221. If a timely and administratively complete application has been submitted all terms and conditions of the permit, including the application shield, remain in effect after the permit expires.

(13) The department shall provide a minimum of 30 days advance written notice to the holder of an air quality operating permit of the department's intent to revoke and reissue the permit or deny the permit renewal application. The notice of intent may not be appealed to the board. The department's final decision to revoke and reissue or deny renewal becomes effective and may be appealed to the board as provided for in ARM 17.8.1210(2) (j) . The permit shield described in ARM 17.8.1214(1) shall remain in effect during any appeal of the department's decision to deny renewal or revoke and reissue to the board until such time as the board renders its final decision. Nothing in this section shall limit the emergency powers of the department under the Montana Clean Air Act, Title 75, chapter 2, MCA.

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2003 MAR p. 645, Eff. 4/11/03.

Mont. Admin. R. 17.8.1221 Operation Without an Air Quality Operating Permit and Application Shield

(1) Except as provided in (2) , ARM 17.8.1224(3) , and 17.8.1226(6) and (10) , no source required to obtain an air quality operating permit may operate after the time that it is required to submit a timely and complete application for a permit, except in compliance with a permit issued under this subchapter.

(2) If a source required to obtain an air quality operating permit submits a timely and complete application for permit issuance or renewal, the source's failure to have a permit is not a violation of this subchapter until the department takes final action on the permit application, except as otherwise noted in this subchapter. This protection becomes effective upon determination by the department that a timely application is administratively complete, as provided for in ARM 17.8.1205(3) , and shall cease to apply if, subsequent to the substantive completeness determination made pursuant to ARM 17.8.1220(6) , and as required by ARM 17.8.1205(3) , the applicant fails to submit by the deadline specified in writing by the department any additional information identified as being necessary to process the permit application. If the department's final action on any permit application under this subchapter is appealed to the board, the application shield, if in effect, shall remain in effect until such time as the board renders its final decision.

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.1222 General Air Quality Operating Permits

(1) The department may provide for a general air quality operating permit covering a source category with numerous similar sources, if it concludes that the category is appropriate for permitting on a generic basis.

(2) The department may provide for a general permit based upon its own initiative or the application of a source within the source category. The department shall provide a notice and opportunity for public participation, consistent with ARM 17.8.1232. Such procedures may be combined with the rulemaking process before the department required for the adoption and incorporation by reference of a general permit.

(3) A general permit may be used to establish terms and conditions to implement applicable requirements for a source category or for new requirements that apply to sources with existing general permits, or to establish federally enforceable caps on emissions from sources in a specific category.

(4) A general permit may be appropriate under the following conditions:

(a) there are several permittees, permit applicants, or potential permit applicants who have the same or substantially similar operations, emissions, activities, or facilities;

(b) the permittees, permit applicants, or potential permit applicants emit the same types of regulated air pollutants;

(c) the operations, emissions, activities, or facilities are subject to the same or similar standards, limitations, and operating requirements; and

(d) the operations, emissions, activities or facilities are subject to the same or similar monitoring requirements.

(5) A general air quality operating permit shall include those requirements set forth in ARM 17.8.1210(4) .

(6) After a general permit has been proposed by the department and formally adopted by the department, a source that intends to operate under the terms of the general permit must provide written notice to the department before it may qualify for the general permit, as required by ARM 17.8.1205(3) (d) . Such notification shall identify the source, provide information sufficient to demonstrate that the source falls within the source category covered by the general permit and is capable of operating in compliance with the terms and conditions of the general permit, and include any additional information that may be specified in the general permit.

(7) Without repeating the public participation procedures required under ARM 17.8.1232, the department may review a source's written notification, and based upon the information submitted, confirm or deny that the source appears to both qualify for the general permit and be capable of operating in compliance with the terms and conditions of the general permit. The department may request such additional information from the source as may be necessary to make these findings. Such action is not a final permit action for purposes of board review.

(8) The department shall act to make the necessary findings in (7) , within 90 days of receipt of the notification provided for in (6) , and shall provide written notice to the source of its findings.

(9) A general permit shall provide that any source whose coverage under the general permit has been confirmed by the department pursuant to (7) , shall be entitled to the protection of the permit shield for all operations, activities, and emissions addressed by the general permit, unless and to the extent that it is subsequently determined that the source does not qualify for the conditions and terms of the general permit. If the source is later determined not to qualify for the conditions and terms of the general permit, the source may be subject to enforcement action for operation without an air quality operating permit.

(10) The renewal of a general permit is subject to the same procedural requirements, including public participation, that apply to the initial issuance of general permits.

(11) General air quality operating permits may not be authorized for affected sources under the acid rain program, unless otherwise provided in regulations promulgated under Title IV of the FCAA.

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.8.1223 Temporary Air Quality Operating Permits

(1) The department may issue an air quality operating permit authorizing emissions from similar operations by the same source owner or operator at multiple temporary locations. The operation must be temporary and involve at least one change of location during the term of the permit. No affected source may be permitted as a temporary source. Permits for temporary sources shall include those requirements set forth in ARM 17.8.1210(5) .

History

Authorizing statute(s): 75-2-217, MCA
Implementing statute(s): 75-2-217, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.1224 Additional Requirements for Operational Flexibility and Air Quality Operating Permit Changes That Do Not Require Revisions

(1) A source holding an air quality operating permit is authorized to make changes within a permitted facility as described in (3) and (4), providing the following conditions are met:

(a) the proposed changes do not require the source or stack to obtain a Montana air quality permit under subchapter 7 of this chapter;

(b) the proposed changes are not modifications under Title I of the FCAA, or as defined in subchapters 8, 9 or 10 of this chapter;

(c) the emissions resulting from the proposed changes do not exceed the emissions allowable under the permit, whether expressed as a rate of emissions, or in total emissions;

(d) the proposed changes do not alter permit terms that are necessary to enforce applicable emission limitations on emissions units covered by the permit;

(e) the facility provides the administrator and the department with written notification at least seven days prior to making the proposed changes.

(2) The source and department shall attach each notice provided pursuant to (1)(e) , to their respective copies of the appropriate air quality operating permit.

(3) Pursuant to the conditions in (1) and (2) , a source holding an air quality operating permit is authorized to make section 502(b) (10) changes, as defined in this subchapter, without a permit revision. For each such change, the written notification required under (1)(e), shall include a description of the change within the source, the date on which the change will occur, any change in emissions, and any permit term or condition that is no longer applicable as a result of the change.

(4) Pursuant to the conditions in (1) and (2), and upon the request of the permit applicant, the department shall issue an air quality operating permit that contains terms and conditions, including all terms required under ARM 17.8.1210 through 17.8.1213 and 17.8.1215 to determine compliance, allowing for the trading of emissions increases and decreases at the source solely for the purpose of complying with a federally enforceable emissions cap that is established in the permit independent of otherwise applicable requirements, providing the following conditions are met:

(a) the applicant must include in its application proposed replicable procedures and permit terms that ensure the emissions trades are quantifiable and enforceable;

(b) the emissions trades may not be applied to any emissions units for which emissions are not quantifiable or for which there are no replicable procedures to enforce the emissions trades;

(d) emission trading may only be done within a pollutant, that is, emission decreases may only be traded for emission increases of the same pollutant; and

(e) the written notification required under (1)(e), must state when the change will occur, and describe the changes in emissions that will result and how these increases and decreases in emissions will comply with the terms and conditions of the permit.

(5) A source holding an air quality operating permit may make a change not specifically addressed or prohibited by the permit terms and conditions without requiring a permit revision, provided that the following conditions are met:

(a) each proposed change does not weaken the enforceability of any existing permit condition;

(b) the department has not objected to such change;

(c) each proposed change meets all applicable requirements and does not violate any existing permit term or condition; and

(d) the source provides contemporaneous written notice to the department and the administrator of each change that is above the level for insignificant emission units as defined in ARM 17.8.1201(22) and 17.8.1206(3), and the written notice describes each such change, including the date of the change, any change in emissions, pollutants emitted, and any applicable requirement that would apply as a result of the change.

(6) The permit shield authorized by ARM 17.8.1214 shall not apply to changes made pursuant to (3), but is applicable to terms and conditions that allow for increases and decreases in emissions pursuant to (4).

(7) Notwithstanding any provisions of this rule, the following changes must be submitted as an air quality operating permit revision:

(a) any change that increases emissions above those allowed in the air quality operating permit;

(b) any change that increases emissions above those allowed in the Montana air quality permit;

(d) any change that is a modification or reconstruction under sections 110, 111, or 112 of the FCAA; or

(e) any change subject to the acid rain requirements under Title IV of the FCAA.

History

Authorizing statute(s): 75-2-217, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2003 MAR p. 645, Eff. 4/11/03; AMD, 2025 MAR, Notice No. 2025-174, Eff. 9/27/25.

Mont. Admin. R. 17.8.1225 Additional Requirements for Air Quality Operating Permit Amendments

(1) An administrative permit amendment may be made by the department to an air quality operating permit, consistent with the following:

(a) The department shall take no more than 60 days from receipt of a request for an administrative permit amendment to take final action on such request, and may incorporate such changes into the permit without providing notice to the public or affected states, provided that it designates any such permit revisions as having been made pursuant to this rule.

(b) The department shall submit a copy of the revised permit to the administrator.

(c) The source may implement the changes addressed in the request for an administrative amendment immediately upon submittal of the request.

(2) If the administrative permit amendment involves a change in ownership or operational control of a source, the applicant must include in its request to the department a written agreement containing a specific date for the transfer of permit responsibility, coverage, and liability between the current and new permittee. Such an amendment shall be approved unless the department affirmatively demonstrates why such a change would violate an applicable requirement or jeopardize compliance with the terms and conditions of the operating permit.

(3) Administrative permit amendments for purposes of the acid rain portion of the permit will be governed by regulations promulgated under Title IV of the FCAA.

(4) The permit shield provided for in ARM 17.8.1214 does not apply to administrative permit amendments.

History

Authorizing statute(s): 75-2-217, MCA
Implementing statute(s): 75-2-217, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2000 MAR p. 838, Eff. 3/31/00.

Mont. Admin. R. 17.8.1226 Additional Requirements for Minor Air Quality Operating Permit Modifications

(1) Minor air quality operating permit modification procedures may be used only for those permit modifications that:

(a) do not violate any applicable requirement;

(b) do not involve significant changes to existing monitoring, reporting, or recordkeeping requirements or other permit terms that are necessary to enforce applicable emission limitations on emissions units covered by the permit;

(c) do not require or change a case-by-case determination of an emission limitation or other standard, a source-specific determination of ambient impacts for temporary sources, or a visibility or increment analysis;

(d) are not modifications under any provision of Title I of the FCAA;

(e) do not require a Montana air quality permit;

(f) are not required by the department to be processed as a significant modification; and

(g) do not seek to establish or change a permit term for which there is no corresponding underlying applicable requirement and that the source has assumed to avoid an applicable requirement to which the source would otherwise be subject. Such terms include a federally enforceable emissions cap assumed to avoid classification as a modification under Title I of the FCAA, and an alternative emissions limit approved pursuant to regulations promulgated under section 112(i) (5) of the FCAA.

(2) Notwithstanding (1) and (7) , minor air quality operating permit modification procedures may be used for permit modifications involving the use of economic incentives, marketable permits, emissions trading, and other similar approaches, to the extent that such minor permit modification procedures are explicitly provided for in the Montana State Implementation Plan or in applicable requirements promulgated by the administrator.

(3) An application for a minor permit modification under this rule need only address in detail those portions of the permit application that require revision, updating, supplementation, or deletion, and may reference any required information that has been previously submitted.

(4) Within five working days of receipt of a complete permit modification application, the department shall meet its obligation under ARM 17.8.1233 to notify the administrator and affected states of the requested permit modification. The department must promptly send any notice required under ARM 17.8.1233 to the administrator.

(5) The department may not issue a final minor air quality operating permit modification until after the administrator's 45-day review period ends, or until the administrator has notified the department that the administrator will not object to issuance of the permit modification, whichever first occurs, although the department can approve the permit modification prior to that time. Within 90 days of the department's receipt of an application under minor modification procedures or 15 days after the end of the administrator's 45-day review period under ARM 17.8.1233, whichever is later, and after the close of any public comment period, the department shall:

(a) issue the permit modification as proposed;

(b) deny the permit modification application;

(c) determine that the requested permit modification does not meet the minor modification criteria and should be reviewed under the significant modification procedures; or

(d) revise the draft permit modification and transmit to the administrator the new proposed permit modification as required by ARM 17.8.1233.

(6) Unless the proposed change requires a Montana air quality permit, the source may make the change proposed in its minor modification application immediately after such application is filed with the department. After the source makes the proposed change, and until the department takes any of the actions specified in (5) , the source must comply with both the applicable requirements governing the change and the proposed permit terms and conditions. During this time period, the source need not comply with the existing permit terms and conditions that it seeks to modify. However, if the source fails to comply with its proposed permit terms and conditions during this time period, the existing permit terms and conditions that it seeks to modify may be enforced against it.

(7) Consistent with the requirements in this section and (8) through (10) , the department may process groups of a source's applications for certain modifications eligible for minor modification processing. Group processing may be used only for those modifications:

(a) that meet the criteria for minor modification procedures under (1) ; and

(b) that collectively are below 10% of the emissions allowed by the existing air quality operating permit for the emissions unit at which the change is requested, 20% of the applicable definition of major source in ARM 17.8.1201(23) , or five tons per year, whichever is least.

(8) On a quarterly basis or within five business days of receipt of a permit modification application demonstrating that the aggregate of a source's pending minor permit modification application equals or exceeds the threshold level set under (7) , whichever is earlier, the department must promptly meet its obligation under ARM 17.8.1233 to notify the administrator and affected states of the requested permit modifications. The department shall send any notice required under ARM 17.8.1233 to the administrator.

(9) The provisions of (5) shall apply to modifications eligible for group processing, except that the department shall take one of the actions specified in (5) (a) through (d) above, within 180 days of receipt of the application or 15 days after the end of the administrator's 45-day review period under ARM 17.8.1233, whichever is later.

(10) The provisions of (6) shall apply to modifications eligible for group processing.

(11) The permit shield under ARM 17.8.1214 will not extend to any minor modifications processed pursuant to this rule.

(12) If the department makes a written determination that a particular modification or type of modification requires public notice, the department shall, consistent with ARM 17.8.1232, provide public notice of a change or changes proposed in a minor permit modification application pursuant to this rule, promptly on the making of the determination, and the department shall provide written notice to the source of the specific reason for such determination. It is the intention of this section that public notice for minor modifications shall not be required as a routine procedure.

History

Authorizing statute(s): 75-2-217, MCA
Implementing statute(s): 75-2-217, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2002 MAR p. 3567, Eff. 12/27/02; AMD, 2003 MAR p. 645, Eff. 4/11/03.

Mont. Admin. R. 17.8.1227 Additional Requirements for Significant Air Quality Operating Permit Modifications

(1) The modification procedures set forth in (3) , must be used for any application requesting a significant modification of an air quality operating permit. Significant modifications include the following:

(a) any permit modification that does not qualify as either a minor modification or as an administrative permit amendment;

(b) every significant change in existing permit monitoring terms or conditions;

(c) every relaxation of permit reporting or recordkeeping terms or conditions which limits the department's ability to determine compliance with any applicable rule, consistent with the requirements of the rule; or

(d) any other change determined by the department to be significant.

(2) Nothing herein may be construed to preclude the permittee from making changes consistent with this chapter that would render existing permit compliance terms and conditions irrelevant.

(3) Significant modifications shall meet all requirements of this chapter, including those for applications, public participation, and review by affected states and the administrator, as they apply to permit issuance and renewal, except that an application for a significant modification permit need only address in detail those portions of the permit application that require revision, updating, supplementation, or deletion. The department shall conduct this process to complete review of the majority of significant modifications within nine months after receipt of a complete application.

(4) The permit shield provided for in ARM 17.8.1214 shall extend to significant modifications.

History

Authorizing statute(s): 75-2-217, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; AMD, 1995 MAR p. 535, Eff. 4/14/95; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.1228 Additional Requirements for Air Quality Operating Permit Revocation, Reopening, and Revision for Cause

(1) An air quality operating permit may be reopened and revised only under the following circumstances:

(a) Additional applicable requirements under the FCAA become applicable to a major source holding a permit with a remaining term of three or more years. Reopening and revision of the permit shall be completed not later than 18 months after promulgation of the applicable requirement. No reopening is required under this subsection if the effective date of the applicable requirement is later than the date on which the permit is due to expire, unless the original permit or any of its terms and conditions have been extended pursuant to ARM 17.8.1220(12) or 17.8.1221(2) .

(b) Additional requirements (including excess emissions requirements) become applicable to an affected source under the acid rain program. Upon approval by the administrator, excess emissions offset plans shall be deemed to be incorporated into the permit.

(c) The department or the administrator determines that the permit contains a material mistake or that inaccurate statements were made in establishing the emissions standards or other terms or conditions of the permit.

(d) The administrator or the department determines that the permit must be revised or revoked and reissued to assure compliance with the applicable requirements.

(2) Each permit issued under this subchapter shall specify that under the circumstances contained in (1) (a) through (d) , the permit shall be reopened and revised.

(3) Proceedings to reopen and revise an air quality operating permit, including the opportunity for appeal and review by the board, shall follow the same procedures as apply to permit issuance, and shall affect only those parts of the permit for which cause exists for reopening and revision under (1) . Reopening and revision shall be completed as expeditiously as practicable.

(4) The department shall provide a minimum of 90 days advance written notice to the holder of an air quality operating permit of the department's intent to reopen and revise the permit under (1) . The department may, in the notice of intent, request such information as may be necessary to prepare the permit revision for inclusion in the permit after reopening. The notice of intent to reopen may not be appealed to the board. The department's final decision on reopening and revision becomes effective and may be appealed to the board as provided for in ARM 17.8.1210(2) (j) . In an appeal of the department's final decision on reopening, the department shall be required to make a showing of substantial necessity. The permit shield described in ARM 17.8.1214(1) shall remain in effect during any appeal of the department's decision to reopen to the board until such time as the board renders its final decision. Nothing in this section shall limit the emergency powers of the department under the Montana Clean Air Act, Title 75, chapter 2, MCA.

History

Authorizing statute(s): 75-2-217, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.1231 Notice of Termination, Modification, or Revocation and Reissuance by the Administrator for Cause

(1) If the administrator notifies the department and the permittee in writing that cause exists to terminate, modify, or revoke and reissue an air quality operating permit pursuant to the circumstances contained in ARM 17.8.1228(1) , the department shall, within 90 days after receipt of notification, forward to the administrator a proposed determination of termination, modification, or revocation and reissuance, as appropriate. The department may apply to the administrator for an extension of up to an additional 90 days if a new or revised permit application is necessary or the department must require the permittee to submit additional information.

(2) If the administrator objects in writing to the department's proposed determination pursuant to (1) , the department shall have 90 days from receipt of the objection to resolve the issues raised by the administrator, and to terminate, modify, or revoke and reissue the permit in accordance with the administrator's objection.

History

Authorizing statute(s): 75-2-217, MCA
Implementing statute(s): 75-2-217, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.1232 Public Participation

(1) Except for permit changes not requiring revisions under ARM 17.8.1224, administrative permit amendments under ARM 17.8.1225, department review of activities to be conducted pursuant to general permits under ARM 17.8.1222, and minor permit modifications where the department has not made a determination that public notice is required under ARM 17.8.1226(12), all air quality operating permit proceedings, including initial permit issuance, minor permit modifications where the department has made a determination that public notice is required under ARM 17.8.1226(12), significant permit modifications, and renewals, shall provide adequate procedures for public notice, including an opportunity for both public comment and a hearing on the draft permit. These procedures shall include the following:

(a) The department shall give public notice by publication in a newspaper of general circulation in the area where the source is located, to persons on a mailing list developed by the department including those who request in writing to be on the list, and by other means if necessary to assure adequate notice to the affected public.

(b) The notice required under (1)(a), shall identify the following:

(i) the affected facility;

(ii) the name and address of the permittee;

(iii) the name and address of the department;

(iv) the activity or activities involved in the permit action;

(v) the emissions change involved in any permit modification;

(vi) the name, address, and telephone number of a person from whom interested persons may obtain additional information, including copies of the draft permit, the application, all relevant supporting materials, including those set forth in compliance plans, compliance certification reports and monitoring reports, and all other materials available to the department that are relevant to the permit decision, with the exception of information that has been declared confidential;

(vii) a brief description of the comment and appeal procedures required by this chapter; and

(viii) the time and place of any hearing that may be held, including a statement of procedures to request a hearing (unless a hearing has already been scheduled).

(c) The department shall provide such notice and opportunity for participation by affected states as provided in ARM 17.8.1233.

(d) The department shall provide at least 30 days for public comment and shall give notice of any public hearing at least 30 days in advance of the hearing.

(2) The department shall keep a record of both the commentors and the issues raised during the public participation process so that the administrator may fulfill the obligation under section 505(b)(2) of the FCAA to determine whether a citizen petition may be granted, and such records shall be available to the public.

(3) All comments received during the public comment period shall be promptly forwarded to the source in order that the source may have an opportunity to respond to these comments.

History

Authorizing statute(s): 75-2-217, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2003 MAR p. 645, Eff. 4/11/03; AMD, 2007 MAR p. 1663, Eff. 10/26/07.

Mont. Admin. R. 17.8.1233 Permit Review by the Administrator and Affected States

(1) The department shall provide to the administrator a copy of each proposed and each final air quality operating permit, including any permit that has been appealed to the Board of Environmental Review, if the board has directed the department to issue a permit that differs from the proposed permit previously forwarded to the administrator for review in compliance with this section.

(2) An applicant shall provide a copy of each air quality operating permit application and each minor or significant permit modification application (including the compliance plans) directly to the administrator. To the extent practicable, the information required under this section shall be provided in computer-readable format compatible with the administrator's national database management system.

(3) The department shall keep for five years such records and submit to the administrator such information as the administrator reasonably requires to ascertain whether the state program complies with the requirements of the FCAA and 40 CFR Part 70.

(4) The department shall give notice of each draft air quality operating permit to any affected state on or before the time that the department provides this notice to the public under ARM 17.8.1232, except to the extent ARM 17.8.1226(4) or (8) requires the timing of the notice to be different. The department shall also give notice to any affected state of any appeal of an operating permit to the board, on or before the date that the department provides this notice to the public.

(5) The department shall, as part of the submittal of the proposed air quality operating permit to the administrator (or as soon as possible after the submittal for minor permit modification procedures allowed under ARM 17.8.1226(4) or (8) ) notify the administrator and any affected state in writing of any refusal by the department to accept all recommendations for the proposed permit submitted by the affected state during the public comment or affected state review period. The notice shall include the department's reasons for not accepting any such recommendation. The department is not required to accept recommendations that are not based on applicable requirements or the requirements of this subchapter. Those requirements designated as not being federally enforceable may not serve as the basis for such recommendations.

(6) No air quality operating permit for which an application must be transmitted to the administrator under (2) , shall be issued if the administrator objects in writing to its issuance within 45 days of receipt of the proposed permit and all necessary supporting information. Objections by the administrator shall only be based on the grounds that the permit did not demonstrate or require compliance with applicable requirements or comply with the requirements of this subchapter. Those requirements designated as not being federally enforceable may not serve as the basis for such objections.

(7) Any objection by the administrator under (6) , shall include a statement of the administrator's reasons for objection and a description of the terms and conditions that the air quality operating permit must include to respond to the objection. The administrator shall provide to the permit applicant a copy of the objection.

(8) The failure of the department to do any of the following shall also constitute grounds for an objection by the administrator:

(a) comply with (1) through (5) ;

(b) submit any information necessary to adequately review the proposed permit; or

(c) process the permit under the procedures approved to meet ARM 17.8.1232, except for those actions by the department that are not subject to ARM 17.8.1232.

(9) If the administrator does not object in writing under (6) , any person may petition the administrator within 60 days after the expiration of the administrator's 45-day review period to make such objection.

(10) Any petition filed with the administrator pursuant to (9) shall be based only on objections to the air quality operating permit that were raised with reasonable specificity during the public comment period provided for in ARM 17.8.1232, unless the petitioner demonstrates that it was impracticable to raise such objections within such period, or unless the grounds for such objection arose after such period.

(11) If the administrator objects to the air quality operating permit as a result of a petition filed under (9) , the department shall not issue the permit until the administrator's objection has been resolved, except that a petition for review does not stay the effectiveness of a permit or its requirements if the permit was issued after the end of the 45-day review period and prior to the administrator's objection. If the department has issued a permit prior to receipt of the administrator's objection under this section, and the administrator modifies, terminates, or revokes and reissues the permit consistent with the procedures in ARM 17.8.1231, the department may thereafter issue only a revised permit that satisfies the administrator's objection. In any case, the source will not be in violation of the requirement to have submitted a timely and complete application. The permit shield described in ARM 17.8.1214(1) shall remain in effect until a final permit is issued.

(12) If, after an appeal, the board directs the department to issue an air quality operating permit that differs from the proposed permit previously forwarded to the administrator for review, and the administrator objects to issuance of the permit, the department shall not issue a permit until the administrator's objection has been resolved. Until final resolution, the source will not be in violation of the requirement to submit a timely and complete application. The permit shield described in ARM 17.8.1214(1) shall remain in effect until a final permit is issued. The permit issuance and appeal requirements of ARM 17.8.1210(2) (j) shall apply.

(13) Consistent with (6) through (12) , the department may not issue an air quality operating permit (including a permit renewal or modification) until the administrator has had an opportunity to review the proposed permit and affected states have had an opportunity to review the draft permit as required under this subchapter. The administrator may waive the opportunity for such review by the administrator and affected states.

History

Authorizing statute(s): 75-2-217, MCA
Implementing statute(s): 75-2-217, MCA
History: NEW, 1993 MAR p. 2933, Eff. 12/10/93; AMD, 1995 MAR p. 535, Eff. 4/14/95; TRANS, from DHES, 1996 MAR p. 2285.

Mont. Admin. R. 17.8.1234 Acid Rain--Permits Regulation

(1) For the purpose of this rule, the following definitions apply:

(a) "Permitting authority," as used in 40 CFR Part 72, means the Montana Department of Environmental Quality.

(b) The terms and associated definitions specified in 40 CFR Part 72 shall apply to this rule, except as specified in (1)(a).

(2) Any source that is subject to the requirements of 40 CFR Part 72 shall comply with all applicable requirements of 40 CFR Parts 72 and 75 in obtaining an operating permit under this subchapter.

History

Authorizing statute(s): 75-2-217, MCA
Implementing statute(s): 75-2-217, MCA
History: NEW, 1995 MAR p. 535, Eff. 4/14/95; AMD, 1996 MAR p. 1853, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2007 MAR p. 1663, Eff. 10/26/07.

Subchapter 17.8.13 Conformity

Mont. Admin. R. 17.8.1301 Definitions

(1) For the purposes of this subchapter, terms have the meaning as defined in 40 CFR 93.101, except that the definition of "regionally significant project" is modified below.

(2) For the purposes of this subchapter and 40 CFR Part 93, subpart A, as adopted by reference in this subchapter, the following additional definitions apply:

(a) "Adoption or approval of a regionally significant project" means, for the purposes of 40 CFR 93.121, the first time action necessary to authorize a project occurs, such as the issuance of administrative permits for the facility or for construction of the facility, the execution of a contract to construct the facility, any final action of a board, commission or administrator authorizing or directing employees to proceed with construction of the project, or any written decision or authorization from the metropolitan planning organization or the local agency that the project may be adopted or approved.

(b) "Consulted agency" means a federal, state, or local agency or MPO required to be consulted pursuant to this subchapter.

(c) "MPO" means a metropolitan planning organization created pursuant to 23 CFR Part 450, subpart C (Metropolitan Transportation Planning and Programming) for the purpose of carrying out transportation planning in urban areas. This includes the MPOs in Billings, Great Falls, and Missoula, any successors to these MPOs, and any MPO that is subsequently created for any area.

(d) "Regionally significant project" means a transportation project (other than an exempt project) that is on a facility that serves regional transportation needs (such as access to and from the area outside of the region, major activity centers in the region, major planned developments such as new retail malls, sports complexes, etc., or transportation terminals as well as most terminals themselves) and would normally be included in the modeling of a rural nonattainment area or metropolitan area's transportation network, including at a minimum all principal arterial highways and all fixed guideway transit facilities that will offer an alternative to regional highway travel.

(e) "Responsible entity" means a federal, state, or local government agency having primary responsibility for planning or approving an action for which consultation is required under 40 CFR Part 93, subpart A or this subchapter.

(f) "State air quality agency" means the Montana Department of Environmental Quality ("department" or "DEQ") or its successor agency.

(g) "State Department of Transportation" means the Montana Department of Transportation ("MDT") provided for in 2-15-2501 , MCA, or its successor agency.

History

Authorizing statute(s): 75-2-111, MCA
Implementing statute(s): 75-2-202, MCA
History: NEW, 1996 MAR p. 2299, Eff. 8/23/96; AMD, 1999 MAR p. 1216, Eff. 6/4/99.

Mont. Admin. R. 17.8.1302 Incorporation by Reference

(1) For the purposes of this subchapter, the department adopts and incorporates by reference 40 CFR Part 93, subpart A, which sets forth the conformity to state or federal implementation plans of transportation plans, programs, and projects developed, funded, or approved under Title 23 USC or the Federal Transit Act.

(2) Copies of materials incorporated by reference in this subchapter may be obtained as referenced in ARM 17.8.102(3) and (4).

History

Authorizing statute(s): 75-2-112, MCA
Implementing statute(s): 75-2-202, MCA
History: NEW, 1996 MAR p. 2299, Eff. 8/23/96; AMD, 1997 MAR p. 1581, Eff. 9/9/97; AMD, 1999 MAR p. 1216, Eff. 6/4/99; AMD, 2005 MAR p. 959, Eff. 6/17/05; AMD, 2007 MAR p. 1663, Eff. 10/26/07; AMD, 2018 MAR p. 438, Eff. 2/24/18; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.8.1304 Determining Conformity of Transportation Plans, Programs, and Projects to State or Federal Implementation Plans

(1) Any entity responsible for preparing any transportation plan, program, or project developed, funded, or approved under Title 23 USC or the Federal Transit Act shall comply with 40 CFR Part 93, subpart A and this subchapter.

(2) Any entity responsible for developing transportation related air quality emission inventories or implementation plans shall comply with 40 CFR Part 93, subpart A and this subchapter.

History

Authorizing statute(s): 75-2-111, MCA
Implementing statute(s): 75-2-202, MCA
History: NEW, 1996 MAR p. 2299, Eff. 8/23/96.

Mont. Admin. R. 17.8.1305 Consultation Requirements: Applicability

(1) The consultation procedures set out in this subchapter must be utilized by the department and local air quality agencies in developing applicable air quality control plans, and by the Federal Highway Administration (FHWA) and Federal Transit Administration (FTA), MDT, MPOs, and local transportation planning agencies in making conformity determinations or in deciding that a conformity determination is not necessary because a revision to a transportation plan or transportation improvement program merely adds or deletes an exempt project listed in 40 CFR Part 93, subpart A.

(2) Tables A through E below identify the specific actions for which consultation is required under this subchapter, and specify the parties, timing, methods, and documentation required for consultations.

TABLE A

ACTION: Research and Data Collection.

RESPONSIBLE ENTITY: MDT, DEQ, MPO, local air quality and transportation planning agencies

Action Step | Consult with | When to Consult | Consultation Method | Consultation Documentation

Design/scheduling funding of research and data collection for transportation related air quality inventories, transportation modeling, or planning efforts | local air and transportation agencies, MPO, DEQ, MDT | before starting research or data collection | letter of notification (meet at consulted agency request) | not required
Completion of project | same as above | project completion | distribute summary of findings | not required

TABLE B

ACTION: Preparation or revision of emission inventory (involving transportation-related emission sources).

RESPONSIBLE ENTITY: Local air quality agency or DEQ.

Action Step | Consult with | When to Consult | Consultation Method | Consultation Documentation

Selection of methods, models, assumptions, data sources for determining transportation emissions | local transportation and air agencies, MPO, DEQ, MDT, EPA, FHWA, FTA | before starting analysis using these parameters | letter of notification (meet at consulted agency request) | describe consultation, response, and response use in draft inventory
Release of draft emission inventory | same as above | release of draft inventory | distribution of draft inventory | discuss in final inventory
Release of final emission inventory | same as above | release of final inventory | distribution of final inventory * | not required

* If consultation on draft does not result in any revisions, distribution of a separate final document is not required. In this case consulted agencies may simply be notified that the draft has been adopted as final.

TABLE C

ACTION: Preparation or revision of air quality control plan.

RESPONSIBLE ENTITY: Local air quality agency or DEQ.

Action Step | Consult with | When to Consult | Consultation Method | Consultation Documentation

Selection of methods, models, assumptions, data sources for determining transportation-related emissions* | local transportation and air agencies, MPO, DEQ, MDT, FTA, FHWA, EPA | before starting analysis using these parameters | letter of notification (meet at consulted agency request) | describe consultation, response, and response use in draft control plan
Selecting transportation-related control strategies, transportation control measures (TCMs), and proposed transportation emissions budget | same as above | Before strategy /TCM selection and budget allocation | letter of notification (meet at consulted agency request) | Discuss in draft control plan
Distribution of draft control plan | same as above | release of proposed control plan | Distribute proposed control plan | Written response to consulted agency comment
State conflict resolution appeal period, per ARM 17.8.1312 | local transportation and air agencies, MPO, DEQ, MDT | initiated by responsible entity written response to comments on draft | appeals to governor by consulted agencies | discuss comments on draft, appeals (if any), and appeal resolution in final document
Adoption of final control plan (emission budget determination) | local transportation and air agencies, MPO, DEQ, MDT, FHWA, FTA, EPA | upon end of appeal period or resolution of any appeals | distribute final control plan** | not required

* Consultation at this step is not required if these factors are unchanged from those used in an emission inventory on which consultation requirements were fulfilled.

** If consultation on draft does not result in an appeal to the governor or in any revisions to the draft, distribution of a separate final document is not required. In this case consulted agencies may simply be notified that the draft has been adopted as final.

TABLE D

ACTION: Transportation Conformity Determination (for Transportation Plan, Transportation Improvement Program (TIP), Transportation Project, and Hot-Spot Analyses.

RESPONSIBLE ENTITY: MPO (MDT outside metropolitan areas and for issues covered in ARM 17.8.1310(1)(h) and (i)).

** NOTE ** For guidance relating to the specific action steps required for plan, TIP, project, or hot-spot analysis (and directions for accomplishing those steps) refer to 40 CFR Part 93.

Action Step | Consult with | When to Consult | Consultation Method | Consultation Documentation

Selection of methods, models, assumptions, data sources, and routes (including any minor arterials and projects otherwise exempted) to be used in emissions analysis* | local transportation and air agencies, DEQ, MDT, FHWA, FTA, EPA | before starting analysis using these parameters | letter of notification (meet at consulted agency request) | discuss consultation, response, and response use in draft determination
Identify projects to be included in the analysis (include exempt projects treated as nonexempt)* | same as above | upon initial selection and any revisions during analysis | same as above | same as above
Determine TCM implementation status per 40 CFR 93.113* | same as above | before starting emission analysis | same as above | discuss in draft conformity determination
Draft conformity determination release | same as above | before or with draft plan, TIP, or project document release | distribute determination | written response to comment on draft determination

Action Step | Consult with | When to Consult | Consultation Method | Consultation Documentation 5. State conflict resolution appeal period, per ARM 17.8.1312 | local air and transportation agencies, MPO, DEQ, MDT | initiated by responsible entity written response to comments on draft determination | appeals to governor by consulted agencies | discuss comments on draft, appeals (if any), and appeal resolution in final determination 6. Responsible entity final conformity determination | FHWA, FTA (notify local air and transportation agencies, MPO, DEQ, MDT) | upon conclusion of appeal period or resolution of any appeals | distribute and request concurrence from FHWA and FTA | not required 7. Conformity determination concurrence by FHWA and FTA | local air and transportation agencies, DEQ, MDT, FHWA, FTA, EPA | upon notice of FHWA and FTA concurrence | distribute final plan, TIP, or project document | summarize consultation process and conformity determination in final plan, TIP, or project document

* Consultation on these steps will often be done concurrently.

TABLE E

ACTION: Determination that a transportation plan or TIP revision or amendment merely adds or deletes exempt projects listed in 40 CFR 93.126.

RESPONSIBLE ENTITY: MPO or MDT.

Action Step | Consult with | When to Consult | Consultation Method | Consultation Documentation

Identification of projects included in the revision or amendment and initial finding that all are exempt and do not hinder TCM implementation | local transportation and air agencies, DEQ, MDT, FHWA, FTA, EPA | upon preliminary determination that all projects are exempt | letter of notification (meet at consulted agency request) | describe consultation, response, and response use in notice of final determination
Determination that all included projects are exempt and do not interfere with TCM implementation | same as above | upon responsible entity determination | same as above | not required OR 3. Determination that one or more included projects are not exempt or do interfere with TCM implementation | same as above | upon responsible entity determination | same as above | implement conformity determination process, per Table D

History

Authorizing statute(s): 75-2-111, MCA
Implementing statute(s): 75-2-202, MCA
History: NEW, 1996 MAR p. 2299, Eff. 8/23/96; AMD, 1999 MAR p. 1216, Eff. 6/4/99; AMD, 2005 MAR p. 959, Eff. 6/17/05.

Mont. Admin. R. 17.8.1306 Consultation Procedures

(1) Responsible entities shall conduct consultations in accordance with the specific procedures set out in Tables A through E of ARM 17.8.1305 . In conducting consultations, responsible entities shall comply with the following general requirements:

(a) The responsible entity shall allow reasonable time for consultation. Because the time available to accomplish many of the actions required under this subchapter will be limited, consulted agencies shall make a reasonable effort to develop response procedures that will allow them to respond quickly. In its request for consultation, the responsible entity shall specify the date by which a response is needed. If a consulted agency is unable to respond by the date specified, it shall contact the responsible entity to arrange a mutually acceptable date.

(b) The responsible entity shall provide sufficient information to provide a basis for meaningful consultation. If the supporting materials for a particular action are too voluminous for reasonable circulation, the responsible entity shall summarize and make available the materials not circulated. The responsible entity shall provide additional information upon request of a consulted agency.

(c) The responsible entity may use meetings for consultation and shall convene a consultation meeting upon request of a consulted agency. If a meeting is scheduled, the responsible entity shall notify all consulted agencies of the meeting. The responsible entity shall make a written record of the issues discussed and any decisions or commitments made during a consultation meeting.

(d) The responsible entity shall include in the draft and final documentation of the actions covered by this subchapter a description of the consultation opportunities provided during accomplishment of the action, a summary of the responses received, and a discussion of how those responses were used in accomplishing the action.

(2) For purposes of consultation contacts, the department shall maintain a list of offices and officials from each federal, state, and local government agency involved in actions requiring consultation pursuant to 40 CFR Part 93. The department shall distribute the list to all involved agencies, and update the list as necessary.

History

Authorizing statute(s): 75-2-111, MCA
Implementing statute(s): 75-2-202, MCA
History: NEW, 1996 MAR p. 2299, Eff. 8/23/96; AMD, 1999 MAR p. 1216, Eff. 6/4/99.

Mont. Admin. R. 17.8.1310 Special Issues

(1) In conducting consultations pursuant to ARM 17.8.1306 , responsible entities shall ensure that the following special issues are addressed, when applicable:

(a) evaluating and choosing a model or models and associated methods and assumptions to be used in hot-spot analyses and regional emissions analyses (see Table D, action step number 1);

(b) determining which minor arterials and other transportation projects should be considered "regionally significant" for the purposes of regional emissions analysis (in addition to those functionally classified as principal arterial or higher or fixed guideway systems or extensions that offer an alternative to regional highway travel) (see Table D, action step number 1), and which projects should be considered to have a significant change in design concept and scope from the transportation plan or TIP (see Table D, action step number 2);

(c) evaluating whether projects otherwise exempted from meeting the requirements of 40 CFR Part 93, subpart A (see 40 CFR 93.126 and 93.127) should be treated as nonexempt in cases where potential adverse emissions impacts may exist for any reason (see Table E);

(d) determining, as required by 40 CFR 93.113(c)(1), whether past obstacles to implementation of transportation control measures ("TCMs") that are behind the schedule established in the applicable implementation plan have been identified and are being overcome, and whether state and local agencies with influence over approvals or funding for TCMs are giving maximum priority to approval or funding for TCMs. This process shall also consider whether delays in TCM implementation necessitate revisions to the applicable implementation plan to remove TCMs or substitute TCMs or other emission reduction measures (see Table D, action step number 3);

(e) identifying, as required by 40 CFR 93.123(b), projects located at sites in PM-10 nonattainment areas that have vehicle and roadway emission and dispersion characteristics that are essentially identical to those at sites for which violations have been verified by monitoring, and therefore require quantitative PM-10 hot-spot analysis (see Table D, action step number 1);

(f) choosing conformity tests and methodologies for isolated rural nonattainment and maintenance areas as required by 40 CFR 93.109(l)(2)(iii) (see Table D, action step number 1);

(g) determining which transportation plan or TIP revisions or amendments merely add or delete exempt projects listed in 40 CFR Part 93, subpart A (see Table E);

(h) consulting on emissions analysis for transportation activities which cross the borders of MPOs or nonattainment areas or air basins (see Table D, action step number 1);

(i) whenever the MPO does not include the entire nonattainment or maintenance area, determining conformity of all projects outside the metropolitan area and within the nonattainment or maintenance area (see Table D, action step number 1);

(j) designing, scheduling, and funding research and data collection efforts and regional transportation model development by the MPO or MDT (e.g., household/travel transportation surveys) (see Table A, action step number 1).

History

Authorizing statute(s): 75-2-111, MCA
Implementing statute(s): 75-2-202, MCA
History: NEW, 1996 MAR p. 2299, Eff. 8/23/96; AMD, 1999 MAR p. 1216, Eff. 6/4/99; AMD, 2005 MAR p. 959, Eff. 6/17/05.

Mont. Admin. R. 17.8.1311 Notice Requirements for Non-Fhwa/Fta Projects

(1) Any state or local agency having the authority for planning or approving the construction of non-FHWA/FTA transportation project (including those by recipients of funds designated under Title 23 USC or the Federal Transit Act) shall ensure that the MPO and MDT are informed of project plans and plan changes on a timely basis. This requirement includes projects for which alternative locations, design concept and scope, or the no-build option are still being considered. Notice to the MPO and MDT must be in accordance with the following procedures:

(a) The agency planning or approving the project shall inform the MPO and MDT prior to obligating or expending funds for project design or construction or when the first consultation request following project concept identification is received from a responsible entity performing an action covered by this subchapter, whichever occurs first.

(b) Whenever the project information provided by an agency planning or approving a project is not adequate to determine whether the project is regionally significant or to perform a regional emissions analysis, the responsible entity shall coordinate with the agency planning or approving the project to reach agreement on significance and the assumptions about project parameters to be used in the responsible entity's analysis.

(c) If a project has not been disclosed to the responsible entity in accordance with (a) and is subsequently disclosed and determined to be regionally significant, the project must be deemed not to meet the requirements of 40 CFR 93.121 for adoption, approval, or funding.

History

Authorizing statute(s): 75-2-111, MCA
Implementing statute(s): 75-2-202, MCA
History: NEW, 1996 MAR p. 2299, Eff. 8/23/96; AMD, 1999 MAR p. 1216, Eff. 6/4/99.

Mont. Admin. R. 17.8.1312 Conflict Resolution

(1) Conflicts among state agencies or between state agencies and an MPO or a local agency that arise during consultations conducted pursuant to this subchapter may be appealed to the governor as follows if the conflict cannot be resolved by the affected agencies:

(a) A consulted agency that has submitted comments pursuant to this subchapter on a proposed implementation plan or conformity determination has 14 days to appeal to the governor after being notified by the responsible entity of the response to the consulted agency's comments. The specific actions that start the 14-day appeal period are identified in Tables C and D of ARM 17.8.1305 .

(b) The consulted agency must provide written notice of the appeal to the responsible entity and to the governor.

(c) If no appeal is filed within 14 days, the responsible entity may proceed with the final implementation plan or conformity determination. If an appeal is filed within 14 days, the final implementation plan or conformity determination must have the concurrence of the governor.

(2) The governor may delegate the conflict resolution and concurrence roles to another official or agency within the state, but not to the Montana Board of Environmental Review, the Environmental Quality Council, the Montana Transportation Commission, the directors or staffs of the department or MDT, or the MPO or local government entity involved in the dispute.

History

Authorizing statute(s): 75-2-111, MCA
Implementing statute(s): 75-2-202, MCA
History: NEW, 1996 MAR p. 2299, Eff. 8/23/96; AMD, 1999 MAR p. 1216, Eff. 6/4/99.

Mont. Admin. R. 17.8.1313 Public Consultation Procedures

(1) The following public consultation procedures must be adhered to during actions required by 40 CFR Part 93, subpart A, or this subchapter:

(a) Local air quality agencies and the department shall utilize a proactive public involvement process which provides opportunity for public review and comment prior to taking formal action establishing emissions budgets or allocating budgets among sources.

(b) MPOs and MDT shall utilize a proactive public involvement process which provides opportunity for public review and comment by, at a minimum, providing reasonable public access to technical and policy information considered by the agency at the beginning of the public comment period and prior to taking formal action on conformity determinations for all transportation plans and TIPs, consistent with the requirements of 23 CFR Part 450.316(b). Any charges imposed for public inspection and copying must be consistent with the fee schedule contained in 49 CFR Part 7, subpart E, except that state agency charges must be consistent with the governor's April 9, 1996, or most current, guidelines for responding to requests for access to, and/or copying, of agency documents. In addition, state agencies shall specifically address in writing all public comments that known plans for a regionally significant project that is not receiving FHWA or FTA funding or approval have not been properly reflected in the emissions analysis supporting a proposed conformity finding for a transportation plan or TIP. State agencies shall also provide opportunity for public involvement in conformity determinations for projects where otherwise required by law.

History

Authorizing statute(s): 75-2-112, MCA
Implementing statute(s): 75-2-202, MCA
History: NEW, 1996 MAR p. 2299, Eff. 8/23/96; AMD, 1999 MAR p. 1216, Eff. 6/4/99; AMD, 2024 MAR p. 2056, Eff. 8/24/24.

Subchapter 17.8.14 Conformity of General Federal Actions

Mont. Admin. R. 17.8.1401 Definitions

(1) For the purposes of this subchapter, terms have the meaning as defined in 40 CFR 93.152.

(2) For the purposes of this subchapter and 40 CFR Part 93, subpart B, as adopted by reference in this subchapter, the following additional definitions apply:

(a) "MPO" means Metropolitan Planning Organization and is that organization designated as being responsible, together with the state, for conducting the continuing, cooperative, and comprehensive planning process under 23 USC 134 and 49 USC 1607. This includes the MPOs in Billings, Great Falls, and Missoula, any successors to these MPOs, and any MPO that is subsequently created for any area.

(b) "State air quality agency" means the Montana Department of Environmental Quality ("department" or "DEQ"), or its successor agency.

History

Authorizing statute(s): 75-2-111, MCA
Implementing statute(s): 75-2-202, MCA
History: NEW, 1999 MAR p. 1216, Eff. 6/4/99.

Mont. Admin. R. 17.8.1402 Incorporation by Reference

(1) For the purposes of this subchapter, the department adopts and incorporates by reference the following:

(a) 40 CFR Part 93, subpart B, which requires the conformity of general federal actions, other than those covered by subpart A, to state or federal implementation plans, with the following changes:

(i) the reference to 40 CFR Part 51, subpart T, in 40 CFR 93.153(a), is replaced by ARM 17.8.1301, et seq.

(ii) the references to 40 CFR Part 51, subpart T, and 40 CFR 93, subpart A, in 40 CFR 93.158(a)(5)(ii) are replaced by ARM 17.8.1301, et seq.

(iii) 40 CFR 93.160(g) is replaced by: "Any agreements, including mitigation measures, necessary for a conformity determination will be both state and federally enforceable. Enforceability through the State Implementation Plan (SIP) will apply to all persons who agree to mitigate direct and indirect emissions associated with a federal action for a conformity determination."

(2) Copies of materials incorporated by reference in this subchapter may be obtained as referenced in ARM 17.8.102(3) and (4).

History

Authorizing statute(s): 75-2-112, MCA
Implementing statute(s): 75-2-202, MCA
History: NEW, 1999 MAR p. 1216, Eff. 6/4/99; AMD, 2005 MAR p. 959, Eff. 6/17/05; AMD, 2007 MAR p. 1663, Eff. 10/26/07; AMD, 2018 MAR p. 438, Eff. 2/24/18; AMD, 2024 MAR p. 253, Eff. 2/10/24; AMD, 2024 MAR p. 2056, Eff. 8/24/24.

Subchapter 17.8.15 Compliance Assurance Monitoring

Mont. Admin. R. 17.8.1501 Definitions

As used in this subchapter, unless indicated otherwise, the following definitions apply:

(1) The terms "air quality operating permit" or "permit", "air quality permit revision" or "permit revision", "applicable requirement", "emissions unit", "major source", and "regulated air pollutant" have the same meaning as provided under ARM 17.8.1201.

(2) "Air quality operating permit application" or "permit application" mean an application (including any supplement to a previously submitted application) that is submitted by the owner or operator to obtain an operating permit pursuant to ARM Title 17, chapter 8, subchapter 12.

(3) "Capture system" means the equipment (including but not limited to hoods, ducts, fans, and booths) used to contain, capture and transport a pollutant to a control device.

(4) "Continuous compliance determination method" means a method, specified by the applicable standard or an applicable permit condition, which:

(a) is used to determine compliance with an emission limitation or standard on a continuous basis, consistent with the averaging period established for the emission limitation or standard; and

(b) provides data either in units of the standard or correlated directly with the compliance limit.

(5) "Control device" means equipment, other than inherent process equipment, that is used to destroy or remove air pollutant(s) prior to discharge to the atmosphere. The types of equipment that may commonly be used as control devices include, but are not limited to, fabric filters, mechanical collectors, electrostatic precipitators, inertial separators, afterburners, thermal or catalytic incinerators, adsorption devices (such as carbon beds) , condensers, scrubbers (such as wet collection and gas absorption devices) , selective catalytic or noncatalytic reduction systems, flue gas recirculation systems, spray dryers, spray towers, mist eliminators, acid plants, sulfur recovery plants, injection systems (such as water, steam, ammonia, sorbent or limestone injection) , and combustion devices independent of the particular process being conducted at an emissions unit (for example, the destruction of emissions achieved by venting process emission streams to flares, boilers or process heaters) .

(a) For purposes of this subchapter, a control device does not include passive control measures that act to prevent pollutants from forming, such as the use of seals, lids, or roofs to prevent the release of pollutants, use of low-polluting fuel or feedstocks, or the use of combustion or other process design features or characteristics. If an applicable requirement establishes that particular equipment which otherwise meets this definition of a control device does not constitute a control device as applied to a particular pollutant-specific emissions unit, then that definition shall be binding for purposes of this subchapter.

(6) "Data" means the results of any type of monitoring or method, including the results of instrumental or noninstrumental monitoring, emission calculations, manual sampling procedures, recordkeeping procedures, or any other form of information collection procedure used in connection with any type of monitoring or method.

(7) "Emission limitation or standard" means any applicable requirement that constitutes an emission limitation, emission standard, standard of performance or means of emission limitation as defined under the FCAA. An emission limitation or standard may be expressed in terms of the pollutant, expressed either as a specific quantity, rate or concentration of emissions (for example, pounds of SO 2 per hour, pounds of SO 2 per million British thermal units of fuel input, kilograms of VOC per liter of applied coating solids, or parts per million by volume of SO 2 ) or as the relationship of uncontrolled to controlled emissions (for example, percentage capture and destruction efficiency of VOC or percentage reduction of SO 2 ) . An emission limitation or standard may also be expressed either as a work practice, process or control device parameter, or other form of specific design, equipment, operational, or operation and maintenance requirement. For purposes of this subchapter, an emission limitation or standard shall not include general operation requirements that an owner or operator may be required to meet, such as requirements to obtain a permit, to operate and maintain sources in accordance with good air pollution control practices, to develop and maintain a malfunction abatement plan, to keep records, submit reports, or conduct monitoring.

(8) "Exceedance" means a condition that is detected by monitoring that provides data in terms of an emission limitation or standard and that indicates that emissions (or opacity) are greater than the applicable emission limitation or standard (or less than the applicable standard in the case of a percent reduction requirement) consistent with any averaging period specified for averaging the results of the monitoring.

(9) "Excursion" means a departure from an indicator range established for monitoring under this subchapter, consistent with any averaging period specified for averaging the results of the monitoring.

(10) "FCAA" means the Federal Clean Air Act, as amended.

(11) "Inherent process equipment" means equipment that is necessary for the proper or safe functioning of the process, or material recovery equipment that the owner or operator documents is installed and operated primarily for purposes other than compliance with air pollution regulations. Equipment that must be operated at an efficiency higher than that achieved during normal process operations in order to comply with the applicable emission limitation or standard is not inherent process equipment. For the purposes of this subchapter, inherent process equipment is not considered a control device.

(12) "Monitoring" means any form of collecting data on a routine basis to determine or otherwise assess compliance with emission limitations or standards. Recordkeeping may be considered monitoring where such records are used to determine or assess compliance with an emission limitation or standard (such as records of raw material content and usage, or records documenting compliance with work practice requirements) . The conduct of compliance method tests, such as the procedures in appendix A to 40 CFR part 60, on a routine periodic basis may be considered monitoring (or as a supplement to other monitoring) , provided that requirements to conduct such tests on a one-time basis or at such times as a regulatory authority may require on a nonregular basis are not considered monitoring requirements for purposes of this paragraph. Monitoring may include one or more than one of the following data collection techniques, where appropriate for a particular circumstance:

(a) continuous emission or opacity monitoring systems.

(b) continuous process, capture system, control device or other relevant parameter monitoring systems or procedures, including a predictive emission monitoring system.

(d) maintenance and analysis of records of fuel or raw materials usage.

(e) recording results of a program or protocol to conduct specific operation and maintenance procedures.

(f) verification of emissions, process parameters, capture system parameters, or control device parameters using portable or in situ measurement devices.

(g) visible emission observations.

(h) any other form of measuring, recording, or verifying on a routine basis emissions, process parameters, capture system parameters, control device parameters or other factors relevant to assessing compliance with emission limitations or standards.

(13) "Monitoring malfunction" means any sudden, infrequent, not reasonably preventable failure of the monitoring to provide valid data. Monitoring failures that are caused entirely or in part by poor maintenance or careless operation are not malfunctions.

(14) "Owner or operator" means any person who owns, leases, operates, controls or supervises a stationary source subject to this subchapter.

(15) "Pollutant-specific emissions unit" means an emissions unit considered separately with respect to each regulated air pollutant.

(16) "Potential to emit" shall have the same meaning as provided under ARM 17.8.1201(26) , provided that it shall be applied with respect to an "emissions unit" as defined in ARM 17.8.1201(15) in addition to a "stationary source" as defined in ARM 17.8.1201(33) .

(17) "Predictive emission monitoring system (PEMS) " means a system that uses process and other parameters as inputs to a computer program or other data reduction system to produce values in terms of the applicable emission limitation or standard.

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 2000 MAR p. 839, Eff. 3/31/00.

Mont. Admin. R. 17.8.1502 Incorporation by Reference

(1) For purposes of this subchapter, the department adopts and incorporates by reference the following:

(a) 40 CFR 51.214 and 40 CFR Part 51, Appendix P, which set forth EPA minimum emissions monitoring requirements for the Montana State Implementation Plan;

(b) 40 CFR 60.13 and 40 CFR Part 60, Appendix B, which set forth EPA performance specification and test procedures for continuous emission monitoring systems for new stationary sources;

(c) 40 CFR Part 63, which sets forth monitoring requirements and performance specifications for source categories of hazardous air pollutants;

(d) 40 CFR 72.2, which contains the definition of utility unit;

(e) 40 CFR Part 75, which describes the continuous emission monitoring requirements for acid rain sources subject to Title IV of the FCAA and sources subject to mercury monitoring requirements; and

(f) 40 CFR Part 266, subpart H and Appendix IX, which set forth compliance and monitoring requirements for boilers and industrial furnaces.

(2) Copies of materials incorporated by reference in this subchapter may be obtained as referenced in ARM 17.8.102(3) and (4).

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 2000 MAR p. 839, Eff. 3/31/00; AMD, 2005 MAR p. 959, Eff. 6/17/05; AMD, 2006 MAR p. 1956, Eff. 8/11/06; AMD, 2007 MAR p. 1663, Eff. 10/26/07; AMD, 2018 MAR p. 438, Eff. 2/24/18; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.8.1503 Applicability

(1) Except for backup utility units that are exempt under (3) below, the requirements of this subchapter shall apply to a pollutant-specific emissions unit at a major source that is required to obtain an air quality operating permit if the unit satisfies all of the following criteria:

(a) The unit is subject to an emission limitation or standard for the applicable regulated air pollutant (or a surrogate thereof) , other than an emission limitation or standard that is exempt under (2) below;

(b) The unit uses a control device to achieve compliance with any such emission limitation or standard; and

(c) The unit has potential precontrol device emissions of the applicable regulated air pollutant that are equal to or greater than 100% of the amount, in tons per year, required for a source to be classified as a major source. For purposes of this paragraph, "potential precontrol device emissions" shall have the same meaning as "potential to emit", as defined in ARM 17.8.1501(16) , except that emission reductions achieved by the applicable control device shall not be taken into account.

(2) The requirements of this subchapter shall not apply to any of the following emission limitations or standards:

(a) emission limitations or standards proposed by the administrator of the EPA after November 15, 1990, pursuant to section 7411 or 7412 of the FCAA.

(b) stratospheric ozone protection requirements under Title VI of the FCAA.

(d) emission limitations or standards or other applicable requirements that apply solely under an emissions trading program approved or promulgated by the administrator under the FCAA that allows for trading emissions within a source or between sources.

(e) an emissions cap that meets the requirements specified in ARM 17.8.1224(4) .

(f) emission limitations or standards for which an air quality operating permit specifies a continuous compliance determination method, as defined in ARM 17.8.1501(4) . The exemption provided in this subsection shall not apply if the applicable compliance method includes an assumed control device emission reduction factor that could be affected by the actual operation and maintenance of the control device (such as a surface coating line controlled by an incinerator for which continuous compliance is determined by calculating emissions on the basis of coating records and an assumed control device efficiency factor based on an initial performance test; in this example, the requirements of this subchapter would apply to the control device and capture system, but not to the remaining elements of the coating line, such as raw material usage) .

(3) The requirements of this subchapter shall not apply to a utility unit, as defined in 40 CFR part 72.2, that is municipally owned if the owner or operator provides documentation in an air quality operating permit application that:

(a) The utility unit is exempt from all monitoring requirements in 40 CFR part 75 (including the appendices thereto) ;

(b) The utility unit is operated for the sole purpose of providing electricity during periods of peak electrical demand or emergency situations and will be operated consistent with that purpose throughout the permit term. The owner or operator shall provide historical operating data and relevant contractual obligations to document that this criterion is satisfied; and

(c) The actual emissions from the utility unit, based on the average annual emissions over the last three calendar years of operation (or such shorter time period that is available for units with fewer than three years of operation) are less than 50% of the amount in tons per year required for a source to be classified as a major source and are expected to remain so.

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 2000 MAR p. 839, Eff. 3/31/00.

Mont. Admin. R. 17.8.1504 General Criteria for Monitoring Design

(1) To provide a reasonable assurance of compliance with emission limitations or standards for the anticipated range of operations at a pollutant-specific emissions unit, monitoring under this subchapter shall meet the following general criteria:

(a) The owner or operator shall design the monitoring to obtain data for one or more indicators of emission control performance for the control device, any associated capture system and, if necessary to satisfy (1) (b) below, processes at a pollutant-specific emissions unit. Indicators of performance may include, but are not limited to, direct or predicted emissions (including visible emissions or opacity) , process and control device parameters that affect control device (and capture system) efficiency or emission rates, or recorded findings of inspection and maintenance activities conducted by the owner or operator.

(b) The owner or operator shall establish an appropriate range(s) or designated condition(s) for the selected indicator(s) such that operation within the range(s) provide a reasonable assurance of ongoing compliance with emission limitations or standards for the anticipated range of operating conditions. Such range(s) or condition(s) shall reflect the proper operation and maintenance of the control device (and associated capture system) , in accordance with applicable design properties, for minimizing emissions over the anticipated range of operating conditions at least to the level required to achieve compliance with the applicable requirements. The reasonable assurance of compliance will be assessed by maintaining performance within the indicator range(s) or designated condition(s) . The range(s) shall be established in accordance with the design and performance requirements in this rule, ARM 17.8.1505 and 17.8.1506, and documented in accordance with the requirements in 17.8.1507 and 17.8.1508. If necessary to assure that the control device and associated capture system can satisfy this criterion, the owner or operator shall monitor appropriate process operational parameters (such as total throughput where necessary to stay within the rated capacity for a control device) . In addition, unless specifically stated otherwise by an applicable requirement, the owner or operator shall monitor indicators to detect any bypass of the control device (or capture system) to the atmosphere, if such bypass can occur based on the design of the pollutant-specific emissions unit.

(i) based on a single maximum or minimum value if appropriate (for example, maintaining condenser temperatures a certain number of degrees below the condensation temperature of the applicable compound(s) being processed) or at multiple levels that are relevant to distinctly different operating conditions (for example, high versus low load levels) .

(ii) expressed as a function of process variables (for example, an indicator range expressed as minimum to maximum pressure drop across a venturi throat in a particulate control scrubber) .

(iii) expressed as maintaining the applicable parameter in a particular operational status or designated condition (for example, position of a damper controlling gas flow to the atmosphere through a bypass duct) .

(iv) established as interdependent between more than one indicator.

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 2000 MAR p. 839, Eff. 3/31/00.

Mont. Admin. R. 17.8.1505 Performance Criteria and Evaluation Factors for Monitoring Design

(1) The owner or operator shall design the monitoring to meet the following performance criteria:

(a) specifications that provide for obtaining data that are representative of the emissions or parameters being monitored (such as detector location and installation specifications, if applicable) .

(b) for new or modified monitoring equipment, verification procedures to confirm the operational status of the monitoring prior to the date by which the owner or operator must conduct monitoring under this subchapter as specified in ARM 17.8.1511(1) . The owner or operator shall consider the monitoring equipment manufacturer's requirements or recommendations for installation, calibration, and start-up operation.

(c) quality assurance and control practices that are adequate to ensure the continuing validity of the data. The owner or operator shall consider manufacturer recommendations or requirements applicable to the monitoring in developing appropriate quality assurance and control practices.

(d) specifications for the frequency of conducting the monitoring, the data collection procedures that will be used (for example, computerized data acquisition and handling, alarm sensor, or manual log entries based on gauge readings) , and, if applicable, the period over which discrete data points will be averaged for the purpose of determining whether an excursion or exceedance has occurred.

(i) At a minimum, the owner or operator shall design the period over which data are obtained and, if applicable, averaged consistent with the characteristics and typical variability of the pollutant-specific emissions unit (including the control device and associated capture system) . Such intervals shall be commensurate with the time period over which a change in control device performance that would require actions by the owner or operator to return operations within normal ranges or designated conditions is likely to be observed.

(ii) For all pollutant-specific emissions units with the potential to emit, calculated including the effect of control devices, the applicable regulated air pollutant in an amount equal to or greater than 100% of the amount, in tons per year, required for a source to be classified as a major source, for each parameter monitored, the owner or operator shall collect four or more data values equally spaced over each hour and average the values, as applicable, over the applicable averaging period as determined in accordance with (1) (d) (i) above. The department may approve a reduced data collection frequency, if appropriate, based on information presented by the owner or operator concerning the data collection mechanisms available for a particular parameter for the particular pollutant-specific emissions unit (for example, integrated raw material or fuel analysis data, noninstrumental measurement of waste feed rate or visible emissions, use of a portable analyzer or an alarm sensor) .

(iii) For other pollutant-specific emissions units, the frequency of data collection may be less than the frequency specified in (1) (d) (ii) above, but the monitoring shall include some data collection at least once per 24-hour period (for example, a daily inspection of a carbon adsorber operation in conjunction with a weekly or monthly check of emissions with a portable analyzer) .

(2) In designing monitoring to meet the requirements in ARM 17.8.1504 and (1) above, the owner or operator shall take into account site-specific factors including the applicability of existing monitoring equipment and procedures, the ability of the monitoring to account for process and control device operational variability, the reliability and latitude built into the control technology, and the level of actual emissions relative to the compliance limitation.

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 2000 MAR p. 839, Eff. 3/31/00.

Mont. Admin. R. 17.8.1506 Special Criteria for Monitoring Design

(1) If a continuous emission monitoring system (CEMS) , continuous opacity monitoring system (COMS) or predictive emission monitoring system (PEMS) is required pursuant to other authority under the FCAA or state or local law, the owner or operator shall use such system to satisfy the requirements of this subchapter.

(2) The use of a CEMS, COMS, or PEMS that satisfies any of the following monitoring requirements shall be deemed to satisfy the general design criteria in ARM 17.8.1504 and 17.8.1505, provided that a COMS may be subject to the criteria for establishing indicator ranges under ARM 17.8.1504:

(a) 40 CFR part 51.214 and appendix P of 40 CFR part 51;

(b) 40 CFR part 60.13 and appendix B of 40 CFR part 60;

(c) 40 CFR part 63.8 and any applicable performance specifications required pursuant to the applicable subpart of 40 CFR part 63;

(d) 40 CFR part 75;

(e) subpart H and appendix IX of 40 CFR part 266; or

(f) If an applicable requirement does not otherwise require compliance with the requirements listed in (2) (a) through (e) above, comparable requirements and specifications established by the department.

(3) The owner or operator shall design the monitoring system subject to this rule to:

(a) allow for reporting of exceedances (or excursions if applicable to a COMS used to assure compliance with a particulate matter standard) consistent with any period for reporting of exceedances in an underlying requirement. If an underlying requirement does not contain a provision for establishing an averaging period for the reporting of exceedances or excursions, the criteria used to develop an averaging period in ARM 17.8.1505(1) (d) shall apply; and

(b) provide an indicator range consistent with ARM 17.8.1504 for a COMS used to assure compliance with a particulate matter standard. If an opacity standard applies to the pollutant-specific emissions unit, such limit may be used as the appropriate indicator range unless the opacity limit fails to meet the criteria in ARM 17.8.1504 after considering the type of control device and other site-specific factors applicable to the pollutant-specific emissions unit.

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 2000 MAR p. 839, Eff. 3/31/00.

Mont. Admin. R. 17.8.1507 Submittal Requirements for Monitoring Indicators and Presumptively Acceptable Monitoring

(1) The owner or operator shall submit to the department monitoring that satisfies the design requirements in ARM 17.8.1504 through 17.8.1506. The submission shall include the following information:

(a) the indicators to be monitored to satisfy ARM 17.8.1504(1) (a) and (b) ;

(b) the ranges or designated conditions for such indicators, and the process by which such indicator ranges or designated conditions shall be established, or revised;

(d) if applicable, the indicator ranges and performance criteria for a CEMS, COMS or PEMS pursuant to ARM 17.8.1506, including the process by which indicator ranges or designated conditions shall be established or revised.

(2) As part of the information submitted, the owner or operator shall submit a justification for the proposed elements of the monitoring. If the performance specifications proposed to satisfy ARM 17.8.1505(1) (b) or (c) include differences from manufacturer recommendations, the owner or operator shall explain the reasons for the differences between the requirements proposed by the owner or operator and the manufacturer's recommendations or requirements. The owner or operator also shall submit any data supporting the justification, and may refer to generally available sources of information used to support the justification (such as generally available air pollution engineering manuals, or EPA or department publications on appropriate monitoring for various types of control devices or capture systems) . To justify the appropriateness of the monitoring elements proposed, the owner or operator may rely in part on existing applicable requirements that establish the monitoring for the applicable pollutant-specific emissions unit or a similar unit. If an owner or operator relies on presumptively acceptable monitoring, no further justification for the appropriateness of that monitoring should be necessary other than an explanation of the applicability of such monitoring to the unit in question, unless data or information is brought forward to rebut the presumption. Presumptively acceptable monitoring includes:

(a) presumptively acceptable or required monitoring approaches, established by the department in a rule that constitutes part of the applicable implementation plan required pursuant to Title I of the FCAA, that are designed to achieve compliance with this subchapter for particular pollutant-specific emissions units;

(b) continuous emission, opacity or predictive emission monitoring systems that satisfy applicable monitoring requirements and performance specifications as specified in ARM 17.8.1506;

(d) monitoring included for standards exempt from this subchapter pursuant to ARM 17.8.1503(2) (a) or (f) to the extent such monitoring is applicable to the performance of the control device (and associated capture system) for the pollutant-specific emissions unit.

(e) presumptively acceptable monitoring identified in guidance by the EPA. Such guidance may be sufficient for purposes of this rule and ARM 17.8.1508(1) and (2) , or additional information may be required.

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 2000 MAR p. 839, Eff. 3/31/00.

Mont. Admin. R. 17.8.1508 Additional Submittal Requirements Regarding Operating Parameter Data, Performance Testing, Implementation Plans, and Multiple Units and Control Devices

(1) Except as provided in (3) below, the owner or operator shall submit control device (and process and capture system, if applicable) operating parameter data obtained during the conduct of the applicable compliance or performance test conducted under conditions specified by the applicable rule. If the applicable rule does not specify testing conditions or only partially specifies test conditions, the performance test generally shall be conducted under conditions representative of maximum emissions potential under anticipated operating conditions at the pollutant-specific emissions unit. Such data may be supplemented, if desired, by engineering assessments and manufacturer's recommendations to justify the indicator ranges (or, if applicable, the procedures for establishing such indicator ranges) . Emission testing is not required to be conducted over the entire indicator range or range of potential emissions.

(2) The owner or operator must document that no changes to the pollutant-specific emissions unit, including the control device and capture system, have taken place that could result in a significant change in the control system performance or the selected ranges or designated conditions for the indicators to be monitored since the performance or compliance tests described in (1) above were conducted.

(3) If existing data from unit-specific compliance or performance testing specified in (1) above are not available, the owner or operator:

(a) shall submit a test plan and schedule for obtaining such data in accordance with (4) below; or

(b) may submit indicator ranges (or procedures for establishing indicator ranges) that rely on engineering assessments and other data, provided that the owner or operator demonstrates that factors specific to the type of monitoring, control device, or pollutant-specific emissions unit make compliance or performance testing unnecessary to establish indicator ranges at levels that satisfy the criteria in ARM 17.8.1504.

(4) If the monitoring submitted by the owner or operator requires installation, testing, or other necessary activities prior to use of the monitoring for purposes of this subchapter, the owner or operator shall include an implementation plan and schedule for completing these or any other appropriate activities prior to use of the monitoring. The implementation plan and schedule shall provide for use of the monitoring as expeditiously as practicable after approval of the monitoring in the air quality operating permit pursuant to ARM 17.8.1510, but in no case shall the schedule for completing installation and beginning operation of the monitoring exceed 180 days after approval of the permit.

(5) If a control device is common to more than one pollutant-specific emissions unit, the owner or operator may submit monitoring for the control device and identify the pollutant-specific emissions units affected and any process or associated capture device conditions that must be maintained or monitored in accordance with ARM 17.8.1504 rather than submit separate monitoring for each pollutant-specific emissions unit.

(6) If a single pollutant-specific emissions unit is controlled by more than one control device similar in design and operation, the owner or operator may submit monitoring that applies to all the control devices and identify the control devices affected and any process or associated capture device conditions that must be maintained or monitored in accordance with ARM 17.8.1504 rather than submit a separate description of monitoring for each control device.

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 2000 MAR p. 839, Eff. 3/31/00.

Mont. Admin. R. 17.8.1509 Deadlines for Submittals

(1) For all pollutant-specific emissions units with the potential to emit (taking into account control devices to the extent appropriate under the definition of this term in ARM 17.8.1501(16)) the applicable regulated air pollutant in an amount equal to or greater than 100% of the amount, in tons per year, required for a source to be classified as a major source, the owner or operator shall submit the information required under ARM 17.8.1507 and 17.8.1508 at the following times:

(a) on or after April 20, 1998, the owner or operator shall submit information as part of an application for an initial air quality operating permit if, by that date, the application either:

(i) has not been filed; or

(ii) has not yet been determined to be complete by the department.

(b) On or after April 20, 1998, the owner or operator shall submit information as part of an application for a significant permit revision of an air quality operating permit, but only with respect to those pollutant-specific emissions units for which the proposed permit revision is applicable.

(c) The owner or operator shall submit any information not submitted under the deadlines set forth in (1)(a) and (b), as part of the application for the renewal of an air quality operating permit.

(2) For all other pollutant-specific emissions units subject to this subchapter and not subject to (1), the owner or operator shall submit the information required under ARM 17.8.1507 and 17.8.1508 as part of an application for a renewal of an air quality operating permit.

(3) The effective date for the requirement to submit information under ARM 17.8.1507 and 17.8.1508 shall be as specified pursuant to (1) and (2), and a permit reopening to require the submittal of information under this rule shall not be required pursuant to ARM 17.8.1228(1)(a), provided, however, that, if an air quality operating permit is reopened for cause by the department pursuant to ARM 17.8.1228(1)(c) or (d), the department may require the submittal of information under this rule for those pollutant-specific emissions units that are subject to this subchapter and that are affected by the permit reopening.

(4) Prior to approval of monitoring that satisfies this subchapter, the owner or operator is subject to the requirements of ARM 17.8.1212(1)(b).

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 2000 MAR p. 839, Eff. 3/31/00; AMD, 2007 MAR p. 1663, Eff. 10/26/07.

Mont. Admin. R. 17.8.1510 Approval of Monitoring

(1) Based on an application that includes the information submitted in accordance with ARM 17.8.1509, the department shall act to approve the monitoring submitted by the owner or operator by confirming that the monitoring satisfies the requirements in ARM 17.8.1504 through 17.8.1506.

(2) In approving monitoring under this rule, the department may condition the approval on the owner or operator collecting additional data on the indicators to be monitored for a pollutant-specific emissions unit, including required compliance or performance testing, to confirm the ability of the monitoring to provide data that are sufficient to satisfy the requirements of this subchapter and to confirm the appropriateness of an indicator range(s) or designated condition(s) proposed to satisfy ARM 17.8.1504(1) (b) and (c) and consistent with the schedule in ARM 17.8.1508(4) .

(3) If the department approves the proposed monitoring, it shall establish one or more permit terms or conditions that specify the required monitoring in accordance with ARM 17.8.1212(1) . At a minimum, the permit shall specify:

(a) the approved monitoring approach that includes all of the following:

(i) the indicator(s) to be monitored (such as temperature, pressure drop, emissions, or similar parameter) ;

(ii) the means or device to be used to measure the indicator(s) (such as temperature measurement device, visual observation, or CEMS) ; and

(iii) the performance requirements established to satisfy ARM 17.8.1505(1) or 17.8.1506, as applicable.

(b) the means by which the owner or operator will define an exceedance or excursion for purposes of responding to and reporting exceedances or excursions under ARM 17.8.1511 and 17.8.1512. The permit shall specify the level at which an excursion or exceedance will be deemed to occur, including the appropriate averaging period associated with such exceedance or excursion. For defining an excursion from an indicator range or designated condition, the permit may include the specific value(s) or condition(s) at which an excursion shall occur, and shall include the specific procedures that will be used to establish that value or condition. The permit shall specify appropriate notice procedures for the owner or operator to notify the department upon any establishment or reestablishment of the value.

(c) if an excursion from an indicator range is to be considered a per se violation of an emission limitation or permit term. Unless so designated, an indicator range shall not be enforceable as a violation of a permit term.

(d) the obligation to conduct the monitoring and fulfill the other obligations specified in ARM 17.8.1511 through 17.8.1513.

(e) if appropriate, a minimum data availability requirement for valid data collection for each averaging period, and, if appropriate, a minimum data availability requirement for the averaging periods in a reporting period.

(4) If the monitoring proposed by the owner or operator requires installation, testing or final verification of operational status, the air quality operating permit shall include an enforceable schedule with appropriate milestones for completing such installation, testing, or final verification consistent with the requirements in ARM 17.8.1513(4) .

(5) If the department issues a draft permit that disapproves the proposed monitoring, the draft permit shall include monitoring that satisfies the requirements of ARM 17.8.1212(1) (b) , and a compliance schedule for the source owner to submit monitoring that satisfies 17.8.1504 through 17.8.1508.

(6) If the department disapproves the proposed monitoring, the final permit shall include, at a minimum, monitoring that satisfies the requirements of ARM 17.8.1212(1) (b) . The owner or operator shall comply with this monitoring until a plan for revised monitoring is implemented, as follows:

(a) the final permit shall include a compliance schedule for the owner or operator to submit monitoring that satisfies ARM 17.8.1504 through 17.8.1508. In no case shall the owner or operator be allowed to submit a plan for revised monitoring more than 180 days from the date of issuance of the final permit;

(b) if the owner or operator does not submit the plan for revised monitoring in accordance with the compliance schedule as required above, the owner or operator shall be deemed not in compliance with the requirements of this subchapter. If the department disapproves the monitoring submitted under the compliance schedule, and notwithstanding the owner or operator's compliance with monitoring that satisfies the requirements of ARM 17.8.1212(1) (b) , the owner or operator shall be deemed not in compliance with the requirements of this subchapter, unless the owner or operator files a timely request for a hearing pursuant to 75-2-218 (5) , MCA, and successfully challenges the disapproval.

(7) If an appeal of the department's decision is filed with the board, the deadline for filing any implementation plan and schedule required under ARM 17.8.1508(4) , or compliance schedule required under (6) (a) above, shall be tolled until the conclusion of the appeal process. If the board affirms the department's decision, the owner or operator shall comply with the implementation plan and schedule, or compliance schedule, as applicable. If the board rejects the department's decision, the board shall order the owner or operator to submit an implementation plan and schedule that provides for monitoring approved by the board as expeditiously as practicable. In no case may the owner or operator complete installation and begin operation of the monitoring more than 180 days from the date of the board's decision.

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 2000 MAR p. 839, Eff. 3/31/00.

Mont. Admin. R. 17.8.1511 Operation of Approved Monitoring

(1) The owner or operator shall conduct the monitoring required under this subchapter upon issuance of an air quality operating permit that includes such monitoring, or by such later date specified in the permit pursuant to ARM 17.8.1510(4) .

(2) At all times, the owner or operator shall maintain the monitoring, including but not limited to, maintaining necessary parts for routine repairs of the monitoring equipment.

(3) Except for, as applicable, monitoring malfunctions, associated repairs, and required quality assurance or control activities (including, as applicable, calibration checks and required zero and span adjustments) , the owner or operator shall conduct all monitoring in continuous operation (or shall collect data at all required intervals) at all times that the pollutant-specific emissions unit is operating. Data recorded during monitoring malfunctions, associated repairs, and required quality assurance or control activities shall not be used for purposes of this subchapter, including data averages and calculations, or fulfilling a minimum data availability requirement, if applicable. The owner or operator shall use all the data collected during all other periods in assessing the operation of the control device and associated control system. A monitoring malfunction is any sudden, infrequent, not reasonably preventable failure of the monitoring to provide valid data. Monitoring failures that are caused entirely or in part by poor maintenance or careless operation are not malfunctions.

(4) Upon detecting an excursion or exceedance, the owner or operator shall restore operation of the pollutant-specific emissions unit (including the control device and associated capture system) to its normal or usual manner of operation as expeditiously as practicable in accordance with good air pollution control practices for minimizing emissions. The response shall include minimizing the period of any startup, shutdown or malfunction and taking any necessary corrective actions to restore normal operation and prevent the likely recurrence of the cause of an excursion or exceedance (other than those caused by excused startup or shutdown conditions) . Such actions may include initial inspection and evaluation, recording that operations returned to normal without operator action (such as through response by a computerized distribution control system) , or any necessary follow-up actions to return operation to within the indicator range, designated condition, or below the applicable emission limitation or standard, as applicable.

(5) Determination of whether the owner or operator has used acceptable procedures in response to an excursion or exceedance under (4) above, will be based on information available, which may include but is not limited to, monitoring results, review of operation and maintenance procedures and records, and inspection of the control device, associated capture system, and the process.

(6) After approval of monitoring under this subchapter, if the owner or operator identifies a failure to achieve compliance with an emission limitation or standard for which the approved monitoring did not provide an indication of an excursion or exceedance while providing valid data, or the results of compliance or performance testing document a need to modify the existing indicator ranges or designated conditions, the owner or operator shall promptly notify the department and, if necessary, submit a proposed modification to the air quality operating permit to address the necessary monitoring changes. Such a modification may include, but is not limited to, reestablishing indicator ranges or designated conditions, modifying the frequency of conducting monitoring and collecting data, or the monitoring of additional parameters.

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 2000 MAR p. 839, Eff. 3/31/00.

Mont. Admin. R. 17.8.1512 Quality Improvement Plan Requirements

(1) Based on the results of a determination made under ARM 17.8.1511(5) , the department may require the owner or operator to develop and implement a quality improvement plan (QIP) . Consistent with ARM 17.8.1510(3) (d) , the air quality operating permit may specify an appropriate threshold, such as an accumulation of exceedances or excursions exceeding 5% duration of a pollutant-specific emissions unit's operating time for a reporting period, for requiring the implementation of a QIP. The threshold may be set at a higher or lower percent or may rely on other criteria for purposes of indicating whether a pollutant-specific emissions unit is being maintained and operated in a manner consistent with good air pollution control practices.

(2) Elements of a QIP are as follows:

(a) The owner or operator shall maintain a written QIP, if required, and have it available for inspection.

(b) The plan initially shall include procedures for evaluating the control performance problems and, based on the results of the evaluation procedures, the owner or operator shall modify the plan to include procedures for conducting one or more of the following actions, as appropriate:

(i) improved preventive maintenance practices.

(ii) process operation changes.

(iii) appropriate improvements to control methods.

(iv) other steps appropriate to correct control performance.

(v) more frequent or improved monitoring (only in conjunction with one or more steps under (2) (b) (i) through (iv) above) .

(3) If a QIP is required, the owner or operator shall develop and implement a QIP as expeditiously as practicable and shall notify the department if the period for completing the improvements contained in the QIP exceeds 180 days from the date on which the need to implement the QIP was determined.

(4) Following implementation of a QIP, upon any subsequent determination pursuant to ARM 17.8.1511(5) the department may require that an owner or operator make reasonable changes to the QIP if the QIP is found to have:

(a) failed to address the cause of the control device performance problems; or

(b) failed to provide adequate procedures for correcting control device performance problems as expeditiously as practicable in accordance with good air pollution control practices for minimizing emissions.

(5) Implementation of a QIP shall not excuse the owner or operator of a source from compliance with any existing emission limitation or standard, or any existing monitoring, testing, reporting or recordkeeping requirement that may apply under federal, state, or local law, or any other applicable requirements under the FCAA.

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 2000 MAR p. 839, Eff. 3/31/00.

Mont. Admin. R. 17.8.1513 Reporting and Recordkeeping Requirements

(1) On and after the date specified in ARM 17.8.1511(1) by which the owner or operator must use monitoring that meets the requirements of this subchapter, the owner or operator shall submit monitoring reports to the department in accordance with ARM 17.8.1212(3) (b) and (c) .

(2) A report for monitoring under this subchapter shall include, at a minimum, the information required under ARM 17.8.1212(3) (b) and (c) and the following information, as applicable:

(a) summary information on the number, duration and cause (including unknown cause, if applicable) of excursions or exceedances, as applicable, and the corrective actions taken;

(b) summary information on the number, duration and cause (including unknown cause, if applicable) for monitor downtime incidents (other than downtime associated with zero and span or other daily calibration checks, if applicable) ; and

(c) a description of the actions taken to implement a QIP during the reporting period as specified in ARM 17.8.1512. Upon completion of a QIP, the owner or operator shall include in the next summary report documentation that the implementation of the plan has been completed and reduced the likelihood of similar levels of excursions or exceedances occurring.

(3) The owner or operator shall comply with the recordkeeping requirements specified in ARM 17.8.1212(2) . The owner or operator shall maintain records of monitoring data, monitor performance data, corrective actions taken, any written quality improvement plan required pursuant to ARM 17.8.1512 and any activities undertaken to implement a quality improvement plan, and other supporting information required to be maintained under this subchapter (such as data used to document the adequacy of monitoring, or records of monitoring maintenance or corrective actions) .

(4) Instead of paper records, the owner or operator may maintain records on alternative media, such as microfilm, computer files, magnetic tape disks, or microfiche, provided that the use of such alternative media allows for expeditious inspection and review, and does not conflict with other applicable recordkeeping requirements.

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 2000 MAR p. 839, Eff. 3/31/00.

Mont. Admin. R. 17.8.1514 Savings Provisions

(1) Nothing in this subchapter shall:

(a) excuse the owner or operator of a source from compliance with any existing emission limitation or standard, or any existing monitoring, testing, reporting or recordkeeping requirement that may apply under federal, state, or local law, or any other applicable requirements under the FCAA. The requirements of this subchapter shall not be used to justify the approval of monitoring less stringent than the monitoring which is required under separate legal authority and are not intended to establish minimum requirements for the purpose of determining the monitoring to be imposed under separate authority under the FCAA, including monitoring in permits issued pursuant to Title I of the FCAA. The purpose of this subchapter is to require, as part of the issuance of a permit under Title V of the FCAA, improved or new monitoring at those emissions units where monitoring requirements do not exist or are inadequate to meet the requirements of this subchapter.

(b) restrict or abrogate the authority of the department to impose additional or more stringent monitoring, recordkeeping, testing, or reporting requirements on any owner or operator of a source under any provision of the FCAA, including but not limited to sections 7414(a) (1) and 7661c(b) , or state law, as applicable.

(c) restrict or abrogate the authority of the department to take any enforcement action under the FCAA for any violation of an applicable requirement or of any person to take action under section 7604 of the FCAA.

History

Authorizing statute(s): 75-2-217, 75-2-218, MCA
Implementing statute(s): 75-2-217, 75-2-218, MCA
History: NEW, 2000 MAR p. 839, Eff. 3/31/00.

Subchapter 17.8.16 Emission Control Requirements for Oil and Gas Well Facilities Operating Prior to Issuance of a Montana Air Quality Permit

Mont. Admin. R. 17.8.1601 Definitions

For the purposes of this subchapter, the following definitions apply:

(1) "Emissions minimizing technology" means a technology that reduces the amount of volatile organic compound (VOC) emissions from oil and gas well facilities through the use of resource recovery as fuel for process units or technology that results in significantly lower emissions of VOCs through the use of vapor capture and introduction into a pipeline.

(2) "Initial well completion date" has the meaning provided in 75-2-211(2)(b) , MCA.

(3) "Oil and gas well facility" has the meaning provided in 75-2-103(14)(a), MCA.

(4) "Potential to emit (PTE) " means the maximum capacity of a facility or emitting unit, within physical and operational design, to emit a pollutant. Any physical or operational limitation on the capacity of the facility or emitting unit to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, is treated as part of its design only if the limitation or the effect it would have on emissions is federally enforceable. Secondary emissions are not considered in determining potential to emit.

History

Authorizing statute(s): 75-2-111, 75-2-211, MCA
Implementing statute(s): 75-2-211, MCA
History: NEW, 2005 MAR p. 2660, Eff. 1/1/06; AMD, 2025 MAR, 17-451, Eff. 3/29/25.

Mont. Admin. R. 17.8.1602 Applicability and Coordination with Montana Air Quality Permit Rules

(1) The requirements of this subchapter apply to oil and gas well facilities that were completed after March 16, 1979, or that were modified after March 16, 1979, and that have the potential to emit (PTE) more than 25 tons per year (TPY) of any airborne pollutant that is regulated under this chapter.

(2) Notwithstanding (1) , the requirements of ARM 17.8.1603 do not apply until July 1, 2006, to oil and gas well facilities completed prior to January 3, 2006.

(3) The owner or operator of an oil and gas well facility shall submit to the department an application for a Montana air quality permit, pursuant to ARM 17.8.748, no later than January 3, 2006, or within 60 days after the initial well completion date for the facility, whichever is later.

(4) An owner or operator who complies with the requirements of this subchapter may construct, install, or use equipment necessary to complete or operate an oil or gas well facility without a permit until the department's decision on the application is final.

History

Authorizing statute(s): 75-2-111, 75-2-211, MCA
Implementing statute(s): 75-2-211, MCA
History: NEW, 2005 MAR p. 2660, Eff. 1/1/06.

Mont. Admin. R. 17.8.1603 Emission Control Requirements

(1) The owner or operator of an oil and gas well facility shall install and operate the following air pollution control equipment and comply with the following air pollution control practices:

(a) volatile organic compound (VOC) vapors greater than 500 British thermal units per standard cubic foot (BTU/scf) from oil and gas wellhead equipment must be routed to a gas pipeline, or, if a gas pipeline is not located within a 1/2 mile of the oil and gas well facility, VOC vapors greater than 500 BTU/scf must be captured and routed to emissions minimizing technology or to a smokeless combustion device equipped with an electronic ignition device or a continuous burning pilot system;

(b) VOC vapors greater than 500 BTU/scf from oil and condensate storage tanks with the PTE of 15 TPY or greater must be captured and routed to a gas pipeline, or if a gas pipeline is not located within a 1/2 mile of the oil and gas well facility, VOC vapors greater than 500 BTU/scf from storage tanks with the PTE of 15 TPY must be captured and routed to emissions minimizing technology, or to a smokeless combustion device equipped with an electronic ignition device or a continuous burning pilot system;

(d) VOC vapors greater than 500 BTU/scf from loading transport vehicles with the PTE greater than 15 TPY must be captured and routed to a gas pipeline, or, if a gas pipeline is not located within a 1/2 mile of the oil and gas well facility, VOC vapors greater than 500 BTU/scf from loading transport vehicles with a PTE greater than 15 TPY must be routed to emissions minimizing technology, or to a smokeless combustion device equipped with an electronic ignition device or a continuous burning pilot system;

(e) stationary internal combustion engines of rich burn design greater than 85 brake horsepower (BHP) must be equipped with nonselective catalytic reduction or its equivalent to control air emissions;

(f) stationary internal combustion engines of lean burn design greater than 85 BHP must be equipped with oxidation catalytic reduction or its equivalent to control air emissions; and

(g) oil and gas well facility operations must comply with the ambient air quality standards for hydrogen sulfide and other criteria pollutants.

(2) The owner or operator of an oil and gas well facility shall operate the air pollution control equipment and comply with the air pollution control practices required in (1) from the initial well completion date for the facility until the department decision on the permit application is final.

History

Authorizing statute(s): 75-2-111, 75-2-211, MCA
Implementing statute(s): 75-2-211, MCA
History: NEW, 2005 MAR p. 2660, Eff. 1/1/06.

Mont. Admin. R. 17.8.1604 Inspection and Repair Requirements

(1) The owner or operator of an oil and gas well facility shall inspect all VOC piping components for leaks each calendar month. Leak detection methods may incorporate the use of sight, sound, or smell.

(2) The owner or operator shall make the first attempt to repair any leaking VOC equipment within five days after the leak is detected.

(3) Any leaking VOC equipment must be repaired as soon as practicable, but no later than 15 days after the leak is initially detected, unless the repair is technically infeasible without a facility shutdown. Such equipment shall be repaired before the end of the first facility shutdown after the leak is initially detected.

History

Authorizing statute(s): 75-2-111, 75-2-211, MCA
Implementing statute(s): 75-2-211, MCA
History: NEW, 2005 MAR p. 2660, Eff. 1/1/06.

Mont. Admin. R. 17.8.1605 Recordkeeping Requirements

(1) The owner or operator of an oil and gas well facility shall record, and maintain onsite or at a central field office, a record of each monthly inspection.

(2) Inspection records must include, at a minimum, the following information:

(a) the date of the inspection;

(b) the findings of the inspection;

(d) any corrective action taken; and

(e) the inspector's name and signature.

(3) All records of inspection and repair must be kept as a permanent business record for at least five years, be available for inspections, and be submitted to the department upon request.

History

Authorizing statute(s): 75-2-111, 75-2-211, MCA
Implementing statute(s): 75-2-211, MCA
History: NEW, 2005 MAR p. 2660, Eff. 1/1/06.

Mont. Admin. R. 17.8.1606 Delayed Effective Date

(1) The requirements of ARM 17.8.1601 through 17.8.1605 are not effective until January 1, 2006.

History

Authorizing statute(s): 75-2-111, 75-2-211, MCA
Implementing statute(s): 75-2-211, MCA
History: NEW, 2005 MAR p. 2660, Eff. 12/23/05.

Subchapter 17.8.17 Registration of Air Contaminant Sources

Mont. Admin. R. 17.8.1701 Definitions

For the purposes of this subchapter:

(1) "Emitting unit" means:

(a) any equipment that emits or has the potential to emit any regulated air pollutant under the Clean Air Act of Montana through a stack(s) or vent(s) ; or

(b) any equipment from which emissions consist solely of fugitive emissions of a regulated air pollutant under the Clean Air Act of Montana.

(2) "Potential to emit (PTE) " means the maximum capacity of a facility or emitting unit, within physical and operational design, to emit a pollutant. Any physical or operational limitation on the capacity of the facility or emitting unit to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, is treated as part of its design only if the limitation or the effect it would have on emissions is federally enforceable. Secondary emissions are not considered in determining potential to emit.

(3) "Registered facility" means any registration eligible facility that has been registered for operation under the requirements in this subchapter.

(4) "Registration" means identifying equipment and/or processes to the department in accordance with this subchapter.

(5) "Registration eligible facility" means an oil or gas well facility as defined in 75-2-103(14), MCA, and that is subject to the requirements of ARM 17.8.743.

(6) "VOC piping components" means valves, pumps, compressors, flanges, pressure relief valves and connectors, and other piping components that have VOC emissions.

History

Authorizing statute(s): 75-2-111, 75-2-234, MCA
Implementing statute(s): 75-2-234, MCA
History: NEW, 2006 MAR p. 893, Eff. 4/7/06; AMD, 2025 MAR, 17-451, Eff. 3/29/25.

Mont. Admin. R. 17.8.1702 Applicability

(1) The owner or operator of a registration eligible facility may register with the department in lieu of submitting an application for, and obtaining, a Montana air quality permit (MAQP) . Nothing in this subchapter precludes an owner or operator from obtaining and/or maintaining a MAQP in accordance with ARM Title 17, chapter 8, subchapter 7.

(2) The owner or operator of an oil or gas well facility subject to the requirements of ARM Title 17, chapter 8, subchapter 12, is not eligible to register under this subchapter.

History

Authorizing statute(s): 75-2-111, 75-2-234, MCA
Implementing statute(s): 75-2-234, MCA
History: NEW, 2006 MAR p. 893, Eff. 4/7/06.

Mont. Admin. R. 17.8.1703 Registration Process and Information

(1) A registration eligible facility is registered upon the department's receipt of the form and information required in (2) and (3) and the appropriate fee required in ARM 17.8.1704. The department shall acknowledge receipt of a registration within 30 days after receiving the registration.

(2) The owner or operator shall provide the following information to the department, using a form provided by the department:

(a) facility name and mailing address;

(b) owner or operator's name, address, and telephone number;

(d) contact person and telephone number;

(e) general nature of business;

(f) standard industrial classification code (SIC) ;

(g) SIC description;

(h) narrative description of the site and facility; and

(i) site map.

(3) The owner or operator shall provide the following additional equipment-specific information to the department for each emitting unit, including any air pollution control equipment:

(a) manufacturer's name;

(b) unit type;

(d) maximum rated design capacity.

(4) The owner or operator of a registered facility shall notify the department, using the registration form provided by the department, of any change(s) to the registration information, within 15 days after the change(s) .

(5) The owner or operator of a registered facility that is modified and becomes subject to the provisions of 42 USC 7475, 7503, or 7661 shall meet the requirements of ARM Title 17, chapter 8, subchapters 8, 9, 10 and/or 12.

(6) The owner or operator of a registration eligible facility may not commence operations under the provisions of this subchapter until the facility has been registered with the department, except as provided in ARM 17.8.1710(1) .

(7) The owner or operator of a registration eligible facility for which a valid MAQP has been issued may register with the department and request revocation of the MAQP.

History

Authorizing statute(s): 75-2-111, 75-2-234, MCA
Implementing statute(s): 75-2-234, MCA
History: NEW, 2006 MAR p. 893, Eff. 4/7/06.

Mont. Admin. R. 17.8.1704 Registration Fee

(1) The registration fee required by ARM 17.8.504 must be submitted to the department with each registration submitted under this subchapter. No fee is required for notifying the department, pursuant to ARM 17.8.1703(4) , of changes to registration information.

(2) The registration fee must be paid in its entirety at the time the registration form is submitted to the department.

History

Authorizing statute(s): 75-2-111, 75-2-234, MCA
Implementing statute(s): 75-2-234, MCA
History: NEW, 2006 MAR p. 893, Eff. 4/7/06.

Mont. Admin. R. 17.8.1705 Operating Requirements: Facility-Wide

(1) The owner or operator of a registered facility shall allow the department's representatives access to the facility at all reasonable times for the purpose of making inspections or surveys, collecting samples, obtaining data, auditing any monitoring equipment, observing any monitoring or testing, and otherwise conducting all necessary functions related to this subchapter.

(2) The owner or operator of a registered facility shall monitor and record annual production information for all emission points, as required by the department in the annual emission inventory request. The request will include, but is not limited to, all emissions associated with emitting units registered to operate at the facility. Production information must be gathered on a calendar year basis and submitted to the department by the date required in the emission inventory request. Information must be in the units required by the department.

(3) The owner or operator of a registered facility shall maintain onsite records showing daily hours of operation and daily production rates and corresponding emission levels for the previous 12 months. The records compiled in accordance with this subchapter must be maintained by the owner or operator for at least five years following the date of the measurement, must be available at the plant site, unless otherwise specified in this subchapter, for inspection by the department, and must be submitted to the department upon request.

History

Authorizing statute(s): 75-2-111, 75-2-234, MCA
Implementing statute(s): 75-2-234, MCA
History: NEW, 2006 MAR p. 893, Eff. 4/7/06.

Mont. Admin. R. 17.8.1710 Oil or Gas Well Facilities General Requirements

(1) The owner or operator of a registration eligible oil or gas well facility may submit to the department a complete registration form, pursuant to ARM 17.8.1701 through 17.8.1705, within 60 days after the initial well completion date for the facility.

(2) The owner or operator of an oil or gas well facility who submits an application for a Montana air quality permit to the department prior to the effective date of this subchapter may request that the application be used in lieu of a registration form for registration of the oil or gas well facility by completing the form provided by the department.

(3) The owner or operator of a registered oil or gas well facility shall operate all emissions control equipment to provide the maximum air pollution control for which it was designed.

History

Authorizing statute(s): 75-2-111, 75-2-203, 75-2-211, 75-2-234, MCA
Implementing statute(s): 75-2-211, 75-2-234, MCA
History: NEW, 2006 MAR p. 893, Eff. 4/7/06.

Mont. Admin. R. 17.8.1711 Oil or Gas Well Facilities Emission Control Requirements

(1) The owner or operator of a registered oil or gas well facility shall install and operate the following air pollution control equipment and comply with the following air pollution control practices beginning at the time of registration:

(a) VOC vapors of 200 Btu/scf or greater from each piece of oil or gas well facility equipment, with a PTE greater than 15 tpy, must be captured and routed to a gas pipeline, routed to a smokeless combustion device equipped with an electronic ignition device or a continuous burning pilot system, meeting the requirements of 40 CFR 60.18, and operating at a 95% or greater control efficiency, or routed to air pollution control equipment with equal or greater control efficiency than a smokeless combustion device. The phrase "oil or gas well facility equipment" includes, but is not limited to, wellhead assemblies, amine units, prime mover engines, phase separators, heater treatment units, dehydrator units, tanks, and connecting tubing, but does not include equipment such as compressor engines used for transmission of oil or natural gas;

(b) hydrocarbon liquids must be loaded into, or unloaded from, transport vehicles using submerged fill technology;

(c) stationary internal combustion engines of rich-burn design greater than 85 brake horsepower (BHP) must be equipped with nonselective catalytic reduction or its equivalent to control air emissions; and

(d) stationary internal combustion engines of lean-burn design greater than 85 BHP must be equipped with oxidation catalytic reduction or its equivalent to control air emissions.

History

Authorizing statute(s): 75-2-111, 75-2-203, 75-2-234, MCA
Implementing statute(s): 75-2-234, MCA
History: NEW, 2006 MAR p. 893, Eff. 4/7/06.

Mont. Admin. R. 17.8.1712 Oil or Gas Well Facilities Inspection and Repair Requirements

(1) The owner or operator of an oil or gas well facility shall inspect all VOC piping components for leaks each calendar month. Leak detection methods may incorporate the use of sight, sound, or smell.

(2) The owner or operator shall make the first attempt to repair any leaking VOC equipment within five days after the leak is detected.

(3) The owner or operator shall repair any leaking VOC equipment as soon as practicable, but no later than 15 days after the leak is initially detected, unless the repair is technically infeasible without a facility shutdown. Such equipment shall be repaired before the end of the first facility shutdown after the leak is initially detected.

History

Authorizing statute(s): 75-2-111, 75-2-234, MCA
Implementing statute(s): 75-2-234, MCA
History: NEW, 2006 MAR p. 893, Eff. 4/7/06.

Mont. Admin. R. 17.8.1713 Oil or Gas Well Facilities Recordkeeping and Reporting Requirements

(1) The owner or operator of an oil or gas well facility shall record, and maintain onsite or at a central field office, a record of each monthly inspection required by ARM 17.8.1712.

(2) Inspection records must include, at a minimum, the following information:

(a) the date of the inspection;

(b) the findings of the inspection;

(d) any corrective action taken; and

(e) the inspector's name and signature.

(3) All records of inspection and repair must be kept as a permanent business record for at least five years, be available for department inspections, and be submitted to the department upon request.

(4) The owner or operator of a registration eligible oil or gas well facility with a detectible level of hydrogen sulfide from the well shall submit, with the registration form, an air quality analysis demonstrating compliance with ARM 17.8.210 and 17.8.214.

History

Authorizing statute(s): 75-2-111, 75-2-234, MCA
Implementing statute(s): 75-2-234, MCA
History: NEW, 2006 MAR p. 893, Eff. 4/7/06.

Subchapter 17.8.18 Standards and Requirements for Sand and Gravel, Concrete, and Asphalt

Mont. Admin. R. 17.8.1801 Definitions

For the purposes of this subchapter, the following definitions apply:

(1) "Asphalt plant" means a facility used to manufacture asphalt by heating and drying aggregate and mixing it with asphalt cement.

(2) "Concrete batch plant" means a facility that combines various ingredients, such as sand, water, aggregate, fly ash, potash, cement, and cement additives, to form concrete.

(3) "Deregister" means to revoke a registration.

(4) "Drop point" means a location at which air emissions are generated from the transfer of materials, such as loading raw materials into a hopper or transferring materials between conveyers.

(5) "Dust suppression control" means the use of water, water spray bars, chemical dust suppression, wind fences, enclosures, or other dust control techniques.

(6) "Facility" means any real or personal property that is either portable or stationary and is located on one or more contiguous or adjacent properties under the control of the same owner or operator and that emits or has the potential to emit any air pollutant subject to regulation under the Clean Air Act of Montana or the Federal Clean Air Act and that has the same two-digit standard industrial classification code. A facility may consist of one or more emitting units.

(7) "Nonmetallic mineral" has the meaning given in 40 CFR Part 60, subpart OOO.

(8) "Nonmetallic mineral processing plant" means a facility consisting of equipment that is used to crush, grind, or screen nonmetallic minerals and associated material-handling equipment and transfer points. The term does not include facilities in underground mines or at other stationary sources subject to Montana air quality permitting.

(9) "Permanent location" means a physical location at which a registered facility may remain or does remain for more than 12 months.

(10) "Registered facility" means a facility that has been registered in accordance with this subchapter.

(11) "Registration" means the submission to the department of the completed registration notification under ARM 17.8.1805.

(12) "Temporary location" means a physical location at which a registered facility remains for no more than 12 months.

History

Authorizing statute(s): 75-2-111, 75-2-234, MCA
Implementing statute(s): 75-2-234, MCA
History: NEW, 2019 MAR p. 425, Eff. 4/27/19.

Mont. Admin. R. 17.8.1802 Applicability

(1) This subchapter applies to the following facilities:

(a) Nonmetallic mineral processing plants with annual production of less than 8,000,000 tons as a rolling 12-month total.

(b) Concrete batch plants with annual production of less than 1,000,000 cubic yards as a rolling 12-month total.

(i) combust natural gas, propane, distillate fuel, waste oil, diesel, or biodiesel; and

(ii) have annual production of less than:

(A) 996,000 tons as a rolling 12-month total for drum mix plants; or

(B) 324,000 tons as a rolling 12-month total for batch mix plants.

(d) Engines, such as power generators and other internal combustion engines, associated with any facility described in (a) through (c).

(2) An owner or operator of a facility that is not listed in (1) shall comply with the applicable application and permitting requirements of this chapter.

History

Authorizing statute(s): 75-2-111, 75-2-234, MCA
Implementing statute(s): 75-2-234, MCA
History: NEW, 2019 MAR p. 425, Eff. 4/27/19.

Mont. Admin. R. 17.8.1805 Registration Process and Information

(1) Except as provided in (3), the owner or operator of a facility that meets the applicability criteria of ARM 17.8.1802 and that commences operation after April 27, 2019 shall:

(a) register the facility with the department prior to beginning initial operations; or

(b) register the facility with the department and request revocation of the associated Montana air quality permit (MAQP), if the owner or operator holds a valid MAQP for the facility.

(2) Except as provided in (3), the owner or operator of a facility that meets the applicability criteria of ARM 17.8.1802 and that commenced operation prior to April 27, 2019 shall:

(a) register the facility with the department no later than December 31, 2019; and

(b) request revocation of the associated MAQP, if the owner or operator holds a valid MAQP for the facility.

(3) An engine that meets the applicability criteria of ARM 17.8.1802 is exempt from the registration requirement if the engine will be located at temporary locations only.

(4) To register, the owner or operator shall submit a complete registration notification to the department on the form provided by the department. The notification information must include the following:

(a) Company name and mailing address;

(b) Owner or operator's name, mailing address, telephone number, and email address;

(d) Physical location(s) of known permanent location(s), initial temporary location(s) if no permanent location is proposed, or business location if no in-state location of operation has been identified (legal description to the nearest 1/4 section);

(e) Physical location(s) of each permanent or temporary location not included in (d) of an existing facility for which the owner or operator holds a valid MAQP;

(f) Equipment-specific information, as applicable, including:

(i) Unit type;

(ii) Manufacturer's name;

(iii) Date of manufacture; and

(iv) Horsepower.

(g) Acknowledgement of the owner or operator's duty to comply with this subchapter;

(h) Other information required by the department.

(5) A facility is considered registered upon the department's receipt of the notification required in (4).

(6) Within 15 calendar days after registration, the department shall publish acknowledgment of the registration on the department's website at http://deq.mt.gov/Air/PublicEngagement .

(7) An owner or operator of a registered facility may not operate for the first 15 calendar days following the date of registration, unless the owner or operator holds a valid MAQP for the facility at the time of registration. Registration does not supersede any other local, state, or federal requirements associated with the operation of registered facilities.

(8) An owner or operator of a registered facility shall provide notification to the department, in a manner prescribed by the department, of any change(s) to the equipment-specific information required in (4)(f) by March 15th of each calendar year.

(9) If the owner or operator of a registered facility changes, the new owner or operator shall, prior to operating the facility, register with the department by submitting the notification required in (4).

(10) An owner or operator of a registered facility shall update the registration information by submitting notification to the department, in a manner prescribed by the department, to identify a location as a permanent location in advance of remaining at the location for longer than 12 months.

(11) Registration under this subchapter is valid provided the registered facility continues to meet the applicability criteria in ARM 17.8.1802.

History

Authorizing statute(s): 75-2-111, 75-2-234, MCA
Implementing statute(s): 75-2-234, MCA
History: NEW, 2019 MAR p. 425, Eff. 4/27/19.

Mont. Admin. R. 17.8.1806 General Operating Requirements

(1) Registration of a facility under this subchapter does not relieve an owner or operator of the responsibility to comply with:

(a) applicable federal, state, or local statutes, rules, or orders; and

(b) control strategies contained in the Montana State Implementation Plan.

(2) The department may require an owner or operator to conduct a test, emission or ambient, under ARM 17.8.105. Emission source testing must comply with ARM 17.8.106.

(3) An owner or operator of a facility required to be registered under this subchapter:

(a) shall install, operate, and maintain all equipment to provide the maximum air pollution control for which it was designed;

(b) shall employ dust suppression control that is installed, maintained, and operated to ensure that the facility complies with this chapter. Dust suppression control for crushing, screening, and/or conveyor transfer points consisting of water spray bars and/or chemical dust suppression must be operating if any visible emissions equal to or greater than 10 percent opacity averaged over six consecutive minutes are present;

(c) shall allow the department's representatives access to the operations at any facility at all reasonable times to inspect or conduct surveys, collect samples, obtain data, audit any monitoring equipment or observe any monitoring or testing, and otherwise conduct all necessary functions related to the administration of this chapter; and

(d) may not operate an engine that is subject to the requirements of this subchapter at any permanent location when the combined horsepower hours of those sources exceed the following limits:

(i) 6,000,000 horsepower-hours per rolling 12-month period; or

(ii) 3,500,000 horsepower-hours per rolling 12-month period, if an asphalt plant is also located at the permanent location.

History

Authorizing statute(s): 75-2-111, 75-2-234, MCA
Implementing statute(s): 75-2-234, MCA
History: NEW, 2019 MAR p. 425, Eff. 4/27/19.

Mont. Admin. R. 17.8.1807 Notice of Location

(1) Unless the owner or operator of a facility required to be registered under this subchapter has previously submitted the location of a facility under ARM 17.8.1805(4), the owner or operator shall submit to the department a notice of location for each facility, on a form provided by the department. The owner or operator shall submit the form at least 15 calendar days before commencing operation of the facility.

(2) If there is more than one type of facility listed in ARM 17.8.1802 at the same location, the owner or operator shall submit a notice of location for each facility type.

(3) Upon receipt of a complete notice of location, the department shall publish notification on the department's website at http://deq.mt.gov/Air/PublicEngagement .

(4) The owner or operator shall confirm the location, in a manner prescribed by the department, within 10 calendar days after commencing operation at the location.

(5) The owner or operator shall notify the department, in a manner prescribed by the department, within 10 calendar days after removing all equipment of a single type from the location. Following such notification, the owner or operator shall comply with (1) through (4) prior to operating equipment of that type at the location again.

(6) An owner or operator may transfer equipment between any locations that have been identified under (1) and (2), unless the owner or operator has notified the department under (5) that all equipment of the same type has been removed from the location.

(7) A registered facility may not remain at a temporary location for more than twelve months. Before twelve months have elapsed, the owner or operator of the registered facility shall either:

(a) remove all equipment from the temporary location, according to the applicable requirements in this rule; or

(b) register the location as a permanent location.

History

Authorizing statute(s): 75-2-111, 75-2-234, MCA
Implementing statute(s): 75-2-234, MCA
History: NEW, 2019 MAR p. 425, Eff. 4/27/19.

Mont. Admin. R. 17.8.1810 Deregistration

(1) The department may deregister a facility:

(a) on written request of the owner or operator, or

(b) for a violation of this chapter.

(2) To deregister a facility under (1)(b), the department shall notify the owner or operator in writing of its intent to deregister by certified mail, return receipt requested, to the owner or operator's last known address. The department shall advise the owner or operator of the right to request a hearing before the board under 75-2-211, MCA.

(3) If the department does not receive a return receipt for the notice of intent to deregister in (2), the department may give notice to the owner or operator by publishing the notice of intent to deregister. The publication must occur once each week for three consecutive weeks in a newspaper published in the county where the owner or operator's mailing address set forth in the registration is located. If no newspaper is published in that county, then the notice may be published in a newspaper having a general circulation in that county.

(4) When the department has published notice under (3), the owner or operator is deemed to have received the notice on the date the last notice was published.

(5) A hearing request must be in writing and must be filed with the board within 15 days after receipt of the department's notice of intent to deregister. Filing a hearing request postpones the effective date of the department's decision until issuance of a final decision by the board.

(6) If no hearing request is filed, the department's decision to deregister a facility is final when 15 days have elapsed from the date the owner or operator received notice.

(7) A hearing under this subchapter is governed by the contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, MCA.

History

Authorizing statute(s): 75-2-111, 75-2-234, MCA
Implementing statute(s): 75-2-234, MCA
History: NEW, 2019 MAR p. 425, Eff. 4/27/19.

Mont. Admin. R. 17.8.1811 Recordkeeping and Reporting

(1) An owner or operator of a facility required to be registered under this subchapter shall make records that include:

(a) the location at which the facility was operated;

(b) daily production rates and rolling 12-month total production in the units used in ARM 17.8.1802(1);

(d) daily horsepower hours of engines and rolling 12-month total horsepower hours, if applicable; and

(e) a log of required facility inspections, repairs, and maintenance.

(2) The owner or operator shall maintain the records in (1) for at least five years following the date the record was created.

(3) The owner or operator shall maintain the records in (1) at the facility location or at another convenient location. The owner or operator shall make the records available to the department for inspection and submit the records to the department upon request.

History

Authorizing statute(s): 75-2-111, 75-2-234, MCA
Implementing statute(s): 75-2-234, MCA
History: NEW, 2019 MAR p. 425, Eff. 4/27/19.

Mont. Admin. R. 17.8.1812 Requirements for Concrete Batch Plants

(1) Except as provided in (2), an owner or operator of a concrete batch plant required to be registered under this subchapter shall control particulate emissions from the facility at all times during operation using:

(a) a fabric filter dust collector or equivalent on each cement silo, cement storage silo, or similarly enclosed storage bin or weigh hopper; and

(b) a particulate containment boot or equivalent on every product loadout opening.

(2) If a concrete batch plant required to register under this subchapter that commenced operation prior to April 27, 2019 does not have the control equipment in (1) installed at the time of registration, the owner or operator of the facility shall install the equipment no later than twelve months after registration.

(3) In addition to the general requirements in ARM 17.8.1811, the owner or operator shall conduct a monthly inspection of each operating facility for fugitive dust. If visible emissions from the fabric filter are present, the inspection must include an inspection of the fabric filter for evidence of leaking, damaged, or missing filters. The owner or operator shall take appropriate corrective actions to restore the filter system to proper operation before resuming normal operations.

History

Authorizing statute(s): 75-2-111, 75-2-234, MCA
Implementing statute(s): 75-2-234, MCA
History: NEW, 2019 MAR p. 425, Eff. 4/27/19.

Mont. Admin. R. 17.8.1815 Requirements for Asphalt Plants

(1) An owner or operator of an asphalt plant required to register under this subchapter:

(a) shall limit particulate matter emissions to no more than:

(i) 0.04 grains per dry standard cubic foot; or

(ii) 0.10 grains per dry standard cubic foot, for a facility that holds a valid MAQP containing this limit at the time of registration;

(b) shall control emissions from each dryer or mixer at all times during operation using control equipment capable of achieving the applicable emission limit;

(c) shall shut down an emitting unit using a baghouse control device needing a bag replacement until the replacement bag is installed;

(d) shall install and maintain a device to measure the pressure drop on the control device, such as a magnehelic gauge or manometer. The pressure drop must be measured in inches of water and recorded daily;

(e) shall install and maintain temperature indicators at the control device inlet and outlet;

(f) may not allow the asphalt production rate to exceed the average production rate during the last source test demonstrating compliance. The owner or operator may retest at a higher production rate at any time; and

(g) shall limit opacity from the asphalt plant to 10% or less for any one 6-minute average.

(2) Records made and maintained under ARM 17.8.1811 must include daily pressure drop readings from the control device and the daily water input rate or the water input pressure, if applicable.

History

Authorizing statute(s): 75-2-112, 75-2-234, MCA
Implementing statute(s): 75-2-234, MCA
History: NEW, 2019 MAR p. 425, Eff. 4/27/19; AMD, 2024 MAR p. 2056, Eff. 8/24/24.

Chapter 17.20 Major Facility Siting

Authorizing statute(s): 75-20-202, MCA
Implementing statute(s): 75-20-202, MCA
History: NEW, 1983 MAR p. 1085, Eff. 8/12/83; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Subchapter 17.20.2 Geothermal Investigation Reports

Mont. Admin. R. 17.20.201 Definitions

Unless the context requires otherwise, in this subchapter:

(1) "Act" means the Montana Major Facility Siting Act, Title 75, chapter 20, MCA, as amended.

(2) "Department" means the department of environmental quality.

(3) "Environmental impact" means a change, adverse or beneficial, in the natural, cultural, or social setting created by some specific action.

(4) "Geothermal exploration plan" means the plan, actual or tentative, which a person has for the gathering of geological data by boring of test holes or other underground exploration, investigation, or experimentation related to possible future development of a facility employing geothermal resources for the ensuing 10 years after submission to the department under this subchapter.

(5) "Person" means any individual, association, partnership, corporation, governmental agency, political subdivision, or any other entity or organization engaged in or proposing to engage in the gathering of geological data by boring of test holes or other underground exploration, investigation, or experimentation, related to the possible future development of a utility facility employing geothermal resources.

(6) "Underground exploration, investigation, or experimentation" means any physical activity conducted on or below the surface of the earth resulting in disturbance of the earth including, but not limited to, the boring of test holes, the construction of roads, and the gathering of well log information.

(7) "Utility facility" as defined by 75-20-104(10)(d), MCA, means any use of geothermal resources, including the use of underground space in existence or to be created, for the creation, use, or conversion of energy.

(8) "Well log" means an electrical, radiation, sonic, thermal, or other routine log run by mechanical means in a well or bore hole or any other log, survey, analysis, or report run or made.

History

Authorizing statute(s): 75-20-1001, MCA
Implementing statute(s): 75-20-1001, MCA
History: NEW, Eff. 10/5/74; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2005 MAR p. 252, Eff. 2/11/05.

Mont. Admin. R. 17.20.202 Geothermal Exploration Plans

(1) Each person shall submit a geothermal exploration plan on April 1, 1975, and each year thereafter to the department in an electronic format acceptable to the department.

(2) Maps, drawings, or charts may accompany a geothermal exploration plan as separate exhibits in an electronic format acceptable to the department.

(3) Within each geothermal exploration plan shall be included:

(a) any plans to gather geological data by boring of test holes or other underground exploration, investigation, or experimentation, related to possible future development of geothermal resources;

(b) the approximate dates for gathering geological and hydrogeological data by boring of test holes or other underground exploration, investigation, or experimentation, related to possible future development of geothermal resources shall be listed;

(d) the general location, a description of the area involved, and the size and type of all drill holes, bore holes, or wells to be drilled, instruments, and all other equipment used.

(4) Any change in plans that would result in a material increase in any environmental impact or a substantial change in the location of all or a portion of the activities conducted pursuant to the plan shall be reported to the department.

History

Authorizing statute(s): 75-20-1001, MCA
Implementing statute(s): 75-20-1001, MCA
History: NEW, Eff. 10/5/74; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2005 MAR p. 252, Eff. 2/11/05; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Mont. Admin. R. 17.20.203 Initial Field Reports

(1) Before the boring of test holes or the initiation of other underground exploration, investigation, or experimentation, related to the possible future development of geothermal resources, every person shall submit an initial field report to the department in an electronic format acceptable to the department.

(2) Within each initial field report shall be included:

(a) a description, including an electronic map in a format acceptable to the department, of the area involved in the investigation shown on a suitable map, and the probable location of test holes, sample sites, access roads, staging areas, areas where trees or soil are to be removed, and all other such activities;

(b) a summary of environmental impacts which would be created by the planned activities and a description of any plans to lessen, eliminate, or enhance such environmental impacts;

History

Authorizing statute(s): 75-20-1001, MCA
Implementing statute(s): 75-20-1001, MCA
History: NEW, Eff. 10/5/74; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Mont. Admin. R. 17.20.204 Periodic Field Reports

(1) Sixty days after the initiation of the boring of test holes or the initiation of other underground exploration, investigation, or experimentation, related to the possible future development of geothermal resources, and at 60-day intervals for the duration of the investigation, every person shall submit a periodic field report to the department in an electronic format acceptable to the department.

(2) Each periodic field report for its reporting period shall include:

(a) the location of holes drilled or underground experiments performed;

(b) the number, depth, and diameter of all hole(s) drilled;

(d) the kinds of measurements taken (such as heat flow measurements) ;

(e) the casing installed, removed, or altered in any way;

(f) the methods of closing, plugging, or abandoning of any holes;

(g) the kinds of sampling, such as coring or cuttings taken.

History

Authorizing statute(s): 75-20-1001, MCA
Implementing statute(s): 75-20-1001, MCA
History: NEW, Eff. 10/5/74; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Mont. Admin. R. 17.20.205 Final Field Reports

(1) After cessation of geothermal investigation, every person shall submit a final field report to the department in an electronic format acceptable to the department.

(2) Within each final field report shall be included a summary of the previous periodic field reports for the entire investigation.

(3) If the investigation ceases 60 days after the initiation of the investigation the periodic field report and the final field report may be the same.

History

Authorizing statute(s): 75-20-1001, MCA
Implementing statute(s): 75-20-1001, MCA
History: NEW, Eff. 10/5/74; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Mont. Admin. R. 17.20.206 Geological Reports

(1) Within 9 months of the initiation of the investigation or 6 months of the completion of the investigation, whichever comes first, and at intervals of 6 months for the duration of the investigation, every person shall submit a geological report to the department in an electronic format acceptable to the department.

(2) Within each geological report shall be included:

(a) a summary of all well logs;

(b) results of all measurements of geologic properties;

(c) data relating to the geologic structure, temperature, and composition of rocks and fluids as determined by the investigation;

(d) any other geologic data generated by the investigation which may be requested by the department.

History

Authorizing statute(s): 75-20-1001, MCA
Implementing statute(s): 75-20-1001, MCA
History: NEW, Eff. 10/5/75; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Mont. Admin. R. 17.20.207 Confidentiality

(1) The pertinent technical data submitted pursuant to ARM 17.20.204 through 17.20.206 shall be for the exclusive use of the department and other state agencies involved in geothermal research or regulation, and shall remain confidential for a period of two years following commencement of operations for the drilling of an actual well for testing a potential geothermal resource or six months following completion of a well capable of producing a geothermal resource, unless approved in writing for release earlier by the person who submitted such data or unless such data are entitled to protection under the Uniform Trade Secrets Act, Title 30, chapter 14, part 4, MCA.

(2) A person furnishing documents that the person believes are entitled to protection as trade secrets shall notify the department before or at the time the person furnishes the documents to the department. If the department determines that the information is protected, it shall maintain the documents as confidential. If the department determines that the documents are not entitled to protection, it shall notify the person and maintain the documents as confidential for a period reasonably necessary for the person to obtain a court order requiring the department to maintain confidentiality, or to retrieve the documents from the department.

History

Authorizing statute(s): 75-20-1001, MCA
Implementing statute(s): 75-20-1001, MCA
History: NEW, Eff. 10/5/74; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2005 MAR p. 252, Eff. 2/11/05.

Subchapter 17.20.3 General Provisions

Mont. Admin. R. 17.20.301 Definitions

Unless the context requires and clearly states otherwise, in these rules:

(1) "Act" means the Montana Major Facility Siting Act, Title 75, chapter 20, MCA.

(2) "Alternative technological component" means a reasonable alternate design for a process area or component of an energy generation or conversion facility including, but not limited to, cooling systems, fuel handling or transport systems, pollution control systems, coal combustion, and heat transfer systems.

(3) "Alternative transmission technology" means a reasonable alternate design for a transmission facility including, but not limited to, underground construction, alternative voltage or conductor sizes, direct current transmission, and alternative circuit design or deployment.

(4) "Applicant" means a person filing an application with the department and any other entities that will jointly own, operate, market, and/or use the output or services of the facility applied for in the application.

(5) "Application" means an application to the department for a certificate of compliance under 75-20-211, MCA.

(6) "Assistance" means public support or subsidies including, but not limited to, tax credits, accelerated depreciation, loan guarantees, low interest loans, price supports and price guarantees.

(7) "Associated facilities" is defined in 75-20-104(3), MCA.

(8) "Associated powerline" means an associated facility consisting of an electrical distribution or transmission line that:

(a) is not a facility defined in 75-20-104, MCA; and

(b) is used in delivery of electrical energy to or from a generation or conversion facility.

(9) "Baseline data" means detailed information which describes the existing natural, physical, cultural, social, and economic environment.

(10) "Baseline study" means a detailed analysis of a proposed site for a generation or conversion facility and impact zones or alternative facility locations and impact zones for a linear facility for purposes of impact assessment and comparison and selection of a preferred facility location.

(11) "Board" means the board of environmental review.

(12) "Block load" means the load of an energy consumer whose individual demand is 5% or more of the applicant's peak demand on a linear facility or the load of any other customer that an applicant serves under a specific contractual agreement rather than under a general rate category.

(13) "Certificate holder" means an applicant that has been granted a certificate or who has received a certificate by transfer and has agreed to be bound by the terms, conditions, and modifications contained in the certificate.

(14) "Decommission" means to permanently remove a facility from service, including any physical changes such as dismantling the facility at the end of its useful life and reclaiming the site or route.

(15) "Demand" means the quantity of energy that customers would be willing to purchase in a specific time period.

(16) "Department" means the department of environmental quality.

(17) "Energy conservation" means reducing the amount of energy required to accomplish a given quantity of work through increases in efficiency in energy use, production or distribution.

(18) "Energy resource" means a resource that can be converted into energy for ultimate end-use, either directly or by intermediate conversion into electricity, synthetic gas or synthetic liquid hydrocarbons. Energy resources include, but are not limited to, coal, natural gas, liquid hydrocarbons, nuclear, geothermal resources, wind, solar, biomass and falling water.

(19) "Energy technology" means a technology for converting an energy resource into the energy form to be produced by a proposed facility.

(20) "Facility" is defined in 75-20-104 , MCA.

(21) "Facility location" means a location for a linear facility accurately depicted to within 250 feet unless otherwise specified by the department by a line one millimeter or less in width drawn on a 1:24,000 map, and which may or may not be surveyed.

(a) "Alternative facility location" means one of the alternative locations potentially suitable for construction of a linear facility that has been depicted on overlays to the base map described in Circular MFSA-2, section 3.3;

(b) "Approved facility location" means the precise location for a linear facility that is approved by the department and accurately depicted to within 250 feet, unless otherwise specified by the department, in the certificate;

(c) "Proposed facility location" means the applicant's desired location for a linear facility as depicted in an electronic format acceptable to the department on the map described in Circular MFSA-2.

(22) "Impact zone" means the study area in which data is collected during the baseline study in order to make a determination of the impacts from construction, operation, maintenance or decommissioning of a proposed facility or associated facility at the preferred and reasonable alternative locations.

(23) "Inputs" means the basic resources, including materials, equipment, and labor required to construct and operate a facility.

(24) "Interruptible load" means a load that by contract can be interrupted in the event of a capacity deficiency on the supplying system.

(25) "Levelized cost" means the present value of the real cost stream over the life of a project, amortized over the project life.

(26) "Linear facility" means an electric transmission line or a gas or liquid pipeline covered by the Act.

(27) "Load center" means any substation or geographic concentration of substations within a 100 square mile area containing at least 5% of an applicant's load.

(28) "Market area" means a geographic area where a significant portion of the output of a facility proposed by a competitive utility or nonutility would be sold.

(29) "Mitigation" means avoiding an impact by not taking a certain action or parts of an action, or minimizing impacts by limiting the degree or magnitude of an action and its implementation, or rectifying an impact by repairing, rehabilitating, or restoring the affected environment, or reducing or eliminating an impact over time by preservation and maintenance operations during the life of an action, or compensating for an impact by replacing or providing substitute resources or environments.

(30) "Monitoring data" means environmental information that is collected to measure changes resulting from construction, operation, maintenance or decommissioning of a facility approved by the board or that is collected to determine compliance with the conditions of the certificate issued by the board.

(31) "No action alternative" means the alternative of not building a proposed facility or any other facility to meet the need or solve the problem a proposed facility would address.

(32) "Outputs" means the principal product of a facility and the by-products and wastes produced by the facility.

(33) "Overview survey" means the collection and mapping of environmental information within a study area for the purpose of selecting alternative facility locations.

(34) "Paralleling" means locating a proposed linear facility directly adjacent to or overlapping the right-of-way of an existing linear utility, transportation or communication facility. Paralleling requires that all facilities continue to meet all safety and building code protections.

(35) "Person" is defined by 75-20-104 (11) , MCA.

(36) "Road" means a way or course that is constructed or formed by substantial recontouring of land, clearing, or other action designed to be permanent or intended to permit passage by most four-wheeled vehicles for a significant period of time.

(37) "Service area utility" means a utility with a legally protected service area or body of customers for whom it has a conventional utility mandate to serve all loads or wholesale energy suppliers with requirements contracts, participation agreements, or similar arrangements with such utilities for the energy form to be produced by a proposed facility. This includes, but is not limited to, investor-owned utilities, rural electric cooperatives, municipal energy utilities and public utility districts, and generating and transmission cooperatives.

(38) "Significant adverse impact" means a detrimental change in the social, economic, cultural, physical or natural environment as a result of the construction, operation, maintenance, or decommissioning of a facility, as determined by the department on the basis of the impact's severity, duration, geographic extent, or frequency of occurrence or the uniqueness of the affected environmental value or its importance to the state and/or to society.

(39) "Site" means the parcel of land the applicant would acquire to construct the buildings, components, and nonlinear associated facilities comprising an energy generation facility.

(a) "Proposed site" means the applicant's proposed location for an energy generation facility and the site for which a certificate is sought.

(40) "Siting study" means an analysis conducted by the applicant to identify a preferred route.

(41) "Study area" means a geographical area of variable size and width that is potentially suitable for siting a linear facility.

(42) "Utility facility" means a facility whose output will be marketed as energy.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-104, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2001 MAR p. 2410, Eff. 12/7/01; AMD, 2005 MAR p. 252, Eff. 2/11/05; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Mont. Admin. R. 17.20.302 Public Record--Confidentiality

(1) Any records, materials, or other information furnished pursuant to the Act or these rules are a matter of public record and are open to public inspection, unless they are entitled to protection under the Uniform Trade Secrets Act, Title 30, chapter 14, part 4, MCA.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, MCA, and Mont. Const. 1972, Art. II, Sec. 9
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.303 Format

(1) Documents required by the Act and explained in these rules must be electronically submitted to the department.

(2) The text and attachments shall be consistently and consecutively numbered.

(3) Maps, drawings, charts, photographs or other illustrations may accompany a document as separate attachments that are sized and scaled appropriately to the material presented.

(4) The applicant must state the name, title, telephone number, email address, and post office address of the person to whom communications regarding the submissions to the department are to be made.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-105, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-501, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Subchapter 17.20.6 Waivers

Mont. Admin. R. 17.20.601 Waiver of Provisions of Certification Proceedings

(1) An applicant may request a waiver of any portions of the Act, as provided for in 75-20-304 , MCA.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-304, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863.

Mont. Admin. R. 17.20.602 Notification of Request for Waiver

(1) The applicant shall submit a written notice of request for a waiver to the department, by certified mail or personal service. The notice must be accompanied by an affidavit of service showing that copies of the notice have been served on the department, and that public notice of the request for waiver has been given. Public notice shall be given to persons residing within the area in which any portion of the facility would be located if the waiver is granted. Notice shall be given by publication of a display ad containing a summary description of the facility and a summary of the contents of the request for waiver, once in each of three consecutive weeks in newspapers of general circulation in that area.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-105, 75-20-304, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2005 MAR p. 252, Eff. 2/11/05.

Mont. Admin. R. 17.20.603 Contents of Notice of Request for Waiver Pursuant to 75-20-304 (1) , Mca

(1) For a waiver of provisions described in 75-20-304 (1) , MCA, the notice of request for waiver must contain the following information:

(a) an explanation of the need or demand for the proposed facility as described in subchapter 9, including a demonstration of the immediate and urgent need for the facility and nature of the consequences that would follow from a failure to obtain a waiver;

(b) a description of alternatives to the proposed facility which were considered and an explanation of the reasons for selecting the proposed facility;

(c) a description of the site for a non-linear facility or proposed location for the proposed linear facility, alternative sites or locations which were considered, an explanation of the reasons for selecting the proposed site or location, and a description of the significant environmental advantages and disadvantages of the proposed and alternate locations;

(d) a description of the circumstances which prevented the applicant from determining that a need for the proposed facility existed sufficiently in advance to comply with the requirements of the Act; and

(e) a listing of the provisions of the Act and this chapter for which the waiver is requested.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-105, 75-20-304, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2005 MAR p. 252, Eff. 2/11/05.

Mont. Admin. R. 17.20.604 Contents of Notice of Request for Waiver Pursuant to 75-20-304 (2) , Mca

For a waiver to replace or relocate a facility or associated facility that has been damaged or destroyed as described in 75-20-304 (2) , MCA, the notice of request for waiver must contain the following information. This rule does not, however, apply to emergency repairs to a facility or associated facility.

(1) a description of the event which caused the damage to or destruction of the facility or associated facility;

(2) a description of the extent of damage or destruction;

(3) a description of the effect on customers;

(4) an explanation of proposed actions to replace, repair or relocate the damaged or destroyed facility or associated facility; and

(5) a listing of the provisions of the Act and this chapter for which the waiver is requested.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-304(2), MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863.

Mont. Admin. R. 17.20.605 Contents of Request for Waiver of Requirements Relating to Consideration of Alternative Sites Pursuant to 75-20-304(3), Mca

(1) For a waiver of provisions described in 75-20-304(3), MCA, the request for waiver must contain information satisfying 75-20-304(3)(d), MCA, which must include an analysis indicating a net positive effect on the county economy. The analysis must include a discussion, with supporting data, of the size of the population influx resulting from direct and indirect employment associated with facility construction and operation, and the cost of providing services to the increased population. The discussion must include the facility's construction period and a portion of the facility's operational period adequate to address the following:

(a) the county's capability to supply construction and operational labor to the proposed facility, supported by data on the existing labor force, the supply of skilled labor within the county to meet the job requirements of the facility, and present and projected unemployment rates;

(b) effects on local businesses of the increased income resulting from the facility's payroll;

(c) a fiscal analysis comparing increased tax revenue resulting from the facility with increased local expenditures necessitated by the population influx associated with the project, including the relative timing of expected expenditure requirements compared to expected tax increases, as determined by documented consultation with appropriate local government officials; and

(d) economic impacts on residents resulting from changes in ambient environmental factors caused by the proposed facility.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-304(3), MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Mont. Admin. R. 17.20.606 Department Action on Request for Waiver

(1) Within 90 days after receipt of the information required by ARM 17.20.603 or 17.20.605, the department shall give notice and set a date for a hearing.

(2) The department shall give notice and set a date for a hearing and render a decision as soon as practicable after receipt of the information required by ARM 17.20.604.

(a) This rule does not apply to emergency repairs of a facility or associated facility.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-105, 75-20-304, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2005 MAR p. 252, Eff. 2/11/05.

Mont. Admin. R. 17.20.607 Content of an Application Following Receipt of Waiver Pursuant to 75-20-304 (3) , Mca

(1) An application for a facility which has been granted a waiver pursuant to 75-20-304 (3) , MCA, must contain applicable information required by ARM 17.20.1418 for the preferred site only.

(2) Information requirements for linear associated facilities are not affected by the waiver and must be addressed as applicable unless the applicant can demonstrate that less detailed information meets the requirements of subchapter 14, based on considerations of size or length of the linear associated facilities, the homogeneity of the geographic area that would be traversed by these facilities, or that impacts are not likely to occur.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-105, 75-20-211, 75-20-304, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2005 MAR p. 252, Eff. 2/11/05.

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-214, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Subchapter 17.20.8 General Requirements for Applications

Mont. Admin. R. 17.20.801 Requirements of the Department of Environmental Quality and the Board of Environmental Review

(1) An application must contain the information required by the department of environmental quality and the board of environmental review to determine compliance with applicable standards, permit requirements, and implementation plans under their jurisdiction for any proposed facility and for the primary and reasonable alternate locations for a proposed linear facility pursuant to 75-20-216 (3), MCA.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-105, 75-20-211, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.802 Application, Number of Copies

(1) The applicant shall submit the application in an electronic format acceptable to the department. The applicant shall submit maps, map overlays, exhibits, appendices, or attachments as defined in ARM 17.20.803(3)(i) and (j), in an electronic format acceptable to the department.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-105, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2001 MAR p. 2410, Eff. 12/7/01; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Mont. Admin. R. 17.20.803 Application, Format

(1) An application must be submitted in an electronic format acceptable to the department.

(2) An application must contain an index cross-referencing the material contained in the application.

(3) An application must be organized according to the following general categories:

(a) introductory material;

(b) description of the proposed facility;

(d) explanation of the purpose and benefits of the proposed facility;

(e) explanation of the need for a linear facility;

(f) analysis of alternatives to the proposed facility;

(g) alternative siting study for linear facilities;

(h) environmental concerns;

(i) all maps must be in an electronic format acceptable to the department;

(j) technical reports, reference or source documents, and other supplementary material provided by the applicant shall be presented as separate, consecutively arranged attachments, beginning with "Attachment A.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-105, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2001 MAR p. 2410, Eff. 12/7/01; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Mont. Admin. R. 17.20.804 Documentation of Information Sources and Omission of Certain Information Requirements

(1) An application must contain a list of sources of information used in preparing the application. An application must specify when field investigations were conducted.

(2) An application should include only information relevant to the facility. The application requirements in these rules address a comprehensive range of issues for the wide range of facilities covered by the Act. The applicability or relevance of the requirements to a particular facility are dependent on its type, its design, how its output will be marketed, its size or length, and on the characteristics and complexity of the geographic area(s) where the facility may be located. An application shall contain the information required by subchapters 8 and 9 and 13 through 15 unless specific provisions for submitting less information are contained in the rule, or unless the department gives written permission, prior to filing the application, to omit certain information. Unless a rule provides differently, an applicant desiring to omit information it considers irrelevant to the project shall submit to the department a written request to make the omission, along with documentation justifying its request. The department shall review the applicant's request and shall make a written determination of whether the information may be omitted. If there is a substantial cost to the department to verify the applicant's justification, the applicant shall contract with the department and reimburse it for expenses incurred pursuant to 75-20-106 , MCA.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-105, 75-20-211, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2000 MAR p. 2984, Eff. 10/27/00; AMD, 2005 MAR p. 252, Eff. 2/11/05.

Mont. Admin. R. 17.20.805 Supplemental Material

(1) The applicant shall submit supplemental material to the department within 15 days after it becomes available following filing of an application. The applicant shall submit supplemental material in the form of substitute pages or insertions to the application as originally filed. Supplemental material includes information to update or finalize information submitted with the original application and the following:

(a) studies that an applicant routinely or periodically updates;

(b) changes in the application that result from a change in any statute, standard, permit requirement or implementation plan affecting the facility; and

(c) any other changes materially affecting the basis of need for the facility, the engineering design of the facility, the costs or the environmental impact of the facility.

(2) The penalty defined by 75-20-408 , MCA, shall be imposed for failure to submit supplemental material available to the applicant but not known to the department, effective within 30 days of the date the material becomes available to the applicant. If the material is extensive, the applicant may within the 30-day period submit to the department a notice of intent to supplement the application with a description of the material to be supplied, and supply the material without undue delay in a time period agreed to by the applicant and the department.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-213, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.806 Changes in an Application

(1) Pursuant to 75-20-213(2), MCA, an applicant may change or add to an application. The applicant must inform the department of the change or addition in an electronic format acceptable to the department. The applicant shall describe the change in sufficient detail to allow the department to make the determination required by ARM 17.20.807 and must supply the information in the form acceptable to the department.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-105, 75-20-211, 75-20-213, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Mont. Admin. R. 17.20.807 Amendment to Application--New Application

(1) The department may determine that a change or addition to an application submitted by the applicant pursuant to ARM 17.20.805 or 17.20.806 requires an amendment to the original application and additional filing fees as provided by 75-20-213, MCA, if the change or addition would be likely to involve the following:

(a) significantly increased or significantly different environmental impacts than would have been likely based on the information contained in the original application;

(b) significant changes in the basis of the need for a linear facility; or

(c) significant changes in the economics of alternatives to the proposed facility as required by ARM 17.20.1301, 17.20.1302, 17.20.1304, 17.20.1305, and 17.20.1311.

(2) The department may determine that a new application and a filing fee are required if the extensive nature of a change or the timing of the notification of a change or addition to the original application would not allow the department, or the other agencies listed in 75-20-216, MCA, to discharge their duties and responsibilities under the Act and these rules under the statutory time requirements and filing fee or under contractual terms pursuant to 75-20-215, MCA. If a new application and a filing fee are required, processing of the original application shall be terminated. If the total filing fee was paid at the time of filing, unexpended portions of the fee shall be returned to the applicant or credited to the new fee at the applicant's request if a new application is to be filed. For an application being processed under a contract pursuant to 75-20-215, MCA, the applicant shall be billed for the department's expenses up to the date of termination. Any studies completed or partially completed at the time of termination that are relevant to an amended or new application shall not be duplicated.

(3) The department shall inform the applicant in writing, within 30 days of receipt of information provided under ARM 17.20.805 or 17.20.806, of a determination that a change or addition to an original application requires an amendment or a new application.

(4) The applicant shall give notice upon filing an amendment or a new application as set forth in 75-20-211, MCA.

(5) An amendment to an application shall explain any change or addition in a degree of detail comparable to that required for an original application.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-213, 75-20-215, 75-20-216, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2001 MAR p. 2410, Eff. 12/7/01; AMD, 2005 MAR p. 252, Eff. 2/11/05; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Mont. Admin. R. 17.20.810 Related Projects--Single Facility

(1) Related projects that address the same or closely related needs that the proposed facility would address may constitute a single facility for purposes of compliance with the application provisions of these rules. An application must explain the relationship of the proposed facility to other facilities or projects planned or under construction and must address all portions of the facility.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-105, 75-20-211, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863.

Mont. Admin. R. 17.20.811 All Facilities, Estimated Cost of Facility

(1) An application for a facility defined in 75-20-104 , MCA, must contain estimates and a description of total costs and expenses attributable to the engineering, construction, and startup of the proposed facility and associated facilities up to the time of commercial operation. Cost estimates may be based on preliminary engineering or if available, standardized engineering estimates.

(2) As used herein, engineering costs include all direct costs related to planning, design, permitting, quality control, and land acquisition. Construction costs include costs related to site or route preparation, erection and assembly, and commissioning costs. Cost estimates must be itemized into relevant categories as follows unless other categories are agreed to by the department:

(a) engineering and overhead costs;

(b) land acquisition costs, and site or right-of-way preparation costs;

(c) plant costs, itemized by major process area and by major equipment. For proprietary processes itemization by major process area is sufficient for the application;

(d) costs of transportation links;

(e) mitigation costs;

(f) front end royalty payments;

(g) initial inventories of coal, chemicals or materials;

(h) startup expenses and working capital; and

(i) any other costs necessary and incidental to the construction of the facility and preparation for initial operation.

(3) The application must contain an explanation of the methods, including rules of thumb, used to estimate costs required by (2) of this rule.

(4) An estimate must be presented of the accuracy of all cost estimates.

(5) Costs must be provided for all portions of the facility both in and outside Montana.

(6) All costs must be estimated by instantaneous total cost of construction escalated to the date of the projected start of construction. Escalated costs as of the projected start of construction must then be adjusted to the construction expenditure schedule based on percentages of total cost incurred in each period and escalated to the date of incurrence. Cost escalation must be based on the most appropriate Handy Whitman or other industry recognized and department approved construction cost index.

(7) The department may request additional detail on costs as necessary for comparison of alternatives.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-215, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.812 Energy Generation and Conversion Facilities, Estimated Cost of Energy or Product

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-215, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.815 Linear Facilities, Estimated Annual Costs

(1) An application for a linear facility must contain a detailed analysis of the annual costs of the facility for purposes of comparing the facility with alternatives, as required by 75-20-301 , MCA, including detail on the capital and operating costs and operational characteristics of the facility.

(2) All estimated construction costs must be escalated to the appropriate date in the construction schedule as explained in ARM 17.20.811(6) .

(3) An application must contain information about the likely methods of financing construction of the facility. For facilities taking longer than one year to construct, allowance for funds used during construction must be added to the escalated construction costs to calculate the capital costs as of the date the facility is placed in commercial operation.

(4) Amortization costs must be calculated by standard industry practice for the estimated life of the bonds or other borrowing, or for the economic life of the facility.

(5) Costs for the first, fifth and tenth full operational year of the facility must be estimated. If current costs are used as a basis they must be escalated, using an appropriate index or indices of recent cost escalation specified in ARM 17.20.811(6) , to the first full operational year. The same index or other department approved index or indices must be used to escalate operating costs over the life of the facility.

(a) Annual costs must be disaggregated by relevant categories including, but not limited to, amortization, depreciation, taxes, insurance, interim replacements, any other capital-related annual costs, operational labor costs, operational material costs, pumping costs, water costs, waste disposal costs, and maintenance costs. Assistance shall be specified. All assumptions used in estimating the costs must be explained.

(6) An application must contain a description of design capacity and expected operational characteristics of the facility.

(7) For pipelines, energy transport costs for the first, fifth and tenth full operational year must be calculated by dividing the appropriate year's costs by the expected annual net throughput of the facility during full operation.

(8) For pipelines, levelized energy transport costs must be calculated by dividing levelized annual costs by the expected annual net throughput of the facility during full operation.

(9) First, fifth and tenth year and levelized costs must be calculated in constant dollars for a specified year, preferably the year of application. The index used to convert nominal to constant dollars must be specified.

(10) An application must contain an explanation of the methods, including rules of thumb, used to estimate costs and operating characteristics.

(11) An application must contain estimates of the accuracy of all costs and operating characteristics.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-105, 75-20-211, 75-20-215, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2005 MAR p. 252, Eff. 2/11/05.

Mont. Admin. R. 17.20.816 All Facilities, Service Area Utilities, Copies of Contracts for Purchase of Materials or Sale of Energy from the Proposed Facility

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALE.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-215, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.817 Linear Facilities, Pricing Policy

(1) An application for a linear facility must contain a discussion of how the product or transportation services provided by the facility will be priced or how the costs of the facility will be recovered. Distinction should be made between pricing according to market value, and the use of rolled-in pricing, average cost pricing, or any other cost-based pricing method. This rule does not apply to transmission lines that recover costs through overall energy charges or similar methods.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.818 Linear Facilities, Evaluation of Economic Costs and Benefits (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-105, 75-20-211, 75-20-215, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2001 MAR p. 2410, Eff. 12/7/01; AMD, 2005 MAR p. 252, Eff. 2/11/05; REP, 2024 MAR p. 1879, Eff. 7/27/24.

Subchapter 17.20.9 Application Requirements for Service Area Utilities Explanation of Need for Generation, Conversion and Linear Facilities

Mont. Admin. R. 17.20.901 Generation Facilities, Explanation of Purpose and Benefits of the Proposed Facility

(1) An application must contain an explanation of the purpose of the proposed facility and the benefits that it will provide. This includes a discussion of the likely markets it will serve and any other purposes it will serve and benefits it will provide.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2001 MAR p. 2410, Eff. 12/7/01; AMD, 2005 MAR p. 252, Eff. 2/11/05; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Mont. Admin. R. 17.20.902 Generation and Conversion Facilities, Resource Forecast

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALE.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.903 Generation and Conversion Facilities, Pooling, Interconnection, Exchange, Purchase and Sale Agreements

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALE.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.904 Generation and Conversion Facilities, Data Requirements for Energy and Peak Demand

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALE.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.905 Generation and Conversion Facilities, Assessment of the Role of the Proposed Facility in Meeting Energy Needs

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALE.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.906 Generation and Conversion Facilities, Uncertainty Analysis

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALE.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.907 Transmission Facilities, Regional Reliability Criteria (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2001 MAR p. 2410, Eff. 12/7/01; AMD, 2005 MAR p. 252, Eff. 2/11/05; REP, 2024 MAR p. 1879, Eff. 7/27/24.

Mont. Admin. R. 17.20.908 Generation and Conversion Facilities, Interruptible and Curtailable Load Data

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALE.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.909 Generation and Conversion Facilities, Destination and Distribution Patterns of Energy to Be Produced

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALE.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.910 Generation and Conversion Facilities, Energy Conservation Programs

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALE.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.911 Generation and Conversion Facilities, Categories for Reporting Customer End-Use Data

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALE.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.920 Electric Transmission Lines, Explanation of Need (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2005 MAR p. 252, Eff. 2/11/05; REP, 2024 MAR p. 1879, Eff. 7/27/24.

Mont. Admin. R. 17.20.921 Electric Transmission Lines, Transient Stability Considerations (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2005 MAR p. 252, Eff. 2/11/05; REP, 2024 MAR p. 1879, Eff. 7/27/24.

Mont. Admin. R. 17.20.922 Electric Transmission Lines, Power Transfer Capacity, Voltage Drop (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2005 MAR p. 252, Eff. 2/11/05; REP, 2024 MAR p. 1879, Eff. 7/27/24.

Mont. Admin. R. 17.20.923 Electric Transmission Lines, Reliability of Service (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2005 MAR p. 252, Eff. 2/11/05; REP, 2024 MAR p. 1879, Eff. 7/27/24.

Mont. Admin. R. 17.20.924 Electric Transmission Lines, Economy Considerations (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2005 MAR p. 252, Eff. 2/11/05; REP, 2024 MAR p. 1879, Eff. 7/27/24.

Mont. Admin. R. 17.20.928 Other Linear Facilities, Explanation of Need (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2005 MAR p. 252, Eff. 2/11/05; REP, 2024 MAR p. 1879, Eff. 7/27/24.

Mont. Admin. R. 17.20.929 Linear Facilities, Interconnection Agreements (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2001 MAR p. 2410, Eff. 12/7/01; AMD, 2005 MAR p. 252, Eff. 2/11/05; REP, 2024 MAR p. 1879, Eff. 7/27/24.

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Subchapter 17.20.13 Application Requirements--Evaluation of Alternatives

Mont. Admin. R. 17.20.1301 Generation Facilities, Evaluation of Alternatives

(1) An application must contain an evaluation of the nature and economics of alternatives to the proposed facility, including alternative energy technologies that could be implemented at the proposed site, the no action alternative, and alternative technological components and pollution control systems for the proposed facility. An application must contain a comparison of alternatives leading to selection of the proposed facility as the preferred alternative, and an explanation of the reasons for selection of the proposed facility. Alternative energy technologies include, but are not limited to, alternative combustion technologies, alternative coal conversion technologies, alternative boiler designs, cogeneration and alternative uses of waste heat, alternative wind, hydropower, and geothermal generation technologies, and the direct application of energy resources.

(2) An application must contain an evaluation of the no action alternative, wherein no action would be taken to meet the purpose or provide the benefits the proposed facility is designed to meet or provide.

(3) An application must contain an evaluation of alternative technological components and subsystems that could be employed by the proposed facility that could substantially reduce the cost or environmental impacts of the proposed facility including, but not limited to, air and water pollution control systems, cooling systems, and transmission and distribution systems and those required by ARM 17.20.1418(10) and department Circular MFSA-1, Sections 3.11 and 3.12.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2001 MAR p. 2410, Eff. 12/7/01; AMD, 2005 MAR p. 252, Eff. 2/11/05; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Mont. Admin. R. 17.20.1302 Generation Facilities, Criteria for Evaluation of Alternatives to the Proposed Facility

(1) An application must contain an evaluation of relevant alternatives listed in ARM 17.20.1301, leading to a ranking of alternatives and selection of the proposed facility. The evaluation and selection may be made by any method preferred by the applicant.

(2) An application must include a detailed description of the methods and criteria used by the applicant to select the proposed facility given the capacity, availability, and types of alternatives, and to determine the proper size and timing of construction, in order to achieve maximum economies of scale and the applicant's desired level of reliability at the lowest economic cost. Documentation for process tradeoff studies performed by the applicant must be provided. Published tradeoff studies may be cited by reference. A description of the methods used to select the proposed designs for major process areas must be included.

(3) In addition to the applicant's criteria for comparison, all appropriate alternatives which have no insurmountable environmental, technical or other problems serious enough to warrant elimination from further consideration, must be ranked by the levelized delivered cost of energy, including known mitigation costs. Alternatives whose levelized delivered cost of energy is not more than 35% higher than the cost of energy from the proposed facility, or which have significant environmental advantages over the proposed facility, must be compared on the basis of performance, system impact, and environmental impact as follows:

(a) performance criteria include:

(i) the first year and levelized delivered cost of energy, including known mitigation costs, incremental transmission costs and the effect of line losses; and

(ii) the estimated on-line life of the alternative and the projected capacity factor during the on-line life of the alternative.

(b) environmental impact criteria include:

(i) significant environmental advantages and disadvantages; and

(ii) significant siting constraints.

(4) In comparing the no action alternative with the other alternatives, the costs of no action shall include, if relevant, the net losses to consumers who would be deprived of the output of the facility and would have to obtain the energy or product of the facility from other sources.

(5) An explanation must be given of the reasons for dropping any alternative from further consideration at any stage in the evaluation process.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2001 MAR p. 2410, Eff. 12/7/01; AMD, 2005 MAR p. 252, Eff. 2/11/05; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Mont. Admin. R. 17.20.1303 Service Area Utilities, Generation and Conversion Facilities, Evaluation of Alternative Load-Resource Balances

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1304 Electric Transmission Lines, Evaluation of Alternatives

(1) An application must contain an evaluation of the nature and economics of relevant alternatives to the proposed facility, which could in whole or in part address the problem or opportunity that the proposed facility is designed to address, including transmission alternatives, alternative energy resources, alternative transmission technologies, alternative levels of reliability, and nonconstruction alternatives. The no action alternative must be evaluated. The evaluation must also include a comparison of alternatives leading to the selection of a preferred alternative and an explanation of the reasons for the selection of the proposed facility.

(2) An application for an electric transmission line must include an evaluation of transmission alternatives, including alternative end points and intermediate substation locations for the transmission line and upgrading or replacing an existing facility that would serve to provide the needed reinforcement that would be provided by the proposed facility. An application may also evaluate alternative timing of other electric transmission lines planned by the applicant, which in whole or in part would address the problem situation or opportunity or provide the needed reinforcement that would be provided by the proposed facility.

(3) Alternative energy resources and energy conservation alternatives are those that can individually or in combination offset or postpone the need for the proposed facility, or provide services comparable to the proposed facility. The evaluation must include a description of each alternative energy resource or energy conservation measure, the location and quantity available, any constraints to its availability and predictable daily and seasonal variations in the availability of the energy resource, if applicable.

(4) Alternative transmission technologies are those capable of providing comparable services or addressing the problem or opportunity the proposed facility is designed to address.

(5) Nonconstruction alternatives include the use of curtailable and interruptible load contracts with customers and load management.

(6) The no action alternative means no facility would be constructed to meet the need or provide the services the proposed facility is designed to meet or provide.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2005 MAR p. 252, Eff. 2/11/05; AMD, 2024 MAR p. 1879, Eff. 7/27/24.

Mont. Admin. R. 17.20.1305 Electric Transmission Lines, Criteria for Evaluation of Alternatives

(1) An application must contain the applicant's evaluation of all relevant alternatives listed in ARM 17.20.1304 leading to a ranking and selection of alternatives and selection of the proposed transmission facility.

(a) An application must include a detailed description of the methods and criteria used by the applicant to select a facility which best addresses the problem or opportunity situations identified as the basis of need (see ARM 17.20.920) given consideration of economics, engineering, and environmental concerns.

(2) In addition to the applicant's criteria for comparison, an application must include a ranking of all relevant alternatives which have no insurmountable environmental, technical or other problems serious enough to warrant elimination from further consideration, by levelized annual cost, including known mitigation costs. Alternatives whose levelized annual cost is not more than 35% higher than the proposed facility or 25% higher when the proposed facility is a transmission line 230 kV or higher and at least 30 miles long, or which have significant environmental advantages over the proposed facility, must then be compared based on performance, system impact, and environmental impact as follows:

(a) performance criteria include:

(i) total construction cost and levelized annual cost;

(ii) reliability;

(iii) duration of the solution; length of time before additional reinforcement is needed; and

(iv) constraints to implementation.

(b) system impact criteria include:

(i) for generation alternatives, the need for future expansion of the existing transmission and distribution system;

(ii) total transmission system losses;

(iii) effect, if any, on timing and need for constructing new generating facilities; and

(iv) effect on the ability of the applicant to take advantage of opportunities for economy transactions.

(i) significant environmental advantages and disadvantages; and

(ii) significant siting constraints.

(3) In comparing the no action alternative with other alternatives, the costs of no action shall include, if relevant, the net losses to consumers who would be deprived of the services of the facility.

(4) A full explanation must be given of the reasons for dropping any alternative from further consideration at any stage in the evaluation process.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2005 MAR p. 252, Eff. 2/11/05.

Mont. Admin. R. 17.20.1309 Competitive Utilities and Nonutilities, Generation and Conversion Facilities, Evaluation of Alternatives

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALE.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1310 Competitive Utilities and Nonutilities, Generation and Conversion Facilities, Criteria for Evaluation of Alternatives to the Proposed Facility

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALE.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1311 Pipeline Facilities, Evaluation of Alternatives

(1) An application for a pipeline facility must contain an evaluation of alternatives including, but not limited to, the use of alternative transportation modes, alternative starting points or destination points, alternative diameter pipe, alternative flow rates, alternative rates of pumping or compressing, alternative size, number and location of pump or compressor stations, alternative pump or compressor fuels and fuel sources, alternative pipe wall thickness and alternative pipe material, and the no action alternative. Service area utilities shall also evaluate alternate methods of meeting the need for the energy being transported.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2001 MAR p. 2410, Eff. 12/7/01; AMD, 2005 MAR p. 252, Eff. 2/11/05.

Subchapter 17.20.14 Application Requirements: Alternative Siting Study and Baseline Data Requirements

Mont. Admin. R. 17.20.1401 Energy Generation and Conversion Facilities, General Requirements of the Alternative Siting Study

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1402 Energy Generation and Conversion Facilities, Preferred Site Criteria

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1403 Energy Generation and Conversion Facilities, Exclusion Areas

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1404 Energy Generation and Conversion Facilities, Sensitive Areas

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1405 Energy Generation and Conversion Facilities, Areas of Concern

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1408 Energy Generation and Conversion Facilities, Delineation of the Study Area

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1409 Energy Generation and Conversion Facilities, Analysis of Delivered Cost of Energy in the Study Area

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1410 Energy Generation and Conversion Facilities, Identification of Economically Feasible Siting Areas

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1411 Energy Generation and Conversion Facilities, Reconnaissance

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1412 Energy Generation and Conversion Facilities, Selection of Candidate Siting Areas

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1415 Energy Generation and Conversion Facilities, Inventory, General Requirements

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1416 Energy Generation and Conversion Facilities, Inventory, Environmental Information

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1417 Energy Generation and Conversion Facilities, Selection of Alternative Sites

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1418 Energy Generation Facilities, Baseline Study, General Requirements

(1) An application must contain a baseline study of the proposed sites and the proposed and any alternate locations of off-site associated facilities and their impact zones to gather baseline data describing the existing environment, to assess impacts associated with the proposed facility, and to identify mitigation strategies for potentially significant adverse impacts.

(2) The applicant shall depict the proposed site and its boundaries, and the proposed and any alternate locations of all on-site and off-site associated facilities, as appropriate, using symbols or lines approximately one-half millimeter or less in width drawn on a 1:24,000 topographic base map. This base map shall indicate any upgrade, replacement or removal of existing equipment or installation(s) that would be necessary for construction or operation of the proposed facility and associated facilities. The applicant shall provide one mylar copy of this base map to the department and an electronic equivalent acceptable to the department. Each electronic submittal shall be accompanied by metadata describing the submittal.

(3) An application must contain one set of 1:4800 topographic maps and an electronic equivalent acceptable to the department showing the locations, as applicable, of the generators, emission control devices, condensers, shift conversion facilities, reactors, stacks, catalyst production and regeneration facilities, cooling towers, water storage ponds, waste disposal ponds, roads, parking areas, railroad spurs, substations, pumping stations, on-site pipelines, storage facilities, any other structures or buildings, nonlinear associated facilities, and any existing structures for the proposed site, noting structures that would be relocated or destroyed.

(4) An application must contain an overlay or overlays and an electronic equivalent(s) acceptable to the department, as appropriate, to the base map required by (2) of this rule of the baseline data required by department Circular MFSA-1 that can be mapped and are within the impact zones associated with the proposed site and the proposed and any alternate locations of associated facilities. The applicant shall organize the information according to the requirements of department Circular MFSA-1 and shall present the information on the minimum number of overlays to the base map. The applicant shall provide one mylar copy of each overlay to the department. All overlays shall clearly show section lines or corners and township and range locations.

(5) An application must contain one set of color contact prints at a scale of approximately 1:48,000 or 1:24,000 that provide complete aerial stereo coverage of the proposed sites, the geographic area within a five mile radius of the proposed site, and within a 1/2 mile buffer of the proposed and any alternate locations of off-site associated facilities. These photos shall be taken during a season of full foliage no more than three years prior to filing the application unless otherwise approved by the department. An application must contain advance or final USGS 7.5 minute orthophoto quads, where available, for the impact zones or portions of impact zones that are not covered by the aerial photos. However, this requirement does not apply to the impact zones associated with assessment of social and economic impacts required by secton 3.6 of department Circular MFSA-1.

(6) For the proposed site, the applicant must certify in the application that purchase options or access for purposes of conducting the studies required by these rules have been obtained. For off-site associated facilities, the applicant shall describe the location(s) where options or access for the purpose of conducting these studies have been denied and the reason(s) for denial.

(7) An application must contain a summary of the results of consultation with appropriate government agencies to identify their concerns about the proposed facility's possible effects on the environment, and the way the applicant considered these concerns in identifying mitigating measures to address potentially significant impacts of the facility.

(8) An application may contain any valid and useful existing studies, reports, or data prepared on the energy generation or conversion facility and may be submitted by the applicant towards fulfilling the requirements of department Circular MFSA-1 but shall be subject to supplementation and shall be used by the department only to the extent it considers them applicable.

(9) An application must contain, for the proposed site and the proposed and any alternate locations of off-site associated facilities, information required by the department or board necessary to make or issue any decision, opinion, order, certification, or permit required under laws administered by the department, other than those contained in the Act pursuant to 75-20-216(3) , MCA.

(10) An application must identify and discuss available alternative levels and types of mitigation to reduce or eliminate potentially significant adverse impacts of the facility at the proposed site and the proposed and any alternate locations of off-site associated facilities, including, but not limited to:

(a) alternative pollution control and waste disposal strategies, equipment and/or facilities;

(b) alternative strategies, equipment and/or facilities for reducing water consumption;

(d) plans to reduce adverse impacts on local communities, including, but not limited to, plans for meeting the service needs of the work force and maintaining the existing quality of services.

(11) An application must contain the estimated cost of implementing each level and type of mitigating measure to reduce or eliminate potentially significant adverse impacts that would occur during construction, operation, or decommissioning of the proposed facility and associated facilities. Estimated costs of mitigation measures for potentially significant adverse impacts also must be included for associated facilities whose operations would be modified to serve the proposed facility.

(12) An application must contain a summary of the baseline study and impact assessment for the proposed site and for each off-site associated facility which includes the following:

(a) a summary of potentially significant adverse impacts of the proposed site and off-site associated facilities, and the impact zones around them as determined by the baseline study conducted pursuant to department Circular MFSA-1;

(b) description of mitigating measures, if any, proposed for potentially significant adverse impacts;

(d) a summary of potentially significant adverse impacts at the proposed site and off-site associated facilities for which no mitigation has been identified;

(e) a summary of any unmitigated impacts of the proposed site and off-site associated facilities that may pose a threat of serious injury or damage to the environment, social and economic conditions of inhabitants of the affected area or the health, safety, or welfare of area inhabitants;

(f) a comparison of the estimated cost and the degree of mitigation achieved, for each alternative level and type of mitigation measure considered to address each potentially adverse significant impact; and

(g) an explanation of the applicant's reasons for selecting the proposed mitigating measures and an explanation of the applicant's reasons for not selecting other mitigating measures.

(13) Information for (12)(a) through (g) above must be provided for the impact categories listed in department Circular MFSA-1.

(14) The department adopts and incorporates by reference department Circular MFSA-1, which sets forth the baseline study requirements and impact assessment to be included in an application for a proposed energy generation and conversion facility and associated facilities. Copies may be obtained from the Department of Environmental Quality, PO Box 200901, Helena, MT 59620-0901.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-213, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2001 MAR p. 2410, Eff. 12/7/01; AMD, 2023 MAR p. 764, Eff. 8/5/23; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.20.1419 Energy Generation and Conversion Facilities, Baseline Data Requirements and Impact Assessment

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1420 Energy Generation and Conversion Facilities, Comparison of Alternative Sites

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1421 Energy Generation and Conversion Facilities, Selection of the Preferred Site

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1426 Linear Facilities, General Requirements of the Alternative Siting Study

(1) An application for a linear facility must contain an alternative siting study and baseline environmental data as specified in Circular MFSA-2.

(2) The department adopts and incorporates by reference Circular MFSA-2, "Application Requirements for Linear Facilities" 2023 edition, which sets forth the requirements for an alternative siting study and the baseline study requirements and impact assessment to be included in an application for a linear facility. Copies may be obtained from the Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2001 MAR p. 2410, Eff. 12/7/01; AMD, 2005 MAR p. 252, Eff. 2/11/05; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Mont. Admin. R. 17.20.1427 Linear Facilities, Preferred Route Criteria

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALE.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2005 MAR p. 252, Eff. 2/11/05.

Mont. Admin. R. 17.20.1428 Linear Facilities, Exclusion Areas

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2005 MAR p. 252, Eff. 2/11/05.

Mont. Admin. R. 17.20.1429 Linear Facilities, Electric Transmission Lines, Sensitive Areas

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALE.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2005 MAR p. 252, Eff. 2/11/05.

Mont. Admin. R. 17.20.1430 Linear Facilities, Electric Transmission Lines, Areas of Concern

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALE.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2005 MAR p. 252, Eff. 2/11/05.

Mont. Admin. R. 17.20.1431 Linear Facilities, Pipelines, Sensitive Areas and Areas of Concern

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALE.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2005 MAR p. 252, Eff. 2/11/05.

Mont. Admin. R. 17.20.1434 Linear Facilities, Delineation of the Study Area

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALE.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2005 MAR p. 252, Eff. 2/11/05.

Mont. Admin. R. 17.20.1435 Linear Facilities, Reconnaissance

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2005 MAR p. 252, Eff. 2/11/05.

Mont. Admin. R. 17.20.1436 Linear Facilities, Selection of Study Corridors

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALE.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2005 MAR p. 252, Eff. 2/11/05.

Mont. Admin. R. 17.20.1437 Linear Facilities, Inventory, General Requirements

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2005 MAR p. 252, Eff. 2/11/05.

Mont. Admin. R. 17.20.1438 Linear Facilities, Inventory, Environmental Information

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2005 MAR p. 252, Eff. 2/11/05.

Mont. Admin. R. 17.20.1439 Linear Facilities, Selection of Alternative Routes

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2005 MAR p. 252, Eff. 2/11/05.

Mont. Admin. R. 17.20.1440 Linear Facilities, Baseline Study, General Requirements

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2005 MAR p. 252, Eff. 2/11/05.

Mont. Admin. R. 17.20.1444 Linear Facilities, Electric Transmission Lines, Baseline Data Requirements and Impact Assessment

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2005 MAR p. 252, Eff. 2/11/05.

Mont. Admin. R. 17.20.1445 Linear Facilities, Pipelines, Baseline Data Requirements and Impact Assessment

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2005 MAR p. 252, Eff. 2/11/05.

Mont. Admin. R. 17.20.1446 Linear Facilities, Comparison of Alternative Routes

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2005 MAR p. 252, Eff. 2/11/05.

Mont. Admin. R. 17.20.1447 Linear Facilities, Selection of the Preferred Route

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2005 MAR p. 252, Eff. 2/11/05.

Subchapter 17.20.15 Application Requirements Facility Description and Design

Mont. Admin. R. 17.20.1501 Energy Generation Facilities, General Requirements of the Facility Description and Design

(1) An application for an energy generation facility must contain an engineering description of the facility in detail sufficient to enable the department to assess the environmental impacts of construction, operation, maintenance, and decommissioning, and to assess reliability and construction and operation costs of the proposed facility at the proposed site as specified in ARM 17.20.1502 through 17.20.1505.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-213, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2000 MAR p. 2984, Eff. 10/27/00; AMD, 2001 MAR p. 2410, Eff. 12/7/01; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Mont. Admin. R. 17.20.1502 Energy Generation Facilities, Design Characteristics

(1) An application must include a list of any reports, documents, studies, or calculations that indicate that the preliminary design specifications and performance objectives for the major components or process areas of the facility are adequate and can be maintained in the continuous operation of the facility. Design peak operating volume or rate must be described, including the length of time the various levels of peak operation can be sustained.

(2) An application must identify design features that were selected to reduce adverse environmental impacts.

(3) An application must describe any design features that are oversized to accommodate future increases in plant capacity.

(4) The engineering description required by (1) of this rule must include the following major facility components or process areas as applicable: boilers, reactors, generators, condensers, shift conversion facilities, cooling facilities, emission control devices, stacks, and catalyst production and regeneration facilities.

(5) An application must contain a description of associated facilities, including:

(a) a description of any major existing or new transportation system or terminal that would be used during the construction, operation, maintenance or decommissioning of the proposed facility and an estimate of the type, duration, and intensity of that use;

(b) a description meeting the requirements of ARM 17.20.1509 and 17.20.1510, for facilities of 230 kV and larger; for power lines smaller than 230 kV, a general description of the components listed in ARM 17.20.1509 is sufficient;

(d) the proposed source of the fuel to be used by the facility and, if applicable, alternative fuel sources consistent with department Circular MFSA-1, Section 3.11, and a description of equipment and portions of the site that will be used to store, prepare and transfer the fuel to the point of consumption;

(e) all sources of water to be used by the facility, structures that would pump, convey, store, or treat the water, proposed drainage or flood control structures, and a description of the processes used to deliver water to and discharge water from the site, including operation and monitoring plans for water-supply reservoirs, ponds, and other diversions for municipal or industrial use;

(f) all waste-handling systems, both on and off-site, including a description of the collection, storage, treatment, disposal processes and monitoring procedures and plans for each system, consistent with the requirements of ARM 17.20.1504(5) (Operation and Maintenance Analysis) ;

(g) any other permanent structures or installations, and temporary structures or installations, both on- and off-site, that would be used only during the construction phase; and

(h) for water and fuel pipelines, a description meeting the requirements of ARM 17.20.1509 and 17.20.1511.

(6) An application must contain a map, in an electronic format acceptable to the department, showing the proposed location of all facility structures and nonlinear associated facilities at or associated with the proposed site.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-213, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2000 MAR p. 2984, Eff. 10/27/00; AMD, 2001 MAR p. 2410, Eff. 12/7/01; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Mont. Admin. R. 17.20.1503 Energy Generation Facilities, Construction Description

(1) An application for a generation or conversion facility must include a preliminary construction schedule, a description of typical equipment, and a description of the sequential steps involved in carrying out major construction activities, including site preparation and an estimate of the amount of ground disturbance. The schedule must include associated facilities and relocations or development of transportation and other public use facilities necessitated by project construction, and methods of maintaining service during these activities.

(2) An application for a generation facility must contain a description of the following:

(a) plans for temporary facilities used during construction;

(b) the methods the applicant will use to reclaim any temporary facilities;

(d) methods the applicant will use for fire control; and

(e) for associated powerlines, a description meeting the requirements of ARM 17.20.1510, for voltages of 230kV and larger. For voltages less than 230kV, a general description of the components listed in ARM 17.20.1510 is sufficient; and

(f) for associated pipelines, a description meeting the requirements of ARM 17.20.1511.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-213, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2001 MAR p. 2410, Eff. 12/7/01; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Mont. Admin. R. 17.20.1504 Energy Generation and Conversion Facilities, Operation and Maintenance Analysis

(1) An application must contain a general description of operation and maintenance of the proposed facility under normal conditions, including types and scheduling of expected maintenance and inspections.

(2) An application must contain a discussion of the ability of the proposed facility to withstand possible destructive natural phenomena such as earthquakes, floods, and accidents; equipment malfunction or failure; a description of structural problems, and safety problems, or adverse environmental effects that may result from facility failure due to natural phenomena or accidents, and design features that will be incorporated or contingency measures that will be taken to reduce the problems.

(3) An application must discuss the environmental effects, if any, of operating the facility at less than full capacity, including effects on the operation of associated facilities and the resulting effects on air and water quality due to changes in the levels or composition of emissions and waste streams.

(4) An application must contain a descriptive analysis of materials such as air, water, coal and chemical compounds that would flow into the proposed facility, including an analysis of fuel materials used for start-up of the facility. The analysis must include at least the following:

(a) consumption rate;

(b) detailed chemical and radiological content of all input materials;

(d) material and energy flow diagrams, including heat and radiant energy flows, to illustrate the path of major materials through the facility, qualitatively and quantitatively.

(5) An application must contain a qualitative and quantitative analysis of all materials that are projected to flow out of the facility. The analysis must include detailed chemical content of all output material based on the best information available, including material with radiological content. The method of using, treating, dispersing and disposing of materials in each of the following categories shall be discussed, including the method of monitoring the use, treatment, dispersal, disposal and ultimate reclamation of waste sites, as applicable, for each of the following categories:

(a) products and by-products such as gas and hydrocarbon liquid;

(b) waste materials, including gases, liquids, and solids;

(d) for coal conversion facilities which are proposed to produce more than one major product, the capability for alternative fuels production or capacity to alter the product mix of facility output; and

(e) for associated powerlines and pipelines, a description meeting the requirements of ARM 17.20.1512.

(6) An application must contain an estimate of the on-line life of the facility and the projected operating capacity during the on-line life.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1505 Energy Generation and Conversion Facilities, Decommissioning Methods

(1) An application must contain a description of the projected method and environmental effects of decommissioning the proposed facility at the end of its useful life, or explain why decommissioning the facility is not foreseen.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2024 MAR p. 1879, Eff. 7/27/24.

Mont. Admin. R. 17.20.1506 Energy Generation and Conversion Facilities, Operation Under Contingent Operating C0nditions

(1) An application must contain a description of the methods of operation that will be used under contingent operating conditions to avoid significant impacts or disruption or damage to the environment or to human or industrial facilities.

(2) Contingent operating conditions include, but are not limited to:

(a) extraordinary environmental conditions such as extreme cold, heat, drought, flooding, or earthquake, or extensive wildland fires;

(b) technical contingencies such as failure of facility components; and

(c) external system conditions such as transmission or pipeline system outages that lead to excessive congestion or inadequate capacity to carry the full output of the facility or to provide needed energy for the facility.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, MCA
History: NEW, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1507 Energy Generation and Conversion Facilities, Interconnection and Transmission Agreements

(1) An application must include:

(a) either a copy of any and all interconnection and transmission agreements involving the proposed facility, or the following information for each such agreement:

(i) a brief description of the obligations of and the benefits to the facility under the agreement;

(ii) a list of all parties to the agreement;

(iii) the time period during which the agreement is in effect;

(iv) a summary of the terms of the agreement; and

(v) the financial agreements; and

(b) a description of all current and planned negotiations with respect to interconnection of the facility and transmission of energy. The description must include a list of the parties to any negotiations and a general discussion of the history and current status of the negotiations.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, MCA
History: NEW, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1509 Linear Facilities, Design Characteristics

(1) An application must contain an engineering description of the facility in detail sufficient to enable the department to assess the environmental impacts of construction, operation and maintenance and reliability of the proposed facility located on the preferred route.

(2) An application must contain a list of any reports, documents, studies, or calculations indicating that the preliminary design specifications and performance objectives for the major components of the facility are adequate and can be maintained in the continuous operation of the facility.

(3) An application must identify facility design features that were selected in order to reduce adverse environmental impacts.

(4) For an electric transmission facility, an application must contain an engineering description of major facility components, including the following: structure design and materials; height range of structures; approximate number of structures per mile; ground wire configurations; types and designs of markers and other warning devices; number and spacing of conductors; and location, size, and overall plan of new and modified substations, including present and future land requirements.

(5) For an electric transmission facility, an application must contain specifications for design peak voltage and amperage under adverse climatic conditions and under expected peak loading conditions.

(6) For an electric transmission facility, an application must include an estimate of radio and television interference, and electric and magnetic field strengths. This information on electric and magnetic fields must be provided for cross-sections of the right-of-way and must include maximum conditions under the conductors and at the edge of the right-of-way or easement, and attenuation rates beyond the edge of the right-of-way.

(7) For an electric transmission facility, an application must contain a statement certifying that the facility will meet the standards of the national electric safety code.

(8) For pipelines, an application must contain an engineering description of the facility, including conduit size and thickness, tensile strength, test and operating pressure, methods of joining sections of conduit, trenching depth, amount of ground cover over the pipeline, the location, size and overall plan for new or modified pumping and compressor stations, cathodic protection systems, and other safety features. Facility design specifications or criteria must also

be provided for the normal and maximum transmitting or pumping capacity and pressure of compressor stations and pump stations.

(9) For pipelines, an application must contain a description of quality control and testing procedures and the information necessary to demonstrate that the facility can meet industry and US department of transportation pipeline standards.

(10) For pipeline, an application must contain a description of the source of power for pump and compressor stations and indicate on maps, in electronic format acceptable to the department, the proposed and alternative location of power supply lines for these stations.

(11) An application must contain a description of communication facilities that will be used to control and monitor operation of the facility and their location, including, but not limited to, radio, microwave, or satellite antennas, and any fiber optic cables. If fiber optic cables are used, the application must describe the use of any excess communication capacity.

(12) An application must contain a specific engineering or design explanation of the opportunities and constraints for paralleling or sharing existing utility or transportation rights-of-way, or portions thereof, and if such opportunities were not chosen for part of the preferred route, an explanation of the reasons, including insufficient right-of-way and/or other land use constraints.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-213, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2001 MAR p. 2410, Eff. 12/7/01; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Mont. Admin. R. 17.20.1510 Linear Facilities, Electric Transmission Facilities, Construction Description

(1) An application must contain a preliminary construction schedule, a description of typical construction equipment to be used, and a description of the steps involved in carrying out major construction activities, including plans for and use of staging areas, right-of-way clearing, access road construction, structure assembly, and conductor and sock line stringing.

(2) An application must contain an estimate of the amount of ground disturbance resulting from construction at a representative structure site, pulling site, and reel site.

(3) An application must contain a description of the types and sizes of roads needed to build and maintain the facility.

(4) An application must contain estimates of the minimum and maximum right-of-way widths for which permanent easements would be purchased for the cleared right-of-way, estimates of the minimum and maximum widths of any additional construction easements, a description of the criteria used to determine right-of-way widths, a description of any land use restrictions that would be placed on the permanent easement, and a general description of standard conditions in the easement agreement pertaining to protection of the facility from damage or pertaining to public safety and liability.

(5) An application must contain a description of the reclamation methods the applicant will use and the scheduled timing of activities proposed to restore the right-of-way.

(6) An application must contain a description of methods the applicant will use for fire control.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-213, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Mont. Admin. R. 17.20.1511 Linear Facilities, Pipeline Facilities, Construction Description

(1) An application must contain a preliminary construction schedule, a description of typical construction equipment to be used, an estimate of total equipment needs and a description of sequential construction operations, such as right-of-way clearing, trenching, pipe installation and backfilling, including estimates of the duration and length in miles of each operation and a description of plans for and use of staging areas.

(2) An application must contain an estimate and discussion of the width of the level work pad needed for construction operations.

(3) An application must contain an estimate of the area of ground disturbance resulting from construction activities, including an estimate of mileage of flat terrain where no cut and fill excavation would be needed and estimates of mileage of terrain where cut and fill excavation to construct a level work pad would be required.

(4) An application must contain a description of the methods that will be used to salvage topsoil, including:

(a) the width of the construction right-of-way where topsoil will be salvaged;

(b) the depth to which topsoil would be salvaged;

(d) the methods to be employed to remove coarse rock from surface soils following construction.

(5) An application must contain a description of the types and sizes of roads needed to build and maintain the facility, an estimate of the road mileage and preliminary road locations required in addition to the right-of-way, if any, in order to construct the facility on the applicant's preferred route or proposed location for an associated pipeline, and an estimate of how much the roads will be used.

(6) An application must contain a description of the minimum and maximum construction right-of-way widths and the widths of permanent easements, a description of the criteria used to determine the widths, and a description of any land use restrictions that would be placed on the permanent easement.

(7) An application must contain a discussion of the proposed and alternative methods of stream crossings, including:

(a) specification of equipment types;

(b) estimates of the width and depth of trenching; and

(c) estimates of the scour depth supported by a discussion of the methods and calculations used to make the estimates; and

(d) amount of ground disturbance adjacent to stream crossings.

(8) An application must contain a discussion of the proposed and alternative methods of and conceptual designs for overhead stream crossings, if any.

(9) An application must contain a description of the reclamation methods that will be used to restore the right-of-way on sidehills and over the ditch, and the measures that will be implemented to address subsidence of soils over the trench after construction is completed.

(10) An application must contain a description of methods the applicant will use for fire control.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-211, 75-20-213, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2001 MAR p. 2410, Eff. 12/7/01; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Mont. Admin. R. 17.20.1512 Linear Facilities, Operation and Maintenance Description

(1) An application must include a description of operation and maintenance procedures for the proposed facility under normal and emergency conditions, including types and scheduling of anticipated maintenance and inspections. For electric transmission facilities, an application must contain a description of methods the applicant will employ to resolve complaints from nearby residents regarding noise and radio and television interference.

(2) An application must contain a discussion of the ability of the proposed facility to withstand destructive natural phenomena such as mass movement, earthquakes, floods, icing conditions and high winds or accidents, a description of the environmental impacts and/or public safety problems resulting from facility failure due to natural phenomena and accidents, and a general discussion of measures proposed to reduce the problems.

(3) An application must contain a description of the methods the applicant will employ to control land uses on the right-of-way, including encroachment of buildings.

(4) An application must contain a description of the right-of-way management procedures that will be used, including vegetation and weed control, herbicide use, and the scheduled timing of the proposed management activities.

(5) For pipelines, an application must describe the size and frequency of leaks that can be expected over the life of the proposed project.

(6) For pipelines, an application must describe leak detection systems to be employed during operations including sensitivity of the leak detection system, the time necessary to shut down the facility in the event of a leak, and expected time necessary to respond to a leak.

(7) For liquid pipelines, an application must include a detailed spill contingency plan describing:

(a) immediate notification procedures;

(b) the type and location of emergency response personnel and equipment;

(d) response procedures;

(e) equipment testing procedures;

(f) frequency of field training exercises; and

(g) plan update procedures. The plan shall be sufficiently detailed so that the department can determine the likely environmental effects resulting from a spill.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-301, MCA
History: NEW, 2001 MAR p. 2410, Eff. 12/7/01.

Subchapter 17.20.16 Decision Standards

Mont. Admin. R. 17.20.1601 Energy Generation and Conversion Facilities, Service Area Utilities, Need Standard

Publisher status: INEFFECTIVE (not currently effective).

Final File Not Found. It is now created. Please edit it:

D:\Shares\MTRules\MTRules_files\MT\ARM\200909\Rules\17\17.20.1601.htm

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-301, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1602 Energy Generation and Conversion Facilities, Competitive Utilities, Need Standard

Publisher status: INEFFECTIVE (not currently effective).

Final File Not Found. It is now created. Please edit it:

D:\Shares\MTRules\MTRules_files\MT\ARM\200909\Rules\17\17.20.1602.htm

History

Authorizing statute(s): History: 75-20-105, MCA
Implementing statute(s): 75-20-301, 75-20-503, MCA
History: NEW , 1984 MAR p. 1844, Eff. 12/28/84; TRANS , from DNRC, 1996 MAR p. 2863; REP , 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1603 Energy Generation and Conversion Facilities, Minimum Impact Standard

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALE.

History

Authorizing statute(s): History: 75-20-105, MCA
Implementing statute(s): 75-20-301, 75-20-503, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2410, Eff. 12/7/01.

Mont. Admin. R. 17.20.1604 Linear Facilities, Public Interest Standard

(1) The department must find that a proposed facility will serve the public interest, as required by 75-20-301, MCA, based on a determination of the following:

(a) the findings required by ARM 17.20.1606;

(b) the cumulative environmental impacts of the facility, as determined for ARM 17.20.1607(1)(g);

(c) the benefits to the applicant, the state of Montana, the applicant's customers, and any other entities benefitting from the facility;

(i) benefits include internal benefits and external benefits; nonmonetary benefits must be quantified to the extent reasonably possible.

(d) the effects of the economic activity resulting from the proposed facility;

(e) the costs of the facility including internal costs of construction and operation and mitigation costs, plus other external costs and unmitigated environmental costs; nonmonetary costs must be quantified to the extent reasonably possible; and

(f) any other factors the department considers relevant.

(2) In making this finding the department shall consider the effects of the facility on the public health, welfare and safety.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-301, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2001 MAR p. 2410, Eff. 12/7/01; AMD, 2005 MAR p. 252, Eff. 2/11/05; AMD, 2024 MAR p. 1879, Eff. 7/27/24.

Mont. Admin. R. 17.20.1605 Energy Generation Facilities, Decisions

(1) In making its decision under 75-20-301(3), MCA, the department shall identify all:

(a) significant environmental impacts; and

(b) reasonable, cost-effective mitigation measures for those impacts.

(2) For those significant environmental impacts that cannot be mitigated below the level of significance, the department shall determine whether there is a threat of serious injury or damage to the environment, the social and economic conditions of inhabitants of the affected area, and the health, safety, or welfare of area inhabitants.

(3) In determining the reasonableness of mitigating measures under 75-20-301(3)(a), MCA, the department shall consider appropriate factors including, but not limited to, whether the measure:

(a) is within or can reasonably be expected to be within an applicant’s or the department’s ability to implement;

(b) is technologically feasible as shown through research, successful prototype testing, or successful implementation in similar situations;

(c) is likely to succeed in mitigating the identified significant impact when implemented individually or in conjunction with other adopted measures; and

(d) can be monitored for implementation and effectiveness.

(4) In determining whether a mitigating measure is cost-effective under 75-20-301(3)(a), MCA, the department shall use the following analysis:

(a) estimate the net present value of the cost of implementing the mitigating measure;

(b) estimate the net present value of the benefits of implementing the measure, including:

(i) reductions in adverse environmental impacts of the facility and any other benefits, that are readily quantifiable and valued in monetary terms; and

(ii) reductions in adverse impacts, and any other benefits, that are not readily quantifiable or not readily valued in monetary terms.

(c) if (4)(a) is greater than (4)(b)(i), and (4)(b)(ii) is not deemed significant, the mitigating measure is not cost-effective; and

(d) if (4)(a) is less than or equal to (4)(b)(i), or if (4)(a) is greater than (4)(b)(i) and (4)(b)(ii) is deemed to be significant and sufficient to outweigh the value of (4)(a) minus (4)(b)(i), the mitigating measure is cost-effective.

(5) All mitigating measures upon which the department relies in its decision must be made conditions of the certificate.

(6) For each facility and associated facilities, a certificate of environmental compatibility must contain:

(a) an approved reclamation plan;

(b) an approved monitoring plan;

(d) a set of environmental specifications addressing measures to reduce impacts of construction, operation, and decommissioning; and

(e) a map, in electric format acceptable to the department, showing section lines, the site boundary, location of the facility, facility components, and any associated facility(ies).

(7) A certificate holder must comply with all terms of a certificate of environmental compatibility including, but not limited to, the items in (5) and (6) above.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-301, MCA
History: NEW, 2001 MAR p. 2410, Eff. 12/7/01; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Mont. Admin. R. 17.20.1606 Linear Facilities, Need Standard

(1) To establish the basis of need, as required by 75-20-301, MCA, the department must find and determine at least one of the following:

(a) the facility is a connecting link based on an explanation of how this facility would augment the existing system;

(b) the facility has been designated as a "common carrier" under 69-13-101, MCA;

(c) the facility has been identified to relieve a constraint or capacity issue between an energy resource, generation project, market or load center. The constraint or capacity issue(s) are based on existing, projected load or generation;

(d) the facility would resolve system reliability or stability issues;

(e) the facility would fulfill a requirement or recommendation of a federal, state, local, or other governmental regulatory body, or is recommended through an independent system operator or regional transmission organization planning process or objective;

(f) the facility is necessary to correct an existing or potential safety hazard;

(g) the facility is necessary to correct existing deficiencies to the existing network and explain how the facility would improve the existing network;

(h) the facility has been identified in economic studies to reduce total costs to ratepayers or customers; or

(i) the facility would provide firm energy transfer capacity in a path that currently does not exist.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-301, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2005 MAR p. 252, Eff. 2/11/05; AMD, 2024 MAR p. 1879, Eff. 7/27/24.

Mont. Admin. R. 17.20.1607 Linear Facilities, Minimum Impact Standard

(1) In order for the department to find and determine that a linear facility represents the minimum adverse environmental impact, considering the state of available technology and the nature and economics of the various alternatives as required by 75-20-301, MCA:

(a) the department finds and determines:

(i) that the expected net present value of costs, including monetary costs of construction to the applicant, external monetary costs, and the value of reasonably quantifiable environmental impacts is lower for the proposed facility than for any other available alternative that would meet the need finding required by ARM 17.20.1606. Other available alternatives include transmission alternatives, alternative energy resources and energy conservation, alternative transmission technologies, alternative levels of transmission reliability and the no action alternative;

(ii) that unquantified environmental impacts are not significantly adverse to alter the finding required by (1)(a)(i) ;

(iii) that all mitigation measures included in the mitigation plan in (1)(a)(vii)(C) have been incorporated in the cost finding required by (1)(a)(i) ;

(iv) that the final location for the facility achieves the best balance among the preferred location criteria listed in Circular MFSA-2, section 3.1 considering environmental impact and economic cost;

(v) that the final location for the facility will not cross one of the areas listed in Circular MFSA-2, section 3.2(1) (d) (i) and (ii) , unless the legislative or administrative unit of government with direct authority over the area has given the applicant permission to locate the facility there;

(vi) that reasonable alternative locations for the facility were considered in selecting the final location, pursuant to Circular MFSA-2, section 3.0;

(vii) that the final location for the facility will result in less cumulative adverse environmental impact and economic cost than siting the facility in any reasonable alternative location, based on the following:

(A) identification of any probable significant adverse environmental impacts;

(B) identification of reasonable mitigation for these significant adverse environmental impacts;

(C) adoption of an acceptable mitigation plan based on the measures identified in (1)(a)(vii)(B) , including environmental specifications, that will be included in conditions to the certificate; and

(D) adoption of an acceptable monitoring plan, including a reclamation plan, that will be included in conditions to the certificate.

(viii) if in making the finding required by (1)(a)(vii) , the final location for the facility crosses one or more of the areas listed in Circular MFSA-2, section 3.2(1) (d) (iii) through (xi) and section 3.4(1) (b) through (w) for transmission lines and in Circular MFSA-2, sections 3.2(1) (e) and 3.4(2) for pipelines, either that no significant adverse environmental impacts would result in the area(s) ; or

(A) that any significant adverse environmental impacts affecting the environmental resources, qualities or characteristics for these areas have been identified;

(B) that reasonable mitigation for these significant adverse environmental impacts has been identified;

(C) that an acceptable mitigation plan based on the measures identified in (1)(a)(viii)(B), including environmental specifications, has been identified and will be included in conditions to the certificate; and

(D) that an acceptable monitoring plan, including a reclamation plan, has been identified, and will be included in conditions to the certificate.

(2) The department must condition its approval of a facility on the following standards:

(a) for electric transmission facilities, that average annual noise levels, as expressed by an A-weighted day-night scale (L DN ) will not exceed:

(i) 50 decibels at the edge of the right-of-way in residential and subdivided areas unless the affected landowner waives this condition;

(ii) 55 decibels at the edge of the property boundaries of substations in residential and subdivided areas.

(b) for electric transmission facilities, that appropriate mitigation has been identified to prevent unacceptable interference with stationary radio, television, and other communication systems and will be included in conditions to the certificate;

(c) for electric transmission facilities, that the facility will adhere to the national electric safety code regarding transmission lines.

(d) for electric transmission facilities, that the electric field at the edge of the right-of-way will not exceed one kV per meter measured one meter above the ground in residential or subdivided areas unless the affected landowner waives this condition.

(e) for electric transmission facilities, that the facility will comply with the identification and marking standards established by the federal aviation administration.

(f) for pipeline facilities, that compliance with applicable U.S. department of transportation pipeline standards will be achieved.

(g) for all linear facilities, that the facility will comply with environmental specifications developed for the facility.

(h) for all linear facilities, that any other standards the department deems important will be met.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-105, 75-20-211, 75-20-301, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2001 MAR p. 2415, Eff. 12/7/01; AMD, 2005 MAR p. 252, Eff. 2/11/05; AMD, 2024 MAR p. 1879, Eff. 7/27/24.

Mont. Admin. R. 17.20.1608 Linear Facilities, Minimum Impact Standard for Centerlines

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALE.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-301, 75-20-302, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2415, Eff. 12/7/01.

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-301, 75-20-302, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; REP, 2001 MAR p. 2415, Eff. 12/7/01.

Subchapter 17.20.18 Amendments to Certificates

Mont. Admin. R. 17.20.1801 Notification of Proposed Change or Addition to a Facility or Associated Facility for Which a Certificate Has Been Granted

(1) If a certificate holder desires to change or add to a facility or associated facility for which a certificate has been granted, the certificate holder shall file a notice for a certificate amendment with the department in electronic format acceptable to the department. Changes or additions subject to these requirements include the following:

(a) any change in location or design or any addition to a facility or an associated facility that could reasonably be expected to result in a material increase in any environmental impact;

(b) any change in location or design or any addition to a facility or an associated facility that could reasonably be expected to result in impacts to new geographic areas or human, animal or plant populations that were not evaluated prior to the issuance of the certificate;

(c) any change in or addition to a facility or an associated facility affecting compliance with a condition of the certificate; and

(d) any change in or addition to a facility or associated facility that would materially change the basis of any finding required by subchapter 16.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-219, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Mont. Admin. R. 17.20.1802 Contents of Notice to Amend a Certificate

(1) The certificate holder shall provide drawings, analyses, maps, and other information at a level of detail equivalent to that required in an application to describe any proposed change to a facility in a notice for amendment to a certificate. Material pertaining to a proposed amendment to a certificate that was previously submitted in an application or during the board's hearing on the facility may be referenced.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-219, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863.

Mont. Admin. R. 17.20.1803 Certificate Amendment Pursuant to Change in Department of Environmental Quality or Board of Environmental Review Permit

(1) An amendment affecting, amending, altering or modifying a decision, opinion, order, certification or permit issued by the department of environmental quality or board of environmental review under the applicable statutes administered by those agencies in accordance with 75-20-219 , MCA, shall be adopted by the department and incorporated as a certificate amendment, as follows:

(a) within 10 days of the issuance of an amendment by the department or board, the certificate holder shall serve the department with a certified copy of the amendment;

(b) the department shall issue a notice of proposed action to modify the certificate to fully and completely incorporate the amendment authorized by the department or board;

(c) upon the timely filing of a request for hearing, the board shall hold a show-cause hearing why the proposed action should not be taken. A request for hearing may be made by any person affected by the proposed action;

(d) a person requesting a show-cause hearing shall file with the board all testimony, evidence and exhibits in writing that it intends to present at the hearing within 15 days after filing a request for hearing. Failure to comply with this rule shall be deemed a waiver of a person's request for hearing and of rights to participate in the hearing, if any;

(e) if no show-cause hearing is requested or required, the department shall take the proposed action as set forth in the notice pursuant to (1) (b) ;

(f) a show-cause hearing, if any, shall be limited to issues over which the board has jurisdiction.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-219, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2005 MAR p. 252, Eff. 2/11/05.

Mont. Admin. R. 17.20.1804 Decisions on Certificate Amendments

(1) In order for the department to determine that an amendment to a certificate should be granted or modified, the department must find and determine that the amendment will not materially alter the findings required by subchapter 16 that were the basis for granting the certificate.

(2) In making the findings required by (1) , the department shall limit itself to consideration of the effects that the proposed change or addition to the facility contained in the notice for the certificate amendment may produce.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-219, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2005 MAR p. 252, Eff. 2/11/05.

Subchapter 17.20.19 Facility Monitoring

Mont. Admin. R. 17.20.1901 Monitoring Required by Certificate

(1) As required by 75-20-303 , MCA, the certificate shall include a plan for monitoring environmental effects of the facility and associated facilities. The plan shall specify the types of monitoring data and activities required, and the terms and schedules of monitoring data collection, and assign responsibilities for data collection, inspection, reporting, or other activities required to effectively monitor the facility and associated facilities.

(2) The certificate holder shall reimburse the department for all costs incurred relative to the monitoring plan approved by the department in accordance with 75-20-402 , MCA.

(3) All activities of the certificate holder or the certificate holder's representative during preconstruction, construction, reclamation, operation, maintenance and decommissioning of the facility shall be conducted in accordance with the environmental specifications and conditions to the certificate approved by the department.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-301, 75-20-303, 75-20-402, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2005 MAR p. 252, Eff. 2/11/05.

Mont. Admin. R. 17.20.1902 Linear Facilities, Monitoring Requirements

(1) Within 15 days of the department's approval of a final location, the department shall designate an environmental inspector to monitor compliance with the environmental specifications and any other conditions contained in the certificate. The environmental inspector shall be the certificate holder's liaison with the department on all subsequent activities related to the facility.

(2) Within 15 days of the department's approval of a final location, the certificate holder shall designate a chief field representative to be the department's liaison with the certificate holder on all subsequent activities related to the facility.

(3) The certificate holder shall submit to the department a notice of intent to begin construction and shall make a reasonable effort to notify or otherwise inform landowners whose property would be crossed by the facility and/or associated access roads at least 15 days prior to the commencement of construction activities on the facility.

(4) At least 15 days prior to the commencement of construction of any segment of the project, the certificate holder shall submit to the department, or provide appropriate reference to information previously submitted in an application the following information.

(a) In an electronic format acceptable to the department containing the data for the plan and profile maps, or on available USGS 7.5 minute topographic maps, the location of the following as appropriate:

(i) the centerline;

(ii) all construction and maintenance access roads;

(iii) structures;

(iv) clearing backlines, clearing limits or disturbance limits, staging sites, and pulling sites, if known;

(v) borrow pits;

(vi) campsites; and

(vii) storage or other buildings.

(b) A list of contractors, an estimate of the number of workers, and a description of the types of heavy equipment that will be employed, and a proposed schedule of construction activities for each segment of line.

(5) The certificate holder shall promptly notify the department of any changes or updates in the schedule after the initial schedule is submitted.

(6) If a construction bond is required by the certificate, the certificate holder shall submit to the department proof that the construction bond has been obtained prior to the commencement of construction. Pursuant to the certificate, this bond may be held until construction is complete and the department has determined that all environmental specifications have been followed, that cleanup is complete, that damage has been repaired, and that recontouring, site restoration, and revegetation are progressing satisfactorily.

(a) In the event the department finds that the certificate holder is not correcting damage created during construction in a satisfactory manner, the department may determine the amount and disposition of all or a portion of the bond to correct any damage that has not been corrected by the certificate holder.

(7) For electric transmission lines greater than 230 kV and pipeline facilities, the certificate holder shall hold a preconstruction conference at least 15 days prior to commencement of construction activities to brief the following persons regarding the content of the environmental specifications required by the certificate, to identify any specific geographical areas of concern where special construction precautions may be required, and to explain the role of the environmental inspector:

(a) the certificate holder's field representative;

(b) all contractors involved in the facility;

(d) representatives of affected local, state, and federal agencies; and

(e) the environmental inspector.

(8) The certificate holder shall submit a written notice to the department describing the date and nature of proposed construction activities in any problem area specified at the preconstruction conference at least five days prior to beginning the activity.

(9) If a construction and reclamation bond is required by the certificate pursuant to 75-20-302, MCA, at the time the construction bond is released by the department, the certificate holder shall submit proof that the reclamation bond has been obtained. Pursuant to the certificate, portions of this bond or bonds may be held for one year and five years, respectively, or until the department determines that revegetation and road closures adequately meet the requirements specified in the certificate and in (10) .

(a) In the event the department finds that revegetation has not attained the growth required after one year or five years specified in (10) , the department may find the certificate holder in substantive noncompliance with the terms of the reclamation bond and may determine the amount and disposition of all or a portion of the bond or bonds to achieve satisfactory reclamation and revegetation.

(10) The following standards for reclamation shall be used to determine reclamation bond release or to determine that expenditure of the reclamation bond is necessary to meet the requirements of the certificate for transmission lines, unless otherwise determined by the department:

(a) in rangeland, coverage of desirable perennial plant species excluding, specifically, species recognized as noxious weeds, shall be 30% or more of that on adjacent rangeland of similar slope and topography the year following revegetation, and 90% or more of the coverage of adjacent rangeland of similar slope and topography within five years following revegetation;

(b) in forested land, revegetated land exclusive of the right-of-way or permanent roads, shall be planted with trees by the end of five years so that the approximate stand density of the adjacent forest will be attained at maturity;

(c) on private lands the certificate holder may contract with the landowner for revegetation or reclamation which would release the certificate holder from the reclamation bond performance on the property upon showing the department that the property owner wants different reclamation standards from those specified in (10) (a) and (b) applied on his property and that not reclaiming to the standards specified in (10) (a) and (b) would not have adverse impacts on the public and other landowners; and

(d) on public lands the certificate holder may contract with the affected land management agency for revegetation or reclamation which would release the certificate holder upon showing the department that the land management agency wants different reclamation standards from those specified in (10) (a) and (b) applied on its lands and that not reclaiming to the standards specified in (10) (a) and (b) would not have adverse impacts on the public and other landowners.

(11) The department may formulate and carry out a plan to ensure that the standards in (10) are accomplished.

(12) In the event that the department finds the contractor responsible for construction of the facility to be in violation of the construction and mitigation standards or any of the conditions of the certificate, and finds that the certificate holder cannot or will not take appropriate action to correct the problem, the department shall immediately file an incident report with the certificate holder, as follows:

(a) The incident report shall describe the nature, location, date, and extent of the violation and the sections of the construction and mitigation standards or conditions to the certificate that have been violated, and recommend corrective actions.

(b) Upon receipt of an incident report, the certificate holder shall immediately correct the violation or immediately file with the department a statement explaining why the violation may not be corrected.

(c) Upon correction of any violation described in an incident report, the department shall file a compliance report with the certificate holder stating that the problem has been satisfactorily resolved.

(d) Failure by the certificate holder to comply with the directives of an incident report shall result in appropriate enforcement action taken in accordance with 75-20-408, MCA.

History

Authorizing statute(s): 75-20-105, MCA
Implementing statute(s): 75-20-301, 75-20-303, 75-20-402, MCA
History: NEW, 1984 MAR p. 1844, Eff. 12/28/84; TRANS, from DNRC, 1996 MAR p. 2863; AMD, 2005 MAR p. 252, Eff. 2/11/05; AMD, 2023 MAR p. 764, Eff. 8/5/23.

Chapter 17.24 Reclamation

Subchapter 17.24.1 Rules and Regulations Governing the Montana Hard Rock Mining Reclamation Act

Mont. Admin. R. 17.24.101 General Provisions

(1) The Act and this subchapter provide that no person may engage in activities regulated under the Act without first obtaining the appropriate exploration license or operating permit from the department, or filing a valid small miner exclusion to the requirement of obtaining an operating permit. Activities regulated under the Act include:

(a) exploration for, or mining of minerals on or below the surface of the earth;

(b) engaging in ore processing;

(d) constructing or operating a hard rock mill;

(e) using cyanide or other metal leaching solvents or ore-processing reagents; and

(f) disturbing land in anticipation of any of these activities.

(2) Prior to receipt of an exploration license or operating permit the applicant, other than a public or governmental agency, shall deposit with the department a reclamation performance bond in a form and amount as determined by the department in accordance with 82-4-338, MCA. The license or permit may be issued following receipt and acceptance of the reclamation performance bond, and, at such time, operations may commence.

(3) Section 82-4-390, MCA, provides that open pit mining for gold or silver using heap leaching or vat leaching with cyanide ore-processing reagents is prohibited, except that a mine in operation on November 3, 1998, may continue operating under its existing operating permit or any amended permit that is necessary for continued operation of a mine.

(4) The mining of certain substances is excluded from the Act and this subchapter. See definition of "mineral" in 82-4-303, MCA.

(5) A small miner who signs an agreement described in 82-4-305, MCA, and does not violate the Act and this subchapter, is excluded from certain requirements of the Act as they relate to mining, except as noted in 82-4-305, MCA. See definition of "small miner" in 82-4-303, MCA. All exploration operations, regardless of size, must comply with the requirements of 82-4-331 and 82-4-332, MCA, and ARM 17.24.103 through 17.24.108. See definitions of "exploration" in ARM 17.24.102 and "mining" in 82-4-303, MCA.

(6) The Act and this subchapter do not apply to a person engaging in a mining activity described in 82-4-310(1) and (2), MCA. The Act and this subchapter apply to a person who, on land owned or controlled by that person, is allowing other persons to engage in mining activities whose activities cumulatively exceed the activity described in 82-4-310(1), MCA.

(7) Subject to the exclusions set forth in the Act and pursuant to the definitions of "surface mining", "mining", "exploration" and "mineral" in the Act, placer or dredge mining, and rock quarrying are included in the application of the Act.

(8) As used in this subchapter, the term "operator" includes a licensee, a permittee, and a small miner. The Act covers the operator's employees and agents as well as subcontractors and the subcontractor's employees and agents. The operator is liable for violations of the Act by its employees, agents and subcontractors (drilling, construction, maintenance or otherwise) and the subcontractor's employees and agents when they are working on the project for which the permit or license was issued or which is subject to an exclusion.

(9) Common use pits and quarries on federal land which are available to the general public for the exclusive or nonexclusive procurement of rock or stone and which are administered by the responsible federal agency under appropriate regulations are not subject to these rules, pursuant to 82-4-309, MCA.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-305, 82-4-309, 82-4-331, 82-4-332, 82-4-335, 82-4-361, 82-4-362, MCA
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; AMD, 2000 MAR p. 473, Eff. 2/11/00; AMD, 2002 MAR p. 3590, Eff. 12/27/02; AMD, 2022 MAR p. 1830, Eff. 9/24/22; AMD, 2025 MAR, 17-451, Eff. 3/29/25.

Mont. Admin. R. 17.24.102 Definitions

As used in the Act and this subchapter, the following definitions apply:

(1) "Act" means Title 82, chapter 4, part 3, MCA.

(2) “Activities beneath the surface of the land” means, with regards to exploration licenses, activities that are approved to occur beneath the surface of the land such as drilling, the construction or expansion of underground portals or shafts, or other exploration activities occurring beneath the surface of the land that are not exempted under 82-4-310, MCA.

(3) “Activities only on the surface of the land” means, with regards to exploration licenses, activities that are approved to occur on the surface of the land such as test pit excavations, trenches, non-mining placer activities, or other exploration activities that do not include any of the exploration activities defined in (2) and are not exempted under 82-4-310, MCA.

(4) "Alternate land use" means, with regard to a mill facility, reclamation of a site to an alternative post-mining land use where the following conditions are met:

(a) The proposed post-milling land use is compatible with adjacent land use, and applicable landowner authorization.

(b) Retention of a structure is consistent with the proposed post-mining land use. This shall be documented through inclusion of a schedule showing how the proposed use will be achieved within a reasonable time after milling and will be sustained.

(c) Plans for alternate land use must be integrated with the requirements of ARM 17.24.169 for the grading and revegetation of the surrounding area.

(d) Plans must document, if appropriate, that financing, attainment, and maintenance of the alternative land use is feasible.

(e) The proposed use will:

(i) not present actual or probable hazard to public health or safety;

(ii) comply with the air and water quality acts; and

(iii) minimize adverse effects on fish, wildlife, and related environmental values.

(5) "Alternate reclamation" means the return of lands disturbed by mining or mining-related activities to a postmining land use other than that which existed prior to mining. Alternate reclamation must be stable, must have utility and must comply with Title 75, chapters 2, 5, and 6, MCA.

(6) "Beneficial use" means use of water as defined in 85-2-102, MCA.

(7) "Bulkhead" means a door, fence or other construction which allows periodic entry to an adit or shaft, adequately secured and locked so that animals and unauthorized persons are denied entry.

(8) "Collateral bond" means an indemnity agreement for a fixed amount, payable to the department, executed by the operator and supported by depositing with the department cash, negotiable bonds of the United States (not treasury certificates), state or municipalities, negotiable certificates of deposit or an irrevocable letter of credit of any bank organized or authorized to transact business in the United States or other surety acceptable to the department.

(9) "Contingency plan" means, with regard to spilled process solution, a plan which includes, but is not limited to, steps for containment, neutralization, and removal, and identification of any associated training needs.

(10) "Description of existing environment" means a description with appropriate maps of the condition of the proposed project area prior to exploration or operation. The description shall provide, but not be limited to, a discussion which characterizes each of the following:

(a) geology;

(b) soils;

(d) wildlife;

(e) hydrology (surface and ground water characteristics, quantity, quality, and use), including maps which identify springs, seeps, and water wells within one mile of the permit boundary and three miles down gradient unless a lesser distance is justified and agreed to by the department;

(f) air quality and climate;

(g) aquatic biology;

(h) land use and ownership;

(i) recreation;

(j) cultural/historic resources identified as a result of inventory and of file searches conducted by the State Historic Preservation Office;

(k) noise;

(l) transportation; and

(m) aesthetics.

(11) "Disturbed and unreclaimed" means, as used in the definition of "small miner" in 82-4-303, MCA, land affected by mining activities, including reprocessing of tailing or waste material, that has not been restored to a continuing productive use, with proper grading and revegetative procedures to assure:

(a) slope stability;

(b) minimal erosion;

(d) that no mine discharge water, ground water or surface water passing through a disturbed area will pollute or contaminate any state waters.

(12) "Exclusion" means a statement filed by a small miner pursuant to 82-4-305, MCA.

(13) "Expansion of a mill facility" means disturbance of an area not previously disturbed by the milling operation, and, in the case of a waste dump, tailing impoundment, or similar facility, a change in the design capacity that will result in an increase in land disturbance at an existing mill facility. When disturbance of an area not previously disturbed by the operation occurs at a dump, impoundment, or similar facility, the department may regulate the previously disturbed area to the extent necessary to achieve reclamation of the expansion area.

(14) "Exploration" includes pilot ore processing plants or sites and associated facilities constructed for the sole purpose of metallurgical or physical testing of ore materials, not to exceed 10,000 short tons, to aid in determining the development potential of an ore body.

(15) “Exploration license major amendment” means a change to an exploration license project that:

(a) increases previously approved surface disturbance by more than 25%;

(b) increases the cumulative drill hole footage by more than 50% of the cumulative drill hole footage previously approved under the exploration license project; or

(c) introduces the potential for significant environmental problems not previously analyzed under the exploration licenses project.

(16) “Exploration license minor amendment” means a change to an exploration license project that:

(a) increases the previously approved surface disturbance by more than 10% but less than or equal to 25%; or

(b) increases the cumulative drill hole footage by more than 25% but less than, or equal to 50% of the cumulative drill hole footage previously approved under the exploration license project.

(17) “Exploration license revision” means a change to an exploration license project that:

(a) increases the previously approved surface disturbance by no more than 10%; or

(b) increases the cumulative drill hole footage by no more than 25% of the cumulative drill hole footage previously approved under the exploration license project.

(18) "Facility" means any building, impoundment, embankment, waste or tailings disposal site, or other human-made structure associated with a particular activity. Mill facility means a mill and associated structures, disturbance, and development.

(19) "Incremental bond area" is an area within the permit boundary, or plan for exploration or small miner activity, that has been identified for phases or increments of disturbance and the bond has been determined according to ARM 17.24.140.

(20) "Mill" means any facility for ore, tailings, or waste rock processing and disposal. This term does not include smelting, or refining facilities, sample collection processes, and pilot testing performed pursuant to an exploration license.

(21) "Permit area" is the area contained within a boundary, which includes any minimal area delineated around a disturbance area for the purposes of providing a buffer adjacent to all disturbances, and for the purposes of controlling public access to areas permitted under 82-4-335, MCA. Monitoring wells are not required to be within a contiguous permit boundary, but must be permitted. Other activities are to be included within the permit boundary as follows:

(a) Access roads must be included within the permit area from the point of departure with a public road to the mine site.

(b) Utilities are required to be permitted only within the permit area.

(d) If applicable, the applicant may propose incremental bond areas to reflect the anticipated progress of disturbance during mining or milling activities.

(22) "Placer or dredge mining" includes, but is not limited to, mining by hydraulic giant, ground sluice, rocker or sluice box methods, the use of a dry land dredge, trommel or washing plant, and bucket type floating dredges, all as referred to in Mining Methods and Equipment Illustrated, Montana Bureau of Mines and Geology, Bulletin 63, 1967.

(23) "Plan" means the information submitted to the department pertaining to a proposed or ongoing mining or milling related activity which utilizes narratives, engineering designs, maps, cross-sections, or other documentation which adequately describes the activity.

(24) "Plan of operations" means the plans required under 82-4-335 through 82-4-337, MCA, including the reclamation plan defined in 82-4-303, MCA, plus the approved operating, monitoring and contingency plans required in an application for an operating permit.

(25) "Pollute or contaminate any stream" means, as used in 82-4-305, MCA, to conduct any mining or reprocessing of tailing or waste in a manner that will result in deterioration of water quality as specified by standards listed in ARM Title 17, chapter 30, et seq., pursuant to the Montana Water Quality Act, Title 75, chapter 5, et seq., MCA. Any future revisions of these standards adopted in accordance with the provisions of the Montana Water Quality Act, as amended, apply to this definition.

(26) "Reclamation" means the return of lands disturbed by mining, milling, or related activities to an approved postmining land use which has stability and utility comparable to that of the pre-mining landscape except for rock faces and open pits which may not be feasible to reclaim to this standard. Those rock faces and open pits must be reclaimed in accordance with 82-4-336, MCA. The term "reclamation" does not mean restoring the landscape to its pre-mining condition. Reclamation, where appropriate, may include, but is not limited to:

(a) neutralizing cyanide or other processing chemicals;

(b) closure activities for ore heaps, waste rock dumps, and tailing impoundments;

(d) grading, soiling and revegetating disturbed lands;

(e) removal of buildings and other structures that have no utility in regard to the approved postmine land use;

(f) other steps necessary to assure long-term compliance with Title 75, chapters 2 and 5, MCA; and

(g) other steps necessary to protect public health and safety at closure.

(27) “Reprocessing” means ore processing as defined in 82-4-303(20), MCA, on material that has already undergone ore processing.

(28) "Revision" means a change to an operating permit that is exempt under 82-4-342, MCA, from the requirement to prepare an environmental assessment or environmental impact statement.

(29) "Significantly affect the human environment" means an effect on the human environment that meets the criteria of ARM 17.4.608.

(30) "Surety bond" means a surety agreement for a fixed amount, payable to the department, executed by a corporation licensed to do business as a surety in Montana, and guaranteeing performance of the obligations of the Act, the rules and the appropriate permit, exclusion or license.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-303, 82-4-305, 82-4-309, 82-4-310, 82-4-331, 82-4-332, 82-4-335, 82-4-336, 82-4-341, MCA
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; AMD, 2000 MAR p. 473, Eff. 2/11/00; AMD, 2002 MAR p. 3590, Eff. 12/27/02; AMD, 2022 MAR p. 1830, Eff. 9/24/22; AMD, 2024 MAR p. 1060, Eff. 5/11/24; AMD, 2026 MAR, Notice No. 2026-853, Eff. 9/26/26.

Mont. Admin. R. 17.24.103 Exploration License--Application and Conditions

(1) To secure an exploration license an applicant shall:

(a) pay a new exploration license fee in accordance with 82-4-332(1)(a), MCA, to the department prior to issuance of a new exploration license;

(b) submit an application for an exploration license to the department upon forms prepared and furnished by it;

(c) submit an exploration plan of operations and a map in sufficient detail to locate the area to be explored as well as the actual proposed disturbances, and to allow the department to adequately determine whether significant environmental problems would be encountered. The plan of operations must state the type of exploration techniques that would be employed in disturbing the land and include a reclamation plan in sufficient detail to allow the department to determine whether the specific reclamation and performance requirements of ARM 17.24.104 through 17.24.108 would be satisfied;

(d) agree to reclaim any surface area disturbed by the applicant during exploration operations, all as may be reasonably required by the department, unless the applicant shall have applied for and been issued an operating permit for the lands so disturbed;

(e) submit a reclamation performance bond with the department in a form and amount determined adequate by the department in accordance with 82-4-338, MCA; and

(f) submit a certification that the applicant is not in default of any other reclamation obligation mandated by the Act or rules implementing the Act.

(2) On approval by the department, the applicant will be issued an exploration license renewable annually.

(3) To renew an existing exploration license, a licensee shall submit a complete exploration license renewal application to the department upon the current forms prepared and furnished by it, in accordance with timelines detailed in 82-4-331(1)(a), MCA.

(4) Activities or projects approved under an exploration license with a performance bond held by the department are required to renew annually.

(5) Exploration licenses where the licensee is not required to submit a bond and the department does not hold bond for an activity or project will be closed if not renewed.

(6) Applicants renewing an existing exploration license shall pay an exploration license renewal fee to the department in accordance with 82-4-331(1)(a), MCA, and, if applicable, 82-4-342(2)(c), MCA.

(7) An exploration licensee is subject to and must agree to the provisions of ARM 17.24.104 through 17.24.107 for reclamation of surface areas disturbed by exploration operations. Because of the inherent difficulties of promulgating regulations of state-wide applicability, the department will allow variance from the following provisions of this rule, if a written request submitted prior to commencement of the subject disturbance is accompanied by the landowner's or land administrator's written consent to the variance and is sufficient to convince the department that the public interest and the intent of the Act are best served by allowing such variance.

(8) In the absence of emergency or suddenly threatened or existing catastrophe, the licensee may not depart from an approved plan without previously modifying the plan through an exploration license major amendment, exploration license minor amendment, or exploration license revision.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-331, 82-4-332, MCA
History: Eff. 12/31/72; AMD, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; AMD, 2002 MAR p. 3590, Eff. 12/27/02; AMD, 2022 MAR p. 1830, Eff. 9/24/22; AMD, 2026 MAR, Notice No. 2026-853, Eff. 9/26/26.

Mont. Admin. R. 17.24.104 Exploration (temporary) Roads

(1) Insofar as possible, all roads must be located on benches, ridge tops and flatter slopes to minimize disturbance and enhance stability.

(2) Road widths may not exceed a 14 foot single lane standard. Turn-outs may be constructed according to the licensee's needs, but the turn-out area may not exceed 30 feet in total width.

(3) No road may be constructed up a stream channel proper or so close that material will spill into the channel. Minor alterations and relocations of streams may be permitted if the stream will not be blocked and if no damage is done to the stream or adjoining landowners. No alteration that affects more than 100 linear feet of the channel of a flowing stream may be approved by the department without advice from the Department of Fish, Wildlife and Parks. Any stream channel alterations must comply with Title 75, chapter 5, MCA.

(4) Road gradients must be kept low except for short pitches to take advantage of topography. Maximum sustained grades may not exceed 8%. Pitch maximum may not exceed 12% and may not be over 300 feet in length.

(5) Insofar as possible, the licensee must keep road cuts reasonably steep to minimize surface disturbances. Cut slopes may not be steeper than 1:1 in soil, sand, gravel, or colluvium; 1/4:1 in lake silts, or more than 0:1 in rock. Where necessary to prevent significant sloughing or slumping, the top of road cuts must be rounded back to a more gentle slope. In selecting a slope angle, to prevent slope failure the licensee should consider at least the following factors: the nature of the material, compaction, slope height and moisture conditions.

(6) A ditch must be provided on both sides of a throughcut and, with the exception of outsloping roads, on the inside shoulder of a cut-fill section, with ditch relief cross drains (water bars) being spaced according to grade. Water must be intercepted before reaching a switchback or large fill, and be routed and released below the fill or switchback, not over it.

(7) Streams must be crossed at or near right angles unless contouring down to the stream bed will result in less potential stream bank erosion. Structure or ford entrances and exits must be constructed to prevent water from flowing down the roadway.

(8) Culverts must be installed at prominent drainage ways, small creeks and springs. Upon abandonment of the road, culverts must be removed and the drainage way reopened. Such culverts must be sufficient to handle runoff expected from a statistical five-year storm and, where necessary, the area adjoining the culvert must be protected from erosion by adequate, inert rock riprap.

(9) Trees and vegetation may be cleared for only the essential width necessary to maintain soil stability and to serve traffic needs. Trees must be felled prior to road construction. When sideslopes are 15% (8.5º) or less, trees and other vegetative debris from clearing operations must be completely disposed of, stockpiled at specified areas, or used as a sediment filter below the road cut. When sideslopes are steeper than 15% (8.5º) , trees and vegetative debris shall be piled neatly below and parallel to the toe of the fill.

(10) Drainage facilities (such as culverts and water bars) must be installed as road construction progresses.

(11) Adequate diagonal drainage barriers (i.e., water bars, drain dips or similarly effective features) must be placed at the following specified intervals:

| Grade (%) | | Maximum Spacing (feet) | 0 - 2 | | 200 | 3 - 8 | | 150 | 9 - 12 | | 80

(12) Roads must be outsloped whenever possible. If roads are to be used during snow season, insloping with proper drainage consideration is acceptable for vehicle safety reasons.

(13) Snowplowing must be done in such a manner that runoff water will not be trapped between the snow berms and flow down the road.

(14) Materials which slough or slump onto the road bed or into the roadside drainage ditch before the licensee completes the exploration project must be disposed of on the road bed or on the fill material in a manner that will not obstruct any of the drainage facilities previously described.

(15) All fill and cut slopes, with the exception of rock faces, must be seeded or planted or both during the first appropriate season following construction of the road.

(16) The department may waive any of the criteria in this section if the applicant proposes methods or technologies that achieve the same or better environmental protection than that expected under the given criteria.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-332, MCA
History: Eff. 12/31/72; AMD, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2002 MAR p. 3590, Eff. 12/27/02.

Mont. Admin. R. 17.24.105 Conduct of Exploration Operations

(1) All suitable practically salvaged soil and soil material must be salvaged prior to any other site disturbance, and either stockpiled or used for immediate reclamation.

(2) Except for samples, drilling mud, water and other fluids as well as waste cuttings from drilling operations must be confined to the drill site by the use of storage tanks or sumps or must be disposed of in accordance with a plan approved by the department.

(3) Drill sites must not be constructed in natural flowing streams.

(4) Areas disturbed by removal of vegetation or grading must be kept to the minimum size necessary to accommodate the exploration operation.

(5) Insofar as possible, trenches, discovery pits and other excavations must be located out of natural flowing streams.

(6) Spoil from pits, trenches, shafts, adits, or other excavations must not be located in drainage ways. The lower edge of the spoil bank must be at least five vertical feet above high flow level. Exceptions may be made when it is not physically practical to place spoil at least five vertical feet above the high flow level.

(7) Oil, grease, hydraulic fluid and other petroleum products must not be released on the exploration site. If a release occurs, the contaminated material must be removed immediately and disposed of at a proper disposal site.

(8) Exploration adits, shafts, and other excavations must be secured from unauthorized entry throughout the life of the operation to ensure public safety.

(9) Pilot ore processing plants or sites, as included in the definition of "exploration" in ARM 17.24.102, and permitted under an exploration license, are subject to all applicable requirements of 82-4-335 through 82-4-337 , MCA.

(10) The department may require interim revegetation for the purposes of erosion control on all exploration disturbance areas.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-332, MCA
History: Eff. 12/31/72; AMD, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2022 MAR p. 1830, Eff. 9/24/22.

Mont. Admin. R. 17.24.106 Exploration Drill Hole Plugging

(1) Except as provided in (3) of this rule, all exploration drill holes must be plugged at the surface five to ten feet with cement.

(2) Except as provided in (3) of this rule, exploration drill holes must be plugged with bentonite or a similar compound from the bottom of the hole to within five to ten feet of the surface, and with cement from the top of the bentonite to the surface if one or more of the following conditions apply:

(a) two aquifers are intercepted;

(b) one aquifer is intercepted and an existing or potential beneficial use (domestic, agricultural or fish/ wildlife water supply) exists;

(d) the potential exists for downward water loss from an aquifer (cascade effect) as determined by the department.

(3) Exceptions to (1) and (2) of this rule may be granted by the department if:

(a) shallow placer holes are drilled using a churn or percussion drill or similar equipment in alluvium in which the holes will be obliterated as the drill stem is withdrawn, leaving no evidence of the hole;

(b) the drill hole contained no water, is not geologically likely to contain water or the hole is to be destroyed during mining or mining related disturbances;

(c) the drill hole is developed into a water well, monitoring well, or piezometer with the written agreement of the land owner and to the specifications of the appropriate state agency; or

(d) other site-specific hydrogeological and topographic situations necessitate exceptions.

(4) All drill holes must be plugged prior to removing the drill rig from a hole unless removing the drill rig is necessary to the hole plugging operation or unless otherwise approved by the department.

(5) If the flow of an artesian drill hole is not completely stopped, after exhaustion of all methods, the operator must:

(a) obtain a discharge permit from the Department of Environmental Quality; or

(b) develop a water well in compliance with the requirements of other applicable local, state and federal statutes, including water rights. In addition, the land owner must concur, the amount and use of flow must be compatible with the approved postmining land use, and the water quality must meet standards set under the Title 75, chapter 5, MCA.

(6) In areas and geological formations of known artesian well potential, bonding for drill sites must be adequate to ensure artesian hole plugging.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-302, 82-4-332, 82-4-355, MCA
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2002 MAR p. 3590, Eff. 12/27/02; AMD, 2022 MAR p. 1830, Eff. 9/24/22.

Mont. Admin. R. 17.24.107 Reclamation Requirements--Exploration

(1) Upon completion of the drilling operation, drill cuttings or core must be removed from the site, disposed of down the hole, or buried. Drilling mud and other nontoxic lubricants must be removed from the site or allowed to percolate into the ground prior to backfilling the sump.

(2) Unless the hole is completed under ARM 17.24.106(3)(c), collar pipe or casing must be removed or cut off below ground level.

(3) Access roads constructed by the licensee to accommodate the exploration project must be returned to a stable slope that approximates the original contour to the extent possible. Where this is not possible (as determined by the department) , compacted surfaces must be ripped or otherwise loosened, drainage structures must be installed in accordance with ARM 17.24.104(11), and the roads must be closed to access by use of locked gates, kelly humps/dips, or other effective method. Exceptions may be made in accordance with the provisions of ARM 17.24.103(3). This requirement may be waived by the department if the landowner requests in writing that the access road be left in place for an identified, alternative, feasible and practicable purpose.

(4) Drill sites constructed by the licensee must be returned to a stable configuration that approximates the original contour to the extent possible. Where the department determines that this is not possible, compacted surfaces must be ripped or otherwise loosened and appropriate drainage must be provided. This requirement may be waived by the department if the landowner requests in writing that the drill site be left in place for an identified, feasible and practicable purpose.

(5) All trenches, bulk sample or discovery pits, and other excavations must be backfilled with the excavated spoil material unless the backfilling will physically hinder the further development of the claim or obscure evidence of an ore deposit. If, following a site investigation and discussions with the licensee, the department confirms the necessity for the excavation to remain open, backfilling requirements may be postponed if the licensee remains in compliance with 82-4-331, and 82-4-332, MCA, and ARM 17.24.103, 17.24.105, and 17.24.153.

(6) Upon termination of the exploration project, the first 25 feet of all adits must be backfilled with waste rock or riprap which will not contribute to the degradation of any discharge water. Shafts must also be backfilled or otherwise securely sealed upon project termination. If, following a site investigation and discussions with the licensee, the department confirms the necessity for an adit or shaft to remain accessible for possible future exploration or development, the adit or shaft must be secured with a steel bulkhead or other equally effective method to prevent unauthorized entry and ensure public safety.

(7) All refuse, buildings, railroad track, and other facilities associated with the exploration project must be removed and disposed of in proper disposal sites. Exceptions may be made by the department if the licensee desires to mine the area and is in compliance with 82-4-332 (4) , MCA. This requirement may also be waived by the department if the landowner requests in writing that specific facilities be left in place for an identified, alternative, feasible and practicable purpose.

(8) All compacted surfaces associated with exploration adits, shafts, pits and associated facilities shall be ripped or otherwise loosened prior to soil replacement.

(9) Unless other reclamation practices are approved by the department, waste dumps associated with new adits excavated for the purposes of underground exploration must be contoured to allow for soil replacement and successful vegetation establishment. When existing, caved (sloughed) adits are reopened for the purposes of exploration and the caved material can be confined to the existing portal pad or waste dump without requiring expansion, contouring is not required. However, the licensee shall provide for appropriate drainage in the portal area, and the portal pad and waste dump must be stabilized with vegetation or by employing other stabilization methods determined acceptable by the department.

(10) Where feasible, soil and soil materials salvaged during construction must be reapplied over all disturbance areas.

(11) Where feasible, all disturbed areas must be revegetated with a seed mixture that is approved by the department.

(12) Appropriate revegetation must be accomplished as soon after necessary grading as possible; however, revegetation must be performed in the proper season in accordance with accepted agricultural and reforestation practices.

(13) In the event that any of the above revegetation efforts are unsuccessful, the licensee must seek the advice of the department and make a second attempt, incorporating such changes and additional procedures as may be expected to provide satisfactory revegetation.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-332, MCA
History: Eff. 12/31/72; AMD, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2022 MAR p. 1830, Eff. 9/24/22; AMD, 2024 MAR p. 1060, Eff. 5/11/24.

Mont. Admin. R. 17.24.108 Exploration Reclamation Deferred

(1) The department may defer the reclamation requirements of acreage disturbed under an exploration license if that acreage is proposed for incorporation into a complete plan of operation that is being prepared or has already been submitted as part of an application for an operating permit.

(2) The licensee shall comply with the following conditions of a reclamation deferral:

(a) a current exploration license shall be maintained;

(b) a current and adequate bond shall be maintained;

(d) the licensee shall observe any interim monitoring or reclamation requirements as may be reasonably required by the department.

(3) The department shall cancel the deferral and issue an order to reclaim if the licensee fails to meet any of the conditions outlined in (2) , listed above.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-331, 82-4-332(4), 82-4-338, MCA
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99.

Mont. Admin. R. 17.24.109 Exploration License Assignment

(1) The department may approve the assignment of an exploration license contingent on the following conditions:

(a) The licensee submits to the department a completed application, on a form provided by the department, which includes the name and address of the proposed assignee and the name and address of that person's resident agent, if any.

(b) The assignee commits in writing to conduct the operations in full compliance with the terms and conditions of the license; and,

(c) The assignee certifies they are eligible to hold an exploration license pursuant to the provisions of 82-4-331(3), MCA and provides sufficient bond to guarantee performance of the Act, this subchapter, and the license.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-331, 82-4-332, MCA
History: NEW, 2024 MAR p. 1060, Eff. 5/11/24.

Mont. Admin. R. 17.24.110 Exploration License — Revisions and Amendments

(1) During the term of an exploration license, a licensee may apply for:

(a) exploration license major amendments;

(b) exploration license minor amendments; or

(2) Applications for exploration license major amendments, exploration license minor amendments, and exploration license revisions must be completed and submitted to the department upon current forms prepared and furnished by the department.

(3) An application for each exploration license major amendment must include the following:

(a) a fee determined in accordance with 82-4-342(4), MCA, paid to the department at the time of application; and

(b) an application as specified in (2) containing the information required for a new exploration license under ARM 17.24.103(1)(c) through (f).

(4) An application for each exploration license minor amendment must include the following:

(a) a fee determined in accordance with 82-4-342(2)(c), MCA, to be paid to the department with the next annual fee payment required under 82-4-331(1)(a), MCA;

(b) an application as specified in (2);

(d) updated maps containing the information required in ARM 17.24.103(1)(c) related to maps and showing:

(i) location and extent of proposed new or modified surface disturbances; and

(ii) geographic coordinates and other information sufficient to identify the site;

(e) updated plans that implement the specific reclamation and performance requirements of ARM 17.24.104 through 17.24.108; and

(f) identification of previous environmental analyses applicable to the proposed changes and a statement demonstrating their adequacy.

(5) An application for each exploration license revision must include:

(a) a fee determined in accordance with 82-4-342(2)(c), MCA, to be paid to the department with the next annual fee payment required under 82-4-331(1)(a), MCA;

(b) an application as specified in (2); and

(6) An applicant must file a reclamation performance bond with the department in a form and amount determined adequate by the department in accordance with 82-4-338, MCA.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-321, MCA
History: NEW, 2026 MAR, Notice No. 2026-853, Eff. 9/26/26.

Mont. Admin. R. 17.24.115 Operating Permits: Reclamation Plans

(1) The following provisions must be addressed in the reclamation plan:

(a) land disturbed by development or mining activities must be reclaimed for one or more specified uses, including, but not limited to: forest, pasture, orchard, cropland, residence, recreation, wilderness, industry, habitat (including food, cover or water) for wildlife or other uses. Proposed reclamation need not reclaim subject disturbed areas to a better condition or different use than that which existed prior to development or mining. The applicant must describe:

(i) current uses(s) of area to be disturbed;

(ii) current and proposed uses of nearby land that by its proximity may influence or guide the choice of a reclaimed use of the disturbed area;

(iii) pertinent climatic, topographical, soil, water and wildlife data that govern choice of proposed use of the reclaimed land.

(b) With the use of cross-sections, topographic maps or detailed prose, the proposed topography of the reclaimed land must be adequately described. As specific situations warrant, proper grading must provide for adequately designed contour trenches, benches and rock-lined channelways on disturbed areas. The applicant must submit evidence to assure the department that upon partial or complete saturation with water, graded fill, tailings or spoil slopes will be stable. The proposed grading methods must be described. Where practicable, soil materials from all disturbed areas must be stockpiled and utilized.

(c) The operator must establish vegetative cover commensurate with the proposed land use specified in the reclamation plan.

(d) Where operations result in a need to prevent acid drainage or sedimentation, on or in adjoining lands or streams, there shall be provisions for the construction of earth dams or other reasonable devices to control water drainage, provided the formation of such impoundments or devices shall not interfere with other landowner's rights or contribute to water pollution (as defined in Title 75, chapter 5, MCA) .

(e) All water, tailings or spoil impounding structures must be equipped with spillways or other devices that will protect against washouts during a 100 year flood.

(f) Upon abandonment, water from the development or mining activities shall be diverted or treated in a manner designed to control siltation, erosion or other water pollution damage to streams and natural water courses.

(g) All operations shall be conducted so as to avoid range and forest fires and spontaneous combustion.

(h) Proper precautions must be taken to assure that exposed cuts and tailings or spoil disposal areas will not be subject to wind erosion to the extent that airborne detritus becomes a public nuisance or detriment to the flora and fauna of the area.

(i) In a reclamation plan, the applicant shall provide the department with sufficiently detailed information regarding method(s) of disposal of mining debris, including mill tailings, and the location and size of such areas.

(j) Requirements regarding reclamation of stream channels and stream banks must be flexible to fit circumstances of each stream site. Many stream relocations, however, will be permanent and thus will represent the reclaimed condition of stream channels and stream banks. Accordingly, reclamation plans must contain the following provisions should stream channels or banks be permanently relocated:

(i) the relocation channel shall be of a length equal to or greater than the original channel, unless the department after consideration of the local circumstance shall grant a variance;

(ii) the relocation channel shall contain meanders, riffles and pools similar to those in the original channel;

(iii) stream banks shall be rounded to prevent slumping and sloughing and shall be revegetated in keeping with accepted agriculture or reforestation practices the first appropriate season following channel relocation;

(iv) rock riprap shall be used wherever appropriate.

(k) Sections 82-4-332 and 82-4-335 , MCA, require that maps of the intended development or mining operation(s) accompany applications for permit. Should a copy of such maps, to scale, contain the following additional information (transparent overlays are acceptable) , a separate map need not accompany the reclamation plan:

(i) outline of the area to be disturbed in the first year of operation;

(ii) outline of areas where soil materials will be replaced;

(iii) outline of intended revegetation areas showing plant or seed densities and species chosen;

(iv) location of such structures, drainage features, etc., as may be necessary to prevent erosion of bare slopes and subsequent siltation or other pollution of natural flowing streams or other natural water bodies.

(l) Reclamation shall be as concurrent with development or mining operations as feasible and must be completed within a specified reasonable length of time. Revegetation must be accomplished in the first appropriate season after necessary grading, in accordance with accepted agricultural or reforestation practices.

(m) All facilities constructed as part of the operating permit must be reclaimed for the approved postmine land use. The reclamation plan must provide for removal of buildings and other structures at closure consistent with the postmine land use.

(n) The plan must provide for postmine environmental monitoring programs and contingency plans for the postreclamation permit area. The monitoring programs and contingency plans must be related in scope and duration to the risk to public safety, water quality and adjacent lands they were designed to address.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-335, 82-4-336, MCA
History: Eff. 12/31/72; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; AMD, 2002 MAR p. 3590, Eff. 12/27/02.

Mont. Admin. R. 17.24.116 Operating Permit: Application Requirements

(1) Applicant must obtain an operating permit for each mine complex on a form prescribed by the department.

(2) To obtain an operating permit the applicant shall pay the applicable application fee as required by 82-4-335(3), MCA.

(3) In addition to the information required by 82-4-335(4), MCA, an application for an operating permit must describe the following:

(a) the existing environment;

(b) soil salvage and stockpiling activities and measures to protect soil from erosion and contamination;

(d) the design, construction, and operation of the mine, mill, tailings, and waste rock disposal facilities;

(e) the facilities, buildings, and capacity of mill or processing;

(f) the proposed date for commencement of mining, the minerals to be mined, and a proposed conceptual life of mine operations;

(g) the designs of diversions, impoundments, and sediment control structures to be constructed reflecting their safety, utility, and stability;

(h) the location of access, haul, and other support roads and provisions for their construction and maintenance that control and minimize channeling and other erosion;

(i) the source and volume of incoming ore, tailings, or waste rock;

(j) the equipment and chemicals to be used in the operation by location and task;

(k) the general chemical processes and the purpose, amount, and source of water used in the operation and the disposition of any process waste water or solutions;

(l) the ground and surface water monitoring programs to be implemented including a schedule for reporting results to the department;

(m) a contingency plan addressing accidental discharges to ground or surface water;

(n) a fire protection plan;

(o) a toxic spill contingency plan with certification that notice of the filing of the plan has been provided to the state fire marshal;

(p) the sewage treatment facilities and solid waste disposal sites;

(q) the power needs and source(s) , including fuel storage sites;

(r) the anticipated employment including direct and onsite contract employees;

(s) the transportation network to be used during the construction and operation phases, including a list of the type and amount of traffic at mine or mill capacity;

(t) the predicted noise levels by activities during construction and operations;

(u) the protective measures for archaeological and historical values in the areas to be mined;

(v) the protective measures designed to avoid foreseeable situations of unnecessary damage to flora and fauna in or adjacent to the area.

(4) The application must include a map or maps to scale of:

(a) the proposed permit area and area to be disturbed, including anticipated phases or increments of disturbance, if applicable;

(b) the location of the proposed mine and facilities;

(c) the location and identity of streams within one mile of the permit boundary and three miles down gradient unless a lesser distance is justified and agreed to by the department;

(d) existing and proposed roads;

(e) other constructed features like railroad, oil and gas wells, pipelines and other utility lines in the immediate area;

(f) residences and water wells within one mile of the permit area; and

(g) a uniform base, a scale, and a north directional arrow.

(5) The application must include a reclamation plan that meets the requirements of 82-4-336, MCA, and this subchapter.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-335, 82-4-336, MCA
History: Eff. 12/31/72; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; AMD, 2002 MAR p. 3590, Eff. 12/27/02; AMD, 2024 MAR p. 1060, Eff. 5/11/24; AMD, 2026 MAR, Notice No. 2026-853, Eff. 9/26/26.

Mont. Admin. R. 17.24.117 Permit Conditions

(1) The following conditions accompany the issuance of each permit:

(a) The permittee shall conduct all operations as described in:

(i) the plan of operations including the approved operating, reclamation, monitoring, and contingency plans;

(ii) any express conditions which the department places on the permit to ensure compliance with the Act or this subchapter promulgated pursuant thereto;

(iii) written commitments made by the permittee in response to deficiencies identified by the department during the permit application review process;

(iv) mitigation measures mutually developed by the department and permittee pursuant to 75-1-201(4)(b), MCA; and

(v) plans or assumptions used in calculating bond amounts that have been posted by the permittee.

(b) If the department issued the permit because the applicant was maintaining a good faith direct appeal in accordance with 82-4-335, MCA, the permittee will immediately submit proof upon resolution of the appeal that the violation has been or is being corrected to the satisfaction of the regulatory agency or the permittee will cease operations.

(c) Except as provided in ARM 17.24.144(1)(f) and 17.24.146(2), the permittee shall maintain in effect at all times a bond in the amount established by the department. Upon failure of the permittee to maintain such bond coverage because of expiration or cancellation of bond, the permit is suspended and the permittee shall cease mining operations until substitute bond is filed with and approved by the department.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-335, 82-4-336, 82-4-351, MCA
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; AMD, 2002 MAR p. 3590, Eff. 12/27/02; AMD, 2022 MAR p. 1830, Eff. 9/24/22.

Mont. Admin. R. 17.24.118 Annual Report

(1) Each permittee shall file an annual report with the department and pay the applicable annual fee within a time period specified in 82-4-339, MCA, until such time as full bond is released.

(2) The annual report must include the information outlined under 82-4-339, MCA. In addition, the annual report must include:

(a) the number of acres of land affected by the operation during the preceding year and cumulatively, as well as the disturbance status of incremental bond areas, if applicable;

(b) the extent of backfilling and grading performed during the preceding year and cumulatively;

(d) the type of planting or seeding;

(e) the mixtures and amounts seeded;

(f) the species, location, and method of planting for site or species specific plantings;

(g) the date of seeding or planting;

(h) cumulative acres reseeded to date;

(i) cumulative acres of completed reclamation and the date each increment was completed; and

(j) maps showing the information required in (2)(a) through (i).

(3) Each annual report must include an inventory of soils volumes which includes:

(a) cubic yards salvaged in the preceding year and cumulatively;

(b) cubic yards to be salvaged in the coming year;

(d) replaced soil depths and volumes.

(4) Each annual report for those operations using cyanide or other metal leaching solvents or reagents or having the potential to generate acid must provide a narrative summary of water balance conditions during the preceding year and identify excess water holding capacity at the time of the annual report.

(5) When incremental bond has been approved, additional bond must be submitted, in the amount required, with the annual report and the status of incremental bonding must be described.

(6) If changes in facilities have occurred in the preceding year, the annual report must, pursuant to 82-4-339(1)(f), MCA, update the permit map required under ARM 17.24.115. The updated map must depict all approved surface features, as required by the department, in or associated with the permit area, reproduced at a scale applicable for field use.

(7) If cultural resource mitigations identified in the permit will be ongoing through the life of the operation, the annual report must include an updated cultural resource management table, including a list of sites mitigated and disturbed in the preceding year and sites to be mitigated and disturbed in the coming year.

(8) If comprehensive water monitoring is required by the permit, field measurements and analytical results shall be submitted in electronic format according to the schedule in the approved monitoring plan. Each annual report must include:

(a) an evaluation of water monitoring data and trends, which may include a summary of reports or data submitted during the preceding year;

(b) field measurements, analytical results, and data validation from the preceding year, if not previously provided through the department's designated electronic system; and

(c) time series trend analyses for those key site-specific parameters required by the department in the permit, if not previously provided through the department's designated electronic system.

(9) If site-specific geologic conditions identified in the permit indicate the need for geologic monitoring, each annual report must include monitoring results and must report materials balances as required in the permit.

(10) If site-specific closure requirements identified in the permit include monitoring for cyanide or other metal leaching solvent or reagent neutralization, acid rock drainage development, or similar occurrences, the annual report must include an evaluation of monitoring and testing data required in the permit for closure under 82-4-335, MCA.

(11) Each annual report must include the names of key personnel for maintenance and monitoring if the operation is shut down.

(12) Each annual report must include any other relevant information required by the permit.

(13) The department shall notify a permittee of a deficiency in reporting or failure to pay the full annual fee as required by this rule pursuant to ARM 17.24.132 and 82-4-362(3), MCA. A deficiency in reporting, as related to annual reports, includes a failure to file:

(a) an annual report;

(b) a complete annual report; or

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-335, 82-4-336, 82-4-337, 82-4-338, 82-4-339, 82-4-362, MCA
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; AMD, 2000 MAR p. 473, Eff. 2/11/00; AMD, 2002 MAR p. 3590, Eff. 12/27/02; AMD, 2024 MAR p. 1060, Eff. 5/11/24; AMD, 2026 MAR, Notice No. 2026-853, Eff. 9/26/26.

Mont. Admin. R. 17.24.119 Permit Amendments

(1) An application for a major amendment must:

(a) include the applicable application fee as required under 82-4-342(3), MCA;

(b) contain a summary of changes in disturbances, in resources affected, and in construction, operating, reclamation, monitoring, and contingency plans;

(c) provide dated replacement or supplemental resource data, plans, and maps as outlined in ARM 17.24.115, or cross reference applicable data, plans, or maps in the previously permitted plan of operation, in order to identify the existing environment and resources affected, as well as changes in permit boundaries, in total disturbances, and in construction, operating, reclamation, monitoring, and contingency plans;

(d) identify any additional resource data necessary to the evaluation of the proposed amendment;

(e) provide an updated or comprehensive facilities map; and

(f) clearly indicate on the facilities map all bonding areas subject to pre-July 1, 1974, bonding levels. No action under this subsection affects a bond in effect under pre-July 1, 1974, bonding levels.

(2) For an application for a major amendment, the department shall implement the application, notice and hearing requirements for new permits pursuant to 82-4-337 and 82-4-353, MCA, and prepare necessary environmental analyses pursuant to the Montana Environmental Policy Act.

(3) An application for minor amendment must:

(a) contain a summary of proposed changes in sufficient detail for the department to determine whether further environmental analysis under Title 75, chapter 1, MCA, is required;

(b) contain dated replacement pages and necessary supplemental resource data and plans, and maps in order to identify changes in permit boundaries, total disturbances, and plans;

(d) contain a statement of the applicant's rationale for asserting nonsignificance pursuant to 82-4-342(6), MCA;

(e) identify previous environmental analyses relevant to the amendment; and

(f) clearly indicate on the facilities map all bonding areas subject to pre-July 1, 1974, bonding levels. No action under this section affects a bond in effect under pre-July 1, 1974, bonding levels.

(4) For a minor amendment, the department shall not implement the application, notice and hearing requirements for new permits pursuant to 82-4-337 and 82-4-353, MCA. The department shall provide the permittee with a notice of decision on the adequacy of the minor amendment application within 30 days of receipt of the application.

(5) An operator who submits an application for a minor amendment must pay the application fee required under 82-4-342(2), MCA, with the next annual fee payment required under 82-4-339(3), MCA.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-337, 82-4-339, 82-4-342, MCA
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; AMD, 2002 MAR p. 3590, Eff. 12/27/02; AMD, 2022 MAR p. 1830, Eff. 9/24/22; AMD, 2026 MAR, Notice No. 2026-853, Eff. 9/26/26.

Mont. Admin. R. 17.24.120 Permit Revisions

(1) An application for revision must include:

(a) a general summary explaining the revision;

(b) a statement of the applicant's rationale for asserting nonsignificance pursuant to 82-4-342(6), MCA;

(d) a reference to prior commitments to topsoil salvage, sediment control, reclamation, and other previously approved plans or standards that are applicable to the revision;

(e) documentation of the adequacy of existing bonding, if appropriate;

(f) updated replacement pages and permit map for the permitted plan of operations;

(g) any necessary construction, operating, reclamation, monitoring, and contingency plans; and

(h) an updated or comprehensive facilities map that clearly indicates all areas subject to pre-July 1, 1974, bonding levels. No action under this subsection affects a bond in effect under pre-July 1, 1974, bonding levels.

(2) An operator who submits an application for a revision must pay the application fee required under 82-4-342(2), MCA, with the next annual fee payment required under 82-4-339(3), MCA.

(3) The department shall provide the permittee with a notice of adequacy of proposed revisions within 30 days of receipt of the application.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-337, 82-4-339, 82-4-342, MCA
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2022 MAR p. 1830, Eff. 9/24/22; AMD, 2026 MAR, Notice No. 2026-853, Eff. 9/26/26.

Mont. Admin. R. 17.24.121 Permit Reviews

(1) At any time during the life of an operation, the department may review an operating permit.

(2) If the department determines that the modification of the reclamation plan is authorized under 82-4-337(4), MCA, it may require such modification under the procedures of (3) through (6).

(3) The department shall send an explanation of the need for modification and a conceptual plan for modification to the permittee, by certified mail, and provide opportunity for hearing, pursuant to Title 2, chapter 4, part 6, MCA.

(4) The permittee shall respond to the department with a request for hearing or a proposed schedule for modification or revision, not to exceed one year, within 30 days of receipt of a letter from the department.

(5) The department may extend the one-year time frame or the time for hearing request for good cause documented by the permittee in writing.

(6) A modification must be submitted in the form of an amendment or a revision and the department shall process the applicant's submittal in accordance with ARM 17.24.119 or 17.24.120.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-337, MCA
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; AMD, 2022 MAR p. 1830, Eff. 9/24/22.

Mont. Admin. R. 17.24.122 Permit Assignment

(1) The department may approve the assignment of a permit if the requirements of (2) and (3) are met.

(2) The permittee shall:

(a) provide the department with a completed application on a form, provided by the department, which includes:

(i) the name and address of the proposed assignee and the name and address of that person's resident agent, if any; and

(ii) the same information as is required in 82-4-335 (4) , (8) , and (9) , MCA, for applications for new permits.

(3) The assignee shall:

(a) commit in writing to conduct the operations in full compliance with the terms and conditions of the permit; and

(b) provide sufficient bond to guarantee performance of the Act, this subchapter and the permit.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-335, MCA
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852.

Mont. Admin. R. 17.24.123 Permit Consolidation

(1) In order to facilitate management of multiple permits for a contiguous area, a permittee may, with department approval, consolidate permits.

(2) In order to obtain permit consolidation, the permittee must submit an application containing the following information:

(a) an explanation of the purpose of the consolidation and a summary of cumulative disturbances;

(b) a single map showing the entire proposed permitted area;

(c) a table showing the consolidated acreage of permitted areas, total permitted disturbance, and total acreage reclaimed to date;

(d) an updated facilities map showing all facilities modifications that have occurred since the issuance of the individual permits. This map may be combined with the permit area map required under (b) above if there is no loss in legibility;

(e) a consolidated bonding map showing what areas, if any, are subject to pre-July 1, 1974, bonding levels and showing which bonds cover which areas; and

(f) a consolidated operating and reclamation plan and supporting maps, showing, as appropriate, the area to which each plan applies. No action under this subsection affects a bond in effect under pre-July 1, 1974, bonding levels.

(3) Following consolidation, annual reports must be submitted on the renewal date of the oldest of the permits to be consolidated.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-335, MCA
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2000 MAR p. 473, Eff. 2/11/00.

Mont. Admin. R. 17.24.128 Inspections: Frequency, Method, and Reporting

(1) The department shall conduct an inspection:

(a) at least once per calendar year for each permitted operation; and

(b) at least three times per year for each active operation that:

(i) uses cyanide or other metal leaching solvents or reagents;

(ii) has expected or ongoing acid rock drainage; or

(iii) exceeds 1000 acres in permit area unless the permit is primarily for mining rock products as defined in 82-4-303, MCA.

(2) The department shall provide copies of operating permit inspection reports to any appropriate state or federal land managing agency, if requested by the agency.

(3) The department shall provide a copy of each report to the operator.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-337, 82-4-339, MCA
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; AMD, 2000 MAR p. 473, Eff. 2/11/00; AMD, 2022 MAR p. 1830, Eff. 9/24/22; AMD, 2024 MAR p. 1060, Eff. 5/11/24.

Mont. Admin. R. 17.24.129 Inspections: Response to Citizen Complaints

(1) Any person may request an inspection by the department of any operation by furnishing the department with a signed statement, or an oral report followed by a signed statement, giving the department reason to believe that there exists a violation of the Act, the rules adopted pursuant thereto, the permit, the license, or the exclusion; or that there exists a condition or practice that creates an imminent danger to the public or that is causing or can be reasonably expected to cause a significant, imminent environmental harm to land, air, or water resources. The statement must identify the basis for the allegation or provide corroborating evidence. The statement must be placed in the alleged violator's file and becomes a part of the permanent record. The identity of the person supplying information to the department must remain confidential with the department, if requested by that person.

(2) If the report provides the information required above and the department determines the request to present sufficient evidence to warrant a special inspection, the department shall conduct an inspection to determine whether the condition, practice, or violation exists or existed.

(3) Within 30 days of receipt of the requestor's written statement, the department shall send the requestor and the alleged violator a written response which includes the following:

(a) if an inspection was made, a description of the enforcement action taken, or, if no enforcement action was taken, an explanation of why no enforcement action was taken;

(b) if no inspection was made, an explanation of the reason why.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-337, 82-4-354, MCA, and Article II, Sec. 9, Montana Constitution
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99.

Mont. Admin. R. 17.24.132 Enforcement: Processing of Administrative Deficiency Notices, Warnings, Violations, and Penalties

(1) The department shall issue an administrative deficiency notice for a deficiency in reporting, record keeping, fee payment, or notification that the department determines is minor in nature, is not substantive, and is unlikely to reoccur. The recipient of an administrative deficiency notice must reply with a written response within 30 days of receipt of an administrative deficiency notice.

(2) Except as provided in (5), the department shall send a letter of warning or violation for a violation of the Act, this subchapter, or the permit, license, or exclusion; or for failing to address a deficiency identified in an administrative deficiency notice within 30 days of receipt of the administrative deficiency notice. The letter of warning or violation must be served and must state that the alleged violator may, by filing a written response within a time specified in the notice, provide facts to be considered in further assessing whether a violation occurred and in assessing the penalty under (3).

(3) The department may issue a notice of violation and administrative order for a violation identified in a letter of warning or violation. The administrative order may assess a penalty, require corrective action, or both.

(4) The alleged violator may, within 30 days of service of the notice of violation and order, respond in writing and may request an informal conference, a contested case hearing, or both, on the issues of whether the violation occurred, whether the corrective action ordered by the department is reasonable, and whether the penalty assessed is proper.

(5) If a contested case hearing has not been requested within 30 days of the date of service of the order, the notice of violation and order become final. If a contested case hearing has been requested, the board shall hold a hearing, make the findings of fact, issue the decision, and, if a violation is found, order payment of any penalty as provided in 82-4-361, MCA.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-337, 82-4-339, 82-4-361, MCA
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; AMD, 1996 MAR p. 2586, Eff. 10/4/96; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; AMD, 2006 MAR p. 1139, Eff. 5/5/06; AMD, 2024 MAR p. 1060, Eff. 5/11/24.

Mont. Admin. R. 17.24.133 Enforcement: Abatement of Violations and Permit Suspension

(1) The director shall immediately issue an order suspending the license or permit for each violation of the Act, this subchapter, the license, or the permit, that is creating an imminent danger to the health or safety of the persons outside the permit area.

(2) The director may, after opportunity for an informal conference, suspend a permit or license for a violation of the Act, this subchapter, or the license or permit that:

(a) may reasonably be expected to create a danger to the health or safety of persons outside the permit area;

(b) may reasonably be expected to cause significant environmental harm to land, air, or water resources; or

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-357, 82-4-361, 82-4-362, MCA
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; AMD, 1996 MAR p. 2586, Eff. 10/4/96; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; AMD, 2006 MAR p. 1139, Eff. 5/5/06.

Mont. Admin. R. 17.24.134 Enforcement: Assessment of Penalties

(1) The department shall consider the factors identified in 82-4-1001 , MCA, in determining the amount of a penalty for a violation.

History

Authorizing statute(s): 82-4-321, 82-4-361, MCA
Implementing statute(s): 82-4-361, MCA
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; AMD, 1996 MAR p. 2586, Eff. 10/4/96; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; AMD, 2006 MAR p. 1139, Eff. 5/5/06.

Mont. Admin. R. 17.24.136 Orders: Issuance and Service

(1) Orders issued pursuant to the Act must be served upon the person to whom it is directed promptly after issuance by:

(a) delivering a copy of the order in person to the violator; or

(b) sending a copy of the order by certified mail to the violator at the address on the violator's application for a license or permit or exclusion.

(2) Service is complete upon tender of the order in person. Service by mail is complete within three business days after the date of mailing and is not incomplete because of refusal to accept.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-341, 82-4-357, 82-4-361, 82-4-362, MCA
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; AMD, 1996 MAR p. 2586, Eff. 10/4/96; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; AMD, 2006 MAR p. 1139, Eff. 5/5/06.

Mont. Admin. R. 17.24.137 Notices and Orders: Effect

(1) Reclamation operations and other activities intended to protect public health and safety and the environment must continue during the period of any suspension order unless otherwise provided in the order.

(2) If a suspension order will not completely abate the imminent danger to the health or safety of persons outside the permit or license area in the most expeditious manner physically possible, the director or the director's authorized representative shall impose affirmative obligations on the person to whom it is issued to abate the condition, practice, or violation. The order must specify the time by which abatement must be accomplished and may require, among other things, the use of existing or additional personnel and equipment.

(3) A notice or order may not be vacated because of inability to comply.

(4) If a permit or license has been suspended or revoked, the operator or licensee may not conduct any operations or prospecting pursuant to the permit or license and shall:

(a) if the permit or license is revoked, complete reclamation within the time specified in the order;

(b) if the permit or license is suspended, abate all conditions, practices, or violations, as specified in the order.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-361, 82-4-362, MCA
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; AMD, 2000 MAR p. 473, Eff. 2/11/00.

Mont. Admin. R. 17.24.140 Bonding: Determination of Bond Amount

(1) The department shall require submission of bond in the amount of the estimated cost to the department if it had to perform the reclamation, contingency procedures and associated monitoring activities required of an operator subject to bonding requirements under the Act, the rules adopted thereunder, and the permit, license or exclusion. This amount is based on the estimated cost to the state to ensure compliance with Title 75, chapters 2 and 5, MCA, the Act, the rules adopted thereunder, and the approved permit, license or any exclusion and shall include:

(a) costs estimated by using current machinery production handbooks and publications or other documented costs acceptable to the department;

(b) the additional estimated costs to the department which may arise from additional design work, applicable public contracting requirements or the need to bring personnel and equipment to the operating area after its abandonment by the operator;

(c) an additional amount based on factors of cost changes during the preceding five years for the types of activities associated with the reclamation to be performed; and

(d) the additional estimated cost to the department which may arise from management, operation, and maintenance of the site upon temporary or permanent operator insolvency or abandonment, until full bond liquidation can be effected.

(2) The total bond amount calculated by the department must be in place and accepted by the department prior to issuance of the permit, license, or exclusion unless:

(a) the applicable plan identifies phases or increments of disturbance which may be individually identified and for which individual, incremental bonds may be calculated. The plan must provide for bonding increments to be submitted with the annual report and must expressly state that the operator, licensee or small miner may not proceed to the next phase or increment until the bond is in place and has been approved in writing by the department; or

(b) mining will proceed through a progression of contiguous pits and the plan provides for concurrent backfill. In this case, the bond must include the amount necessary to backfill the largest volume pit.

(3) An incremental bond proposal must not be accepted if the operator has received a bonding noncompliance, notice of violation for exceeding the small miner or other acreage limitations, or a notice of violation for conducting activities outside the bonded operating area. This prohibition does not apply if the violation is vacated or if a court rules that a violation did not occur.

(4) Unless the provisions of the bond provide otherwise, the line items in the bond calculations are estimates only and are not limits on spending of any part of the bond to complete any particular task subsequent to forfeiture of the bond or settlement in the context of bond forfeiture proceedings.

(5) An operator may submit bond higher than the amount required by the department. The extra amount remains unobligated to any disturbance until applied against disturbances which result from additional activities approved under an operating permit, license, or exclusion.

(6) Bond released from completed activities may not be applied to subsequent activities or increments until the department has inspected the site, provided public notice and opportunity for comment on the release, and approved the request for release in compliance with 82-4-338 , MCA.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-338, MCA
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; AMD, 2000 MAR p. 473, Eff. 2/11/00; AMD, 2002 MAR p. 3590, Eff. 12/27/02.

Mont. Admin. R. 17.24.141 Bonding: Adjustment of Amount of Bond

(1) The amount of the performance bond must be reviewed for possible adjustment as the disturbed acreage is revised, methods of mining operation change, standards of reclamation change or when contingency procedures or monitoring change.

(2) The department shall conduct an overview of the amount of each bond annually and shall conduct a comprehensive bond review at least every five years. The department may conduct additional comprehensive bond reviews if, after modification of the reclamation or operation plan, and annual overview, or an inspection of the permit area, the department determines that an increase of the bond level may be necessary.

(3) If, at the time of an amendment under ARM 17.24.119, a comprehensive bond review is completed, the next comprehensive bond review must occur not more than five years after the issuance of the amendment.

(4) The department shall notify the operator of any proposed bond adjustment and provide the operator an opportunity for an informal conference on the adjustment.

(5) For bond reduction requests by the operator for release of undisturbed land, the department shall conduct an inspection of the proposed area before responding to the request. For the bond reduction request, the operator shall:

(a) submit a map of the area in question;

(b) revise the appropriate active operation maps; and

(6) For bond reduction requests by the operator for full or incremental reclamation of previously disturbed lands, the department shall conduct an inspection of the proposed area before responding to the request. For the bond reduction request, the operator shall:

(a) submit a map or maps showing the location of reclamation and a determination of the area, in acres, that was reclaimed;

(b) revise the appropriate active operation maps; and

(c) submit a description of the reclamation that provides sufficient details to demonstrate compliance with the reclamation plan approved by the department.

(7) An operator or an interested party may request an adjustment of the required performance bond amount upon submission of evidence to the department demonstrating that the method of operation or other circumstances will change the estimated cost to the department to complete the reclamation, contingency procedures, or monitoring activities and therefore warrant a change in the bond amount.

(8) A bond filed for an operating permit obtained under 82-4-335 , MCA, may not be released or decreased until the public has been provided an opportunity for a hearing and a hearing has been held if requested. The department shall provide reasonable statewide and local notice of the opportunity for hearing including, but not limited to, circulation. The department shall provide a 30-day comment period in the notice. A request for hearing must be submitted to the department in writing within the comment period.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-338, 82-4-341, 82-4-342, MCA
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; AMD, 2000 MAR p. 473, Eff. 2/11/00; AMD, 2024 MAR p. 1060, Eff. 5/11/24.

Mont. Admin. R. 17.24.142 Bonding: Replacement of Bond

(1) The department may allow an operator to replace existing surety or collateral bonds with other surety or collateral bonds, if the liability that has accrued against the operator is transferred to such replacement bonds.

(2) The department may not release an existing performance bond until the operator has submitted and the department has approved an acceptable replacement performance bond. A replacement of performance bond pursuant to this rule does not constitute a release of bond under 82-4-338 , MCA.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-338, MCA
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99.

Mont. Admin. R. 17.24.143 Bonding: Form of Bond

(1) The form for the performance bond must be as provided by the department. The department shall allow for a surety bond or a collateral bond.

(2) Liability under any bond, including separate bond increments and indemnity agreements applicable to a single operation, must extend to the entire bonded area.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-338, MCA
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99.

Mont. Admin. R. 17.24.144 Bonding: Surety Bonds

(1) In addition to the requirements of 82-4-338, MCA, surety bonds are subject to the following requirements:

(a) The department may not accept a surety bond in excess of 10% of the surety company's paid-in surplus or additional paid-in capital as shown on a balance sheet certified by a certified public accountant.

(b) The department may not accept a surety bond from a surety company for any person, on all permits held by that person, in excess of three times the company's maximum single obligation as provided in (a) above.

(c) The department may not accept a surety bond from a surety company for any person, on all permits held by that person, unless that surety is registered with the state auditor and is listed in the United States Department of the Treasury Circular 570 as revised.

(d) The surety bond must be submitted on a surety form provided by the department. The surety form may not be modified by the surety beyond populating the necessary surety bond form fields.

(e) A power of attorney must be attached to the surety bond.

(f) The surety bond must provide a mechanism for the surety company to give prompt notice to the department and the operator of:

(i) any action alleging bankruptcy or insolvency of the surety or violation that would result in suspension or revocation of the license of the surety;

(ii) cancellation by the operator; and

(iii) cancellation or pending cancellation by the surety.

(g) Upon incapacity of a surety by reason of bankruptcy, insolvency or suspension or revocation of its license, the operator shall be deemed to be without bond coverage and shall promptly notify the department in the manner described in the bond. The department, upon notification, shall, in writing, notify the operator of a reasonable period, not to exceed 90 days, to replace bond coverage. If an adequate bond is not posted by the end of the period allowed, the operator shall cease mineral extraction, comply with the provisions of 82-4-336(1) , MCA, and immediately commence reclamation in accordance with the Act, this subchapter and the reclamation plan. Mining operations must not resume until the department has determined that an acceptable bond has been posted.

(h) Whenever operations are abandoned concurrent with cancellation of the bond, the department must reclaim the site and forfeit the bond within two years, consistent with 82-4-341, MCA, for any reclamation obligation incurred in the reclamation of the site.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-338, 82-4-341, 82-4-360, MCA
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; AMD; 2000 MAR p. 473, Eff. 2/11/00; AMD; 2024 MAR p. 1060, Eff. 5/11/24.

Mont. Admin. R. 17.24.145 Bonding: Certificates of Deposit

(1) The department may accept as bond an assignment of a certificate of deposit in a denomination not in excess of the maximum insurable amount as determined by the FDIC or the NCUA. The department may not accept a combination of certificates of deposit for one operator on one institution in excess of that limit.

(2) The department may accept only automatically renewable certificates of deposit from a United States bank or credit union.

(3) The department shall require the operator to deposit sufficient amounts of certificates of deposit, to assure that the department will be able to liquidate those certificates prior to maturity, upon forfeiture, for the amount of the bond required pursuant to ARM 17.24.140 and 17.24.141.

(4) The department shall require that each certificate of deposit be made payable to or assigned to the department, both in writing and in the records of the bank issuing the certificate. The department shall require banks issuing these certificates to waive all rights of setoff or liens against these certificates.

(5) The certificate of deposit assignment must be submitted on a certificate of deposit assignment form provided by the department. The certificate of deposit assignment form may not be modified by the bank or credit union beyond populating the necessary certificate of deposit bond form fields.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-338, MCA
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; AMD, 2024 MAR p. 1060, Eff. 5/11/24.

Mont. Admin. R. 17.24.146 Bonding: Letters of Credit

(1) The department may accept as a bond a letter of credit subject to the following conditions:

(a) The letter must be issued by a bank or credit union organized or authorized to do business in the United States.

(b) The letter must be irrevocable prior to a release by the department pursuant to 82-4-338, MCA.

(c) The letter must be payable to the department in part or in full upon demand and receipt from the department of a notice that the person has failed to comply with a provision of the Act, the rules adopted thereunder, or the permit, license, or exclusion, the failure of which authorizes forfeiture of the bond under the Act.

(d) The letter of credit must provide that, upon expiration, if the department has not notified the bank or credit union in writing that substitute bond has been provided or is not required, the bank or credit union will immediately pay the department the full amount of the letter less any previous drafts.

(e) The letter must not be for an amount in excess of 10% of the bank's or credit union's paid-in surplus or paid-in capital as shown on a balance sheet certified by a certified public accountant.

(f) The department may not accept a letter of credit from a bank nor a credit union for any person, on all permits, licenses, or exemptions held by that person, in excess of three times the company's maximum single obligation as provided in (e).

(g) The letter of credit must be submitted on a letter of credit form provided by the department. The letter of credit form may not be modified by the bank or the credit union beyond populating the necessary letter of credit bond form fields.

(2) If the department determines that the bank or credit union has become unable to fulfill its obligations under the letter of credit, the department shall, in writing, notify the operator and specify a reasonable period, not to exceed 90 days, to replace bond coverage. If an adequate bond is not posted by the end of the period allowed, the operator shall cease mineral extraction and shall comply with the provisions of 82-4-341 , MCA, and shall immediately begin to conduct reclamation operations in accordance with the Act, this subchapter and reclamation plan. Mining operations must not resume until the department has determined that an acceptable bond has been posted.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-338, 82-4-341, 82-4-360, MCA
History: NEW, 1994 MAR p. 2952, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; AMD, 2002 MAR p. 3590, Eff. 12/27/02; AMD, 2024 MAR p. 1060, Eff. 5/11/24.

Mont. Admin. R. 17.24.150 Abandonment or Completion of Operation

(1) For the purposes of administering the Act, the following conditions are considered evidence that a mining or milling operation is abandoned or completed, and thus subject to the reclamation time schedule outlined in 82-4-336, MCA:

(a) ore ceases to be extracted for future use or processing;

(b) milling or processing of ore ceases;

(d) the operating permit is suspended;

(e) the operator has failed to maintain the legal right to access and conduct mining or milling activities in the permit area; or

(f) the department's documentation through a site inspection, review of an operator's annual report, or information provided by an operator that the site is inactive.

(2) If the operating permit is not suspended, the department will use the following conditions to determine an operation is not abandoned or complete:

(a) ore is removed or sold from existing on-site material stockpiles;

(b) the operator is actively removing or regrading overburden;

(c) the operator can demonstrate ongoing on-site activities related to mining, milling, or reclamation in compliance with the operating permit;

(d) the mine or mill work force is on strike while negotiating a new contract;

(e) the mine or mill is shut down because of some failure of the transportation network in moving ore or processed material;

(f) the mine or mill is shut down because of a natural catastrophe and plans to resume operations are being formulated;

(g) the mine or mill is seasonally shut down due to predictable annual variance in the mined product's market or because of inclement weather or seasonal inaccessibility;

(h) the mine or mill is shut down for maintenance or the construction of new facilities;

(i) the mine or mill is forced to temporarily shut down because of violation of other state or federal laws and efforts are being made to remedy the cause of the violation.

(3) In order to comply with reclamation plan requirements, the department may extend the reclamation timeframe, as provided in 82-4-336, MCA. An operator may request authorization from the department to modify the reclamation timeframe through an amendment or revision. In addition to the information required by ARM 17.24.119 or 17.24.120, the request must also include:

(a) detailed information for why the extension is necessary to comply with reclamation plan requirements;

(b) a map and description to identify the inactive locations;

(d) contact information for site personnel, if different from the contact provided in the previous year's annual report; and

(e) for operations with water management or treatment requirements, a description of any monitoring and reporting, pumping, conveyance, treatment, or disposal activities that will be maintained during the period of inactivity to achieve water quality requirements.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-336, MCA
History: Eff. 12/31/72; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2000 MAR p. 473, Eff. 2/11/00; AMD, 2024 MAR p. 1060, Eff. 5/11/24.

Mont. Admin. R. 17.24.151 Abandoned Pits: Objectionable Effluents

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-336, MCA
History: Eff. 12/31/72; TRANS, from DSL, 1996 MAR p. 2852; REP, 1999 MAR p. 640, Eff. 4/9/99.

Mont. Admin. R. 17.24.152 Disclosure of Information

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-336, MCA
History: Eff. 12/31/72; TRANS, from DSL, 1996 MAR p. 2852; REP, 1999 MAR p. 640, Eff. 4/9/99.

Mont. Admin. R. 17.24.153 General Compliance

(1) The operator shall comply with all federal and state laws, and such rules and regulations as are promulgated by the department under the Act.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-336, MCA
History: Eff. 12/31/72; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; AMD, 2022 MAR p. 1830, Eff. 9/24/22.

Mont. Admin. R. 17.24.157 Blasting Operations: Complaint Procedure

(1) Affected parties, who are owners of an interest in real property or individuals who reside within an area subject to property damage or safety hazards related to the use of explosives by an operator may file a signed and dated complaint related to use of explosives associated with hard rock mining or exploration activities as follows:

(a) Complaints must be filed in writing with the department.

(b) Complaints must include the following information:

(i) name, mailing address, street address and phone number of the person or persons filing complaint;

(ii) statement of interest in real property or identification of residence within an area subject to property damage or safety hazards related to use of explosives;

(iii) name of person or company using explosives, if known;

(iv) detailed location of explosives use;

(v) date and time of use;

(vi) if property damage is alleged, type of damage including:

(A) type of structure;

(B) nature of damage;

(D) rationale for correlating damage to use of explosives; and

(vii) if safety hazard is alleged, type of safety hazard.

(c) The department shall respond to all complaints by notifying each person who files a complaint whether the department considers the complaint to be credible. A credible complaint is a complaint addressing all requirements listed in (b) in a manner that is not false or without basis on its face.

(2) The department shall promptly investigate a credible complaint by:

(a) immediately providing the operator with a copy of a credible complaint;

(b) documenting the alleged damage or safety hazard with photographs and engineering reports and interviews as appropriate;

(d) investigating concurrent activity which may have caused or contributed to the problem identified;

(e) conducting appropriate tests, which may include, but are not limited to:

(i) seismograph and airblast monitoring;

(ii) geologic investigation; and

(iii) evaluation of the structural integrity of the structure; and

(f) making written findings, including, if possible, a determination of whether any of the standards in ARM 17.24.159(2)(f)(i), (2)(k)(i), and (2)(o)(iii) were exceeded.

(3) The department shall mail a copy of its written findings to the complainant and the operator.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-356, MCA
History: NEW, 1990 MAR p. 1470, Eff. 7/27/90; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2022 MAR p. 1830, Eff. 9/24/22.

Mont. Admin. R. 17.24.158 Blasting Operations: Participation and Cooperation of Persons Using Explosives

(1) Whenever the department notifies the operator that it has received a credible complaint pursuant to ARM 17.24.157 concerning a use of explosives, the operator shall make available to the department, within 15 days of receipt of a written request, such information as the department may request, including, but not limited to, the following:

(a) identification of persons conducting blasting activities and their level of training and experience;

(b) preblasting survey information, if available;

(c) blasting schedule and records identifying as accurately as possible location of the blasting sites and timing of blasts; and

(d) seismograph measurements, if available.

(2) The operator shall make available for interviewing by the department and its consultants all persons involved in the blasting operations.

(3)

(a) After the department conducts its preliminary investigation by reviewing the records supplied by the operator using explosives and performs its own appropriate tests, if needed, the department shall do one or more of the following:

(i) if the department's preliminary investigation has determined that property damage or a safety hazard could not have occurred from blasting activities, the department shall give written notification of its findings to all concerned parties;

(ii) if, after its preliminary investigation, the department cannot determine whether property damage or a safety hazard may have occurred as the result of blasting, or if it appears damage or a safety hazard has occurred as the result of blasting, the department shall perform one or more of the following:

(A) continue to conduct its own tests;

(B) conduct additional investigations, including, but not limited to, geologic structure, frequency, and delay sequencing; or

(b) A survey prepared under (a) (ii) (C) must be conducted by a recognized expert on the forces created by blasting and must document the condition of the structure, any blasting damage, any causes for the damage other than blasting, and whether blasting by the operator exceeded the standards contained in ARM 17.24.159(2) (f) (i) , (2) (k) (i) and (2) (o) (iii) . Assessments of structures such as pipes, cables, transmission lines, and wells and other water systems must be limited to surface condition and readily available data. Special attention must be given to the condition of wells and other water systems used for human, animal, or agricultural purposes and to the quantity and quality of the water.

(c) The recognized expert must submit the expert's qualifications to the department for review. At a minimum, the expert must:

(i) have field experience covering at least five previous blasting-related projects; and

(ii) provide a brief summary of the number and type of preblast and postblast investigations along with any conclusions or recommendations resulting from those investigations.

(d) The department shall require that a written report of the survey be prepared and signed by the person who conducted the survey. If the report finds that the standards were exceeded or that the blasting caused damage or safety hazard, the report must include recommendations of any special conditions or proposed adjustments to the blasting procedure that should be incorporated into the blasting plan to prevent damage or hazard. The department shall provide a copy of the report to the complainant and the operator.

(4)

(a) If the third party investigation demonstrates that the operator exceeded the standards contained in ARM 17.24.159(2) (f) (i) , (2) (k) (i) or (2) (o) (iii) , or that the damages or a hazard resulted from blasting by the operator, the operator shall reimburse the department for all reasonable fees and expenses it has paid to the third-party consultant.

(b) The operator may file a response, including proposed mitigation measures, to the written report submitted pursuant to (3) (d) within 15 days from receipt of the report.

(c) The department shall respond to the operator in a timely manner with directives and fees for all reasonable expenses incurred in the third-party investigations.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-356, MCA
History: NEW, 1990 MAR p. 1470, Eff. 7/27/90; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2000 MAR p. 473, Eff. 2/11/00.

Mont. Admin. R. 17.24.159 Blasting Operations: Orders of the Department

(1) If the department determines that the preponderance of evidence indicates that property damage or safety hazards are or were caused by blasting associated with exploration or mining activities by an operator, the department shall issue an order. In the event the order is not complied with, the department shall issue an order imposing requirements reasonably necessary to prevent property damage or safety hazards.

(2) The department may require as many of the following requirements as are reasonably necessary for this purpose:

(a) Each operator shall comply with all applicable state and federal laws in the use of explosives.

(b) All blasting operations must be conducted by experienced, trained, and competent persons who understand the hazards involved.

(c) A record of each blast occurring over a period to be determined by the department, including seismograph records, must be prepared and retained for at least three years and must be available for inspection by the department on request. Blasting records must be accurate and completed in a timely fashion. The records must contain the following data:

(i) name of the operator conducting the blast;

(ii) location, date, and time of the blast;

(iii) name, signature, and, if applicable, license number and appropriate certification program name of blaster-in-charge;

(iv) direction and distance, in feet, to the nearest inhabited building or structure either:

(A) not located in the permit area; or

(B) not owned nor leased by the person who conducts the mining activities;

(v) weather conditions, including temperature, wind direction and approximate wind velocity;

(vi) type of material blasted;

(vii) number of holes, burden, and spacing;

(viii) diameter and depth of holes;

(ix) types of explosives used;

(x) total weight of explosives used;

(xi) maximum weight of explosives detonated within any eight-millisecond period;

(xii) maximum number of holes detonated within any eight-millisecond period;

(xiii) initiation system;

(xiv) type and length of stemming;

(xv) mats or other protections used;

(xvi) type of delay detonator and delay periods used;

(xvii) sketch of the delay pattern;

(xviii) number of persons in the blasting crew;

(xix) seismographic and airblast records, where required, including:

(A) the calibration signal of the gain setting or certification of annual calibration;

(B) seismographic reading, including exact location of seismograph and its distance from the blast, airblast reading, dates and times of readings;

(D) name of the person and firm analyzing the seismographic record.

(d) When blasting is conducted in an area where access is not restricted, warning and all-clear signals of different character that are audible at all points within a range of 1/2 mile from the point of the blast must be given. Each person within the permit area and each person who resides or regularly works within 1/2 mile of the permit area must be notified of the meaning of the signals through appropriate instructions. These instructions must be periodically delivered or otherwise communicated in a manner that can be reasonably expected to inform such persons of the meaning of the signals.

(e) Blasting must not eject flyrock off property controlled by the operator. Access to the blasting area and to areas where blasting effects, such as flyrock, occur, must be controlled by methods such as signs and fencing to prevent the presence of livestock or unauthorized personnel during blasting and until an authorized representative of the operator has reasonably determined:

(i) that no unusual circumstances, such as imminent slides or undetonated charges, exist; and

(ii) that access to and travel in or through the area can be safely resumed.

(f) The operator shall comply with the following to control airblast:

(i) Airblast must be controlled so that it does not exceed the values specified below at any dwelling, public building, school, church, or commercial, public, or institutional structure, unless the structure is owned by the operator and is not leased to any other person. If a building owned by the operator is leased to another person, the lessee may sign a waiver relieving the operator from meeting the airblast limitations of this section.

___________________________________________________________________

Lower Frequency limit of Maximum level in

measuring system, Hertz (Hz) (+3dB) decibels (dB)

0.1 Hz or lower - flat response .........................................134 peak.

2 Hz or lower - flat response ............................................133 peak.

6 Hz or lower - flat response ............................................129 peak.

C-weighted, slow response .............................................105 peak dBC.

If necessary to prevent damage based upon the consultant's report, the department shall specify lower maximum allowable airblast levels than those above.

___________________________________________________________________

(ii) In all cases, except the C-weighted, slow-response system, the measuring systems used must have a flat frequency response of at least 200 Hz at the upper end. The C-weighted system must be measured with a Type 1 sound level meter that meets the standard American National Standards Institute (ANSI) S 1.4-1983 specifications. These specifications are incorporated by reference. Copies of this publication are on file with the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

(iii) The operator may satisfy the provisions of this subsection by meeting any of the four specifications in the chart in (i).

(iv) The operator shall conduct periodic monitoring to ensure compliance with the airblast standards. The department may require an airblast measurement of any or all blasts, and may specify the location of such measurements, except as noted in (i).

(g) Whenever the standards contained in (k)(i) and (o)(iii) have been exceeded, or whenever, based upon the consultant's report, it has been determined to be necessary to protect public safety or property, the department may require modification of blasting activities to protect:

(i) public, private or institution building, including any dwelling, school, church, hospital, or nursing facility; and

(ii) facilities including, but not limited to, disposal wells, petroleum or gas storage facilities, municipal water storage facilities, fluid transmission pipelines, gas or oil collection lines, or water and sewage lines or any active or abandoned underground mine.

(h) A blast design, including measures to protect the facilities in (g) must be submitted to the department prior to continued blasting.

(i) Flyrock, including blasted material traveling along the ground, must not be cast from the blasting vicinity more than half the distance to the nearest dwelling or other occupied structure and in no case beyond the line of property owned or leased by the permittee, or beyond the area of regulated access required under (e).

(j) Blasting must be conducted to prevent injury to persons, damage to public or private property outside the permit area, adverse impacts on any underground mine, and change in the course, channel, or availability of ground or surface waters outside the permit area.

(k)

(i) In all blasting operations, except as otherwise authorized in this subsection, the maximum peak particle velocity must not exceed the following limits at the location of any dwelling, public building, school, church, or commercial, public, or institutional structure:

___________________________________________________________________

Distance (D) Maximum allowable Scaled-distance

from the peak particle velocity factor to be applied

blasting site, (V max) for ground without seismic

in feet vibration, in inches/ monitoring (Ds)

second

___________________________________________________________________

0 to 300 1.25 50

301 to 5,000 1.00 55

5,001 and beyond 0.75 65

___________________________________________________________________

(ii) Peak particle velocities must be recorded in three mutually perpendicular directions. The maximum peak particle velocity is the largest of any of the three measurements.

(iii) The department shall reduce the maximum peak velocity allowed if a lower standard is required, based upon the consultant's report, to prevent damage or to protect public safety because of density of population or land use, age or type of structure, geology or hydrology of the area, frequency of blasts, or other factors.

(l) If blasting is conducted in such a manner as to avoid adverse impacts on any underground mine and changes in the course, channel, or availability of ground or surface water outside the permit area, then the maximum peak particle velocity limitation of (k) does not apply at the following locations:

(i) at structures owned by the operator and not leased to another party; and

(ii) at structures owned by the operator and leased to another party, if a written waiver by the lessee is submitted to the department prior to blasting.

(m) An equation for determining the maximum weight of explosives that can be detonated within any eight-millisecond period is in (n) . If the blasting is conducted in accordance with this equation, the peak particle velocity is deemed to be within the limits specified in (k).

(n) The maximum weight of explosives to be detonated within any eight-millisecond period may be determined by the formula

W=(D/Ds) 2 where W=the maximum weight of explosives, in pounds, that can be detonated in any eight-millisecond period; D=the distance, in feet, from the blast to the nearest public building or structure, dwelling, school, church, or commercial or institutional building or structure, except as noted in (l) ; and Ds=the scaled distance factor, using the values identified in (k).

(o)

(i) Whenever a seismograph is used to monitor the velocity of ground motion and the peak particle velocity limits of (k) are not exceeded, the equation in (n) need not be used. If that equation is not used by the operator, a seismograph record must be obtained for each shot.

(ii) The use of a modified equation to determine maximum weight of explosives per delay for blasting operations at a particular site may be approved by the department, on receipt of a petition accompanied by reports including seismograph records of test blasting on the site. The department may not approve the use of a modified equation if the peak particle velocity for the limits specified in (k) are exceeded, meeting a 95% statistical confidence level.

(iii) The operator may use the ground vibration limits in Figure 1 (30 CFR 816.67(d)(4)) as an alternative to (i) and (ii), upon approval by the department.

Official policy figure

(iv) The department may require a seismograph record of any or all blasts and may specify the location at which the measurements are to be taken.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-356, MCA
History: NEW, 1990 MAR p. 1470, Eff. 7/27/90; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; AMD, 2024 MAR p. 1060, Eff. 5/11/24.

Mont. Admin. R. 17.24.165 Mills and Reprocessing Operations: Definitions (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-335, 82-4-336, 82-4-337, MCA
History: NEW, 1990 MAR p. 1008, Eff. 6/1/90; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; REP, 2024 MAR p. 1060, Eff. 5/11/24.

Mont. Admin. R. 17.24.166 Mills: Applicability of Rules to Mills

(1) ARM 17.24.102 and 17.24.167 through 17.24.169 apply to:

(a) all mills under permit pursuant to Title 82, chapter 4, part 3, MCA, on June 1, 1990;

(b) all mills constructed or beginning operation after June 1, 1990;

(d) all mills that were constructed and operated prior to June 1, 1990, and that use cyanide ore processing reagent after May 23, 1996.

(2) For mills under permit on June 1, 1990 existing bond must be upgraded at the time of the next permit amendment, unless the department requires earlier upgrading or an operator chooses to update the mill permit information and bond prior to that time. Prior to updating information, the operator shall meet with the department to determine the appropriateness of the requirements in ARM 17.24.168 to the specific situation. Any requirement determined not applicable shall be documented in the permit with the reasons for the determination.

(3) Mills constructed as a part of a new mining operation must be permitted under the mine operating permit using the information required in ARM 17.24.167 through 17.24.169.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-304, MCA
History: NEW, 1990 MAR p. 1008, Eff. 6/1/90; AMD, 1995 MAR p. 2498, Eff. 11/23/95; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 1060, Eff. 5/11/24.

Mont. Admin. R. 17.24.167 Mills: Operating Permit Application

(1) Any person wishing to operate a mill or disturb land in anticipation of construction or operation of a mill must obtain an operating permit for each mill complex on a form prescribed by the department before disturbance of land in anticipation of construction or operation of the mill or associated facilities.

(2) Prior to receiving an operating permit, the applicant must:

(a) pay the applicable application fee as required under 82-4-335(3), MCA, unless the mill application is associated with and submitted concurrently with a new operating permit application submitted under 82-4-335, MCA;

(b) indicate the proposed date for commencement of milling and the minerals to be milled and the conceptual life of the mill;

(c) provide a map or maps to scale of the mill area (such map must locate the proposed mill and must locate and identify streams, and proposed roads, railroads, and utility lines in the immediate area and residences and wells within one mile of the permit area). All maps provided in the application must have a uniform base, a scale, and a north directional arrow;

(d) file a reclamation bond pursuant to 82-4-338, MCA;

(e) file a plan of operation including construction, operating, monitoring and contingency plans; and

(f) file a reclamation plan.

(3) The department shall provide public notice of mill applications, consistent with 82-4-353, MCA.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-335, MCA
History: NEW, 1990 MAR p. 1008, Eff. 6/1/90; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2002 MAR p. 3590, Eff. 12/27/02; AMD, 2026 MAR, Notice No. 2026-853, Eff. 9/26/26.

Mont. Admin. R. 17.24.168 Mills: Operating Plans

(1) An application for an operating permit pursuant to ARM 17.24.167 must contain an operating plan that contains each of the following:

(a) a description of the existing environment;

(b) a plan of operations that includes:

(i) all of the matters required by 82-4-335(4)(d) through (k), MCA, excepting the mine map;

(ii) maps enhancing narratives which use the same base and scale as required by ARM 17.24.167(2)(c); where appropriate;

(iii) a description of the design, construction, and operation of the mill, tailings, and waste rock disposal facilities;

(iv) a list of equipment and chemicals to be used in the operation by location and task;

(v) a description of all buildings and identification of mill design capacity;

(vi) a description of topsoil salvage and stockpiling activities;

(vii) a description of the general chemical processes and the purpose and amount and source of water used in the operation and the amount and disposition of any process wastewater or solutions to be disposed;

(viii) a description of the power needs and source(s), including fuel storage sites;

(ix) sewage treatment and facilities and solid waste disposal sites;

(x) a description of the transportation network to be used or built during the construction and operation phases, and a listing of the type and amount of traffic at mill capacity;

(xi) a description of the fire protection plan and the toxic spill contingency plan and a certification that notice of the filing of the plan has been provided to the state fire marshal;

(xii) plans describing the design and operation of all diversions and impounding structures and sediment control. Descriptions shall be detailed enough to provide an accurate depiction of the safety, utility and stability of such structures;

(xiii) a discussion of predicted noise levels by activities during construction and operational phases;

(xiv) a discussion of the potential and known archaeological and cultural values in the area of potential environmental effect for the project and a discussion of how such values are to be given consideration;

(xv) provisions for the prevention of wind erosion of all disturbed areas;

(xvi) a description of the provisions for protection of off-site flora and fauna;

(xvii) plans for the monitoring of ground water and surface water until continuous compliance with water quality standards is demonstrated, and a contingency plan in case of accidental discharge describing remedial action in cases requiring emergency action;

(xviii) a plan for the protection of topsoil stockpiles from erosion and contamination; and

(xix) a listing of known sources and volumes of incoming ore, tailings, or waste rock.

(d) if the mill is proposed to be operated in conjunction with a mine operated by applicant, personnel requirements by location and task for construction and operation phases. (Operations meeting the definition of "large scale mineral development" in 90-6-302, MCA, must also comply with the Hard Rock Impact Act, Title 90, chapter 6, part 3, MCA).

(2) Annual reports must be submitted consistent with 82-4-339, MCA, and include in addition:

(a) sources and volumes of incoming ore;

(b) volumes of tailings or waste generated;

(d) remaining waste and tails capacity.

(3) Plans submitted under ARM 17.24.167, 17.24.168, and 17.24.169, must be consistent with plans filed with other permitting authorities.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-335, MCA
History: NEW, 1990 MAR p. 1008, Eff. 6/1/90; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2026 MAR, Notice No. 2026-853, Eff. 9/26/26.

Mont. Admin. R. 17.24.169 Mills: Reclamation Plans

(1) An application for an operating permit pursuant to ARM 17.24.167 must contain a plan that provides for the reclamation of all the land to be disturbed by the proposed milling operation and associated activities. The plan must, at a minimum, include the following:

(a) all of the requirements of a reclamation plan set forth in 82-4-303 (13) (a) and (d) through (h) , 82-4-336 , MCA, and ARM 17.24.115;

(b) a regarding plan which leaves all disturbed areas in a stable configuration and which conforms with the proposed subsequent use of the land after reclamation. The department may require the use of cross-sections, topographic maps or detailed narrative, or a combination of these, to ensure that the application adequately describes the proposed topography of the reclaimed land. All reclaimed slopes on materials potentially acid or toxic forming shall be graded to assure future erosion of acid and toxic forming materials offsite is prevented using prudent slope angle and length;

(c) a description of the manner in which the soil materials will be redistributed from the stockpiles to the area to be reclaimed (e.g., truck/loader, scrapers) , to provide for adequate revegetation;

(d) a description of the methods by which surface and ground water will be restored or maintained to meet the criteria of Title 75, chapters 5 and 6, MCA, as amended, or rules adopted pursuant to these laws, including methods used to monitor for accidental discharge of objectionable (potential toxic or acid-producing) materials, plans for detoxification or neutralization of such materials, and remedial action plans for control and mitigation of discharges to surface or ground water;

(e) a plan for the reestablishment of vegetation which conforms with the proposed subsequent use of the land after reclamation. Such revegetation plan must consider the following:

(i) The first objective in revegetation is to stabilize the area as quickly as possible after it has been disturbed. Plants that will give a quick, protective cover and those that will enrich the soil must be given priority. Plants reestablished must be in keeping with the intended reclaimed use of the land.

(ii) Appropriate revegetation must be accomplished as soon after necessary grading as possible; however, revegetation must be performed in the proper season in accordance with accepted agricultural and reforestation practices.

(iii) In the event that any of the above revegetation efforts are unsuccessful, the permittee shall seek the advice of the department and make additional attempts, incorporating such changes and additional procedures as may be expected to provide satisfactory revegetation;

(f) a schedule describing the manner and deadlines for the removal of facilities including, but not limited to, the removal of buildings or related structures, or a plan meeting the requirements for alternative land use.

(2) The department may require additional measures necessary to ensure that the disturbed area is reclaimed in accordance with the Act.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-335, 82-4-336, MCA
History: NEW, 1990 MAR p. 1008, Eff. 6/1/90; TRANS, from DSL, 1996 MAR p. 2852.

Mont. Admin. R. 17.24.170 Mills: Cessation or Completion of Operation (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-341, MCA
History: NEW, 1990 MAR p. 1008, Eff. 6/1/90; TRANS, from DSL, 1996 MAR p. 2852; REP, 2024 MAR p. 1060, Eff. 5/11/24.

Mont. Admin. R. 17.24.171 Reprocessing of Waste Rock and Tailings

(1) The provisions of the Act and this subchapter apply to any person, who is not a small miner, who after May 31, 1990, institutes a new operation to reprocess tailings or waste rock resulting from previous mining operations. An operating permit must be obtained before constructing facilities, removing tailings or waste rock, engaging in reprocessing operations, or disturbing land in anticipation of these activities.

(2) No land disturbed by a reprocessing operation before June 1, 1990, is subject to the Act and this subchapter unless reprocessing or related activities are conducted on the area after May 31, 1990.

(3) The reclamation of land disturbed after May 31, 1990, for the removal and reprocessing of waste rock and tailings from previous mining operations shall be conducted in the following manner:

(a) where waste rock and tailings have previously been reclaimed under the Act and this subchapter, reclamation following reprocessing shall be completed in compliance with the standards set forth in an operating permit;

(b) where waste rock and tailings have not previously been subject to the reclamation requirements of the Act and this subchapter, and are to be redisturbed under the proposed permit, the following reclamation requirements apply:

(i) reclamation of any reprocessed waste rock and tailings and associated facilities consistent with the standards of this definition;

(ii) salvage and replacement of available soil or suitable materials;

(iii) use of suitable materials at the surface of any reprocessed waste rock to the extent practicable;

(iv) grading of slopes to a stable angle, treating with appropriate soils amendments and vegetating with a perennial seed mix;

(v) amending and seeding the regraded site such that utility is improved over that which existed prior to reprocessing; and

(vi) preservation of water quality at least to the level that existed prior to reprocessing.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-304, 82-4-335, MCA
History: NEW, 1990 MAR p. 1008, Eff. 6/1/90; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 1060, Eff. 5/11/24.

Mont. Admin. R. 17.24.180 Definitions

As used in ARM 17.24.181 through 17.24.189, unless the context indicates otherwise, the following definitions apply:

(1) "Commence reclamation within six months" means to commence reclamation within six months or the first seasonal opportunity after mining is not resumed after a seasonal closure;

(2) "Live stream" means a stream with flowing water;

(3) "Pay gravel" means gravels containing sufficient mineralization to be economic;

(4) "Plant" means a support facility, including a wash or processing plant, for a placer or dredge operation;

(5) "Sedimentation" means solid material settled from suspension in a liquid; mineral or organic solid material that is being transported or has been moved from its site of origin by air, water, or ice, and has come to rest on the earth's surface either above or below sea level; or inorganic or organic particles originating from weathering, chemical precipitation or biological activity.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-305, 82-4-335, MCA
History: NEW, 1991 MAR p. 445, Eff. 4/12/91; TRANS, from DSL, 1996 MAR p. 2852.

Mont. Admin. R. 17.24.181 Small Miner – Exclusion and Placer and Dredge Bonding

(1) Except as provided in 82-4-305(3) through (12), MCA, the Act does not apply to a small miner if a small miner annually submits to the department:

(a) an administrative fee in accordance with 82-4-305(1), MCA; and

(b) a complete exclusion upon current forms prepared and furnished by the department.

(2) The exclusion shall, at a minimum:

(a) include agreement to criteria in 82-4-305(1), MCA;

(b) identify whether the small miner is an individual; a partnership or business association; or a corporation, and certify in writing compliance with requirements at 82-4-305(2), MCA; and

(c) include an attestation that the individual, partnership or business association, or corporation that engages in mining activity is a small miner as defined in 82-4-303(30), MCA.

(3) A small miner who fails to submit the administrative fee and exclusion required in this rule by March 1 of each year shall pay a late fee as required in 82-4-305(12), MCA for that year.

(4) A small miner shall continue to submit the administrative fee and exclusion required in this rule if the small miner:

(a) has not completed reclamation for a placer or dredge operation;

(b) has an unreclaimed impoundment; or

(5) A small miner who operates a placer or dredge mine shall post a $10,000 bond unless the department approves a lower amount based on the criteria outlined in (6) or unless it is documented that a bond for reclamation is posted with another government agency.

(a) Bond must be filed in the form of a surety, payable to the state of Montana or to the state and the appropriate federal agency, a cash deposit, an assignment of certificate of deposit, letter of credit, or other surety acceptable to the department.

(b) The bond must be accompanied by an appropriate map showing the location of the mine, anticipated disturbances, and perennial streams in the vicinity.

(c) A small miner placer or dredge mine operator that posted a bond with the department prior to May 15, 1997, for a mine is not required to post a bond in excess of $5,000 for that mine.

(6) The department shall reduce the required bonding amount if the small miner submits an operating plan documenting that the cost of reclamation to the department would be less than $10,000. The information needed to make such a determination includes the following:

(a) a description of the proposed mining operation and foreseeable expansion;

(b) a description of the mine support facilities;

(d) an estimate of pit and pond sizes and volumes of all soil, overburden and placer gravel stockpiles;

(e) description of mining sequence and maximum acreage to be disturbed and unreclaimed at any one time at the mine being bonded;

(f) a description of any water diversions required by the operation;

(g) a topographic map locating mine pit, ponds, diversions, roads, process area, and stream drainages and materials storage sites. This map should include a reference to existing locatable monuments or landmarks on the ground;

(h) the depth of soil, overburden and pay zones to be excavated;

(i) the average and maximum rate of pay gravel removal;

(j) the length and width of roads and average size of the plant area;

(k) any proposal to use suitable settling pond sediments as soil amendment if limited soil is available;

(l) a proposed permanent seed mixture and rate of application (lbs/ac);

(m) characterization of stream channel and riparian conditions for locations where disturbance is proposed;

(n) identification of the construction method and materials to be used to reclaim soils, overburden, gravel stockpiles, and other disturbances and to reestablish functioning streams and associated floodplains where stream channels have been disturbed;

(o) an erosion control plan;

(p) whenever applicable, a description of the status of 404 permits issued pursuant to the federal Clean Water Act and plans of operation required by federal land management agencies; and

(q) status of 310 permit compliance, pursuant to 75-7-101, MCA, et seq., and status of Montana pollution discharge elimination permit compliance pursuant to 75-5-401, MCA, et seq.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-305, MCA
History: NEW, 1991 MAR p. 445, Eff. 4/12/91; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; AMD, 2022 MAR p. 1830, Eff. 9/24/22; AMD, 2026 MAR, Notice No. 2026-853, Eff. 9/26/26.

Mont. Admin. R. 17.24.182 (interpretive Rule) Operational Recommendations for Small Miners (repealed)

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): This rule is advisory only, but may be a correct interpretation of the law, 82-4-321, MCA
Implementing statute(s): 82-4-305(1), (3), (4), and (5), MCA
History: NEW, 1991 MAR p. 445, Eff. 4/12/91; TRANS, from DSL, 1996 MAR p. 2852; REP, 2026 MAR, Notice No. 2026-853, Eff. 9/26/26.

Mont. Admin. R. 17.24.183 Comparable Utility and Stability of Reclaimed Areas--Standards for Bond Release for Small Miners

(1) In order for the department to release bond, the area must be reclaimed to a postmining land form and land use that are at least comparable to that of adjacent areas. Reclamation must provide for comparable stability and utility as that of adjacent areas, insure public safety, and prevent pollution of air and water and the degradation of adjacent lands.

(2) Bond may not be released unless the following reclamation standards for placer and dredging operations are achieved:

(a) Pits must be backfilled with overburden and washed gravels unless otherwise approved by the department as part of an alternate postmining land use that provides comparable stability and utility.

(b) Excess overburden must also have been appropriately placed and graded.

(d) Slopes must have been reduced to a grade which achieves comparable utility and stability in the postmining landscape.

(e) Disturbed areas must have been revegetated with appropriate perennial nonweedy species similar to that of adjacent areas.

(f) Roads must have been reclaimed to approximate original contour consistent with the postmining land form and land use in compliance with (1) unless otherwise approved by the department and concurred with by the landowner.

(g) Stream and floodplain disturbances must be reclaimed to their approximate premining condition so that comparable beneficial uses, such as fisheries, comparable flow capacity, and fluvial functions are restored. In most instances, this will require removal of berms.

(h) Noxious weeds must have been controlled, consistent with county weed board requirements.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-305(3), (4), and (5), MCA
History: NEW, 1991 MAR p. 445, Eff. 4/12/91; TRANS, from DSL, 1996 MAR p. 2852.

Mont. Admin. R. 17.24.184 Small Miner Bond Forfeiture and Smes Revocation

(1) If a small miner who conducts a placer or dredge operation fails to commence reclamation within six months after cessation of mining or within an extended period allowed by the department for good cause shown pursuant to (4) , or fails to diligently complete reclamation, the department shall notify the small miner by certified mail at the small miner's last reported address that bond will be forfeited and the department will reclaim the site unless the small miner commences reclamation within 30 days and diligently completes reclamation.

(2) The department shall revoke the small miner exclusion statement for any small miner whose bond is forfeited.

(3) Cessation of mining is considered to have occurred:

(a) whenever a small miner notifies the department of intent to cease operations; or

(b) whenever a site has been inactive through one operating season and the operator has failed to seek an extension for good cause shown.

(4) The department may grant an extension only when a site is temporarily stabilized in a manner which assures stability through spring runoff when impact to the environment will be minimized, and when public safety is ensured.

(5) Diligent completion of reclamation will be considered to have occurred whenever:

(a) a site has been graded and seeded in compliance with the requirements of ARM 17.24.183 during the first planting season, after cessation of activity; and

(b) reclamation standards are achieved within two years of completion of reclamation.

(6) An extension of time to reclaim must be renewed annually.

(7) A forfeited bond must be used as follows:

(a) Whenever reclamation can be achieved using the amount of the forfeited bond, excess funds must be returned to the small miner.

(b) Whenever the department documents in a written finding that reclamation cannot be achieved using the amount of the forfeited bond, funds may be deposited in the environmental rehabilitation and response account established by 82-4-311 , MCA, and reclamation must be conducted as priorities and additional funding allow. Forfeited funds deposited in the account may not be used for reclamation of other sites.

(c) Whenever reclamation costs exceed the bonded amount, the department may issue a notice to the placer or dredge operator that the excess costs are due and payable within 30 days, pursuant to 82-4-305 (6) , MCA. The department may bill the operator only for the cost of activities that are reasonably necessary to return the site to comparable stability and utility and to prevent pollution of state waters as defined in Title 75, chapter 5, MCA.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-305, MCA
History: NEW, 1991 MAR p. 445, Eff. 4/12/91; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2000 MAR p. 473, Eff. 2/11/00; AMD, 2002 MAR p. 3590, Eff. 12/27/02.

Mont. Admin. R. 17.24.185 Small Miner Metal Leaching Solvent or Reagent Applications

(1) A small miner proposing to operate cyanide or other metal leaching solvents or reagents in a processing facility and mine under a small miner exemption must continue to meet the criteria for a small miner exemption under 82-4-305 , MCA, concerning the mining operation. The acreage disturbed by the cyanide or other metal leaching solvent or reagent ore processing operation and covered by the operating permit pursuant to 82-4-335 (2) , MCA, is excluded from the five acre limit.

(2) A small miner must obtain an operating permit for cyanide processing facilities and must meet requirements for these facilities imposed by statute and rule unless the facility is grandfathered pursuant to section 4 of Chapter 347, Laws of 1989.

(3) A small miner proposing to use metal leaching solvents or reagents other than cyanide in an ore processing facility must obtain a permit for those facilities pursuant to 82-4-335 (2) , MCA, for operations for which a valid small miner exclusion statement had not been obtained prior to May 1, 1999.

(4) To expedite permitting of cyanide or other metal leaching solvent or reagent facilities, the department shall make available to a small miner who has submitted or may submit an application for a permit to operate a cyanide or other metal leaching solvent or reagent ore processing facility appropriate department staff to determine how baseline, operating and reclamation plan requirements may be met in view of conditions and characteristics of the site at which the facility is proposed. The department shall process these permit applications as expeditiously as possible consistent with statutory deadlines for other permit applications and the department's obligations under the Montana Environmental Policy Act.

(5) An application for a small miner cyanide or other metal leaching solvent or reagent ore processing operating permit must contain:

(a) baseline information meeting the requirements of ARM 17.24.186;

(b) an operating plan meeting the requirements of ARM 17.24.187; and

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-305(7), 82-4-335(2), MCA
History: NEW, 1991 MAR p. 445, Eff. 4/12/91; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 640, Eff. 4/9/99; AMD, 2000 MAR p. 473, Eff. 2/11/00.

Mont. Admin. R. 17.24.186 Small Miner Metal Leaching Solvent or Reagent Baseline Information

(1) An application for a small miner cyanide or other metal leaching solvent or reagent processing facility permit must include the following baseline information on the existing conditions at the site:

(a) a map showing all wells and springs and surface water that may be impacted by the proposal within one mile of the proposed permit area;

(b) a map showing all known significant cultural resources in the proposed permit area;

(c) analysis of surface and ground water samples for background parameters determined by the department, from selected sites chosen in consultation with department staff;

(d) a map delineating soil units for the proposed permit area based on available information, including that available from the soil conservation district;

(e) a listing of species of game fish within one mile of the proposed permit area;

(f) identification of any hatcheries in the vicinity of the proposed permit area;

(g) baseline precipitation records;

(h) flow data for surface and ground water identified in (a) and (c) above from available sources and water depth for identified wells; and

(i) identification of public water supply systems that withdraw water within five miles downstream from the ore processing facility.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-305(7), 82-4-335(2), MCA
History: NEW, 1991 MAR p. 445, Eff. 4/12/91; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2000 MAR p. 473, Eff. 2/11/00.

Mont. Admin. R. 17.24.187 Small Miner Metal Leaching Solvent or Reagent Operating Plans

(1) An application for a small miner cyanide or other metal leaching solvent or reagent processing facility permit must include the following information for construction and operation of the facility:

(a) appropriate maps showing the location of the mine and support facilities, cyanide or other metal leaching solvent or reagent-processing facilities, permit boundaries, and perennial streams;

(b) the average and maximum tonnage/day and per year of ore to be processed and the amount of tailings to be generated;

(d) number, size and location of any proposed leach pads and ponds, and ore and tailings piles associated with processing;

(e) leach pad, pond, and waste facility designs;

(f) a plan for a leak detection system, including a program and schedule of monitoring for possible leakage which monitors pH, electrical conductivity (EC) , cyanide as weak acid dissociable (WAD) , other metal leaching solvents or reagents as appropriate, and other constituent levels, for those constituents appropriate to the type of processing proposed;

(g) a remedial action plan for controlling and mitigating discharges to surface waters;

(h) a description of the amount of make-up water required to operate the plant for ore processing;

(i) a plan for disposal of debris generated by clearing, grubbing and logging ensuring that the debris does not impact water quality or water flow;

(j) sediment and erosion controls for surface disturbances related to cyanide processing facilities;

(k) a road design and construction plan that provides controlled drainage, including location and number of culverts, waterbars, and slash filters;

(l) design for and map of adequate berms for placement around diversion ditches and live streams to prevent water quality degeneration and erosion of disturbed areas;

(m) a plan for stabilization of disturbed stream banks to assure that they will not be left in an erosive condition;

(n) a plan to salvage and stockpile soil from all areas to be disturbed by cyanide processing facilities, including stockpiles and wastepiles;

(o) design and construction plans for diversions and sediment impoundments to pass the ten-year, 24-hour precipitation event. A diversion must be constructed with drop structures, or energy dissipators if necessary to prevent erosion. Diversion ditch berms must be sloped to account for site-specific conditions, including soils, climate, height of structure, and existing natural slopes and must be revegetated, riprapped, or otherwise stabilized to prevent stream sedimentation;

(p) a plan for disposal of liquid and solid wastes which includes identification and application areas and the necessary discharge permits;

(q) end-of-season procedures for shutdown of the cyanide processing facility;

(r) a plan for prevention of damage to or for documentation of any significant historic, cultural, archeological and paleontologic feature within the permit areas on state and federal lands;

(s) identification and preliminary evaluation of reasonably feasible alternative facility sites;

(t) a commitment to comply with the operational requirements of this rule;

(u) a map of monitoring site locations which also identifies well depth;

(v) well logs for those wells identified in (u) above; and

(w) a commitment to avoid perennial streams wherever possible; and

(x) for facilities that are exposed to precipitation flows and that carry cyanidated or other metal leaching solvent or reagent solution, a plan that provides for adequate passage of a 50-year 24-hour storm even flow; and

(y) a plan for preventing wildlife access to facilities with cyanidated or other metal leaching solvent or reagent solutions.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-305(7), 82-4-335(2), MCA
History: NEW, 1991 MAR p. 445, Eff. 4/12/91; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2000 MAR p. 473, Eff. 2/11/00.

Mont. Admin. R. 17.24.188 Small Miner Metal Leaching Solvent or Reagent Reclamation Plans

(1) An application for a small miner cyanide or other metal leaching solvent or reagent ore processing permit must contain a reclamation plan that includes the following:

(a) the postmine land use;

(b) a reclamation timetable;

(d) a plan for monitoring water balance for the ore processing facility;

(e) a neutralization plan for tailing and solutions;

(f) a map showing regrading plans for all cyanide or other metal leaching solvent or reagent-processing and related facilities to a stable, minimally erosive slope configuration by backfilling excavated material, consistent with the postmining land use;

(g) a narrative providing for reclamation of all buildings and structures;

(h) a plan for reclaiming all associated roads, or an appropriate waiver from the surface owner;

(i) a revegetation plan including seed mixes, method of seeding and rate of seed application (lbs/ac) ;

(j) a description of any permanent diversion or stream channel reconstruction process, including use of coarse noncyanidated, nonmineralized tails or borrow material to dissipate energy or riprap streams, or use of synthetic erosion control and revegetation fabrics. Streams must be reconstructed with comparable grades, pools, and meanders to premine drainage;

(k) a plan for stream channel reconstruction providing that the channel may not be reconstructed through reclaimed tails; and addressing control of drainage from the tails and the adjacent areas to maximize the long-term stability of the tails; and

(l) monitoring plans for reclaimed sites.

(2) In addition, a processing facility which would constitute a "project", as that term is defined in 75-7-103 , MCA, on a perennial stream, must comply with the requirements of the Natural Streambed and Land Preservation Act, as amended, by obtaining permits required by the appropriate conservation district.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-305(7), 82-4-335, MCA
History: NEW, 1991 MAR p. 445, Eff. 4/12/91; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2000 MAR p. 473, Eff. 2/11/00.

Mont. Admin. R. 17.24.189 Small Miner Metal Leaching Solvent or Reagent Processing Facilities Performance Standards and Bonding

(1) The small miner shall notify the department of completion dates for each of the following phases of construction, and the department shall inspect and file a report on each of these phases:

(a) foundation preparation;

(b) compaction testing;

(d) installation of leakage detection control systems; and

(e) installation of monitoring wells.

(2) In addition to the applicable performance standards of ARM 17.24.188 and 17.24.101, and 82-4-305 , MCA, the following are required prior to bond release:

(a) neutralization of cyanide or other metal leaching solvent or reagent-containing tailing and solutions to those levels considered acceptable under applicable water quality standards;

(b) submittal of construction reports for tailings, ponds, and other appropriate facilities related to cyanide or other metal leaching solvent or reagent processing, on a monthly basis;

(c) submittal of as-built designs for those facilities identified under ARM 17.24.187(1) (e) , (k) , (l) and (o) , within one month of completion of construction activities.

(3) Bonding for cyanide or other metal leaching solvent or reagent-processing facilities must cover the actual cost of reclamation to the department and the additional estimated cost to the department which may arise from management, operation, and maintenance of the site upon temporary or permanent insolvency or abandonment, until full bond liquidation can be effected. Bonds must be reviewed and, if necessary, adjusted at least once every five years, tied to either the rate of inflation based on the consumer price index, a change in activities, or both, as appropriate.

(4) Bond must be filed in the form of a surety, payable to the state of Montana or to the state and the appropriate federal agency, a cash deposit, an assignment of certificate of deposit, letter of credit, or other surety acceptable to the department.

History

Authorizing statute(s): 82-4-321, MCA
Implementing statute(s): 82-4-305(7), 82-4-335, MCA
History: NEW, 1991 MAR p. 445, Eff. 4/12/91; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2000 MAR p. 473, Eff. 2/11/00.

Subchapter 17.24.2 Rules and Regulations Governing the Opencut Mining Act

Mont. Admin. R. 17.24.201 Applicability

(1) This subchapter applies to opencut operations as provided in the Opencut Mining Act (Title 82, chapter 4, part 4, MCA, hereinafter referred to as "the Act").

(2) An operator conducting opencut operations must comply with the provisions of a contract or permit issued under the Act and this subchapter. Except as provided in (5) and (6), a permit is required before an operator conducts opencut operations.

(3) Contracts and permits in effect before September 27, 2022, need not be amended to comply with rules and rule amendments adopted on September 27, 2022. Applications for permits, permit amendments, and permit assignments that the department determined to be complete prior to September 27, 2022, remain subject to provisions of this subchapter relating to application requirements as they read on the date the department determined the application to be complete.

(4) Except as provided in (5) and ARM 17.24.226, a permit amendment is required before taking an action that expands or changes a permitted opencut operation.

(5) Except as provided in ARM 17.24.226(5), an operator holding a permit issued under the Act may commence a limited opencut operation that meets the criteria in ARM 17.24.226 and 82-4-431, MCA, after the operator has submitted a complete limited opencut operation form to the department.

(6) As provided by 82-4-431(3), MCA, a landowner may remove up to 10,000 cubic yards of opencut materials on the landowner's real property for personal or agricultural uses without obtaining a permit unless a removal affects surface water, including intermittent or perennial streams, ground water, or water conveyance facilities. Opencut materials must not be transported outside the borders of the property from which they are mined or adjoining property owned by the same individual or entity.

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-431, MCA
History: NEW, Eff. 9/5/73; AMD, Eff. 11/4/74; AMD, 1994 MAR p. 1871, Eff. 7/8/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2004 MAR p. 317, Eff. 2/13/04; AMD, 2016 MAR p. 513, Eff. 3/19/16; AMD, 2022 MAR p. 2009, Eff. 10/8/22.

Mont. Admin. R. 17.24.202 Definitions

When used in this subchapter, unless a different meaning clearly appears from the context, the following definitions apply:

(1) "Access road" means an existing or proposed non-public road that connects an opencut operation to a public road or highway. The term includes the roadbed, cut and fill slopes, ditches, and other structures and disturbances related to the construction, use, and reclamation of the access road.

(2) "Bonded area" means a portion of the permit area that is subject to a reclamation bond or other security approved by the department under this subchapter.

(3) "Clean fill" means soil, overburden, fines, dirt, sand, gravel, rocks, and rebar-free concrete that have not been made impure by contact, commingling, or consolidation with organic compounds such as petroleum hydrocarbons, inorganic metals, or contaminants that meet the definition of hazardous waste under ARM Title 17, chapter 53, or regulated PCB (polychlorinated biphenyls). "Rebar-free concrete" means pieces of concrete that may contain rebar, but from which no rebar protrudes beyond the concrete.

(4) "Department" means the Department of Environmental Quality provided for in 2-15-3501, MCA.

(5) "Dryland permit" means a permit required under 82-4-432(1)(c), MCA and subject to 82-4-432(14), MCA.

(6) "Intermittent stream" means a stream or reach of a stream that is below the local water table for at least some part of the year and obtains its flow from both ground water discharge and surface runoff.

(7) "Materials" has the meaning given in 82-4-403, MCA.

(8) "Non-bonded area" means the portion of a permit area that is not covered by a reclamation bond or other security approved by the department under this subchapter.

(9) "Occupied dwelling unit" has the meaning given in 82-4-403, MCA.

(10) "Opencut operation" has the meaning given in 82-4-403, MCA.

(11) "Overburden" has the meaning given in 82-4-403, MCA.

(12) "Pattern of violations" means three or more violations of the Act or this subchapter that harm or have the potential to harm human health or the environment. A violation does not contribute to a pattern of violations:

(a) until such time as the opportunity for administrative review, judicial review, or appeal have passed for the violation; or

(b) after the violator demonstrates compliance with all the terms of an administrative or judicial order in an action taken by the department under authority of the Act and this subchapter because of the violation.

(13) "Perennial stream" means a stream or part of a stream that flows continuously during all of the calendar year as a result of ground water discharge or surface runoff.

(14) "Permit area" means the areas subject to a permit granted under this subchapter.

(15) "Removal" means excavation of soil, overburden, and material from its natural condition.

(16) "Slope" means the measure of an incline by means of a ratio of horizontal to vertical distance indicated by a pair of numbers separated by a colon, for example, 3:1, which means one foot of rise over three horizontal feet.

(17) "Soil" has the meaning given in 82-4-403, MCA.

(18) "Standard permit" is a permit that is required under 82-4-432(1)(b), MCA and that is subject to 82-4-432(2) through (13), MCA.

(19) "Tilling" means breaking up the substrate or soil before seeding to a depth of at least one foot to improve conditions for plant growth.

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-403, 82-4-422, 82-4-431, 82-4-432, 82-4-434, MCA
History: NEW, Eff. 9/5/73; AMD, Eff. 11/4/74; AMD, 1994 MAR p. 1871, Eff. 7/8/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2004 MAR p. 317, Eff. 2/13/04; AMD, 2016 MAR p. 513, Eff. 3/19/16; AMD, 2022 MAR p. 2009, Eff. 10/8/22.

Mont. Admin. R. 17.24.203 Bond or Other Security

(1) An application for a permit by a non-government operator must be accompanied by a bond or other security acceptable to the department under 82-4-433, MCA, and this subchapter.

(2) The department may adjust the amount of the bond or other security levels:

(a) based on information available to the department; and

(b) yearly when necessary to secure the department's estimate of costs to reclaim the affected land. Should the department determine that additional bond or other security is required, the operator shall submit a bond or security in the increased amount within 30 days of notification by the department.

(3) The operator shall immediately notify the department if the bond or other security is canceled or becomes ineffective. If the bond or other security is canceled or becomes ineffective, the operator shall reinstate or replace the canceled or ineffective bond or security with another bond or security acceptable to the department under 82-4-433, MCA, and this subchapter, within 30 days of notification by the department that the canceled or ineffective bond or other security must be replaced. In the event that the operator fails to reinstate or replace such bond or other security within the time provided in this rule, the department may suspend any permit secured by the canceled or ineffective bond or other security in accordance with 82-4-442, MCA. The operator shall immediately cease opencut operations, except reclamation activities, on lands covered by a suspended permit.

(4) An operator may apply for release of the bond in phases as follows:

(a) upon completion of phase I reclamation, which includes completion of all the requirements in ARM 17.24.219(1), except the requirements of ARM 17.24.219(1)(h)(ii)(K), (L), and (M). Any phase I reclamation bond or security release must leave sufficient bond or security to secure the estimated cost of completion of phase II reclamation;

(b) upon completion of phase II reclamation, which includes completion of all the requirements of ARM 17.24.219(1).

(5) An application for phase I or phase II bond release or release of other security must be submitted on forms provided by the department, and must include:

(a) a site map that shows:

(i) the existing permit area and release request area;

(ii) the landowner material stockpile area and remaining soil stockpile, if applicable;

(iii) roads; and

(iv) other pertinent mapping items as required by ARM 17.24.221(5);

(b) at least four photographs taken from the north, south, west, and east corners of the release request area; and

(c) for applications for release of bond amounts for phase II reclamation, at least three photographs taken at three different locations in the permit area showing typical vegetation within an area approximately five feet wide and including an object to define scale.

(6) The department may release a portion of the bond or security when the operator demonstrates completion of a reclamation phase, as defined in (4), for a discrete portion of the permit area if:

(a) the remaining reclamation can be accomplished without disturbance of completed reclamation; and

(b) the remaining amount of bond or security is sufficient to cover estimated cost to complete reclamation of the affected land.

(7) Release of a portion of the bond or security after completion of phase I reclamation does not relieve the operator from responsibility for any reclamation or any increased costs of reclamation necessary to comply with the Act, this subchapter, and the permit until phase II bond release.

(8) State and federal agencies and counties, cities, and towns are not required to post a bond or security. These government operators may request release from responsibility for reclamation in the same manner as nongovernmental operators request bond or security release in accordance with this rule, including release of a portion of the permitted area, except that government operators may not request release of responsibility for phase I reclamation.

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-432, 82-4-433, MCA
History: NEW, 1994 MAR p. 1871, Eff. 7/8/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2004 MAR p. 317, Eff. 2/13/04; AMD, 2016 MAR p. 513, Eff. 3/19/16.

Mont. Admin. R. 17.24.204 Site Information

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-432, 82-4-434, MCA
History: NEW, 1994 MAR p. 1871, Eff. 7/8/94; TRANS, from DSL, 1996 MAR p. 2852; REP, 2004 MAR p. 317, Eff. 2/13/04.

Mont. Admin. R. 17.24.205 Mining and Reclamation Plan

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-432, 82-4-434, MCA
History: NEW, 1994 MAR p. 1871, Eff. 7/8/94; TRANS, from DSL, 1996 MAR p. 2852; REP, 2004 MAR p. 317, Eff. 2/13/04.

Mont. Admin. R. 17.24.206 Landowner Consultation

(1) An application for a permit or for an amendment to add acreage, for an asphalt or concrete plant, to change postmining land use, or to extend the reclamation date must demonstrate that the applicant consulted with the landowner about the proposed opencut operations by supplying a form provided by the department.

(2) The landowner consultation form must require the landowner to:

(a) acknowledge receipt of a copy of the application for a permit or amendment submitted to the department;

(b) affirm ownership of the property that is described in the application;

(d) indicate whether access roads, haul roads, or other roads used in opencut operations are on affected land and are subject to the reclamation requirements of this subchapter;

(e) acknowledge the exclusive right of the operator, its agent, or assignee to conduct opencut operations on the property that is identified in the application; and

(f) acknowledge and consent to entry and enforcement of the Act and this subchapter by the department on all landowner property affected by opencut operations.

(3) The landowner consultation form also must require the operator and the landowner to consent to entry at reasonable times by the department and its employees, agents, or contractors to inspect the property and complete reclamation of all affected lands in accordance with the permit and the plan of operation in the event that the operator fails to do so.

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-422, 82-4-432, 82-4-434, MCA
History: NEW, 1994 MAR p. 1871, Eff. 7/8/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2004 MAR p. 317, Eff. 2/13/04; AMD, 2016 MAR p. 513, Eff. 3/19/16; AMD, 2025 MAR, 17-451, Eff. 3/29/25.

Mont. Admin. R. 17.24.207 Additional Requirements for Bentonite Mines

(1) In addition to the requirements imposed by ARM 17.24.203, 17.24.206, and 17.24.218 through 17.24.222, the department may require the following information as part of the plan of operation for a bentonite mining operation:

(a) an analysis of the soil and each major stratum in the overburden that includes determinations of:

(i) saturation percentage;

(ii) pH;

(iii) electrical conductivity;

(iv) sodium adsorption ratio;

(v) texture; and

(vi) additional characteristics the department may require.

(2) A soil analysis required under (1)(a) must describe:

(a) the identifying number and depth of each sample taken;

(b) the methods by which the samples were taken;

(d) the analytical methods used; and

(e) the names and addresses of the persons who analyzed the samples.

(3) A soil analysis required by (1)(a) must be accompanied by a map that describes:

(a) the soil types identified;

(b) the location and depth of each sample taken;

(d) the dominant vegetative species present on each soil type.

(4) The department may also require that the plan of operation contain a description of the location and method of disposal of bentonite cleanings, stray bentonite seams, and overburden that are unsuitable for plant growth. Such materials must be buried under at least three feet of material suitable for sustaining the postmining vegetation, but if suitable burial material is not available, then the material that is unsuitable for plant growth must be laid and graded to a condition that is as good or better than the pre-mine condition, minimizes adverse impacts to plant growth, and blends into the surrounding area.

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-432, 82-4-434, MCA
History: NEW, 1994 MAR p. 1871, Eff. 7/8/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2004 MAR p. 317, Eff. 2/13/04; AMD, 2016 MAR p. 513, Eff. 3/19/16.

Mont. Admin. R. 17.24.208 Additional Requirements for Soil Mines

(1) In addition to the requirements imposed by ARM 17.24.203, 17.24.206, and 17.24.218 through 17.24.222, the operator must submit, as part of the application for soil mining, soil and overburden characterization and handling sections as specified in ARM 17.24.218(1)(c) and (d).

(2) The operator must salvage the top 24 inches of soil for reclamation, or if the operator intends to mine any portion of the top 24 inches of soil, the operator must provide testing and analysis demonstrating that a minimum of 24 inches of growth media remains and that it is capable of supporting the proposed postmining land use. Required analysis of the remaining 24 inches of soil and overburden must include:

(a) pH;

(b) electrical conductivity;

(d) percent sand, silt, clay, and rock; and

(e) additional characteristics the department may require.

(3) A soil analysis required under (2) must describe:

(a) the identifying number and depth of each sample taken;

(b) the methods by which the samples were taken;

(d) the analytical methods used; and

(e) the names and addresses of the persons who analyzed the samples.

(4) A soil analysis required by (2) must be accompanied by a map that describes:

(a) the soil types identified in the top 24 inches removed from the site;

(b) the soil types identified in the 24 inches to remain for reclamation;

(d) thicknesses of soil and overburden to be stripped for each soil type; and

(e) the dominant vegetative species present on each soil type.

(5) A soil analysis required under (2) must include within the application the above sampling information and a detailed summary that demonstrates the remaining soil can meet the proposed postmining land use.

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-432, 82-4-434, MCA
History: NEW, 2022 MAR p. 2009, Eff. 10/8/22.

Mont. Admin. R. 17.24.212 Review of an Application

(1) Upon receipt of an application to conduct opencut operations and within the time limits provided in 82-4-432, MCA, the department shall evaluate the application to determine if the requirements of the Act and this subchapter are satisfied.

(2) Except as provided in 75-1-208(4)(b), MCA, within five working days of receipt of an application to conduct opencut operations, the department shall determine and notify the applicant whether the application is complete. A complete application must be submitted on forms provided by the department, or alternative forms approved by the department prior to submission, and must contain the materials and information required by 82-4-432(1) and (2), MCA, and the plan of operation required by ARM 17.24.218 through 17.24.223.

(3) If the department determines that an application is complete, the applicant shall comply with the public notice requirements required by 82-4-432, MCA, and the department shall review the application for acceptability.

(4) A permit application is acceptable if the materials and information provided to the department demonstrate that the proposed opencut operation complies with requirements of 82-4-432(1) and (2), MCA. An application for a standard permit must contain a plan of operation that meets the requirements of this subchapter.

(5) A permit must provide that the operator shall comply with the requirements of the Act and this subchapter. Before determining that an application for a permit or amendment is acceptable, the department may condition a permit as necessary to accomplish the requirements of the Act and this subchapter.

(6) A permit becomes effective when the department notifies the applicant in writing that the information and materials provided to the department meet all the requirements of the Act and this subchapter and that the permit is approved and issued by the department.

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-402, 82-4-422, 82-4-431, 82-4-432, 82-4-434, MCA
History: NEW, Eff. 9/5/73; AMD, Eff. 11/4/74; AMD, Eff. 2/5/76; AMD, 1994 MAR p. 1871, Eff. 7/8/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2004 MAR p. 317, Eff. 2/13/04; AMD, 2016 MAR p. 513, Eff. 3/19/16; AMD, 2022 MAR p. 2009, Eff. 10/8/22; AMD, 2025 MAR, 17-451, Eff. 3/29/25.

Mont. Admin. R. 17.24.213 Amendment of Permits

(1) An operator may apply for an amendment to its permit by submitting an application on a form provided by the department. Upon receipt of an amendment application and within the time limits provided in 82-4-432, MCA, the department shall evaluate the amendment application to determine if the requirements of the Act and this subchapter will be satisfied.

(2) An application to amend a permit is acceptable if it meets the requirements of ARM 17.24.212 and includes the following:

(a) a new or additional bond or other security sufficient to cover additional estimated costs of reclamation required by ARM 17.24.203 and 17.24.220;

(b) a new landowner consultation form if required under ARM 17.24.206;

(d) if the application to amend is for a standard permit, a revised plan of operation.

(3) An amendment becomes effective when the department notifies the applicant in writing that the information and materials provided to the department meet all the requirements of the Act and this subchapter and that the amendment is approved and issued by the department. Once approved, an amendment becomes part of the original permit.

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-432, 82-4-433, 82-4-434, 82-4-436, MCA
History: NEW, Eff. 9/5/73; AMD, Eff. 11/4/74; AMD, 1994 MAR p. 1871, Eff. 7/8/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2004 MAR p. 317, Eff. 2/13/04; AMD, 2016 MAR p. 513, Eff. 3/19/16; AMD, 2022 MAR p. 2009, Eff. 10/8/22.

Mont. Admin. R. 17.24.214 Annual Production Report

(1) An operator shall submit one annual production report that addresses all opencut operations during the previous calendar year to the department on or before March 1 of each year.

(2) The annual production report must be submitted electronically or on a form provided by the department. The report must list all sites where the operator engaged in permitted, unpermitted, or limited opencut operations and describe the amount of materials removed for each site.

(3) The annual production report must be accompanied by payment of the annual fee, in accordance with 82-4-437, MCA. The federal government, state of Montana, counties, cities, and towns are exempt from annual fees.

(4) The department may require an operator to provide documentation of materials removed for the purpose of verifying the amounts reported under this rule.

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-402, 82-4-434, MCA
History: NEW, Eff. 9/5/73; AMD, Eff. 11/4/74; AMD, 1994 MAR p. 1871, Eff. 7/8/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2004 MAR p. 317, Eff. 2/13/04; AMD, 2016 MAR p. 513, Eff. 3/19/16; AMD, 2022 MAR p. 2009, Eff. 10/8/22.

Mont. Admin. R. 17.24.215 Penalties

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-434, 82-4-435, 82-4-441, MCA
History: NEW, Eff. 9/5/73; AMD, Eff. 11/4/74; AMD, 1994 MAR p. 1871, Eff. 7/8/94; TRANS, from DSL, 1996 MAR p. 2852; REP, 2004 MAR p. 317, Eff. 2/13/04.

Mont. Admin. R. 17.24.216 General Application Content and Procedures

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-402, 82-4-422, 82-4-431, 82-4-432, MCA
History: NEW, 2004 MAR p. 317, Eff. 2/13/04; REP, 2016 MAR p. 513, Eff. 3/19/16.

Mont. Admin. R. 17.24.217 Plan of Operation--Premine Information

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-402, 82-4-422, 82-4-431, 82-4-432, 82-4-434, MCA
History: NEW, 2004 MAR p. 317, Eff. 2/13/04; REP, 2016 MAR p. 513, Eff. 3/19/16.

Mont. Admin. R. 17.24.218 Plan of Operation (site Characterization, Site Preparation, Soil and Overburden Handling, Mining, and Processing Plans) and Performance Standards

(1) An application for a standard permit or standard permit amendment requires a plan of operation that complies with 82-4-432, MCA and includes the following:

(a) unless otherwise approved in writing by the department, a markers section that includes a statement that the operator clearly marked on the ground all required boundaries and permitted access roads to be improved or constructed and will maintain the markings as required by this rule. Boundary and road markers must be placed so that no less than two consecutive markers are readily visible in any direction from any point on a line. The following requirements apply to marking boundaries and permitted access roads to be improved or constructed:

(i) markers must be in place prior to submitting an application for a permit or an amendment;

(ii) markers should be durable stout steel, wood, or similar quality posts and painted or flagged to be readily visible, except that a prominent, permanent feature such as a pole, tree, or large rock, flagged or painted, may serve as a marker;

(iii) road markers may be removed as the road is constructed, but each boundary marker must be maintained in place and readily visible until the adjacent permit area is reclaimed and released;

(iv) the following areas and features must be marked according to this rule:

(A) proposed permit or proposed amended permit boundaries;

(B) non-bonded areas;

(D) phase 1 release areas previously approved by the department; and

(E) prior to submission of an application for bond release, areas that are the subject of an application for phase I or phase II bond release;

(v) the requirements of (1)(a) do not apply to active hayland, cropland, or existing roads to be permitted;

(b) an access road construction and use section that is consistent with the landowner's acknowledgements contained in the landowner consultation form required by ARM 17.24.206;

(c) a soil and overburden characterization section that includes the average soil and overburden thicknesses in the permit area determined on the basis of no less than three test holes spaced representatively to describe proposed permit areas of less than nine acres and one test hole per each three-acre area for proposed permit areas of nine acres or more, with a maximum of 20 representatively spaced test holes for proposed permit areas that exceed 60 acres, or as otherwise approved by the department in the permit;

(i) for the purposes of this subsection:

(A) test holes must be of sufficient depth to measure the thicknesses of soil and overburden;

(B) representative test holes must be located in both bonded and non-bonded areas;

(D) clearly labeled photos showing the top three feet of the soil profile with a visible scale must be taken and provided to the department for each test hole;

(d) a soil and overburden handling section that includes a statement that the operator shall:

(i) upon commencing opencut operations, strip and stockpile overlying soil to the depth specified in the permit before excavating overburden and materials;

(ii) before mining, remove and stockpile overburden separately from soil and designate soil and overburden stockpiles with signage that is legible, readily visible, and placed so that equipment operators and inspectors may readily identify the type of stockpile for the life of the stockpile;

(iii) never stockpile overburden or soil on slopes greater than 3:1 or in drainages or in a manner that will cause pollution to state waters;

(iv) remove all soil and overburden from a minimum ten-foot-wide strip along the crest of a highwall;

(v) haul soil and overburden directly to areas prepared for backfill and grading or resoiling or to separate stockpiles;

(vi) never stockpile overburden or conduct any opencut operations on areas where soil has not been stripped to the depth required by the permit; and

(vii) use best management practices to prevent erosion, commingling, contamination, compaction, and unnecessary disturbance of soil and overburden stockpiles including, but not limited to, at the first seasonal opportunity, shape and seed, with approved perennial species, the soil and overburden stockpiles that are capable of sustaining plant growth, and that remain in place for more than two years and maintain the accessibility of all overburden and soil stockpiles in the permit area prior to reclamation in accordance with the plan of operation;

(viii) where required by 82-4-434, MCA, berms constructed of soil and/or overburden, must be a minimum of 6 feet high, protected from erosion, commingling, contamination, compaction, and unnecessary disturbance. At the first seasonal opportunity, the operator must shape and seed, with weed-free seed mix, any berm capable of sustaining plant growth;

(e) a construction, mining, processing, and hauling section that includes:

(i) a description of the materials to be sold or used by the operation;

(ii) a construction project plan that describes the locations and construction schedules for all areas to be disturbed and location of all facilities including offices, parking, vehicle staging areas, roads designated by the landowner as affected land, and processing plants;

(iii) a description of the methods and equipment to be used to mine, haul, and process material;

(iv) a description of the anticipated general mining progression, including the location of the first stripping and excavation, the direction of mining progress, and timing for the mobilization and setup of processing facilities such as a screen, crusher, asphalt plant, wash plant, batch plant, pug mill, and other facilities; and

(v) other information necessary to fully describe the nature and progress of opencut operations;

(f) a water resources section that includes:

(i) identification of the sources of the information reported, such as landowners, field observations, and water well logs;

(ii) the estimated seasonal high and seasonal low water table levels in the permit area and the information sources used, such as landowners, field observations, nearby surface water, and water well logs.

(g) a statement by the operator that:

(i) opencut operations may not occur within prohibited areas described in the permit;

(ii) no opencut operations will occur within an easement unless written permission to do so is obtained from the holder of the dominant estate; and

(iii) before commencing opencut operations, the operator, on a form provided by the department, notified the weed board in the county or counties in which the proposed operation is located. A copy of the form that the applicant submitted to the weed board must be attached to the application;

(h) an additional commitments section that includes a statement that the operator will:

(i) inform key personnel and subcontractors involved in opencut operations of the requirements of the plan of operation;

(ii) promptly notify the state historic preservation office archaeological or historical values are found.

(2) An application for a dryland permit or to amend a dryland permit does not require submission of a plan of operation.

(3) Approval of an application does not relieve the operator from the requirements of any applicable federal, state, county, or local statute, regulation, rule, or ordinance, including requirements to obtain any other permit, license, approval, or permission necessary for the actions described in or required by the application and the permit.

(4) Upon issuance of the permit, the operator shall comply with all commitments required by this rule and with the requirements for the conduct of operations contained in this rule.

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-402, 82-4-422, 82-4-431, 82-4-432, 82-4-434, MCA
History: NEW, 2004 MAR p. 317, Eff. 2/13/04; AMD, 2016 MAR p. 513, Eff. 3/19/16; AMD, 2022 MAR p. 2009, Eff. 10/8/22; AMD, 2025 MAR, 17-451, Eff. 3/29/25.

Mont. Admin. R. 17.24.219 Plan of Operation, Reclamation Plan, and Performance Standards

(1) An application for a dryland permit or to amend a dryland permit does not require a plan of operation. An application for a standard permit or to amend a standard permit must include a plan of operation that complies with 82-4-434, MCA and the following:

(a) a postmining land uses section that includes a description of the type, location, and size of each postmining land use area in the permit area. Postmining land use types include, but are not limited to, internal roads, material stockpile areas, pond, wetland, riparian area, grassland, rangeland, shrubland, woodland, pasture, hayland, cropland, wildlife habitat, recreation site, and residential, commercial, and industrial building sites;

(b) a surface cleanup section that includes a statement that the operator will:

(i) at the conclusion of opencut operations, except as provided in (1)(b)(ii), use or haul away from the permit area all excavated or processed material for backfill as provided in (1)(c);

(ii) upon the request by the landowner, on the landowner consultation form, segregate specific types, grades, and quantities of material into stockpiles maintained in one location, along with a separate stockpile of the quantity of soil required to reclaim the area where the material is stockpiled, shaped, and seeded and placed within 100 feet of a material stockpile;

(iii) a stockpile of materials for the landowner as provided by (1)(b)(ii) must be free of excess fines or other waste materials that would render the material unsuitable for commercial use;

(iv) provide a description of the types, grades, and quantities of material proposed to remain stockpiled as provided by (1)(b)(ii) and (iii), and justify the quantities stockpiled for landowner use based on current and expected demand for the materials;

(v) at the conclusion of opencut operations, haul away and properly dispose of all refuse, oiled surfacing, contaminated materials, concrete that is not clean-fill, and unused clean fill from affected lands;

(vi) haul away all asphaltic pavement from the permit area, except on-site-generated asphaltic pavement may be used as mined-area backfill in accordance with (1)(b)(vii) and with the consent of the landowner;

(vii) place on-site-generated asphaltic pavement, coarse clean fill, and other clean fill unsuitable for plant growth under at least three feet of material suitable for sustaining the postmining vegetation;

(viii) place on-site-generated asphaltic pavement in an unsaturated condition at least 25 feet above the seasonal high water table; and

(ix) for the purposes of (1)(b)(ii) and (iii), the operator remains responsible for reclamation of the areas occupied and affected by material and soil stockpiles until the department has approved phase II reclamation for the areas where the stockpiles are located or assignment of the permit to the landowner or another party;

(i) use only overburden and materials from the permit area, or otherwise only clean fill from any source, to reclaim affected land to a stable condition with 5:1 or flatter slopes for hayland and cropland, 4:1 or flatter slopes for sandy surfaces, and 3:1 or flatter slopes for other sites and surfaces appropriate to the designated postmine land use;

(ii) reclaim premine drainage systems to blend into the surrounding topography and drainages;

(iii) drain off-site or concentrate water in low areas identified in the permit;

(iv) backfill and grade to at least three feet above the seasonal high water table level for dryland reclamation and at approved depths below the seasonal low water table level for pond reclamation;

(v) record the average thickness of overburden replaced and never cover soil with overburden;

(vi) if available, up to 24 inches of soil and overburden must be stripped, salvaged, and replaced for reclamation. If overburden is a mine material or will be used as binder, an appropriate quantity must first be stripped and salvaged to satisfy the soil plus overburden replacement thickness requirement (24 inches cumulative);

(vii) for the purposes of (1)(c)(i) and (ii), the department may consider steeper slopes for certain postmining land uses based on a design or a slope stability analysis prepared by a professional engineer licensed in accordance with Title 37, chapter 67, part 3, MCA, or a geologist with five years of post-graduate academic or professional work experience in the field of soil or rock mechanics;

(viii) if required by the department, conduct postmining monitoring of ground water levels to ensure that appropriate reclaimed surface elevations are established;

(d) a description of the locations and designs for any special reclamation features such as ponds, waterways with defined channels, and building sites. Reclaimed waterways with defined channels must be located in their approximate premine locations and have channel and floodplain dimensions and gradients that approximate premine conditions, unless otherwise approved by the department. Reclaimed waterways with defined channels must connect to undisturbed waterways in a manner that avoids disruption or accelerated erosion of the reclaimed waterway or adjoining areas;

(e) an access road reclamation section describing:

(i) reclamation of access, haulage, or other roads included on affected land with the landowner's consent; and

(ii) for private roads to remain open at the request of the landowner, reclamation of the road to a width appropriate to the landowner's anticipated use or as may otherwise be required by applicable land use regulations;

(f) a section that explains how the operator will reclaim water diversion, retention, discharge, and outflow structures constructed for opencut operations;

(g) an overburden and soil conditioning section that includes a statement that the operator will:

(i) till replaced overburden, graded surfaces, and other compacted surfaces:

(A) to a depth of at least 12 inches, or to another depth required by the department prior to replacing soil, except that:

(I) tillage is not required for relatively non-compactible materials such as sands, materials with a rock fragment content of 35 percent or more by volume, or bedrock; and

(II) tilling deeper than the soil thickness is not required when cobbly material or bedrock underlies the soil;

(B) on the contour and when the overburden and soil are dry enough to shatter; and

(ii) record the thicknesses of soil replaced on the permit areas as required by the permit;

(iii) till through replaced soil and into the surface of the underlying backfill prior to seeding or planting unless otherwise required by the department; and

(iv) the soil surface must be free of rocks that are not characteristic of the soil prior to disturbance;

(h) a revegetation section that:

(i) describes the types and rates of fertilizer and other soil amendment applications, methods of seedbed preparation, and methods, species, and rates of seeding or planting; and

(ii) includes a statement that the operator will:

(A) establish vegetation to protect the soils from erosion and that is capable of sustaining the designated postmining land uses;

(B) seed all affected land for vegetation species that are consistent with the premining species composition, cover, production, density, and diversity, or otherwise as appropriate for the designated postmining land use;

(C) ensure that areas seeded or planted to perennial species are adequately protected and managed from the time of seeding or planting through two consecutive growing seasons or until the vegetation is established, whichever is longer;

(D) use seed that is as weed free as is reasonably possible;

(E) ensure that seedbed preparation and drill seeding is done on the contour;

(F) apply drill seeding at the rate of no less than ten pounds per acre or at another rate approved by the department;

(G) apply broadcast seeding at a rate that is at least 100 percent higher than drill seeding rates and drag or press the surface to cover the seed unless otherwise required by the department;

(H) provide seeding rates as pounds of pure live seed per acre;

(I) seed during the late fall or early spring seeding seasons;

(J) apply cover crop seeding and mulch as needed to help stabilize an area or establish vegetation;

(K) achieve revegetation of a non-cropland area by establishing vegetation capable of sustaining the designated postmining land use;

(L) achieve revegetation of a cropland area when a crop has been harvested from the entire area and the yield is comparable to those of crops grown on similar sites under similar growing conditions; and

(M) agree that reclamation for cropland areas will be considered complete upon inspection by the department or notification by the landowner to the department in writing that the crop yield on the reclaimed land is acceptable;

(i) a reclamation schedule section that includes:

(i) a statement that the operator will complete phase I and phase II reclamation on an area no longer needed for opencut operations, or on areas that the operator no longer has the right to use for opencut operations, within one year after the cessation of such operations or termination of such right. If it is not practical for the operator to reclaim a certain area until other areas are also available for reclamation, the operator may propose an alternate reclamation schedule for that area; and

(ii) a reasonable estimate of the month and year by which phase II reclamation will be completed considering the estimated demand for material, expected rate of production, accessible material reserves, and the time required to complete revegetation as required by (1)(g) and (h). Final reclamation must be completed by the date given.

(2) Upon issuance of the permit, the operator shall comply with all commitments required by this rule and with the requirements for the conduct of operations contained in this rule.

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-402, 82-4-422, 82-4-431, 82-4-432, 82-4-434, MCA
History: NEW, 2004 MAR p. 317, Eff. 2/13/04; AMD, 2016 MAR p. 513, Eff. 3/19/16; AMD, 2022 MAR p. 2009, Eff. 10/8/22; AMD, 2025 MAR, 17-451, Eff. 3/29/25.

Mont. Admin. R. 17.24.220 Reclamation Bond Calculation

(1) For all permits and amendments, a proposed reclamation bond calculation must be submitted on a form provided by the department or in another format approved by the department in writing. The bond amount must be based on a reasonable estimate of the cost for the department to procure the services of a third-party contractor to reclaim, in accordance with this subchapter, the anticipated maximum disturbance during the life of the bonded opencut operation, including equipment mobilization, contractor profit, and overhead costs. The department shall review the proposed bond calculation and make a final determination.

(2) The estimate of the reclamation costs must address the following considerations:

(a) the requirements for reclamation provided in ARM 17.24.219, 17.24.228, and 82-4-434, MCA;

(b) replacement of all soil and overburden as described in ARM 17.24.219 and 17.24.228;

(d) postmining site conditions and any other site-specific considerations.

(3) An application for a permit under this subchapter is deficient if the proposed amount of the reclamation bond is insufficient to cover the estimated costs of reclamation required by this rule.

(4) Federal agencies, the state of Montana, counties, cities, and towns are not required to post a bond or other security.

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-405, 82-4-431, 82-4-432, 82-4-433, 82-4-434, MCA
History: NEW, 2004 MAR p. 317, Eff. 2/13/04; AMD, 2016 MAR p. 513, Eff. 3/19/16; AMD, 2022 MAR p. 2009, Eff. 10/8/22.

Mont. Admin. R. 17.24.221 Plan of Operation--Maps

(1) For a standard permit or standard permit amendment, a plan of operation must comply with 82-4-434(2), MCA and include: a site map, area map, reclamation map, location map, and other maps necessary to describe the proposed opencut operation. Except as provided in (6), maps submitted to the department in accordance with this subchapter must be legible, on an air-photo base, and in a scale sufficient to clearly describe the subject matter. An application supported by a map submitted in an electronic format that is incompatible with the department's systems, that cannot be reviewed, or that is otherwise illegible is not acceptable. A map submitted in other than electronic format must fill an 8 1/2- by 11- or 11- by 17-inch sheet leaving margins of approximately 1/2 inch.

(2) The following items must be shown and labeled on each map submitted to the department: operator name; site name; legal description of the proposed permit area; bar scale; date of drafting; and north arrow.

(3) Site maps must show and identify the following existing and proposed features as applicable:

(a) permitted access roads, including the location, width, waterway crossings, and surfacing;

(b) permit boundaries;

(d) non-bonded area boundary;

(e) excess overburden and fines disposal sites;

(f) staging areas;

(g) heavy equipment parking areas;

(h) fuel storage areas;

(i) sight and sound barriers and berms;

(j) soil stockpile areas;

(k) overburden and excess overburden stockpile areas;

(l) material stockpile areas;

(m) processing facilities, including approximate locations of:

(i) crusher;

(ii) asphalt plant;

(iii) wash plants; and

(iv) concrete plant;

(n) detention ponds;

(o) concrete and asphalt recycling stockpile area;

(p) soil and overburden test hole and observation point locations;

(q) water system and structures, including:

(i) supply wells;

(ii) water recycling and settling ponds;

(iii) surface water extraction points;

(iv) discharge points for water used in opencut operations; and

(v) all surface waters including, but not limited to, ponds, lakes, wetlands, and defined and/or eroded channels of waterways including, but not limited to, rivers, creeks, intermittent or perennial streams, drainages, ditches, water conveyance facilities, and other waterways;

(r) above and below ground utilities and easements within the permit boundary;

(s) roads crossing areas where opencut activities are prohibited by ARM 17.24.218(1)(g);

(t) erosion controls;

(u) historic disturbances within or adjacent to permit area boundary;

(v) the data point and map identification number for each pair of coordinates the operator provided on the boundary coordinate table that is required by (8); and

(w) any other pertinent features that are necessary to ensure compliance with the Act and rules.

(4) Area maps must show and identify the following features within 1,000 feet outside of the permit boundary:

(a) roads leading to the site;

(b) access roads from the public road turnoff to the permit area (if roads go beyond the area map, show the full extent on the location map) including the location, width, waterway crossings, and surfacing;

(d) natural and man-made drainage features including, but not limited to, intermittent or perennial streams, wetlands, ponds, springs, ditches, and impoundments in and within 500 feet of access roads and show the defined and/or eroded channel of any such feature and any setback areas, along with a description of the use of any man-made feature;

(e) other opencut operations;

(f) significant geographical features;

(g) residences located within 300 feet of the permit boundary; and

(h) any other pertinent features that are necessary to ensure compliance with the Act and this subchapter.

(5) Reclamation maps must show and identify all the following existing and proposed features in accordance with the plan of operation:

(a) all postmining land uses;

(b) mined area backfill sites;

(d) all roads or portions of roads proposed to remain open, at the request of the landowner, at the conclusion of opencut operations, including road locations, intended use, final width, and surfacing;

(e) long and short axis cross-sections of any pond or depression in which water is expected to collect;

(f) arrows depicting the anticipated direction of water flow across the reclaimed site; and

(g) any other pertinent features that are necessary to ensure compliance with the Act and this subchapter.

(6) The location map may be on an aerial or topo base and must show the site's location in relation to the nearest town or city, and be sufficient to allow the public to locate the proposed site.

(7) For all permits and amendments, complete and accurate maps must be submitted. The department may require that part or all of the area in and within 500 feet of permitted access roads and 1,000 feet of the permit area be surveyed to provide sufficient map detail and accuracy.

(8) Marker, road, and boundary locations that must be marked in the field under ARM 17.24.218(1)(a) and markers, roads, and boundaries located in hayland or cropland must be provided on a boundary coordinate table form or through another method approved by the department.

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-402, 82-4-422, 82-4-431, 82-4-434, MCA
History: NEW, 2004 MAR p. 317, Eff. 2/13/04; AMD, 2016 MAR p. 513, Eff. 3/19/16; AMD, 2022 MAR p. 2009, Eff. 10/8/22; AMD, 2025 MAR, 17-451, Eff. 3/29/25.

Mont. Admin. R. 17.24.222 Additional Information and Certification

(1) The department may require that an operator provide additional information that includes, but is not limited to:

(a) vegetation;

(b) soil;

(d) ground water; and

(e) water conveyance facilities.

(2) The information provided pursuant to (1)(a) through (e) must be gathered, analyzed, and presented according to current professionally accepted practices. Field data must be accompanied by the names and addresses of the parties that collected and analyzed the data, and by a description of the methodologies used to gather and analyze the data.

(3) All applications for permits and amendments must include a statement signed and dated by the operator certifying that:

(a) the operator has read and understands the application, the information contained in the application, and all documents submitted in support of the application;

(b) under penalty of 45-7-203, MCA, all the statements, descriptions, information, and documents provided to the department for the application are true and accurate to the best of the operator's knowledge and belief based upon the exercise of due diligence; and

(c) the operator will follow and adhere to the requirements described in the application and the permit and any amendments to the permit.

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-402, 82-4-422, 82-4-431, 82-4-432, 82-4-434, 82-4-436, MCA
History: NEW, 2004 MAR p. 317, Eff. 2/13/04; AMD, 2016 MAR p. 513, Eff. 3/19/16; AMD, 2022 MAR p. 2009, Eff. 10/8/22; AMD, 2025 MAR, 17-451, Eff. 3/29/25.

Mont. Admin. R. 17.24.223 Zoning Compliance for Sand or Gravel Mining

(1) Permit applications for sand or gravel opencut operations must include a statement from the appropriate local governing body on a form provided by the department, certifying that the proposed mine site and plan of operations comply with local zoning regulations. This requirement also applies to amendment applications that:

(a) add acreage to the permitted area;

(b) change the postmining land use; or

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-431, 82-4-432, MCA
History: NEW, 2004 MAR p. 317, Eff. 2/13/04; AMD, 2016 MAR p. 513, Eff. 3/19/16; AMD, 2026 MAR, Notice No. 2026-96, Eff. 9/5/26.

Mont. Admin. R. 17.24.224 Assignment of Permits

(1) A person may assume a permit from an operator by submitting an assignment application to the department. Upon receipt of an assignment application, the department shall inspect the permitted site, if necessary, and evaluate the application and existing permit to determine if the requirements of the Act and this subchapter are satisfied.

(2) The department shall approve an application for assignment of a permit that meets the following requirements:

(a) the application includes a completed copy of the application for assignment on a form provided by the department, and, if required by the department, an application to amend the permit;

(b) the application includes an acknowledgment that:

(i) the assignee has reviewed and understands the terms of the permit that is effective at the time of the assignment;

(ii) the assignee agrees to assume all the obligations set forth in the permit, including the plan of operation, the Act, and this subchapter; and

(iii) the assignee assumes responsibility to reclaim the site in accordance with the terms of the permit, the Act, and this subchapter and for any violations or issues of noncompliance in existence at the time of the assignment;

(c) the assignment application, any necessary permit amendment application, and any necessary revisions to the permit satisfy the requirements of the Act and this subchapter; and

(d) the application includes a reclamation bond or other security that meets the requirements of 82-4-433, MCA, this subchapter, and the plan of operation.

(3) An assignment becomes effective when the department notifies the applicant in writing that the information and materials provided to the department meet all the requirements of the Act and this subchapter and that the assignment

is approved and issued by the department. Upon notification of the department's approval of the assignment, the assignee becomes responsible for all the obligations described in (2)(b).

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-402, 82-4-432, 82-4-433, 82-4-434, MCA
History: NEW, 2004 MAR p. 317, Eff. 2/13/04; AMD, 2016 MAR p. 513, Eff. 3/19/16.

Mont. Admin. R. 17.24.225 Permit Compliance

(1) An operator shall comply with the provisions of its permit, this subchapter, and the Act.

(2) A permittee may allow another person to mine and process mine materials at the permitted operator's site only if the permittee retains control over that person's activities and ensures that no violations of the Act, this subchapter, or the permit occur. If a violation of the provisions of the Act, this subchapter, or the permit occurs, the permittee is responsible for the violation and the department may require abatement pursuant to (1) or initiate an enforcement action under the Act.

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-402, 82-4-422, 82-4-431, 82-4-432, MCA
History: NEW, 2004 MAR p. 317, Eff. 2/13/04; AMD, 2016 MAR p. 513, Eff. 3/19/16; AMD, 2025 MAR, 17-451, Eff. 3/29/25.

Mont. Admin. R. 17.24.226 Administrative Requirements for Limited Opencut Operations

(1) An operator holding an opencut permit may conduct a limited opencut operation (LOO) that meets the criteria in 82-4-431(2), MCA, without first obtaining an additional permit or an amendment to an existing permit when, prior to commencing the limited opencut operation, the operator completes and submits to the department appropriate site and opencut operation information on a limited opencut operation form provided by the department.

(2) The operator must submit a completed limited opencut operation form and the following information to the department prior to commencing the opencut operation:

(a) the operator's complete name and address;

(b) the location, in a format acceptable to the department, of the limited opencut operation site;

(d) the location, in a format acceptable to the department, of the operator's nearest limited opencut operation to the proposed limited opencut operation site;

(e) plans to expand or continue the limited opencut operation in accordance with 82-4-431, MCA;

(f) the landowner's name and address;

(g) driving directions to access the site from the nearest public road;

(h) a description of the pre-mine condition of the limited opencut operation site and the pre-mine condition of any private access roads to the limited opencut operation site;

(i) an aerial or topographic map of the limited opencut operation site; and

(j) certification by the operator that the information provided to the department in the limited opencut operation form is complete and accurate.

(3) The department's receipt of a limited opencut operation form initiates the timeframes set forth in 82-4-431, MCA, for either:

(a) salvaging soil, removing materials, and reclaiming the limited opencut operation site; or

(b) applying for a permit to continue or expand the opencut operation.

(4) A person conducting a limited opencut operation must comply with the requirements of 82-4-431(2), MCA. The amount of materials and overburden removed from the site cannot exceed 10,000 cubic yards and the total area from which the materials and overburden are removed cannot exceed five acres. This limitation does not include the volume of soil and overburden that is stripped and stockpiled on the limited opencut operation site for site reclamation.

(5) An operator may not commence a limited opencut operation within 300 feet of a permitted operation until the operator submits a written statement to the department that:

(a) no part of the proposed limited opencut operation is on land affected by the permitted operation;

(b) both operations can be reclaimed according to their respective requirements under the Act and this subchapter; and

(c) the principal amount of the new reclamation bond or other security, if required, is sufficient to cover the estimated costs of reclamation of the limited opencut operations under the Act and this subchapter.

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-431, MCA
History: NEW, 2014 MAR p. 679, Eff. 4/11/14; AMD, 2016 MAR p. 513, Eff. 3/19/16; AMD, 2022 MAR p. 2009, Eff. 10/8/22.

Mont. Admin. R. 17.24.227 Surface Water Setback Requirements

(1) Dryland opencut mining operations must:

(a) not affect surface water, including but not limited to, perennial or intermittent streams;

(b) have a permit boundary that is a minimum of 50 feet from the edge of the high water mark of surface water, or as otherwise approved by the department, including but not limited to, perennial or intermittent streams.

(2) Standard opencut mining operations with a permit boundary that is located less than 50 feet from the edge of the high water mark of surface water, including but not limited to perennial or intermittent streams, must follow the Stream/Waterway Worksheet and include specific, detailed design criteria in the application demonstrating:

(a) a productive postmining land use can be achieved; and

(b) defined channels can be reconnected to undisturbed drainages/waterways in a stable manner to ensure downstream flow is maintained.

(3) Limited opencut operations (LOOs) may not:

(a) affect surface water, including but not limited to, perennial or intermittent streams;

(b) conduct operations within 50 feet of the edge of the high water mark of surface water, including but not limited to, perennial or intermittent streams.

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-431, 82-4-432, MCA
History: NEW, 2022 MAR p. 2009, Eff. 10/8/22.

Mont. Admin. R. 17.24.228 Requirements for Dryland Permit Applications and Reclamation

(1) Dryland permits must meet all the application requirements of 82-4-432(14), MCA.

(2) Before submitting a dryland permit application, an operator must provide public notice. The applicant must:

(a) post notice of the following in at least two prominent locations at the proposed opencut site, including near a public road if possible:

(i) applicant's name, address, and telephone number;

(ii) proposed permitted acreage;

(iii) type of material to be mined; and

(iv) proposed reclamation date;

(b) mail the notice to surface landowners of land located within one-half mile of the boundary of the proposed opencut permit area using the most current known owners of record as shown in the records of the county clerk and recorder for the county where the proposed opencut operation is located. The mailed notice must include the following:

(i) applicant's name, address, and telephone number;

(ii) location map meeting the requirements of ARM 17.24.221;

(iii) proposed permitted acreage;

(iv) type of material to be mined; and

(v) proposed reclamation date;

(c) publish a notice at least twice, a minimum of a week apart, in a newspaper of general circulation in the locality of the proposed opencut operation. The published notice must include the following:

(i) applicant's name, address, and telephone number;

(ii) location map meeting the requirements of ARM 17.24.221;

(iii) proposed permitted acreage;

(iv) type of material to be mined; and

(v) proposed reclamation date.

(3) If available, up to 24 inches of soil and overburden must be stripped, salvaged, and replaced for reclamation. If overburden is a mine material or will be used as binder, an appropriate quantity must first be stripped and salvaged to satisfy the soil plus overburden replacement thickness requirement (24 inches cumulative).

(4) The operator must complete phase I reclamation and begin phase II reclamation on any area that the operator no longer needs for opencut operations or no longer has the right to use, within one year after the cessation of such operations or termination of such right. The operator must request release using forms provided by the department. If it is not practical for the operator to reclaim a certain area until other areas are also available for reclamation, the operator may propose an alternate reclamation schedule.

(5) Boundary markers and road markers must be placed so that no fewer than two consecutive markers are readily visible in any direction from any point on a line. The following requirements apply to marking boundaries and permitted access roads to be improved or constructed:

(a) markers must be in place before submitting an application for a permit or a permit amendment;

(b) markers should be durable, stout posts made of steel, wood, or similar high-quality materials. A prominent, permanent feature such as a pole, tree, or large rock may also serve as a marker. Each marker, whether man-made or natural, must be painted or flagged;

(c) road markers may be removed as the road is constructed, but each boundary marker must be maintained in place and readily visible until the adjacent permit area is reclaimed and released;

(d) the following areas and features must be marked according to this rule:

(i) proposed permit or proposed amended permit boundaries;

(ii) non-bonded areas;

(iii) proposed permitted access roads to be improved or constructed;

(iv) phase I release areas previously approved by the department; and

(v) before submission of an application for bond release, areas that are the subject of an application for phase I or phase II bond release; and

(vi) the requirements of (5) do not apply to active hayland, cropland, or existing roads to be permitted.

(6) Where required by 82-4-434, MCA, berms constructed of soil and/or overburden must be a minimum of 6 feet high, protected from erosion, commingling, contamination, compaction, and unnecessary disturbance. At the first seasonal opportunity, the operator must shape and seed, with weed-free seed mix, any berm capable of sustaining plant growth.

(7) The only map required for a dryland permit is a location map as described in ARM 17.24.221(2) and (6).

History

Authorizing statute(s): 82-4-422, MCA
Implementing statute(s): 82-4-432, MCA
History: NEW, 2022 MAR p. 2009, Eff. 10/8/22.

Subchapter 17.24.3 Strip and Underground Mine Reclamation Act: Definitions and Strip Mine Permit Application Requirements

Mont. Admin. R. 17.24.301 Definitions

The following definitions apply to all terms used in the Strip and Underground Mine Reclamation Act and subchapters 3 through 13 of this chapter:

(1) "Abandoned" is defined in 82-4-203, MCA.

(2) "Acid drainage" means water with a pH of less than 6.0 and in which total acidity exceeds total alkalinity, and that is discharged from an active, inactive or abandoned strip or underground mining operation or from an area affected by such operations.

(3) "Acid-forming materials" means earth materials that contain sulfide minerals or other materials which, if exposed to air, water, or microbiological or weathering processes, form acids.

(4) "Act" means the Montana Strip and Underground Mine Reclamation Act (Title 82, chapter 4, part 2, MCA).

(5) "Active mining operation" means an operation at which mining and reclamation activities are regularly occurring on an ongoing basis. See also "inactive mining operation."

(6) "Adjacent area" is defined in 82-4-203, MCA, as "the area outside the permit area where a resource or resources, determined in the context in which the term is used, are or could reasonably be expected to be adversely affected by proposed mining operations, including probable impacts from underground workings."

(7) "Administratively complete application" means an application that contains information addressing application requirements in 82-4-222 and 82-4-231, MCA, and subchapters 3 through 13, and all information necessary to initiate processing and public review.

(8) "Agricultural activities or farming" means, with respect to alluvial valley floors, use of any tract of land for the production of plant or domestic animal life where the use is enhanced or facilitated by subirrigation or flood irrigation associated with alluvial valley floors. These uses include, but are not limited to, the pasturing, grazing, or watering of livestock, and the cropping, cultivation, or harvesting of plants whose production is aided by the availability of water from subirrigation or flood irrigation. Those uses do not include agricultural practices which do not benefit from the availability of water from subirrigation or flood irrigation.

(9) "Agricultural use" means the use of any tract of land for the production of plant or domestic animal life. The uses include, but are not limited to, the pasturing, grazing, and watering of livestock, and the cropping, cultivation, and harvesting of plants.

(10) "Alluvial valley floor" is defined in 82-4-203, MCA.

(11) "Alternative postmining land use" is discussed in 82-4-232(7) and (8), MCA.

(12) "Amendment" means any change in the mine or reclamation plan that results in expansion or decrease of the operation's permitted boundaries, excluding incidental boundary changes. See also "major revision," "minor revision," and "incidental boundary change."

(13) "Applicant/violator system" or "AVS" means an automated information system of applicant, permittee, operator, violation, and related data that the Office of Surface Mining maintains to assist in implementing the Surface Mining Control and Reclamation Act of 1977.

(14) "Approximate original contour" is defined in 82-4-203, MCA.

(15) "Aquifer" is defined in 82-4-203, MCA.

(16) "Area of land affected" is defined in 82-4-203, MCA.

(17) "Arid and semiarid area" means, in the context of alluvial valley floors, an area experiencing water deficits, where water use by native vegetation equals or exceeds that supplied by precipitation.

(18) "Auger mining" means a method of mining coal at a cliff or highwall by drilling holes into an exposed coal seam from the highwall and transporting the coal along an auger bit to the surface.

(19) "Bench" is defined in 82-4-203, MCA.

(20) "Best technology currently available" or "BTCA" means equipment, devices, systems, methods, or techniques that will:

(a) prevent, to the extent possible, additional contributions of suspended solids to stream flow or runoff outside the permit area, but in no event will result in contributions of suspended solids in excess of requirements set by applicable state or federal laws; and

(b) minimize, to the extent possible, disturbances and adverse impacts on fish, wildlife and related environmental values, and achieve enhancement of those resources where practicable. The term includes equipment, devices, systems, methods, or techniques that are currently available anywhere as determined by the department, even if they are not in routine use. The term includes, but is not limited to, construction practices, siting requirements, vegetative selection and planting requirements, animal stocking requirements, scheduling of activities and design of sedimentation structures.

(c) within the constraints of the Act and subchapters 3 through 13, the department has the discretion to determine the BTCA on a case-by-case basis.

(21) "Cemetery" means any area of land where human bodies are interred.

(22) "Coal conservation plan" is defined in 82-4-203, MCA.

(23) "Coal preparation" and "coal preparation plant" are defined in 82-4-203, MCA.

(24) "Coal processing waste" means earth materials which are separated and wasted from the product coal during cleaning, concentrating, or other processing or preparation of coal.

(25) "Collateral bond" means an indemnity agreement in a sum certain that is payable to the department, executed by the permittee, and supported by deposit with the department of cash, negotiable bonds of the United States, state or municipalities, negotiable certificates of deposit or an irrevocable letter of credit of any bank organized or authorized to transact business in the U.S.

(26) "Combustible material" means organic material that is capable of burning, either by fire or through oxidation, accompanied by the evolution of heat and a significant temperature rise.

(27) "Community or institutional building" means any structure, other than a public building or a dwelling, which is used primarily for meetings, gatherings or functions of local civic organizations or other community groups; functions as an educational, cultural, historic, religious, scientific, correctional, mental-health or physical health care facility; or is used for public services including, but not limited to, water supply, power generation or sewage treatment.

(28) "Contour strip mining" is defined in 82-4-203, MCA.

(29) "Cover" is the area of ground covered by the aerial (above ground) plant parts. Cover is usually expressed as absolute cover, relative cover, foliar cover, canopy cover, and/or basal cover.

(30) "Cultural resources" means any historic, archaeologic, or other cultural site. Significant sites, at a minimum, include all sites eligible for or listed on the National Register of Historic Places.

(31) "Cumulative hydrologic impacts" means the expected total qualitative and quantitative, direct and indirect effects of mining and reclamation operations on the hydrologic balance.

(32) "Cumulative hydrologic impact area" means the area, including, but not limited to, the permit and mine plan area within which impacts to the hydrologic balance resulting from the proposed operation may interact with the impacts of all previous, existing and anticipated mining on surface and ground water systems. "Anticipated mining" includes, at a minimum, the entire projected lives through bond release of all operations with pending applications and all operations required to meet diligent development requirements for leased federal coal for which there is actual mine-development information available.

(33) "Disturbed area" means an area from which vegetation, soil, spoil, overburden, fill, or mineral is removed or upon which vegetation, soil, overburden, spoil, fill, sediment, water, processing waste, underground development waste, or garbage or other debris is placed by strip or underground mining and reclamation operations. Those areas are classified as disturbed until reclamation is complete and the performance bond or other assurance is released.

(34) "Diversion" means a channel, embankment, or other manmade structure constructed to divert undisturbed runoff around an area of disturbance and back to an undisturbed channel.

(35) "Domestic water supply" means water received from a well or spring and any appurtenant delivery system that provides water for direct human consumption or household use. Wells and springs that serve only agricultural, commercial or industrial enterprises are not included except to the extent the water supply is for direct human consumption or sanitation or domestic use.

(36) "Downslope" means the land surface between the projected outcrop of the lowest coal seam being mined along each highwall and a valley floor.

(37) "Dwelling" means a building inhabited by or useful for habitation by a person or persons.

(38) "Embankment" means an artificial deposit of material that is raised above the natural surface of the land and used to contain, divert, or store water, support roads or railways, or for other similar purposes.

(39) "Ephemeral drainageway" is defined in 82-4-203, MCA, as "a drainageway that flows only in response to precipitation in the immediate watershed or in response to the melting of a cover of snow or ice and is always above the local water table."

(40) "Essential hydrologic functions" means, with respect to an alluvial valley floor, the collecting, storing, regulating, and making the natural flow of surface or ground water, or both, usefully available for agricultural activities by reason of the valley floor's topographic position, the landscape, and the physical properties of its underlying materials. A combination of these functions provides a water supply during extended periods of low precipitation.

(a) The role of the valley floor in collecting water includes accumulating runoff and discharge from aquifers in sufficient amounts to make the water available at the alluvial valley floor greater than the amount available from direct precipitation.

(b) The role of the alluvial valley floor in storing water involves limiting the rate of discharge of surface water, holding moisture in soils, and holding ground water in porous materials.

(c) The role of the alluvial valley floor in regulating the natural flow of surface water results from the valley geomorphic characteristics and physical configuration of the channel flood plain and adjacent low terraces.

(d) The role of the alluvial valley floor in regulating the natural flow of ground water results from the properties of the aquifers which control inflow and outflow.

(e) The role of the alluvial valley floor in making water usefully available for agricultural activities results from the existence of flood plains and terraces where surface and ground water can be provided in sufficient quantities to support the growth of agriculturally useful plants, from the presence of earth materials suitable for growth of agriculturally useful plants, from the temporal and physical distribution of water making it accessible to plants throughout the critical phases of the growth cycle either by flood irrigation or by subirrigation from the natural control of alluvial valley floors in limiting destructive extremes of stream discharge, and from the erosional stability of earth materials suitable for the growth of agriculturally useful plants.

(41) "Excess spoil" means spoil material disposed of in a location other than the mined-out area, provided that spoil material used to achieve the approximate original contour or to blend the mined-out area with the surrounding terrain, in accordance with ARM 17.24.313 and 17.24.501, in non-steep slope areas may not be considered excess spoil. See ARM 17.24.520.

(42) "Farm" is defined in ARM 17.24.325(3).

(43) "Federal coal regulatory authority" means the federal agency responsible for administration of the Surface Mining Control and Reclamation Act of 1977 (PL 95-87).

(44) "Flood irrigation" means, with respect to alluvial valley floors, supplying water to plants by natural overflow or the diversion of flows, so that the irrigated surface is largely covered by a sheet of water.

(45) "Fragile lands" is defined in ARM 17.24.1141(1).

(46) "Fugitive dust" means that particulate matter not emitted from a duct or stack which becomes airborne due to the forces of wind or strip or underground mining operations or both. During such operations it may include emissions from haul roads, wind erosion of exposed surfaces, storage piles and spoil piles, reclamation operations and other activities in which material is either removed, stored, transported, or redistributed.

(47) "Good ecological integrity" means that the complex of community of organisms and its environment functioning as an ecological unit possesses components and processes in good working order. Pastureland and cropland managed in accordance with county or local conservation district or state or federal best management practices (resource management strategies, such as normal husbandry practices, used to manage or protect a resource and promote ecological and economic sustainability) generally reflect good ecological integrity with regard to such land uses.

(48) "Ground water" means subsurface water or underground streams contained in the unsaturated and saturated zones.

(49) "Habit or characteristic pattern" means, with respect to ARM 17.24.634(1)(a), the particular reactions of drainage channels to general laws related to stream work, channel morphology and stability, whether or not the channels have attained the conditions of equilibrium.

(50) "Head-of-hollow fill" means a fill structure consisting of any material, other than non-coal organic material, placed in the uppermost reaches of a hollow or a naturally occurring drainage where side slopes of the existing hollow or drainage measured at the steepest point are greater than 20% or the average slope of the profile of the hollow or drainage from the toe of the fill to the top of the fill is greater than 10%. In head-of-hollow fills, the top surface of the fill, when completed, is at approximately the same elevation as the adjacent ridge line, and no significant area of natural drainage occurs above the fill draining into the fill area. (See ARM 17.24.520(14).)

(51) "Higher or better uses" is defined in 82-4-203, MCA, as "postmining land uses that have a higher economic value or noneconomic benefit to the landowners or the community than the premining land uses."

(52) "Highwall" means the face of exposed overburden and mineral in strip mining operations or for entry to underground mining operations.

(53) "Historic lands" is defined in ARM 17.24.1141(2).

(54) "Historically used for cropland" means:

(a) lands that have been used for cropland for any five years or more out of the 10 years immediately preceding the acquisition, including purchase, lease, or option, of the land for the purpose of conducting or allowing, through resale, lease or option, strip or underground coal mining and reclamation operations;

(b) lands that the department determines, on the basis of additional cropland history of the surrounding lands and the lands under consideration, that the permit area is clearly cropland but falls outside the specific five-years-in-10 criterion, in which case the regulations for prime farmland may be applied to include more years of cropland history only to increase the prime farmland acreage to be preserved; or

(c) lands that would likely have been used for cropland for any five or more years out of the 10 years immediately preceding such acquisition but for the same fact of ownership or control of the land as in (53)(a) unrelated to the productivity of the land.

(55) "Hydrologic balance" is defined in 82-4-203, MCA.

(56) "Hydrologic regime" means the entire state of water movement in a given area.

(57) "Imminent danger to the health and safety of the public" is defined in 82-4-203, MCA.

(58) "Impoundment" means a basin, naturally formed or artificially built, which is dammed or excavated for the retention of water, slurry, sediment, waste or other liquid or semi-liquid material.

(59) "Inactive mining operation" means an operation where:

(a) the permit has been suspended for a period of two or more months,

(b) neither mining nor reclamation activity has ever occurred,

(d) permanent cessation of operations has occurred pursuant to ARM 17.24.522, but bond has not yet been released.

(60) "Incidental boundary revision" means a change in the permit boundary in which a few acres, generally less than 100, insignificant in impact relative to the entire operation, are added to or subtracted from the permit area for the purposes of associated disturbance, but not for mining. For administrative purposes, an incidental boundary revision is considered a minor revision.

(61) "Intermittent stream" means a stream or reach of a stream that is below the local water table for at least some part of the water year, and obtains its flow from both surface runoff and ground water discharge.

(62) "In situ processing" means activities conducted on the surface or underground in connection with in-place distillation, retorting, leaching, or other chemical or physical processing of coal or uranium. The term includes, but is not limited to, in situ gasification, in situ leaching, slurry mining, solution mining, borehole mining, and fluid recovery mining.

(63) "Irreparable damage to the environment" means any damage to the environment, in violation of the Act or sub-chapters 4 through 12 of this chapter, that cannot be corrected by actions of the applicant.

(64) "Knowingly," for purposes of ARM 17.24.1217, means that an individual knew or had reason to know in authorizing, ordering or carrying out an act or omission on the part of a corporate permittee that such act or omission constituted a violation, failure or refusal.

(65) "Land use" is defined in 82-4-203, MCA, as "specific uses or management-related activities, rather than the vegetative cover of the land. Land uses may be identified in combination when joint or seasonal uses occur and may include land used for support facilities that are an integral part of the land use. Land use categories include cropland, developed water resources, fish and wildlife habitat, forestry, grazing land, industrial or commercial, pastureland, land occasionally cut for hay, recreation, or residential."

(a) "Cropland" means land used for the production of adapted crops for harvest, alone or in a rotation with grasses and legumes, and includes row crops, small grain crops, hay crops, nursery crops, orchard crops, and other similar specialty crops. Land that is used for facilities in support of cropland farming operations and is adjacent to, or an integral part of, these operations is also included in this category.

(b) "Pastureland" is defined in 82-4-203, MCA, as "land used primarily for the long-term production of adapted, domesticated forage plants to be grazed by livestock or occasionally cut and cured for livestock feed."

(c) "Grazing land" is defined in 82-4-203, MCA, as "land used for grasslands and forest lands where the indigenous vegetation is actively managed for livestock grazing or browsing or occasional hay production."

(d) "Forestry" is defined in 82-4-203, MCA, as "land used or managed for the long-term production of wood, wood fiber, or wood-derived products."

(e) "Residential" means use of land for single- and multiple-family housing, mobile home parks, or other residential lodgings. Land that is used for facilities in support of residential operations and that is adjacent to, or an integral part of, these operations is also included. Support facilities include, but are not limited to, vehicle parking and open space that directly relate to the residential use.

(f) "Industrial/commercial" means use of land for:

(i) extraction or transformation of materials for fabrication of products, wholesaling of products or for long-term storage of products. This includes all heavy and light manufacturing facilities, such as lumber and wood processing, chemical manufacturing, petroleum refining, and fabricated metal products manufacture. Land that is used for facilities in support of these operations and is adjacent to, or an integral part of, such operations is also included. Support facilities include, but are not limited to, all rail, road, and other transportation facilities; or

(ii) retail or trade of goods or services, including hotels, motels, stores, restaurants, and other commercial establishments. Land that is used for facilities in support of commercial operations and is adjacent to, or an integral part of, these operations is also included. Support facilities include, but are not limited to, parking, storage or shipping facilities.

(g) "Recreation" is defined in 82-4-203, MCA, as "land used for public or private leisure-time activities, including developed recreation facilities, such as parks, camps, and amusement areas, as well as areas for less intensive uses, such as hiking, canoeing, and other undeveloped recreational uses."

(h) "Fish and wildlife habitat" is defined in 82-4-203, MCA, as "land dedicated wholly or partially to the production, protection, or management of species of fish or wildlife."

(i) "Developed water resources" means use of land for storing water for beneficial uses such as stockponds, irrigation, fire protection, flood control, and water supply.

(66) "Major revision" means any change in the mining or reclamation plan that:

(a) results in a significant change in the postmining drainage plan;

(b) results in a change in the postmining land use;

(d) results in a change that may affect the reclaimability of the area or the hydrologic balance on or off of the permitted area.

(67) "Material damage" means, with respect to subchapter 9 rules on underground mining operations:

(a) any functional impairment of surface lands, features, structures or facilities;

(b) any physical change that has an adverse impact on the capability of the affected land to support any current or reasonably foreseeable uses or causes loss in production or income; or

(68) "Material damage" is defined in 82-4-203, MCA, as "with respect to protection of the hydrologic balance, degradation or reduction by coal mining and reclamation operations of the quality or quantity of water outside of the permit area in a manner or to an extent that land uses or beneficial uses of water are adversely affected, water quality standards are violated, or water rights are impacted. Violation of a water quality standard, whether or not an existing water use is affected, is material damage."

(69) "Materially damage the quantity or quality of water" means, with respect to alluvial valley floors, to degrade or reduce by strip or underground coal mining or reclamation operations, the water quantity or quality supplied to the alluvial valley floor to the extent that resulting changes would significantly decrease the capability of the alluvial valley floor to support agricultural activities. The term "material damage" may be applied to values other than those associated with alluvial valley floors.

(70) "Mine plan area" means the area of land and water within the boundaries of all permit areas during the entire life of the strip or underground mining operation. At a minimum, it includes all areas that are or will be affected during the entire life of those operations. Other terms defined elsewhere in this subchapter which relate closely to mine plan area are:

(a) "permit area", which will always be within or the same as the mine plan area;

(b) "area of land affected", which will always be within or the same as the permit area; and

(c) "adjacent area", which may surround or extend beyond the area of land affected, permit area, or mine plan area. (See also 82-4-203, MCA.)

(71) "Mineral" is defined in 82-4-203, MCA.

(72) "Minor revision" means any change to the mine and reclamation plan not meeting the criteria for amendment or major revision.

(73) "Mulch" means vegetation residues or other suitable materials that aid in soil stabilization and soil moisture conservation, thus providing micro-climatic conditions suitable for plant germination and growth.

(74) "Natural hazard lands" is defined in ARM 17.24.1141(3).

(75) "Non-commercial building" means any building, other than an occupied residential dwelling, that, at the time subsidence occurs, is used on a regular or temporary basis as a public building or community or institutional building as those terms are defined in ARM 17.24.1132(1). Any building used only for commercial agricultural, industrial, retail or other commercial enterprises is excluded.

(76) "Noxious plants" means species that have been included on official state and county lists of noxious plants.

(77) "Occupied residential dwelling and structures related thereto" means, with respect to subchapter 9 requirements for underground mining operations, any building or other structure that, at the time any subsidence occurs, is used either temporarily, occasionally, seasonally, or permanently for human habitation. This term also includes any building, structure or facility installed on, above or below, or a combination thereof, the land surface if that building, structure or facility is adjunct to or used in connection with an occupied residential dwelling. Examples of such structures include, but are not limited to: garages; storage sheds and barns; greenhouses and related buildings; utilities and cables; fences and other enclosures; retaining walls; paved or improved patios, walks and driveways; septic sewage treatment facilities; lot drainage; and lawn and garden irrigation systems. Any structure used only for commercial agricultural, industrial, retail or other commercial purposes is excluded.

(78) "Operation" is defined in 82-4-203, MCA.

(79) "Operator" is defined in 82-4-203, MCA.

(80) "Other treatment facilities" means, with respect to ARM 17.24.639(23), any chemical treatments (such as flocculation or neutralization) or mechanical structures (such as clarifiers or precipitators) that have a point-source discharge and that are utilized to prevent additional contribution of suspended solids to streamflow or runoff outside the permit area and to provide compliance with all applicable state and federal water quality laws and rules.

(81) "Outslope" means the face of the spoil or embankment sloping downward from the highest elevation to the toe.

(82) "Overburden" is defined in 82-4-203, MCA.

(83) "Owned or controlled" and "owns or controls" mean any one or a combination of the following relationships:

(a) being a permittee of a strip or underground coal mining operation;

(b) based on instruments of ownership or voting securities, owning of record in excess of 50 percent of an entity;

(c) having any other relationship which gives one person authority, directly or indirectly, to determine the manner in which an applicant, operator, or other entity conducts strip or underground coal mining operations; or

(d) unless it is demonstrated that the person does not in fact have the authority, directly or indirectly, to determine the manner in which the relevant coal mining operation is conducted:

(i) being an officer or director of an entity;

(ii) being the operator of a coal mining operation;

(iii) having the ability to commit the financial or real property assets or working resources of an entity;

(iv) being a general partner in a partnership;

(v) based on the instruments of ownership or the voting securities of a corporate entity, owning of record ten through 50 percent of the entity; or

(vi) owning or controlling coal to be mined by another person under a lease, sublease, or other contract and having the right to receive such coal after mining or having authority to determine the manner in which that person or another person conducts this coal mining operation.

(84) "Perennial stream" means a stream or reach of a stream that flows continuously during all of the water year as a result of ground water discharge or surface runoff. The term does not include intermittent streams or ephemeral streams.

(85) "Permanent diversion" means a diversion that remains after a strip or underground mining and reclamation operation is completed and that has been approved for retention by the department and other appropriate state and federal agencies.

(86) "Permanent impoundment" means an impoundment that is approved by the department and other appropriate state and federal agencies for retention as part of the postmining land use.

(87) "Permit area" means the area of land and water within the boundaries of the permit which are designated on the permit application maps, as approved by the department. This area includes, at a minimum, all areas which are or will be affected by the strip or underground mining and reclamation operations during the term of the permit.

(88) "Person having an interest which is or may be adversely affected or person with a valid legal interest" includes any person:

(a) who uses any resource of economic, recreational, aesthetic, or environmental value that may be adversely affected by a prospecting or strip or underground mining operation or any related action of the department; or

(b) whose property is or may be adversely affected by a prospecting or strip or underground mining operation or any related action of the department.

(89) "Precipitation event" means a quantity of water resulting from drizzle, rain, snow, sleet, or hail in a limited period of time. It may be expressed in terms of recurrence interval. As used in these rules, "precipitation event" also includes that quantity of water emanating from snow cover as snow-melt in a limited period of time.

(90) "Previously mined area" means land on which coal mining operations were previously conducted, except those lands subject to the standards of the Montana Strip and Underground Mine Reclamation Act or of the Surface Mine Control and Reclamation Act of 1977.

(91) "Prime farmland" is defined in 82-4-203, MCA, as "land that:

(a) meets the criteria for prime farmland prescribed by the United States secretary of agriculture in the Federal Register; and

(b) historically has been used for intensive agricultural purposes."

(92) "Principal shareholder" means any person who is the record or beneficial owner of 10% or more of any class of voting stock.

(93) "Probable hydrologic consequences" means the projected results of proposed strip or underground mining operations that may reasonably be expected to alter, interrupt, or otherwise affect the hydrologic balance. The consequences may include, but are not limited to, effects on stream channel conditions and the aquatic habitat on the permit area and adjacent areas.

(94) "Productivity" means the vegetative yield produced by a unit area for a unit of time.

(95) "Prospecting" is defined in 82-4-203, MCA.

(96) "Public building" is defined in ARM 17.24.1132(1)(c).

(97) "Public office" means a facility under the direction and control of a governmental entity which is open to public access on a regular basis during reasonable business hours.

(98) "Public park" is defined in ARM 17.24.1132(1)(e).

(99) "Railroad loop" means any rail transportation system within the mine permit area, whether it is in the form of a loop or a straight rail line.

(100) "Rangeland" means, with respect to alluvial valley floors, land on which the natural potential (climax) plant cover is principally native grasses, forbs, and shrubs valuable for forage. This land includes natural grasslands and shrublands. Except for brush control, management is primarily achieved by regulating the intensity of grazing and season of use.

(101) "Recharge capacity" means the ability of the soils and other earth materials to allow precipitation and runoff to infiltrate and percolate to the zone of saturation.

(102) "Reclamation" is defined in 82-4-203, MCA.

(103) "Recurrence interval" means the average interval (in years) between events equaling or exceeding a given magnitude. For example, a ten-year, 24-hour precipitation event is a 24-hour precipitation event that is equalled or exceeded on the average once every ten years.

(104) "Reference area" is defined in 82-4-203, MCA, as "a land unit maintained under appropriate management for the purpose of measuring vegetation ground cover, productivity, and plant species diversity that are produced naturally or by crop production methods approved by the department. Reference areas must be representative of geology, soil, slope, and vegetation in the permit area."

(105) "Remining" is defined in 82-4-203, MCA.

(106) "Renewable resource lands" means aquifers and areas for the recharge of aquifers and other underground waters, areas for agricultural or silvicultural production of food and fiber, and grazing lands.

(107) "Replace adversely affected domestic water supply" means, with respect to protected water supplies contaminated, diminished, or interrupted by underground coal mining operations, to provide a water supply on both a temporary and permanent basis equivalent to premining quantity and quality. Replacement includes provision for an equivalent water delivery system and payment of operation and maintenance costs in excess of customary and reasonable delivery costs for premining water supplies.

(a) Upon agreement by the operator and the water supply owner, the obligation to pay such operation and maintenance costs may be satisfied by a one-time payment in an amount which covers the present worth of the increased annual operation and maintenance costs for a period agreed to by the operator and the water supply owner.

(b) If the affected water supply was not needed for the land use in existence at the time of loss, contamination, or diminution, and if the supply is not needed to achieve the postmining land use, replacement requirements may be satisfied by demonstrating that a suitable alternative water source is available and could feasibly be developed. If the latter approach is selected, written concurrence must be obtained from the water supply owner.

(108) "Road" means a surface right-of-way for purposes of travel by land vehicles used in prospecting or strip or underground mining or reclamation operations. A road consists of the entire area within the right-of-way, including the roadbed, shoulders, parking and side area, approaches, structures, ditches, surface, and such contiguous appendages as are necessary for the total structure. The term includes access, haul, and ramp roads constructed, used, reconstructed, improved, or maintained for use in prospecting or strip or underground mining operations, including use by coal-hauling vehicles leading to transfer, processing, or storage areas. Subcategories of roads are as follows:

(a) "Access road" means a road leading from a public roadway to the mine complex.

(b) "Haul road" means a road used for more than six months to transport coal, soil, or spoil.

(d) "Ramp road" means a road leading from the pit to the haul road.

(109) "Safety factor" means the ratio of the available shear strength to the developed shear stress or the ratio of the sum of the resisting forces to the sum of the loading or driving forces, as determined by accepted engineering practices.

(110) "Sediment" means undissolved organic or inorganic material greater than 0.45 micrometers in size transported or deposited by water.

(111) "Sedimentation pond" means a sediment control structure, including a barrier, dam, or excavated depression, which slows down runoff water to allow sediment to settle out. The term does not include sedimentation control practices, such as straw dikes, riprap, check dams, mulches, dugouts, in-pit sumps, and other similar measures that reduce overland flow velocity, reduce runoff volume, or trap sediment.

(112) "Significant, imminent environmental harm to land, air or water resources" means:

(a) An "environmental harm" is an adverse impact on land, air, or water resources. These resources include, but are not limited to, plant and animal life.

(b) An environmental harm is "imminent", if a condition, practice, or violation exists that:

(i) is causing such harm; or

(ii) may reasonably be expected to cause such harm at any time before the end of the reasonable abatement time that would be set under 82-4-251, MCA.

(113) "Soil" means "topsoil" as defined as 82-4-203, MCA.

(114) "Soil horizon" means contrasting layers of soil parallel or nearly parallel to the land surface. Soil horizons are differentiated on the basis of field characteristics and laboratory data. The major types of soil horizons are described in issue 1 - revision of chapter 4 (as revised in May 1981) of the 1951 Soil Survey Manual, U.S. Department of Agriculture, Soil Conservation Service, June 9, 1981, Washington, D.C. This manual is available for inspection at the Department of Environmental Quality, 1520 E. 6th Ave., Helena, MT 59601, and at the national, state, and local offices of the U.S. natural resources conservation service.

(115) "Soil survey" means field and related investigation, resulting in a map showing the geographic distribution of different kinds of soils and an accompanying report that describes, classifies, and interprets such soils for use. Soil surveys must meet the standards of the national cooperative soil survey, which is based on procedures and standards in the following U.S. department of agriculture, soil conservation service publications: National Soils Handbook, Soil Taxonomy (Handbook 436), and Soil Survey Manual. These documents are on file and available for inspection at the main office of the Department of Environmental Quality, 1520 E. 6th Ave., Helena, MT 59601, and at the national, state, and local offices of the U.S. natural resources conservation service.

(116) "Spoil" means overburden that has been removed during strip or underground mining operations.

(117) "Stabilize" means to control movement of soil, spoil piles, or areas of disturbed earth by modifying the configuration of the mass, or by otherwise modifying physical, biological, or chemical properties, such as providing a protective surface coating.

(118) "Subirrigation" means, with respect to alluvial valley floors, the supplying of water to plants from a sub-surface zone where water is available and suitable for use by vegetation. Subirrigation may be identified by:

(a) diurnal fluctuation of the water table, due to the differences in nighttime and daytime evapotranspiration rates;

(b) increasing soil moisture from a portion of the root zone down to the saturated zone, due to capillary action;

(d) existence of an important part of the root zone within the capillary fringe or water table of an alluvial aquifer; or

(e) an increase in streamflow or a rise in ground water levels, shortly after the first killing frost on the valley floor.

(119) "Subsidence" is defined in 82-4-203, MCA.

(120) "Substantial legal and financial commitments" is defined in ARM 17.24.1141(4).

(121) "Substantially disturb" means, for purposes of prospecting, to significantly impact land or water resources by:

(a) drilling of uranium prospecting holes or blasting. Drilling of coal prospecting holes and installation and use of associated disposal pits or installation of ground water monitoring wells does not constitute substantial disturbance;

(b) removal of vegetation, topsoil, or overburden;

(d) placement of excavated earth or waste material on the natural land surface; or

(e) other similar activities.

(122) "Successor in interest" means any person who succeeds to rights granted under a permit, by transfer, assignment, or sale of those rights.

(123) "Surety bond" means an indemnity agreement in a sum certain payable to the department executed by the permittee which is supported by the performance guarantee of a corporation licensed to do business as a surety in Montana.

(124) "Surface water" means water that is either flowing or standing on the surface of the earth.

(125) "Suspended solids or nonfilterable residue" (expressed as milligrams per liter), means organic or inorganic materials carried or held in suspension in water that are retained by a standard glass fiber filter in the procedure outlined by the environmental protection agency's regulations for waste water and analyses (40 CFR 136).

(126) "Temporary diversion" means a diversion of a stream or overland flow that is used during prospecting or strip or underground mining or reclamation operations and not approved by the department to remain after reclamation as part of the approved postmining land use.

(127) "Temporary impoundment" means an impoundment, including sedimentation pond, used during mining or reclamation operations, but not approved by the department to remain as part of the postmining land use.

(128) "Test pit" means an excavation for prospecting by means other than drilling. Materials obtained from a test pit are used for test purposes and not for direct economic profit.

(129) "Toxic-forming materials" means earth materials or wastes which, if acted upon by air, water, weathering, or microbiological processes, are likely to produce chemical or physical conditions in soils or water that are detrimental to biota or uses of water.

(130) "Toxic mine drainage" means water that is discharged from active or abandoned mines or other areas affected by prospecting or strip or underground mining operations and that contains a substance that through chemical action or physical effects is likely to kill, injure, or impair biota commonly present in the area that might be exposed to it.

(131) "Transfer, assignment, or sale of permit rights" means a change in ownership or other effective control over the right to conduct strip or underground mining operations under a permit issued by the department. See ARM 17.24.418.

(132) "Unconsolidated streamlaid deposits holding streams" means, with respect to alluvial valley floors, all flood plains and terraces located in the lower portions of valleys which contain perennial or other streams with channels.

(133) "Underground development waste" means waste rock mixtures of coal, shale, claystone, siltstone, sandstone, limestone, or related materials that are excavated, moved, and disposed of from underground workings in connection with underground mining activities.

(134) "Undeveloped rangeland" means, for purposes of alluvial valley floors, lands that have not been agronomically altered by farming, seeding, interseeding, or other means, to increase production over the native condition and that are not intensively managed as irrigated or subirrigated pastures.

(135) "Unwarranted failure to comply" is defined in 82-4-203, MCA.

(136) "Upland areas" means, with respect to alluvial valley floors, those geomorphic features located outside the floodplain and terrace complex, such as isolated higher terraces, alluvial fans, pediment surfaces, landslide deposits, and surfaces covered with residuum, mud flows or debris flows, as well as highland areas underlain by bedrock and covered by residual weathered material or material deposited by sheetwash, rillwash, or wind.

(137) "Valley fill" means a fill structure consisting of any material other than non-coal organic material that is placed in a valley where side slopes of the existing valley measured at the steepest point are greater than 20 percent or the average slope of the profile of the valley from the toe of the fill to the top of the fill is greater than 10 percent.

(138) "Valid existing rights" is defined in ARM 17.24.1132(1).

(139) "Violation notice" means any written notification from a governmental entity of a violation of law, whether by letter, memorandum, legal or administrative pleading, or other written communication.

(140) "Violation, failure, or refusal," for purposes of ARM 17.24.1217 means:

(a) a violation of a condition of a permit issued pursuant to 82-4-221 or 82-4-226, MCA; or

(b) a failure or refusal to comply with any order issued under 82-4-251, MCA, or any order incorporated into a final decision issued under Title 82, chapter 4, part 2, MCA, except an order incorporated in a decision issued under 82-4-254(3), MCA.

(141) "Waste" means earth materials that are generated as a result of mineral preparation or, in some cases, mining and are not marketed by the operator. The term includes earth materials resulting from physical or chemical processing, cleaning, or concentrating of the mineral. It also includes "coal processing waste" and "underground development waste" as defined in this rule and materials that contain reject mineral resulting from selective extraction of the mineral. "Waste" does not include "spoil, overburden, or soil" as those terms are defined in this rule.

(142) "Waste disposal structure" means a pile, hill, mound, or other similar surface feature for the disposal of underground development waste or coal processing waste outside the mine workings and the surface excavation area. The term does not include an impoundment or embankment.

(143) "Water table" means the upper surface of a zone of saturation, where the body of ground water is not confined by an overlying impermeable zone.

(144) "Wildlife habitat enhancement feature" is defined in 82-4-203, MCA, as "a component of the reclaimed landscape, established in conjunction with land uses other than fish and wildlife habitat, for the benefit of wildlife species including, but not limited to, tree and shrub plantings, food plots, wetland areas, water sources, rock outcrops, microtopography, or raptor perches."

(145) "Willful violation" means an act or omission that violates the Act, subchapters 3 through 13 of this chapter, or any permit condition and that is committed by a person who intends the result which actually occurs.

(146) "Willfully" for purposes of ARM 17.24.1217, means that an individual acted:

(a) either intentionally, voluntarily, or consciously; and

(b) with intentional disregard or plain indifference to legal requirements in authorizing, ordering, or carrying out a corporate permittee's action or omission that constituted a violation failure, or refusal.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-203, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1990 MAR p. 936, Eff. 5/18/90; AMD, 1994 MAR p. 2957, Eff. 11/11/94; AMD, 1995 MAR p. 30, Eff. 1/13/95; AMD, 1995 MAR p. 31, Eff. 1/13/95; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1996 MAR p. 3050, Eff. 11/22/96; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.302 Format, Data Collection, and Supplemental Information

(1) Information set forth in the application must be accurate, current, presented clearly and concisely, submitted in a format acceptable to the department, and supported by appropriate references to technical and other written material available to the department.

(2) All tests, analyses, surveys, and data collection carried out pursuant to these rules must be performed or certified by a qualified person using scientifically valid techniques approved by the department and must be carried out at appropriate times and under appropriate conditions.

(3) All chemical and physical laboratory analyses must be conducted by a laboratory using departmentally approved and standardized procedures. The operator shall make available to the department quality assurance information or duplicate or split samples, as required by the department.

(4) All technical data submitted in the application must be accompanied by:

(a) names and addresses of persons or organizations that collected and analyzed such data;

(b) dates of the collection and analyses; and

(5) An application for a mining permit must be made on forms provided by the department.

(6) For applications to mine areas containing federal lands, an appropriate number of copies, as determined in consultation with the department, of all applications, maps, reports or other informational data must be submitted to the department and to the federal coal regulatory authority. For applications to mine areas not containing federal lands, two copies of all applications, maps, reports, and other informational data must be submitted to the department, unless otherwise approved by the department.

(7) All maps depicting detail must be at a scale of 400 feet to the inch, or other scale as approved by the department. Maps depicting general conditions such as property ownership, must be at a scale of 1,000 feet to the inch. Maps depicting the general surface conditions of large areas such as the location of prospecting drill holes must be on a current 7.5 minute U.S. geological survey map or equivalent.

(8) With the information on land uses, soils, geology, vegetation, fish and wildlife, water quantity and quality, air quality, and archeological, cultural and historic features, the applicant shall submit the name, address, and position of officials of each private or academic research organization or governmental agency consulted in obtaining that information.

(9) Whenever used in the application, referenced materials must either be provided to the department by the applicant or be readily available to the department. When provided, relevant portions of referenced published materials must be presented briefly and concisely in the application by photocopying or abstracting and with explicit citations.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.303 Legal, Financial, Compliance, and Related Information

(1) Each application must contain, in any format prescribed by the department, the following information:

(a) the name, permanent and temporary post office addresses, telephone numbers, and, as applicable, social security numbers and employer identification numbers of the applicant, applicant's resident agent, and the person who will pay the abandoned mine reclamation fee pursuant to 30 USC 1232;

(b) the location and area of land to be affected by the operation, with a description of access to the area from the nearest public highway;

(c) the names and addresses of legal and equitable owners of record, lessees, and purchasers under contract for deed of the surface of the area of land to be affected by the permit and the owners of record and purchasers under contract for deed of all surface area within one-half mile of any part of the affected area;

(d) the names and addresses of the present owners of record and purchasers under contract for deed of all subsurface minerals in the land to be affected and land contiguous to the land to be affected;

(e) the names and addresses of any persons who are engaged in strip or underground mining on behalf of the applicant and any person who will conduct such operations should the permit be granted;

(f) a statement of whether the applicant is a corporation, partnership, single proprietorship, association or other business entity;

(g) for each person who owns or controls the applicant under the definition of "owned or controlled" and "owns or controls" in ARM 17.24.301, as applicable:

(i) the person's name, address, social security number, and employer identification number;

(ii) the person's ownership or control relationship to the applicant, including percentage of ownership and location in organizational structure;

(iii) the title of the person's position, date position was assumed, and, when submitted under ARM 17.24.413(4), date of departure from the position;

(iv) each additional name and identifying number, including employer identification number, federal or state permit number, and mine safety and health administration number with date of issuance, under which the person owns or controls, or previously owned or controlled, a coal mining and reclamation operation in the United States within the five years preceding the date of the application; and

(v) the application number or other identifier of, and the regulatory authority for, any other pending coal mining operation permit application filed by the person in any state in the United States;

(h) for any surface coal mining operations that the applicant or the applicant's operator owned or controlled within the five-year period preceding the date of the submission of the application, and for any surface coal mining operation the applicant or the applicant's operator owns or controls on that date, the applicant must provide the:

(i) permittee's and operator's name and address;

(ii) permittee's and operator's taxpayer identification numbers;

(iii) federal or state permit number and corresponding Mine Safety and Health Administration number;

(iv) regulatory authority with jurisdiction over the permit; and

(v) permittee's and operator's relationship to the operation, including percentage of ownership and location in the organizational structure;

(i) for any coal mining operation owned or controlled by either the applicant or by any person who owns or controls the applicant, the operation's:

(i) name; address; identifying numbers, including employer identification numbers, federal or state permit number, and mine safety and health administration number; date of issuance of the mine safety and health administration number; and the regulatory authority; and

(ii) ownership or control relationship to the applicant, including percentage of ownership and location in organizational structure;

(j) the name of the proposed mine and the mine safety and health administration identification number for the mine and all sections, if any;

(k) a list of all lands, interests in lands, options, or pending bids on interests held or made by the applicant for lands which are contiguous to the area to be covered by the permit;

(l) a statement of whether the applicant or any person associated with the applicant holds or has held any prospecting or uranium operating permits under the Act and an identification of those permits;

(m) a certified statement of whether the applicant, operator, any subsidiary, affiliate, or persons controlled by or under common control with the applicant or operator, is in compliance with 82-4-251, MCA, and, if known, whether any officer, partner, director, or any individual owning of record or beneficially, alone or with associates, ten percent or more of any class of stock of the applicant is subject to any of the provisions of 82-4-251, MCA, and whether any of the foregoing parties or persons have ever had a strip mining or underground mining license or permit issued by any other state or federal agency revoked or have ever forfeited a strip mining or underground mining bond or a security deposited in lieu of a bond and, if so, a detailed explanation of the facts involved in each case must be attached including:

(i) identification number and date of issuance of the permit and, when applicable, date and amount of bond or similar security;

(ii) identification of the authority that suspended or revoked a permit or forfeited a bond and the stated reasons for that action;

(iii) the current status of the permit, bond, or similar security involved;

(iv) the date, location, and type of any administrative or judicial proceedings initiated concerning the suspension, revocation, or forfeiture; and

(v) the current status of these proceedings;

(n) for any violation of a provision of 30 USC 1201, et seq., or of any law, rule, or regulation of the United States, or of any state law, rule, or regulations enacted pursuant to federal law, rules, or regulations pertaining to air or water environmental protection incurred in connection with any coal mining operation, a list of all violation notices received by the applicant during the three-year period preceding the application date, and a list of all unabated cessation orders and unabated air and water quality violation notices received prior to the date of the application by any coal mining and reclamation operation owned or controlled by either the applicant or by any person who owns or controls the applicant. For each violation notice or cessation order reported, the list must include the following information, as applicable:

(i) any identifying numbers for the operation, including the federal or state permit number and mine safety and health administration number, the dates of issuance of the violation notice and mine safety and health administration number, the name of the person to whom the violation notice was issued, and the name of the issuing regulatory authority, department, or agency;

(ii) a brief description of the violation alleged in the notice;

(iii) the date, location, and type of any administrative or judicial proceeding initiated concerning the violation, including, but not limited to, proceedings initiated by any person identified in this section to obtain administrative or judicial review of the violation;

(iv) the current status of the proceedings and of the violation notice; and

(v) the actions, if any, taken by the person identified in this section to abate the violation;

(o) copies of the documents upon which the applicant bases his or her legal right to enter and begin mining operations in the permit area and whether that right is the subject of pending litigation. The applicant may request confidentiality on any proprietary information within such documents;

(p)

(i) whenever the private mineral estate to be strip mined has been severed from the private surface estate, an applicant shall also submit:

(A) a copy of the written consent of the surface owner for the extraction of mineral by strip mining methods;

(B)

(I) a copy of the conveyance that expressly grants or reserves the right to extract mineral by those methods; or

(II) if the conveyance does not expressly grant the right to extract the mineral by strip mining methods, documentation that under Montana law the applicant has the legal right to extract the mineral by those methods;

(ii) nothing in this section may be construed to authorize the department to adjudicate property rights disputes;

(q) a statement of available information on whether the proposed permit area is within an area designated unsuitable for coal mining operations or under study for designation in an administrative proceeding and if the applicant claims the exemption based on substantial legal and financial commitments made before January 4, 1977, and information supporting the applicant's claim;

(r) if mining within 300 feet of an occupied dwelling is proposed, the waiver of the owner of the dwelling;

(s) a statement of the anticipated or actual starting and termination date of each phase of mining and the anticipated number of acres of land to be affected for each phase of mining and over the total life of the permit;

(t) either a certificate of liability insurance or evidence that the self-insurance requirements of 82-4-222(5), MCA, are satisfied (see also ARM 17.24.1125);

(u) a list of all other licenses and permits needed by the applicant to conduct the proposed mining. This list must identify each license and permit by:

(i) type of permit or license;

(ii) name and address of issuing authority;

(iii) identification numbers of applications for those permits or licenses or, if issued, the identification numbers of the permits or licenses; and

(iv) if a decision has been made, the date of approval or disapproval by each issuing authority;

(v) the name and address of the public office where the applicant will file a copy of the application for public inspection;

(w) the name, address, and telephone number of the resident agent who will accept service of process on behalf of the applicant;

(x) a copy of the proposed newspaper advertisement of the application and proof of publication of the notice after it is published as required in ARM 17.24.401(3); and

(y) a map of the mine plan area showing the areas upon which strip or underground mining occurred:

(i) prior to August 3, 1977;

(ii) after August 3, 1977, and prior to May 3, 1978;

(iii) after May 3, 1978, and prior to April 1, 1980;

(iv) after April 1, 1980, and before January 13, 1989; and

(v) after January 13, 1989, and before October 22, 2004.

(z) The map of the mine plan area must also designate the areas from which coal removal had not commenced as of October 22, 2004.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1990 MAR p. 936, Eff. 5/18/90; AMD, 1994 MAR p. 2957, Eff. 11/11/94; AMD, 1995 MAR p. 30, Eff. 1/13/95; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 1999 MAR p. 2768, Eff. 12/3/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.304 Baseline Information: Environmental Resources

(1) The following environmental resources information must also be included as part of an application for a strip or underground mining permit:

(a) the size, sequence, and timing of the subareas of the mine plan area for which it is anticipated that individual permits for mining will be requested over the estimated total life of the proposed mining activities;

(b) a listing, location and description of all archaeological, historical, ethnological and cultural resources and values of the proposed mine plan and adjacent area. Such resources and values must be located and identified on accompanying maps. Sites listed on, eligible for, or potentially eligible for the national register of historic places must be so identified. Published research or other information must be referenced and copies of referenced reports must be made available to the department upon request. The department may require the applicant to identify and evaluate important historic and archeological resources that may be eligible for listing on the national register of historic places through collection of additional information, conduct field investigations, or other appropriate analyses;

(c) a comprehensive listing, location and description of significant or unique scenic and/or geological formations or sites;

(d) a narrative explanation or other data showing whether the permit area possesses special, exceptional, critical, or unique characteristics as defined in 82-4-227, MCA, and whether surrounding land possesses special, exceptional, critical or unique characteristics that would be adversely affected by mining;

(e) all hydrologic and geologic data necessary to evaluate baseline conditions, to evaluate the probable hydrologic consequences and cumulative hydrologic impacts of mining, pursuant to ARM 17.24.314(3) and (5) and 82-4-222, MCA, and to develop a plan to monitor water quality and quantity to address the requirements of ARM 17.24.314;

(f) hydrologic and geologic descriptions pursuant to (1)(e) including:

(i) a narrative and graphic account of ground water hydrology including, but not limited to:

(A) the lithology, thickness, structural controls, hydraulic conductivity, transmissivity, recharge, storage and discharge characteristics, extent of aquifer, production data, water quality analyses and other relevant aquifer characteristics for each aquifer within the mine plan area and adjacent areas;

(B) the results of a minimum of one year of quarterly monitoring of ground water for total dissolved solids, specific conductance corrected to 25 o C, pH, major dissolved cations (Ca, Mg, Na, K), major dissolved anions (SO 4 , HCO 3 , CO 3 , Cl, NO 3 ), concentrations of dissolved metals as prescribed by the department, and water levels. These data must be generated in accordance with the standards contained in ARM 17.24.645(2), (3), and (6); and

(C) a listing of all known or readily discoverable wells and springs and their uses located within three miles downgradient from the proposed permit area and within one mile in all other directions unless hydrologic conditions justify different distances;

(ii) a narrative and graphic account of surface water hydrology within the mine plan area and adjacent areas including, but not limited to:

(A) the name, location, use, and description of all surface water bodies such as streams, lakes, ponds, springs, and impoundments; and

(B) descriptions of surface drainage systems sufficient to identify, in detail, the seasonal variations in water quantity and quality including, but not limited to:

(I) minimum, maximum, and average discharge conditions which identify critical low flow and peak discharge rates of streams and springs; and

(II) water quality data to identify the characteristics of surface waters discharging into or receiving flows from the proposed mine plan area, including total suspended solids, total dissolved solids, specific conductance corrected to 25 o C, pH, major dissolved cations (Ca, Mg, Na, K), major dissolved anions (SO 4 , CO 3 , HCO 3 , NO 3 , Cl), and concentrations of metals as prescribed by the department. Such data must be generated in accordance with the standards contained in ARM 17.24.646(1), (1)(a), (3), (5), and (6);

(iii) a description of alternative water supplies, not to be disturbed by mining, that could be developed to replace water supplies diminished or otherwise adversely impacted in quality or quantity by mining activities so as not to be suitable for the approved postmining land uses; and

(iv) such other information that the department determines is relevant;

(g) a detailed description of all overburden and mineral materials (all materials other than soil) that will be handled during mining or backfilling operations. The description must include:

(i) those materials down to and including the deeper of either the stratum immediately below the lowest seam to be mined or any aquifer below the lowest seam to be mined that may be adversely impacted by mining;

(ii) all physical, chemical, water infiltration, artificial weathering, and plant growth data necessary to identify those materials that are potentially acid, acid-forming, sodic, saline, toxic, toxic-forming, unstable, erodible or otherwise undesirable with respect to use as plant rooting media, landscape stability, aquifer reestablishment, postmining ground and surface water quantity and quality both on and off site, and postmining land use;

(iii) lithologic and geophysical logs showing the lithologic characteristics including physical properties and thickness of each stratum and location of ground water where occurring. The requirement for geophysical logs may be waived if the applicant demonstrates, and the department finds in writing, that other equivalent information is available in an acceptable form and has been provided by the applicant;

(iv) a narrative addressing the suitability or unsuitability of the materials to be handled for reclamation purposes. This narrative must address or reference the data, characteristics of materials, and aspects of reclamation described in (1)(f), (1)(g)(ii) and (iii), and ARM 17.24.322(2)(a)(iii); and

(v) additional studies or information determined by the department to be useful or necessary to evaluate the application. All laboratory work conducted under (g) must be conducted in accordance with ARM 17.24.302(3);

(h) climatological information, including:

(i) the average seasonal precipitation;

(ii) the average direction and velocity of prevailing winds;

(iii) seasonal temperature ranges; and

(iv) such additional data as the department deems necessary to ensure compliance with the requirements of this subchapter;

(i) vegetation surveys as described in 82-4-222(2), MCA, of the Act, which must include:

(i) a vegetation map at a scale of 1" = 400' or as otherwise approved by the department, which delineates community types based on dominant species which by their structure, density, or coverage, have the greatest functional influence on the type. Other methods for delineating community types may be used with prior approval by the department; and

(ii) a narrative describing the community types within the proposed permit area and within any proposed reference areas, and listing associated species and discussing environmental factors controlling or limiting the distribution of species;

(j) a narrative of the results of a wildlife survey. The operator shall contact the department at least three months before planning the wildlife survey to allow the department to consult state and federal agencies with fish and wildlife responsibilities to determine the scope and level of detail of information required in the survey to help design a wildlife protection and enhancement plan. At a minimum, the wildlife survey must include:

(i) a listing of all fish and wildlife species;

(ii) population density estimates of each species insofar as practicable;

(iii) a description of season or seasons of use and habitat use by each species along with a description of habitats of unusually high value for fish and wildlife such as important streams, wetlands, riparian areas, cliffs supporting raptors, areas offering special shelter or protection, migration routes, reproduction and wintering areas, and other habitats identified through agency consultation as requiring special protection under state or federal law;

(iv) a wildlife habitat map for the entire wildlife survey area including habitat types that are discussed in (c), and ARM 17.24.751(2)(f) and (g); and

(v) coverage of the proposed permit area plus an area around it. The extent of the total area to be surveyed must be determined through consultation with the department and must be large enough to include those species whose home ranges extend beyond the permit boundary;

(k) a soil survey according to standards of the national cooperative soil survey and the department describing all soils on the proposed permit area and their suitability for reclamation purposes. The soil survey must include the following information:

(i) description, sampling, and analysis of soils in sufficient detail to identify the soil series, phases, and mapping units present including:

(A) series and phase descriptions;

(B) mapping unit (complex and consociation) descriptions;

(D) results of chemical and physical analyses of soil horizon samples. Each horizon sample must be analyzed in accordance with ARM 17.24.302(3) for pH, particle size distribution (texture), and other parameters that must be determined in consultation with the department;

(ii) a soils map acceptable to the department. The scale must be 1" = 400' unless otherwise altered or approved by the department. Enlarged aerial photographs may be used as a map base. The map or photograph must include:

(A) the soil mapping units, their boundaries, a legend of the soil mapping units and the estimated salvage depths of soils within each mapping unit, consistent with the information submitted under ARM 17.24.313(1)(f);

(B) soil sampling locations; and

(iii) further soil studies or information determined by the department to be useful or necessary to evaluate the application;

(l) the condition, capability, productivity, and history of use of the land and vegetation within the proposed permit area, including:

(i) a map and supporting narrative of the uses of the land existing at the time of the filing of the application. If the premining use of the land was changed within five years before the anticipated date of beginning the proposed operations, the historic use of the land must also be described;

(ii) a narrative of land capability and productivity that analyzes the land-use description under (a) in conjunction with other environmental resources information required under this subsection. The narrative must provide analyses of:

(A) the capability of the land before any mining to support a variety of uses, giving consideration to soil and foundation characteristics, topography, vegetative cover and the hydrology of the proposed permit area;

(B) the productivity of the proposed permit area before mining, expressed as average yield of food, fiber, forage, or wood products from such lands obtained under high levels of management. The productivity must be determined by yield data or estimates for similar sites based on current data from the U.S. department of agriculture, state agricultural universities, or appropriate state natural resources or agricultural agencies;

(C) a statement of whether the proposed permit area has been previously mined, and, if so, the following information, if available:

(I) the type of mining method used;

(II) the coal seams or other mineral strata mined;

(III) the extent of coal or other minerals removed;

(IV) the approximate dates of past mining; and

(V) the uses of the land;

(D) the existing land uses and land use classifications under local law, if any, of the proposed mine plan and adjacent areas.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1990 MAR p. 936, Eff. 5/18/90; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 1999 MAR p. 2768, Eff. 12/3/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.305 Maps

(1) The application must contain maps including the following information:

(a) the owners of record of the surface of the land to be affected by the permit and the owners of record of all surface area within 1/2 mile of any part of the affected area;

(b) the owners of record of all subsurface minerals in the land to be affected;

(c) the boundaries of land within the proposed permit area upon which the applicant has the legal right to enter and begin mining activities;

(d) the boundaries of all areas proposed to be affected over the estimated total life of the proposed mining operations, with a description of size, sequence, and timing of the mining of subareas for which it is anticipated that additional permits will be sought, and any cropline of the mineral to be mined;

(e) the names and locations of roads, buildings, facilities, cemeteries, oil and gas wells, pipelines, utility lines and corridors, and strip or underground mines on the permit area and within 1,000 feet of such area;

(f) the location and boundaries of any proposed reference areas for determining the success of revegetation;

(g) the locations of water supply intakes for current users of surface water flowing into, out of, and within a hydrologic area and those surface waters which will receive discharges from affected areas in the proposed mine plan area;

(h) the boundaries of any public park and locations of any cultural or historical resources listed or eligible for listing in the national register of historic places and known archeological sites within the mine plan or adjacent areas;

(i) any land within the proposed mine plan area and adjacent area that is within the boundaries of any units of the national system of trails or the wild and scenic rivers system, including study rivers designated under section (5)(a) of the Wild and Scenic Rivers Act;

(j) the lands proposed to be affected throughout the operation, including the pre-mine topography, and any change in a facility or feature to be caused by the proposed operations;

(k) the area of land to be affected within the proposed mine plan area, according to the sequence of mining and reclamation;

(l) each area of land for which a performance bond or other equivalent guarantee will be posted;

(m) each mineral storage, cleaning or loading area and each soil, spoil, coal waste, garbage or other debris storage area;

(n) elevations and locations of monitoring stations used to gather data for water quality and quantity, fish and wildlife, and air quality, if required, in preparation of the application;

(o) each water diversion, collection, conveyance, treatment, storage, and discharge facility to be used;

(p) each air pollution collection and control facility;

(q) each source of waste and each waste disposal facility relating to processing or pollution control;

(r) the location of proposed postmine revegetation communities and proposed fish, wildlife, and related environmental enhancement features;

(s) each explosives storage and handling facility;

(t) the location of each sedimentation pond and permanent water impoundment in accordance with ARM 17.24.315 and the location of each fill area for the disposal of excess spoil in accordance with ARM 17.24.308;

(u) the date on which each map was prepared and the north point; a legend indicating the items shown on the map, the scale, and the contour interval; the township, range, and section numbers;

(v) grid coordinates based upon the 1000-meter universal transverse mercator system for maps, as determined by the department, that are necessary to do cumulative hydrologic impact assessments and alluvial valley floor determinations;

(w) the final surface and underground water drainage plan on and away from the area of land affected. This plan must indicate the direction and volume of flow of water, constructed drainways, natural waterways used for drainage, and the streams or tributaries receiving the discharge;

(x) the location of the test boring holes;

(y) the surface location lines of any geologic cross sections that have been submitted; and

(z) the location and extent of subsurface water, if encountered, and the names and location of surface water bodies, including springs, constructed or natural drains, and irrigation ditches, within the proposed mine plan and adjacent areas.

(2) Maps must be prepared in accordance with the following procedures:

(a) Each map containing information pursuant to (1) must be certified as follows. "I, the undersigned, hereby certify that this map is correct and shows to the best of my knowledge and belief all the information required by the mining laws of this state.. The certification must be signed and notarized in affidavit form. If the certification is submitted as a document separate from the map(s) , it must be in affidavit form. The department may reject a map as incomplete if its accuracy is not so attested.

(b) Maps, plans, and cross-sections required under (1)(d), (e), (j), (k), (l), (m), (o), (p), (q), (s), (t), (x), and (z) must be prepared by, or under the direction of, and certified by a qualified licensed professional engineer, with assistance from experts in related fields, except that:

(i) maps and cross-sections required under (1) (d), (l), (m), (o), (p), (s), (t), (x) and (z) may be prepared by, or under the direction of, and certified by a qualified licensed professional land surveyor with assistance from experts in related fields; and

(ii) maps, plans, and cross-sections for sedimentation ponds and spoil disposal facilities may be prepared only by a qualified licensed professional engineer.

(3) Maps other than those outlined in (1) and (2) necessary to meet the requirements of this rule or other rules adopted pursuant to the Act must also be certified as in (2)(a).

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1990 MAR p. 936, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.306 Baseline Information: Prime Farmland Investigation

(1) The application must contain the results of a prime farmland investigation developed in consultation with the U.S. natural resources conservation service to determine whether lands within the proposed permit area are prime farmlands as defined in ARM 17.24.301.

(2) If the lands in question have not "historically been used for cropland" as that term is defined in ARM 17.24.301, the applicant must submit a request for a negative determination for these lands with documentation supporting this request.

(3) If the lands in question have historically been used for cropland, the applicant shall, in consultation with the Montana state office of the U.S. natural resources conservation service, determine if any soils, characterized and described in accordance with ARM 17.24.304(1)(k) , on these lands meet the criteria of prime farmlands as contained in 7 CFR 657;

(a) Whenever a determination is made that the soil survey of lands within the proposed permit area identifies soils that meet the criteria of prime farmlands, the applicant shall indicate the reasons for this determination and shall include materials in the application showing compliance with ARM 17.24.324.

(b) When the soil survey for lands within the proposed permit area does not identify soils that meet the criteria for designation as prime farmland, the applicant shall submit a request for negative determination for these lands with reasons supporting this conclusion.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.308 Operations Plan

(1) Each application must contain a description of the operations proposed to be conducted during the life of the mine including, at a minimum, the following:

(a) a narrative description of the type and method of mining procedures and proposed engineering techniques, anticipated annual and total production of mineral, by tonnage, and the major equipment to be used for all aspects of those operations;

(b) a narrative, with appropriate cross sections, design drawings, and other specifications sufficient to demonstrate compliance with ARM 17.24.609 and applicable rules of subchapter 10, explaining the construction, modification, use, maintenance, and removal of the following facilities (unless retention of such facilities is necessary for postmining land use as specified in ARM 17.24.762):

(i) dams, embankments, and other impoundments;

(ii) overburden and soil handling and storage areas and structures;

(iii) mineral removal, handling, storage, cleaning, and transportation areas and structures;

(iv) spoil, waste, garbage, and other debris removal, handling, storage, transportation, and disposal areas and structures;

(v) other support facilities as designated in ARM 17.24.609;

(vi) water and air pollution control facilities;

(vii) facilities or sites and associated access routes for environmental monitoring and data gathering activities or for the gathering of subsurface data by trenching, drilling, geophysical, or other techniques to determine the natures, depth, and thickness of all known strata, overburden, and coal seams; and

(viii) any additional information the department deems useful;

(c) a description of measures to be employed to ensure that all debris, acid, toxic, acid-forming, and toxic-forming materials, materials constituting a fire hazard, and otherwise undesirable materials are properly disposed of; and

(d) a description of the contingency plans which have been developed to extinguish a fire or sustained combustion of materials constituting a fire hazard;

(e) a description of steps to be taken to comply with the requirements of the Clean Air Act (42 USC 7401, et seq.), the Clean Water Act (33 USC 1251, et seq.), the Resource Conservation and Recovery Act (42 USC 6901, et seq.), and other applicable air and water quality laws and regulations and health and safety standards, or a copy of a valid permit issued under these laws; and

(f) a plan to prevent the establishment of, or to control, noxious weeds on all lands within the proposed permit area until phase IV bond release, in accordance with the Noxious Weed Management Act, 7-22-2102 through 7-22-2153, MCA, as amended.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.310 Blasting Plan

(1) Each application must contain a blasting plan for the proposed permit area. The plan must explain how the applicant intends to comply with the requirements of ARM 17.24.621 through 17.24.626 and 17.24.1260 through 17.24.1263, and must include the following:

(a) types and approximate amounts of explosives to be used for each type of blasting operation to be conducted;

(b) description of procedures and plans generally used for:

(i) drilling patterns, including size, number, depths, and spacing of holes;

(ii) charge and packing of holes;

(iii) types of fuses and detonation controls;

(iv) sequence and timing of firing holes;

(v) a description of procedures and plans for recording of (i) through (iv) above and retention of those records;

(d) description of types, capabilities, sensitivities, and locations of use of any blast monitoring equipment and procedures proposed to be used;

(e) description of plans for recording and reporting to the department the results of preblasting surveys, if required;

(f) description of unavoidable hazardous conditions for which deviations from the blasting schedule will be needed; and

(g) a general description of structures to be protected and a discussion of design factors to be used to protect the public and to meet the applicable airblast, flyrock, and ground vibration standards in ARM 17.24.624.

(2) For underground mines the department may, on a case-by-case basis, waive any of the requirements in (1) of this rule that do not apply to underground blasting operations.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.311 Air Pollution Control Plan

(1) For all strip mining operations with projected production rates exceeding 1,000,000 tons of mineral per year, the application must contain an air pollution control plan that includes the following:

(a) an air quality monitoring program to provide sufficient data to evaluate the effectiveness of the fugitive dust control practices proposed under (b) to comply with federal and state air quality standards; and

(b) a plan for fugitive dust control practices as required by ARM 17.24.761.

(2) For all other strip mining operations, the application must contain:

(a) the requirements of (1)(a), if required by the department; and

(b) the plan required by (1)(b).

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW , 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.312 Fish and Wildlife Plan

(1) Each application must contain a fish and wildlife plan, consistent with ARM 17.24.751 that provides:

(a) a description of how the plan will minimize disturbances and adverse impacts on fish, wildlife, and related environmental values during mining and reclamation operations, how enhancement of these resources will be achieved, where practicable, and how the plan will comply with the Endangered Species Act of 1973, as amended. The plan must apply, at a minimum, to species and habitats identified in ARM 17.24.304(1)(j)(i) and (iii), and must cover the permit area and portions of adjacent areas as determined by the department pursuant to ARM 17.24.304(1)(j)(v) ;

(b) a description of the wildlife habitat enhancement features that will be integrated with other land uses, pursuant to 82-4-232(9), MCA, and ARM 17.24.313;

(c) if the applicant states that it will not be practicable, in accordance with (1) , to achieve a condition that clearly shows a trend toward enhancement of fish and wildlife resources at the time revegetation has been successfully completed, a statement documenting, to the satisfaction of the department, why it is not practicable to achieve such a condition; and

(d) a statement explaining how the applicant will utilize impact control measures, management techniques, and annual monitoring methods to protect or enhance the following, if they are to be affected by the proposed activities:

(i) threatened or endangered species of plants or animals listed by the U.S. secretary of interior under the Endangered Species Act of 1973, as amended (16 USC 1531, et seq.) and their critical habitats;

(ii) species such as eagles, migratory birds, other animals protected by state or federal law, and their habitats, and any other species identified through the consultation process pursuant to ARM 17.24.304(1) (j) ; and

(iii) habitats of unusually high value for fish and wildlife, such as wetlands, riparian areas, cliffs supporting raptors, areas offering special shelter or protection, reproduction and nursery areas, and wintering areas.

(2) Upon request, the department shall provide the fish and wildlife resource information required in ARM 17.24.304(1)(j), 17.24.312, and 17.24.751, as well as any other rule dealing with fish and wildlife, to the U.S. fish and wildlife service regional or field office for review. This information must be provided within 10 days of receipt of the request.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, 82-4-232, MCA
History: NEW , 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.313 Reclamation Plan

(1) Each reclamation plan must contain a description of the reclamation operations proposed, including the following information:

(a) the proposed postmining land use pursuant to ARM 17.24.762;

(b) a detailed timetable for the estimated completion of each major step in the reclamation plan;

(c) a detailed estimate of the cost of reclamation of the proposed operations that will be covered by a performance bond with supporting calculations for the estimate;

(d) a plan for backfilling, stabilization, compacting, and grading of the proposed permit area. The plan for backfilling must contain:

(i) a description of the final location of all overburden and parting materials in the fill. Diagrams must be included, as necessary;

(ii) a narrative and cross-sections, or other means as approved by the department, showing the plan of highwall backfilling, reduction, or an alternative thereof, including the limits of buffer zone consistent with the performance standards of ARM 17.24.501 and 17.24.515;

(iii) a narrative description of the derivation of the bulking factor (swell) used by the applicant in calculation of spoil volumes and generation of postmining contour maps. Calculations used in the derivation must be included;

(iv) a map showing the postmining topography that the applicant proposes to meet at the time of final bond release. This map must be prepared to reflect the performance standards; and

(v) a demonstration that the proposed postmining topography can be achieved. This demonstration must include a cross-section or set of cross-sections, or other method as approved by the department, to depict the removal of overburden and mineral and the replacement of the swelled spoil;

(e) a description of postmining drainage basin reclamation that ensures protection of the hydrologic balance, achievement of postmining land use performance standards, and prevention of material damage to the hydrologic balance in adjacent areas, including:

(i) a comparison of premining and postmining drainage basin size, drainage density, and drainage profiles as necessary to identify characteristics not distinguishable on the premining and postmining topographic maps;

(ii) a discussion of how, within drainage basins:

(A) the plan meets each performance standard in ARM 17.24.634;

(B) the requirements of 82-4-231(10)(k), MCA, and ARM 17.24.314 will be met where the postmining topography differs from the premining as allowed by ARM 17.24.301(13)(c);

(f) drainage channel designs appropriate for preventing material damage to the hydrologic balance in the adjacent area and to meet the performance standards of ARM 17.24.634, including:

(i) detailed drainage designs for channels that contain critical hydrologic, ecologic or land use functions not already addressed in this rule such as alluvial valley floors, wetlands, steep erosive upland drainages, drainages named on USGS topographic maps, or intermittent or perennial streams. Detailed drainage designs include fluvial and geomorphic characteristics pertinent to the specific drainages being addressed; and

(ii) for all other channels, typical designs and discussions of general fluvial and geomorphic habit, pattern, and other relevant functional characteristics;

(g) plans for removal, storage, and redistribution of soil, overburden, spoils, and other material in accordance with ARM 17.24.501, 17.24.502, 17.24.503, 17.24.504, 17.24.505, 17.24.507, 17.24.510, 17.24.515, 17.24.516, 17.24.517, 17.24.518, 17.24.519, 17.24.520, 17.24.521, and 17.24.522, and 17.24.701 through 17.24.703;

(i) These plans must include or reference other narratives in the application documenting how the information on the characteristics of the overburden and coal (ARM 17.24.304(1)(g)) and soils (ARM 17.24.304(1)(k)) was utilized in developing the plans.

(ii) Using the soil survey information (see ARM 17.24.304 (1)(k)), the applicant shall propose estimated salvage depths for each lift of each soil component (series or phase) of each soil mapping unit.

(iii) The application must also include figures with supporting calculations showing:

(A) total acreages and volumes of salvageable soil of each lift from each soil component of each soil mapping unit; and

(B) the anticipated thickness(es) of soil redistribution for each lift, and in total, on the area of land affected after regrading;

(iv) The applicant must submit plans for any necessary monitoring of soils, overburden, spoils, or other materials;

(h) a narrative of the method for revegetation including, but not limited to, a discussion of:

(i) revegetation types, including acreage of each;

(ii) the schedule of revegetation;

(iii) species and amounts per acre of seeds and seedlings to be used, calculated as pure live seed;

(iv) introduced species to be used, if any, and documentation of the desirability and necessity of using the introduced species to achieve the approved postmining land use;

(v) methods to be used in planting and seeding;

(vi) approximate, normal, annual seeding and planting dates;

(vii) the use of nurse or cover crop and mulching techniques;

(viii) soil tillage, amendments or other management techniques to assist in vegetative establishment;

(ix) vegetation monitoring to be implemented to identify conditions during the period of liability;

(x) measures to be used to determine the success of revegetation, including the use of reference areas and/or technical standards in relation to the revegetation types pursuant to ARM 17.24.724 and 17.24.726;

(xi) plans for determining quality, fertility, and thickness of redistributed soil and for determining quality of regraded spoil. The purpose of these plans is to evaluate the results of the handling of soils, overburden, wastes, and other materials and to evaluate reclamation procedures related to revegetation; and

(xii) the types of major equipment to be used in the above operations.

(i) a description, including appropriate cross-sections and maps, of the measures to be used to seal or manage mine openings, and to plug, case, or manage prospecting holes, other bore holes, wells, and other openings within the proposed permit area in accordance with subchapter 9 and ARM 17.24.1005; and

(j) a narrative explaining reclamation of facilities and sites identified under ARM 17.24.308(1)(b).

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, 82-4-231, 82-4-232, 82-4-233, 82-4-234, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1990 MAR p. 936, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 255, Eff. 2/10/24; AMD, 2025 MAR, 17-451, Eff. 3/29/25.

Mont. Admin. R. 17.24.314 Plan for Protection of the Hydrologic Balance

(1) Each permit application must contain a detailed description, supported by appropriate maps, data, and other graphics, of the measures to be taken during and after the proposed mining activities to minimize disturbance of the hydrologic balance on and off the mine plan area and to prevent material damage to the hydrologic balance outside the permit area in accordance with subchapters 4 through 9. The measures must minimize disturbance of the hydrologic balance sufficiently to sustain the approved postmining land use and the performance standards of subchapters 5 through 12 and must provide protection of:

(a) the quality of surface and ground water systems, within both the proposed mine plan and adjacent areas, from the adverse effects of the proposed strip or underground mine operations;

(b) the rights of present users of surface and ground water; and

(c) the quantity of surface and ground water within both the proposed mine plan area and adjacent areas from adverse effects of the proposed mining activities, or to provide alternative sources of water in accordance with ARM 17.24.304 (1)(e) and (f) and 17.24.648, where the protection of quantity cannot be ensured.

(2) The description must include:

(a) a plan for the control, in accordance with ARM 17.24.631 through 17.24.652, of surface and ground water drainage into, through and out of the proposed mine plan area;

(b) a plan for the treatment, where required, of surface and ground water drainage from the area to be disturbed by the proposed operations, and proposed quantitative limits on pollutants in discharges subject to ARM 17.24.633 or other applicable state or federal laws. The plan must include design specifications, drawings, method of operation and control, and quality of discharge of the treatment facilities;

(c) a plan for the restoration of the approximate recharge capacity of the mine plan area in accordance with ARM 17.24.644; and

(d) plans for monitoring and semi-annual reporting of ground and surface water quality and quantity data collected and analyzed in accordance with ARM 17.24.304(1)(e) and (f), 17.24.645, and 17.24.646.

(3) The application must also include a determination pursuant to (1) and (2) of the probable hydrologic consequences of the proposed mining operation, on the proposed mine plan area and adjacent areas, with respect to the hydrologic balance. This determination must:

(a) be based on appropriate information on environmental resources addressed in ARM 17.24.304 and other relevant information;

(b) list and summarize all probable hydrologic consequences of the proposed mining operation including:

(i) whether adverse impacts may occur to the hydrologic balance;

(ii) whether acid-forming or toxic-forming materials that could result in the contamination of surface or ground water supplies are present;

(iii) whether the proposed operation may proximately result in contamination, diminution or interruption of an underground or surface source of water within the proposed permit or adjacent areas which is used for domestic, agricultural, industrial or other legitimate purpose; and

(iv) what impact the proposed operation will have on:

(A) sediment yields from the disturbed area;

(B) acidity, total suspended and dissolved solids, and other important water quality parameters of local impact;

(D) ground water and surface water availability; and

(E) other characteristics as required by the department; and

(4) Whenever this determination in (3) indicates that adverse impacts to the hydrologic balance on or off the permit area may occur, the department shall require submission of supplemental information to evaluate such impacts and to evaluate plans for remedial and long-term reclamation activities.

(5) The department shall provide an assessment of the cumulative hydrologic impacts of the proposed operation and all anticipated mining upon surface and ground water systems in the cumulative impact area. The cumulative hydrologic impact assessment must be sufficient to determine, for purposes of a permit decision, whether the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area. The department may allow the applicant to submit data and analyses relevant to the cumulative hydrologic impact assessment with the permit application.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.315 Plan for Ponds and Embankments

(1) Each application must include a general plan for each proposed sedimentation pond and water impoundment within the proposed mine plan areas.

(a) Each general plan must:

(i) be prepared by, or under the direction of, and certified by a qualified licensed professional engineer, experienced in designing impoundments;

(ii) contain a description, map, and cross-section of the structure and its location;

(iii) contain preliminary hydrologic and geologic information required to assess the hydrologic impact of the structure;

(iv) contain a survey describing the potential effect on the structure from subsidence of the subsurface strata resulting from past underground mining operations if underground mining has occurred; and

(v) contain a certification statement which includes a schedule setting forth the dates that any detailed design plans for structures that are not submitted with the general plan will be submitted to the department. The department must have approved, in writing, the detailed design plan for a structure before construction of the structure begins.

(b) Each detailed design plan for a structure that meets or exceeds the size or other criteria of the mine safety and health administration, 30 CFR 77.216(a) , or meets the Class B or C criteria for dams in USDA soil conservation service Technical Release No. 60 (210-VI-TR60, October 1985, as revised through January 1991) , "Earth Dams and Reservoirs", (TR-60) must:

(i) be prepared by, or under the direction of, and certified by a qualified licensed professional engineer with assistance from experts in related fields such as geology, surveying, and landscape architecture. The certifying engineer must have experience designing impoundments;

(ii) include any geotechnical investigation, design, and construction requirements for the structure;

(iii) include a stability analysis of the structure. The stability analysis must contain, but not be limited to, strength parameters, pore pressures, and long-term seepage conditions. It must contain a foundation investigation, as well as any necessary laboratory testing of foundation materials, to determine the design requirements necessary to meet and to show that the design will meet the standards of ARM 17.24.639(8) for foundation stability. The plan must also contain a description of each engineering design assumption and calculation with a discussion of each alternative considered in selecting the specific design parameters and construction methods;

(iv) describe the operation and maintenance requirements for each structure; and

(v) describe the timetable and plans to remove each structure, if appropriate.

(c) Technical Release No. 60 (TR-60) is available for inspection at the Department of Environmental Quality, 1520 East 6th Avenue, Helena, MT 59601.

(d) Each detailed design for a structure that does not meet the size or other criteria of 30 CFR 77.216(a) or the criteria for Class B or C dams in TR-60, must:

(i) be prepared by, or under the direction of, and certified by a qualified licensed professional engineer. The certifying engineer must have experience in designing impoundments;

(ii) include any design and construction requirements for the structure, including any required geotechnical information;

(iii) include appropriate information on the foundation conditions of the structure to determine the design requirements necessary to meet and to show that the design will meet the standards of ARM 17.24.639(8) for foundation stability;

(iv) describe the operation and maintenance requirements for each structure; and

(v) describe the timetable and plans to remove each structure, if appropriate.

(2) Sedimentation ponds, whether temporary or permanent, must be designed in compliance with the requirements of ARM 17.24.639. Impoundments meeting the criteria of 30 CFR 77.216(a) , must comply with the requirements of 30 CFR 77.216-1 and 77.216-2, and must be submitted to the mine safety and health administration.

(3) Permanent impoundments must be designed to comply with ARM 17.24.642, and the requirements of the mine safety and health administration, 30 CFR 77.216-1 and 77.216-2.

(4) Dams and reservoirs impounding 50 acre-feet or more either singly or in series within the same watershed, may require a construction and operating permit as required in the Dam Safety Act. For purposes of the Dam Safety Act, capacity is measured to the crest of the dam. Operators must contact the department of natural resources and conservation to determine what requirements must be met.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.316 Strip or Underground Mining Near Underground Mining

(1) For strip or underground mining operations within the proposed permit area to be conducted within 500 feet of an active or abandoned underground mine, the application must describe the measures to be used to comply with 82-4-227(8), MCA, and ARM 17.24.516.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.317 Diversions

(1) Each application must contain descriptions, including maps and cross-sections, of stream channel diversions and other diversions to be constructed within the proposed permit area to achieve compliance with the Act and ARM 17.24.635 through 17.24.637.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.318 Protection of Public Parks and Historic Places

(1) For any public parks, historic places, or other significant cultural resources identified in ARM 17.24.304(2) that may be adversely affected by the proposed operations, each plan must describe the measures to be used to minimize or prevent these impacts, the timing and tracking of these measures relative to the disturbance schedule, and how the applicant will obtain approval of the department and other agencies as required in ARM 17.24.1131.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.319 Relocation or Use of Public Roads

Each application must describe, with appropriate maps and cross-sections or other proof required by the department, the measures to be used to ensure that the interests of the public and landowners affected are protected if, under ARM 17.24.1134 and 17.24.1135, the applicant is seeking approval of:

(1) conducting the proposed mining activities within 100 feet of the right-of-way line of any public road, except where mine access or haul roads join that right-of-way; or

(2) relocating or closure of a public road.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.320 Plans for Disposal of Excess Spoil

(1) Each application must contain descriptions, including appropriate maps and cross-section drawings, of the proposed disposal site and design of the spoil disposal structures according to ARM 17.24.520. These plans must describe the geotechnical investigation, design, construction, operation, maintenance, and removal (if appropriate) of the site and structures in accordance with state and federal statutes and rules (see also 30 CFR 816.71 and 816.73).

(2) Each application must contain the results of a geotechnical investigation of the proposed disposal site, including the following:

(a) the character of bedrock and any adverse geologic conditions in the disposal area;

(b) a survey identifying all springs, seepage and ground water flow observed or anticipated during wet periods in the area of the disposal site;

(d) a technical description of the rock materials to be utilized in the construction of those disposal structures containing rock chimney cores and underlain by a rock drainage blanket; and

(e) a stability analysis including, but not limited to, strength parameters, pore pressures and long-term seepage conditions. These data must be accompanied by a description of all engineering design assumptions and calculations and the alternatives considered in selecting the specific design specifications and methods.

(3) If rock-toe buttresses or key-way cuts are required, the application must include the following:

(a) the number, location, and depth of borings or test pits determined with respect to the size of the spoil disposal structure and subsurface conditions; and

(b) engineering specifications utilized to design the rock-toe buttress or key-way cuts, which must be determined in accordance with (2)(e).

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.321 Transportation Facilities Plan

(1) Each application must contain a description of each road, conveyor, and railroad loop to be constructed, used, or maintained within the proposed permit area. The description must include the following as appropriate for the type of construction:

(a) a map, cross-sections, and specifications for each road including width, gradient, surface, cut, embankment, culvert, bridge, drainage ditch, and drainage structure;

(b) a report of geotechnical analysis, where approval of the department is required for alternative specifications;

(c) a description of measures to be taken to obtain approval of the department for alteration or relocation of a natural drainageway;

(d) a description of measures, other than use of a rock headwall, to be taken to protect the inlet end of a ditch relief culvert for approval by the department under ARM 17.24.605(6);

(e) demonstration of compliance with ARM 17.24.601 through 17.24.603 and 17.24.605;

(f) demonstration of compliance with any design criteria established by the department; and

(g) in accordance with standards of subchapters 5, 6, 7, and 8, a description of measures that will be used to reclaim any roads that will not be reclaimed as part of the reclamation activities of the mine excavations.

(2) Plans for low-water crossings of perennial and intermittent stream channels must be submitted and must demonstrate that protection of such stream channels will be maximized in accordance with ARM 17.24.602, 17.24.631, 17.24.633, 17.24.638, and any other applicable rules.

(3) The plans and drawings for each haul road, access road, conveyor, railroad loop, and low-water crossing of perennial and intermittent streams required under (1) and (2) must be prepared by, or under the direction of, and certified by a qualified licensed professional engineer with experience in the design and construction of such facilities. The certification must state that the designs meet the performance standards of ARM 17.24.601, 17.24.602, 17.24.603, 17.24.605, and current prudent engineering practices.

(4) Ramp roads must be shown and designated on the map(s) required in (1)(a).

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1990 MAR p. 936, Eff. 5/18/90; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 255, Eff. 2/10/24; AMD, 2025 MAR, 17-451, Eff. 3/29/25.

Mont. Admin. R. 17.24.322 Geologic Information and Coal Conservation Plan

(1) An application for a permit to mine coal must include a coal conservation plan to allow determination of whether failure to conserve coal may occur.

(2) The plan must include:

(a) the results of all test borings, evaluations, observations, and analyses, including the following:

(i) a narrative interpretation of the results of all test borings or core samplings conducted on the area to be mined or otherwise affected, including the nature, depth, and thickness of all known strata, overburden, and all coal seams encountered;

(ii) a narrative identifying the total reserves in the permit area along with a description of the method of calculation;

(iii) geologic cross-sections accurately depicting the known geologic makeup beneath the surface of the area to be mined or otherwise affected. The cross-sections must depict the thickness and geological character of all known strata, beginning with the soil and including the stratum immediately below the lowest of all the potentially economically minable coal seams or the stratum containing any aquifer below this seam that may be adversely impacted by mining, whichever is deeper. (See ARM 17.24.304(5) and (7));

(iv) a map showing elevations and locations of test borings and coal sampling;

(v) upon request by the department, isopach maps of overburden, interburden, and all coal seams proposed to be mined;

(vi) an analysis and summary of the chemical properties of all coal seams to be disturbed including the content of sulfur (organic and inorganic) , trace mineral elements, sodium (as Na2O) , moisture, and ash as well as the British thermal unit (BTU) content per pound;

(vii) all coal crop lines and the strike and dip of the coal to be mined within the proposed mine plan area;

(viii) location and extent of known workings of active, inactive, or abandoned underground mines, including mine openings to the surface within the proposed mine plan and adjacent areas; and

(ix) location and extent of existing or previously strip mined areas within the proposed mine plan area;

(b) a description of the location, quantity, and quality of all coal to be left unmined, accompanied by a detailed explanation of the reasons why the coal will not be mined. This explanation must include coal that is to be left unmined in order to comply with the Act as well as that coal which is to be left unmined because of the method of operation or because the coal is not minable or marketable; and

(c) where applicable, a range diagram type drawing showing any coal fenders to be left in place, and a detailed narrative description of the changes in the mine plan that would be necessary to recover the same and any potential effects of such changes.

(3) If it is determined by the department, based on the information provided pursuant to the provisions of (1) and (2) that an operator is or will be mining all of the minable and marketable coal, no further information need be submitted. If, however, the department determines that it needs further information to make a determination, it may require the operator to submit the following:

(a) a description of the type of equipment and operations to be used including, but not limited to:

(i) the prime equipment model, year, size and capacity;

(ii) the initial and depreciated cost of the prime equipment, including all earth moving equipment;

(iii) the capability of the equipment to move earth at a fixed rate;

(iv) the plan for the excavation and placement of overburden materials;

(v) the plan for the removal and transportation of coal; and

(vi) the anticipated plan of mining for a two-year period;

(b) a detailed cost and revenue analysis on a per ton basis of coal mining and market conditions including, at a minimum:

(i) the estimated cost of mining;

(ii) the estimated cost of reclamation;

(iii) the estimated cost of transportation per ton;

(iv) the estimated annual taxes;

(v) the estimated market value of coal to be extracted;

(vi) the estimated total gross yield to be received for coal extracted;

(vii) the estimated mining cost of coal to be left unmined; and

(viii) the estimated market value of coal to be left unmined; and

(4) For an operator with a federal resource recovery and protection plan, the department may review all applicable coal recovery information retained by the bureau of land management, in lieu of or in addition to the information requirements under (3).

(5) Any operator or aggrieved person who believes that the department's decision to either require or not require the submission of the information contained in this rule may petition the board for a public hearing pursuant to the provisions of the Montana Administrative Procedure Act.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.323 Grazing Plan Is Repealed

Publisher status: INEFFECTIVE (not currently effective).

History

Authorizing statute(s): 82-4-204, 82-4-205, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; REP, 2004 MAR p. 2548, Eff. 10/22/04.

Mont. Admin. R. 17.24.324 Prime Farmlands: Special Application Requirements

(1) If land within the proposed permit area is identified as prime farmland under ARM 17.24.306, the applicant shall submit a plan for the mining and restoration of the land. Each plan must contain the following:

(a) the soil survey requirements listed under ARM 17.24.304(11) , and also including:

(i) a description of the mapping unit(s) containing each prime farmland soil;

(ii) the depth and thickness of each of the soil horizons that collectively constitute the root zone of the locally adapted crops; and

(iii) the bulk densities of each soil horizon for each prime farmland soil;

(b) the proposed method and type of equipment to be used for removal, storage, and replacement of the soil in accordance with ARM 17.24.811;

(d) plans for seeding or cropping the final graded disturbed land and the conservation practices to be used to adequately control erosion and sedimentation and to restore an adequate soil moisture regime, during the period from completion of regrading until release of the performance bond. Proper adjustments for seasons must be proposed so that final graded land is not exposed to erosion during seasons when vegetation or conservation practices cannot be established due to weather conditions;

(e) plans that demonstrate that the proposed method of reclamation will achieve vegetation to satisfactorily comply with ARM 17.24.815;

(f) available agricultural school studies or other scientific data for areas with comparable soils, climate, and management (including water management) that demonstrate that the proposed method of reclamation will achieve, within a reasonable time, equivalent or higher levels of yield after disturbance as existed before disturbance;

(g) if the use of other soils or materials is proposed, documentation, such as agricultural school studies or other scientific data from comparable areas, demonstrating that the use of these soils or materials, instead of the A, E, B, or C horizons of the prime farmland soils, can achieve soil productive capacities in accordance with 82-4-232(3)(a) and (b), MCA. Any proposals to use said substitutes must document compliance with ARM 17.24.703, if applicable;

(h) a description of the reference area(s) of prime farmland that lie outside of the area proposed for disturbance but in the vicinity of the proposed mining operation. If reference areas in the vicinity of the mining operation are not present, the applicant shall describe reference areas more distant from the proposed operation. In all cases, reference areas must be selected and used in accordance with ARM 17.24.815(2), in determining revegetative success of disturbed and reclaimed prime farmlands;

(i) if reference areas in accordance with (h) are not found at all, a demonstration as to how a target yield will be utilized in determining revegetation success in accordance with ARM 17.24.815(2); and

(j) vegetative productivity prior to disturbance in accordance with ARM 17.24.304(12)(b)(ii) .

(2) Before any permit is issued for areas that include prime farmlands, the department shall consult with the Montana state office of the U.S. natural resources conservation service.

(3) A permit for the mining and reclamation of prime farmland may be granted by the department, if it first finds, in writing, upon the basis of a complete application, that:

(a) the permit incorporates as specific conditions the contents of the plan submitted under (1) after consideration of any revisions to that plan suggested by the Montana state office of the U.S. natural resources conservation service pursuant to (2);

(b) the applicant has the technological capability to restore the prime farmland, within a reasonable time, to equivalent or higher levels of yield as comparable non-mined prime farmland under equivalent levels of management;

(c) the postmining land use of the affected prime farmland will be cropland, special use pasture, grazing land, or wildlife habitat that is consistent with the restoration of the real or potential productivity of the prime farmland; and

(d) the proposed operations will be conducted in compliance with the applicable requirements of ARM 17.24.811 and 17.24.815 through 17.24.823.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1990 MAR p. 936, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 255, Eff. 2/10/24; AMD, 2025 MAR, 17-451, Eff. 3/29/25.

Mont. Admin. R. 17.24.325 Coal Mining Operations on Areas or Adjacent to Areas Including Alluvial Valley Floors: Special Application Requirements

(1) This rule applies to each applicant who conducts or intends to conduct coal mining and reclamation operations in, adjacent to or under a valley holding a stream in the arid or semi-arid regions.

(2)

(a) Permit applicants who propose to conduct coal mining and reclamation operations within a valley holding a stream or in a location where the proposed permit area or adjacent area includes any stream in the arid or semi-arid region of Montana, may request the department to make an alluvial valley floor determination with respect to that valley floor, as an initial step in the permit application process. The applicant shall demonstrate, and the department shall determine, based on available data, or field studies submitted by the applicant, or a combination thereof, the presence or absence of an alluvial valley floor. Studies must include sufficiently detailed geologic, hydrologic, land use, soils, and vegetation data and data analyses to demonstrate the presence or absence of an alluvial valley floor in the area. The department may require additional data collection and analyses or other supporting documents, maps, and illustrations in order to make the determination. Studies performed during the investigation by the applicant or subsequent studies as required of the applicant by the department, must include an appropriate combination, adapted to site-specific conditions, of:

(i) mapping of unconsolidated streamlaid deposits holding streams including, but not limited to, geologic maps of unconsolidated deposits and streamlaid deposits, maps of streams, delineation of surface watersheds and directions of shallow ground water flows through and into the unconsolidated deposits, topography showing local and regional terrace levels, and topography of terraces, flood plains and channels showing surface drainage patterns;

(ii) mapping of all lands included in the area in accordance with (2) of this rule and subject to agricultural activities, showing the area in which different types of agricultural lands, such as flood irrigated lands, croplands and undeveloped rangelands exist and accompanied by measurements of vegetative productivity and type;

(iii) mapping of all lands that are currently or were historically flood irrigated, showing the location of each diversion structure, ditch, dam and related reservoir, irrigated land, and topography of those lands;

(iv) documentation that areas identified in this subsection are, or are not, subirrigated, based on ground water monitoring data, representative water quality, soil moisture measurements, and measurements of rooting depth, soil mottling, and water requirements of vegetation;

(v) documentation, based on representative sampling, that areas identified in (2) of this rule are, or are not, flood irrigable, based on streamflow water quality, water yield, soils measurements, and topographic characteristics;

(vi) analysis of a series of aerial photographs, including color infrared imagery flown at a time of year to show any late summer and fall differences between upland and valley floor vegetative growth and of a scale adequate for reconnaissance identification of areas that may be alluvial valley floors.

(b) Based on the investigations conducted under (a) above, the department shall make a written determination of the extent of any alluvial valley floors within the study area and whether any stream in the study area may be excluded from further consideration as lying within an alluvial valley floor. The department shall determine that an alluvial valley floor exists if it finds that:

(i) unconsolidated streamlaid deposits holding streams are present; and

(ii) there is sufficient water to support agricultural activities as evidenced by:

(A) the existence of current flood irrigation in the area in question;

(B) the capability of the area to be flood irrigated, based on typical regional agricultural practices, historical flood irrigation, stream-flow, water yield, soils, water quality, and topography; or

(iii) the valley does not meet the definition of upland areas in ARM 17.24.301.

(c) If the department determines in writing that an alluvial valley does not exist pursuant to (b) above, no further consideration of this rule is necessary;

(3)

(a) i) Whenever an alluvial valley floor is identified pursuant to (2)(b) of this rule, and the proposed coal mining operation may affect this alluvial valley floor or waters that supply the alluvial valley floor, the applicant may request the department, as a preliminary step in the permit application process, to separately determine the applicability of the statutory exclusions set forth in (ii) below. The department may make such a determination based on the available data, may require additional data collection and analyses in order to make the determination, or may require the applicant to submit a complete permit application and not make the determination until after the complete application is evaluated.

(ii) An applicant need not submit the information required in (3)(c)(ii)(B) and (C) below, and the department is not required to make the findings of (3)(f)(ii)(A) and (B) below when the department determines that 1 of the following circumstances, heretofore called statutory exclusions, exist:

(A) the premining land type is undeveloped rangeland that is not significant to farming;

(B) any farming on the alluvial valley floor that would be affected by the coal mining operation is of such small acreage as to be of negligible impact on the farm's agricultural production. Negligible impact of the proposed operation on farming is based on the relative importance of the affected vegetation and water of the developed grazed or hayed alluvial valley floor area to the farm's production over the life of the mine; or

(iii) For the purposes of this section, a "farm" is 1 or more land units on which agricultural activities are conducted. Agricultural activities or farming are generally considered to occur on a combination of land units with acreage and boundaries in existence prior to August 3, 1977, or, if established after August 3, 1977, with those boundaries based on enhancement of the farm's agricultural productivity and not related to coal mining operations.

(b) If the department determines that the statutory exclusions are not applicable and that any of the required findings of (3)(f)(ii) below cannot be made, the department may, at the request of the applicant:

(i) determine that mining is precluded on the proposed permit area and deny the permit without the applicant filing any additional information required by this section; or

(ii) prohibit coal mining and reclamation operations in all or parts of the area to be affected by mining.

(c)

(i) If land within the permit area or adjacent area is identified as an alluvial valley floor and the proposed coal mining and reclamation operation may affect an alluvial valley floor or waters supplied to an alluvial valley floor, the applicant shall submit a complete application for the proposed coal mining and reclamation operation to be used by the department together with other relevant information as a basis for approval or denial of the permit. If an exclusion in (3)(a)(ii) above applies, then the applicant need not submit the information required in (3)(c)(ii)(B) and (C) below.

(ii) The complete application must include detailed surveys and baseline data required by the department for a determination of:

(A) the characteristics of the alluvial valley floor that are necessary to preserve the essential hydrologic functions throughout the mining and reclamation process;

(B) whether the operation will avoid during mining and reclamation the interruption, discontinuance, or preclusion of farming on the alluvial valley floor;

(C) whether the operation will cause material damage to the quantity or quality of surface or ground waters that supply the alluvial valley floor;

(D) whether the reclamation plan is in compliance with requirements of the Act, this chapter, and regulatory program; and

(E) whether the proposed monitoring system will provide sufficient information to measure compliance with ARM 17.24.801, 17.24.802, and 17.24.804 through 17.24.806, during and after mining and reclamation operations.

(d) Information required under this section must include, but not be limited to:

(i) geologic data, including geologic structure, surficial geologic maps, and geologic cross-sections;

(ii) soils and vegetation data, including a detailed soil survey and chemical and physical analyses of soils, a vegetation map and narrative descriptions of quantitative and qualitative surveyors, and land use data, including an evaluation of crop yields;

(iii) for surveys and data required under this section (3) for areas designated as alluvial valley floors because of their flood irrigation characteristics, at a minimum, surface hydrologic data, including streamflow, runoff, sediment yield, and water quality analyses describing seasonal variations over at least 1 full year, field geomorphic surveys and other geomorphic studies;

(iv) for surveys and data required under this section (3) for areas designated as alluvial valley floors because of their subirrigation characteristics, at a minimum, geohydrologic data including observation well establishment for purposes of water level measurements, ground water contour maps, testing to determine aquifer characteristics that affect waters supplying the alluvial valley floors, well and spring inventories, and water quality analyses describing seasonal variations over at least 1 full year, and physical and chemical analysis of overburden to determine the effect of the proposed mining operations on water quality and quantity;

(v) plans showing how the operation will avoid, during mining and reclamation, interruption, discontinuance or preclusion of farming on the alluvial valley floors unless the premining land type has been undeveloped rangeland which is not significant to farming and will not materially damage the quantity or quality of water in surface and ground water systems that supply alluvial valley floors;

(vi) maps showing farms and ranches that could be affected by the mining and, if any farm or ranch includes an alluvial valley floor, statements of the type and quantity of agricultural activity performed on the alluvial valley floor and its relationship to the farm or ranch's total agricultural activity including an economic analysis; and

(vii) such other data as the department may require.

(e) The surveys required by this section (3) must identify those geologic, hydrologic, and biologic characteristics of the alluvial valley floor necessary to support the essential hydrologic functions of an alluvial valley floor. Characteristics that support the essential hydrologic functions and that must be evaluated in a complete application include, but are not limited to:

(i) characteristics supporting the function of collecting water which include, but are not limited to:

(A) the amount and rate of runoff and a water balance analysis, with respect to rainfall, evapotranspiration, infiltration and ground water recharge;

(B) the relief, slope, and density of the network of drainage channels;

(C) the infiltration, permeability, porosity and transmissivity of unconsolidated deposits of the valley floor that either constitute the aquifer that is hydraulically connected to the stream or the unsaturated valley fill below the stream and above the alluvial aquifer; and

(D) other factors that affect the interchange of water between surface streams and ground water systems, including the depth to ground water, the direction of ground water flow, the extent to which the stream and associated alluvial ground water aquifers provide recharge to, or are recharged by bedrock aquifers;

(ii) characteristics supporting the function of storing water which include, but are not limited to:

(A) slope, and vegetation of the channel, flood plain, and low terraces that retard the flow of surface waters;

(B) porosity, permeability, waterholding capacity, saturated thickness and volume of aquifers associated with streams, including alluvial aquifers, perched aquifers, and other water bearing zones found beneath the valley floor; and

(C) moisture held in soils or the plant growth medium within the alluvial valley floor, and the physical and chemical properties of the subsoil that provide for sustained vegetation growth or cover during extended periods of low precipitation;

(iii) characteristics supporting the function of regulating the flow of water which include, but are not limited to:

(A) the geometry and physical character of the valley, expressed in terms of the longitudinal profile and slope of the valley and the channel, the sinuosity of the channel, the cross-section, slopes and proportions of the channels, flood plains and low terraces, the nature and stability of the streambanks and the vegetation established in the channels and along the streambanks and flood plains;

(B) the nature of surface flows as shown by the frequency and duration of flows of representative magnitude including low flows and floods; and

(C) the nature of interchange of water between streams, their associated alluvial aquifers and any bedrock aquifers as shown by the rate and amount of water supplied by the stream to associated alluvial and bedrock aquifers (i.e., recharge) and by the rates and amounts of water supplied by aquifers to the stream (i.e., baseflow) ;

(iv) characteristics which make water available and which include, but are not limited to the presence of land forms including flood plains and terraces suitable for agricultural activities.

(f)

(i) The findings of (ii)(A) and (B) below are not required with regard to alluvial valley floors which meet any of the exclusions of (3)(a)(ii) of this rule.

(ii) No permit or permit revision application for coal mining and reclamation operations may be approved by the department unless the application demonstrates in compliance with ARM 17.24.801, 17.24.802, and 17.24.804 through 17.24.806, and all other applicable requirements of the Act and rules and the department finds, in writing, on the basis of information set forth in the application, that:

(A) the proposed operations will not interrupt, discontinue, or preclude farming on an alluvial valley floor;

(B) the proposed operations will not materially damage the quantity or quality of water in surface and underground water systems that supply alluvial valley floors.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1990 MAR p. 936, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.326 Auger Mining: Special Application Requirements

(1) Any application for a permit for operations using auger mining methods must contain, in the mining and reclamation plan, a description of the augering methods to be used and the measures to be used to comply with ARM 17.24.831 through 17.24.833.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.327 Coal Processing Plants and Support Facilities Not Located Within a Mine Permit Area: Special Application Requirements

(1) This rule applies to any person who intends to operate a coal preparation plant, processing plant or support facility not located within a permit area of a specific mine. Any person who intends to operate such a processing plant or support facility shall obtain a permit from the department in accordance with the requirements of this subchapter.

(2) Any application for a permit for operations covered by this rule must contain in the mining and reclamation plan, specific plans, including descriptions, maps, and cross-sections of the construction, operation, maintenance, and removal of the preparation plant, processing plant and associated support facility. The plan must demonstrate that those operations will be conducted in compliance with all applicable rules.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Subchapter 17.24.4 Strip and Underground Mine Reclamation Act: Mine Permit and Test Pit Prospecting Permit Procedures

Mont. Admin. R. 17.24.401 Filing of Application and Notice

(1) An applicant for an operating permit, a test pit prospecting permit, a renewal of an operating permit or test pit prospecting permit, a major revision to an operating permit or test pit prospecting permit, or an amendment (other than an incidental boundary revision) to add acreage to an operating permit or a test pit prospecting permit shall file the application with the department's main office in Helena and, if directed by the department, with the federal coal regulatory authority.

(2) The department shall determine whether an application is administratively complete within 90 days of receipt and shall immediately notify the applicant in writing of its determination. If the department determines an application is not administratively complete, the notice must list the specific items not adequately addressed in the application. Any items not listed in the notice are presumed to be addressed. If the department determines that the application is administratively complete, the notice must also advise the applicant whether an environmental impact statement must be prepared.

(3) Upon receipt of notice of the department's determination of administrative completeness, the applicant shall place an advertisement in a newspaper of general circulation in the locality of the proposed activity at least once a week for four consecutive weeks. The advertisement must contain, at a minimum, the following information:

(a) the name and business address of the applicant;

(b) a map or description, which must:

(i) clearly show or describe towns, rivers, streams, or other bodies of water, local landmarks, and any other information, including routes, streets, or roads and accurate distance measurements, necessary to allow local residents to readily identify the proposed permit area;

(ii) for all applications except major revision applications, clearly show or describe the exact location and boundaries of the proposed permit area and state the acreage of that area; and

(iii) if a map is used, indicate the north point;

(d) the name and address of the department and the fact that written comments, objections, or requests for informal conferences on the application may be submitted by any person with an interest that is or may be adversely affected to the department within 30 days following the last advertisement of the application;

(e) if an applicant seeks a permit to conduct mining operations within 100 feet of the outside right-of-way of a public road or to relocate or close a public road, a concise statement describing the public road, the particular operations within the 100 feet or the particular part to be relocated or closed, where any relocation or closure is to occur, and the duration of the operations or relocation;

(f) if an alternative postmining land use plan is submitted, a brief description of the plan; and

(g) if an extension of time to commence mining is sought, the length of extension applied for. (See ARM 17.24.412.)

(4) For filing and public notice procedures for bond release applications, see ARM 17.24.1112.

(5) Immediately upon issuance of a determination of administrative completeness, the department shall:

(a) issue written notification of:

(i) the applicant's proposed activity and a description of the boundaries and location of the proposed activity;

(ii) the application number;

(iii) where a copy of the application may be inspected;

(iv) the applicant's alternative postmining land use plans, if any; and

(v) the fact that comments or objections to the application and requests for informal conference may be submitted and the address to which they may be submitted.

(b) The written notifications must be sent to:

(i) federal, state and local government agencies with jurisdiction over or an interest in the area of the proposed operations including, but not limited to, general governmental entities, fish and wildlife and historic preservation agencies, the U.S. natural resources conservation service state office, the U.S. army corps of engineers, district engineer, and the national park service;

(ii) governmental planning agencies with jurisdiction to act with regard to land use, air, or water quality planning in the area of the proposed operations;

(iii) sewage and water treatment authorities and water companies, either providing sewage or water services to users in the area of the proposed operations or having water sources or collection, treatment, or distribution facilities located in these areas; and

(iv) the federal or state governmental agencies with authority to issue all other permits and licenses needed by the applicant in connection with operations proposed in the application.

(6) Upon receipt of the department's determination of administrative completeness, the applicant shall make a full copy of the complete application available for the public to inspect and copy by filing a copy of the application with the recorder at the courthouse of the county where the mining is proposed to occur, or, if approved by the department, at another equivalent public office. The department may approve filing at an equivalent public office if it determines that that office will be more accessible to local residents than the county courthouse. The applicant shall file any subsequent revision of the application with the clerk and recorder or other approved public office at the same time the revision is submitted to the department.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, 82-4-226, 82-4-231, 82-4-232, 82-4-233, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.402 Submission of Comments and Written Objections

(1)

(a) The governmental entities specified in ARM 17.24.401(5)(b) may file written comments on applications with the department with respect to the effects of the proposed mining operations on the environment within their areas of responsibility. These comments must be submitted to the department within 30 days of receipt of written notice pursuant to ARM 17.24.401(5).

(b) The department shall immediately transmit a copy of all such comments for filing and public inspection at the public office where the applicant filed a copy of the application under ARM 17.24.401(6). A copy must also be transmitted to the applicant.

(2)

(a) Any person whose interests are or may be adversely affected or an officer or head of any federal, state, or local government agency or authority shall have the right to file written objections to an initial or revised application with the department within 30 days after the last publication of the newspaper notice required in ARM 17.24.401(3).

(b) The department shall, immediately upon receipt of any written objections:

(i) transmit a copy of them to the applicant; and

(ii) file a copy for public inspection in the Helena and Billings offices of the department.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-226, 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.403 Informal Conference

(1) Any person whose interests are or may be adversely affected by the decision on an application submitted pursuant to ARM 17.24.401(1) or the officer or head of any federal, state or local government agency or authority may, in writing, request that the department hold an informal conference on that application. The request must:

(a) briefly summarize the issues to be raised by the requestor at the conference;

(b) state whether the requestor desires to have the conference conducted in the locality of the proposed activity; and

(c) be filed with the department not later than 30 days after the last publication of the newspaper advertisement placed by the applicant under ARM 17.24.401(3).

(2) Except as provided in (3), if an informal conference is requested in accordance with this rule, the department shall hold an informal conference within 30 days following the receipt of the request. The informal conference shall be conducted according to the following:

(a) If requested under (1)(b) it must be held in the locality of the proposed activity.

(b) The department shall advertise the date, time, and location of the informal conference in a newspaper of general circulation in the locality of the proposed activity at least two consecutive weeks prior to the scheduled conference.

(c) If requested, in writing, by a conference requestor in a reasonable time prior to the conference, the department may arrange with the applicant to grant parties to the conference access to the proposed mining area for the purpose of gathering information relevant to the conference.

(d) The conference must be conducted by a representative of the department, who may accept oral or written statements and any other relevant information from any party to the conference. An electronic or stenographic record must be made of the conference proceeding, unless waived by all the parties. The record must be maintained and shall be accessible to the parties of the conference until final release of the applicant's performance bond.

(3) If all parties requesting the informal conference stipulate before the informal conference to withdraw their request, the informal conference need not be held.

(4) The department shall notify the applicant and all parties to the informal conference of its decisions and the reasons therefor within 60 days of the informal conference.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-226, 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.404 Review of Application

(1) The department shall review each administratively complete application, written comments, written objections submitted, and records of any informal conference held and determine the acceptability of the application within 120 days of its determination of administrative completeness. If the applicant significantly modifies the application before the acceptability determination, the department shall conduct a new review, including an administrative completeness determination, public notice, public review, and 120-day review period.

(2)

(a) If the application is not acceptable, the department shall notify the applicant in writing, setting forth the reasons why it is not acceptable. The department may propose modifications, delete areas, or reject the entire application. All items not identified as unacceptable are presumed acceptable.

(b) If the applicant revises the application in response to a notice of unacceptability, the department shall review the revised application and notify the applicant within 120 days of date of receipt, except that if the revision constitutes a significant modification, the department shall conduct a new review, including an administrative completeness determination, public notice, and public review.

(3) If the department determines that the application is acceptable, the department shall:

(a) publish notice of its determination once a week for 2 consecutive weeks in a newspaper of general circulation in the locality of the proposed activity. The notice must state that any person with an interest that is or may be adversely affected may, within 10 days of the second published notice, file written objections or file written objections and request an informal conference within 10 days of the second published notice; and

(b) if a written objection is filed and an informal conference requested, hold an informal conference in the locality of the proposed activity within 20 days of receipt of the request. The department shall notify the applicant and all parties to the informal conference of the decision and the reasons therefor within 10 days of the informal conference.

(4) The department shall determine the adequacy of the fish and wildlife plan submitted pursuant to ARM 17.24.312 in consultation with state and federal fish and wildlife management and conservation agencies having responsibilities for the management and protection of fish and wildlife or their habitats which may be affected or impacted by the proposed strip or underground mining operations.

(5) The department shall assure that:

(a) cultural resource locations remain confidential;

(b) a determination of effect is completed for all listed or eligible cultural resource sites in accordance with 36 CFR 800;

(c) coordination of the review process for cultural resource compliance is carried out in accordance with the provisions of the Archeological Resources Protection Act of 1979 (16 USC 470aa, et seq.), where federal or Indian lands are involved; and

(d) the permit review process is coordinated with applicable requirements of the Endangered Species Act of 1973, as amended (16 USC 1531, et seq.); the Fish and Wildlife Coordination Act, as amended (16 USC 661, et seq.); the Migratory Bird Treaty Act of 1918, as amended (16 USC 703, et seq.); the National Historic Preservation Act of 1966, as amended (16 USC 470, et seq.); and the Bald Eagle Protection Act, as amended (16 USC 469, et seq.).

(6) If the department decides to approve the application, it shall require that the applicant file the performance bond or provide other equivalent guarantee before the permit is issued.

(7)

(a) If, based on available information concerning federal and state failure-to-abate cessation orders, unabated federal and state imminent harm cessation orders, delinquent civil penalties issued pursuant to 30 USC 1268, bond forfeitures where violations upon which the forfeitures were based have not been corrected, delinquent abandoned mine reclamation fees, and unabated violation of federal and state laws, rules, and regulations pertaining to air or water environmental protection incurred in connection with any strip or underground coal mining operation, the department determines that issuance of the permit is prohibited pursuant to 82-4-227(11), MCA, the department may issue the permit only upon a showing that the applicant or person who either owns or controls the applicant or is owned or controlled by the applicant has filed and is presently pursuing, in good faith, a direct administrative or judicial appeal to contest the validity of the violation.

(b) If the initial judicial hearing authority either denies a stay applied for in the appeal or affirms the violation, then any strip or underground coal mining operations being conducted under a permit issued according to this section must be terminated within 30 days of the judicial decision, unless the applicant provides within that period, proof that the violation has been or is in the process of being resolved to the satisfaction of the agency having jurisdiction over the violation.

(8) Any permit that is issued on the basis of proof submitted under 82-4-227(11) , MCA, that a violation is in the process of being corrected, or pending the outcome of an appeal described in (7), must be conditionally issued.

History

Authorizing statute(s): 82-4-205, 82-4-206, MCA
Implementing statute(s): 82-4-226, 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1990 MAR p. 936, Eff. 5/18/90; AMD, 1994 MAR p. 2957, Eff. 11/11/94; AMD, 1995 MAR p. 30, Eff. 1/13/95; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 1999 MAR p. 2768, Eff. 12/3/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.405 Findings and Notice of Decision

(1) The department shall prepare written findings approving or denying an application filed pursuant to ARM 17.24.401(1) in whole or in part no later than 45 days from the date of the acceptability determination except as provided by 75-1-208(4)(b), MCA.

(2) Whenever the department has determined that it must prepare an environmental impact statement prior to a permit decision, the department shall complete the environmental impact statement in accordance with 82-4-231, MCA.

(3) Whenever an informal conference has been held, the department shall give its written findings and notice of decision to the applicant and to each party to the conference, approving, modifying or denying the application in whole, or in part, and stating the specific reasons therefor in the decision.

(4) Whenever no informal conference has been held, the department shall give its written findings and notice of decision to the applicant, approving, modifying or denying the application in whole, or in part, and stating the specific reasons in the decision.

(5) Simultaneously with distribution of the written findings and notice of decision under (3) and (4) , the department shall give a copy of its findings and notice of decision to each person or government official who filed a written objection or comment with respect to the application.

(6) The department may not approve an application submitted pursuant to ARM 17.24.401(1) unless the application affirmatively demonstrates and the department's written findings confirm, on the basis of information set forth in the application or information otherwise available that is compiled by the department, that:

(a) the application is complete and accurate, that the applicant has complied with the Act and rules, and that the applicant has demonstrated reclamation can be accomplished;

(b) the permit area is not within an area being considered for or has not been designated as unsuitable for mining;

(c) the hydrologic consequences and cumulative hydrologic impacts will not result in material damage to the hydrologic balance outside the permit area;

(d) the applicant has paid all reclamation fees from previous and existing operations nationwide;

(e) the operation would not affect the continued existence of endangered or threatened species or result in destruction or adverse modifications of their critical habitats;

(f) the applicant has complied with applicable federal and state cultural resource requirements, including ARM 17.24.318, 17.24.1131 and 17.24.1137;

(g) the applicant has applied for any required air quality and water quality permits;

(h) approval of the application is not prohibited pursuant to 82-4-227(11), MCA, or that, if the applicant has existing violations, the applicant has filed and is presently pursuing, in good faith, a direct administrative or judicial appeal to contest the validity of the violation;

(i) approval of the application is not prohibited pursuant to 82-4-227(12), MCA;

(j) if an alternative postmining land use is proposed, the requirements of ARM 17.24.821 and 17.24.823 have been met;

(k) for mining operations where the private mineral estate to be mined has been severed from the private surface estate, the applicant has submitted the documentation required under ARM 17.24.303;

(l) the applicant proposes to use existing structures in compliance with ARM 17.24.1302; and

(m) if the application is for a remining operation, the permit area is a "previously mined area."

(7)

(a) If the department decides to approve the application, it shall:

(i) require the applicant to date, correct, or indicate that no change has occurred in the information submitted pursuant to ARM 17.24.303(1)(a) through (h) and (k) through (m) ;

(ii) reconsider the decision to approve the application based on the compliance review required by ARM 17.24.404 and 82-4-227 (11), MCA, in light of any new information submitted pursuant to (i); and

(iii) if, after reconsideration pursuant to (ii) , the department determines that permit issuance is not prohibited, require that the applicant file the required performance bond or provide other equivalent guarantee.

(b) Upon submission of bond or guarantee, the department shall grant the permit, revision, or amendment.

History

Authorizing statute(s): 82-4-205, 82-4-206, MCA
Implementing statute(s): 82-4-226, 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1990 MAR p. 936, Eff. 5/18/90; AMD, 1994 MAR p. 2957, Eff. 11/11/94; AMD, 1995 MAR p. 30, Eff. 1/13/95; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 1999 MAR p. 2768, Eff. 12/3/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.406 Improvidently Issued Permits: General Procedures

(1) If the department determines that it has reason to believe it improvidently issued an operating permit, it shall review the circumstances under which the permit was issued, using the criteria in (2) of this rule. If the department finds that the permit was improvidently issued, it shall comply with (3) of this rule.

(2) The department shall find that an operating permit was improvidently issued whenever:

(a) under the violations review criteria of ARM 17.24.404 at the time the permit was issued:

(i) the department should not have issued the permit because of an unabated violation or a delinquent penalty or fee; or

(ii) the permit was issued on the presumption that a notice of violation was in the process of being corrected to the satisfaction of the agency with jurisdiction over the violation, but a cessation order was subsequently issued;

(b) the violation, penalty or fee:

(i) remains unabated or delinquent; and

(ii) is not the subject of a good faith appeal, or of an abatement plan or a payment schedule with which the permittee or other person responsible is complying to the satisfaction of the responsible agency; and

(c) if the permittee was linked to the violation, penalty or fee through ownership or control, under the violations review criteria of ARM 17.24.404 at the time the permit was issued and the ownership or control link between the permittee and the person responsible for the violation, penalty or fee still exists, or where the link was severed the permittee continues to be responsible for the violation, penalty or fee.

(3) Whenever the department finds under (2) of this rule that because of an unabated violation or delinquent penalty or fee that a permit was improvidently issued, it shall impose 1 or more of the following remedial measures:

(a) implementation, with the cooperation of the permittee or other responsible person, and of the responsible agency, of a plan for abatement of the violation or a schedule for payment of the penalty or fee;

(b) imposition on the permit of a condition requiring that in a reasonable period of time the permittee or other person responsible abate the violation or pay the penalty or fee;

(d) if action under (b) or (c) above is unsuccessful, revocation of the permit under ARM 17.24.407.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-205, 82-4-222, 82-4-227, MCA
History: NEW, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.407 Improvidently Issued Permits: Revocation

(1) If the department, pursuant to ARM 17.24.406(3)(d) , elects to revoke an improvidently issued permit, it shall serve on the permittee a notice of proposed suspension and revocation. The notice must include the reasons for the finding under ARM 17.24.406(3) and state that:

(a) after a specified period of time not to exceed 90 days, the permit automatically will become suspended, and not to exceed 90 days thereafter revoked, unless within those periods the permittee submits proof, and the department finds, that:

(i) the finding of the department under ARM 17.24.406(2) was erroneous;

(ii) the permittee or other person responsible has abated the violation on which the finding was based, or paid the penalty or fee, to the satisfaction of the responsible agency;

(iii) the violation, penalty or fee is the subject of a good-faith appeal, or of an abatement plan or payment schedule with which the permittee or other person responsible is complying to the satisfaction of the responsible agency; or

(iv) since the finding was made, the permittee has severed any ownership or control link with the person responsible for, and does not continue to be responsible for, the violation, penalty or fee;

(b) after permit suspension or revocation, the permittee shall cease all coal mining and reclamation operations under the permit, except for violation abatement and for reclamation and other environmental protection measures required by the department; and

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-205, 82-4-222, 82-4-227, MCA
History: NEW, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.412 Extension of Time to Commence Mining

(1) The department shall specifically set forth in the permit any extension of the three-year limitation granted pursuant to 82-4-221(1), MCA.

(2) A request pursuant to 82-4-221(1), MCA, for extension of time to commence mining is subject to the public notice and participation requirements of ARM 17.24.401 through 17.24.403.

(3) The notice must include the items required in ARM 17.24.401(3) and the following:

(a) the permit number;

(b) the grounds for the extension request.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-221, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.413 Conditions of Permit

(1) The following conditions accompany the issuance of each permit:

(a) Except to the extent that the department otherwise directs in the permit that specific actions be taken, the permittee shall conduct all operations as described in the application as approved by the department.

(b) The permittee shall comply with any express conditions which the department places on the permit to ensure compliance with the Act or this rule promulgated pursuant thereto.

(d) Within 30 days after a cessation order is issued under 30 CFR 843.11 or 82-4-251, MCA, for operations conducted under the permit, except where a stay of the cessation order has been granted and remains in effect, the permittee shall either submit to the department the following information, current to the date the cessation order was issued, or notify the department in writing that there has been no change since the immediately preceding submittal of such information:

(i) any new information needed to correct or update the information previously submitted to the department by the permittee under ARM 17.24.303(1)(a) through (h); or

(ii) if not previously submitted, the information required from a permit applicant by ARM 17.24.303(1)(a) through (h).

(e) Except as provided in ARM 17.24.1107, the permittee shall maintain in effect at all times a bond in the amount approved by the department and that, upon failure of the permittee to maintain such bond coverage because of expiration or cancellation of bond, the permit is suspended and the permittee shall cease mining operations until substitute bond is filed with and approved by the department.

(f) a permittee shall immediately notify the department whenever a creditor of the permittee has attached or obtained a judgment against the permittee's equipment or materials in the permit area or on the collateral pledged to the department.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1995 MAR p. 30, Eff. 1/13/95; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.414 Review of Existing Permits

(1) The department shall review each operating permit issued during the term of the permit. This review must occur not later than the middle of the permit term.

(2) After this review, the department may, by order, require reasonable revision or modification of the permit provisions to ensure compliance with the Act and this sub-chapter.

(3) The department shall send a copy of its decision to the permittee.

(4) Any order of the department requiring revision or modification of permits must be based upon written finding and must be subject to the provisions for administrative review provided in ARM 17.24.425.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-237, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.415 Permit Revisions

(1) An application for revision to a permit must be submitted for departmental review:

(a) for any proposed change(s) in the operation as described in the original permit and subsequent revisions thereof; or

(b) when required under ARM 17.24.414.

(2) The operator may not implement the revision before obtaining the department's approval.

(3) An application for major revision:

(a) must comply with subchapter 3, as appropriate;

(b) is subject to the public notice and participation provisions of ARM 17.24.401 through 17.24.405; and

(c) must include submittal of a new or updated probable hydrologic consequence determination, if determined necessary by the department for adequate permit review.

(4) If impacts change, the department shall update the cumulative hydrologic impact assessment.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-221, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.416 Permit Renewal

(1) Applications for renewals of a permit must be made at least 240, but not more than 300 days prior to the expiration date. Renewal applications must be on a form provided by the department, including, at a minimum, the following:

(a) a statement of the name and address of the permittee, the term of the renewal requested, and the permit number;

(b) a proposed newspaper notice and proof of publication of a department-approved newspaper notice pursuant to (2);

(c) evidence that a liability insurance policy or adequate self-insurance will be provided by the applicant for the proposed period of renewal; and

(d) an update of ownership and control information and violation histories in accordance with ARM 17.24.303.

(2) Applications for renewal are subject to the requirements of public notification and participation contained in ARM 17.24.401 through 17.24.405.

(a) If the operations authorized under the original permit were not subject to the standards contained in 82-4-227(3)(b), MCA, because the permittee complied with the exceptions contained in 82-4-227(4), MCA, the portion of the application for renewal of the permit which addresses any new land areas previously identified in the reclamation plan for the original permit is not subject to the standards contained in 82-4-227(3)(b), MCA.

(b) Before finally acting to grant the permit renewal, the department shall require any additional performance bond needed by the permittee to comply with ARM 17.24.1104(1).

(3) No permit renewal may exceed the period of the original permit.

(4) The department shall, upon the basis of application for renewal and completion of all procedures required under this rule, issue a renewal of a permit, unless it is established and written findings by the department are made that:

(a) the terms and conditions of the existing permit are not being satisfactorily met;

(b) the present strip or underground mining operations are not in compliance with the environmental protection standards of the Act or subchapters 5 through 9.

rules adopted pursuant thereto, and the reclamation plan on existing permit areas;

(d) the operator has not provided evidence that:

(i) any performance bond required to be in effect for the operations will continue in full force and effect for the proposed period of renewal, as well as any additional bond the department might require; and

(ii) adequate liability insurance will be provided;

(e) any additional revised or updated information required by the department that has not been provided by the applicant;

(f) the applicant has not agreed to comply with all applicable laws and rules in effect at the time of renewal;

(g) the renewal is prohibited by the denial provisions of 82-4-227, 82-4-234, and 82-4-251, MCA;

(h) the operation has been in a state of temporary cessation for six or more years; or

(i) the department determines, following an eligibility review and determination as described in ARM 17.24.1265, that the owner or operator is not eligible for a permit.

(5) In determining whether to approve or deny a renewal, the burden must be on the opponents of renewal.

(6) The department shall send copies of its decision to the applicant, to any persons who filed objections or comments to the renewal, and to any persons who were parties to any informal conference held on the permit renewal.

(7) Any person having an interest which is or may be adversely affected by the decision of the department has the right to administrative review pursuant to ARM 17.24.425.

(8) An operating permit need not be renewed for a site at which coal extraction, processing, and handling have been completed. Permit expiration does not relieve the operator of the duty to comply with the Act, this subchapter, and the permit and to retain the bond and liability insurance in full force and effect until final bond release.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-221, 82-4-226, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1994 MAR p. 2957, Eff. 11/11/94; AMD, 1995 MAR p. 2263, Eff. 10/27/95; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 1999 MAR p. 2768, Eff. 12/3/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.417 Permit Amendment

(1) Any application to amend the permit by adding acreage, other than an incidental boundary revision, is subject to the same application, notice, and hearing requirements as an application for a new permit as required by 82-4-225, MCA.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-225, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.418 Transfer of Permits

(1) No transfer or assignment of any permit may be made without the prior written approval of the department.

(2) The department may not approve any transfer or assignment of any permit unless the potential transferee or assignee:

(a) obtains the performance bond coverage of the original permittee by:

(i) obtaining transfer of the original bond;

(ii) obtaining a written agreement with the original permittee and all subsequent successors in interest (if any) that the bond posted by the original permittee and all successors shall continue in force on all areas affected by the original permittee and all successors, and supplementing such previous bonding with such additional bond as may be required by the department. If such an agreement is reached, the department may authorize for each previous successor and the original permittee the release of any remaining amount of bond in excess of that required by the agreement; or

(iii) providing sufficient bond to cover the original permit in its entirety from inception to completion of reclamation operations; and

(b) provides the department with an application for approval of such proposed transfer, assignment, or sale, including:

(i) the name and address of the existing permittee;

(ii) the name and address of the person proposing to succeed by such transfer, assignment, or sale and the name and address of that person's resident agent and a brief description of the proposed transaction; and

(iii) the same information as is required in ARM 17.24.303 for applications for new permits.

(3)

(a) The applicant for transfer, assignment or sale of rights granted by a permit shall advertise the filing of the application in a newspaper of general circulation in the locality of the operations involved, indicating the name and address of the applicant, the original permittee, the number and particular geographic location of the permit, the address of the department, and a statement that written comments may be sent to the department within 15 days of publication of the notice.

(b) Any person may submit written comments on the application for approval to the department within 15 days of the publication of the newspaper notice described above.

(4) The department may, upon the basis of the applicant's compliance with the requirements of (1) through (3), grant written approval for the transfer, sale, or assignment of rights under a permit, if it first finds, in writing, that:

(a) the person seeking approval is qualified under the Act and ARM 17.24.405 to receive a permit and will conduct the operations covered by the permit in accordance with the Act and the rules adopted pursuant thereto;

(b) the applicant has submitted a performance bond at least equivalent to the bond or other guarantee of the original permittee; and

(c) the applicant will continue to conduct the operations involved in full compliance with the terms and conditions of the original permit.

(5)

(a) The department shall notify the permittee, successors, commentors, and the federal coal regulatory authority of its findings and publish a summary of the decision in a newspaper of general circulation in the locality of the permit area.

(b) The successor shall immediately provide notice to the department of the consummation of the transfer, assignment, or sale of permit rights. Upon receipt of this notice, the department shall release the original permittee from all obligations not retained under (2).

(6) Any successor in interest seeking to change the boundaries of its operations or any of the terms or conditions of the original permit must:

(a) make application for a permit amendment if the change involves conducting operations outside the original permit area; or

(b) make application for permit revision if the change does not involve conducting operations outside the original permit area.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-238, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.425 Administrative Review

(1) Within 30 days after the applicant or permittee is notified of the final decision of the department concerning the application submitted pursuant to ARM 17.24.401, or an application for transfer, sale, or assignment of rights, the applicant, permittee, landowner, or any person with an interest which is or may be adversely affected may submit a written request for a hearing on the reasons for the final decision. The request must contain the grounds upon which the requester contends the decision is in error.

(2) The board shall commence the hearing within 30 days of such request. For the purposes of the hearing, the board or its hearing officer may order a site inspection. The hearing is a contested case hearing and no person who presided at an informal conference shall either preside at this hearing or participate in the decision thereon.

(3) The board may, under such conditions as it may prescribe, grant such temporary relief as it deems appropriate, pending final determination of the proceeding, if:

(a) all parties to the proceeding have been notified and given an opportunity to be heard on a request for temporary relief;

(b) the person requesting that relief shows that there is a substantial likelihood that he or she will prevail on the merits of the final determination of the proceeding; and

(c) the relief will not adversely affect the public health or safety, or cause significant, imminent environmental harm to land, air, or water resources; and

(d) the relief sought is not the issuance of a permit where a permit has been denied, in whole or in part, by the department.

(4) A verbatim record of each public hearing shall be made and a transcript made available on the motion of any party or order of the hearing officer.

(5) Ex parte contacts between representatives of the parties before the hearing examiner and the hearing examiner are prohibited.

(6) Within 20 days after the close of the record, the board shall issue and furnish the applicant and each person who participated in the hearing with the written findings of fact, conclusions of law, and order of the department with respect to the appeal.

(7) The burden of proof at such hearing is on the party seeking to reverse the decision of the department.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-206, 82-4-221, 82-4-226, 82-4-231, 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.426 Records Retention

(1) Copies of all records, reports, maps, or other documents submitted to or generated by the department under the Act and rules must be made available to the public for at least five years after bond release and must be disposed of in accordance with Title 2, chapter 6, MCA, and supporting policy and procedures. Superseded application materials, withdrawn applications, and outdated maps which are not needed for the purpose of bond release application evaluation are not subject to these provisions.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, 82-4-232, MCA
History: NEW, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.427 Change of Contractor

(1) The permittee shall notify the department of a proposed new contractor or any proposed change in a contractor responsible for day-to-day operations at a permit area. When such a change is proposed without transfer of the permit pursuant to ARM 17.24.418, the permittee shall submit the following to the department:

(a) information required under ARM 17.24.303 for the contractor;

(b) a statement acknowledging that the permittee is not relieved of any compliance responsibilities under the Act; and

(2) The contractor may not conduct any activities on the permit area unless and until the department determines that the information submitted under (1) is acceptable and satisfies the requirements of ARM 17.24.303.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, 82-4-227, 82-4-238, 82-4-251, MCA
History: NEW, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Subchapter 17.24.5 Strip and Underground Mine Reclamation Act: Backfilling and Grading Requirements

Mont. Admin. R. 17.24.501 General Backfilling and Grading Requirements

(1) Backfilling and grading of the disturbed area must be completed prior to removal of necessary reclamation equipment from the area of operation.

(2) Overburden and parting materials which are not conducive to revegetation techniques, establishment, and growth must not be left on the top nor within eight feet of the top of regraded spoils nor at the surface of any other affected areas, unless the applicant demonstrates to the department's satisfaction that a lesser depth will provide for reclamation consistent with the Act. The department may require that problem materials be placed at a greater depth.

(3)

(a) Backfilled material must be placed to minimize erosion and sedimentation of undisturbed and reclaimed areas both on and offsite, water pollution, adverse effects on ground water, other offsite effects, and to support the approved postmining land use.

(b) Backfilled materials must be selectively placed and compacted wherever necessary to prevent leaching of acid, acid-forming toxic, or toxic-forming materials into surface or subsurface waters and wherever necessary to ensure the stability of the backfilled materials. The method and design specifications for placing and compacting such materials must be approved by the department.

(4) All final grading on the area of land affected must be to the approximate original contour of the land in accordance with 82-4-232(1), MCA.

(a) The operator shall transport, backfill, and compact to ensure compliance with (3)(b) and ARM 17.24.505, and grade all spoil material as necessary to achieve the approximate original contour. Highwalls must be reduced or backfilled in compliance with ARM 17.24.515(1), or reclaimed using approved highwall reduction alternatives in compliance with ARM 17.24.515(2).

(b) Cut-and-fill terraces may be used only in those situations expressly identified in and in compliance with ARM 17.24.502.

(d) Depressions must be eliminated, except as provided in ARM 17.24.503(1).

(5) The disturbed area must be blended with surrounding and undisturbed ground to provide a smooth transition in topography.

(6) Backfilling and grading must be kept current with mining operations. To be considered current, backfilling and grading must meet the following requirements, unless otherwise approved by the department upon adequate written justification and documentation provided by the operator:

(a) On lands affected by area strip mining, there must not be more than four consecutive spoil ridges present in any location.

(b) Backfilling and grading must be completed within two years after coal removal from each pit has been concluded. For the purpose of this provision, "each pit" means any continuous dragline pass within a particular permit area.

(c) Backfilling and grading of other excavations must be kept current as departmental directives dictate for each set of field circumstances.

(d) All backfilling and grading must achieve the approved postmining topography.

(7) The operator shall notify the department, in writing, upon detection of grading problems that would result in topography not consistent with the approved postmine topography.

History

Authorizing statute(s): 82-4-205, 82-4-231, MCA
Implementing statute(s): 82-4-231, 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1990 MAR p. 936, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.501A FINAL GRADING REQUIREMENTS IS (REPEALED)

Publisher status: INEFFECTIVE (not currently effective).

17.24.501A FINAL GRADING REQUIREMENTS IS REPEALED

History

Authorizing statute(s): 82-4-204, MCA
Implementing statute(s): 82-4-231, 82-4-232, 82-4-234, MCA
History: NEW, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; REP, 1999 MAR p. 811, Eff. 4/23/99.

Mont. Admin. R. 17.24.502 Cut-and-Fill Terraces

On approval by the department, in order to conserve soil moisture, ensure stability, and control erosion on final graded slopes, cut-and-fill terraces may be allowed if the terraces are compatible with the approved postmining land use and are appropriate substitutes for construction of lower grades on the reclaimed lands. The terraces must meet the following requirements:

(1) The width of the individual terrace bench may not exceed 20 feet, unless specifically approved by the department as necessary for stability, erosion control, or roads included in the approved postmining land use plan.

(2) The vertical distance between terraces must be as specified by the department to prevent excessive erosion and to provide long-term stability.

(3) The slope of the terrace outslopes may not exceed 1v:5h (20%). Outslopes that exceed 1v:5h may be approved, if they have a minimum safety factor of more than 1.3 for any condition of load likely to be encountered, provide adequate control over erosion, and closely resemble the surface configuration of the land prior to mining. In no case may highwalls be left as part of terraces.

(4) Culverts and underground rock drains must be used in the terrace only when approved by the department.

(5) Terraces must be installed in such a way so as not to prohibit vehicular access or revegetation procedures.

(6) Additional surface manipulation procedures must be installed as required by the department.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.503 Small Depressions

(1) The requirement to achieve approximate original contour does not prohibit construction of small depressions if they are approved by the department to minimize erosion, conserve soil moisture, or promote vegetation or wildlife use. These depressions must be compatible with the approved postmining land use and may not restrict normal access throughout the area or constitute a hazard. Large, permanent impoundments are governed by ARM 17.24.504 and 17.24.642.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.504 Permanent Impoundments

(1) Permanent impoundments meeting the requirements of ARM 17.24.642 may be retained in mined and reclaimed areas, provided all highwalls are eliminated by grading to appropriate contours and the provisions for postmining land use and protection of the hydrologic balance are met. No impoundments may be constructed on top of areas in which excess materials are deposited pursuant to the provisions of ARM 17.24.520.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.505 Burial and Treatment of Exposed Mineral Seams and Waste Materials

(1) All exposed mineral seams remaining after mining must be covered with a minimum of 4 feet of the best available non-toxic and non-combustible material, unless otherwise approved by the department upon demonstration by the operator that a lesser cover depth will afford the same protection against combustion and other undesirable properties or effects of the mineral seam.

(2) Acid, acid-forming, toxic, toxic-forming, combustible, or other undesirable waste materials or fly ash identified by the department that are exposed, used, or produced during mining or mineral preparation must be covered in accordance with ARM 17.24.501(2) with the best available nontoxic and noncombustible material. The method and site of final disposal must be approved by the department. If necessary, these materials must be tested to determine necessary mitigations to neutralize acidity, to nullify toxicity, to prevent water pollution and sustained combustion, or to minimize adverse effects on plant growth and land uses. If necessary to protect against upward migration of salts or exposure by erosion, to provide an adequate depth for plant growth or to otherwise meet local conditions, the department may specify thicker amounts of cover using non-combustible and non-toxic material or the use of special compaction and isolation techniques to prevent contact of these materials with ground water. Acid, acid-forming, toxic, toxic-forming or other deleterious materials must not be buried or stored in proximity to a drainage course so as to cause or pose a threat of water pollution.

(3) Wastes must not be used in the construction of embankments for impoundments.

(4) Wastes from a strip mine may not be disposed of in a waste disposal structure that is located on the surface of the ground.

(5) Whenever waste is temporarily impounded:

(a) the impoundment must be designed and certified, constructed, and maintained:

(i) in accordance with ARM 17.24.603, 17.24.639, and 17.24.642, using current prudent-design standards; and

(ii) for structures meeting the criteria of 30 CFR 77.216(a) , to safely discharge the 6-hour, probable maximum precipitation (PMP) or greater event;

(b) the impoundment must be designed, and when operational must be managed, so that at least 90% of the water stored during the design precipitation event can be and is removed within the 10-day period following the event;

(c) spillways and outlet works for coal impounding structures must be designed to provide adequate protection against erosion and corrosion;

(d) inlets must be protected against blockage; and

(e) the impoundment may not include acid, acid-forming, toxic, or toxic-forming waste.

(6) Coal waste impoundments must not be retained as a part of the approved postmining land use.

(7) If any examination or inspection discloses that a potential hazard exists at a waste disposal site, including a temporary waste impoundment, the department must be informed promptly of the finding and of the emergency procedures formulated for public protection and remedial action. If adequate procedures cannot be formulated or implemented, the department must be notified immediately. The department shall then notify the appropriate agencies that other emergency procedures are required to protect the public.

(8) Wastes may be disposed of in underground mine workings, but only in accordance with a plan approved by the department and mine safety and health administration under ARM 17.24.901(1)(e) through (g), and (2).

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.507 Storage and Final Disposal of Garbage and Other Debris

(1) Garbage and other debris including, but not limited to, grease, lubricants, paints, flammable liquids, trash, abandoned mining machinery, lumber and other combustibles generated during mining activities must be placed and stored or disposed of in a controlled manner in a designated portion of the permit area.

(a) Placement, storage, and disposal must ensure that leachate and surface runoff do not degrade surface or ground water, that fires are prevented and that the area remains stable and suitable for reclamation and revegetation compatible with the natural surroundings.

(b) All disposal sites must be routinely compacted, and suitable earth materials must be placed over garbage and other debris to a thickness in accordance with ARM 17.24.501(2).

(2) At no time may any garbage or other debris be deposited at impoundment sites, nor may any excavation for solid garbage or debris disposal be located within 8 feet of any coal outcrop or coal storage area.

(3) Municipal garbage may not be deposited within a permit area unless compliance with this rule and ARM 17.24.510 is demonstrated.

(4) Notwithstanding any provision of this subchapter, any garbage or other debris meeting the definition of "hazardous" as found in section 3001 of PL 94-580, as amended, must be handled in accordance with PL 94-580 and regulations adopted thereunder.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.510 Disposal of Offsite-Generated Waste and Fly Ash

(1) Before waste materials or fly ash from a coal preparation or conversion facility or from other activities conducted outside the permit area such as municipal waste collection may be used for fill material or other purpose or disposed of on the mine site, the permittee shall demonstrate to the department by hydrogeological means, chemical and physical analyses, and the disposal procedures that use and disposal of these materials will be conducted in accordance with ARM 17.24.505, 17.24.631, 17.24.643, 17.24.702, 17.24.711, and any other applicable provision of the Act and pursuant rules, will not adversely affect water quality, public health or safety, or other environmental resources, and will not cause instability in the backfilled area. The operator may not use such waste or fly ash for fill or other purpose or dispose of such material on the permit area without prior approval by the department.

(2) Notwithstanding any provision of this subchapter, any waste materials meeting the definition of "hazardous" as found in section 3001 of PL 94-580, as amended, must be handled in accordance with PL 94-580 and regulations adopted thereunder.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.514 Contouring Is Repealed

Publisher status: INEFFECTIVE (not currently effective).

History

Authorizing statute(s): 82-4-204, MCA
Implementing statute(s): 82-4-231, 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; REP, 1999 MAR p. 811, Eff. 4/23/99.

Mont. Admin. R. 17.24.515 Highwall Reduction

(1) Highwalls must be eliminated and the reduced highwall slope must be no greater than whatever slope is necessary to achieve a minimum long-term static safety factor of 1.3. The department may specify a lesser slope whenever necessary to achieve postmining slope stability. Highwall reduction must be commenced at or beyond the top of the highwall and sloped to the graded spoil bank.

(2) Highwall reduction alternatives may be permitted only to replace bluff features that existed before mining and where the department determines that:

(a) postmining bluffs are compatible with the proposed postmining land use;

(b) postmining bluffs are stable, achieving a minimum long-term static safety factor of 1.3;

(d) the horizontal linear extent of postmining bluffs does not exceed that of the premining condition; and

(e) highwalls will be backfilled to the extent that the uppermost mineable coal seam is buried in accordance with ARM 17.24.505(1).

History

Authorizing statute(s): 82-4-205, 82-4-231, MCA
Implementing statute(s): 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.516 Adjacent Strip and Underground Mining Operations

(1) An operator who conducts a strip or underground mining operation adjacent to any active or abandoned underground mining operation, must comply with the following:

(a) A 500-foot barrier pillar of coal must be maintained between the strip and underground mining operations in any one seam. The department, the mine safety and health administration, and the Montana division of worker's compensation of the department of labor and industry, however, may approve a lesser distance after a finding by the department that mining at a lesser distance will result in:

(i) improved coal resources recovery;

(ii) abatement of water pollution; or

(iii) elimination of hazards to the health and safety of the public.

(b) The vertical distance between strip and underground mining operations working separate seams must be sufficient to provide for the health and safety of the workers and to prevent surface water from entering the underground workings.

(2) The operator must also comply with ARM 17.24.632.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.517 Slides and Other Damage

(1) An undisturbed natural barrier, as approved by the department, must be provided beginning at the elevation of the lowest coal seam to be mined and extending from the outslope for such distance as may be determined by the department as is needed to assure stability. The barrier must be retained in place as needed to prevent slides and erosion.

(2) Whenever a slide that may have a potential adverse effect on public property, health, safety, or the environment occurs, the person who conducts the strip or underground mining activities shall notify the department by the fastest available means and comply with any remedial measures required by the department.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.518 Buffer Zones

(1) All mining activities, including highwall reduction and related reclamation, must cease at least 100 feet from a property line, permanent structure, unmineable or unreclaimable steep or precipitous terrain, or any area determined by the department to be of unique scenic, historical, cultural, or other unique value. If special values or problems are encountered, the department may modify buffer zone requirements.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 2768, Eff. 12/3/99; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.519 Monitoring for Settlement

(1) The department may require the operator to monitor settling of regraded areas. The results of these studies may be used to alter reclamation, spoiling and grading techniques to alleviate uneven settling problems on future areas to be mined.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; TRANS, from DSL, 1996 MAR p. 3042.

Mont. Admin. R. 17.24.519A THICK OVERBURDEN AND EXCESS SPOIL (REPEALED)

Publisher status: INEFFECTIVE (not currently effective).

17.24.519A THICK OVERBURDEN AND EXCESS SPOIL

IS REPEALED

History

Authorizing statute(s): 82-4-204, MCA
Implementing statute(s): 82-4-231, 82-4-232, MCA
History: NEW, 1989 MAR p. 399, Eff. 1/13/89; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; REP, 1999 MAR p. 811, Eff. 4/23/99.

Mont. Admin. R. 17.24.520 Thick Overburden and Disposal of Excess Spoil

(1) Thick overburden occurs where the final spoil thickness exceeds 1.2 times the sum of the overburden thickness and mineral thickness for the entire area to be mined in the permit area. Final spoil thickness is the product of the overburden thickness times the swell factor, which is also to be determined for the entire area to be mined in the permit area.

(2) Where thick overburden is encountered, and if the operator wishes to dispose of excess spoil outside of the mined area, the operator shall demonstrate that the volume of spoil and available waste materials is more than sufficient to restore the disturbed area to the approximate original contour. In this case, highwall elimination must be achieved by backfilling with spoils and waste materials. Any excess spoil material must be disposed of in accordance with the requirements of this rule as well as all other rules.

(3) Spoil not required to achieve the approximate original contour may be transported to and placed in a controlled (engineered) manner in a disposal area other than the mine workings or excavations. All of the following conditions, in addition to the other requirements of the Act and this subchapter, must be met:

(a) The disposal area must be within the permit area, and it must be approved by the department as suitable for construction of fills and for reclamation and revegetation compatible with the natural surroundings.

(b) The disposal area must be located on the most moderately sloping and naturally stable areas available as approved by the department. Fill materials suitable for disposal must be placed upon or above a natural terrace, bench, or berm if such placement provides additional stability and prevents mass movement.

(c) The fill must be designed using recognized professional standards, certified by a licensed professional engineer, experienced in the design of earth and rock fills, to ensure stability and meet other applicable requirements of this subchapter, and approved by the department.

(d) Leachate and surface runoff from the fill must not degrade surface or ground waters or exceed the effluent limitations of ARM 17.24.633.

(e) The disposal area must not contain springs, natural water courses, or wet weather seeps unless lateral drains are constructed from the wet areas to excess spoil underdrains in such a manner that infiltration of the water into the spoil pile will be prevented.

(f) Underdrains must consist of durable rock or pipe, be designed and constructed using current, prudent engineering practices, and approved by the department. The underdrain system must be designed to carry the anticipated seepage of water due to rainfall away from the excess spoil fill and from seeps and springs in the foundation of the disposal area and must be protected from piping and contamination by an adequate filter. Rock underdrains must be constructed of durable, nonacid-, nontoxic-forming rock (e.g., natural sand and gravel, sandstone, limestone, or other durable rock) that does not slake in water or degrade to soil-like material, and which is free of coal, clay or other nondurable material. Perforated pipe underdrains must be corrosion resistant and must have characteristics consistent with the long-term life of the fill.

(g) All organic material must be removed from the disposal area, and the soil must be removed, segregated, and redistributed or stockpiled according to the provisions of ARM 17.24.701 through 17.24.703, before the excess spoil material is placed in the disposal area. However, if approved by the department, organic material may be used as mulch or may be included in the soil.

(h) Slope protection must be provided to minimize surface erosion at the site. Diversion design must conform with the requirements of ARM 17.24.635 through 17.24.637. All disturbed areas, including diversion ditches that are not riprapped, must be vegetated upon completion of construction.

(i) The spoil must be transported and placed in a controlled manner, in horizontal lifts not exceeding four feet in thickness, concurrently compacted as necessary to ensure mass stability and prevent mass movement, covered, and graded to allow surface and subsurface drainage to be compatible with the natural surroundings and to ensure a long-term static safety factor of 1.5. Horizontal lifts exceeding four feet in thickness may be allowed if the design ensures stability, is certified by a licensed professional engineer, and is approved by the department. The final configuration of the fill must be suitable for postmining land uses except that no depressions or impoundments may be allowed on the completed fill. Terraces must not be constructed unless approved by the department to prevent erosion and ensure stability.

(j) The fill must be inspected for stability at least quarterly by the licensed engineer or other qualified professional specialist under the direction of a licensed engineer. The engineer or specialist must be experienced in the construction of similar earth and water structures. The above-described inspections must be made during critical construction periods to assure removal of all organic material and soil, placement of underdrainage and surface drainage systems, and proper placement and compaction of fill materials, and revegetation. The permittee shall provide a report by the licensed engineer or other qualified professional specialist within two weeks after each inspection. The report must certify that the fill has been constructed as specified in the design approved by the department. A copy of the report must be retained at the mine site.

(i) "Critical construction periods" include, at a minimum:

(A) foundation preparation, including the removal of all organic material and soil;

(B) placement of underdrains and protective filter systems;

(D) the final graded and revegetated fill. Regular inspections by the engineer or specialist must also be conducted during placement and compaction of fill materials.

(ii) The qualified licensed professional engineer shall promptly provide to the department a certified report discussing whether the fill has been constructed and maintained as designed and in accordance with the approved plan and this subchapter. The report must address indications of instability, structural weakness, and other hazardous conditions.

(iii)

(A) The certified report on the drainage system and protective filters must include color photographs taken during and after construction, but before underdrains are covered with excess spoil. If the underdrain system is constructed in phases, each phase must be certified separately.

(B) Whenever excess durable rock spoil is placed in single or multiple lifts such that the underdrain system is constructed simultaneously with excess spoil placement by the natural segregation of dumped materials, in accordance with (3)(j)(iv) , color photographs of the underdrain must be taken as the underdrain system is being formed.

(C) The photographs accompanying each certified report must be taken in adequate size and number with enough terrain or other physical features of the site shown to provide a relative scale to the photographs and to specifically and clearly identify the site.

(iv) The department may approve the alternative method of disposal of excess durable rock spoil by gravity placement in single or multiple lifts, whenever the following additional conditions are met:

(A) the excess spoil must consist of at least 80% nontoxic-forming rock that does not slake in water and will not degrade to unconsolidated soil-like material. Whenever used, noncemented clay shale, clay spoil, unconsolidated or other nondurable excess spoil materials must be mixed with excess durable rock spoil in a controlled manner so that no more than 20% of the fill volume, as determined by tests performed by a licensed engineer and approved by the department, is not durable rock;

(B) an earthquake safety factor of at least 1.1 must be used; and

(C) surface water runoff from areas adjacent to and above the fill must not be allowed to flow onto the fill and must be diverted into stabilized diversion channels designed to meet the requirements of ARM 17.24.635 and 17.24.637 and to safely pass the runoff from a 100-year, 24-hour precipitation event.

(k) Coal mine wastes and coal processing wastes may not be disposed of in excess spoil fills and may be disposed of in the mine excavations only upon the prior approval of the department. See ARM 17.24.505 and 17.24.510.

(l) The foundation and abutments of the fill must be stable under all conditions of construction and operation. Sufficient foundation investigation and laboratory testing of foundation materials must include the effect of underground mine workings, if any, upon the stability of the structure.

(m) Excess spoil, coal mine wastes and coal processing wastes may be returned to underground mine workings, but only in accordance with a disposal program approved by the department and the mine safety and health administration upon the basis of a plan submitted under ARM 17.24.901(1)(b), 17.24.920, 17.24.924(1), 17.24.930, and 17.24.932(1).

(n) Excess spoil must not be disposed of in valley fills or head-of-hollow fills.

(o) To achieve approximate original contour, the department may require that a spoil pile, or part thereof, be retained in an unreclaimed condition to be returned to the mine workings at a later date.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1990 MAR p. 936, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 1999 MAR p. 2768, Eff. 12/3/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.521 Temporary Cessation of Operations

(1) Each operator shall effectively secure surface facilities in areas in which there are no current operations, but in which operations are to be resumed under an approved permit. Temporary cessation does not relieve an operator of his obligation to comply with the provisions of the approved permit.

(2) Before temporary cessation of mining and reclamation operations extends for a period of 30 days or more, or as soon as it is known that a temporary cessation will extend beyond 30 days, an operator shall submit to the department a notice of intention to temporarily cease mining and reclamation operations. This notice must include a statement of the exact number of acres that will have been affected in the permit area, prior to such temporary cessation; the extent and kind of reclamation of those areas that will have been accomplished; and identification of the backfilling, regrading, revegetation, environmental monitoring, and water treatment activities that will continue during the temporary cessation.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.522 Permanent Cessation of Operations

(1) An operator who permanently ceases strip or underground mining operations in all or part of the permit area, shall close or backfill and otherwise permanently reclaim all affected areas, in accordance with the Act, rules adopted thereunder, and the permit as approved by the department. This must occur regardless of whether the permit has expired, or has been revoked or suspended.

(2) All surface and underground openings, equipment, structures, or other facilities not required for monitoring, unless approved by the department as suitable for the postmining land use or environmental monitoring, must be removed and the affected land reclaimed.

(3) Equipment needed for reclamation may not be removed from the mine until reclamation is complete.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1990 MAR p. 936, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.523 Coal Fires and Coal Conservation

(1) Coal fires in coal processing wastes, storage piles and bins, or unmined or waste coal in mine pits must be extinguished by the operator in accordance with a plan approved by the department and the mine safety and health administration. The plan must contain, at a minimum, provisions to ensure that only those persons authorized by the operator and who have an understanding of the procedures to be used are involved in the extinguishing operations.

(2) Strip or underground mining operation must be conducted to prevent failure to conserve coal, utilizing the best technology currently available to maintain appropriate environmental protection. The operator shall adhere to the approved coal conservation plan required in ARM 17.24.322.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.524 Signs and Markers

(1) All signs required to be posted by the operator must be of a standard design throughout the operation that can be seen and read easily and must be made of durable material. Signs must not be placed where their visibility is reduced by parked vehicles, splashed mud, or other causes. The signs and other markers must be maintained during all operations to which they pertain and must conform to local ordinances and codes, where applicable.

(2) Signs identifying the mine area must be displayed at all points of access to the permit area from public roads and highways. Signs must show the name, business address and telephone number of the permittee, identification numbers of current mining and reclamation permits and the mine safety and health administration identification number for the site, and, where the operation is conducted for the permittee by a contractor, the name, business address and telephone number of the person who conducts the mining activities. Such signs must not be removed until after release of all bonds.

(3) The perimeter of the permit area must be clearly marked by durable and easily recognized markers or by other means approved by the department. Each marker must be visible from each adjacent marker, or markers must be joined by fencing or other durable means approved by the department. Such markers must be designed so that their visibility will not be reduced in general by operation of equipment, weather effects, and other normally occurring effects. The markers must be in place before the start of any mining activities.

(4) Buffer zones as defined in ARM 17.24.518 may or may not be included within the permit area. If included within the permit area, the boundaries of buffer zones must be marked separately and distinctly from perimeter markers wherever the boundaries of both do not coincide. Wherever the boundaries do coincide, only perimeter markers are necessary as described in (3).

(5) If blasting is necessary to conduct surface coal mining operations, signs reading "Blasting Area" must be displayed conspicuously along the edge of any blasting area that comes within 50 feet of any road within the permit area, or within 100 feet of any public road right-of-way. The operator shall also:

(a) conspicuously flag, or post within the blasting area, the immediate vicinity of charged holes; and

(b) place at all entrances to the permit area from public roads or highways conspicuous signs that state "Warning! Explosives in Use", and that clearly explain the blast warning and all clear signals in use and explain the marking of blast areas.

(6) Where soil or other vegetation-supporting material is segregated and stockpiled, the stockpiled materials must be clearly marked. Markers must remain in place until the material is removed.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Subchapter 17.24.6 Strip and Underground Mine Reclamation Act: Transportation Facilities, Use of Explosives, and Hydrology

Mont. Admin. R. 17.24.601 General Requirements for Road and Railroad Loop Construction

(1) Roads through permitted areas must not delay or prevent recontouring and revegetation on immediately adjacent spoils, unless otherwise approved by the department for documented and justified reasons related to the needs of the mining operation or improved reclamation.

(2) Access and haul roads must be graded, constructed, and maintained according to sound engineering and construction practices to incorporate appropriate limits for grade, width, surface material, surface-drainage control, culvert placement, and any other design criteria established by the department.

(3) Cut slopes must not be more than 1v:1.5h in unconsolidated materials or 1v:0.25h in rock.

(4) Temporary erosion-control measures must be utilized as necessary during construction to control sedimentation and minimize erosion until permanent control measures can be established.

(5) All cut and fill slopes must be resoiled and revegetated, or otherwise stabilized, at the first seasonal opportunity.

(6) To the extent possible using the best technology currently available (BTCA) , roads and railroad loops must not cause damage to fish, wildlife, and related environmental values and must not cause additional contributions of suspended solids to streamflow or to runoff outside the permit area or otherwise degrade the quantity or quality of surface or ground water.

(7) Roads and railroad loops must not be built with or surfaced with waste coal, or acid, acid-producing, toxic, or toxic-producing materials. Surface material must be suitable for the anticipated volume, weight, and speed of traffic.

(8) Following construction or reconstruction of each haul road, access road, and railroad loop, the operator shall submit to the department a report, prepared by a qualified licensed professional engineer experienced in the design and construction of roads or railroad loops, as applicable, stating that the road or railroad loop was constructed or reconstructed in accordance with the plan approved pursuant to ARM 17.24.321.

(9) All appropriate methods, as approved by the department must be employed by the operator to prevent loss of road surface material in the form of dust.

(10) Immediately upon abandonment of any road or railroad loop, the area must be reclaimed in accordance with the approved plan. If necessary, embankment and fill materials must be hauled away and disposed of properly. All bridges and culverts must be removed and natural drainage patterns restored. Adequate measures must be taken to prevent erosion.

(11) Upon completion of mining and reclamation activities, each road and railroad loop must be reclaimed unless retention of the road or railroad loop is part of the approved postmining land use pursuant to ARM 17.24.762 and the landowner requests in writing and the department concurs that the road, railroad loop, or specified portion(s) thereof be retained. In such event, necessary maintenance must be assured by the operator or landowner and drainage of the road or railroad loop must be controlled according to the provisions of ARM 17.24.601 through 17.24.610 while the road or railroad loop is under permit.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.602 Location of Roads and Railroad Loops

(1) The location of a proposed road or railroad loop must be identified on the site by visible markings prior to the commencement of construction. Construction must not proceed along dry coulees, or intermittent or perennial drainageways unless the operator demonstrates that no off-site sedimentation will result and all the requirements of this subchapter are met, or in wet, boggy, steep, or unstable areas.

(2) All roads, insofar as possible, must be located on ridges or on the available flatter and more stable slopes to minimize erosion. Stream fords are prohibited, except for temporary routes across dry, ephemeral streams that are specifically approved by the department. The department may approve crossings that will not adversely affect sedimentation or fish, wildlife, or related values, and that will not be used for hauling. Other stream crossings must be made using bridges, culverts or other structures designed and constructed to meet the requirements of this section. Roads must not be located in stream channels or be constructed or maintained in a manner that increases erosion or causes significant sedimentation or flooding. However, nothing in this section prohibits relocation of stream channels in accordance with ARM 17.24.631 through 17.24.637.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.603 Road and Railroad Loop Embankments

(1) After soil is salvaged from embankment areas pursuant to ARM 17.24.701 through 17.24.703, all organic material must be removed from the embankment foundation to increase stability.

(2) All material used in embankments must be suitable for the intended use. The material must be free of organic matter, coaly or carbonaceous material, wet or frozen materials, and any other material considered unsuitable by the department for use in embankment construction.

(3) Embankment layers must be compacted as necessary to ensure that the embankment is adequate to support the anticipated volume, weight, and speed of vehicles to be used.

(4) Road and railroad loop embankments must have a minimum static safety factor of 1.3 under any condition of loading likely to occur, or such higher factor as the department determines to be reasonably necessary for safety or protection of property.

(5) Any embankment that impounds water as part of the sediment control plan must be designed and constructed in accordance with ARM 17.24.639.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.604 Soil Removal Is Repealed

Publisher status: INEFFECTIVE (not currently effective).

History

Authorizing statute(s): 82-4-204, MCA
Implementing statute(s): 82-4-231, 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; REP, 1999 MAR p. 811, Eff. 4/23/99.

Mont. Admin. R. 17.24.605 Hydrologic Impact of Roads and Railroad Loops

(1) Access and haul roads and railroad loops and associated bridges, culverts, ditches, and road rights-of-way must be constructed, maintained, and reclaimed to prevent additional contributions of suspended solids to streamflow, diversions, or to runoff outside the permit area to the extent possible, using the BTCA.

(2) Drainage ditches must be placed at the toe of all cut slopes formed by the construction of roads. Drainage structures must be constructed to cross a stream channel and must not affect the flow or sediment load of the stream unless otherwise approved by the department in writing for a site-specific situation.

(3) Railroad loops and all roads except ramp roads must be adequately drained using structures such as, but not limited to, ditches, water barriers, cross-drains, ditch-relief drainages, culverts, and bridges.

(4) For railroad loops and for roads that are to be maintained for more than six months and for all roads used to haul coal or spoil (excluding ramp roads) or to be retained for the postmining land use, water-control structures must be designed with a discharge capacity capable of safely passing the peak runoff from a 10-year, 24-hour precipitation event or greater event as specified by the department.

(5) Bridges with a span of 30 feet or less must be designed to safely pass a 25-year, 24-hour precipitation event. All other bridges must be designed to safely pass the 100-year, 24-hour precipitation event or greater event as specified by the department.

(6) Drainage pipes and culverts must be constructed to avoid plugging or collapse and erosion at inlets and outlets. Culverts must be designed, constructed, and maintained to sustain the vertical soil pressure, the passive resistance of the foundation, and the weight of vehicles to be used.

(7) Natural channel drainageways must not be altered or relocated for road or railroad loop construction or reconstruction without the prior approval of the department in accordance with ARM 17.24.635 through 17.24.637. The department may approve alterations and relocations only if:

(a) the natural channel drainage is not blocked;

(b) no significant damage occurs to the hydrologic balance; and

(8) Drainage structures are required for stream channel crossings. Drainage structures must not affect the normal flow or gradient of the stream or adversely affect fish migration and aquatic habitat or related environmental values. Riprap may be used for roads where an ephemeral channel is too shallow for placement of a culvert.

(9) Vegetation must not be cleared for more than the width necessary for road, railroad loop, and associated ditch construction, to serve traffic needs, and for utilities.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.606 Surfacing of Roads Is Repealed

Publisher status: INEFFECTIVE (not currently effective).

History

Authorizing statute(s): 82-4-204, MCA
Implementing statute(s): 82-4-231, 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; REP, 1999 MAR p. 811, Eff. 4/23/99.

Mont. Admin. R. 17.24.607 Maintenance of Roads and Railroad Loops

(1) All roads must be routinely maintained by means such as, but not limited to, wetting, scraping or surfacing, and replacement of paving materials, such that the required design standards of the roads are met throughout the life of the operation.

(2) Ditches, culverts, drains, trash racks, debris basins and other structures serving to drain roads and railroad loops must not be restricted or blocked in any manner that impedes drainage or adversely affects the intended purpose of the structure unless the department determines that:

(a) the operator cannot maintain structures indicated in (2) above due to wet field conditions;

(b) obstructions to these structures will not result in environmental damage or imminent harm to the health and safety of the public; and

(3) Roads and railroad loops severely damaged by events such as floods, earthquakes, or equipment damage must be reconstructed or reclaimed as soon as practicable after the damage has occurred.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.608 Impacts of Other Transport Facilities

Other transportation facilities within the area of land affected, including railroad spurs, sidings, surface conveyor systems, chutes, aerial tramways, pipelines, powerlines, and other transport facilities must be designed, constructed, reconstructed, maintained, and reclaimed to:

(1) control and minimize diminution or degradation of water quality and quantity;

(2) control and minimize air pollution;

(3) prevent damage to public and private property; and

(4) prevent, to the extent possible using the BTCA:

(a) damage to fish, wildlife, and related environmental values; and

(b) additional contributions of suspended solids to streamflow or runoff outside the permit area. Any such contributions must not be in excess of limitations of state or federal law.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.609 Other Support Facilities

(1) Support facilities, including temporary and mobile facilities, required for, or used incidentally to, the operation of the mine including, but not limited to, mine buildings, rock crushers, coal loading facilities, coal storage facilities, equipment storage facilities, fan buildings, hoist buildings, preparation plants, septic systems, sewage lagoons, fuel storage and distribution facilities, sheds, shops, other buildings, and environmental monitoring sites must be designed, constructed or reconstructed, and located to prevent or control erosion and siltation, water pollution, and damage to public or private property. Support facilities must be designed, constructed or reconstructed, maintained, and used in a manner which prevents, to the extent possible using the BTCA:

(a) damage to fish, wildlife, and related environmental values; and

(b) additional contributions of suspended solids to streamflow or runoff outside the permit area. Any such contributions must not be in excess of limitations of state or federal law.

(2) All strip or underground mining operations must be conducted in a manner that minimizes damage, destruction, and disruption of services provided by oil, gas and water wells; oil, gas, and coal-slurry pipelines; railroads; electric and telephone lines; and water and sewage lines which pass over, under, or through the permit area, unless otherwise approved by the owner of those facilities and the department.

(3) No support facility may be constructed in a manner or located other than as indicated in the approved permit application or site approved by the department.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.610 Permanent Roads

(1) Permanent roads approved as a part of the postmining land use must be designed and built to minimize maintenance needs and to provide maximum control of erosion through ditching, seeding, and other appropriate measures approved by the department.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, 82-4-232, MCA
History: NEW, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.621 General Requirements for Use of Explosives

(1) Each operator shall comply with all applicable state and federal laws in the use of explosives.

(2) Blasts that use more than 5 pounds of explosive or blasting agent must be conducted according to the schedule required by ARM 17.24.623.

(3) All blasting operations must be conducted by experienced, trained, and competent persons who understand the hazards involved. Each person responsible for blasting operations must possess a valid certification. See ARM 17.24.1260 through 17.24.1263.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.622 Preblasting Survey

(1)

(a) At least 30 days before initiation of blasting, the operator shall advise, in writing, all residents or owners of dwellings or other structures within 1/2 mile of the permit area how to request a preblasting survey.

(b) Any survey requested more than 10 days before the planned initiation of blasting must be completed by the operator before the initiation of blasting.

(c) On the request to the department by a resident or owner of a dwelling or structure that is located within 1/2 mile of any part of the permit area, the operator must promptly conduct a preblasting survey of the dwelling or structure and promptly submit a report of the survey to the department and to the person requesting the survey. If a structure is renovated or added to subsequent to a preblasting survey, then upon request to the department a survey of such additions and renovations must be performed in accordance with this section.

(2) The survey must determine the condition of the dwelling or structure and document any preblasting damage and other physical factors that could reasonably be affected by the blasting. Assessments of structures such as pipes, cables, transmission lines, and wells and other water systems must be limited to surface condition and readily available data. Special attention must be given to the preblasting condition of wells and other water systems used for human, animal, or agricultural purposes and to the quantity and quality of the water.

(3) A written report of the survey must be prepared and signed by the person who conducted the survey. The report may include recommendations of any special conditions or proposed adjustments to the blasting procedure that should be incorporated into the blasting plan to prevent damage. Copies of the report must be provided to the person requesting the survey and to the department. If the person requesting the survey disagrees with the results of the survey, he or she may notify, in writing, both the permittee and the department of the specific areas of disagreement.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.623 Blasting Schedule

(1) The operator shall publish a blasting schedule at least ten days, but not more than 20 days, before beginning a blasting program in which blasts that use more than five pounds of explosive or blasting agent are detonated. The blasting schedule must be published once in a newspaper of general circulation in the locality of the blasting site.

(2) Copies of the schedule must be distributed by mail to local governments and public utilities and by mail or delivered to each residence within 1/2 mile of the permit area described in the schedule. For the purposes of this section, the permit area does not include haul or access roads, coal preparation and loading facilities, and transportation facilities between coal excavation areas and coal preparation or loading facilities, if blasting is not conducted in these areas. Copies sent to residences must be accompanied by information advising the owner or resident how to request a preblasting survey.

(3) The operator shall republish and redistribute the schedule by mail at least every 12 months.

(4) A blasting schedule must not be so general as to cover the entire permit area or all working hours, but it must identify as accurately as possible the location of the blasting sites and the time periods when blasting will occur.

(5) The blasting schedule must contain at a minimum:

(a) name, address and telephone number of the operator;

(b) identification of the township, range and section for specific areas in which blasting will take place;

(d) methods to be used to control access to the blasting area;

(e) types of audible warnings and all-clear signals to be used before and after blasting; and

(f) a description of unavoidable hazardous situations referred to in ARM 17.24.310(1)(f) that have been approved by the department for blasting at times other than those described in the schedule.

(6) Before blasting in areas or at times not in a previous schedule, the operator shall prepare and distribute a revised blasting schedule according to the procedures of (1) and (2). Whenever a schedule has previously been provided to the owner or residents under (2) with information on requesting a preblasting survey, the notice of change need not include information regarding preblast surveys.

(7) If there is a substantial pattern of non-adherence to the published blasting schedule as evidenced by the absence of blasting during scheduled periods, the department may require the operator to prepare a revised blasting schedule according to the procedures in (6).

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 1999 MAR p. 2168, Eff. 12/3/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 255, Eff. 2/10/24.

Mont. Admin. R. 17.24.624 Surface Blasting Requirements

(1) The department may limit the area covered, timing, and sequence of blasting, if such limitations are necessary and reasonable in order to protect the public health and safety or welfare.

(2) All blasting must be conducted between sunrise and sunset except that:

(a) The department may specify more restrictive time periods, based on public requests or other relevant information, according to the need to adequately protect the public from adverse noise or seismic disturbances.

(b) Blasting may, however, be conducted between sunset and sunrise if:

(i) a blast that has been prepared during the afternoon must be delayed due to the occurrence of an unavoidable hazardous condition and cannot be delayed until the next day because a potential safety hazard could result that cannot be adequately mitigated;

(ii) in addition to the required warning signals, oral notices are provided to persons within 1/2 mile of the blasting site; and

(iii) a complete written report of blasting at night is filed by the operator with the department not later than three days after the night blasting. The report must include a description in detail of the reasons for the delay in blasting including why the blast could not be held over to the next day, when the blast was actually conducted, the warning notices given, and a copy of the blast record required by ARM 17.24.626.

(3) Blasting must be conducted at times announced in the blasting schedule, except in those unavoidable hazardous situations, previously approved by the department in the permit application, whenever operator or public safety require unscheduled detonation. Any deviation from the times announced must be reported to the department not later than three days after the unavoidable blast. A complete description of the unavoidable hazardous situation must accompany the report.

(4) Warning and all-clear signals of different character that are audible within a range of 1/2 mile from the point of the blast must be given. Each person within the permit area and each person who resides or regularly works within 1/2 mile of the permit area must be notified of the meaning of the signals through appropriate instructions. These instructions must be periodically delivered or otherwise communicated in a manner that can be reasonably expected to inform such persons of the meaning of the signals. The operator shall maintain signs in accordance with ARM 17.24.524.

(5) Access to an area possibly subject to flyrock from blasting must be regulated to protect the public and livestock. Blasting must not eject flyrock onto property outside the permit area. Access to the area must be controlled to prevent the presence of livestock or unauthorized personnel during blasting and until an authorized representative of the operator has reasonably determined:

(a) that no unusual circumstances, such as imminent slides or undetonated charges, exist; and

(b) that access to and travel in or through the area can be safely resumed.

(6)

(a) Airblast must be controlled so that it does not exceed the values specified below at any dwelling, or public, commercial, community or institutional building, unless the structure is owned by the operator and is not leased to any other person. If a building owned by the operator is leased to another person, the lessee may sign a waiver relieving the operator from meeting the airblast limitations of this section.

Lower Frequency limit of measuring Maximum level in decibels (dB)

system, Hertz (Hz) (+3dB)

0.1 Hz or lower - flat response . . . . . . . . . . . .. . . . . .. . . . . .. . . 134 peak.

2 Hz or lower - flat response . . . . . . . . . . . . .. . . . . .. . . . . .. . . 133 peak.

6 Hz or lower - flat response . . . . . . . . . . . . .. . . . . .. . . . . .. . . 129 peak.

C-weighted, slow response . . . . . . . . . . . . . .. . . . . .. . . . . .. . . 105 peak dBC.

If necessary to prevent damage, the department shall specify lower maximum allowable airblast levels than those above.

(b) In all cases, except the C-weighted, slow-response system, the measuring systems used must have a flat frequency response of at least 200 Hz at the upper end. The C-weighted system must be measured with a Type 1 sound level meter that meets the standard American national standards institute (ANSI) S 1.4-1971 specifications. The ANSI S 1.4-1971 is hereby incorporated by reference as it exists on April 1, 1980. Copies of this publication are on file with the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

(c) The operator may satisfy the provisions of this section by meeting any of the four specifications in the chart in (a).

(d) The operator shall conduct periodic monitoring to ensure compliance with the airblast standards. The department may require an airblast measurement of any or all blasts, and may specify the location of such measurements, except as noted in (a).

(7) Except where lesser distances are approved by the department, based upon a preblasting survey, seismic investigation, or other appropriate investigation, blasting must not be conducted within:

(a) 1,000 feet of any dwelling or public, commercial, community or institutional building;

(b) 500 feet of facilities including, but not limited to, disposal wells, petroleum or gas storage facilities, municipal water storage facilities, fluid transmission pipelines, gas or oil collection lines, or water and sewage lines or any active or abandoned underground mine.

(8) If otherwise approved, a blast design, including measures to protect the above facilities, must be submitted which contains the information required in ARM 17.24.310 and signed by a certified blaster.

(9) Flyrock, including blasted material traveling along the ground, must not be cast from the blasting vicinity more than half the distance to the nearest dwelling or other occupied structure and in no case beyond the line of property owned or leased by the permittee, or beyond the area of regulated access required under (5).

(10) Blasting must be conducted to prevent injury to persons, damage to public or private property outside the permit area, adverse impacts on any underground mine, and change in the course, channel, or availability of ground or surface waters outside the permit area.

(11) In all blasting operations, except as otherwise authorized in this section, the maximum peak particle velocity must not exceed the following limits at the location of any dwelling, or public, commercial, community or institutional building:

Distance (D) from the blasting site, in feet | Maximum allowable peak particle velocity (V max) for ground vibration, in inches/second | Scaled-distance factor to be applied without seismic monitoring (Ds) 0 to 300 | 1.25 | 50 301 to 5,000 | 1.00 | 55 5,001 and beyond | 0.75 | 65

(a) Peak particle velocities must be recorded in three mutually perpendicular directions. The maximum peak particle velocity is the largest of any of the three measurements.

(b) The department shall reduce the maximum peak velocity allowed, if it determines that a lower standard is required because of density of population or land use, age or type of structure, geology or hydrology of the area, frequency of blasts, or other factors.

(12) If blasting is conducted in such a manner as to avoid adverse impacts on any underground mine and changes in the course, channel, or availability of ground or surface water outside the permit area, then the maximum peak particle velocity limitation of (11) does not apply at the following locations:

(a) at structures owned by the operator and not leased to another party; and

(b) at structures owned by the operator and leased to another party, if a written waiver by the lessee is submitted to the department prior to blasting.

(13) An equation for determining the maximum weight of explosives that can be detonated within any eight-millisecond period is in (14). If the blasting is conducted in accordance with this equation, the peak particle velocity is deemed to be within the limits specified in (11).

(14) The maximum weight of explosives to be detonated within any eight-millisecond period may be determined by the formula W = (D/Ds)2 where W = the maximum weight of explosives, in pounds, that can be detonated in any eight-millisecond period; D = the distance, in feet, from the blast hole nearest to a dwelling, or public, commercial, community or institutional building, except as noted in (12); and Ds = the scaled distance factor, using the values identified in (11).

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1990 MAR p. 936, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.625 Seismograph Measurements

(1) Whenever a seismograph is used to monitor the velocity of ground motion and the peak particle velocity limits of ARM 17.24.624(11) are not exceeded, the equation in ARM 17.24.624(14) need not be used. If that equation is not used by the operator, a seismograph record must be obtained for each shot.

(2) The use of a modified equation to determine maximum weight of explosives per delay for blasting operations at a particular site may be approved by the department, on receipt of a petition accompanied by reports including seismograph records of test blasting on the site. The department may not approve the use of a modified equation if the peak particle velocity for the limits specified in ARM 17.24.624(11) are exceeded, meeting a 95% statistical confidence level.

(3) The operator may use the ground vibration limits described in the blasting-level chart referenced in 30 CFR 816.67(d) (4) as an alternative to (1) and (2), upon approval by the department.

(4) The department may require a seismograph record of any or all blasts and may specify the location at which the measurements are to be taken.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.626 Records of Blasting Operations

(1) A record of each blast, including seismograph records, must be retained for at least three years and must be available for inspection by the department and the public on request. Blasting records must be complete and accurate at the time of inspection. The record must contain the following data:

(a) name of the operator conducting the blast;

(b) location, date, and time of the blast;

(d) direction and distance, in feet, from the blast hole nearest to a dwelling, or commercial, public, community, or institutional building either:

(i) not located in the permit area; or

(ii) not owned nor leased by the person who conducts the mining activities.

(e) weather conditions, including temperature, wind direction, and approximate velocity;

(f) type of material blasted;

(g) number of holes, burden, and spacing;

(h) diameter and depth of holes;

(i) types of explosives used;

(j) total weight of explosives used and total weight of explosives used in each hole;

(k) maximum weight of explosives detonated within any eight-millisecond period;

(l) maximum number of holes detonated within any eight-millisecond period;

(m) initiation system;

(n) type and length of stemming;

(o) mats or other protections used;

(p) type of delay detonator and delay periods used;

(q) sketch of the delay pattern;

(r) number of persons in the blasting crew;

(s) seismographic and airblast records, where required, including:

(i) the calibration signal of the gain setting or certification of annual calibration;

(ii) seismographic reading, including exact location of seismograph and its distance from the blast, airblast reading, dates and times of readings;

(iii) name of the person taking the seismograph reading; and

(iv) name of the person and firm analyzing the seismographic record; and

(t) reasons and conditions for each blast occurring outside the time frames published in the blasting schedule.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.631 General Hydrology Requirements

(1) The permittee shall plan and conduct mining and reclamation operations to minimize disturbance to the prevailing hydrologic balance and to prevent material damage to the prevailing hydrologic balance outside the permit area.

(2) Changes in water quality and quantity, in the depth to ground water, and in the location of surface water drainage channels must be minimized so that the postmining land use of the disturbed land is not adversely affected and applicable federal and state statutes and regulations are not violated.

(3)

(a) The permittee shall conduct operations so as to minimize water pollution and shall, where necessary, use treatment methods to control water pollution. The permittee shall emphasize mining and reclamation practices that will prevent or minimize water pollution. Diversions of drainages must be used in preference to the use of water treatment facilities.

(b) Practices to control and minimize pollution include, but are not limited to, stabilizing disturbed areas through land shaping, diverting runoff, achieving quickly germinating and growing stands of temporary vegetation, regulating channel velocity of water, lining drainage channels with rock or vegetation, mulching, selectively placing and sealing acid-forming and toxic-forming materials, and selectively placing waste materials in backfill areas.

(4) If pollution can be controlled only by treatment, the permittee shall operate and maintain the necessary water treatment facilities for as long as treatment is required. The department may specify which practices, used to minimize water pollution, may be used on a permanent basis.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.632 Permanent Sealing of Drilled Holes

(1) When no longer needed for its intended use as approved by the department and if not transferred as a water well under ARM 17.24.647, each prospecting hole, other drilled hole, borehole, or well must be abandoned according to the procedures described in ARM 17.24.1005. Other exposed underground openings must also be abandoned in accordance with ARM 17.24.1005 or, with department approval, be cased, sealed, or otherwise managed to prevent acid or other toxic drainage from entering the ground or surface waters, to minimize disturbance to the prevailing hydrologic balance, and to ensure safety of people, livestock, fish and wildlife, and machinery in the permit area and adjacent areas.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.633 Water Quality Performance Standards

(1) All surface drainage from the disturbed area, including disturbed areas that have been graded, seeded, or planted, must be treated by the BTCA before leaving the permit area. Additional BTCA practices may be required after commencement of the operation if conditions arise that were not anticipated at the time of the permit application.

(2) Sediment control through BTCA practices must be maintained until the disturbed area has been restored, the revegetation requirements of ARM 17.24.711, 17.24.713, 17.24.714, 17.24.716 through 17.24.718, 17.24.721, 17.24.723 through 17.24.726, and 17.24.731 have been met, the area meets state and federal requirements for the receiving stream, and evidence is provided that demonstrates that the drainage basin has been stabilized consistent with the approved postmining land use.

(3) All sediment control must be constructed in accordance with ARM 17.24.638 and 17.24.639 in approved locations before any strip or underground mining operations in the drainage area to be affected may begin.

(4) All discharges which include water from areas disturbed by strip or underground mining operations must be in compliance with all federal and state laws and regulations and applicable effluent limitations.

(5) In accordance with 40 CFR 434, for certain constituents as defined in the operator's MPDES permit, discharge from the disturbed areas is not subject to the effluent limitations or BTCA standards of ARM 17.24.638 if:

(a) the discharge is demonstrated by the permittee to have resulted from a precipitation event equal to or larger than a 10-year, 24-hour precipitation event, or snowmelt runoff of equivalent volume; and

(b) the discharge is from BTCA practices designed, constructed, and maintained in accordance with (1) through (4) and ARM 17.24.639.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.634 Reclamation of Drainage Basins

(1) Reclaimed drainage basins, including valleys, channels, and floodplains must be constructed to:

(a) comply with the postmining topography map required by ARM 17.24.313(1)(d)(iv) and approved by the department;

(b) approximate original contour;

(d) allow the drainage channel to remain in dynamic equilibrium with the drainage basin system without the use of artificial structural controls unless approved by the department;

(e) provide separation of flow between adjacent drainages and safely pass the runoff from a six-hour precipitation event with a 100-year recurrence interval, or larger event as specified by the department;

(f) provide for the long-term relative stability of the landscape. The term "relative" refers to a condition comparable to an unmined landscape with similar climate, topography, vegetation and land use;

(g) provide an average channel gradient that exhibits a concave longitudinal profile;

(h) establish or restore a diversity of habitats that are consistent with the approved postmining land use, and restore, enhance where practicable, or maintain natural riparian vegetation as necessary to comply with ARM subchapter 7; and

(i) exhibit dimensions and characteristics that will blend with the undisturbed drainage system above and below the area to be reclaimed and that will accommodate the approved revegetation and postmining land use requirements.

(2) Any permanent structure placed or constructed within a perennial or intermittent stream must be certified by a qualified licensed professional engineer as meeting the performance standards and any design criteria specified by the department.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.635 General Requirements for Temporary and Permanent Diversion of Overland Flow, Through Flow, Shallow Ground Water Flow, Ephemeral Drainageways, and Intermittent and Perennial Streams

(1) The department may require or approve a diversion of flow whenever:

(a) the purpose is to divert water away from disturbed areas, to minimize erosion, to reduce the volume of water requiring treatment or to prevent or remove water from contact with acid- or toxic-forming materials; and

(b) the department finds that the diversion will not adversely affect the water quantity and quality and related environmental resources of the stream. (See also ARM 17.24.633, 17.24.634, 17.24.651, and 17.24.751.)

(2) A diversion that increases the potential for landslides or allows entry of diverted water into underground mines must not be created.

(3) Diversions must not be constructed to pass large flow events into an adjacent drainage channel that would result in excessive erosion in the natural channel. Water in excess of the design event must be conveyed in a stable manner to an appropriate treatment facility to meet effluent limitations before passing off the permit area.

(4)

(a) Diversions must be designed, constructed, stabilized, and maintained to prevent additional contributions of suspended solids to streamflow, to runoff outside the permit area, to prevent material damage to surface and ground water outside the permit area, and to assure the safety of the public to the extent possible, using the BTCA.

(b) Materials used to construct diversions must be approved as acceptable by the department prior to their use.

(5) The design and construction of all stream channel diversions and any related structures must be certified by a qualified licensed professional engineer as meeting the performance standards and any design criteria set by the department.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.636 Special Requirements for Temporary Diversions

(1) A temporary diversion must be constructed to pass safely the peak runoff from a precipitation event with a 10-year, 24-hour recurrence interval, or a larger event as specified by the department.

(2) If channel lining is required to prevent erosion, the channel lining must be designed using standard engineering practices to safely pass design velocities.

(3) Freeboard must be as specified by the department, but no less than 1.0 foot.

(4) Energy dissipators must be installed in streams where exit velocity of the diversion is greater than that of the receiving stream.

(5) Whenever streamflow is allowed to be diverted, the stream channel diversion must be designed, constructed, and removed in accordance with the following requirements:

(a) The longitudinal profile of the stream, the channel, and the floodplain must be designed and constructed to remain stable and to prevent, to the extent possible using the BTCA, additional contributions of suspended solids to streamflow or to runoff outside the permit area. These contributions must not be in excess of requirements of state or federal law. Erosion control structures, such as channel lining structures, basins, and artificial channel roughness structures, may be used in diversions only when approved by the department as being necessary to control erosion.

(b) The combination of channel, bank, and flood-plain configurations must be adequate to pass safely the peak runoff of a 10-year, 24-hour precipitation event for temporary diversions or larger events specified by the department. However, the capacity of the channel itself must be at least equal to the capacity of the unmodified stream channel immediately upstream and downstream from the diversion.

(6) When no longer needed to achieve the purpose for which it was authorized, a temporary diversion must be removed and the affected land regraded, resoiled, and revegetated, in accordance with subchapters 5 and 7. At the time a diversion is removed, downstream water treatment facilities previously protected by the diversion must be modified or removed to prevent over-topping or failure of the facilities. This requirement does not relieve the operator from responsibility for maintenance of a water treatment facility otherwise required under this subchapter or the permit.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.637 Special Requirements for Permanent Diversions

(1) Permanent diversion structures are defined as those approved by the department to remain after mining.

(2) All permanent diversions must meet the requirements of ARM 17.24.634 and 17.24.635.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.638 Sediment Control Measures

(1) Appropriate sediment control measures must be designed, constructed, and maintained using the BTCA to:

(a) prevent, to the extent possible, additional contributions of sediment to streamflow or to runoff outside the permit area;

(b) meet the more stringent of applicable state or federal effluent limitations; and

(2) Sediment control measures include practices carried out within or adjacent to the disturbed area. The sedimentation storage capacity of practices in and downstream from the disturbed area must reflect the degree to which successful mining and reclamation techniques are applied to reduce erosion and control sediment. Sediment control measures consist of the utilization of proper mining and reclamation methods and sediment control practices, singly or in combination. Sediment control methods include but are not limited to:

(a) disturbing the smallest practicable area at any one time during the mining operation through progressive backfilling, grading, and prompt revegetation in accordance with ARM 17.24.711, 17.24.713, 17.24.714, 17.24.716 through 17.24.721, and 17.24.723 through 17.24.726;

(b) stabilizing the backfill material to promote a reduction in the rate and volume of runoff, in accordance with the requirements of subchapter 5;

(d) diverting runoff away from disturbed areas;

(e) diverting runoff by using protected channels or pipes through disturbed areas to eliminate additional erosion;

(f) using straw dikes, riprap, check dams, mulches, vegetative sediment filters, dugout ponds, and other measures that reduce overland flow velocity, reduce runoff volume, or trap sediment; and

(g) treating with chemicals.

History

Authorizing statute(s): 82-4-202, 82-4-205, MCA
Implementing statute(s): 82-4-231, 82-4-232, 82-4-234, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.639 Sedimentation Ponds and Other Treatment Facilities

(1) Sedimentation ponds, either temporary or permanent, may be used individually or in series and must:

(a) be constructed before any disturbance of an area that will drain into the pond takes place;

(b) be located as near as possible to the disturbed area, and out of major stream courses, unless another site is approved by the department;

(i) the accumulated sediment volume from the drainage area to the pond for a minimum of three years as determined by a method approved by the department; or

(ii) not less than 0.02 acre-foot for each acre of disturbed area, excluding well-established reclamation, within the upstream drainage area, unless the operator affirmatively demonstrates that the sediment volume from any site-specific area would be less. A greater sediment volume may be required if necessary to contain a higher sediment yield; and, as applicable,

(iii) the accumulated sediment volume necessary to retain sediment for one year in any discharge from an underground mine passing through the pond;

(d) be accurately surveyed immediately after construction in order to provide a baseline for future sediment volume measurements; and

(e) be constructed as approved unless modified under ARM 17.24.642(7).

(2) Sedimentation ponds must provide the required theoretical detention time adequate to meet effluent limitations described in ARM 17.24.633 and for the water inflow or runoff entering the pond from a 10-year, 24-hour precipitation event (design event), plus the average inflow from the underground mine if applicable. "Theoretical detention time" is the average time that the design flow is detained in the pond and is further defined as the time difference between the centroid of the inflow hydrograph and the centroid of the outflow hydrograph for the design event. Runoff diverted under ARM 17.24.635 through 17.24.637 away from the disturbed drainage areas and not passed through the sedimentation pond need not be considered in sedimentation pond design. In determining the runoff volume, the characteristics of the mine site, reclamation procedures, and on site sediment control practices shall be considered. Sedimentation ponds must provide a theoretical detention time of not less than 24 hours, or any higher amount required by the department.

(3) The water storage resulting from inflow must be removed by a nonclogging dewatering device or a conduit spillway approved by the department and must have a discharge rate to achieve and maintain the required theoretical detention time. The inlet to the dewatering device must not be located at a lower elevation than the maximum elevation of the sediment storage volume.

(4) Each operator shall design, construct, and maintain sedimentation ponds to prevent short-circuiting to the extent possible.

(5) There must not be outflow through the emergency spillway during the passage of the runoff resulting from the ten-year, 24-hour precipitation event or lesser events through the sedimentation pond.

(6) Sediment must be removed from sedimentation ponds when the volume of sediment accumulates to 60 percent of the design sediment storage volume. With the approval of the department, additional storage may be provided for sediment and water above the total design requirement. If additional storage is provided and the design runoff storage and theoretical detention time are maintained, sediment removal may be delayed until 40 percent of the required sediment storage remains.

(7) Sedimentation ponds having embankments must be constructed to provide:

(a) a combination of principal and emergency spillways or a single spillway only to safely discharge the runoff from a 25-year, 24-hour precipitation event, or larger event specified by the department, assuming the impoundment is at full pool for spillway design. A single spillway must be constructed of non-erodible materials and designed to carry sustained flows, or be earth- or grass-lined and designed to carry short-term infrequent flows at non-erosive velocities where sustained flows are not expected. The elevation of the crest of the emergency spillway must be a minimum of one foot above the crest of the principal spillway. Emergency spillway grades and allowable velocities must be approved by the department;

(b) containment of runoff from a 25-year, 24-hour precipitation event, or greater event as specified by the department, with no spillway required, provided that the impounding structure does not meet any of the criteria of 30 CFR 77.216(a) or the Class B or C criteria for dams in USDA soil conservation service Technical Release No. 60 (210-VI-TR60, October 1985, as revised through January 1991), "Earth Dams and Reservoirs", (TR-60), and provided further that adequate provisions are made for safe dewatering of the pond within an appropriate time after the design precipitation event occurs, using current, prudent engineering practices; or

(c) for ponds meeting any of the criteria of 30 CFR 77.216(a) or the Class B or C criteria for dams in TR-60, containment of runoff from the probable maximum precipitation of a six-hour event, or greater event as specified by the department, with no spillway required, provided that adequate provisions are made for safe dewatering of the pond within an appropriate time after the design precipitation event occurs, using current, prudent engineering practices.

(8) Foundations and abutments for sediment ponds must be stable during all phases of construction and operation and must be designed based on appropriate and adequate information on foundation conditions that is collected pursuant to ARM 17.24.315(1)(b) or (d), as appropriate.

(9) The minimum elevation at the top of the settled embankment must be one foot above the water surface in the pond with the emergency spillway flowing at design depth.

(10) Unless otherwise approved by the department as adequate to maintain stability, the minimum top width of the embankment must not be less than the quotient of (H+35)/5, where H is the height, in feet, of the embankment as measured from the upstream toe of the embankment.

(11) The side slopes of the settled embankment must not be steeper than 3h:1v upstream and 2h:lv downstream, unless otherwise approved by the department.

(12) After soil is salvaged from the embankment foundation area pursuant to ARM 17.24.701 through 17.24.703, all other organic material must be removed and all surfaces sloped to no steeper than 1v:1h.

(13) Where an embankment is to be placed on side slopes exceeding 1v:5h (11.3 o ), the existing ground must be scarified, stepped, or, if in bedrock, keyed in a manner which increases the stability of the fill.

(14) Embankment material must not contain organic matter, wet or frozen materials, coaly or carbonaceous materials, or any other material considered unsuitable by the department for use in embankment construction.

(15) The placing and spreading of embankment material must be started at the lowest point of the foundation. The embankment must be brought up in horizontal layers of such thickness as is required to facilitate compaction and meet the design requirements of this rule. A lift must not be placed on the previous layer until the density as specified in the design approved by the department has been achieved throughout the previous layer.

(a) In selecting the method to be used for placing embankment material, consideration must be given in the design to such factors as the foundation, geological structure, soils, static water level, high water level, type of construction, and equipment to be used.

(b) AASHTO or other comparable specifications approved by the department for the determination of the maximum dry density for granular materials must be applied during construction.

(16) Embankments must have a minimum seismic safety factor of 1.2 and a minimum static safety factor of 1.5 under any condition of loading likely to occur, or such higher factor as the department determines to be reasonably necessary for safety, protection of property, or preventing environmental harm.

(17) All pond embankments must be designed and constructed in accordance with sound engineering and construction practices and certified by a licensed professional engineer experienced in the design of such structures.

(18) Temporary erosion-control measures must be utilized as necessary during construction to control sedimentation and minimize erosion until long-term erosion-control measures can be established.

(19) The entire embankment, including the surrounding areas disturbed by construction, must be stabilized with a vegetative cover or other means immediately after the embankment is completed in order to protect against erosion and sudden drawdown. The active upstream face of the embankment where water will be impounded may be riprapped or otherwise stabilized. Areas in which the vegetation is not successful or where rills and gullies develop must be repaired and revegetated in accordance with ARM 17.24.711, 17.24.713, 17.24.714, 17.24.716 through 17.24.718, 17.24.721, 17.24.723 through 17.24.726, and 17.24.731.

(20) If a sedimentation pond meets any of the criteria of 30 CFR 77.216(a), the following additional requirements must be met:

(a) an appropriate combination of principal and emergency spillways that will discharge safely the runoff resulting from a 100-year, six-hour precipitation event, or a larger event specified by the department, assuming the impoundment is at full pool for spillway design, must be provided;

(b) appropriate barriers must be provided to control seepage along conduits that extend through the embankment; and

(c) the criteria of the mine safety and health administration as published in 30 CFR 77.216 and ARM 17.24.315 must be met.

(21) If a sedimentation pond meets the Class B or C criteria for dams in TR-60, it must comply with the following additional requirements:

(a) for freeboard, the freeboard hydrograph criteria listed in the "Minimum Emergency Spillway Hydrologic Criteria" table in TR-60; and

(b) for safely discharging the design precipitation event, the emergency spillway hydrograph criteria in the "Minimum Emergency Spillway Hydrologic Criteria" table in TR-60, or greater event as specified by the department.

(22) All ponds with embankments must be designed and inspected regularly during construction under the supervision of, and certified after construction by, a qualified licensed professional engineer experienced in the construction of impoundments. After construction, inspections and certifications must be made and reports filed with the department, pursuant to ARM 17.24.642(4). Inspection and certification reports must be submitted until the embankments are removed.

(a) For ponds designed and constructed pursuant to ARM 17.24.639(7)(b) or (c), the certification must also indicate that safe dewatering of the pond will occur within an appropriate time after the design precipitation event occurs, using current, prudent engineering practices.

(23) All ponds with embankments must be examined for structural weakness, erosion, and other hazardous conditions, and reports and modifications must be made to the department, in accordance with 30 CFR 77.216-3. With the approval of the department, dams not meeting the criteria of 30 CFR 77.216(a) or the Class B or C criteria for dams in TR-60 must be examined at least four times per year. If an examination or inspection discloses that a potential hazard exists, the person who examined the impoundment must promptly inform the department of the finding and of the emergency procedures formulated for public protection and remedial action. If adequate procedures cannot be formulated or implemented, the department must be notified immediately. The department shall then notify the appropriate agencies that other emergency procedures are required to protect the public.

(24) Sedimentation ponds and other treatment facilities must not be removed:

(a) sooner than two years after the last augmented seeding within the drainage, unless otherwise approved by the department in compliance with ARM 17.24.633;

(b) until the drainage entering the pond has met the applicable state and federal water quality requirements for the receiving stream; and

(c) until evidence is provided that demonstrates that the drainage basin has stabilized to the extent that it was in the undisturbed state.

(25) When the sedimentation pond is removed, the affected land must be regraded and revegetated in accordance with ARM 17.24.711, 17.24.713, 17.24.714, 17.24.716 through 17.24.718, 17.24.721, 17.24.723 through 17.24.726, and 17.24.731. If the department approves retention, the sedimentation pond must meet all the requirements for permanent impoundments of ARM 17.24.642 and 17.24.650.

(26) Other treatment facilities must be designed to treat the 10-year, 24-hour precipitation event unless a lesser design event is approved by the department based on terrain, climate, other site-specific conditions and a demonstration by the operator that the effluent limitations of

(a) Other treatment facilities must be designed in accordance with the applicable requirements of (1) through (21).

(27) Runoff from areas above a structure impounding coal waste or runoff from the surface of the facility and that may cause instability or erosion of the impounding structure must be diverted into stabilized diversion channels designed to meet the requirements of ARM 17.24.635 and 17.24.637 and designed to safely pass the runoff from a 100-year, six-hour design-precipitation event.

(28) Excavations which are sediment control structures during or after the mining operation must have perimeter slopes that are stable. Where surface runoff enters the impoundment area, the sideslope must be protected against erosion. An excavated sediment pond requires no spillway and must be able to contain the ten-year, 24-hour precipitation event, and conform with (1), (2), (4), (6), (18), (22)(a), (24) and (27).

(a) These excavations which are sediment control structures must be certified initially by a qualified licensed professional engineer. The department shall perform subsequent inspections. If any modifications are necessary, the department shall promptly notify the operator.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1990 MAR p. 936, Eff. 5/18/90; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 1999 MAR p. 2768, Eff. 12/3/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 258, Eff. 2/10/24; AMD, 2025 MAR, 17-451, Eff. 3/29/25.

Mont. Admin. R. 17.24.640 Discharge Structures

(1) Discharge from sedimentation ponds, impoundments, and diversions must be controlled by vegetation, energy dissipators, riprap channels, and other measures, where necessary, to reduce erosion, to prevent deepening or enlargement of stream channels, and to minimize disturbance of the hydrologic balance. Discharge structures must be designed according to standard engineering-design procedures and be certified by a qualified, registered, professional engineer as meeting the performance standards of this subchapter and any design criteria specified by the department.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.641 Acid- and Toxic-Forming Spoils

Drainage from acid- and toxic-forming spoil into ground and surface water must be avoided by:

(1) identifying, burying, and treating whenever necessary, spoil that, in the judgment of the department, may be detrimental to vegetation or may adversely affect water quality if not treated or buried;

(2) preventing water from coming into contact with acid-forming or toxic-forming spoil in accordance with ARM 17.24.501(3), 17.24.504, 17.24.507, and other measures required by the department; and

(3) burying or otherwise treating all acid-forming or toxic-forming spoil within 30 days after it is first exposed on the mine site, or within a lesser period required by the department. Temporary storage of the spoil may be approved by the department upon a finding that burial or treatment within 30 days is not feasible and will not result in any material risk of water pollution or other environmental damage. Storage must be limited to the period until burial or treatment first becomes feasible. Acid-forming or toxic-forming spoil to be stored must be placed on impermeable material and protected from erosion and contact with surface water.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.642 Permanent Impoundments and Flood Control Impoundments

(1) Permanent impoundments are prohibited unless constructed in accordance with ARM 17.24.504 and 17.24.639 and have open-channel spillways that will safely discharge runoff resulting from a 100-year, six-hour precipitation event, assuming the impoundment is at full pool for spillway design or larger event specified by the department. The department may approve a permanent impoundment upon the basis of a demonstration that:

(a) the quality of the impounded water will be suitable on a permanent basis for its intended use and, after reclamation, will meet applicable state and federal water quality standards;

(b) discharge of water from the impoundment will not degrade the quality of receiving waters to less than the water quality standards established pursuant to applicable state and federal laws;

(d) adequate safety and access to the impounded water will be provided for proposed water users;

(e) water impoundments will not result in the diminution of the quality or quantity of water used by adjacent or surrounding landowners for agricultural, industrial, recreational, or domestic uses;

(f) the design, construction, and maintenance of structures will achieve the minimum design requirements applicable to structures constructed and maintained under the Watershed Protection and Flood Prevention Act. PL 83-566 (16 USC 1006). Requirements for impoundments that meet the size or other criteria of the mine safety and health administration, 30 CFR 77.216(a) are contained in U.S. soil conservation service's Technical Release No. 60 (210-VI-TR60, October 1985, as revised through January 1991), "Earth Dams and Reservoirs," (TR-60). Requirements for impoundments that do not meet the size or other criteria contained in 30 CFR 77.216(a) are contained in U.S. soil conservation service's Practice Standard 378, "Ponds," October 1978. The technical release and practice standard are hereby incorporated by reference. Technical Release No. 60 and Practice Standard 378 are on file and available for inspection at the Helena office of the Department of Environmental Quality, 1520 E. 6th Ave., Helena, MT 59601; and

(g) the impoundment will be suitable for the approved postmining land use.

(2) All permanent impoundments must meet the design and performance requirements of ARM 17.24.639.

(3) All permanent impoundments must be routinely maintained during the mining operations. Ditches and spillways must be cleaned.

(4) All permanent impoundments must be inspected and certified to the department by a qualified licensed professional engineer, immediately after construction and annually thereafter, as having been constructed and maintained to comply with the requirements of this section. Inspection reports must be submitted until phase IV bond release. Certification reports must be submitted to the department annually, either concurrently with the annual report (ARM 17.24.1129) or with the second semi-annual hydrology report (ARM 17.24.645(8) and 17.24.646(2)). The operator shall retain a copy of each report at or near the minesite. Certification reports must include statements on:

(a) existing and required monitoring procedures and instrumentation;

(b) the design depth and elevation of any impoundment waters at the time of the initial certification report or the average and maximum depths and elevations of any impounded waters over the past year for the annual certification reports;

(d) any other aspects of the impoundment affecting stability.

(5)

(a) Flood control impoundments are located upstream of disturbance areas for the purpose of preventing or controlling flooding or discharge and are not designed for sediment control or to be permanent.

(b) Flood control impoundments with embankments must be constructed in accordance with (1)(f) and ARM 17.24.639(7) through (21), and be inspected, maintained and certified according to (3), (4)(a), (4)(d), and (6) and ARM 17.24.639(22) and (23).

(i) must be in compliance with ARM 17.24.639(18);

(ii) must have perimeter slopes that are stable; and

(iii) must be protected against erosion where surface runoff enters the impoundment area.

(d) An initial pond certification report and inspections must be made for excavated flood control impoundments in accordance with ARM 17.24.639(28)(b). If the volume of the flood control impoundment is used in determination of required volume for a downstream pond, annual certification reports are required in accordance with (4)(a), (4)(c), and (4)(d).

(e) Prior to construction, flood control impoundments must be approved by the department.

(6) Permanent impoundments and flood control impoundments with embankments meeting the size or other criteria of 30 CFR 77.216(a) or the Class B or C criteria for dams in TR-60 must be routinely inspected by a qualified licensed professional engineer or by someone under the supervision of a qualified licensed professional engineer, in accordance with 30 CFR 77.216-3.

(7) Plans for any enlargement, reduction in size, reconstruction, or other modifications of permanent impoundments and flood control impoundments must be submitted to the department and must comply with the requirements of this subchapter. Except where a modification is required to eliminate an emergency condition constituting a hazard to public health, safety, or the environment, the modification must not be initiated until the department approves the plans.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.643 Ground Water Protection

(1) Mining must be conducted to control the effects of drainage from pits, cuts, and other mining activities and disturbances. The permittee shall prevent or control discharge of acid, toxic, or otherwise harmful mine drainage waters into ground water flow systems so that adverse impacts on ground water flow systems and on approved postmining land uses are prevented.

(2) Backfilled materials must be placed to minimize adverse effects on ground water flow and quality, to minimize off-site effects, and to support the approved postmining land use. The permittee is responsible for performing monitoring according to ARM 17.24.645 to ensure that operations conform to this requirement.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.644 Protection of Ground Water Recharge

(1) The disturbed area must be reclaimed to restore the approximate premining recharge capacity through restoration of the capability of the reclaimed areas as a whole to transmit water to the ground water system. The recharge capacity must be restored to support the approved postmining land use, minimize disturbances to the prevailing hydrologic balance in the mine plan and adjacent areas, and provide a rate of recharge that approximates the premining recharge rate. The permittee shall monitor according to ARM 17.24.645 to ensure operations conform to this requirement.

(2) The permittee shall collect data and conduct studies as requested by the department to determine whether the recharge capacity of the mined lands can be restored to the approximate premining recharge capacity.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.645 Ground Water Monitoring

(1) Ground water levels, subsurface flow and storage characteristics, and the quality of ground water must be monitored based on information gathered pursuant to ARM 17.24.304 and the monitoring program submitted pursuant to ARM 17.24.314 and in a manner approved by the department to determine the effects of strip or underground mining operations on the recharge capacity of reclaimed lands and on the quantity and quality of water in ground water systems in the permit and adjacent areas. When operations may affect the ground water system, ground water levels and ground water quality must be periodically monitored using wells that can adequately reflect changes in ground water quantity and quality resulting from such operations. The information must be submitted to the department in a format approved by the department.

(2) Monitoring must:

(a) include the measurement of the quantity and quality of water in all disturbed or potentially affected geologic strata within and adjacent to the permit area. Affected strata are all those adjacent to or physically disturbed by mining disturbance and any aquifers below the base of the spoils that could receive water from or discharge water to the spoils. Monitoring must be of sufficient frequency and extent to adequately identify changes in ground water quantity and quality resulting from mining operations; and

(b) be adequate to plan for modification of strip or underground mining operations, if necessary, to minimize disturbance of the prevailing hydrologic balance.

(3) The department may require the permittee to expand the ground water monitoring system whenever a significant impact to the hydrologic balance of the permit and adjacent area is likely and the expanded monitoring is needed to adequately monitor the ground water system. As specified and approved by the department, additional observations and analyses, such as infiltration tests and aquifer tests, must be undertaken by the permittee to demonstrate compliance with this rule.

(4) Whenever an applicant demonstrates by the use of the probable hydrologic consequences determination (see ARM 17.24.314) and other available information that a particular water bearing stratum in the proposed permit or adjacent areas does not have a significant role in maintaining the hydrologic balance within the cumulative impact area, the department may waive monitoring of that stratum.

(5) Ground water monitoring must proceed through mining and continue until phase IV bond release. The department may allow modification of the monitoring requirements, except those required by the Montana pollutant discharge elimination system permit, including the parameters covered and sampling frequency, if the operator or the department demonstrates, using the monitoring data obtained under this rule, that:

(a)

(i) the operation has minimized disturbance to the hydrologic balance in the permit and adjacent areas and prevented material damage to the hydrologic balance outside the permit area;

(ii) water quantity and quality are suitable to support approved postmining land uses; and

(iii) the water rights of other users have been protected or replaced;

(b) monitoring is no longer necessary to achieve the purposes set forth in the monitoring plan approved under this rule; or

(c) with regard to monitoring related to an alluvial valley floor, monitoring of the essential hydrologic function of the alluvial valley floor is ensured under the modified program.

(6) Methods of sample collection, preservation, and sample analysis must be conducted in accordance with 40 CFR Part 136 titled "Guidelines Establishing Test Procedures for the Analysis of Pollutants" (July 2015) and the department's document titled "Department Circular DEQ-7, Montana Numeric Water Quality Standards," September 2026 edition. Copies of Department Circular DEQ-7 are available at the Department of Environmental Quality, 1520 E. 6th Ave., P.O. Box 200901, Helena, MT 59620-0901. Sampling and analyses must include a quality assurance program acceptable to the department.

(7) Whenever monitoring reveals noncompliance with the permit, the Act, or the rules adopted thereunder, the permittee shall immediately take steps to minimize adverse effects. Those steps include, but are not limited to, accelerated or additional monitoring, abatement, and warning of all persons whose health or safety is in imminent danger. The permittee shall, within five days of discovery of noncompliance, notify the department of noncompliance and remedial measures taken.

(8) Results of ground water monitoring activities must be reported to the department semiannually, and all monitoring data must be maintained on a current basis for inspection at the mine office. Any sample results indicating a permit violation must be reported to the department within five days of receipt of results.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 1999 MAR p. 2768, Eff. 12/3/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2012 MAR p. 2060, Eff. 10/12/12; AMD, 2017 MAR p. 602, Eff. 5/13/17; AMD, 2019 MAR p. 826, Eff. 6/22/19; AMD, 2024 MAR p. 258, Eff. 2/10/24; AMD, 2026 MAR, Notice No. 2026-496, Eff. 9/26/26.

Mont. Admin. R. 17.24.646 Surface Water Monitoring

(1) Surface water monitoring must be based on information submitted pursuant to ARM 17.24.304 and must be conducted in accordance with the monitoring program submitted under ARM 17.24.314 and approved by the department. Monitoring must:

(a) be adequate to measure accurately and record water quantity and quality of all discharges from the permit area;

(b) in all cases in which analytical results of the sample collections indicate noncompliance with a permit condition or an applicable standard, result in the operator immediately taking appropriate remedial measures. Within five days of the discovery of the noncompliance, the operator shall notify the department of the noncompliance and of the remedial measures taken and shall comply with (6). These remedial measures include, but are not limited to, accelerated or additional monitoring, abatement, and warning of all persons whose health and safety is in imminent danger. Whenever a violation of a Montana pollutant discharge elimination system (MPDES) permit occurs, the operator shall forward the analytic results concurrently with the written notice of noncompliance;

(2) The operator shall submit semi-annual reports including analytical results from each sample taken during the semester to the department. Sampling results must be submitted in a format approved by the department. In addition, all monitoring data must be maintained on a current basis for review at the minesite. Any sample results that indicate a permit violation must be reported immediately to the department. However, whenever the discharge for which water monitoring reports are required is also subject to regulation by a MPDES permit and that permit requires filing of the water monitoring reports within 90 days or less of sample collection, the operator shall submit to the department on the time schedule required by the MPDES permit or within 90 days following sample collection, whichever is earlier, a copy of the completed reporting form filed to meet MPDES permit requirements.

(3) Monitoring must be conducted at appropriate frequencies to measure normal and abnormal variations in concentrations.

(4) After disturbed areas have been regraded and stabilized according to ARM 17.24.501, the operator shall monitor surface water flow and quality. Data from this monitoring must be used to determine whether the quality and quantity of runoff without treatment is consistent with the requirements of this rule to minimize disturbance to the prevailing hydrologic balance, to demonstrate that the drainage basin has stabilized to its previous, undisturbed state, and to attain the approved postmining land use. These data must also be used by the department to review requests for removal of water quality or flow control systems and for bond release. With department approval, other information or methods, such as models, may be used, in conjunction with monitoring data, for these purposes.

(5) Equipment, structures, and other devices necessary to measure and sample accurately the quality and quantity of surface water discharges from the disturbed area must be properly installed, maintained, and operated and must be removed when no longer required.

(6) Methods of sample collection, preservation, and sample analysis must be conducted in accordance with 40 CFR Part 136 titled "Guidelines Establishing Test Procedures for the Analysis of Pollutants" (July 2015) and Part 434 titled "Coal Mining Point Source Category BPT, BAT, BCT Limitations and New Source Performance Standards" (January 2002), and the September 2026 edition of the department's document titled "Department Circular DEQ-7, Montana Numeric Water Quality Standards." Copies of 40 CFR Part 136, 40 CFR 434, and Department Circular DEQ-7 are available at the Department of Environmental Quality, 1520 E. 6th Ave., P.O. Box 200901, Helena, MT 59620-0901. Sampling and analyses must include a quality assurance program acceptable to the department.

(7) Surface water monitoring must proceed through mining and continue until phase IV bond release. The department may allow modification of the monitoring under the same criteria as are contained in ARM 17.24.645(5).

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2012 MAR p. 2060, Eff. 10/12/12; AMD, 2017 MAR p. 602, Eff. 5/13/17; AMD, 2019 MAR p. 826, Eff. 6/22/19; AMD, 2024 MAR p. 258, Eff. 2/10/24; AMD, 2026 MAR, Notice No. 2026-496, Eff. 9/26/26.

Mont. Admin. R. 17.24.647 Transfer of Wells

(1) With prior approval of the department, the permittee may allow the surface owner to use a prospecting well or a monitoring well as a water well. To obtain departmental approval, the surface owner must submit a written request for transfer and evidence that the well has been completed in compliance with standards established by the board of water well contractors. The permittee remains responsible for proper management of the well and site until final bond release.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-223, 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.648 Water Rights and Replacement

(1) The permittee shall replace the water supply of any owner of interest in real property who obtains all or part of his supply of water for domestic, agricultural, industrial, or other legitimate use from surface or underground source if such supply has been affected by contamination, diminution, or interruption proximately resulting from strip or underground mine operation by the permittee.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-253, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.649 Discharge of Water Into Underground Mines

(1) Surface and ground waters must not be discharged, diverted, or allowed to infiltrate into existing underground mine workings.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.650 Postmining Rehabilitation of Sedimentation Ponds, Diversions, Impoundments, and Treatment Facilities

(1) Before abandoning the permit area, the operator shall renovate all permanent sedimentation ponds, diversions, impoundments, and treatment facilities to meet criteria specified in the detailed design plan for the permanent structures and impoundments.

(2) All temporary sedimentation ponds, diversions, impoundments and treatment facilities must be regraded to the approximate original contour and reclaimed prior to abandonment of the permit area.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.651 Stream Channel Disturbances and Buffer Zones

(1) No land within 100 feet of a perennial stream or intermittent stream or a stream reach with a biological community determined according to (3) may be disturbed by strip or underground mining operations, nor may the stream itself be disturbed, except as approved in accordance with ARM 17.24.634 through 17.24.637 and 17.24.751, upon finding by the department that:

(a) the original stream function will be restored in accordance with ARM 17.24.634 and 17.24.751; and

(b) during and after the mining, the water quantity and quality and other environmental resources of the stream and the lands within 100 feet of the stream will not be adversely affected.

(2) Any area not to be disturbed must be designated a buffer zone and marked as specified in ARM 17.24.524.

(3) A stream with a biological community is determined by the existence in the stream of an assemblage of two or more species of fish, amphibians, arthropods or mollusk that are:

(a) adapted to flowing water for all or part of their life cycle;

(b) dependent upon a flowing water habitat;

(d) these species must be longer than two millimeters at some stage of their life cycle spent in the flowing water habitat.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.652 Wells and Underground Openings: Safety

(1) Each prospecting well, other well, and all other exposed underground openings in the permit area must be temporarily sealed before use and temporarily protected during use by barricades, fences, or other protective devices approved by the department. The permittee shall periodically inspect these devices and maintain them in good operating condition.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Subchapter 17.24.7 Strip and Underground Mine Reclamation Act: Topsoiling, Revegetation, and Protection of Wildlife and Air Resources

Mont. Admin. R. 17.24.701 Removal of Soil

(1) Prior to any surface disturbance by the mining operation, and after the removal of vegetation that would interfere with soil removal and use, all soil suitable for reclamation use must be removed. Exceptions may be granted if the operator demonstrates to the satisfaction of the department that a site-specific disturbance would be insignificant and that soil loss, degradation, and contamination would be minimized.

(2) The operator shall use a multiple-lift soil handling method consisting of the separate handling of surface soil (A, E, and possibly upper B or C horizons) and subsurface soil (underlying B and C horizons) during salvage, stockpiling, and redistribution, unless, for any particular soil component, the operator affirmatively demonstrates, and the department finds, that multiple lifts are not necessary to achieve reclamation consistent with the Act, rules and reclamation plan.

(3) Undisturbed soils must be protected to the extent possible from contamination and degradation and soil salvage operations must be conducted in a manner and at a time that minimizes erosion, contamination, degradation, compaction, and deterioration of the biological properties of the soil.

(4) Soil removal is not required for minor disturbances which occur at the site of small structures such as power poles, signs or fences or where operations will not destroy vegetation and cause erosion.

History

Authorizing statute(s): 82-4-205, 82-4-231, MCA
Implementing statute(s): 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.702 Redistribution and Stockpiling of Soil

(1) After salvage, soil must be immediately redistributed according to the requirements of (5) and (6) on areas graded to the approved postmining topography.

(2) Salvaged soil must be stockpiled if graded areas are not immediately available for redistribution. Soil stockpiles must be located where they will not be disturbed by mining operations and will not be lost to wind or water erosion. Compaction, contamination, and degradation of stockpiles must be minimized. Stockpiled soil must not be rehandled until replaced on regraded areas, unless authorized by the department.

(3)

(a) Inactive soil stockpiles must be seeded or planted with an effective cover of non-noxious, quick-growing, annual and/or perennial plants during the first normal period favorable for planting.

(b) Active stockpiles or stockpiles that will be used within one year do not require seeding. However, other measures must be taken as necessary to minimize erosion.

(4) Prior to redistribution of soil or soil substitutes, regraded areas must be:

(a) sampled and analyzed to determine the physicochemical nature of the surficial spoil material in accordance with ARM 17.24.313(1)(h)(xi);

(b) scarified on the contour to a minimum 12-inch depth, unless otherwise approved by the department upon a determination that the purpose of this subsection will be met, to eliminate any possible slippage potential at the soil/spoil interface, to relieve compaction, and to promote root penetration and permeability of spoils. If no adverse effects to the redistributed material or postmining land use will occur, such treatments may be conducted after the soil or soil substitute is replaced.

(5) The operator shall, during and after redistribution, prevent, to the extent possible, spoil and soil compaction, protect against soil erosion, contamination, and degradation, and minimize the deterioration of the biological properties of the soil.

(6) Soil must be redistributed in a manner that achieves thicknesses consistent with soil resource availability and appropriate for the postmining vegetation, land uses, contours, and surface water drainage systems.

(7) Redistributed soil must be reconditioned by subsoiling or other appropriate methods approved by the department. Soil reconditioning must be done on the contour, whenever possible.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.703 Substitution of Other Materials for Soil

(1) Any application for permit or accompanying reclamation plan that for any reason proposes to use materials other than, or along with, soil and final surfacing of spoil or other disturbances must document problems of soil quantity or quality. The following requirements must be met before use of material other than soil will be allowed:

(a) The operator shall demonstrate and the department shall find that the resulting medium is at least as capable as the soil of supporting the approved vegetation and postmining land use (see ARM 17.24.304(1)(g) and (1)(k)).

(b) The medium must be the best available in the permit area to support revegetation.

(2) Soil substitutes must be handled consistent with ARM 17.24.701 and 17.24.702.

History

Authorizing statute(s): 82-4-205, 82-4-231, MCA
Implementing statute(s): 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.711 Establishment of Vegetation

(1) Vegetation must be reestablished in accordance with 82-4-233, MCA. For purposes of that statute, "other constructed features" means discrete man-made features less than two acres in size that are incorporated into reclaimed areas, that have been constructed to an approved design, and that do not require revegetation to achieve the approved postmining land use or postmining slope stability.

(2) For areas designated prime farmland, the requirements of ARM 17.24.811 and 17.24.815 must be met.

(3) The department shall determine cover, planting, and stocking specifications either on a programmatic basis or for each operation based on local and regional conditions after consultation with and approval by:

(a) the department of fish, wildlife, and parks for reclamation to land uses involving fish and wildlife habitat; and

(b) the department of natural resources and conservation for reclamation to land uses involving forestry.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-233, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1990 MAR p. 934, Eff. 5/18/90; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.713 Timing of Seeding and Planting

(1) Seeding and planting of disturbed areas must be conducted during the first appropriate period favorable for planting after final seedbed preparation unless a variance is approved by the department. The appropriate period favorable for planting is that planting time generally accepted locally for the type of plant materials selected to meet specific site and climatic conditions.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-233, 82-4-234, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1980 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.714 Soil Stabilizing Practices

(1) Such practices as seedbed preparation, mulching, or cover cropping must be used on all regraded and resoiled areas to control erosion, to promote germination of seeds, and to increase the moisture retention of the soil until an adequate, permanent cover is established. This requirement may be suspended if the operator demonstrates to the department's satisfaction that it is not needed to control air or water pollution and erosion.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-233, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.716 Method of Revegetation

(1) All revegetation must be in compliance with the approved reclamation plan and carried out in a manner that encourages prompt vegetation establishment.

(2) Revegetation must be accomplished by drill or broadcast seeding, by seedling transplants, by establishing sod plugs, or by other methods. All methods must have prior approval of the department. All seeding must be done on the contour, whenever possible. Mixed seedings must be conducted in a manner and at a time that will avoid deleterious competition of different vegetal types or to avoid seed distribution problems due to different seed sizes.

(3) Seeding rates must be calculated on a pure live seed basis, and purity and germination percentages must be documented.

(4) To the extent possible, the operator shall utilize seed mixes free of weedy or other undesirable species and shall utilize the best reclamation and land management techniques available to prevent establishment of noxious weeds on all disturbed and reclaimed areas. The operator shall control noxious weeds in accordance with the Noxious Weed Management Act (7-22-2101 through 7-22-2153, MCA, as amended).

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-233, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.717 Planting of Trees and Shrubs

(1) Tree or shrub species necessary to meet the approved postmining land use must be adapted for local site conditions and climate. Trees and shrubs must be planted in combination with herbaceous species as necessary to achieve the postmining land use and as approved by the department. If necessary to increase tree and shrub survival, seeding of the herbaceous species may be delayed providing that measures are taken to control air and water pollution and erosion.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-233, 82-4-235
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.718 Soil Amendments, Management Techniques, and Land Use Practices

(1) Soil amendments must be used as necessary to supplement the soil and to aid in the establishment of a permanent vegetative cover as specified in the approved reclamation plan or as later deemed necessary by the department.

(2) An operator may use husbandry practices, approved by the department, for management of vegetation consistent with the approved reclamation plan without affecting the minimum responsibility period. If husbandry practices other than those specified for the approved land use are employed, the minimum responsibility period will start after the last such unapproved practice is used.

(3) Reclamation land use practices including, but not limited to, grazing, haying, or chemical applications, may not be conducted in a manner or at a time that interferes with establishment and/or persistence of seeded and planted grasses, forbs, shrubs, and trees or with other reclamation requirements.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-233, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 2768, Eff. 12/3/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.719 Livestock Grazing Is Repealed

Publisher status: INEFFECTIVE (not currently effective).

History

Authorizing statute(s): 82-4-204, MCA
Implementing statute(s): 82-4-233, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; REP, 2004 MAR p. 2548, Eff. 10/22/04.

Mont. Admin. R. 17.24.720 Annual Inspections for Revegetated Areas Is Repealed

Publisher status: INEFFECTIVE (not currently effective).

History

Authorizing statute(s): 82-4-204, MCA
Implementing statute(s): 82-4-233, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; REP, 2004 MAR p. 2548, Eff. 10/22/04.

Mont. Admin. R. 17.24.721 Eradication of Rills and Gullies

(1) When rills or gullies form in areas that have been regraded and resoiled, the rills or gullies must be filled, graded, or otherwise stabilized and the area reseeded or replanted if rills or gullies are:

(a) disrupting the approved postmining land use or reestablishment of the vegetative cover; or

(b) causing or contributing to a violation of water quality standards for a receiving stream.

(2) The department shall specify time frames for completion of rill and gully repair work. Repair work will result in restarting the period of responsibility for reestablishing vegetation, unless it can be demonstrated that such work is a normal conservation practice and is limited to:

(a) minor erosional features on land for which proper erosion-control practices are in use; and

(b) rills and gullies that affect only small areas and do not recur.

(3) If reclaimed areas have experienced extensive rill or gully erosion, the department may require submittal of a plan of mitigation for such features and department approval prior to implementation of repair work.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-233, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1990 MAR p. 936, Eff. 5/18/90; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.723 Monitoring

(1) The operator shall conduct periodic vegetation, soils, and wildlife monitoring under plans submitted pursuant to ARM 17.24.312(1)(d) and 17.24.313(1)(g) and (h) and the approved postmining land use as approved by the department.

(2) The data and a narrative interpretation thereof must be submitted on a schedule and in a manner approved by the department. Detail of the narrative interpretation must be determined in consultation with the department to demonstrate compliance with the Act, other state and federal laws, and applicable rules in this chapter.

(3) If the data indicate that corrective measures are necessary, the operator shall implement corrective measures to comply with permit requirements.

(4) The operator may request and the department may approve revision or discontinuation of a monitoring program, if it can be documented that adverse impacts have not occurred and are unlikely to occur or that mitigating measures have been effective.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-233, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.724 Revegetation Success Criteria

(1) Success of revegetation must be determined by comparison with unmined reference areas or by comparison with technical standards. Reference areas and standards must be representative of vegetation and related site characteristics occurring on lands exhibiting good ecological integrity. The department must approve the reference areas, technical standards, and methods of comparison.

(2) Reference areas are parcels of land chosen for comparison to revegetated areas. A reference area is not required for vegetation parameters with approved technical standards. Reference areas must be in a condition that does not invalidate or preclude comparison to revegetated areas and the operator must:

(a) have legal right to control the management of all approved reference areas; and

(b) manage reference areas in a manner that is comparable to the management of the revegatated areas and in accordance with the approved postmining land use.

(3) Technical standards may be derived from:

(a) historical data generated for a sufficient time period to encompass the range in climatic variations typical of the premine or other appropriate area; or

(b) data generated from revegetated areas that are compared to historical data representing the range of climatic conditions comparable to those conditions existing at the time revegetated areas are sampled; or

(c) U.S. Department of Agriculture, U.S. Department of the Interior, or other publications or sources relevant to the area and land use of interest and approved by the department.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-233, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1990 MAR p. 964, Eff. 5/18/90; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 1999 MAR p. 2768, Eff. 12/3/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.725 Period of Responsibility

(1) Except as provided in 82-4-235(4), MCA, et seq., the minimum period of responsibility for reestablishing vegetation begins after the last seeding, planting, fertilizing, irrigating, or other activity related to phase III reclamation as determined by the department unless it can be demonstrated that such work is a normal husbandry practice that can be expected to continue as part of the postmining land use or if discontinuance of the practices after the liability period expires will not reduce the probability of permanent revegetation success.

(2) Except as provided in 82-4-235(3), MCA, an application for phase III bond release may not be submitted prior to the end of the tenth growing season.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-233, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1990 MAR p. 964, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.726 Vegetation Measurements

(1) Standard, consistent, and statistically valid field and laboratory methods must be used to obtain and evaluate vegetation data consistent with 82-4-233 and 82-4-235, MCA, and to compare revegetated area data with reference area data and/or with technical standards. Specific field and laboratory methods used and schedules of assessments must be approved by the department for inclusion in the permit. In addition to these and other requirements described in this rule, the department shall supply guidelines regarding representative field and laboratory methods.

(2) Production, cover, and density shall be considered equal to the approved success standard when they are equal to or greater than 90 percent of the standard with 90 percent statistical confidence, using an appropriate (parametric or non-parametric) one-tail test with a 10 percent alpha error.

(3) Areas to be developed for grazing land, pastureland, or cropland must meet or exceed the applicable performance standards in (1) and (2) in any two years after year six of the phase III bond period of responsibility. Pursuant to ARM 17.24.1113, the department shall evaluate the vegetation at the time of the bond release inspection for phase III to confirm the findings of the quantitative data.

(4) Areas to be developed for fish and wildlife habitat, forestry, or recreation must meet or exceed the performance standards in (1) and (2), excluding production, and a minimum tree and shrub density following the requirements of (1). Tree and shrub density must be sampled during the last growing season of the phase III bond period of responsibility. Sampling must demonstrate the following conditions:

(a) all trees and shrubs must be healthy and have been in place for not less than two growing seasons;

(b) at least 80 percent of the trees and shrubs used to determine success shall have been in place for at least the last six years of the phase III bond period of responsibility; and

(5) For areas to be developed for residential or industrial/commercial post-mine land use, the vegetative ground cover shall not be less than that required to control erosion within two years after regrading is completed.

(6) The reestablished vegetation must meet the requirements of the Noxious Weed Management Act (7-22-2101 through 7-22-2153, MCA, as amended).

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-233, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1990 MAR p. 964, Eff. 5/18/90; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.728 Composition of Vegetation Is Repealed

Publisher status: INEFFECTIVE (not currently effective).

History

Authorizing statute(s): 82-4-204, MCA
Implementing statute(s): 82-4-233, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1990 MAR p. 964, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; REP, 2004 MAR p. 2548, Eff. 10/22/04.

Mont. Admin. R. 17.24.730 Season of Use Is Repealed

Publisher status: INEFFECTIVE (not currently effective).

History

Authorizing statute(s): 82-4-204, MCA
History: 82-4-233, 82-4-235, MCA; NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1990 MAR p. 964, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 2852; REP, 2004 MAR p. 2548, Eff. 10/22/04.

Mont. Admin. R. 17.24.731 Analysis for Toxicity

(1) Where toxicity to plants or animals is suspected due to the effects of disturbance, the department may require comparative chemical analyses of the plants or animals, or both, on the revegetated area and the reference area. Alternatively, the department may require or approve a comparison of chemical analyses of plants or animals, or both, from the revegetated area with suitable standards.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-233, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1990 MAR p. 964, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.732 Vegetation Requirements for Previously Cropped Areas Is Repealed

Publisher status: INEFFECTIVE (not currently effective).

History

Authorizing statute(s): 82-4-204, MCA
Implementing statute(s): 82-4-233, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1990 MAR p. 964, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 2852; REP, 2004 MAR p. 2548, Eff. 10/22/04.

Mont. Admin. R. 17.24.733 Measurement Standards for Trees, Shrubs, and Half-Shrubs Is Repealed

Publisher status: INEFFECTIVE (not currently effective).

History

Authorizing statute(s): 82-4-204, 82-4-205, MCA
Implementing statute(s): 82-4-233, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1990 MAR p. 964, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; REP, 2004 MAR p. 2548, Eff. 10/22/04.

Mont. Admin. R. 17.24.751 Protection and Enhancement of Fish, Wildlife, and Related Environmental Values

(1) No surface or underground mining operation may be conducted which is likely to jeopardize the continued existence of endangered or threatened species listed by the secretary of the interior or which is likely to result in the destruction or adverse modification of designated critical habitat of such species in violation of the Endangered Species Act of 1973, as amended (16 USC 1531, et seq.) , or which would result in the unlawful taking of a bald or golden eagle, its nest, or any of its eggs, as a result of the mining operation. The operator shall promptly report to the department and the U.S. Fish and Wildlife service the presence in the permit area of any listed threatened or endangered species or critical habitat thereof, any plant or animal listed as threatened or endangered by Montana, or any bald or golden eagle roost site, seasonal concentration area, or breeding territory of which the operator becomes aware and which was not previously reported to the department. Upon notification, the department shall consult with appropriate state and federal fish and wildlife agencies and shall thereafter identify whether and under what conditions the operator may proceed. The U.S. Fish and Wildlife service's threatened and endangered species-specific protective measures must be implemented when so determined by the department in consultation with the U.S. Fish and Wildlife service.

(2) In addition to the requirements of 82-4-231(10)(j), MCA, the operator shall:

(a) ensure that the design and construction of electric powerlines and other transmission facilities used for or incidental to the strip or underground mining operations on the permit area are adequate to minimize collisions and electrocutions of raptors, waterfowl, and other wildlife species. All powerlines must be constructed in accordance with "Suggested Practices for Raptor Protection on Power Lines: The State of the Art in 1996 (Avian Power Line Interaction Committee, 1996)", which is incorporated by reference into this rule, or alternative guidance manuals approved by the department. For informational purposes, this document is on file at the Helena office of the department;

(b) locate and operate haul and access roads to avoid or minimize impacts to important fish and wildlife species or other species protected by state or federal law;

(c) design and construct fences, overland conveyers, and other potential structures to permit passage of large mammals, except where the department determines that such requirements are unnecessary;

(d) fence, cover, or use other appropriate methods to exclude wildlife from ponds that contain hazardous concentrations of toxic-forming materials;

(e) consult with appropriate state and federal fish and wildlife and land management agencies to ensure that reclamation will provide for habitat needs of various wildlife species in accordance with the approved postmining land use. Pursuant to 82-4-231(10)(j) and 82-4-232(9), MCA, special attention must be given to inanimate elements such as rock outcrops, boulders, rubble, dead trees, etc., that may have existed on the surface prior to mining, and to plant species with proven nutritional and cover value for fish and wildlife. Plant groupings and water sources must be distributed to fulfill the requirements of fish and wildlife;

(f) restore, consistent with 82-4-231(10)(j), 82-4-232(9), and 82-4-233, MCA, or avoid disturbance to wetlands, riparian vegetation along rivers and streams and bordering ponds and lakes, and other habitats of unusually high value for fish and wildlife, and, where practicable, enhance such habitats; and

(g) afford protection to aquatic communities by avoiding stream channels (see ARM 17.24.651) or by restoring stream channels as required in ARM 17.24.634.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, 82-4-231, 82-4-232, 82-4-233, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.761 Air Resources Protection

(1) Each operator shall employ fugitive dust control measures as an integral part of site preparation, coal mining and reclamation operations in accordance with 82-4-231(10)(m), MCA, the operator's air quality permit, and applicable federal and state air quality standards.

(2) Air monitoring equipment must be installed and monitoring must be conducted in accordance with the air monitoring plan required under ARM 17.24.311 and approved by the department.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.762 Postmining Land Use

(1) The postmining land use must satisfy 82-4-203(28) and 82-4-232(7), MCA. In applying 82-4-232(7), MCA, the following principles apply:

(a) The premining uses of the land to which the postmining land use is compared are those that the land previously supported or could have supported if the land had not been mined and had been properly managed.

(b) The postmining land use for land that has been previously mined and not reclaimed must be judged on the basis of the land use that existed prior to any mining. If the land cannot be reclaimed to the use that existed prior to any mining because of the previously mined condition, the postmining land use must be judged on the basis of the highest and best use that can be achieved and is compatible with surrounding areas.

(c) The postmining land use for land that has received improper management must be judged on the basis of the premining use of surrounding lands that have received proper management.

(d) If the premining use of the land was changed within five years of the beginning of mining, the comparison of postmining use to premining use must include a comparison with the use of the land prior to the change as well as its uses immediately preceding mining.

(2) Alternative postmining land uses may be proposed and must be determined in accordance with 82-4-232(7) and (8), MCA, and ARM 17.24.821 and 17.24.823.

(3) Certain premining facilities may be replaced pursuant to 82-4-232(10), MCA.

History

Authorizing statute(s): 82-4-205, 82-4-232, MCA
Implementing statute(s): 82-4-233, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.763 Coal Conservation

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 82-4-204, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; REP, 2012 MAR p. 737, Eff. 4/13/12.

Mont. Admin. R. 17.24.764 Cropland Reclamation

(1) The department may not approve a postmining land use of cropland unless the following criteria are met:

(a) prior to mining, all soils within the proposed cropland reclamation area must have been at least capability class IV, based on U.S. natural resources conservation service criteria;

(b) soils proposed for use must have the following properties:

(i) loamy texture, as defined by the U.S. soil conservation service in the Soil Survey Manual, chapter 4 as revised May, 1981, pp. 4-56 and 4-57;

(ii) rock fragment (gravels, cobbles, and channers only) contents less than 20% in the first lift and less than 35% in the second lift;

(iii) after materials are replaced, no greater than moderate wind and water erosion hazards as determined by U.S. natural resources conservation service procedures; and

(iv) levels of electrical conductivity, sodium adsorption ratio, and plant available water-holding capacity meeting the criteria for class III soils according to the "Land Capability Guide for Montana, U.S. Soil Conservation Service, June 1988", which is incorporated by reference into this rule. A copy of this document may be obtained from the Natural Resources Conservation Service, 10 E. Babcock St., Bozeman, MT 59715;

(c) soil materials must be capable of selection and handling in such a way, and redistribution to such a thickness, and the underlying regraded spoil properties must be of sufficient quality, that the postmining productivity of the root zone will be sufficient to support cropland as the postmining land use;

(d) slope gradients must not exceed 8%;

(e) the area must receive a minimum of 12 inches average annual precipitation, or there must be sufficient irrigation water available and committed to maintain crop production;

(f) the area must not be subject to flooding that would impair its suitability as cropland due to flood effects including, but not limited to, erosion, siltation, and inundation;

(g) the area must have a minimum of 90 frost-free days per year; and

(h) the department must determine that:

(i) saline seep on the proposed cropland area will not occur; and

(ii) the reclaimed area will not function as a saline seep recharge area for lands downgradient.

(2) The operator shall comply with the following requirements in reclaiming to cropland:

(a)

(i) soil materials must be selected and handled in such a way and redistributed to such a thickness, and the underlying regraded spoil properties must be of sufficient quality such that the postmining productivity of the root zone will be sufficient to support cropland as the postmining land use.

(ii) the following minimum requirements must be met:

(A) soils must be replaced to a minimum thickness of 24 inches; and

(B) the root zone thickness must be consistent with the requirements of ARM 17.24.501(2);

(b) if necessary to protect replaced soil materials from wind and water erosion, or if necessary to enhance soil productivity, stability or the capacity for root penetration, a grass-legume mixture must be planted and maintained as determined by the department; and

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-233, 82-4-235, MCA
History: NEW, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Subchapter 17.24.8 Strip and Underground Reclamation Act: Alluvial Valley Floors, Prime Farmlands, Alternate Reclamation, and Auger Mining

Mont. Admin. R. 17.24.801 Alluvial Valley Floors: Preservation of Essential Hydrologic Functions and Protection of Farming

(1) Strip or underground coal mining operations must be conducted to preserve, throughout the mining and reclamation process, the essential hydrologic functions of alluvial valley floors not within a permit area. These functions must be preserved by maintaining those geologic, hydrologic and biologic characteristics that support those functions.

(2) Strip or underground coal mining and reclamation operations must be conducted to reestablish, throughout the mining and reclamation process, the essential hydrologic functions of alluvial valley floors within an area of land affected. These functions must be reestablished by reconstructing those geologic, hydrologic and biologic characteristics that support those functions.

(3) Strip or underground coal mining operations must be conducted to ensure that the agricultural utility and the level of productivity of alluvial valley floors in affected areas are reestablished to premining levels.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.802 Alluvial Valley Floor: Protection of Farming and Prevention of Material Damage

(1)

(a) Strip or underground coal mining operations must not interrupt, discontinue, or preclude farming on alluvial valley floors, unless:

(i) the premining land type is undeveloped rangeland that is not significant to farming; or

(ii) the area of affected alluvial valley floor is small and provides or may provide negligible support for production from one or more farms.

(b) If environmental monitoring shows that a strip or underground coal mining operation is interrupting, discontinuing, or precluding farming on alluvial valley floors, the operation must cease until remedial measures are taken by the operator. The remedial measures must be approved by the department prior to the resumption of mining.

(2) Strip or underground coal mining and reclamation operations must not cause material damage to the quality or quantity of water in surface or underground water systems that supply alluvial valley floors. If environmental monitoring shows that the strip or underground coal mining operation is causing material damage to water that supplies alluvial valley floors, the mining operations must cease until remedial measures are taken by the operator. The remedial measures must be approved by the department prior to the resumption of mining operations.

(3) Sections (1) and (2) of this rule do not apply to those lands which were identified in a reclamation plan approved by the department before August 3, 1977, for any strip or underground coal mining and reclamation operation that, in the year preceding August 3, 1977:

(a) produced coal in commercial quantities and was located within or adjacent to an alluvial valley floor, or

(b) obtained specific permit approval by the department to conduct strip or underground coal mining and reclamation operations within an alluvial valley floor.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.804 Alluvial Valley Floors: Monitoring

(1) An environmental monitoring system must be installed, maintained and operated by the permittee on all alluvial valley floors during strip or underground coal mining and reclamation operations and continued until all bonds are released in accordance with ARM 17.24.1114. The monitoring system must provide sufficient information to allow the department to determine that:

(a) the agricultural utility and production of the alluvial valley floor not within the affected area is being preserved;

(b) the potential agricultural utility and production on the alluvial valley floor within the area the land affected has been reestablished;

(c) the important characteristics supporting the essential hydrologic functions of the alluvial valley floor in the affected area have been reestablished after mining;

(d) the important characteristics supporting the essential hydrologic functions of an alluvial valley floor in areas not affected are preserved during and after mining;

(e) farming on lands protected under ARM 17.24.802 is not being interrupted, discontinued, or precluded; and

(f) the operation is not causing material damage to the quantity or quality of water in the surface or underground systems that supply alluvial valley floors protected under ARM 17.24.802.

(2) Monitoring must be performed at adequate frequencies, to indicate long-term trends that could affect agricultural use of the alluvial valley floors.

(3) Monitoring must be performed during operations to identify characteristics of the alluvial valley floor not identified in the permit application and to evaluate the importance of all characteristics requested by the department.

(4) All monitoring data collected and analyses thereof must routinely be made available to the department.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.805 Alluvial Valley Floors: Significance Determination

(1) The significance of the impact of the proposed operations on farming is based on the relative importance of the vegetation and water of the grazed or hayed alluvial valley floor area to the farm's production, or any more stringent criteria established by the department as suitable for site-specific protection of agricultural activities in alluvial valley floors. The effect of the proposed operations on farming is "significant" if the operations would, over the life of the mine, have more than a negligible impact on the farm's agricultural production. In making the determination of "significance", the department shall consult with the affected landowner(s).

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1990 MAR p. 936, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.806 Alluvial Valley Floors: Material Damage Determination

Criteria for determining whether a strip or under-ground coal mining operation will materially damage the quantity or quality of waters include, but are not limited to:

(1) potential increases in the concentration of total dissolved solids of waters supplied to an alluvial valley floor, as measured by specific conductance in millimhos, to levels above the threshold value at which crop yields decrease, as specified in Maas and Hoffman, "Crop Salt Tolerance--Current Assessment," Table 1, "Salt Tolerance of Agricultural Crops," unless the applicant demonstrates compliance with (2) of this rule. Salt tolerances for agricultural crops have been published by E.V. Maas and G.J. Hoffman, in a paper entitled "Crop Salt Tolerance--Current Assessment" contained in the Journal of the Irrigation and Drainage Division, American society of civil engineers, pages 115-134, June, 1977. Table 1, giving threshold salinity values is presented on pages 22-125. For types of vegetation not listed in Maas and Hoffman as specified by the department, based upon consideration of observed correlation between total dissolved solid concentrations in water and crop yield declines taking into account the accuracy of the correlations. This publication is hereby incorporated by reference as it exists on March 13, 1979. The Maas and Hoffman publication is on file and available for inspection at the Department of Environmental Quality, 1520 E. 6th Ave., Helena, MT 59620-0901;

(2) potential increases in the concentration of total dissolved solids of waters supplied to an alluvial valley floor in excess of those incorporated by reference in (1) of this rule. These increases are not allowed unless the applicant demonstrates, through testing related to the production of crops grown in the locality, that the proposed operations will not cause increases that will result in crop yield decreases;

(3) potential increases in the average depth to water saturated zones (during the growing season) located within the root zone of the alluvial valley floor that would reduce the amount of subirrigated land compared to premining conditions;

(4) potential decreases in surface flows that would reduce the amount of irrigable land compared to premining conditions; and

(5) potential changes in the surface or ground water systems that reduce the area available to agriculture as a result of flooding or increased saturation of the root zone.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.811 Prime Farmland: Soil Handling

(1) Operators who disturb prime farmlands shall comply with applicable performance standards of ARM 17.24.701 through 17.24.703.

(2) Prime farmland soil removal and stockpiling operations must be conducted in compliance with 82-4-23(3)(a) and (b), MCA. The minimum thickness of soil materials to be removed for use in reconstructing prime farmland soils must be sufficient to meet the soil replacement requirements of (3) of this rule. Prime farmland soil materials must be handled separately from other soil materials, including salvage, stockpiling and redistribution, unless otherwise approved by the department upon a finding that the other soil materials with which the prime farmland soil would be combined meet the requirements of quality set forth in 82-4-232(3)(a) and (b), MCA.

(3) The minimum thickness of soil to be reconstructed for prime farmland must be 48 inches or a thickness equal to the depth to a subsurface horizon in the natural soil that inhibits root penetration, whichever is shallower. The department shall specify a depth greater than 48 inches wherever necessary to restore productive capacity. Soil horizons are considered inhibitory to root penetration if their physical or chemical properties restrict or prevent penetration by roots.

(4) Prime farmland soils must be removed, immediately redistributed or stockpiled, and reconstructed in a manner that results in a soil having equal or greater productive capacity than that which existed prior to disturbance. The A and E horizons or other suitable soil materials must be replaced as the surface soil layer to a thickness that will equal or exceed the thickness of this layer as it existed before disturbance.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.815 Prime Farmland: Revegetation

(1) Each operator who conducts strip or underground mining operations on prime farmland shall, within the area identified as prime farmland before disturbance:

(a) if the approved postmining land use is not cropland:

(i) randomly establish test plots that will be cropped until restoration of the premining productivity has met the requirements of this rule. The remainder of the area not used for test plots must be revegetated consistent with the standards of ARM 17.24.711, 17.24.713, 17.24.714, 17.24.716 through 17.24.718, 17.24.721, 17.24.723 through 17.24.726, and 17.24.731 and with the approved postmining land use. When restoration of the premining productivity has been demonstrated, the operator shall revegetate the test plots consistent with the standards of ARM 17.24.711, 17.24.713, 17.24.714, 17.24.716 through 17.24.718, 17.24.721, 17.24.723 through 17.24.726 and 17.24.731 and with the approved postmining land use; or

(ii) crop the entire area of disturbed prime farmland until restoration of the premining productivity is demonstrated. The operator shall then revegetate the entire area consistent with ARM 17.24.711, 17.24.713, 17.24.714, 17.24.716 through 17.24.718, 17.24.721, 17.24.723 through 17.24.726, and 17.24.731 and with the approved postmining land use; or

(b) if the approved postmining land use is cropland, permanently reclaim the area to cropland.

(2) All prime farmlands reclaimed either temporarily or permanently as cropland must meet the following revegetation requirements:

(a) following soil replacement, the operator shall implement the revegetation and erosion-control plan approved by the department under ARM 17.24.324, as follows:

(i) This plan must be carried out in a manner that encourages prompt vegetative cover and recovery of productive capacity.

(ii) Nutrients, other soil amendments, and other management techniques such as irrigation must be applied as approved by the department and as necessary to be consistent with (d).

(iii) The provisions of ARM 17.24.713 and 17.24.714 must be met.

(b) Within a time period specified in the permit, but not to exceed 10 years after completion of backfilling and rough grading, areas to be reclaimed either temporarily or permanently to cropland must be planted to the crops that have been approved under ARM 17.24.324 and that are commonly grown on surrounding prime farmland. As appropriate, the crops may be grown in rotation with hay or pasture crops. The department may approve a crop use of perennial plants for hay where this is a common long term use of prime farmland soils in the surrounding area;

(c) if row crops are the dominant crops grown on prime farmland in the area, the row crop requiring the greatest rooting depth must be one of the reference crops;

(d) the level of management must be equivalent to that occurring on the reference area(s) or on which the target yields are based pursuant to (e); and

(e) revegetation success on prime farmlands must be determined upon the basis of a comparison of actual crop production on the disturbed area.

(i) The crop production on reference areas must meet the following requirements:

(A) reference areas must consist of representative undisturbed prime farmland supporting the crops commonly grown on those prime farmlands proposed for disturbance;

(B) reference areas must have soils, slopes, and other pertinent characteristics comparable to those proposed for disturbance; and

(C) the location of reference areas and the yields from them that are used to determine revegetation success pursuant to (2)(e)(i) must be determined with the concurrence of the Montana state office of the U.S. Natural Resources Conservation Service.

(ii) if undisturbed prime farmland is not available for comparison purposes, comparison of production on the disturbed area must be made with target yields approved by the department and meeting the following standards:

(A) target yields for a given year must be determined on the basis of current yield records of representative local farms, with the concurrence of the Montana state office of the U.S. Natural Resources Conservation Service, or by the average county yields recognized by the U.S. Department of Agriculture;

(B) these yields must be adjusted as necessary by the Montana state office of the U.S. Natural Resources Conservation Service for local yield variation that is associated with differences between undisturbed prime farmland soil and all other soils that produce the crops of interest within the locale or the county;

(iii) under either procedure in (2) (e) (i) or (ii) , crop production of the reference area or the target yield must be adjusted, as necessary, with the concurrence of the Montana state office of the U.S. Natural Resources Conservation Service, for:

(A) disease-, pest-, and weather-induced seasonal variations; or

(B) differences in specific management practices where the overall management practices of the crops being compared are equivalent;

(f) crop production on disturbed prime farmland must be determined based upon a minimum of three consecutive crop years of data;

(i) for permanent cropland, these three years of data must include the last year of a minimum 10-year period of responsibility preceding the application for phase III bond release;

(ii) for temporary test plots, these three years of data must include the last year of a minimum 10-year period of crop production;

(g) crop production on the prime farmland reference area must be determined based upon a minimum of three consecutive crop years of data consistent with (f)(i) or (ii) above, as appropriate; and

(h) revegetation on prime farmland is considered successful when the crop yield for each of the three years is equivalent to, or higher than, that on the reference area or the target yield. This equivalence must be shown at least at the 10% level of significance using statistically appropriate sampling techniques approved by the department in consultation with the Montana state office of the U.S. Natural Resources Conservation Service.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 1999 MAR p. 2768, Eff. 12/3/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24; AMD, 2025 MAR, 17-451, Eff. 3/29/25.

Mont. Admin. R. 17.24.821 Alternative Postmining Land Uses: Submission of Plan

(1) An operator may propose to the department a plan for a higher or better use as an alternative postmining land use pursuant to 82-4-232(7) and (8) , MCA. With appropriate maps, narrative, and other materials, the plan must:

(a) describe the nature of the alternative postmining land use;

(b) address all of the criteria in 82-4-232(8) and (9), MCA; and

(2) Each application for alternative postmining land use is subject to public review requirements of subchapter 4 either as part of a new application or as an application for a major revision. However, in its notice of application to government entities pursuant to ARM 17.24.401, the department shall allow 60 days for submission of comments from authorities having jurisdiction over land use policies and plans, and from appropriate state and federal fish and wildlife agencies.

History

Authorizing statute(s): 82-4-205, 82-4-232, MCA
Implementing statute(s): 82-4-233, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.823 Alternative Postmining Land Uses: Approval of Plan

(1) The department may approve a proposed alternative postmining land use if all of the following criteria are met:

(a) the requirements of 82-4-232(8) and (9), MCA;

(b) the proposed postmining land use is compatible, where applicable, with existing local, state or federal land use policies or plans relating to the permit area. Demonstration of compatibility with land use policies and plans must include, but is not limited to:

(i) written statement of the authorities with statutory responsibilities for land use policies and plans submitted pursuant to ARM 17.24.821(2); and

(ii) as applicable, obtaining any required approval, including any necessary zoning or other changes required for land use by local, state or federal land management agencies. This approval must remain valid throughout the strip or underground mining operations;

(c) specific plans are submitted to the department that show the feasibility of the postmining land use as related to projected land use trends and markets and that include a schedule showing how the proposed use will be financed, developed, and achieved within a reasonable time after mining and how it will be sustained. These plans must be supported, if appropriate, by letters of commitment from parties other than the operator;

(d) as applicable, provision of any necessary public facilities is ensured as evidenced by letters of commitment from parties other than the operator as appropriate, to provide the public facilities in a manner compatible with the plans submitted;

(e) plans for the postmining land use are designed under the general supervision of a licensed professional engineer, or other appropriate professional, to ensure that the plans conform to applicable accepted standards for adequate land stability, drainage, and aesthetic design appropriate for the postmining use of the site;

(f) the use will not involve unreasonable delays in reclamation; and

(g) appropriate measures submitted by state and federal fish and wildlife management agencies to prevent or mitigate adverse effects on fish, wildlife, and related environmental values and threatened or endangered plants have been incorporated into the plan.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.824 Alternate Reclamation: Alternate Postmining Land Uses Is Repealed

Publisher status: INEFFECTIVE (not currently effective).

History

Authorizing statute(s): 82-4-204, 82-4-205, MCA
Implementing statute(s): 82-4-232, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; REP, 2004 MAR p. 2548, Eff. 10/22/04.

Mont. Admin. R. 17.24.825 Alternate Reclamation: Alternate Revegetation Is Repealed

Publisher status: INEFFECTIVE (not currently effective).

History

Authorizing statute(s): 82-4-204, 82-4-205, MCA
Implementing statute(s): 82-4-233, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; REP, 2004 MAR p. 2548, Eff. 10/22/04.

Mont. Admin. R. 17.24.826 Alternate Reclamation: Period of Responsibility for Alternate Revegetation Is Repealed

Publisher status: INEFFECTIVE (not currently effective).

History

Authorizing statute(s): 82-4-204, 82-4-205, MCA
Implementing statute(s): 82-4-223, 82-4-232, 82-4-235, MCA
History: NEW, 1999 MAR p. 811, Eff. 4/23/99; REP, 2004 MAR P. 2548, Eff. 10/22/04.

Mont. Admin. R. 17.24.831 Auger Mining: General Requirements

(1) Auger mining operations must comply with applicable strip mining performance standards.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, 82-4-232, 82-4-233, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.832 Auger Mining: Specific Performance Standards

(1) Any auger mining associated with strip mining operations must be conducted to maximize recoverability of mineral reserves remaining after the mining operations are completed. Each operator conducting auger mining operations shall leave areas of undisturbed coal to provide access for removal of those reserves by future underground mining activities, unless the department determines that the coal reserves have been depleted or are limited in thickness or extent to the point that it will not be practicable to recover the remaining coal reserves. The department shall make such determination only upon presentation of appropriate technical evidence by the operator.

(2) Undisturbed areas of coal must be left in unmined sections that:

(a) are a minimum of 250 feet wide at any point between each group of auger openings to the full depth of the auger hole;

(b) are no more than 2,500 feet apart, measured from the center of one section to the center of the next section, unless a greater distance is set forth in the permit application under ARM 17.24.326 and approved by the department; and

(c) for multiple seam mining, have a width of at least 250 feet plus 50 feet for each subjacent workable coal seam. The centers of all unmined sections must be aligned vertically.

(3) An auger hole must not be located closer than 500 feet in horizontal distance from any abandoned or active underground mine workings, except as approved in accordance with ARM 17.24.516.

(4) If the operation involves stripping for the purpose of augering, the requirements of ARM 17.24.501(6) (c) for the purpose of backfilling and grading must be followed.

(5) In order to prevent pollution of surface and ground water and to reduce fire hazards, each auger hole, except as provided in (6), must be plugged to prevent the discharge of water from the hole and access of air to the coal, as follows:

(a) each auger hole discharging water containing toxic-forming or acid-forming material must be plugged within 72 hours after completion by backfilling and compacting noncombustible and impervious material into the hole to a depth sufficient to form a water-tight seal, if possible. If sealing within 72 hours is not possible, the discharge must be treated commencing within 72 hours after completion to meet applicable effluent limitations and water quality standards under ARM 17.24.633 until the hole is properly sealed;

(b) each auger hole discharging water not containing acid-or toxic-forming materials must be sealed with an impervious noncombustible material, as contemporaneously as practicable with the augering operation, as approved by the department; and

(c) each auger hole not discharging water must be sealed as in (5)(a) to close the opening as contemporaneously as practicable with the augering operation.

(6) An auger hole need not be plugged if the department finds that:

(a) impoundment of the water that would result from plugging the hole may create a hazard to the environment or public health or safety; and

(b) drainage from the auger hole will not pose a threat of pollution to surface water and will comply with the requirements of ARM 17.24.631 and 17.24.633.

(7) The department shall prohibit auger mining, if it determines that:

(a) adverse water quality impacts cannot be prevented or corrected;

(b) fill stability cannot be achieved;

(c) the prohibition is necessary to maximize the utilization, recoverability, or conservation of the solid fuel resources; or

(d) subsidence resulting from auger mining may disturb or damage powerlines, pipelines, buildings, or other facilities or does not comply with the subsidence protection requirements of ARM 17.24.901 and 17.24.911.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, 82-4-232, 82-4-233, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.833 Auger Mining: Requirements for Permit

(1) No permit may be issued for any operation that includes auger mining, unless the department finds, in writing, that, in addition to meeting all other applicable requirements of rules adopted pursuant to the Act, the operations will be conducted in compliance with ARM 17.24.831 and 17.24.832.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, 82-4-232, 82-4-233, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.834 Remining: Applicability

(1) This rule and ARM 17.24.835, 17.24.836, and 17.24.837, apply only to operations which process coal mine waste materials resulting from "previously mined areas" as that term is defined in ARM 17.24.301.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-203, MCA
History: NEW, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.835 Remining: Application and Operating Requirements

(1) Remining must be conducted to maximize the recoverability of the mineral resource, while using the best control technology available to maintain or whenever possible, to improve environmental quality, and to maximize the post-operational land use potential.

(2) Remining permit applications and operations must comply with all applicable requirements and performance standards, as determined by the department, of subchapters 3 through 12.

(3) Coal mine and coal processing waste must be disposed of according to the following:

(a) the operator shall bury such waste in pits, shafts, adits, or other excavations that are either available on or near the site of the remining operation or that are constructed for the purpose of burial. This disposal and burial must be conducted in accordance with ARM 17.24.501, 17.24.505, 17.24.510, and 17.24.520, as approved by the department; or

(b) if disposal in accordance with (a) above is not technologically possible or cannot be done in compliance with the rules referenced in (a) above, such as with respect to protection of ground water quality, and this is affirmatively demonstrated in the application, the operator shall dispose of coal mine and coal processing waste in accordance with the standards of excess spoil disposal (ARM 17.24.520) and in accordance with the standards of ARM 17.24.501, 17.24.505, and 17.24.510.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-221, 82-4-222, 82-4-231, 82-4-232, MCA
History: NEW, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.836 Remining: Eligibility for Abandoned Mine Land Status

(1) Areas within a remining permit area that will not be directly disturbed by remining activities remain eligible for abandoned mine land reclamation funding if the proposed remining operation does not adversely affect existing or probable abandoned mine land reclamation plans and associated costs of reclamation related to such areas, and if this is documented in the application.

(2) Any remining operation must fulfill the reclamation responsibilities described in the permit. To the extent that these responsibilities do not include reclamation of site problems or characteristics otherwise eligible for abandoned mine land funding, these site problems or characteristics may remain eligible for that funding.

(3) The applicant may choose to adopt a reclamation plan for the site that is on file with the department, provided that the applicant demonstrates that this plan is in compliance with ARM 17.24.835.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-239, 82-4-242, MCA
History: NEW, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1990 MAR p. 936, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.837 Remining: Bonding

(1) Bond must be submitted consistent with 82-4-223, MCA, and subchapter 11, except as noted below.

(2) The performance bond for the area must be the estimated total cost to the department for reclamation of the site in accordance with the approved reclamation plan.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-223, MCA
History: NEW, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1990 MAR p. 936, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Subchapter 17.24.9 Strip and Underground Mine Reclamation Act: Underground Coal and Uranium Mining

Mont. Admin. R. 17.24.901 General Application and Review Requirements

(1) In addition to appropriate material required under subchapter 3, any plan for underground mining must include the following:

(a) a detailed description, with appropriate drawings, of permanent entry seals and down-slope barriers designed to ensure stability under anticipated hydraulic heads developed while promoting mine inundation after mine closure for the proposed mine plan area;

(b) descriptions, including appropriate maps and cross-section drawings, of the proposed disposal methods and sites for placing waste and excess spoil generated at surface areas affected by surface operations and facilities. Each plan must describe the geotechnical-investigation, design, construction, operation, maintenance and removal, if appropriate, of the structures and be prepared according to ARM 17.24.313, 17.24.320, 17.24.505, 17.24.510, and 17.24.520;

(c)

(i) a complete subsidence control plan for the proposed operation which must include:

(A) a map of the proposed underground workings;

(B) the proposed technique of coal extraction, such as longwall, room and pillar, hydraulic mining, or other methods;

(D) a description of the physical and geological conditions, such as depth of cover, seam thickness, and lithology of overlying strata, affecting the subsidence potential;

(E) an analysis of the amount and lateral extent of planned or controlled subsidence anticipated, using acceptable geotechnical practices, including specific methods proposed for the control of subsidence;

(F) a survey, including a map at 1":400' scale or larger as determined by the department and a narrative, which shows the location and type of all structures, renewable resource lands, and domestic water supplies within the permit area and adjacent areas, and whether subsidence, if it should occur, could cause material damage or diminish the reasonably foreseeable use of such structures or lands, or could contaminate, diminish, or interrupt such domestic water supplies; and

(G) of the structures and domestic water supplies identified in (1)(c)(i)(F) (the structure survey requirements of ARM 17.24.911(4) notwithstanding), a survey of the condition of all non-commercial buildings or occupied residential dwellings and structures related thereto, and a determination, in accordance with ARM 17.24.304(1)(e) and (1)(f), of the quality and quantity of all domestic water supplies.

(I) The applicant must submit copies of the results of this survey and determination to the surface owner of the land where the above structures and domestic water supplies are found, as well as to the department.

(II) If the applicant cannot make this survey and determination because the surface owner will not allow access, the applicant must notify the surface owner, in writing, of the effect that denial of access will have on the rebuttable presumption of causation of subsidence as stated in ARM 17.24.911(8)(b). This notification must be documented in the application;

(ii) If the plan shows that no such structures or renewable resource lands, or domestic water supplies exist, or that no such material damage or diminution of the reasonably foreseeable use of such structures or lands, and no contamination, diminution, or interruption of such water supplies would occur as a result of mine subsidence, and if the department agrees with such conclusion, no further information must be provided in the application under this section;

(iii) In the event the survey shows such structures, renewable resource lands, or water supplies exist, and that subsidence could cause material damage or diminution of value or foreseeable use of the land or contamination, diminution, or interruption of such water supplies, or if the department determines that such damage or diminution or contamination, diminution, or interruption could occur, the application must include the following information:

(A) a detailed description of the measures to be taken to prevent subsidence and subsidence-related damage, including:

(I) the anticipated effects of planned subsidence, if any, and a map of the proposed underground mine workings which shows the location and extent of the areas in which planned-subsidence mining methods will be used and that identifies all areas where the measures in (1)(e)(i)(C) will be taken to prevent subsidence-related damage;

(II) measures, if any, to be taken in the mine to prevent subsidence including, but not limited to, such measures as backstowing or backfilling of voids, leaving support pillars of coal, and areas in which no coal removal is planned, including a description of the overlying area to be protected by leaving coal in place;

(III) measures to be taken on the surface to prevent material damage or diminution of the value or the reasonably foreseeable use of structures or the surface, including such measures as reinforcement of sensitive structures or features, installation of footers designed to reduce damage caused by movement, change of location of pipelines, utility lines, or other features, relocation of movable improvements to sites outside the angle-of-draw, and monitoring to determine the commencement and degree of subsidence so that other appropriate measures can be taken to prevent material damage in accordance with ARM 17.24.911. For areas where planned subsidence is proposed, written consent or request by the owners of non-commercial buildings and occupied residential dwellings and structures related thereto that material damage prevention measures should not or need not be taken may be provided in lieu of a description of prevention measures to be taken;

(B) a detailed description of the measures to be taken to mitigate the effects of any material damage or diminution of value or foreseeable use of lands that may occur, including one or more of the following:

(I) restoration or rehabilitation of structures and features, including approximate land-surface contours, to premining condition;

(II) replacement of structures and water sources adversely affected by subsidence;

(III) purchase of structures prior to mining and restoration of the land after subsidence to a condition capable of supporting and suitable for the structures and foreseeable land uses; and

(IV) purchase of non-cancelable insurance policies payable to surface owner in the full amount of the possible material damage or other comparable measures;

(C) a detailed description of measures to be taken to determine the degree of material damage or diminution of value or foreseeable use of the surface, including such measures as:

(I) the results of presubsidence surveys of all structures and surface features that might be materially damaged by subsidence;

(II) monitoring proposed to measure deformations near specified structures or features or otherwise as appropriate for the operation;

(D) any other information that the department deems necessary to demonstrate compliance with ARM 17.24.911;

(d) location of each water and subsidence monitoring point;

(e) location of each facility that will remain on the proposed permit area as a permanent feature, after the completion of underground mining operations;

(f) a description of the design, operation and maintenance of any proposed processing waste disposal facility, including flow diagrams and any other necessary drawings and maps, for the approval of the department and the mine safety and health administration;

(g) a description of the source and quality of waste to be stowed, area to be backfilled, percent of the mine void to be filled, method of constructing underground retaining walls, influence of the backfilling operation on the active underground mine operations, surface area to be supported by the backfill, and the anticipated occurrence of surface effects following backfilling, including:

(i) a description of the source of the hydraulic transport mediums, method of dewatering the placed backfill, retention of water underground, treatment of water if released to the surface; and

(ii) a description of each permanent monitoring well to be located in the backfilled area, the stratum underlying the mined coal, and gradient from the backfilled area.

(h) a complete description, where applicable, of any hydraulic mining or transport system for coal, including:

(i) the source of the hydraulic medium;

(ii) methods for dewatering the coal;

(iii) methods for control or containment of water underground; and

(iv) treatment of water to be released at the surface, if any.

(2) The requirements of (1)(g) and (h) also apply to pneumatic backfilling operations, except where the operations are exempted by the department from requirements specifying hydrologic monitoring.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 1999 MAR p. 2768, Eff. 12/3/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.902 Application Requirements for in Situ Coal Processing Operations

(1) Except as provided in ARM 17.24.905, an application for a permit for in situ coal processing operations must be made according to all requirements of ARM 17.24.901. In addition, the mining and reclamation operations plan for operations involving in situ processing operations must contain information establishing how those operations will be conducted in compliance with the requirements of ARM 17.24.907, including:

(a) delineation of proposed holes and wells and production zones for approval of the department;

(b) specifications of drill holes and casings proposed to be used;

(c) a plan for treatment, confinement or disposal of all acid-forming, toxic-forming or radioactive gases, solids, or liquids constituting a fire, health, safety or environmental hazard caused by the mining and recovery process; and

(d) plans for monitoring surface and ground water and air quality as required by the department.

(2) No permit may be issued for in situ coal processing operations unless the department first finds, in writing, upon the basis of a complete application, that the operation will be conducted in compliance with all requirements of ARM 17.24.903 through 17.24.907.

History

Authorizing statute(s): 82-4-205, 82-4-207, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2012 MAR p. 1617, Eff. 8/10/12; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.903 General Performance Standards

(1) In addition to all appropriate requirements of subchapters 4 through 8, and 10 through 13, except ARM 17.24.519 and as provided in ARM 17.24.905, the following requirements apply to underground mining operations:

(a) Each prospecting hole, other drill hole or borehole, shaft, well, or other exposed underground opening must be cased, lined, or otherwise managed as approved by the department to prevent acid or other toxic drainage from entering ground and surface waters, to minimize disturbance to the prevailing hydrologic balance and to ensure the safety of people, livestock, fish and wildlife, and machinery in the mine plan and adjacent area, and the safety and integrity of underground mines in the area, present and future. Each prospecting hole, drill hole, borehole, or well that is uncovered or exposed by mining operations must be permanently sealed, in compliance with ARM 17.24.1005, unless approved for water monitoring or otherwise managed in a manner approved by the department. Use of a drilled hole or monitoring well as a water well must meet the provisions of ARM 17.24.647. This rule does not apply to holes drilled and used for blasting in the area affected by surface operations.

(b) Each mine entry, open to the surface, that is temporarily inactive, but has a further projected useful service under the approved permit application, must be protected by barricades or other covering devices, fenced, and posted with signs to prevent access into the entry and to identify the hazardous nature of the opening. These devices must be periodically inspected and maintained in good operating condition by the operator.

(c) Each prospecting hole, other drill hole or borehole, shaft, well, and other exposed underground opening that has been identified in the approved permit application for use to return underground development waste, coal processing waste, water to underground workings, or to be used to monitor ground water conditions, must be temporarily sealed until actual use.

(d) When no longer needed for monitoring or other use approved by the department and upon a finding of no adverse environmental or health and safety effects, each shaft, drift, adit, tunnel, prospecting hole, entry way or other opening to the surface from underground must be capped, sealed, backfilled, or otherwise properly managed, as required by the department in accordance with (1)(a), (g), (h), and (i). Permanent closure measures must be designed to prevent access to the mine workings by people, livestock, fish, wildlife, and machinery and to keep acid or other toxic drainage from entering ground or surface waters.

(e) In addition to the measures identified in ARM 17.24.631 through 17.24.646, the following practices are acceptable for minimizing water pollution in underground mines:

(i) designing mines to prevent gravity drainage of acid waters;

(ii) sealing;

(iii) controlling subsidence; and

(iv) preventing acid mine drainage;

(f) In addition to the requirements of ARM 17.24.633(1), any discharge of water from underground workings to surface waters that does not meet the effluent limitations of ARM 17.24.633 must also be passed through a sedimentation pond, a series of sedimentation ponds, or a treatment facility before leaving the permit area.

(g) In addition to the requirements of ARM 17.24.633(2), sedimentation ponds and treatment facilities that receive discharges from underground workings must be maintained until the discharge continuously meets the effluent limitations of ARM 17.24.633 without treatment or until the discharge has permanently ceased.

(h) Surface entries and accesses to underground workings, including adits and slopes, must be located, designed, constructed, and utilized to prevent or control gravity discharge of water from the mine.

(i) Gravity discharge of water from an underground mine, other than a drift mine in an acid-producing or iron-producing coal seam, may be allowed by the department, if it is demonstrated that:

(i)

(A) the discharge, without treatment, satisfies the water effluent limitations of ARM 17.24.633 and all applicable state and federal water quality standards; and

(B) any changes in the prevailing hydrologic balance are minimal and the approved postmining land uses will not be adversely affected; or,

(ii)

(A) the discharge is conveyed to a treatment facility in the permit area in accordance with ARM 17.24.633 through 17.24.640;

(B) all water from the underground mine discharged from the treatment facility meets the effluent limitations of ARM 17.24.633 and all other applicable state and federal statutes and regulations; and

(j) For a drift mine located in acid-producing or iron-producing coal seams, surface entries and accesses must be located in such a manner as to prevent any gravity discharge from the mine.

(2) Adversely affected water supplies must be replaced in accordance with 82-4-243 and 82-4-253, MCA, and ARM 17.24.648.

History

Authorizing statute(s): 82-4-205, 82-4-207, MCA
Implementing statute(s): 82-4-227, 82-4-231, 82-4-232, 82-4-233, 82-4-243, 82-4-253, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 1617, Eff. 8/10/12; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.904 In Situ Coal Processing Operation Performance Standards

(1) An operator who conducts in situ coal processing operations shall comply with ARM 17.24.903.

(2) In situ coal processing operations must also be planned and conducted to minimize disturbance to the prevailing hydrologic balance by:

(a) avoiding discharge of fluids into holes or wells, other than as approved by the department;

(b) injecting process recovery fluids only into geologic zones or intervals approved as production zones by the department;

(d) preventing discharge of process fluid into surface waters.

(3) An operator who conducts in situ coal processing operations shall follow a plan approved pursuant to ARM 17.24.902.

(4) An operator who conducts in situ coal processing operations shall prevent flow of the process recovery fluid:

(a) horizontally beyond the affected area identified in the permit; and

(b) vertically into overlying or underlying aquifers.

(5) An operator who conducts in situ coal processing operations shall restore the quality of affected ground water in the mine plan and adjacent areas, including ground water above and below the production zone, to the approximate premining levels or better, to ensure that the potential for use of the ground water is not diminished.

(6) An operator who conducts in situ coal processing operations shall monitor the quality and quantity of surface and ground water and the subsurface flow and storage characteristics, in a manner approved by the department under ARM 17.24.645 and 17.24.646 to measure changes in the quantity and quality of water in surface and ground water systems in the mine plan and adjacent areas. Air and water quality monitoring must be conducted in accordance with monitoring programs approved by the department as necessary according to appropriate federal and state air and water quality standards.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, 82-4-231, 82-4-232, 82-4-233, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.905 Rules Not Applicable to in Situ Coal Operations

(1) The following rules are not applicable to in situ coal gasification:

(a) ARM 17.24.311 (Air Pollution Control Plan);

(b) ARM 17.24.519 (Monitoring for Settlement); and

(2) All other rules may apply on a mine-specific basis.

History

Authorizing statute(s): 82-4-207, MCA
Implementing statute(s): 82-4-221, 82-4-222, 82-4-223, 82-4-225, 82-4-227, 82-4-228, 82-4-231, 82-4-232, 82-4-233, 82-4-237, 82-4-238, 82-4-240, 82-4-243, MCA
History: NEW, 2012 MAR p. 1617, Eff. 8/10/12; AMD, 2014 MAR p. 678, Eff. 4/11/14.

Mont. Admin. R. 17.24.907 In Situ Uranium Processing Operation Performance Standards

(1) With regard to the subsurface hydrologic effects of in situ uranium mining, the operator shall comply with all rules of the department, and the operator's bond shall ensure compliance with those rules. With regard to all other effects, the performance standards of this subchapter apply.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, 82-4-231, 82-4-232, 82-4-233, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.911 Subsidence Control

(1) Underground mining operations must be planned and conducted to prevent or minimize subsidence and subsidence-related material damage to the surface to the extent technologically and economically feasible, to maintain the value and reasonably foreseeable use of surface lands, and to prevent contamination, diminution, and interruption of domestic water supplies. This may be accomplished by leaving adequate coal in place, backfilling, or other measures to support the surface, or by conducting underground mining in a manner that provides for planned and controlled subsidence.

(2) If the operator utilizes planned and controlled subsidence in the mining operation, all necessary measures must be taken to prevent material damage to non-commercial buildings and occupied residential dwellings and all structures related thereto. Such measures are not required if the operator has the written consent of the owners of such structures.

(3) Nothing herein prohibits the standard method of room and pillar mining.

(4) A person engaged in underground mining operations shall comply with all provisions of the subsidence control plan prepared pursuant to ARM 17.24.901 and approved by the department.

(5) A mining schedule must be distributed by mail to all owners of property and residents within the area above the underground workings and adjacent areas. The operator shall notify each such person by mail at least 6 months prior to mining beneath his or her property or residence. The notification must contain, at a minimum:

(a) identification of specific areas in which mining will take place;

(b) dates of mining activities that could cause subsidence and affect specific structures; and

(6) Upon request to the department by a resident or owner of a structure within the affected area, the operator shall promptly conduct a premining survey of the dwelling or structure as follows:

(a) Any survey requested more than 30 days before the planned initiation of said operations must be completed by the operator before the initiation of the operations.

(b) The survey must determine the condition of the dwelling or structure and document any premining damage. It should identify any physical features which could reasonably be affected by subsidence caused by mining. Special attention must be given to the premining condition of wells and other water systems used for human, animal, or agricultural purposes and to the quantity and quality of that water. Assessment of such features as pipes, cables, transmission lines, wells, or other water systems must be limited to the surface condition and relatively available data.

(c) If a structure is renovated or added to subsequent to a premining survey, then upon request to the department a survey of such additions or renovations must be performed.

(d) A written report of the survey must be prepared and signed by the person conducting the survey. Copies of the report must be provided to the person requesting the report and to the department. If the person requesting the survey disagrees with the results of the survey, he or she may notify, in writing, both the operator and the department of the specific areas of disagreement.

(7) An operator who conducts underground mining which results in subsidence that causes material damage or reduces the value or reasonably foreseeable use of the surface lands shall, in accordance with 82-4-243, MCA, and with respect to each surface area affected by subsidence:

(a) restore, rehabilitate, or remove and replace each damaged structure, feature or value promptly after the damage is suffered to the condition it would have been in if no subsidence had occurred and restore the land to a condition capable of supporting the reasonably foreseeable uses it was capable of supporting before subsidence; or

(b) purchase the damaged structure or feature for its fair market, presubsidence value, and, after subsidence occurs, to the extent technologically and economically feasible, promptly restore the land surface to a condition capable of and suitable for supporting the purchased structure and other foreseeable uses it was capable of supporting before mining. Nothing in this section grants or authorizes an exercise of the power of condemnation or the right of eminent domain by any person engaged in underground mining operations; or

(c) compensate the owner of any surface structure in the full amount of the diminution in value resulting from subsidence, by purchasing, prior to mining, a noncancellable, premium-prepaid insurance policy or other means approved by the department, thereby assuring before mining begins that payment will occur; indemnify every person with an interest in the surface for all damages suffered as a result of the subsidence; and, to the extent technologically and economically feasible, fully restore the land to a condition capable of maintaining reasonably foreseeable uses which it could support before subsidence.

(8) If damage to any non-commercial building or occupied residential dwelling or structure related thereto occurs as a result of earth movement within an area determined by projecting a specified angle of draw from the outermost boundary of any underground mine workings to the surface of the land, a rebuttable presumption of causation of the damage by subsidence exists. The presumption applies to a 30-degree angle of draw.

(a) An operator or permit applicant may request that the presumption apply to an angle of draw different from 30 degrees. The department may approve application of the presumption to a site-specific angle of draw different from 30 degrees if an operator or applicant demonstrates and the department determines in writing that the proposed angle of draw has a more reasonable basis than 30 degrees, based on a site-specific geotechnical analysis of the potential surface impacts of the mining operation.

(b) If the operator or applicant is denied access to the land or property for the purpose of conducting the presubsidence survey in accordance with ARM 17.24.901(1)(c)(i)(G) , no rebuttable presumption exists.

(i) the damage predated the mining in question;

(ii) the damage was proximately caused by some other factor or factors and was not proximately caused by subsidence; or

(iii) the damage occurred outside the surface area circumscribed by the angle of draw.

(d) In any determination whether damage to protected structures was caused by subsidence from underground mining, all relevant and available information will be considered by the department.

(9) Within a schedule approved by the department, the operator shall submit a detailed plan of the underground workings. The plan shall include maps and descriptions of significant features of the underground workings, including the size, configuration, and approximate location of pillars and entries, extraction ratios, measures taken to prevent subsidence and related damages, areas of full extraction, and other information required by the department.

(10) If subsidence-related damage occurs, additional bond in accordance with ARM 17.24.1104(2) may be required.

History

Authorizing statute(s): 82-4-205, 82-4-231, MCA
Implementing statute(s): 82-4-227, 82-4-231, 82-4-243, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.912 Buffer Zones

(1) Underground mining operations must not be conducted beneath or adjacent to any perennial stream or impoundment having a storage volume of 20 acre-feet or more, unless the department, on the basis of detailed subsurface information, determines that subsidence will not cause material damage to streams, water bodies and associated structures. If subsidence causes material damage, then measures will be taken to the extent technologically and economically feasible to correct the same and to prevent additional subsidence from occurring.

(2) Underground mining operations beneath any aquifer that serves as a significant source of water supply to any public water system must be conducted so as to avoid disruption of the aquifer and consequent exchange of ground water between the aquifer and other strata. The department may prohibit mining in the vicinity of the aquifer or may limit the percentage of coal extraction to protect the aquifer and water supply.

(3) Underground mining operations must not be conducted beneath or in close proximity to any public buildings, including, but not limited to, churches, schools, hospitals, courthouses, and government offices, unless the department, on the basis of detailed subsurface information, determines that subsidence from those operations would not cause material damage to these structures and specifically authorizes the mining operations.

(4) The department shall suspend underground mining under urbanized areas, cities, towns, and communities, and adjacent to industrial or commercial buildings, major impoundments or permanent streams if it finds imminent danger to inhabitants of the urbanized areas, cities, towns, or communities.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.920 Placement and Disposal of Underground Development Waste: Special Application Requirements

(1) Each application must contain, where applicable, a narrative and appropriate maps and cross-sections prepared to meet the standards of ARM 17.24.305, describing the proposed disposal methods and sites for placing underground development waste in accordance with ARM 17.24.924 through 17.24.927.

(2) Each plan must describe the geotechnical investigation, design, construction, operation, maintenance, and removal, if appropriate, of the site or structure and be prepared in accordance with ARM 17.24.320.

History

Authorizing statute(s): 82-4-205, 82-4-231, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1990 MAR p. 936, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.924 Disposal of Underground Development Waste: General Requirements

(1) To the extent that underground development waste is not proposed for backstowing, it must be demonstrated, to the satisfaction of the department, that valid physical, economic, safety, environmental or other reasons exist for not doing so. Underground development waste to be returned to underground mine workings must be disposed of in accordance with a program approved by the department and the mine safety and health administration.

(2) Underground development waste materials from activities located outside the permit area may be disposed of in the permit area only with approval of the department. Approval must be based upon a showing that disposal will be in accordance with this rule and all applicable rules.

(3) Underground development waste must be hauled or conveyed to and placed in designated disposal areas within a permit area. Underground development waste may not be placed in an impoundment or an embankment. The waste must be placed in a controlled manner to ensure:

(a) that the leachate and surface runoff will be in compliance with ARM 17.24.631 and 17.24.633;

(b) stability and prevention of mass movement during and after construction;

(c) that reclamation and revegetation of the waste disposal area will be achieved in accordance with subchapters 5 through 8, except, in the case of waste disposal structures outside of mine excavation areas, those provisions of subchapter 5 related to approximate original contour are not required;

(d) that a public hazard will not be created; and

(e) that combustion will not occur.

(4)

(a) Each waste disposal structure must be designed using current prudent design standards, certified by a licensed professional engineer experienced in the design of similar earth and waste structures, and approved by the department.

(b) Waste disposal structures must meet the requirements of 30 CFR 77.214 and 77.215.

(5) All vegetation and other organic materials must be removed from the disposal site and the soil must be removed, segregated, and stored or replaced pursuant to ARM 17.24.701 through 17.24.703. If approved by the department, organic material may be used as mulch or may be included in the soil to control erosion, promote growth of vegetation, or increase moisture retention of the soil.

(6) Slope protection must be provided to minimize surface erosion at the site. Diversions necessary to control erosion, prevent water infiltration, and ensure stability must be installed. Diversion design must conform with the requirements of ARM 17.24.635 through 17.24.637. All disturbed areas, including diversion ditches that are not riprapped, must be vegetated upon completion of construction.

(7) Except for head-of-hollow and valley fills, disposal structures must be located on the most moderately sloping and naturally stable areas available, except that the department may approve disposal in another area upon determining that disposal in that area would be more environmentally protective. Materials suitable for disposal must be placed upon or above a natural terrace, bench, or berm, if such placement provides additional stability and prevents mass movement.

(8) The waste must be hauled or conveyed and placed in horizontal lifts of not greater than four feet in thickness in a controlled manner, concurrently compacted as necessary to ensure mass stability and prevent mass movement, and graded to allow surface and subsurface drainage to be compatible with the natural surroundings and ensure a long-term static safety factor of 1.5.

(9) Following final grading of the waste disposal structure, the waste must be covered with a minimum of four feet of the best available non-toxic and non-combustible material, in a manner that does not impede drainage from the underdrains, unless the applicant demonstrates and the department finds that a lesser depth will provide for revegetation consistent with ARM 17.24.711, 17.24.713, 17.24.714, 17.24.716 through 17.24.718, 17.24.721, 17.24.723 through 17.24.726, and 17.24.731. Toxic, acid-forming, and other deleterious waste must be handled and covered in accordance with ARM 17.24.501(2) and 17.24.505(2).

(10) The final configuration of a structure must be suitable for postmining land uses approved in accordance with ARM 17.24.762, except that no depressions or impoundments may be placed on the completed structure.

(11) The final configuration of the structure must be designed to minimize erosion. Terraces may be utilized to control erosion and enhance stability if approved by the department. The outslope of the fill must not exceed 1v:3h, unless otherwise approved in writing by the department, but in no case may the outslope exceed 1v:2h.

(12) Where the natural slope of the disposal site exceeds 1v:3h, or such lesser slope as may be designated by the department based on local conditions, keyway cuts (excavations to stabilized bedrock) or rock toe buttresses must be constructed to stabilize the fill. Where the toe of the underground development waste rests on a downslope, stability analyses must be performed in accordance with ARM 17.24.320 to determine the size of the rock toe buttresses and keyway cuts.

(13) If the disposal site contains springs, natural or manmade watercourses, or wet-weather seeps, an underdrain system consisting of durable rock must be constructed in a manner that prevents infiltration of the water into the underground development waste material and to ensure stability of the disposal structure.

(14) The underdrain system for a structure must be constructed in accordance with the following:

(a) Underdrains must consist of non-degradable, non-acid and non-toxic-forming rock such as natural sand and gravel, sandstone, limestone, or other durable rock that will not slake in water and will be free of coal, clay or other nondurable material.

(b) A system of underdrains must:

(i) be installed along the natural drainage system;

(ii) extend from the toe to the head of the fill; and

(iii) contain lateral drains to each area of potential drainage or seepage.

(c) A filter system to insure the proper functioning of the rock underdrain system must be designed and constructed using standard geotechnical engineering methods.

(d) In constructing the underdrains, no more than 10 percent of the rock may be less than 12 inches in size and no single rock may be larger than 25 percent of the width of the drain. The minimum size of the main underdrain must meet the following specifications:

Total amount of fill material | Predominant type of fill material | Minimum size of drain, in feet Width | Height Less than 1,000,000 yd\ | sandstone | 10 | 4 yd\ | shale | 16 | 8 More than 1,000,000 yd\ | sandstone | 16 | 8 yd\ | shale | 16 | 16

(15) Drainage must not be directed over the outslope of the fill.

(16) Surface water runoff from the area above a structure must be diverted away from the structure and into stabilized diversion channels designed to pass safely the runoff from a 100-year, six-hour precipitation event or larger event specified by the department. Surface runoff from the structure surface must be diverted to stabilized channels off the fill that will safely pass the runoff from a 100-year, six-hour precipitation event. Diversion design must comply with the requirements of ARM 17.24.637.

(17) The foundation and abutments of a structure must be stable under all conditions of construction and operation. Sufficient foundation investigation and laboratory testing of foundation materials must be performed in order to determine the design requirements for stability of the foundation. Analyses of foundation conditions must include the effect of underground mine workings, if any, upon the stability of the structure.

(18)

(a) A qualified licensed professional engineer, or other qualified professional specialist under the direction of the professional engineer, shall inspect each structure during construction. The professional engineer or specialist must be experienced in the construction of earth and waste structures.

(b) The inspections must be made at least quarterly throughout construction and during critical construction periods. The department may require more frequent inspections during any construction period, as necessary. Critical construction periods include, at a minimum:

(i) foundation preparation including the removal of all organic material and soil;

(ii) placement of underdrains and protective filter systems;

(iii) installation of final surface drainage systems; and

(iv) the final grading and revegetation of the site.

(c) Quarterly inspections by the engineer or specialist must also be conducted during placement and compaction of underground development waste. More frequent inspections must be conducted if the department determines that a danger of harm exists to the public health and safety or the environment or that more frequent inspection is necessary to ensure compliance. Inspections must continue until the waste disposal structure has been finally graded and revegetated or until a later time as required by the department.

(d) The qualified licensed professional engineer shall provide a certified report to the department within seven working days after each inspection that the structure has been constructed and maintained as designed and in accordance with the approved plan and this subchapter. The report must include appearances of instability, structural weakness, and other hazardous conditions.

(e) The certified report on the drainage system and protective filters must include color photographs taken during and after construction, but before underdrains are covered with underground development waste. If the underdrain system is constructed in phases, each phase must be certified separately. The photographs accompanying each certified report must be taken in adequate size and number with enough terrain or other physical features of the site shown to provide a relative scale to the photographs and to specifically and clearly identify the site.

(f) A copy of each inspection report must be retained at or near the minesite.

(19) If any inspection discloses that a potential hazard exists, the department must be informed promptly of the finding and of the emergency procedures formulated for public protection and remedial action. If adequate procedures cannot be formulated or implemented, the department must be notified immediately. The department shall then notify the appropriate emergency agencies that other emergency procedures are required to protect the public. The department shall also notify the owner of land upon which the disposal structure is located (if that owner is different from the mining company), adjacent landowners, residences, and businesses that could be adversely affected, including those at least one mile down gradient from the disposal site, of the potential hazard and of the actions being taken.

(20) Disposal of underground waste by incorporation into spoils backfill of excavation areas must be in accordance with (3) and (19).

History

Authorizing statute(s): 82-4-205, 82-4-231, MCA
Implementing statute(s): 82-4-227, 82-4-231, 82-4-232, 82-4-233, MCA
History: NEW, 1990 MAR p. 936, Eff. 5/18/90; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 1999 MAR p. 2768, Eff. 12/3/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.925 Disposal of Underground Development Waste: Valley Fill

(1) Disposal of underground development waste in valley fills must meet all the requirements of ARM 17.24.924, and the following additional requirements of this rule.

(2) The fill must be designed to attain a long-term static safety factor of 1.5 and the design must be based upon data obtained from subsurface prospecting, geotechnical testing, foundation design, and accepted engineering analyses.

(3) Underground development waste must be hauled or conveyed and placed in a controlled manner and concurrently compacted as specified by the department, in lifts no greater than 4 feet, or less if required by the department, to:

(a) achieve densities designed to ensure mass stability;

(b) prevent mass movement;

(d) prevent formation of voids.

(4) The top of the fill must be graded no steeper than 1v:5h, unless otherwise approved in writing by the department.

(5) To control surface runoff, each terrace bench must be graded to a slope of 1v:20h toward the fill. A ditch must be constructed on the inside of each terrace to intercept runoff and divert it toward the channels specified in ARM 17.24.924(16).

History

Authorizing statute(s): 82-4-205, 82-4-231(10)(h), MCA
Implementing statute(s): 82-4-227, 82-4-231, 82-4-232, 82-4-233, MCA
History: NEW, 1990 MAR p. 936, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.926 Disposal of Underground Development Waste: Head-of-Hollow Fill

(1) Disposal of underground development waste in a head-of-hollow fill must meet all the requirements of ARM 17.24.924 and 17.24.925.

(2) The drainage control system for the head-of-hollow fill must be capable of passing safely the runoff from a 100-year, six-hour precipitation event, or larger event specified by the department.

History

Authorizing statute(s): 82-4-205, 82-4-231, MCA
Implementing statute(s): 82-4-227, 82-4-231, 82-4-232, 82-4-233, MCA
History: NEW, 1990 MAR p. 936, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.927 Disposal of Underground Development Waste: Durable Rock Fills

(1) The department may approve disposal of underground development waste in a durable rock fill on a site-specific basis, provided the method of construction is certified by a licensed professional engineer experienced in the design of earth and rockfill embankments and provided the requirements of ARM 17.24.924 and this rule are met. Underground development waste is eligible for disposal in durable rock fills if it is rock material consisting of at least 80% by volume of sandstone, limestone, or other rocks that do not slake in water and that are non-acid, non-toxic, non-acid-forming and non-toxic-forming. Resistance of the waste to slaking must be determined by using the slake index and slake durability tests in accordance with guidelines and criteria established by the department. Underground development waste must be transported and placed in a specified and controlled manner that will ensure stability of the fill.

(a) The method of waste placement must be designed to ensure mass stability and prevent mass movement.

(b) Loads of noncemented clay shale and/or clay underground development waste in the fill must be mixed with hard rock underground development waste in a controlled manner to limit on a unit basis concentrations of noncemented clay shale and clay in the fill. These noncemented materials must comprise no more than 20% of the fill volume as determined by tests performed by a registered professional engineer and approved by the department.

(2) A qualified licensed professional engineer shall conduct stability analyses in accordance with ARM 17.24.920 and shall certify that the design of the durable rock fill will ensure the stability of the fill and meet all other applicable requirements.

(a) Parameters used in the stability analyses must be based on adequate field reconnaissance, subsurface investigations, including borings, and laboratory tests.

(b) The durable rock fill must be designed with the following factors of safety:

(3) The design of the durable rock fill must include an internal drainage system, in accordance with ARM 17.24.924(14), that will ensure continued free drainage of anticipated seepage from precipitation and from springs or wet-weather seeps.

(a) Anticipated discharge from springs and seeps must be based on records and/or field investigations to determine seasonal variation. The design of the internal drainage system must be based on the maximum anticipated discharge.

(b) All granular material used for the drainage system must be free of clay and consist of durable particles such as natural sands and gravels, sandstone, limestone, or other durable rock that do not slake in water.

(4) Surface water runoff from the areas adjacent to and above the fill must not be allowed to flow into the fill and must be diverted into stabilized channels that are designed to pass safely the runoff from a 100-year, six-hour precipitation event. Diversion design must comply with the requirements of ARM 17.24.637.

(5) The top surface of the completed fill must be graded such that the final slope after settlement will be no steeper than 1v:5h, unless otherwise approved in writing by the department, toward properly designed drainage channels constructed in undisturbed ground along the periphery of the fill. Surface runoff from the top of the fill must not be allowed to flow over the outslope of the fill.

(6) Surface runoff from the outslope of the fill must be diverted off the fill to properly designed channels that will pass safely a 100-year, six-hour precipitation event. Diversion design must comply with the requirements of ARM 17.24.637.

(7) Terraces must be constructed on the outslope if necessary for control of erosion. Terraces must meet the following requirements:

(a) The slope of the outslope between terrace benches must not exceed 1v:3h, unless otherwise approved in writing by the department.

(b) To control surface runoff, each terrace bench must be graded to a slope of 1v:20h toward the fill.

(c) A ditch must be constructed on the inside of each terrace to intercept runoff and divert it toward the channels specified in (6).

History

Authorizing statute(s): 82-4-205, 82-4-231, MCA
Implementing statute(s): 82-4-227, 82-4-231, 82-4-232, 82-4-233, MCA
History: NEW, 1990 MAR p. 936, Eff. 5/18/90; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.930 Placement and Disposal of Coal Processing Waste: Special Application Requirements

(1) Each application must contain, where applicable, a narrative explaining the construction, modification, use, maintenance, removal, and reclamation of coal processing waste removal, handling, storage, transportation and disposal sites and structures in the permit area in accordance with ARM 17.24.932, including appropriate maps that meet the requirements of ARM 17.24.305 and describing the location of each source of waste, waste storage area, and waste disposal structure.

(2) Each application must contain a general plan and detailed design plan for each coal processing waste disposal area and structure proposed within the permit area.

(a) Each general plan must:

(i) be prepared by, or under the direction of and certified by a qualified licensed professional engineer experienced in the construction of earth and rock fill embankments;

(ii) contain a description, a map prepared according to ARM 17.24.305, and appropriate cross-sections of the structure and its location;

(iii) contain hydrologic and geologic information required to assess the hydrologic impact of the structure;

(iv) contain a survey describing the potential effect on the structure from subsidence of the subsurface strata resulting from past or future underground mining activities; and

(v) contain a certification statement that includes a schedule setting forth the dates that any detailed design plan for structures that are not submitted with the general plan will be submitted to the department. The department must have approved, in writing, the detailed design plan for a structure before construction of the structure begins.

(b) Each detailed design plan for a structure must:

(i) be prepared by, or under the direction of, and certified by a qualified registered professional engineer experienced in the construction of earth and rock embankments with assistance from experts in related fields such as geology, land surveying, and landscape architecture;

(ii) describe the operation and maintenance requirements for each structure;

(iii) describe the timetable and plans to remove each structure, if appropriate; and

(iv) include geotechnical investigations and design and construction specifications for the structure.

(3) If the application includes a proposal to impound coal processing waste, the following is required:

(a) design information and impoundment operation that meets the requirements of ARM 17.24.505(5);

(b) demonstration of compliance with the requirements of 30 CFR 77.216-1 and 77.216-2;

(c) the results of a geotechnical investigation of the proposed dam or embankment and impoundment foundation areas to determine the structural competence of the geological materials there to support the dam or embankment and impounded wastes. The geotechnical investigation must be planned and supervised by an engineer or engineering geologist in accordance with the following criteria:

(i) the number, location, and depth of borings and test pits must be determined using current prudent engineering practice for the size of the dam or embankment, quantity of wastes to be impounded, and subsurface conditions;

(ii) the character of the overburden and bedrock, the proposed abutment sites, and any adverse geotechnical conditions which may affect the particular dam, embankment, or impoundment site must be considered;

(iii) all springs, seepage, and ground water flow observed or anticipated during wet periods in the area of the proposed dam or embankment must be identified;

(iv) consideration must be given to the possibility of mudflows, rock-debris falls, or other landslides into the dam, embankment, or impounded wastes; and

(d) if the dam or embankment is at least 20 feet high or the impoundment has a proposed capacity of more than 20 acre-feet:

(i) a stability analysis, which must include, but not be limited to, strength parameters, pore pressures, and long-term seepage conditions; and

(ii) a description of each engineering design assumption and calculation with a discussion of each option considered in selecting the specific design parameters and construction methods.

History

Authorizing statute(s): 82-4-205, 82-4-231, MCA
Implementing statute(s): 82-4-222, MCA
History: NEW, 1990 MAR p. 936, Eff. 5/18/90; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.932 Disposal of Coal Processing Waste

(1) To the extent that coal processing waste is not proposed for backstowing, it must be demonstrated to the satisfaction of the department that valid physical, economic, safety, environmental or other reasons exist for not doing so. Coal processing waste to be returned to underground mine works must be disposed of in accordance with a program approved by the department and the mine safety and health administration.

(2) All coal processing waste that is not backstowed must be hauled or conveyed and placed in new and existing disposal areas approved by the department. These areas must be within a permit area.

(3) Coal processing waste may be disposed of in head-of-hollow or valley fill configurations, including in an underground development waste fill, if the processing waste is:

(a) placed in accordance with (6) through (10);

(b) demonstrated to be non-toxic, non-acid-forming, and otherwise nondeleterious or disposed of in accordance with ARM 17.24.505; and

(4) Coal processing waste materials from activities located outside a permit area, such as those activities at other mines or abandoned mine waste piles, may not be disposed of in the permit area unless it can be demonstrated that:

(a) disposal will be conducted in accordance with ARM 17.24.510; and

(b) there will be no instability of the disposal area or the fill.

(5)

(a) All coal processing waste disposal areas must be inspected, on behalf of the operator, by a qualified and licensed professional engineer, in accordance with ARM 17.24.924 and the additional requirements of this section.

(b) Inspection must occur at least quarterly, beginning within seven days after the preparation of the disposal area begins, and be made in accordance with the same critical construction period schedule as contained in ARM 17.24.924(18)(b). The department may require more frequent inspection based upon an evaluation of the potential danger to the health or safety of the public and the potential harm to land, air and water resources.

(c) Inspections must include such observations and tests as may be necessary to evaluate the potential hazards to human life and property, to ensure that all organic material and soil have been removed and that proper construction and maintenance are occurring in accordance with the plan submitted under ARM 17.24.930 and approved by the department.

(d) The inspector shall consider steepness of slopes, seepage, and other visible factors which could indicate potential failure, and the results of failure with respect to the threat to human life and property.

(6) Coal processing waste disposal areas and structures must be designed, constructed, and reclaimed in compliance with ARM 17.24.924 and the requirements of this rule. In addition, if disposal in valley or head-of-hollow fill is proposed, the relevant requirements of ARM 17.24.925 and 17.24.926 apply.

(7) A properly designed subdrainage system must be installed. Each system must:

(a) freely drain all water discharged beneath the fill;

(b) be protected by an adequate filter;

(d) meet the requirements of ARM 17.24.924(13).

(8)

(a) During construction or modification of all coal processing waste structures, coal processing waste must be:

(i) spread in layers no more than 24 inches in thickness; and

(ii) compacted to attain 90% of the maximum dry density to prevent spontaneous combustion and to provide the strength required for stability of the coal processing waste. Dry densities must be determined in accordance with the American Association of State Highway and Transportation Officials (AASHTO) Specifications T99-93 (sixteenth edition, 1993) or an equivalent method. This publication is on file and available for inspection at the Helena and Billings offices of the department.

(b) Variations may be allowed in the requirements of (a) above for disposal of dewatered fine coal waste (minus 28 sieve size) with approval of the department.

(9) Following grading of the coal processing waste disposal area, the site must be covered with a minimum of 4 feet of the best available non-toxic and non-combustible material, and in a manner that does not impede flow from subdrainage systems. Toxic, acid-forming and other deleterious coal processing waste must be handled and covered in accordance with ARM 17.24.501(2) and 17.24.505(2). The coal processing waste disposal area must be revegetated in accordance with subchapter 7.

(10) Coal processing waste fires must be extinguished by the operator in accordance with a plan approved by the department and in compliance with the applicable requirements of the mine safety and health administration. The plan must contain, at a minimum, provisions to ensure that only those persons authorized by the operator and who have an understanding of the procedures to be used may be involved in the extinguishing operations.

History

Authorizing statute(s): 82-4-205, 82-4-231, MCA
Implementing statute(s): 82-4-227, 82-4-231, 82-4-232, 82-4-233, MCA
History: NEW, 1990 MAR p. 936, Eff. 5/18/90; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 1999 MAR p. 2768, Eff. 12/3/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Subchapter 17.24.10 Strip and Underground Mine Reclamation Act: Prospecting

Mont. Admin. R. 17.24.1001 Permit Requirement

(1) A person who intends to prospect for coal or uranium on land not included in a valid strip or underground mining permit must obtain a prospecting permit from the department if the prospecting will be:

(a) conducted to determine the location, quality, or quantity of a mineral deposit and will substantially disturb, as defined in ARM 17.24.301, the natural land surface; or

(b) conducted to determine the location, quality, or quantity of mineral using drilling operations; or

(c) conducted on an area designated unsuitable for strip or underground coal mining pursuant to 82-4-227 or 82-4-228, MCA, or ARM 17.24.1131.

(2) An application for a prospecting permit must be made on forms provided by the department and, except for an application for a coal drilling operation that is subject to the application and review requirements of 82-4-226(8), MCA, must be accompanied by the following information:

(a) the name, address, and telephone number of the applicant and, if applicable, the representative of the applicant who will be present at and be responsible for the prospecting;

(b) documentation that the proposed prospecting program would not adversely affect any area possessing special, exceptional, critical, or unique characteristics as defined in 82-4-227, MCA. The applicant shall promptly report the existence of such characteristics if in the course of prospecting he becomes aware of them;

(c) identification of any historical, archaeological, and ethnological values in the area to be affected to the same extent required for a permit application by ARM 17.24.304(1)(b) and possible mitigating measures to be exercised should any of those values be encountered;

(d) for any lands protected under 82-4-227(13), MCA, or ARM 17.24.1131, a demonstration that, to the extent technologically and economically feasible, the proposed prospecting activities will minimize interference with the values for which those lands were designated. The application must include documentation of consultation with the owner of the feature causing the land to come under the designation, and, when applicable, with the agency with primary jurisdiction over the feature with respect to the values that caused the land to be so designated;

(e) a narrative description of the significant fish and wildlife species and habitats in the general area of operations, including rare and endangered species and critical habitats, as listed by the U.S. fish and wildlife service and other appropriate agencies, and written documentation from appropriate management agencies that the proposed prospecting activity will not adversely affect such species;

(f) documentation that habitats of unique or unusually high value to fish and wildlife would not be disturbed;

(g) a narrative description of the local topographic and geologic formations, scenic values, and vegetation in the area to be affected;

(h) a prospecting map that meets the following requirements:

(i) the map must be of sufficient size and scale to adequately show all areas to be prospected. Standard United States geological survey topographic quadrangle maps must be used as base maps, if available;

(ii) whenever prospecting by test hole is proposed, the maps must include proposed locations of test holes. Specific locations for initial prospecting shall be shown by quarter section, section, township, and range. New road construction for drill rig or seismic equipment access must be clearly indicated on the maps. Permanent roads, and roads that are to be abandoned, must be identified;

(iii) each map must contain:

(A) proposed excavations or test pits and disposal areas for excavated earth and waste materials shown by location and size;

(B) locations of streams, lakes, stockwater ponds, wells, and springs that are known or readily discoverable proximate to prospecting operations;

(D) location of occupied dwellings and pipelines;

(E) a description and location of historic, topographic, cultural and drainage features;

(F) the location of habitat of species described in (e); and

(G) the name, address, and phone number of surface owners and surface lessees of the land affected;

(H) a certification in the same form required in ARM 17.24.305(2)(b);

(i) a narrative description of the prospecting program including at a minimum:

(i) a description of the proposed method of prospecting;

(ii) the type of equipment to be used in the prospecting;

(iii) the size, depth, and number and location by legal description, of proposed drill holes (refer to map location), the depth(s) of any known subsurface ground water occurring above the deepest projected depth of the prospecting operation, the drilling medium used (air, water, mud, etc.), and the method of containing drilling fluids;

(iv) a description of the plugging procedures and materials used to comply with the provisions of ARM 17.24.1005(3);

(v) a discussion of preventive and corrective measures that will be taken to guard against or correct water pollution problems that may develop with streams, lakes, stockwater ponds, wells or springs, and other measures proposed to be followed to protect the environment from adverse impacts;

(vi) a plan showing earth moving proposed for roads, disposal pits, and drill sites in compliance with ARM 17.24.1006(2) and 17.24.1009; and

(vii) a drill hole marking technique that provides durable markers and that will allow the department to locate the drill hole for bond release inspection purposes;

(j) the mineral or minerals to be prospected;

(k) a listing of all surface and subsurface estate owners, their current mailing addresses and phone;

(l) copies of the documents upon which the applicant bases his or her legal right to prospect for the mineral or minerals on the land affected;

(m) documentation that the owners of the land affected have been notified and understand that the department must make investigations and inspections necessary to ensure compliance with the Act, applicable rules, and permit conditions;

(n) an estimated timetable for conducting and completing each phase of prospecting and reclamation;

(o) the measures to be taken to comply with the performance standards of this subchapter;

(p) the proposed post-disturbance land use; and

(q) the proposed public notice of the prospecting activities and proof of publication, in accordance with ARM 17.24.303(1)(x). The procedures of ARM 17.24.401(3) and (5), 17.24.402, and 17.24.403 must be followed in the processing of a prospecting permit application.

(3) A prospecting permit is issued on a yearly basis and is subject to renewal, suspension, and revocation in the same manner as a strip or underground mining permit.

(4) Each person who conducts prospecting shall, while in the prospecting area, have available a copy of the prospecting permit for review by the department upon request.

(5) Prospecting operations conducted pursuant to a prospecting permit are subject to all provisions of this subchapter except ARM 17.24.1018.

(6) The department may not approve a prospecting permit application unless the application affirmatively demonstrates and the department finds in writing, on the basis of information set forth in the application or information otherwise available that is compiled by the department, that:

(a) the application is complete and accurate and that the prospecting and reclamation will be conducted in accordance with all applicable requirements of this subchapter;

(b) the proposed prospecting operation will not jeopardize the continued existence of endangered or threatened species or result in destruction or adverse modifications of their critical habitats;

(c) the application complies with applicable federal and state cultural resource requirements, including ARM 17.24.318, 17.24.1131 and 17.24.1137; and

(d) the proposed prospecting activities will meet the requirements of (2)(d) and that the owner of the feature causing any land to come under a protected designation, pursuant to 82-4-227(13), MCA, or ARM 17.24.1131, and, when applicable, with the agency with primary jurisdiction over the feature with respect to the values that caused the land to be so designated, have been provided the opportunity to comment on the department’s finding on this matter.

(7) Prospecting-related activities or facilities that are conducted or created in accordance with this rule and ARM 17.24.1002 through 17.24.1014 and 17.24.1016 through 17.24.1019 must be transferred to a valid strip or underground mining permit whenever such activities or facilities become part of mine operations in conjunction with ARM 17.24.308(1)(b) or 17.24.609.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-226, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1995 MAR p. 31, Eff. 1/13/95; AMD, 1995 MAR p. 2263, Eff. 10/27/95; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1002 Information and Monthly Reports

(1) Whenever the department must investigate possible environmental damage or complaints which may occur as a direct result of prospecting activities, the prospector shall furnish sufficient information to the department to facilitate such investigation. Such information must include, but is not limited to, stratigraphic findings, geophysical and lithological logs, construction details (for example, on roads and environmental monitoring sites), and related data.

(2) A monthly report must be submitted for each successive 30-day period no later than the 15th of the following month, provided, however, that monthly reports need not be submitted for 30-day periods of inactivity. Reports must include, but are not limited to, the following information:

(a) the legal description (to nearest ten acres) of each bore and core hole drilled, and drill hole identification numbers;

(b) updated maps showing bore and core hole locations and identification numbers, as well as drill hole additions, deletions or relocations;

(d) total depth and diameter of each hole drilled;

(e) trade name and amount of abandonment material used on each drilled hole;

(f) results of additional mud, cement, concrete or other grout tests required by the department (i.e., gel strength, fluid loss or water-chemical analyses, etc.) completed for each hole drilled and abandoned or converted to a well;

(g) depths of all encountered water-bearing zones for each hole drilled, including all artesian conditions;

(h) depth of all lost circulation zones;

(i) a detailed report of all prospecting holes converted to water or monitor wells including:

(i) water-bearing zone developed (depth, formation name, lithology);

(ii) type of material used to case, grout, seal and cap each well;

(iii) casing diameter; and

(iv) anticipated plans for the well;

(j) description of any activity that substantially disturbs land or water resources pursuant to ARM 17.24.301(120);

(k) mapped location of any surface disturbance such as road, disposal pit, or mud pit construction;

(l) mapped location and description of areas seeded or otherwise reclaimed; and

(m) anticipated location of activity in next reporting period.

(3) Annual reports must be filed in accordance with 82-4-226(6) and 82-4-237, MCA, and must include the information required under (2) for all activities conducted during the report year.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-226, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1995 MAR p. 31, Eff. 1/13/95; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1003 Renewal and Transfer of Permits

(1) An application for renewal of a prospecting permit must be submitted by the permittee on forms provided by the department. The application must be submitted at least 15 days prior to the anniversary date of the permit and must include:

(a) the number of drill holes permitted;

(b) the number of drill holes disturbed;

(d) the number of acres of land disturbed by the operation;

(e) the number of drill holes and other disturbances that have been reclaimed and the extent such has been carried out; and

(f) an updated map that shows all revisions to the current permit.

(2) No transfer or assignment of any prospecting permit may be made without the prior written approval of the department.

(3) The department may not approve any transfer or assignment of any permit unless the potential transferee or assignee:

(a) obtains the performance bond coverage of the original permittee by:

(i) obtaining transfer of the original bond;

(iii) providing sufficient bond to cover the original permit in its entirety from inception to completion of reclamation operations; and

(b) provides the department with an application for approval of such proposed transfer, assignment, or sale, including:

(i) the name and address of the existing permittee;

(iii) the same information as is required in subchapter 10 for applications for new permits.

(4) The successor shall immediately provide notice to the department of the consummation of the transfer, assignment, or sale of permit rights. Upon receipt of this notice, the department shall release the original permittee from all obligations not retained under (3).

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-226, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1004 Environmental Monitoring

(1) As prescribed or approved by the department, the permittee shall monitor important environmental characteristics of the area during prospecting to ensure minimization of environmental damage to the area.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-226, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1005 Drill Holes

(1) Prospecting operations must be conducted to completely avoid:

(a) degradation or diminution of any existing or potential water supply; and

(b) adverse impacts to existing or potential mining operations. All prospecting holes must be abandoned in accordance with the following provisions unless the hole has been transferred as a water well in compliance with ARM 17.24.647 or unless a delay is approved by the department.

(2) The prospector shall use appropriate techniques to:

(a) prevent the escape of water, oil, or gas from all drill holes;

(b) prevent contamination of all surface and ground waters, and prevent interaquifer mixing;

(d) reclaim all surface impacts and prevent settling that may result from prospecting-related activities.

(3) Unless alternative procedures are approved or required by the department, the prospector shall use the following reclamation techniques:

(a) cuttings must be spread over the earth's surface to a depth less than 1/2 inch or be removed to an approved disposal pit. Cuttings must not be placed in the hole. Proper soil salvage and reclamation techniques consistent with ARM 17.24.501 and 17.24.701 through 17.24.703 must be used at the disposal pit;

(b) whenever a cased drill hole is not transferred to the affected landowner as a water well, the casing must be cut off at the surface on rangeland and two feet below the surface on cropland or pastureland;

(c) promptly after prospecting on a site is completed, and unless otherwise approved by the department, all drill holes must be abandoned in accordance with the following:

(i) Whenever circulation is lost to the formation or artesian conditions are encountered, a homogeneous cement grout must be slurried into the hole from the bottom to within two feet of the surface and topsoil placed in the remaining two feet.

(ii) Whenever circulation is not lost, a swelling bentonitic clay grout with no less than 50% bentonite solids per unit volume must be placed in each abandoned drill hole, from the bottom of the hole to within two feet of the land surface. Precautions must be taken to ensure that no bridging occurs between the bottom and top of the hole. The entire hole must be filled with the grout to form a continuous grout column from bottom of the hole to two feet below the natural land surface.

(iii) A magnetic marker must be placed on the top of the grout. The remaining two feet of the hole must be backfilled with cuttings or suitable soil material;

(d) A detailed description of all methods and materials to be used for casing and grouting all water wells, monitor wells, or holes that are not abandoned in accordance with (c) immediately after drilling must be provided to the department. All cased holes, water wells, and monitor wells must be completed in a manner approved by the department. All wells and other drill holes must be constructed and maintained in compliance with the performance standards contained in ARM 17.24.632, 17.24.647, 17.24.1005, and 17.24.1011 through 17.24.1013, and ARM Title 36, chapter 21, subchapters 6 and 8.

(4) If excavations, artificially flat areas, or embankments are created for or during prospecting, they must be promptly returned to approximate original contour after they are no longer needed for prospecting.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-226, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1995 MAR p. 31, Eff. 1/13/95; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1006 Roads and Other Transportation Facilities

(1) The prospector shall limit vehicular travel on other than established graded and surfaced roads to the minimum that is necessary to conduct the prospecting. Travel must be confined to graded and surfaced roads during periods when excessive damage to vegetation or erosion of the land surface could result.

(2) Any new roads or other transportation facilities constructed for prospecting activities must meet the requirements of ARM 17.24.601 through 17.24.608 and 17.24.609(2).

(3) Existing roads and transportation facilities may be used for prospecting in accordance with the following:

(a) All applicable federal, state, and local requirements must be met.

(b) Whenever the road is significantly altered, including, but not limited to, change of grade, widening, or change of route, or if use of the road contributes additional suspended solids to streamflow or runoff, ARM 17.24.1009 applies to all areas of the road that are altered or that result in additional contributions.

(c) Whenever the road or other transportation facility is substantially disturbed by prospecting, the design, construction, alteration, maintenance, and reclamation of the road must meet the appropriate requirements of ARM 17.24.601 through 17.24.608 and 17.24.609(2).

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-226, 82-4-231, 82-4-232, 82-4-233, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1995 MAR p. 31, Eff. 1/13/95; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1007 Grading, Soil Salvage, Storage and Redistribution

(1) Excavations, artificially flat areas, or embankments that are created during prospecting must be returned to the approximate original contour promptly after the features are no longer needed for prospecting.

(2) All soil handling must be conducted in compliance with ARM 17.24.701 through 17.24.703. Prior to any surface disturbance, all soil suitable for reclamation use must be salvaged and stored in an area that will be undisturbed and not subject to excessive wind or water erosion. Exceptions may be granted if the operator demonstrates that the site-specific disturbance would be insignificant and that soil loss, contamination, or impairment of quality would not occur. Immediately upon cessation of operations, the soil must be replaced with the surface left in a roughened condition in such a manner that the disturbed area blends smoothly with the adjacent undisturbed land surface.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-226, 82-4-231, 82-4-232, 82-4-233, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1995 MAR p. 31, Eff. 1/13/95; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1008 Revegetation

After soil has been replaced in disturbed areas, appropriate legumes, forbs, grasses, shrubs, and trees must be established unless otherwise approved by the department. The revegetation must form a diverse, effective, and permanent vegetative cover of the same seasonal variety native to the area of the land affected and be capable of:

(1) prompt stabilization of the soil surface; and

(2) self-regeneration and plant succession at least equal in extent of cover to the natural vegetation of the area. The vegetative cover must be capable of meeting the criteria set forth in 82-4-233(1), MCA.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-226, 82-4-231, 82-4-232, 82-4-233, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1009 Diversions

(1) With the exception of small and temporary diversions of overland flow of water around new roads, drill pads, test pits, and support facilities, no ephemeral, intermittent, or perennial stream may be diverted.

(2) Overland flow of water must be diverted in a manner that:

(a) prevents erosion;

(b) to the extent possible, using the best technology currently available, prevents additional contributions of suspended solids to streamflow or runoff; and

(c) complies with applicable portions of ARM 17.24.635 and 17.24.636 and all other applicable state or federal requirements.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-226, 82-4-231, 82-4-232, 82-4-233, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1995 MAR p. 31, Eff. 1/13/95; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1010 Removal of Equipment

All equipment and facilities must be promptly removed from the prospecting area when no longer needed for exploration or reclamation, except for equipment and facilities that the department determines may remain to:

(1) provide additional environmental quality data;

(2) reduce or control the on- and off-site effects of the prospecting operations; or

(3) facilitate future strip or underground mining operations by the permittee.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-226, 82-4-231, 82-4-232, 82-4-233, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1011 Hydrologic Balance

(1) Prospecting must be conducted to minimize disturbance of the prevailing hydrologic balance in accordance with ARM 17.24.631 through 17.24.634, 17.24.638 through 17.24.651 and must include appropriate sediment control measures, such as those listed in ARM 17.24.638 or sedimentation ponds that comply with the requirements of ARM 17.24.639. The department may specify additional measures.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-226, 82-4-231, 82-4-232, 82-4-233, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1995 MAR p. 31, Eff. 1/13/95; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1012 Toxic- or Acid-Forming Materials

(1) Toxic- or acid-forming materials must be handled and disposed of in accordance with ARM 17.24.505, 17.24.507, and 17.24.510. Additional measures may be specified by the department.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-226, 82-4-231, 82-4-232, 82-4-233, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1013 Drilling

If drilling is proposed, the prospecting plan must comply with the following:

(1) drill sites must not be constructed within 100 feet of stream channelways (dry or flowing) or in an area where drilling-related materials may enter stream channelways. The department may grant site- or condition-specific exemptions to the 100-foot requirement;

(2) excavations and dozer work must be kept to a minimum. All reasonable efforts must be made to locate drill sites in areas where no dozer work is necessary;

(3) portable mud pits must be used unless otherwise approved by the department;

(4) drilling mud and all other fluids must be confined to the site. Cuttings must be disposed of in accordance with ARM 17.24.1005(3)(a).

(5) All refuse from drilling operations must be completely disposed of by hauling to an approved landfill dump, unless the department approves an alternate method of disposal that will be as environmentally protective.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-226, 82-4-231, 82-4-232, 82-4-233, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1014 Test Pits: Application Requirements, Review Procedures, Bonding, and Additional Performance Standards

(1) In addition to all the other performance standards set forth in ARM 17.24.1005 through 17.24.1012, prospecting test pits must also comply with the following requirements:

(a) Test pits or other excavations must be located out of stream channels (dry or flowing) unless otherwise approved by the department.

(b) Applications, permits, bonds, prospecting activities, and related procedures, and reclamation relating to test pits or excavations that are to produce test shipments of minerals, must comply with the applicable provisions of subchapters 3 and 5 through 9, and ARM 17.24.1101 through 17.24.1122, 17.24.1125, 17.24.1129, and 17.24.1131 through 17.24.1138.

(2) An application for a coal test pit prospecting permit must contain:

(a) a demonstration that the test pit extraction method is necessary for development of a mining operation for which an operating permit application is to be submitted in the near future and that the minerals are being extracted for testing purposes only;

(b) the name of the testing firm and the locations at which the coal will be tested;

(c) if the coal will be sold directly to, or commercially used directly by, the intended end user, a statement from the intended end user, or, if the coal is sold through a broker or agent, a statement from the broker or agent, that contains:

(i) the specific reason for the test, including why the mineral may be so different from the end user's other mineral supplies as to require testing;

(ii) a statement of the amount of mineral necessary for the test and why a lesser amount is not sufficient; and

(iii) a description of the specific tests that will be conducted;

(d) evidence that sufficient reserves of mineral are available to the person conducting the prospecting or its principals for future commercial use or sale to the intended end user, or agent or broker of such user identified above, to demonstrate that the amount of mineral to be removed is not the total reserve, but is a sampling of a larger reserve; and

(e) an explanation as to why other means of prospecting, such as core drilling, are not adequate to determine the quality of the mineral and the feasibility of developing a mining operation.

(3) An application for a test pit must include a timetable for the sampling and reclamation activities.

(4) Subchapter 4 is applicable to test pit prospecting permit applications and permits with the following requirements:

(a) The notice of application published by the applicant must contain, in addition to the information required in ARM 17.24.401(3) , the date the application was filed.

(b) The affirmative demonstration and written findings required for the application by ARM 17.24.405(6) must also include the items listed in (2) above.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-226, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1995 MAR p. 31, Eff. 1/13/95; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1016 Bond Requirements for Drilling Operations

(1) The department shall require bond in an amount equal to the estimated cost to the department for reclamation, restoration, and abatement work as committed to in the approved permit. Minimum bond on all active permits must not be less than $200 per acre, with a minimum total of $10,000. Bond must be submitted as described in ARM 17.24.1101 through 17.24.1110, unless otherwise noted below.

(2) Separate bonds are required for each permit. Permits are issued on a county basis.

(3) Each drill site is considered to be 1.0 acre unless otherwise approved by the department.

(4) Bond must be retained for a minimum period of five years after initial reclamation of areas disturbed by prospecting activities.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-223, 82-4-226, MCA
History: NEW, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1017 Bond Release Procedures for Drilling Operations

(1) Bond release may be requested at the following times:

(a) Partial release may be requested and granted after:

(i) downhole plugging is completed; and

(ii) backfilling and grading, pursuant to the approved plan, is completed;

(b) Complete release may be requested and granted after:

(i) expiration of the responsibility period of ARM 17.24.1016(4) and the remaining requirements of this subchapter have been met; or

(ii) when a well has been drilled, completed, and transferred in accordance with ARM 17.24.647; or

(iii) a determination has been made by the department that sites remain undisturbed.

(2) The bond release application must be submitted in duplicate and must include:

(a) a completed application on forms provided by the department;

(b) copies of letters sent to surface owners and county commissioners in the county or consolidated government in which the prospecting occurred. The letters must notify those persons of the permittee's intent to seek release of performance bond. These letters must include the same information required in (3);

(c) final updated, certified maps that include the precise location of each prospecting disturbance and each permitted site that remains undisturbed. Maps must be of a workable scale with topographic delineations equal to or better than those found on United States geological survey topographic maps;

(d) an affidavit of publication of the advertisement as required by (3). The affidavit must be submitted within 60 days of the date of filing of the application; and

(e) a legal description (to within 10 acres) of each disturbance.

(3) At the time of filing an application for bond release, the permittee shall advertise the filing of the application in a newspaper of general circulation in the locality of the permit area. The advertisement must:

(a) be placed in the newspaper at least once a week for two consecutive weeks;

(b) contain the name of the permittee, the permit number, and the date of issuance or renewal of the permit;

(d) describe the extent of disturbance, in acres, or for prospecting drilling, the total number of drill holes;

(e) indicate total performance bond held and the amount of bond release requested;

(f) indicate whether reclamation was completed as approved with regard to surface and subsurface disturbances; and

(g) state that written comments, objections, and requests for public hearing may be submitted to the department within 30 days of the last date of publication of the notice, and provide the address of the department.

(4) Written objections, comments, and requests for an informal conference, may be filed by any affected person within 30 days following the last date of advertisement of the filing of the application. For the purpose of this rule, an "affected person" is:

(a) any person with a valid legal interest which may be adversely affected by bond release; or

(b) any federal, state or local government agency that:

(i) has jurisdiction by law with respect to any environmental, social, or economic impact involved; or

(ii) is authorized to develop and enforce environmental standards with respect to strip or underground mining operations.

(5) The department shall inspect and evaluate the reclamation for which bond release is requested within a reasonable period of time after receiving a complete application for bond release. Affected persons shall be given notice of such inspection and may participate in the inspection.

(6) Informal conferences may be requested in the same manner provided in ARM 17.24.1113.

(7) Notice of decision must be made in the same manner as is required for operating permit bonds under ARM 17.24.1114.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-226, 82-4-232, 82-4-235, MCA
History: NEW, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1018 Notice of Intent to Prospect

(1) This rule applies to a prospecting operation that is outside an area designated unsuitable for coal mining pursuant to 82-4-227 or 82-4-228, MCA, and that is:

(a) conducted for the purpose of gathering environmental data to establish the conditions of an area before beginning strip or underground mining; or

(b) conducted to determine drill hole locations and access routes prior to submittal of an application to prospect to determine the location, quality, and quantity of a mineral reserve.

(2) A person who conducts a prospecting operation as described in (1) must, before conducting the prospecting operations, file with the department a notice of intent to prospect that meets the requirements of (3) and (4). A notice of intent to prospect is effective for one year after it is filed. If prospecting activities described in a notice are not conducted within the year, they may be incorporated by reference in a subsequent notice of intent to prospect.

(3) The notice must include copies of the documents upon which the applicant bases his or her legal right to prospect on the land affected.

(4) The notice must document that the owners of the land affected have been notified and understand that the department shall make investigations and inspections necessary to ensure compliance with the Act, applicable rules, and notice of intent conditions. The notice must also include the current mailing address and phone number of each affected landowner.

(5) A notice of intent for prospecting activities that will not substantially disturb, as defined in ARM 17.24.301, the natural land surface must contain the following:

(a) a map of sufficient size and scale to adequately show all areas to be prospected. Standard United States geological survey topographic quadrangle maps, or other similar map showing the same level of detail, must be used as base maps. The following must be clearly identified on the map:

(i) topography (minimum of ten-foot contours), locations of streams, lakes, stockwater ponds, wells, and springs that are known or readily discoverable proximate to the prospecting operations;

(ii) surface ownership;

(iii) roads and access routes;

(iv) locations of proposed installations of monitoring facilities; and

(v) location of occupied dwellings and pipelines; and

(b) sufficient additional information to demonstrate to the department's satisfaction that the prospecting activity will not substantially disturb the natural land surface.

(6) A notice of intent to prospect for prospecting operations that will substantially disturb, as defined in ARM 17.24.301, the natural land surface, must contain the following to the extent that it is applicable to the proposed prospecting operation:

(a) information required in ARM 17.24.1001(2)(a) through (i), and (2)(l) through (n);

(b) a statement that information required in ARM 17.24.1002(1) and (2) will be provided;

(c) a statement that prospecting activities will be conducted in compliance with the requirements of ARM 17.24.1004 through 17.24.1013 and sufficient information to demonstrate to the department's satisfaction that the performance standards of these rules will be met.

(7) Within 30 days of receipt of a notice of intent to prospect, the department shall notify the person who filed the notice whether the notice meets the requirements of this rule.

(8) Each person who conducts prospecting under a notice of intent shall, while in the prospecting area, have available to the department for review upon request a copy of the notice of intent to prospect.

(9) All provisions of this subchapter, except ARM 17.24.1001, 17.24.1003, 17.24.1014, 17.24.1016, 17.24.1017, and 17.24.1019 apply to a notice of intent to prospect.

History

Authorizing statute(s): 82-4-226, MCA
Implementing statute(s): 82-4-226, MCA
History: NEW, 1995 MAR p. 31, Eff. 1/13/95; AMD, 1995 MAR p. 2263, Eff. 10/27/95; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12.

Mont. Admin. R. 17.24.1019 Permit Requirement - Short Form

(1) This rule applies to a prospecting operation that is outside an area designated unsuitable and conducted to determine the location, quality, or quantity of a coal deposit pursuant to 82-4-226(7), MCA, that does not remove more than 250 tons of coal and that does not substantially disturb the natural land surface.

(2) A person who conducts a coal prospecting operation pursuant to (1) must, before conducting the prospecting operations, file with the department a prospecting permit application on a form provided by the department. Prospecting operations must not be conducted until the department has reviewed the application pursuant to 82-4-226(8), MCA, and issued a permit.

(3) All provisions of this subchapter, except ARM 17.24.1001(1), (2), and (4) through (6), 17.24.1006(2) and (3)(b) and (c), 17.24.1007, 17.24.1009, 17.24.1014, and 17.24.1018 apply to a prospecting operation permitted pursuant to 82-4-226(8), MCA.

History

Authorizing statute(s): 82-4-226, MCA
Implementing statute(s): 82-4-226, MCA
History: NEW, 2012 MAR p. 737, Eff. 4/13/12.

Subchapter 17.24.11 Strip and Underground Mine Reclamation Act: Bonding, Insurance, Reporting, and Special Areas

Mont. Admin. R. 17.24.1101 Bonding: Definitions

For purposes of this rule, the following definitions apply:

(1) "Surety bond" means an indemnity agreement in a sum certain payable to the department executed by the permittee which is supported by the performance guarantee of a corporation licensed to do business as a surety in Montana.

(2) "Collateral bond" means an indemnity agreement in a sum certain payable to the department executed by the permittee and which is supported by the deposit with the department of cash, negotiable bonds of the United States, state or municipalities, negotiable certificates of deposit or an irrevocable letter of credit of any bank organized or authorized to transact business in the United States.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-223, 82-4-232, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1102 Bonding: Determination of Bond Amount

The standard applied by the department in determining the amount of performance bond is the estimated cost to the department if it had to perform the reclamation, restoration, and abatement work required of an operator or a prospecting permittee under the Act, the rules adopted thereunder, and the permit. This amount is based on, but not limited to:

(1) the estimated costs submitted by the permittee in accordance with ARM 17.24.313 and, if applicable, costs estimated by using current machinery production handbooks and publications or other documented costs acceptable to the department;

(2) the additional estimated costs to the department which may arise from applicable public contracting requirements or the need to bring personnel and equipment to the permit area after its abandonment by the permittee to perform reclamation, restoration, and abatement work;

(3) all additional estimated costs necessary, expedient, and incident to the satisfactory completion of the requirements identified in this rule;

(4) an additional amount based on factors of cost changes during the preceding 5 years for the types of activities associated with the reclamation to be performed; and

(5) such other cost information as may be required by or available to the department.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-223, 82-4-232, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1103 Bonding: Period of Responsibility for Alternate Revegetation Is Repealed

Publisher status: INEFFECTIVE (not currently effective).

History

Authorizing statute(s): 82-4-204, 82-4-205, MCA
Implementing statute(s): 82-4-223, 82-4-232, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; REP, 1999 MAR p. 811, Eff. 4/23/99.

Mont. Admin. R. 17.24.1104 Bonding: Adjustment of Amount of Bond

(1) The amount of the performance bond must be increased, as required by the department, as the acreage in the permit area increases, methods of mining operation change, standards of reclamation change or when the cost of future reclamation, restoration or abatement work increases. The department shall notify the permittee of any proposed bond increase and provide the permittee an opportunity for an informal conference on the proposal. The department shall review each outstanding performance bond at the time that permit reviews are conducted under ARM 17.24.414 through 17.24.416 and reevaluate those performance bonds in accordance with the standards in ARM 17.24.1102.

(2) When subsidence-related material damage to land, structures, or facilities protected under ARM 17.24.911(7)(a) through (c) occurs, or when contamination, diminution, or interruption to a domestic water supply protected under ARM 17.24.903(2) occurs as a result of underground mining activities, the department shall require the operator to obtain additional performance bond in the amount of the estimated cost of the repairs if the operator will be repairing damage, or in the amount of the decrease in value if the operator will be compensating the owner, or in the amount of the estimated cost to replace the protected water supply if the operator will be replacing the water supply, until the repair, compensation, or replacement is completed. If repair, compensation, or replacement is completed within 90 days of the occurrence of damage, no additional bond is required. The department may extend the 90-day time frame, not to exceed one year, if the operator demonstrates and the department finds in writing that subsidence is not complete, that not all probable subsidence-related material damage has occurred to lands or protected structures, or that not all reasonably anticipated changes affecting the protected water supply have occurred, and that therefore it would be unreasonable to complete within 90 days the repair of the subsidence-related material damage to lands or protected structures, or the replacement of a protected water supply.

(3) A permittee may request reduction of the required performance bond amount upon submission of evidence to the department proving that the permittee's method of operation or other circumstances not related to the completion of reclamation work will reduce the maximum estimated cost to the department to complete the reclamation responsibilities and therefore warrant a reduction of the bond amount. Bond reductions which involve undisturbed land, disturbed land previously released from reclamation liability in accordance with ARM 17.24.1111 through 17.24.1115 and 17.24.1116(6), or revision of the cost estimate of reclamation are not considered bond release subject to procedures of ARM 17.24.1111. Any other request to reduce a performance bond must be considered as a request for partial bond release in accordance with the procedures of ARM 17.24.1111 through 17.24.1116.

(4) For bond adjustment requests on undisturbed land, the permittee shall submit a map of the area in question and shall revise the appropriate active permit maps. The department shall then conduct an inspection of the proposed area before responding to such requests.

(5) The amount of disturbance within a permit area must not exceed the amount bonded for.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-223, 82-4-232, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1105 Bonding: Form of Bond

The form for the performance bond must be as provided by the department. The department shall allow for either:

(1) a surety bond; or

(2) a collateral bond.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-223, 82-4-232, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1106 Bonding: Terms and Conditions of Bond

(1) In addition to the requirements of 82-4-223, MCA, surety bonds must be subject to the following requirements:

(a) the department may not accept surety bonds from a surety company for any person, on all permits held by that person, in excess of three times the company's maximum single obligation as provided in (1)(b);

(b) the department may not accept surety bonds from a surety company that is not listed in the U.S. Department of the Treasury's listing of approved sureties (Circular 570); and

(c) the surety bond must provide a mechanism for the surety company to give prompt notice to the department and the permittee of any action alleging bankruptcy or insolvency of the surety or the permittee, or violation that would result in suspension or revocation of the license of the surety.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-223, 82-4-232, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1107 Bonding: Incapacity of Surety

(1) Upon the incapacity of a surety by reason of bankruptcy, insolvency or suspension or revocation of its license, the permittee shall be deemed to be without bond coverage, and shall promptly notify the department in the manner described in the bond. The department, upon notification received through the procedures of this rule or from the permittee, shall, in writing, notify the operator who is without bond coverage and specify a reasonable period, not to exceed 90 days, to replace bond coverage. If an adequate bond is not posted by the end of the period allowed, the operator shall cease coal extraction and shall comply with the provisions of ARM 17.24.522 and shall immediately begin to conduct reclamation operations in accordance with the reclamation plan. Mining operations must not resume until the department has determined that an acceptable bond has been posted.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-223, 82-4-232, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1108 Bonding: Certificates of Deposit

(1) The department may not accept an individual certificate for a denomination in excess of $100,000, or maximum insurable amount as determined by the federal deposit insurance corporation, the federal savings and loan insurance corporation, or the national credit union administration.

(2) The department may only accept automatically renewable certificates of deposit issued by a bank insured by the federal deposit insurance corporation or a credit union insured by the national credit union administration.

(3) The department shall require the applicant to deposit sufficient amounts of certificates of deposit, to assure that the department will be able to liquidate those certificates prior to maturity, upon forfeiture, for the amount of the bond required by ARM 17.24.1102.

(4) The department shall require that each certificate of deposit be made payable to or assigned to the department, both in writing and in the records of the bank issuing the certificate. The department shall require banks or credit unions issuing these certificates to waive all rights of setoff or liens against these certificates.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-223, 82-4-232, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 2768, Eff. 12/3/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1109 Bonding: Letters of Credit

(1) Letters of credit are subject to the following conditions:

(a) The letter must be issued by a bank organized or authorized to do business in the United States.

(b) The letter must be irrevocable prior to a release by the department in accordance with ARM 17.24.1111.

(c) The letter must be payable to the department in part or in full upon demand and receipt from the department of a notice of forfeiture issued in accordance with ARM 17.24.1117.

(d) The letter must not be for an amount in excess of 10% of the bank's capital surplus account as shown on a balance sheet certified by a certified public accountant for the most recent annual reporting period.

(e) Using the balance sheet referenced in (1)(d) and a certified income and revenue sheet, the bank must meet the three following criteria:

(i) the bank must be earning at least a 1% return on total assets (net income/total assets = 0.01 or more);

(ii) the bank must be earning at least a 10% return on equity (net income/total stockholders equity = 0.1 or more); and

(iii) capital or stockholders' equity must be at least 5.5% of total assets ((total stockholders equity [capital stock + capital surplus + retained earnings])/total assets = 0.055 or more).

(f) The bank's qualifications must be reviewed yearly prior to the time the letter of credit is renewed.

(g) The department may not accept letters of credit from a bank for any person, on all permits held by that person, in excess of three times the company's maximum single obligation.

(h) The department may provide in the indemnity agreement that the amount must be confessed to judgment upon forfeiture, if this procedure is authorized by state law.

(i) The department shall provide that:

(i) the bank shall give prompt notice to the permittee and the department of any notice received or action filed alleging the insolvency or bankruptcy of the bank or permittee, or alleging any violations of regulatory requirements that could result in suspension or revocation of the bank's charter or license to do business;

(ii) in the event the bank becomes unable to fulfill its obligations under the letter of credit for any reason, the bank shall immediately give notice to the permittee and the department; and

(iii) upon the incapacity of a bank by reason of bankruptcy, insolvency or suspension or revocation of its charter or license, or upon the inability of a bank to fulfill its obligation under the letter of credit for any reason, the permittee must be deemed to be without performance bond coverage and shall promptly notify the department. Upon notification received through the procedures of (a) and (b) or from the permittee, the department shall, in writing, notify the operator who is without bond coverage and specify a reasonable period, not to exceed 90 days, to replace bond coverage. If an adequate bond is not posted by the end of the period allowed, the operator shall cease coal extraction and shall comply with the provisions of ARM 17.24.522 and shall immediately begin to conduct reclamation operations in accordance with the reclamation plan. Mining operations must not resume until the department has determined that an acceptable bond has been posted.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-223, 82-4-232, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2010 MAR p. 911, Eff. 4/16/10; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1110 Bonding: Replacement of Bond

(1) The department may allow permittees to replace existing surety or collateral bonds with other surety or collateral bonds if the liability that has accrued against the permittee on the permit area is transferred to such replacement bonds.

(2) The department may not release existing performance bonds until the permittee has submitted and the department has approved acceptable replacement performance bonds. A replacement of performance bonds pursuant to this rule does not constitute a release of bond under ARM 17.24.1111.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-223, 82-4-232, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1111 Bonding: Bond Release Application Contents

(1) The permittee or any person authorized to act on his behalf may file an application with the department for release of all or part of the performance bond liability applicable to a particular permit after all reclamation, restoration and abatement work in a reclamation phase as defined in ARM 17.24.1116 has been completed on the entire permit area or on an area approved under 82-4-223, MCA, for the incremental filing for and release of bond liability.

(2) Applications must be filed at times or seasons that allow the department to evaluate properly the reclamation operations alleged to have been completed.

(3) The application must include the information required by 82-4-232(6)(a), MCA.

(4) Each application for partial or full bond release must include a notarized statement which certifies that all applicable reclamation requirements have been achieved in accordance with the Act, the rules, and the approved reclamation plan.

(5) The department shall determine whether an application is administratively complete within 60 days of receipt and shall immediately notify the applicant in writing of its determination. If the department determines an application is not administratively complete, the notice must list the specific items not adequately addressed in the application. Any items not listed in the notice are presumed to be addressed.

(6) Within 45 days of the department's determination of administrative completeness, the applicant shall submit proof of publication of the advertisement required by ARM 17.24.1112.

(7) Applicants for prospecting bond release shall comply with ARM 17.24.1017.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-223, 82-4-232, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 258, Eff. 2/10/24.

Mont. Admin. R. 17.24.1112 Bonding: Advertisement of Release Applications and Receipt of Objections

(1) Upon receipt of notice of the department's determination of administrative completeness, the applicant shall advertise the approved public notice of the application in a newspaper of general circulation in the locality of the permit area. The advertisement must:

(a) be placed in the newspaper at least once a week for four consecutive weeks;

(b) show the name of the permittee and the number and date of issuance or renewal of the permit;

(d) show the total amount of bond in effect for the permit area and the amount for which release is sought;

(e) summarize the reclamation, restoration or abatement work done including, but not limited to, backstowing or mine sealing, if applicable, and give the dates of completion of that work;

(f) identify the portion of bond release, as described in ARM 17.24.1116, applied for;

(g) describe the reclamation results achieved, as they relate to compliance with the Act, the rules adopted thereunder, and the approved mining and reclamation plan and permit; and

(h) state that written comments, objections, and requests for public hearing or informal conference may be submitted to the department by any affected person, and provide the address of the department and the closing date by which comments, objections, and requests must be received.

(2) Written objections to the proposed bond release, requests for an informal conference, and requests for public hearing may be filed with the department by any affected person within 30 days following the last advertisement of the filing of the application. For the purpose of this rule, an affected person is:

(a) a person with a valid legal interest which might be adversely affected by bond release; or

(b) the responsible officer or head of any federal, state or local government agency that:

(i) has jurisdiction by law or special expertise with respect to any environmental, social or economic impact involved, or

(ii) is authorized to develop and enforce environmental standards with respect to strip or underground mining operations.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-223, 82-4-232, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1113 Bonding: Inspection of Site and Public Hearing or Informal Conference

(1) Within 30 days of determining that a bond release application is administratively complete pursuant to 82-4-232(6)(h), MCA, the department shall, weather permitting, inspect and evaluate the reclamation work. The surface owner, agent, or lessee shall be given notice of such inspection and may participate with the department in making the bond release inspection. Upon request of any person described in ARM 17.24.1112(2), the department may arrange with the permittee to allow that person access to the permit area for the purpose of gathering information relevant to the proceeding.

(2) The department shall hold a public hearing if written objections are filed and a public hearing is requested within 30 days of the last publication of notice of application. The public hearing must be held in the locality of the permit area for which bond release is sought or in Helena, at the option of the objector.

(a) Notice of a public hearing must be published in the Montana Administrative Register at least two weeks before the date of hearing and in a newspaper of general circulation in the locality of the hearing for two consecutive weeks before the date of the hearing.

(b) The public hearing must be held within 30 days from the date of the hearing request.

(d) An electronic or stenographic record must be made of the hearing and the record maintained for access by the parties, until final release of the bond, unless recording is waived by all of the parties to the hearing.

(e) Without prejudice to the rights of an objector or the applicant, the department may hold an informal conference to resolve written objections. The department shall make a record of the informal conference unless the record is waived by all parties. The record must be accessible to all parties.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-223, 82-4-232, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1114 Bonding: Departmental Review and Decision on Bond Release Application

(1) The department shall consider, during inspection, evaluation, informal conference, hearing and decision:

(a) whether the permittee has met the criteria for release of the bond;

(b) the degree of difficulty in completing any remaining reclamation, restoration or abatement work; and

(c) whether pollution of surface and subsurface water is occurring, the probability of future pollution or the continuance of any present pollution, and the estimated cost of abating any pollution.

(2) If no informal conference or public hearing has been held under ARM 17.24.1113, the department shall notify the permittee, the surety, or other persons with an interest in the bond collateral who have requested notification of actions pursuant to the bond at the time the collateral was offered, and persons who filed objections of its decision to release or not to release all or part of the performance bond or deposit. This decision must be submitted, in writing, within 60 days from the date of the inspection.

(3) If there has been an informal conference or a public hearing held under ARM 17.24.1113, the notification of the decision must be made to persons listed in (2) and the parties to the conference or hearing within 30 days after conclusion of the conference or hearing. When both an informal conference and a public hearing have been held, the notification must be made within 30 days after the last proceeding.

(4) The notice of the decision must state the reasons for the decision and, if the application is denied in whole or in part, must recommend any corrective actions necessary to secure the release.

(5) The department may not release the bond until it has given the municipality or county, in which the permit area is located, at least 30 days notice of the release by certified mail.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-223, 82-4-232, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1115 Bonding: Hearing on Bond Release Decision

(1) Following receipt of the decision of the department under ARM 17.24.1114, the permittee or any affected person may request a hearing on the reasons for that decision. Requests for hearings must be filed within 30 days after the permittee and other parties are notified of the decision of the department.

(2) The department shall inform the permittee, local government, and any objecting party of the time, date, and place of the hearing and publish notice of the hearing in the Montana Administrative Register, and in a newspaper of general circulation in the locality of the permit area twice a week for 2 consecutive weeks before the hearing. The hearing must be adjudicatory in nature and be held within a reasonable time after the receipt of the request in the town or city nearest the permit area, or in Helena at the option of the objector. The department may subpoena witnesses and printed materials and compel the attendance of witnesses and production of the materials at the hearing. A verbatim record of the hearing must be made and the transcript made available on the motion of any party or by order of the department. The decision of the hearing authority must be made within 30 days of the hearing. Parties seeking to reverse the decision or any part of the decision of the department that is the subject of the hearing shall have the burden of presenting a preponderance of evidence, to persuade the hearing authority that the decision cannot be supported by the reasons given in notification of the department's decision.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-223, 82-4-232, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1116 Bonding: Criteria and Schedule for Release of Bond

(1) The department may not release any portion of the performance bond until it finds that the permittee has met the requirements of the applicable reclamation phase as defined in this rule. The department may release portions of the performance bond applicable to a permit following completion of reclamation phases on the entire permit area or on incremental areas within the permit area.

(2) Release of any portion of the performance bond does not relieve the operator of liability for any corrective action necessary to comply with the Act, subchapters 3 through 13 of this chapter, and the permit until final bond release.

(3) Subject to the limitations of (5) and (6) of this rule, the maximum portion of the performance bond that may be released at any time on applicable areas is:

(a) 60% if reclamation phase I has been completed;

(b) the amount associated with soil replacement activities, if reclamation phase II has been completed;

(d) the remaining portion of the performance bond, if reclamation phase IV has been completed.

(4) Acreage may be released from the permit area only after reclamation phase IV has been completed on applicable areas.

(5) The department may not release any portion of a performance bond applicable to a permit if such release would reduce the total remaining performance bond to an amount less than that necessary for the department to complete the approved reclamation plan, achieve compliance with the requirements of the Act, the rules adopted thereunder, and the permit, and abate any significant environmental harm to air, water, or land resources, or danger to the public health and safety which might occur prior to the release of all lands from the permit area. In all cases, the department shall retain performance bond in the amount of not less than $200 per acre until reclamation phase IV (final) bond release has been granted.

(6) For the purposes of these rules, reclamation phases are as follows:

(a) reclamation phase I is deemed to have been completed when the permittee completes backfilling, regrading, and drainage control in accordance with the approved reclamation plan and when all drill holes that are not approved to be retained as monitoring wells or that were not completely mined have been plugged in accordance with ARM 17.24.1005;

(b) reclamation phase II is deemed to have been completed when:

(i) soil replacement and spoil and soil tillage have been completed in accordance with the approved reclamation plan;

(ii) at least two growing seasons (spring and summer for two consecutive years) have elapsed since seeding or planting of the affected area;

(iii) vegetation is establishing that is consistent with the species composition, cover, production, density, diversity, and effectiveness required by the revegetation criteria in ARM 17.24.711, 17.24.713, 17.24.714, 17.24.716 through 17.24.718, 17.24.721, 17.24.723 through 17.24.726, 17.24.731 and 17.24.815 and the approved postmining land use;

(iv) soils are protected from accelerated erosion by the established vegetation;

(v) noxious weeds are controlled; and

(vi) with respect to prime farmlands, production has been returned to the level required by ARM 17.24.815.

(i) the applicable responsibility period (which commences with the completion of any reclamation treatments as defined in ARM 17.24.725) has expired and the revegetation criteria in ARM 17.24.711, 17.24.713, 17.24.714, 17.24.716 through 17.24.718, 17.24.721, 17.24.723 through 17.24.726, 17.24.731, and 17.24.815, as applicable to and consistent with the approved postmining land use are met;

(ii) a stable landscape has been established consistent with the approved postmining land use;

(iii) the lands are not contributing suspended solids to stream flow or runoff outside the permit area in excess of the requirements of ARM 17.24.633 or the permit; and

(iv) as applicable, the provisions of a plan approved by the department for the sound future management of any permanent impoundment by the permittee or landowner have been implemented to the satisfaction of the department; or

(v) the lands meet the special conditions provided in 82-4-235(4)(a), MCA;

(d) reclamation phase IV is deemed to have been completed when:

(i) all disturbed lands within any designated drainage basin have been reclaimed in accordance with the phase I, II, and III requirements;

(ii) fish and wildlife habitats and related environmental values have been restored, reclaimed, or protected in accordance with the Act, the rules, and the approved permit;

(iii) with respect to the hydrologic balance, disturbance has been minimized and offsite material damage has been prevented in accordance with the Act, the rules, and the approved permit;

(iv) alternative water sources to replace water supplies that have been adversely affected by mining and reclamation operations have been developed and are functional in accordance with the Act, the rules, and the approved permit;

(v) the reestablishment of essential hydrologic functions and agricultural productivity on alluvial valley floors has been achieved;

(vi) implementation of any alternative land use plan approved pursuant to ARM 17.24.821 and 17.24.823 has been successfully achieved; and

(vii) all other reclamation requirements of the Act, rules, and the permit have been met.

(7) Information from annual reports and monitoring data, generated pursuant to ARM 17.24.645, 17.24.646, 17.24.723, and 17.24.1129, and from department inspection reports may be used or referenced to support applications for bond release.

(8) Following final bond release, the department shall reassert jurisdiction under the Act and this chapter if it is demonstrated that the bond release or statement of reasons made pursuant to ARM 17.24.1114(4) was based upon fraud, collusion, or misrepresentation of a material fact.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-223, 82-4-232, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1116A REASSERTION OF JURISDICTION IS (REPEALED)

Publisher status: INEFFECTIVE (not currently effective).

17.24.1116A REASSERTION OF JURISDICTION IS REPEALED

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-235, MCA
History: NEW, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; REP, 1999 MAR p. 811, Eff. 4/23/99.

Mont. Admin. R. 17.24.1117 Bonding: Procedure for Forfeiture

In the event forfeiture of the bond is necessary, the department shall:

(1) send written notification by certified mail, return receipt requested, to the permittee and the surety on the bond, if applicable, of the department's determination to forfeit all or part of the bond and the reasons for the forfeiture, including a finding of the amount to be forfeited;

(2) advise the permittee and surety, if applicable, of any conditions under which forfeiture may be avoided, including, but not limited to:

(a) agreement by the permittee or another party to perform reclamation operations in accordance with a compliance schedule that meets the conditions of the permit, the reclamation plan, and the regulatory program, and a demonstration that such party has the ability to satisfy the conditions; or

(b) completion by the surety of the reclamation plan, or the portion of the reclamation plan applicable to the bonded phase or increment, if the surety can demonstrate an ability to complete the reclamation in accordance with the approved reclamation plan. Except where the department approves partial release under ARM 17.24.1116, no surety liability may be released until successful completion of all reclamation under the terms of the permit, including applicable responsibility periods; and

(3) in the event forfeiture cannot be or is not avoided under (2), proceed in an action for collection on the bond as provided by applicable laws for the collection of defaulted bonds or other debts, consistent with this rule, for the amount forfeited.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-223, 82-4-232, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1118 Bonding: Effect of Forfeiture

(1) The written determination to forfeit all or part of the bond, including the reasons for forfeiture and the amount to be forfeited, is a final decision by the department.

(2) The department may forfeit any or all bond deposited for an entire permit area. Liability under any bond, including separate bond increments or indemnity agreements applicable to a single operation must extend to the entire permit area.

(3) In the event the estimated amount forfeited is insufficient to pay for the full cost of reclamation, the permittee shall be liable for remaining costs. The department may complete or authorize completion of reclamation of the bonded area and may recover from the operator all costs of reclamation in excess of the amount forfeited.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-223, 82-4-232, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1119 Bonding: Criteria for Forfeiture

(1) A bond must be forfeited if the department finds that:

(a) the permittee has violated any of the terms or conditions of the bond;

(b) the permittee has failed to conduct the strip or underground mining and reclamation operations in accordance with the Act, the rules adopted pursuant thereto, or the conditions of the permit, within the time required by the Act, the rules adopted pursuant thereto, or the permit;

(c) the permit for the area under bond has been revoked, unless the operator assumes liability for completion of reclamation work; or

(d) the permittee has failed to comply with a compliance schedule approved by the department.

(2) A bond may be forfeited, if the department finds that:

(a) the permittee has become insolvent, failed in business, been adjudicated bankrupt, filed a petition in bankruptcy or for a receiver, or had a receiver appointed by any court;

(b) a creditor of the permittee has attached or executed a judgment against the permittee's equipment or materials at the permit area or on the collateral pledged to the department; or

(c) the permittee cannot demonstrate or prove the ability to continue to operate in compliance with the Act, the rules adopted pursuant thereto and the permit.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-223, 82-4-232, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1120 Bonding: Determination of Forfeiture Amount

The department shall either:

(1) determine the amount of the bond to be forfeited on the basis of the estimated cost to the department or its contractor to complete the reclamation plan and other regulatory requirements in accordance with the Act, the rules adopted pursuant thereto, and the requirements of the permit; or

(2) forfeit the entire amount of the bond for which liability is outstanding and deposit the proceeds thereof in an interest-bearing escrow account for use in the payment of all costs and administrative expenses associated with the conduct of reclamation, restoration or abatement activities by the department.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-223, 82-4-232, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1121 Bonding: State Agencies and Political Subdivisions

(1) The department may require agencies and political subdivisions of the state to file bonds for prospecting operations other than test pit prospecting operations.

(2) Agencies and political subdivisions of the state shall file a bond that meets the requirements of 82-4-223, MCA, and ARM 17.24.1101 through 17.24.1120, before the department may issue a mining permit or test pit prospecting permit.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-223, MCA
History: NEW, 1980 MAR p. 2875, Eff. 10/31/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1122 Notice of Action on Collateral Bond

(1) The department shall give advanced notice of any action pursuant to a collateral bond to each person who has an interest in the collateral and who, in writing at the time the collateral was offered, requested notice of future action.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-232, MCA
History: NEW, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042.

Mont. Admin. R. 17.24.1125 Liability Insurance

(1) Minimum insurance coverage to comply with 82-4-222(5), MCA, is $300,000 bodily injury coverage for each occurrence and $500,000 in the aggregate and $300,000 property damage for each occurrence and $500,000 in aggregate.

(2) The policy must be maintained in full force during the life of the permit or any renewal thereof and until final bond release on the permit area.

(3) The policy must include a rider requiring that the insurer notify the department whenever substantive changes are made in the policy, including any termination or failure to renew.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1129 Annual Report

(1) Each operator shall file copies of an annual report with the department within a time period specified in 82-4-237, MCA, until such time as full bond is released.

(2) The annual report must include:

(a) the name and address of the operator and the permit number;

(b) the exact number of acres of land affected by the operation during the preceding year and cumulatively;

(d) the extent of vegetative reclamation (seeding or planting) performed during the preceding year (in narrative and map form) , including:

(i) the type of planting or seeding;

(ii) the mixtures and amounts seeded;

(iii) the species, location, and method of planting for site or species specific plantings;

(iv) the date of seeding or planting;

(v) the area of land planted;

(vi) cumulative areas reseeded to date; and

(vii) cumulative acres of each phase of bond released to date;

(e) vegetation monitoring data and analysis pursuant to ARM 17.24.723;

(f) replaced soil depths and a map of all sites sampled;

(g) an inspection map depicting all approved surface features, as required by the department, in or associated with the permit area, reproduced at a scale applicable for field use;

(h) a summary of actions taken to comply with state weed control laws;

(i) an updated cultural resource management table, including a list of sites mitigated and disturbed in the preceding year and sites to be mitigated and disturbed in the coming year; and

(j) any other relevant information required by the department.

(3) Maps containing information listed in ARM 17.24.305(1) must be certified in accordance with ARM 17.24.305.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-237, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1990 MAR p. 936, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1131 Protection of Parks, Historic Sites, and Other Lands

(1) In addition to those areas upon which strip or underground mining is specifically prohibited pursuant to 82-4-227(13), MCA, subject to valid existing rights, no strip or underground coal mining may be conducted, unless the operation existed on August 3, 1977:

(a) on any lands upon which the mining would adversely affect any publicly owned park or places included in the national register of historic sites unless mining thereof is approved jointly by the department and the federal, state, or local agency with jurisdiction over the park or historic sites;

(b) on any lands within the national system of trails.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1132 Areas Upon Which Coal Mining Is Prohibited: Definitions and Standard for Measurement of Distances

(1) For the purpose of 82-4-227(13) , MCA, the following definitions apply:

(a) "valid existing rights" has the same definition as the definition of the term contained in 30 CFR 761.5 (2003), which is incorporated by reference into this rule. Copies of 30 CFR 761.5 may be obtained from the department at its Helena office.

(b) "valid existing rights" does not mean mere expectation of a right to conduct strip or underground coal mining. Examples of rights which alone do not constitute valid existing rights include, but are not limited to, coal prospecting permits or licenses, applications or bids for leases, or where a person has only applied for a state or federal permit;

(c) "occupied dwelling" means any building that is currently being used on a regular or temporary basis for human habitation;

(d) "public building" means any structure that is owned or leased by a public agency and used principally for public business, meetings, or other group gatherings;

(e) "community or institutional building" means any structure, other than a public building or an occupied dwelling, which is used primarily for meetings, gatherings or functions of local civic organizations or other community groups; functions as an educational, cultural, historic, religious, scientific, correctional, mental-health or physical health care facility; or is used for public service, including, but not limited to, water supply, power generation or sewage treatment;

(f) "public park" means an area dedicated or designated by any federal, state, or local agency for public recreational use, whether or not such use is limited to certain times or days, including any land leased, reserved or held open to the public because of that use;

(g) "public road" means a street, road, or highway, and any related structure, that has been or will be built and maintained with appropriated funds of the United States; that has been or will be built and maintained with funds of the state of Montana or any political subdivision thereof; that has been or will be dedicated to public use; or that has been acquired by eminent domain or adverse use by the public, jurisdiction having been assumed by the state or any political subdivision thereof.

(h) "cemetery" means any area of land where human bodies are interred.

(2) For purposes of 82-4-227(7), MCA, all distances must be measured horizontally.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1133 Areas Upon Which Coal Mining Is Prohibited: Procedures for Determination

(1) Upon receipt of an application for a strip or underground coal mining operation permit, the department shall review the application to determine whether strip or underground coal mining operations are limited or prohibited under 82-4-227(7) or (13), MCA, or ARM 17.24.1131, on the lands which would be disturbed by the proposed operation.

(2) Whenever a proposed operation would be located on any lands listed in 82-4-227(7) or (13), MCA, (except for proximity to public roads) or ARM 17.24.1131, the department shall reject the application unless:

(a) the applicant has valid existing rights for the proposed permit area; or

(b) the operation existed when the land came under the protection of 82-4-227(7) or (13), MCA, (except the proximity of public roads) or ARM 17.24.1131. This exception applies only to land within the permit area as it exists when the land comes under this protection.

(3) Procedures for submitting requests and for determining valid existing rights must be conducted in accordance with 30 CFR 761.16 (2003), which is incorporated into this rule by this reference. Copies of 30 CFR 761.16 may be obtained from the department at its Helena office.

(4) If the department is unable to determine whether the proposed operation is located within the boundaries or distances described in 82-4-227(7) or (13), MCA, or ARM 17.24.1131, of any of the lands described in the same provisions of the Act and rules, the department shall transmit a copy of the relevant portions of the permit application to the appropriate federal, state, or local government agency for a determination or clarification of the relevant boundaries or distances, along with a request for response within 30 days. The department shall notify the national park service or the fish and wildlife service of any request for determination of valid existing rights pertaining to areas within their boundaries or areas under their jurisdiction and shall grant them 30 days from receipt of the notice to respond. The department, upon request by the appropriate agency, shall grant an additional 30 days for response. If no response is received within the response period or extension, the department may make its determination based on the information it has available.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1134 Areas Upon Which Coal Mining Is Prohibited: Permission to Mine Near Public Road

Whenever a proposed mining operation is to be conducted within 100 feet measured horizontally to the outside right-of-way line of any public road (except where mine access roads or haul roads join such right-of-way line), the department may permit mining to occur within 100 feet of the road if:

(1) the applicant obtains the necessary approvals of the authority with jurisdiction over the public road;

(2) a notice of a public hearing in a newspaper of general circulation in the affected locale is provided at least two weeks before the hearing;

(3) an opportunity for a public hearing at which any member of the public may participate is provided in the locality of the proposed mining operations for the purpose of determining whether the interests of the public and affected landowners will be protected; and

(4) a written finding based upon information received at the public hearing is made within 30 days after completion of the hearing as to whether the interests of the public and affected landowners will be protected from the proposed mining operations.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1135 Areas Upon Which Coal Mining Is Prohibited: Relocation or Closure of Public Road

Whenever an applicant proposes to relocate or close a public road to facilitate strip or underground mining operations, the road may not be relocated or closed until:

(1) the permit authorizing the operation is granted;

(2) the applicant obtains the necessary approval from the authority with jurisdiction over the public road;

(3) a notice of a public hearing in a newspaper of general circulation in the affected locale is provided at least two weeks before the hearing;

(4) an opportunity for a public hearing at which any member of the public may participate is provided in the locality of the proposed mining operations for the purpose of determining whether the interests of the public and affected landowners will be protected; and

(5) a written finding based upon information received at the public hearing is made within 30 days after completion of the hearing as to whether the interests of the public and affected landowners will be protected from the proposed mining operations.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1136 Areas Upon Which Coal Mining Is Prohibited: Waiver to Mine Near Dwelling

(1) Whenever a proposed strip or underground mining operation would be conducted within 300 feet measured horizontally of any occupied dwelling, the applicant shall submit with the application a written waiver by lease, deed, or other conveyance from the owner of the dwelling, clarifying that the owner and signatory had the legal right to deny mining and knowingly waived that right. The waiver acts as consent to such operations within a closer distance of the dwelling as specified in the waiver.

(2) A valid waiver is effective against subsequent purchasers who had actual or constructive knowledge of the waiver at the time of purchase. Constructive knowledge is presumed if the waiver has been properly filed with the county clerk and recorder or if mining has proceeded to within 300 feet prior to the date of purchase.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1137 Areas Upon Which Coal Mining Is Prohibited: Consultation with Other Agencies

(1) Whenever a proposed mining operation may adversely affect any public park or any places included on the national register of historic places, the department shall transmit to the federal, state, or local agencies with jurisdiction over or a statutory or regulatory responsibility for the park or historic place a copy of the completed permit application containing a request for that agency's approval or disapproval of the operations within 30 days of receipt of the request. Upon receipt of a written request from the appropriate agency, the review period may be extended 30 days.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1138 Areas Upon Which Coal Mining Is Prohibited: Designation Process Not Affected

(1) If the department determines that the proposed strip or underground coal mining operation is not prohibited under 82-4-227(7) or (13) , MCA, or ARM 17.24.1131, it may nevertheless, pursuant to appropriate petitions, designate such lands as unsuitable for all or certain types of strip or underground coal mining operations pursuant to ARM 17.24.1141 through 17.24.1148.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, 82-4-228, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1141 Designation of Lands Unsuitable: Definition

For purposes of 82-4-228, MCA, the following definitions apply:

(1) "Fragile lands" means geographic areas containing natural, scientific or aesthetic resources, or ecologic relationships that could be damaged or be destroyed by strip or underground coal mining operations. Examples of fragile lands include valuable habitats for fish or wildlife, critical habitats for endangered or threatened species of animals or plants, uncommon geologic formations, national natural landmark sites, areas where mining may result in flooding, environmental corridors containing a concentration of ecologic and aesthetic features, and areas of recreational value due to high environmental quality, and appropriate buffer zones adjacent to the boundaries of areas where strip or underground coal mining operations are prohibited under 82-4-227, MCA, and ARM 17.24.1131.

(2) "Historic lands" means historic or cultural districts, places, structures or objects, including archaeological and paleontological sites, national historic landmark sites, sites listed on or eligible for listing on a state or national register of historic places, sites having religious or cultural significance to Native Americans or religious groups or sites for which historic designation is pending.

(3) "Natural hazard lands" means geographic areas in which natural conditions exist which pose or, as a result of strip or underground coal mining operations, may pose a threat to the health, safety or welfare of people, property or the environment, including areas subject to landslides, cave-ins, large or encroaching sand dunes, severe wind or soil erosion, frequent flooding, avalanches and areas of unstable geology.

(4) "Substantial legal and financial commitments in a strip or underground coal mining operation" means significant investments that have been made on the basis of a long-term coal contract in power plants, railroads, coal-handling, preparation, extraction or storage facilities, and other capital-intensive activities. An example is an existing mine, not actually producing coal, but in a substantial stage of development prior to production. Costs of acquiring the coal in place or of the right to mine it without an existing mine, as described in the above example, alone are not sufficient to constitute substantial legal and financial commitments.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1142 Designation of Lands Unsuitable: Exemptions

The requirements of ARM 17.24.1141 through 17.24.1148 do not apply to:

(1) lands on which strip or underground coal mining operations were being conducted on August 3, 1977;

(2) lands covered by a permit issued under the Act; or

(3) lands where substantial legal and financial commitments in strip or underground coal mining operations were in existence prior to January 4, 1977.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1143 Designation of Lands Unsuitable: Prospecting on Designated Lands

(1) Prospecting operations on any lands designated unsuitable for strip or underground mining operations, pursuant to 82-4-228, MCA, and this subchapter, must be approved by the department under subchapter 10 and must insure that prospecting does not interfere with any value for which the area has been designated unsuitable for strip or underground coal mining.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1144 Designation of Lands Unsuitable: Petition for Designation or Termination of Designation

(1) Any person having an interest which is or may be adversely affected has the right to petition the department to have an area designated as unsuitable for strip or underground coal mining operations, or to have an existing designation terminated. A person having an interest which is or may be adversely affected shall demonstrate how he or she meets an "injury in fact" test by describing the injury to his or her specific affected interests and demonstrate how he or she is among the injured.

(2) A petition to designate lands unsuitable must be in affidavit form. The only information that a petitioner need provide is:

(a) identification of the petition area, including its location and size, and a US geological survey topographic map outlining the perimeter of the petition area;

(b) allegations of facts and supporting evidence covering all lands in the petition area, that tend to establish that the area or a designated portion thereof is unsuitable for all or certain types of strip or underground coal mining operations, pursuant to specific criteria of 82-4-228, MCA, assuming that contemporary mining practices required under the Act would be followed if the area were to be mined. Each of the allegations of fact must be specific as to the type of mining operation, if known, and the portion of the petition area to which the allegation applies. Each allegation must be supported by evidence that tends to establish its validity;

(c) a description of how mining of the area has affected or may adversely affect people, land, air, water, or other resources, including the petitioner's interests;

(d) the petitioner's name, address and telephone number; and

(e) identification of the petitioner's interest which is or may be adversely affected, including a statement demonstrating how the petitioner satisfies the requirements of (1) of this rule.

(3) A petition for termination of a designation must be in affidavit form. The only information that a petitioner need provide is:

(a) identification of the petition area, including its location and size and a US geological survey topographic map outlining the perimeter of the petitioned area to which the termination petition applies;

(b) allegations of facts, with supporting evidence covering all lands for which the termination is proposed. Each of the allegations of fact must be specific as to the type of mining operation, if any, and to portions of the petition area and petitioner's interests to which the allegation applies. The allegations must be supported by evidence, not contained in the record of the designation proceedings, that tends to establish the validity of the allegations for the mining operation or portion of the petition area, assuming that contemporary mining practices required under the Act would be followed were the area to be mined. For areas previously and unsuccessfully proposed for termination, significant new allegations of facts and supporting evidence must be presented in the petition. Allegations and supporting evidence must also be specific to the basis for which the designation was made and tend to establish that the designation should be terminated on the following basis:

(i) the nature or abundance of the protected resource or condition or other basis of the designation, if the designation was based on criteria found in 82-4-228(2)(b), MCA;

(ii) reclamation now being technologically and economically feasible if the designation was based on the criteria found in 82-4-228(2)(a), MCA; or

(iii) the resources or condition not being affected by strip or underground coal mining operations, or in the case of land use plans, not being incompatible with strip or underground coal mining operations during and after mining, if the designation was based on the criteria found in 82-4-228(2)(b), MCA;

(d) identification of the petitioner's interest which is or may be adversely affected by the continuation of the designation.

(4) The department may request that the petitioner provide other information that is readily available to supplement petitions under (2) or (3) of this rule.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1145 Designation of Lands Unsuitable: Notice and Action on Petition

(1)

(a) Within 30 days of receipt of a petition, the department shall notify the petitioner by certified mail whether or not the petition is complete under ARM 17.24.1144(2) or (3).

(b) The department shall determine whether any identified coal resources exist in the area covered by the petition, without requiring any showing from the petitioner. If the department finds there are no identified coal resources in that area, it shall provide the petitioner with a statement of the findings.

(c) Once the requirements of ARM 17.24.1144 are met, no party bears any burden of proof, but each accepted petition must be considered and acted upon by the department pursuant to the procedures of this rule.

(d) When considering a petition for an area which was previously and unsuccessfully proposed for designation, the department shall determine if the new petition presents new allegations of facts. If the petition does not contain new allegations of facts, the department may not consider the petition and shall provide the petitioner with a statement of its findings and a reference to the record of the previous designation proceedings where the facts were considered.

(e) If the department determines that the petition or a portion thereof is incomplete or frivolous, it shall provide the petitioner with a written statement of the reasons for the determination and the categories of information needed to make the petition complete. A frivolous petition is one in which the allegation of harm lacks serious merit. The department is not required to process a petition that is incomplete, frivolous, or filed by a person who does not have an interest that is or may be adversely affected.

(f) The department shall notify the person who submits a petition of any application for a permit received that contains a proposal to include any area covered by the petition.

(g) The receipt of any petition after the close of the public comment period on a permit application relating to the same mine plan area does not prevent the department from issuing a decision on that permit application. The department may refuse to process any petition received thereafter and shall provide the petitioner with a statement why the department cannot consider the petition. For the purposes of this rule, "close of the public comment period" means at the close of any informal conference held under ARM 17.24.403, or, if no conference is requested, the close of the period for filing written comments and objections under 17.24.402.

(2)

(a) Promptly after receipt of the petition, the department shall notify the general public that a petition has been filed. The notice must be a newspaper advertisement in the newspaper providing the broadest circulation in the locale of the petition area. The notice must be published once a week for 2 consecutive weeks. A similar notice must be placed in the Montana Administrative Register. The notice must include a request for submission of relevant information.

(b) Within 3 weeks after the determination that a petition is complete, the department shall circulate copies of the petition to, and request submissions of relevant information from, other interested governmental agencies, the petitioner, intervenors, persons with an ownership interest of record in the property, and other persons known to the department to have an interest in the property.

(c) Promptly after the determination has been made that a petition is complete, the department shall request submissions of relevant information from the general public by a newspaper advertisement placed once a week for 2 consecutive weeks in the newspaper of broadest circulation in the locale of the petition area, and in the Montana Administrative Register.

(3) Until 3 days before the department holds a hearing under ARM 17.24.1146, any person may intervene in the proceeding by filing allegations of facts, supporting evidence, a short statement identifying the petition to which the allegations pertain, and the intervenor's name, address, and telephone number.

(4) Beginning immediately after a complete petition is filed, the department shall compile and maintain a record consisting of all documents relating to the petition filed with or prepared by the department. The department shall make the record available for public inspection free of charge and for copying at reasonable cost during all normal business hours at all its offices or, upon request, at a county courthouse or library.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1146 Designation of Lands Unsuitable: Hearings on Petition

(1) Within 10 months after receipt of a complete petition, the department shall hold a public hearing in the locality of the area covered by the petition. If all petitioners and intervenors agree, the hearing need not be held. The department may subpoena witnesses as necessary. The department shall allow cross-examination of expert witnesses, but other witnesses must not be cross-examined. The department shall make a verbatim transcript of the hearing.

(2)

(a) The department shall give notice of the date, time, and location of the hearing to:

(i) local, state, and federal agencies which may have an interest in the decision on the petition;

(ii) the petitioner and the intervenors; and

(iii) any person with an ownership or other interest known to the department in the area covered by the petition.

(b) Notice of the hearing must be sent by certified mail and postmarked not less than 30 days before the scheduled date of the hearing.

(3) The department shall notify the general public of the date, time, and location of the hearing by placing a newspaper advertisement once a week for 2 consecutive weeks in the locale of the area covered by the petition and once during the week prior to the scheduled date of the public hearing. The consecutive weekly advertisement must begin between 4 and 5 weeks before the scheduled date of the public hearing.

(4) The department may consolidate in a single hearing the hearings required for each of several petitions which relate to areas in the same locale.

(5) In the event that all petitioners and intervenors stipulate agreement prior to the hearing, the petition may be withdrawn from consideration.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1147 Designation of Lands Unsuitable: Decision on Petition

(1) In reaching its decision, the department shall use:

(a) the information contained in the data base and inventory system provided for in ARM 17.24.1148;

(b) information provided by other governmental agencies;

(d) any other relevant information submitted during the comment period.

(2) A final written decision must be issued by the department including a statement of reasons, within 60 days of completion of the public hearing, or, if no public hearing is held, then within 12 months after receipt of the complete petition. The department shall simultaneously send the decision by certified mail to the petitioner, every other party to the proceeding, and to the federal coal regulatory agency.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1148 Designation of Lands Unsuitable: Data Base and Inventory System

(1) The department shall develop a data base and inventory system which will permit evaluation of whether reclamation is feasible in areas covered by petitions.

(2) The department shall include in the system information relevant to the criteria in 82-4-228(2), MCA, including, but not limited to, information received from the United States fish and wildlife service, the department of fish, wildlife, and parks, and the state historic preservation officer.

(3) The department shall add to the data base and inventory system information:

(a) on potential coal resources of the state, demand for those resources, the environment, the economy and the supply of

coal, sufficient to enable the department to prepare the statements required by 82-4-228(3), MCA; and

(b) that becomes available from petitions, publications, experiments, permit applications, mining and reclamation operations, and other sources.

(4) The department shall:

(a) make the information and data base system available to the public for inspection free of charge and for copying at reasonable cost; and

(b) provide information to the public on the petition procedures necessary to have an area designated as unsuitable for all or certain types of strip or underground coal mining operations or to have designations terminated and describe how the inventory and data base system can be used.

(5) The department shall maintain a map of areas designated as unsuitable for all or certain types of strip or underground coal mining operations.

(6) The department shall make available to any person any information within its control regarding designations, including mineral or elemental content which is potentially toxic in the environment.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Subchapter 17.24.12 Strip and Underground Mine Reclamation Act: Special Departmental Procedures and Program

Mont. Admin. R. 17.24.1201 Frequency and Methods of Inspections

(1) The department shall conduct an average of at least one partial inspection per month of each active mining operation and such partial inspections of each inactive mining operation as are necessary to enforce the Act, the rules adopted under the Act and the permit, at least one complete inspection per calendar quarter of each active and inactive mining operation, and such periodic partial or complete inspections of prospecting operations as are necessary to enforce the Act, the rules adopted pursuant thereto, and the permit.

(2) A partial inspection is an on-site or aerial observation of the operator's compliance with some of the mining or prospecting permit conditions and requirements. Aerial inspections shall be conducted in a manner and at a time that reasonably ensure the identification and documentation of conditions at each operation in relation to permit conditions and requirements. Any potential violation observed during an aerial inspection shall be investigated on site within three days, provided that any indication of a violation, condition, or practice that creates an imminent danger to the health or safety of the public or is causing or can reasonably be expected to cause significant and imminent environmental harm to land, air, or water resources shall be investigated on site immediately. On-site investigations of potential violations observed during an aerial inspection may not be considered to be an additional partial or complete inspection for the purposes of ARM 17.24.1201.

(3) A complete inspection is an on-site observation of the operator's compliance with all of the mining or prospecting permit conditions and requirements within the entire area disturbed or affected by the operation.

(4) Inspections must occur without prior notice to the permittee, except for necessary on-site meetings, be conducted on an irregular basis, and be scheduled to detect violations on nights, weekends, and holidays.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-205, 82-4-235, 82-4-237, 82-4-251, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1980 MAR p. 2872, Eff. 10/31/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1202 Consequences of Inspections and Compliance Reviews

(1) Inspectors shall examine mining and reclamation activities and promptly file with the department inspection reports adequate to determine whether violations exist.

(2) If it is determined on the basis of an inspection that the permittee is, or any condition or practice exists, in violation of any requirement of this part or any permit condition required by this part, the director or an authorized representative shall promptly issue a notice of noncompliance or order of cessation for the operation or the portion of the operation relevant to the condition, practice, or violation in accordance with 82-4-251, MCA, and this subchapter.

(3) The department may order changes in mining and reclamation plans as are necessary to ensure compliance with the Act and the rules adopted pursuant thereto.

(4) If on the basis of field inspection or review of records or reports the department determines that reclamation is unsuccessful in terms of the Act, the rules adopted pursuant thereto or permit conditions or requirements, the department shall order the operator to immediately investigate and determine the cause. The operator shall subsequently submit an investigative report along with a prescribed course of corrective action, so that alternatives can be employed to promptly ensure compliance with the Act, the rules adopted pursuant thereto, and the permit.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-205, 82-4-231, 82-4-233, 82-4-235, 82-4-237, 82-4-251, 82-4-254, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1203 Availability of Inspection Reports

(1) The department shall make copies of all records, reports, inspection materials, and information obtained must be made immediately available to the public at the department office closest to the operation involved or by mail. See ARM 17.24.426.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-235, 82-4-237, 82-4-251, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852.

Mont. Admin. R. 17.24.1204 Inspections in Response to Citizen Complaints

(1) Any person may request an inspection of any operation by furnishing the department with a signed statement, or an oral report followed by a signed statement, giving the department reason to believe that there exists a violation of the Act, the rules adopted pursuant thereto, or the permit or that there exists a condition or practice that creates an imminent danger to the public or that is causing or can be reasonably expected to cause a significant, imminent environmental harm to land, air, or water resources. The identity of any person supplying information to the department relating to a possible violation or imminent danger or harm must remain confidential with the department, if requested by that person, unless that person elects to accompany the inspector on the inspection.

(2) If the report or statement alleges facts that, if true, would constitute a prohibited condition, practice, or violation and states the basis upon which the facts are known or provides other corroborating evidence sufficient to give the department reason to believe that the prohibited condition, practice or violation exists, the department shall conduct an inspection to determine whether the condition, practice, or violation exists or existed. If the department conducts an inspection pursuant to (1) , it shall notify the person who requested the inspection as far in advance as practicable of when the inspection is to occur. The person who has provided the statement or report must be allowed to accompany the inspector. The person is under supervision and control of the inspector while within the permit area. The person does not have a right to enter buildings or structures without the consent of the person in control of the building or without a search warrant.

(3) Within ten days of the inspection, or if there is no inspection, within 15 days of receipt of the citizen's written statement, the department shall send the person and the alleged violator the following:

(a) if an inspection was made, a description of the enforcement action taken, or, if no enforcement action was taken, an explanation of why no enforcement action was taken and notice of the person's right to informal review;

(b) if no inspection was made, an explanation of the reason why and notice of the person's right to informal review.

(4) The department shall give copies of all materials in (3) within the time limits specified in that section to the person alleged to be in violation, except the name of the person supplying information must be removed unless disclosure of his or her identity is permitted under (1) .

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-221, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852.

Mont. Admin. R. 17.24.1205 Inspections in Response to Notification by the Federal Coal Regulatory Authority

(1) Whenever the department receives notice from the Federal Coal Regulatory Authority that it has reason to believe that there exists a violation of the Act, the rules adopted pursuant thereto, or the permit, or a condition or practice that creates an imminent danger to the public or that is causing or can reasonably be expected to cause significant, imminent harm to land, air, or water resources, the department shall make an inspection, determine whether such a violation, condition, or practice exists. It shall then take appropriate action to correct all such violations, conditions, or practices. If imminent danger to the public or imminent harm to land, air, or water resources exists or may exist, the department shall take appropriate action immediately. It shall act within ten days of notice of other violations.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-235, 82-4-237, 82-4-251, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 2852.

Mont. Admin. R. 17.24.1206 Notices, Orders of Abatement, and Cessation Orders: Issuance and Service

(1) The department shall issue a cessation order for each violation, condition, or practice that creates an imminent danger to the health or safety of the public or is causing or can reasonably be expected to cause significant and imminent environmental harm to land, air, or water resources, for failure to comply with an order of abatement, and for conducting mining operations or prospecting without a permit. Within 60 days after issuance of a cessation order, the department shall notify, in writing, any person who has been identified pursuant to ARM 17.24.303(1)(g) and (1)(h), and 17.24.413(1)(d), as owning or controlling the permittee, that the cessation order was issued and that the person has been identified as an owner or controller. The department shall issue a notice of noncompliance for other violations.

(2) A notice of noncompliance, notice of violation, penalty order, or cessation order must be served upon the person to whom it is directed or his designated agent promptly after issuance by:

(a) tendering a copy of the notice or order at the operation to a designated agent, to the individual in charge of the operation or, if the designated agent or person in charge cannot be located at the operation, to any agent or employee at the operation;

(b) sending a copy of the notice or order by certified mail to the permittee or his designated agent; or

(c) hand delivery of a copy of the notice or order to the permittee or his designated agent. Designation of an agent other than the agent named in the permit application for service of process may be made by filing with the department a written designation signed by the former designated agent;

(d) service is complete upon tender of the document and is not incomplete because of refusal to accept.

(3) Whenever an abatement order has been complied with, the department shall inspect or review the abatement, and, if the abatement is satisfactorily completed, shall terminate the order of abatement. The termination must be issued onsite at the time of the inspection.

(4) Filing of an application for review does not operate as a stay of any order.

(5)

(a) Except as provided in (5)(b)(ii) , an abatement order must specify compliance within a reasonable period of time, not exceeding 90 days.

(b) The department may impose an abatement period of more than 90 days whenever:

(i) the permittee of an ongoing permitted operation has timely applied for and diligently pursued a permit renewal or other necessary approval of designs or plans but such permit or approval has not been or will not be issued within 90 days after a valid permit expires or is required, for reasons not within the control of the permittee;

(ii) a valid judicial order as to which the permittee has diligently pursued all rights of appeal and as to which he has no other effective legal remedy precludes abatement within 90 days;

(iii) the permittee cannot abate within 90 days due to a labor strike;

(iv) climatic conditions preclude abatement within 90 days, or due to climatic conditions, abatement within 90 days clearly would cause more environmental harm than it would prevent; or

(v) abatement within 90 days requires action that would violate safety standards established by statute or regulation under the Mine Safety and Health Act of 1977; and

(vi) the failure to abate has not been caused by a lack of diligence or intentional delay by the permittee.

(c) Whenever an abatement time in excess of 90 days is permitted, the department shall impose interim abatement measures to the extent necessary to minimize harm to the public or the environment.

(d) Whenever any of the conditions in (5)(b) exist, the permittee may request extension of the abatement period beyond 90 days. The department may not grant an extension for more time than is necessary for abatement. The permittee has the burden of establishing by clear and convincing proof that he is entitled to an extension. In determining whether or not to grant an abatement period exceeding 90 days, the department may consider any relevant written or oral information from the permittee or any other source. The department shall promptly and fully document in the file its reasons for granting or denying the request. The department's decision on an application for extension beyond 90 days is subject to hearing if a hearing is requested by a person with an interest that is or may be adversely affected; such a request must be submitted in writing to the Board of Environmental Review within 30 days of notice of the department's decision on the application. The hearing must be a contested case hearing in accordance with 82-4-206, MCA.

(e) An extension granted under this section must not exceed 90 days in length. Where the condition or circumstance which prevented abatement within 90 days exists at the expiration of any such extension, the permittee may request a further extension.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-251, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1984 MAR p. 442, Eff. 3/16/84; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1995 MAR p. 30, Eff. 1/13/95; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2006 MAR p. 1139, Eff. 5/5/06; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1207 Notices of Noncompliance and Cessation Orders: Informal Hearings

(1) Except as provided in (2) and (3), if a notice of noncompliance or cessation order requires cessation of mining or prospecting, expressly or by necessary implication, that notice or order expires within 30 days after it is served unless an informal public hearing has been held within that time. The hearing must be held at or reasonably close to the mine site so that the alleged violation may be viewed during the hearing or at any other location acceptable to the department and the person to whom the notice or order was issued. The departmental office nearest to the mine site is hereby deemed to be reasonably close to the mine site unless a closer location is requested and agreed to by the department. For purposes of this rule, "mining" means extracting coal from the earth or waste piles and transporting it within or from the permit area.

(2)

(a) A notice of noncompliance or cessation order that requires cessation of prospecting or mining does not expire as provided in (1) if the informal public hearing has been waived or if, with the consent of the person to whom the notice or order was issued, the informal hearing is held later than 30 days after the notice or order.

(b) The informal public hearing will be deemed waived if the person to whom the notice or order was issued is informed, as provided in (c), that he or she will be deemed to have waived the informal public hearing unless he or she requests one within 30 days after service of the notice and he or she fails to request an informal public hearing within that time.

(c) The written notice provided in (b) must be delivered to the person by personal service by an authorized agent of the department or certified mail within five days after the notice or order that requires cessation of mining is served on that person.

(3) The department shall give as much advance notice as is practicable of the time, place, and subject matter of the informal public hearing to:

(a) the person to whom the notice or order was issued; and

(b) any person who filed a report which led to that notice or order.

(4) The department shall also post notice of the hearing at its office closest to the mine site and issue a news release notice regarding the informal hearing, whenever practicable, to a newspaper of general circulation in the area of the mine.

(5) An informal public hearing must be conducted by a representative of the department; the representative may accept oral or written arguments and any other relevant information from any person attending.

(6) Within five days after the close of the informal public hearing, the department shall affirm, modify, or vacate the notice or order in writing. The decision must be sent to:

(a) the person to whom the notice or order was issued; and

(b) any person who filed a report which led to the notice or order.

(7) The granting or waiver of an informal public hearing does not affect the right of any person to formal review under 82-4-251(3) or (6), or 82-4-254(3), MCA. At the formal review proceedings, evidence as to statements made or evidence produced at an informal public hearing must not be introduced as evidence or to impeach a witness.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-251, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1984 MAR p. 442, Eff. 3/16/84; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1208 Notices of Noncompliance and Cessation Orders: Effect of Inability to Comply

(1) A cessation order or notice of noncompliance may not be vacated because of inability to comply. Inability to comply may not be considered in determining whether a pattern of violations exists.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-251, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1984 MAR p. 442, Eff. 3/16/84; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1209 Notices of Noncompliance and Cessation Orders: Continuation of Health and Safety Related Activities

(1) Reclamation operations and other activities intended to protect public health and safety and the environment must continue during the period of any order unless otherwise provided in the order.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-251, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1984 MAR p. 442, Eff. 3/16/84; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1210 Cessation Orders: Additional Affirmative Obligations

(1) If a cessation order will not completely abate the imminent danger or harm in the most expeditious manner physically possible, the director or his authorized representative shall impose affirmative obligations on the person to whom it is issued to abate the condition, practice, or violation. The order must specify the time by which abatement must be accomplished and may require, among other things, the use of existing or additional personnel and equipment.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-251, MCA
History: NEW, 1980 MAR p. 2875, Eff. 10/31/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1211 Procedure for Assessment and Waiver of Civil Penalties

(1) The department shall review each notice of noncompliance to determine whether the violation is a minor one for which a civil penalty should be waived or, if not, the amount of civil penalty.

(2) Within 90 days after issuance of the notice of noncompliance, the department shall serve a notice of violation and penalty order or notice of violation and waiver of penalty. Failure to serve the notice of violation and proposed penalty within 90 days is not grounds for dismissal of the penalty unless the person against whom the penalty is assessed demonstrates actual prejudice resulting from the delay and makes objection in the normal course of administrative review. If the notice of violation and penalty order is tendered by mail at the address of the person, as set forth in the permit in case of a permittee, and he or she refuses to accept delivery of or to collect such mail, service is completed upon such tender. In order to contest the fact of violation or the amount of penalty, the person charged with the violation must file a written request for hearing to the Board of Environmental Review within 30 days of service of the notice of violation and penalty order. The hearing must be a contested case hearing in accordance with 82-4-206, MCA. If the department vacates the notice of violation, it shall also vacate the notice of noncompliance. At any time after issuance of the notice of violation and penalty order and before commencement of the hearing, or, if a hearing is not requested, before the notice and order become final, the person may confer with the department regarding the proposed penalty.

(3) The department shall determine the civil penalty in accordance with 82-4-1001, MCA.

(4) The violation is minor and the civil penalty may be waived if a consideration of the penalty factors set forth in 82-4-1001, MCA, demonstrates that the violation is not of potential harm to public health, public safety, or the environment and does not impair the administration of the Act. The department shall set forth the basis for waiving the penalty in writing. The department may not waive the penalty on the basis that the waiver could be used to offset the costs of abatement.

History

Authorizing statute(s): 82-4-205, 82-4-254, MCA
Implementing statute(s): 82-4-254, MCA
History: NEW, 1984 MAR p. 442, Eff. 3/16/84; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2006 MAR p. 1139, Eff. 5/5/06; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1212 Point System for Civil Penalties and Waivers

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 82-4-204, 82-4-254, MCA
Implementing statute(s): 82-4-254, MCA
History: NEW, 1984 MAR p. 442, Eff. 3/16/84; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; REP, 2006 MAR p. 1139, Eff. 5/5/06.

Mont. Admin. R. 17.24.1213 Suspension and Revocation of Permits: Determination of Pattern of Violations

(1) In implementing 82-4-251(3), MCA, the department:

(a) may determine that a pattern of violations exists or has existed, based on two or more inspections of the permit area within any 12-month period, after considering the circumstances, which circumstances shall include:

(i) the number of violations, cited on more than one occasion, of the same or related requirements of the Act, the rules adopted pursuant thereto, or the permit;

(ii) the number of violations, cited on more than one occasion, of different requirements of the Act, the rules adopted pursuant thereto, or the permit; and

(iii) the extent to which the violations were isolated departures from lawful conduct; and

(iv) the number of violations caused by unwarranted failure of the permittee to comply or willfully caused by the permittee; and

(b) shall determine that a pattern of violations exists if it finds that there were violations of the same or related requirements during three or more inspections of the permit area within any 12-month period.

(2) Whenever a permittee fails to abate a violation contained in a notice of noncompliance or cessation order within the abatement period set in the notice or order or as subsequently extended, the department shall review the permittee's history of violations to determine whether a pattern of violations exists.

(3) If the department determines that a pattern exists, it shall issue an order to show cause why the permit should not be suspended or revoked.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-251, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1214 Suspension and Revocation of Permits: Public Notice of Show Cause Order

(1) At the same time as the issuance of a show cause order pursuant to 82-4-251(3), MCA, the department shall:

(a) if practicable, publish notice of the order, including a brief statement of the procedure for intervention in the proceeding, in a newspaper of general circulation in the area of operations; and

(b) post notice at the departmental office closest to the operations.

(2) If the permittee files an answer to the show cause order and requests a hearing, a public hearing must be held. The department shall give 30 days written notice of the date, time, and place to the permittee and any intervenors and, if practicable, publish notice in a newspaper of general circulation in the area of the operations. The department shall also post the notice in the departmental office closest to those operations. The department shall issue a decision within 60 days of hearing.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-251, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1215 Suspension and Revocation of Permits: Service of Process

(1) A show cause order must be served in the same manner as a notice of violation pursuant to ARM 17.24.1206.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-251, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1216 Suspension and Revocation of Permits: Effect of Suspension or Revocation

If a permit has been suspended or revoked, the permittee may not conduct any operations or prospecting on the permit area and shall:

(1) if the permit is revoked, complete reclamation within the time specified in the order;

(2) if the permit is suspended, complete all affirmative obligations to abate all conditions, practices, or violations, as specified in the order.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-251, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1217 Individual Civil Penalties: When Assessed

(1) Except as provided in (2) , the department may assess an individual civil penalty against any corporate director, office or agent of a corporate permittee who knowingly and willfully authorized, ordered or carried out a violation, failure or refusal.

(2) The department may not assess an individual civil penalty in situations resulting from a permit violation by a corporate permittee until a cessation order has been issued by the department to the corporate permittee for the violation, and the cessation order has remained unabated for 30 days.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-254, MCA
History: NEW, 1990 MAR p. 936, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 3042.

Mont. Admin. R. 17.24.1218 Individual Civil Penalties: Amount

(1) In determining the amount of an individual civil penalty assessed under ARM 17.24.1217, the department shall consider the criteria specified in 82-4-1001 , MCA, including:

(a) the individual's history of authorizing, ordering or carrying out previous violations, failures or refusals at the particular coal mining operation;

(b) the seriousness of the violation, failure or refusal (as indicated by the extent of damage, the cost of reclamation or both) , including any irreparable harm to the environment and any hazard to the health or safety of the public; and

(c) the demonstrated good faith of the individual charged in attempting to achieve rapid compliance after notice of the violation, failure or refusal.

(2) The penalty may not exceed $5,000 for each violation. Each day of a continuing violation may be deemed a separate violation and the department may assess a separate individual civil penalty for each day the violation, failure or refusal continues, from the date of service of the underlying notice of violation, cessation order or other order incorporated in a final decision issued by the department, until abatement or compliance is achieved.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-254, MCA
History: NEW, 1990 MAR p. 936, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2006 MAR p. 1139, Eff. 5/5/06.

Mont. Admin. R. 17.24.1219 Individual Civil Penalties: Procedure for Assessment

(1) The department shall serve on each individual to be assessed an individual civil penalty a notice of violation and penalty order.

(2) The notice of violation and penalty order becomes a final order 30 days after service upon the individual unless:

(a) the individual files within 30 days of service of the notice of violation and penalty order a request for hearing pursuant to 82-4-254(3), MCA; or

(b) the department and the individual or responsible corporate permittee agree within 30 days of service of the notice of proposed individual civil penalty assessment to a schedule or plan for the abatement or correction of the violation, failure or refusal.

(3) For purposes of this section, service is sufficient if it would satisfy Rule 4 of the Montana Rules of Civil Procedure for service of a summons and complaint.

(4) The hearing on the individual civil penalty must be a contested case hearing conducted in accordance with 82-4-206(2), MCA.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-254, MCA
History: NEW, 1990 MAR p. 936, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2006 MAR p. 1139, Eff. 5/5/06; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1220 Individual Civil Penalties: Payment

(1) If a notice of violation and penalty order become final in the absence of a request for hearing, the penalty is due within 30 days after the expiration of the period for requesting a hearing.

(2) If an individual named in a notice of violation and penalty order files a request for hearing, the penalty is due within 30 days after the issuance of a final administrative order affirming, increasing, or decreasing the proposed penalty, unless enforcement of the order is stayed pursuant to 2-4-702, MCA.

(3) If the department and the corporate permittee or individual have agreed in writing on a plan for the abatement of the violation, the individual named in the notice of violation and penalty order may postpone payment until receiving either a final order stating that the penalty is due on the date of the final order or a written notice that abatement is satisfactory and the penalty has been withdrawn.

(4) Following the expiration of 30 days after the issuance of a final order assessing an individual civil penalty, any delinquent penalty is subject to interest at the rate established quarterly by the U.S. Department of the Treasury for use in applying late charges on late payments to the federal government, pursuant to Treasury Financial Manual 6-8020.20. The Treasury Current Value of Funds Rate is published by the fiscal service in the notices section of the Federal Register. Interest on unpaid penalties runs from the date payment first was due until the date of payment.

(5) Failure to pay overdue penalties may result in initiation of litigation; reporting to the Department of Revenue, the State Auditor, the Internal Revenue Service, credit bureaus, or to all or any combination of them; or referral to collection agencies. These remedies are not exclusive.

(6) Delinquent penalties are subject to a late payment penalty, in addition to the interest specified in (4), of 6% per annum. This penalty begins to accrue on the 92nd day and runs until the date of payment.

(7) For all delinquent fees, interest and any penalties, the debtor shall pay a processing and handling charge based upon the following components:

(a) for debts referred to a collection agency, the amount charged to the department by the collection agency;

(b) for debts processed and handled by the department, a standard amount set annually by the department based upon similar charges by collection agencies for debt collection. In addition, if the case is referred to the department's attorneys but paid prior to litigation, the estimated average cost to prepare the case for litigation as of the time of payment must also be paid;

(c) for debts referred to the department's attorneys and litigated, the estimated cost to prepare and litigate a debt case as of the time of payment; and

(d) if not otherwise provided for, all other administrative expenses associated with collection, including, but not limited to, billing, recording payments, and follow-up actions.

(8) No prejudgment interest accrues on any processing and handling charges.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-254, MCA
History: NEW, 1990 MAR p. 936, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2006 MAR p. 1139, Eff. 5/5/06; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1221 Small Operator Assistance Program: Program Services

(1) To the extent possible with available federal funds, the department shall, for a coal mine operating permit applicant who meets the criteria of ARM 17.24.1222 and who requests assistance, select and pay a qualified laboratory, contractor, or consultant to:

(a) determine for the applicant the probable hydrologic consequences of the mining and reclamation operations both on and off the proposed permit area in accordance with ARM 17.24.1225;

(b) prepare a statement of the results of test borings or core samplings in accordance with ARM 17.24.1225;

(c) collect and provide general hydrology information on the basin or subbasin areas within which the anticipated mining will occur. The information provided must be limited to that required to relate the basin or subbasin hydrology to the hydrology of the proposed permit area; and

(d) provide other services specified in ARM 17.24.1225.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-221, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1990 MAR p. 936, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1222 Small Operator Assistance Program: Eligibility for Assistance

An applicant is eligible for assistance if he or she:

(1) intends to apply for a permit pursuant to the Act;

(2) establishes that the probable total actual and attributed coal production of the operation for each year of the permit will not exceed 300,000 tons. Production from the following operations must be attributed to the applicant:

(a) the pro rata share, based upon percentage of ownership by the applicant, of coal produced by operations in which the applicant owns more than a 10% interest;

(b) all coal produced by operations owned by persons who directly or indirectly control the applicant by reason of stock ownership, direction of the management or in any other manner whatsoever;

(c) the pro rata share, based upon percentage of ownership of the applicant, of coal produced in other operations owned or controlled by persons who own more than 10% of the applicant's operation;

(d) all coal produced by operations owned by the family and relatives of the applicant, unless there is no direct or indirect business relationship between or among the individuals; and

(3) has not organized or reorganized his or her company solely for the purpose of obtaining assistance.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-221, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1223 Small Operator Assistance Program: Filing for Assistance

Each applicant shall submit the following information to the department:

(1) a statement of intent to file a permit application;

(2) the name and addresses of:

(a) the potential permit applicant; and

(b) the potential operator if different from the applicant;

(3) a schedule of the estimated total production of coal from the proposed permit area and all other locations from which production is attributed to the applicant. The schedule must include for each location:

(a) the name under which coal is or will be mined;

(b) the permit number and mining enforcement and safety administration identification number if the mine is operating;

(c) the actual coal production for the year preceding the application for assistance and that portion of the production attributed to the applicant;

(d) the estimated coal production for each year of the proposed permit and that portion attributed to the applicant; and

(e) the estimated total reserves within the proposed permit area and the method by which those reserves were calculated;

(4) a description of:

(a) the method of strip or underground coal mining operation proposed;

(b) the anticipated starting and termination dates of mining operations;

(d) a general statement on the probable depth and thickness of the coal resource;

(5) a topographic map of 1":400' scale or other scale approved by the department that clearly shows:

(a) the area of land to be affected and the natural drainage above and below the affected area;

(b) the names of property owners within the area to be affected and of adjacent lands;

(c) the location of existing structures and developed water sources within the area to be affected and on adjacent lands;

(d) the location of existing and proposed test boring or core samplings; and

(e) the location and extent of known workings of any underground mines; and

(6) copies of documents which show that:

(a) the applicant has a legal right to enter and commence mining within the permit area; and

(b) a legal right of entry has been obtained for the department, contractor, consultant, and laboratory personnel to inspect the lands to be mined and adjacent lands which may be affected to collect environmental data or install necessary instruments.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-221, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1224 Small Operator Assistance Program: Application Approval and Notice

(1) If the department finds the applicant eligible, and it does not have information readily available which would preclude issuance of a permit to the applicant for mining in the area proposed, it shall:

(a) determine the minimum data requirements necessary to meet the provisions of ARM 17.24.1225;

(b) select the services of one or more qualified laboratories, contractors, and/or consultants to perform the required work. A copy of the contract or other appropriate work must be provided to the applicant.

(2) The department shall inform the applicant in writing if the application is denied and shall state the reason for denial.

(3) The granting of assistance under ARM 17.24.1221 through 17.24.1228 must not be a factor in decisions by the department on a subsequent permit application.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-221, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1225 Small Operator Assistance Program: Data Requirements

(1) The department shall determine the data collection requirements for each applicant based on:

(a) the extent of currently available hydrologic, core analysis, and other resource or environmental data for the applicable area; and

(b) the data collection and analysis requirements of subchapter 3 and any other applicable portions of these rules.

(2) Data collection and the results provided must be sufficient to satisfy the requirements for:

(a) a determination of the probable hydrologic consequences of the mining and reclamation operations, both on and off-site.

(i) The data required for this determination must be collected pursuant to ARM 17.24.304(1)(e) and (1)(f) ;

(ii) The determination of probable hydrologic consequences must be made pursuant to ARM 17.24.314;

(iii) The report of the determination must include engineering analyses and designs necessary for the determination;

(b) a statement of the results of test borings or core samplings from the proposed permit area, including information on overburden and coal, as required by ARM 17.24.304(1)(g)(i) and 17.24.322(2)(a) ;

(c) the preparation of maps, cross-sections, and plans under subchapter 3 to the extent allowed by 30 CFR 779.25 and 783.25;

(d) cultural and historic information pursuant to ARM 17.24.304(1)(b) and (1)(d) and the development of mitigation measures pursuant to ARM 17.24.318;

(e) preblasting surveys pursuant to ARM 17.24.622;

(f) climatological information and an air pollution control plan pursuant to ARM 17.24.304(1)(h) and 17.24.311, respectively;

(g) a vegetation survey and revegetation plan pursuant to ARM 17.24.304(1)(i) and 17.24.313(5) and applicable rules in subchapter 7, respectively;

(h) a fish and wildlife survey and a fish and wildlife plan pursuant to ARM 17.24.304(1)(j) and 17.24.312, respectively;

(i) a soil survey and a soil salvage and redistribution plan pursuant to ARM 17.24.304(1)(k) and 17.24.313(1)(f) and applicable rules in subchapter 7, respectively; and

(j) a statement of the condition, capability and productivity of the land pursuant to ARM 17.24.304(1)(l) .

(3) The statement under (2)(b) may be waived by the department by a written determination that such requirements are unnecessary with respect to the specific permit application.

(4) Data collected under this program must be made available to all interested persons.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-221, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1226 Small Operator Assistance Program: Qualification of Laboratories, Consultants, and Contractors

(1) The department shall designate qualified laboratories, consultants, and contractors. To receive such a designation, firms shall apply to the department and provide the information necessary to establish the qualifications required by (2).

(2)

(a) To qualify for designation a firm shall demonstrate that it:

(i) is staffed with experienced, professional personnel capable of performing any or all of the work described in ARM 17.24.1225(2);

(ii) is capable of collecting necessary field data and samples;

(iii) has adequate space for material preparation cleaning and sterilizing necessary equipment, stationary equipment, storage, and space to accommodate periods of peak work loads;

(iv) meets the requirements of the Department of Labor and Industry Safety Bureau;

(v) has the financial capability and business organization necessary to perform the work required;

(vi) has analytical, monitoring and measuring equipment capable of meeting the applicable standards and methods contained in ARM 17.24.645 and 17.24.646; and

(vii) is capable of performing either the determination or statement under ARM 17.24.1225(2)(a) and (b).

(b) Subcontractors may be used to provide the services required if their use is described in the application for designation and approved by the department.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-221, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 1999 MAR p. 2768, Eff. 12/3/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1227 Small Operator Assistance Program: Assistance Funding

(1) Funds authorized for this program must not be used to cover administrative costs or the costs of test boring or core sampling.

(2) The department shall to the extent practicable establish a formula for allocating funds among eligible small operator permit applicants if available funds are less than those required to provide the services. This formula must include such factors as the applicant's:

(a) anticipated date of filing a permit application;

(b) anticipated date for commencing mining; and

(3) Funding must not be given unless it is clear that the applicant would not be restricted in any manner from receiving a permit.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-221, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1228 Small Operator Assistance Program: Applicant Liability

(1) The applicant shall reimburse the department for the cost of the services performed pursuant to ARM 17.24.1224 if the applicant:

(a) submits false information;

(b) fails to submit a permit application within one year from the date of receipt of the approved laboratory, consultant, and/or contractor report;

(d) produces coal in excess of 300,000 actual and attributable tons at all operations during the 12-month period immediately following the date on which the applicant was issued a coal mining permit; or

(e) sells, transfers, or assigns the permit and the total actual and attributed production of the transferee exceeds the 300,000-ton annual production limit during the 12-month period immediately following the date on which the applicant was issued a coal mining permit. Under this section, the applicant and its successor are jointly and severally obligated to reimburse the department.

(2) The department may waive the reimbursement obligation if it finds that the applicant at all times acted in good faith.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-221, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1246 Restrictions on Employee Financial Interests: Responsibilities of the Director

The director shall:

(1) provide advice, assistance, and guidance to each state employee, to determine if the employee is required to file a statement pursuant to ARM 17.24.1249;

(2) promptly review the statement of employment and financial interests and supplements, if any, filed by each employee to determine if the employer has correctly identified those listed employment and financial interests which constitute a direct or indirect financial interest in a strip or underground mining operation;

(3) resolve prohibited financial interests by ordering or initiating remedial action or by reporting the violations to the Federal Coal Regulatory Authority;

(4) certify on each statement that review has been made, that prohibited financial interests, if any, have been resolved, and that no other prohibited interests have been identified from the statement;

(5) submit to the Federal Coal Regulatory Authority such statistics and information as he or she may request to enable preparation of the required annual report to congress;

(6) submit to the Federal Coal Regulatory Authority the initial listing and the subsequent annual listings of positions as required in ARM 17.24.1249;

(7) furnish a blank statement 45 days in advance of the filing date established in ARM 17.24.1249 to each employee required to file a statement;

(8) inform annually each employee required to file a statement of the person whom they may contact for advice and counseling; and

(9) comply with ARM 17.24.1247.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-254, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1247 Restrictions on Employee Financial Interests: Responsibilities of Employees

State employees performing any duties or functions under the Act shall:

(1) have no direct or indirect financial interest in coal mining operations;

(2) file a fully completed statement of employment and financial interest upon entrance to duty and annually thereafter on the specified filing date; and

(3) comply with directives issued by persons responsible for approving each statement and comply with directives issued by those persons responsible for ordering remedial action.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-254, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1248 Restrictions on Employee Financial Interests: Definitions

For purposes of ARM 17.24.1246 through 17.24.1254, the following definitions apply:

(1) "Coal mining operation" means the business of developing, producing, preparing or loading bituminous coal, subbituminous coal, anthracite, or lignite, or of reclaiming the areas upon which such operations occur.

(2) "Direct financial interest" means ownership or part ownership by an employee of lands, stocks, bonds, debentures, warrants, partnership shares, or other holdings and also means any other arrangement where the employee may benefit from his or her holding in or salary from coal mining operations. Direct financial interests include employment, pensions, creditor, real property and other financial relationships.

(3) "Indirect financial interest" means the same financial relationships as for direct ownership, except that the employee reaps the benefits of such interests, including interests held by his or her spouse, minor child and other relatives, including in-laws, residing in the employee's home. The employee does not have an indirect financial interest if there is no relationship between the employee's functions or duties and the coal mining operation in which the spouse, minor children or other resident relatives hold a financial interest.

(4) "Prohibited financial interest" means any direct or indirect financial interest in any coal mining operation.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-254, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1249 Restrictions on Employee Financial Interests: Filing of Statement

(1)

(a) Any state employee who performs any function or duty under the Act is required to file a statement of employment and financial interests.

(b) The director shall prepare a list of those positions within the department and other departments that have employees performing any functions under the Act and the title of bureaus or divisions within those departments that do not perform any functions or duties under the Act.

(c) The director shall submit to the Federal Coal Regulatory Authority the listing of positions that do not involve performance of any functions or duties under the Act.

(d) The director shall annually review and update this listing. For monitoring and reporting reasons, the listing must be submitted to the Federal Coal Regulatory Authority and must contain a written justification for inclusion of the positions listed. Proposed revisions or a certification that revision is not required must be submitted to the Federal Coal Regulatory Authority no later than September 30 of each year. The director may revise the listing by the addition or deletion of positions at any time he determines such revisions are required to carry out the purpose of the law or ARM 17.24.1246 through 17.24.1254. Additions to and deletions from the listing of positions are effective upon notification to the incumbents of the positions added or deleted.

(2)

(a) Employees performing functions or duties under the Act shall file annually on February 1 of each year.

(b) New employees hired, appointed, or transferred to perform functions or duties under the Act shall file at the time of entrance to duty.

(c) A new employee is not required to file an annual statement on the subsequent annual filing date if this date occurs within two months after his or her initial statement was filed.

(3) The director shall file his or her statement with the Federal Coal Regulatory Authority. All other employees shall file their statement with the director.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-254, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1250 Restrictions on Employee Financial Interests: Contents of Statement

(1) Each employee who performs any function or duty under the Act shall report all information required on the statement of employment and financial interests of the employee, his or her spouse, minor children, or other relatives who are full-time residents of the employee's home. The report must be on OSM Form 23.

(2) The employee shall set forth the following information regarding any financial interest:

(a) employment: any continuing financial interests in business entities and nonprofit organizations through a pension or retirement plan, shared income, salary or other income arrangement as a result of prior or current employment. The employee, his or her spouse or other resident relative is not required to report a retirement plan from which he or she will receive a guaranteed income. A guaranteed income is one which is unlikely to be changed as a result of actions taken by the department;

(b) securities: any financial interest in business entities and nonprofit organizations through ownership of stock, stock options, bonds, securities or other arrangements including trusts. An employee is not required to report holdings in widely diversified mutual funds, investment clubs or regulated investment companies not specializing in strip or underground coal mining operations;

(c) real property: ownership, lease, royalty or other interests or rights in lands or minerals. Employees are not required to report lands developed and occupied for a personal residence.

(d) creditors: debts owed to business entities and nonprofit organizations. Employees are not required to report debts owed to financial institutions (banks, savings and loan associations, credit unions, and the like) which are chartered to provide commercial or personal credit. Also excluded are charge accounts and similar short term debts for current and ordinary household and living expenses.

(3) The statement shall provide for a signed certification by the employee that to the best of his or her knowledge, none of the listed financial interests represent an interest in a strip or underground coal mining operation except as specifically identified and described as exceptions by the employee as part of the certificate, and the information shown on the statement is true, correct, and complete. The exceptions shown in the employee certification of the form must provide enough information for the director to determine the existence of a direct or indirect financial interest. Accordingly, the certification form must:

(a) list the financial interests;

(b) show the number of shares, estimated value or annual income of the financial interests; and

(c) include any other information which the employee believes should be considered in determining whether or not the interest represents a prohibited interest.

(4) An employee is expected to:

(a) have a complete knowledge of his or her personal involvement in business enterprises such as a sole proprietorship and partnership, his or her outside employment and the outside employment of the spouse and other covered relatives, and

(b) be aware of the information contained in the annual financial statement or other corporate or business reports routinely circulated to investors or routinely made available to the public.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-254, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1251 Restrictions on Employee Financial Interests: Effect of Failure to File Statement

(1) Failure to file the statement of employment and financial interest as required in ARM 17.24.1249 subjects the employee to removal from his or her position.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-254, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1252 Restrictions on Employee Financial Interests: Gifts and Gratuities

(1) Except as provided in (2) of this rule, an employee who performs any function or duty under the Act may not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or any other thing of monetary value, from a coal company that:

(a) conducts or is seeking to conduct operations that are regulated by the department; or

(b) has interests that may be substantially affected by the performance or nonperformance of the employee's official duty.

(2) The prohibitions in (1) do not apply in the context of obvious family or personal relationships, such as those between the parents, children, or spouse of the employee and the employee, whenever the circumstances make it clear that it is those relationships rather than the business of the persons concerned that are the motivating factors. An employee may accept:

(a) food and refreshments of nominal value on infrequent occasions in the ordinary course of a luncheon, dinner, or other meeting where an employee may properly be in attendance; and

(b) unsolicited advertising or promotional material, such as pens, pencils, note pads, calendars and other items of nominal value.

(3) An employee who violates any of the provisions of this rule is subject to suspension without pay for a single violation and termination for repeated violations in accordance with existing rules on policies for termination and suspension.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-254, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1253 Restrictions on Employee Financial Interests: Resolution of Prohibited Interests of Employees

(1) Whenever an employee who performs any function or duty under the Act has a prohibited financial interest, the director shall promptly advise the employee that remedial action that will resolve the prohibited interest is required within 90 days.

(2) Remedial action may include:

(a) reassignment of the employee to a position which performs no function or duty under the Act; or

(b) divestiture of the prohibited financial interest; or

(c) other appropriate action that either eliminates the prohibited interest or eliminates the situation creating the conflict.

(3) Failure of the employee to comply with an order of the director to resolve the prohibited financial interest may result in suspension or termination of the employee subject to the employee grievance procedure. An employee has 30 calendar days to exercise this right to file a grievance before disciplinary action is taken.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-254
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1254 Restrictions on Employee Financial Interests: Resolution of Prohibited Financial Interests of the Director

(1) If it is determined that the director has a prohibited financial interest, the Governor shall promptly advise the director that remedial action which will resolve the prohibited interest is required within 90 days. Remedial action for the director should be consistent with the procedures prescribed for other state employees.

(2) If the director fails to resolve a prohibited financial interest as directed by the Governor, the Governor shall immediately report this fact to the Federal Coal Regulatory Authority and shall take whatever further action is deemed appropriate.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-254, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1255 Restrictions on Financial Interests: Multiple Interest Advisory Boards

(1) Members of advisory boards and commissions (established in accordance with state law or rules to represent multiple interests) who perform a function or duty under the Act shall file an OSM Form 23 with the director in accordance with the schedule established for employees in ARM 17.24.1219(2). They shall recuse themselves from proceedings that may affect their direct or indirect financial interests.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-254, MCA
History: NEW, 1990 MAR p. 936, Eff. 5/18/90; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1260 Requirements for the Conduct of Blasting Operations

(1) Each operator shall conduct each blasting operation under direction of an individual who has been certified by the department pursuant to ARM 17.24.1261 and who is familiar with the operation's blasting plan and site-specific blasting performance standards. The certified blaster's responsibilities include, but are not limited to, determining blasting pattern, hole pattern, type and quantity of explosives, maintenance of blasting records, and safety of employees involved in the storage, transportation, and use of explosives.

(2) A certified blaster may not delegate the direction of blasting operations to any individual who is not a certified blaster.

(3) A certified blaster and at least one other person must be present during the detonation of each blast.

(4) A certified blaster shall immediately exhibit on-site or at the mine office his certificate to any authorized representative of the department or the Federal Coal Regulatory Authority upon request.

(5) An operator shall require that persons who are not certified blasters receive direction and on-the-job training from a certified blaster before those persons assist in the storage, transportation, and use of explosives.

History

Authorizing statute(s): 82-4-205, 82-4-205(7), 82-4-231(10)(e), MCA
Implementing statute(s): 82-4-231(10)(e), MCA
History: NEW, 1984 MAR p. 1373, Eff. 9/14/84; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1261 Certification of Blasters

(1)

(a) A person seeking certification as a blaster shall submit to the department an application on a form provided by the department. The applicant shall include a verifiable statement that he has successfully completed a training course, provided by the department, the operator, or other person, meeting the requirements of ARM 17.24.1262(1) and incorporating the training manual prepared by the department.

(b) The department shall make available to the public, upon request and payment of a reasonable fee, a copy of the training manual. The training manual must be updated as necessary.

(2) The department shall issue a blaster certification to each applicant who:

(a) has two years field experience in blasting;

(b) has successfully completed a 24-hour blaster training course meeting the requirements of ARM 17.24.1262; and

(c) achieves a grade of 80% or higher on an examination administered by the department. The examination must, at a minimum, reflect the training manual prepared by the department and examine in the topics set forth in ARM 17.24.1262. The examination must also incorporate an equally weighted section that covers practical field experience on blasting procedures and occurrences. An applicant who fails may retake the examination. If the applicant fails the examination a second time, he shall successfully complete a blaster training course again and reapply for certification before retaking the examination.

(3) Blaster certifications are nontransferable.

(4) A certification shall expire three years after issuance. The department shall recertify if the blaster:

(a) submits to the department, at least 60 days prior to the expiration of his certification, an application for recertification on a form provided by the department;

(b) has documented successful completion of 16 hours of refresher training meeting the requirements of ARM 17.24.1262 during the certification period; and

(c) has conducted or directed blasting operations within the 12 months immediately preceding the date of application for recertification or receives a grade of 80% or better on a recertification examination. The only new developments that the department may include in the recertification examination are those that have been included in the updates to the training manual. The applicant for recertification may take the examination twice.

(5) The department shall certify any person who has a current state or federal blaster certificate under any program approved by the Federal Coal Regulatory Authority under 30 CFR Part 850 and can demonstrate that he or she has met requirements equivalent to those in (1) and (2). The period of the department's certification must be coextensive with the period of certification under the other program but may not exceed three years.

History

Authorizing statute(s): 82-4-205, 82-4-205(7), 82-4-231(10)(e), MCA
Implementing statute(s): 82-4-231(10)(e), MCA
History: NEW, 1984 MAR p. 1373, Eff. 9/14/84; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 1999 MAR p. 2768, Eff. 12/3/99; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1262 Blaster Training Courses

(1) A blaster training course must provide appropriate training in and discuss practical applications of:

(a) use of explosives, including:

(i) selection of the type of explosive to be used;

(ii) determination of the properties of explosives which will produce desired results at an acceptable level of risk;

(iii) handling, transportation and storage;

(b) design of blasts, including:

(i) geologic and topographic considerations;

(ii) blast hole design;

(iii) pattern design, field layout, and timing of blast holes;

(iv) field applications;

(d) use of initiation systems and blasting machines;

(e) effects of blasting vibrations, airblast, and flyrock, including;

(i) monitoring techniques;

(ii) methods to control adverse effects;

(f) use of secondary blasting;

(g) discussion of current federal and state rules applicable to the use of explosives;

(h) maintenance of blast records;

(i) determination of blasting schedules;

(j) design and use of preblasting surveys including availability, coverage, and use of in-blast design;

(k) requirements of blast plans;

(l) signs, warning signals, and site control;

(m) identification of unpredictable hazards including:

(i) lightning;

(ii) stray currents;

(iii) radio waves;

(iv) misfires; and

(n) updates to the department's training manual.

History

Authorizing statute(s): 82-4-205, 82-4-205(7), 82-4-231(10)(e), MCA
Implementing statute(s): 82-4-231(10)(e), MCA
History: NEW, 1984 MAR p. 1373, Eff. 9/14/84; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1263 Suspension or Revocation of Blaster Certification

(1) The following are grounds for suspension or revocation of blaster certification:

(a) failure to comply with any order of the department;

(b) conviction of criminal possession or sale of dangerous drugs;

(d) violation of any state or federal explosives laws or regulations;

(e) providing of false information or a misrepresentation to obtain certification;

(f) failure to present blaster certification upon request of the department or Federal Coal Regulatory Authority personnel;

(g) delegating responsibility to any individual who is not a certified blaster;

(h) storage, transportation, or use of explosives in a manner that could threaten life or limb or cause environmental harm.

(2) If the department finds that a certified blaster has committed one or more of the acts prohibited in (1), the department may, and upon a finding of willful conduct shall, suspend or revoke the certification of the blaster. The department shall determine whether to suspend or revoke and the length of suspension on the basis of determination of reasonable necessity to protect human life or limb and to prevent environmental degradation.

(3) If the department has probable cause to believe that a certified blaster has committed any of the acts prohibited in (1) and that the blaster's certification should or must be suspended or revoked, the department shall notify the blaster and his employer in writing by certified mail at the address contained in the blaster's application for certification or at a subsequent address of which the blaster has notified the department in writing. The blaster does not defeat service by refusing to accept or failing to pick up the notice. The notice must advise the blaster of the department's proposed action, the alleged facts upon which the proposed action is based, and the blaster's right to request a contested case hearing before the Board of Environmental Review. If the department determines that suspension of the blaster's certification is reasonably necessary in order to protect human life or limb or the environment, it may suspend the certification until the hearing is held; provided, however, that no such suspension may be in effect for longer than 45 days. At the close of the hearing, the hearing officer may, based on a finding that the department will probably prevail and that continued suspension is reasonably necessary, continue the suspension until a final decision is made.

History

Authorizing statute(s): 82-4-205, 82-4-231, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1984 MAR p. 1373, Eff. 9/14/84; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1264 The Department's Obligations Regarding the Applicant/Violator System

(1) The department shall enter into the applicant/violator system (AVS) the following data:

(a) information that the applicant is required to submit under ARM 17.24.303(1)(f), (g), and (h);

(b) information submitted by the applicant pursuant to ARM 17.24.303(1)(m) and (n) pertaining to violations which are unabated or uncorrected after the abatement or correction period has expired; and

(c) any additional information of the kind described in (1)(a) or (b) submitted or discovered during the department's permit application review, upon verification by the department of that additional information.

(2) If, at any time, the department discovers that any person owns or controls an operation with an unabated or uncorrected violation, the department shall take appropriate enforcement action. The department shall enter the results of each enforcement action, including administrative and judicial decisions, into AVS.

(3) The information provided to or obtained by the department must be entered into AVS pursuant to the following table:

The department shall enter into AVS all: | Within 30 days after:

permit records | the permit is issued or subsequent changes are made
unabated or uncorrected violations | the abatement or correction period for a violation expires
changes to information initially required to be provided by an applicant under ARM 17.24.303(1)(g)(i) through (iv) and (h) | receiving notice of a change
changes in violation status | abatement, correction, or termination of a violation, or a decision from an administrative or judicial tribunal
additional information submitted or discovered during the department's permit application, permit renewal application, or permit amendment application review | verification by the department of the additional information

(4) If, at any time, the department identifies a person who owns or controls an entire coal mining operation or any relevant portion or aspect of a coal mining operation, the department shall issue a written preliminary finding to the person and the applicant or permittee describing the nature and extent of ownership or control. The preliminary finding must be based on evidence sufficient to establish a prima facie case of ownership or control.

(5) A person subject to a preliminary finding under (4) has 30 days in which to submit to the department information tending to demonstrate that person's lack of ownership and control. If, after reviewing the submitted information, the department determines the person is not an owner or controller, the department shall serve written notice of that determination on that person. If, after reviewing the submitted information, the department determines the person is an owner or controller or if no information is submitted during the 30-day period, the department shall issue its finding in writing and shall enter that finding into AVS.

(6) A person identified as an owner or controller under (5) may challenge the finding using the provisions of ARM 17.24.1266.

(7) Whenever a court of competent jurisdiction enters a judgment against a person under 82-4-254(4) or convicts a person under 82-4-254(6) or (7), MCA, the department shall update the AVS.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, MCA
History: NEW, 2012 MAR p. 1349, Eff. 4/13/12; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1265 Department Eligibility Review

(1) In making a permit eligibility determination, the department shall rely upon the information supplied by the applicant pursuant to ARM 17.24.1264(1), information from AVS, and any other available information to review. The department shall review:

(a) the organizational structure and ownership or control relationships of the applicant and the operator;

(b) the permit histories of applicant and the operator;

(d) the history of compliance with Surface Mining Control and Reclamation Act and the Montana Strip and Underground Mine Reclamation Act (the Act), implementing rules, any permits issued thereunder, and any other applicable air or water quality laws, by the applicant, the operator, operations the applicant owns or controls, and operations the operator owns or controls.

(2) If the applicant and the operator have no previous mining experience, the department may conduct an additional review to determine if someone else with mining experience controls the mining operation.

(3) Based on the reviews pursuant to (1) and (2), the department shall determine whether the applicant is eligible for a permit under (4).

(4) Except as provided in ARM 17.24.405(6)(h), the applicant is not eligible for a permit if approval is prohibited by 82-4-227(11) or (12), MCA.

(5) After approving a permit under ARM 17.24.405, the department may not issue the permit until:

(a) the applicant updates and certifies all information required by ARM 17.24.303(1)(g), (h), and (i) and ARM 17.24.1264(1); and

(b) the department obtains and reviews an updated compliance history report from AVS to determine if there are any unabated or uncorrected violations which affect permit eligibility under (5) and (6). The department shall request this report no more than five business days before issuance under ARM 17.24.405.

(6) If the applicant is ineligible for a permit under this rule, the department shall send written notification of the decision to the applicant, stating the reason for the finding of ineligibility and giving notice of the applicant's right to challenge the decision under ARM 17.24.1266.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, MCA
History: NEW, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1266 Questions About and Challenges to Ownership or Control Findings

(1) At any time a person listed in AVS as an owner or controller of a surface coal mining operation in Montana may request an informal explanation from the department as to the reason that person is shown in AVS in an ownership or control capacity. Within 14 days of the request, the department shall provide a response describing why the person is listed in AVS.

(2) An applicant or permittee affected by an ownership or control listing or finding, a person listed in a permit application or AVS as an owner or controller of an entire surface coal mining operation or any portion or aspect thereof, or person found to be an owner or controller of an entire surface coal mining operation or any portion or aspect thereof, may challenge an ownership or control listing or finding to:

(a) the board if the challenge concerns a pending permit application; or

(b) the department if the challenge concerns the challenger's ownership or control of a surface coal mining operation, and the challenger is not currently seeking a permit.

(3) Challenges to an ownership or control listing or finding may be made as follows:

(a) when the challenge is made in connection with the approval or denial of a permit application, permit amendment application, or permit renewal application, by submitting a request for a hearing to the board pursuant to 82-4-206, MCA; or

(b) when the challenge is not made in connection with the approval or denial of a permit application, permit amendment application, or permit renewal application, by submitting to the department a challenge, including written explanation of the basis for the challenge, along with evidence and explanatory materials.

(4) A person who challenges a finding of ownership or control under ARM 17.24.1264(5) or a listing or finding of ownership or control bears the burden of proving by a preponderance of the evidence that the person either:

(a) does not own or control the entire surface coal mining operation or relevant portion or aspect thereof; or

(b) did not own or control the entire surface coal mining operation or relevant portion or aspect thereof during the relevant time period.

(5) In meeting that burden of proof, the challenger must present reliable, credible, and substantial evidence and any explanatory materials to the board or department. The materials presented in connection with the challenge must become part of the permit file, an investigation file, or another public file. The challenger may request that information be kept confidential. The board or department shall determine whether the information may be kept confidential under Montana law. If the board or department determines that the information may not be kept confidential, the board or department shall notify the challenger and shall hold the documents confidential for ten days in order to allow the challenger to obtain a court order requiring the board or department to keep the documents confidential.

(6) Materials that may be submitted in response to the requirements of (8) include, but are not limited to:

(a) notarized affidavits containing specific facts concerning the specific duties the challenger performed for the relevant operation, the beginning and ending dates of the challenger's ownership or control of the operation, and the nature and details of any transaction creating or severing the challenger's ownership or control of the operation;

(b) certified copies of corporate minutes, stock ledgers, contracts, purchase and sale agreements, leases, correspondence, or other relevant company records;

(d) an opinion of counsel, when supported by:

(i) evidentiary materials;

(ii) a statement by counsel that he or she is qualified to render the opinion; and

(iii) a statement that counsel has personally and diligently investigated the facts of the matter.

(7) When the department receives a written challenge to an ownership or control listing pursuant to (2)(b), the department shall review and investigate the evidence and explanatory materials submitted with the challenge and any other reasonably available information that has bearing on the challenge, and shall issue a written decision within 60 days of receipt of the challenge, stating whether the department finds that the person who submitted the challenge owns or controls the relevant surface coal mining operation, or owned or controlled the operation during the relevant time period. The department shall send its decision to the challenger by certified mail or by any means consistent with the rules governing service of a summons and complaint under the Montana Rules of Civil Procedure. Service of the decision is complete upon delivery and is not incomplete if the challenger refuses to accept delivery.

(8) The department shall post all decisions made under this rule on AVS.

(9) Following the department's written decision or any decision by the board or a court, the department shall review the information in AVS to determine if it is consistent with the decision. If it is not, the department shall promptly revise the information in AVS to reflect the decision.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, MCA
History: NEW, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1267 Information Requirements for Permittees

(1) Except as provided in (2), within 30 days after the issuance of a cessation order under 82-4-251, MCA, the permittee of the operation subject to the cessation order shall provide or update the following information:

(a) a statement indicating whether the permittee and any operator are corporations, partnerships, associations, sole proprietorships, or other business entities;

(b) taxpayer identification numbers for the permittee and any operator;

(i) the permittee;

(ii) the permittee's resident agent who will accept service of process; and

(iii) any operator;

(d) each business entity in the applicant's and any operator's organizational structures, up to and including the ultimate parent entity of the applicant and any operator and, for every such business entity, the required information for every president, chief executive officer, and director (or persons in similar positions), and every person who owns, of record, ten percent or more of the entity;

(e) for the permittee and any operator, the information required by (f) for every:

(i) officer;

(ii) partner;

(iii) member;

(iv) director;

(v) person performing a function similar to a director; and

(vi) person who owns, of record, ten percent or more of the permittee or operator; and

(f) the following information for each person listed in (e):

(i) the person's name, address, and telephone number;

(ii) the person's position title and relationship to the permittee or operator, including percentage of ownership and location in the organizational structure; and

(iii) the date the person began functioning in that position.

(2) The permittee is not required to submit the information required in (1) if a court of competent jurisdiction grants a stay of the cessation order and the stay remains in effect.

(3) Within 60 days of any addition, departure, or change in position of any person identified in (1)(e), the permittee must notify the department in writing of the addition, departure, or change. The notice must include:

(a) the information required in (1)(f); and

(b) the date of any departure.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, MCA
History: NEW, 2012 MAR p. 737, Eff. 4/13/12; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Subchapter 17.24.13 Strip and Underground Mine Reclamation Act: Miscellaneous Provisions

Mont. Admin. R. 17.24.1301 Modification of Existing Permits: Issuance of Revisions and Permits

(1) Within one year of October 22, 2004, each operator and each test pit prospector shall submit to the department an application for all permit revisions necessary to bring the permit and operations conducted thereunder into compliance with subchapters 3 through 12 as they read on October 22, 2004.

(2) A permit revision application submitted solely for purposes of (1) is a minor revision for purposes of subchapter 4.

(3) No permittee may continue to mine or reclaim under an operating permit after the midterm (date that is two and one-half years after permit issuance or renewal) of the permit or the permit renewal date, whichever occurs later, unless the permit has been revised to comply with subchapters 3 through 12, as amended on October 22, 2004.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-221, 82-4-222, MCA
History: NEW, 1989 MAR p. 30, Eff. 1/13/89; AMD, 1990 MAR p. 964, Eff. 5/18/90; AMD, 1991 MAR p. 465, Eff. 4/12/91; AMD, 1992 MAR p. 232, Eff. 2/14/92; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2004 MAR p. 2548, Eff. 10/22/04; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1302 Nonconforming Structure

(1) No application for a permit or revision under subchapter 3 or 4 which proposes to use an existing structure which does not conform to the design criteria of this subchapter may be approved unless the department finds, in writing, on the basis of information set forth in the application that:

(a) the structure meets the performance standards of subchapters 5 through 10; and

(b) no significant harm to the environment or public health or safety will result from use of the structure.

(2) If the department finds that an existing structure does not meet the design and performance standards of subchapters 5 through 10 but that:

(a) modification or reconstruction of the structure will bring it into compliance with the design and performance standards of subchapters 5 through 10 within six months of the issuance of the permit;

(b) the risk of harm to the environment or to public health or safety is not significant during the period of modification or reconstruction; and

(c) the applicant will monitor the structure to determine compliance with the performance standards of subchapters 5 through 10; then the applicant shall submit and adhere to an approved compliance plan for modification or reconstruction of the structure to comply with subchapters 5 through 10.

(3) If the department finds that the existing nonconforming structure cannot be reconstructed without causing significant harm to the environment or public health or safety, the applicant shall abandon the existing structure on a schedule approved by the department.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-231, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1303 Rules Applicable to Coal Operations Only

(1) The following rules are applicable only to the strip and underground mining of coal: ARM 17.24.801, 17.24.802, 17.24.804 through 17.24.806 (Alluvial Valley Floors), 17.24.811 and 17.24.815 (Prime Farmlands), 17.24.1131 through 17.24.1138 (Areas Upon Which Mining Is Prohibited), 17.24.1141 through 17.24.1148 (Designation of Lands Unsuitable), and 17.24.1221 through 17.24.1228 (Small Operator Assistance Program), and those portions of subchapter 3 that apply to these rules. In addition, certain portions of other rules may be applicable only to coal mining if the text of the rule clearly so indicates.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-227, 82-4-228, 82-4-231, 82-4-232, 82-4-233, 82-4-235, MCA
History: NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24; AMD, 2025 MAR, 17-451, Eff. 3/29/25.

Mont. Admin. R. 17.24.1304 Applicability of Federal Law

(1) Wherever subchapters 3 through 12 require compliance with both state and federal law or regulations, compliance only with state law is required when, with consent of the federal regulatory agency, state law and rules are being enforced in lieu of federal law and regulations.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-202, MCA
History: NEW, 1980 MAR p. 725 Eff. 4/1/80; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1307 Litigation Expenses: When Department May Award

(1) Whenever any final order is issued at the request of any person other than the permittee, permit applicant, or the department as a result of any administrative proceeding under the Act, appropriate and reasonable costs, expenses, and attorney fees incurred for or in connection with that person's participation in those proceedings may be assessed against either party.

(2) Whenever any final order is issued in any administrative proceeding under the Act at the request of the permittee, permit applicant, or the department, appropriate and reasonable costs, expenses and attorney fees incurred by the permittee, permit applicant, or the department for or in connection with participation in the proceeding may be assessed against any party if it is demonstrated that the party participated in the proceeding in bad faith and for the purpose of harassing or embarrassing the permittee, permit applicant, or the department.

(3) For the purposes of (1) and (2) of this rule, a final order is considered to have been issued at a person's request if the person made a substantial contribution to the issuance of that order.

(4) Attorney fees, costs and expenses recoverable under (1) and (2) of this rule include attorney fees, costs and expenses reasonably and necessarily incurred in seeking an award under this rule.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-251, MCA
History: NEW, 1980 MAR p. 2875, Eff. 10/31/80; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1308 Litigation Expenses: Filing of Petition

(1) The petition for an award of costs, expenses, and attorney fees must be filed within 45 days of receipt of such order. Failure to make a timely filing of the petition may constitute a waiver of the right to such an award.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-251, MCA
History: NEW, 1980 MAR p. 2875, Eff. 10/31/80; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1309 Litigation Expenses: Contents of Petition and Answer

(1) A petition for costs, expenses, or attorney fees must include the name of the person from whom costs and expenses are sought and the following must be submitted in support of the petition:

(a) an affidavit setting forth in detail all costs and expenses including attorney fees reasonably incurred for or in connection with, the person's participation in the proceedings;

(b) receipts or other evidence of such costs and expenses; and

(c) where attorney fees are claimed, evidence concerning the hours expended on the case, the customary commercial rate of payment for such services in the area, and the experience, reputation and ability of the individual or individuals performing the services.

(2) Any person served with a copy of the petition shall have 30 days from service of the petition within which to file an answer to such petition.

History

Authorizing statute(s): 82-4-205, MCA
Implementing statute(s): 82-4-251, MCA
History: NEW, 1980 MAR p. 2875, Eff. 10/31/80; AMD, 1989 MAR p. 30, Eff. 1/13/89; TRANS, from DSL, 1996 MAR p. 3042; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Subchapter 17.24.18 Rules and Regulations Governing the Montana Strip and Underground Mine Siting Act

Mont. Admin. R. 17.24.1801 Definitions

(1) "Mine site location" means that area of land to be affected by preparatory work.

(2) "Proposed mining area" means that area of land to be affected by all strip mining related activities including the preparatory work area. The area so described shall comprise the total area to be disturbed by the life of the operation as anticipated at the time application is made.

History

Authorizing statute(s): 82-4-112, MCA
Implementing statute(s): 82-4-122, MCA
History: NEW, Eff. 4/4/74; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1802 Applicability Determination

(1) All non-existing or non-operating mines at the time of passage of Title 82, chapter 4, part 1, MCA, (Strip Mine Siting Act) from which 10,000 cubic yards of mineral or overburden will be removed are subject to the Act.

(2) A person currently engaged in strip mining activities and contemplating an expansion of existing strip mine may, at any time, request that the department, by declaratory ruling, determine whether said contemplated expansion constitutes a new strip mine. The request shall be made in writing and shall include:

(a) topographic map showing the total proposed mining area of the contemplated expansion, as known, and the relationship of the proposed expansion to the existing mine and facilities;

(b) narratives and maps describing soils, wildlife, geologic structure, and vegetation of the proposed expansion. The department may require narratives and maps as described by Title 82, chapter 4, part 1, MCA, rules and regulations pursuant thereto and current departmental guidelines;

(d) a brief narrative describing what expansion of facilities or new construction, if any, is contemplated.

(3) The department shall, within 90 days from receipt of a request, including the above required information, notify the person in writing whether the proposed expansion constitutes a new strip mine. The department may not act on a request until sufficient information required by this rule is submitted.

(4) A determination by the department shall not apply, or affect subsequent rulings or determinations if the expansion is not conducted as outlined in the original request.

History

Authorizing statute(s): 82-4-112, MCA
Implementing statute(s): 82-4-122, MCA
History: NEW, Eff. 4/4/75; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1803 Application for Permit: General Requirements and Procedures

(1) If desired by the applicant, meetings with departmental staff may be arranged prior to formal permit application. Such meetings would provide further information and clarify guidelines to be used in preparing application submittals.

(2) The application shall contain in completed form all of the proposed mining area resource inventories, maps, data, analyses, surveys and other information deemed necessary by the department to determine the acceptability of the proposed mining area under the criteria specified in 82-4-227(2) through (6), MCA. The application shall also contain such resource data, maps, surveys, analyses, and other information as the department deems necessary for a preliminary review of the proposed mining area under the criteria specified in 82-4-227(1) and (5), MCA. If the application is not basically complete regarding the information required to determine acceptability under the criteria specified in this section required at the time of application the department shall notify the applicant within 90 days of receipt of the application and delineate deficient areas. When the department determines the application is basically complete, the 365 day review period established in 82-4-122, MCA, begins on the date the last of the application materials was submitted.

(3) If field inspections or an in-depth review of application materials submitted reveals that supplemental information is necessary, the department shall require such information at any time during the review process. If the necessary supplemental information is not submitted by the applicant in time for adequate departmental consideration and review, the permit shall be denied. If a permit is denied solely on these grounds, an applicant may submit a new application form, reference the supportive information previously submitted and request a waiver of the 365 day review period.

(4) All tests, analyses, or surveys carried out pursuant to these rules and regulations shall be performed or certified by a qualified person. The method and/or procedures used in a given test, analysis or survey shall be documented and described.

(5) An application for a mine site location permit shall be made on forms provided by the department.

(6) Three copies of all applications, maps, reports or other data shall be required.

History

Authorizing statute(s): 82-4-112, MCA
Implementing statute(s): 82-4-122, MCA
History: NEW, Eff. 4/4/75; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1804 Contents of Application: Map

A current 7.5 minute USGS "topographic" map shall be submitted in all cases where a map depicting surface conditions is required. If a USGS topographic map is unavailable an equivalent will be acceptable. The map or maps submitted shall clearly:

(1) show the location and area of land to be affected during the life of the proposed mining operation with a description of access from the nearest public highway;

(2) identify the area to correspond with the application;

(3) show any adjacent deep mining and the boundaries of surface properties and names of owners of record of the proposed mining area and within 1/2 mile of any part of the proposed mining area;

(4) show the names and locations of all streams, creeks, or other bodies of water, roads, buildings, cemeteries, oil and gas wells, and utility lines on the proposed mining area and within 1,000 feet of such area;

(5) show by appropriate markings the boundaries of the area of land to be affected by the proposed mining operation, any cropline of the seam or deposit of mineral to be mined, and total number of acres involved in the area of land to be affected by the proposed mining operation;

(6) show the date on which the map was prepared and the north point;

(7) show the location of test boring holes;

(8) show the surface location lines of any geologic cross-sections which have been submitted;

(9) be certified as follows: "I, the undersigned, hereby certify that this map is correct, and shows to the best of my knowledge and belief all the information required by the strip mining laws of this state." The certification shall be signed and notarized. The department may reject a map as incomplete if its accuracy is not so attested;

(10) contain such other or further information as the department may require. The department will notify the applicant in writing as to what additional information is required.

History

Authorizing statute(s): 82-4-112, MCA
Implementing statute(s): 82-4-122, MCA
History: NEW, Eff. 4/4/75; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1805 Contents of Application: Compliance Information

Each application shall contain the following information:

(1) the names and addresses of the owners of record of the surface of the area of land to be affected during the life of the proposed mining operation and the owners of record within 1/2 mile of any part of the proposed mining area;

(2) the names and addresses of the present owners of record of all subsurface minerals in the land to be affected during the life of the proposed mining operations;

(3) the source of the applicant's legal right to conduct preparatory work activities on the land affected by the proposed mine site location permit;

(4) the permanent and temporary post office addresses of the applicant;

(5) whether the applicant or any person associated with the applicant holds or has held any other permits, either under this Act or under Title 82, chapter 4, part 1, MCA, and an identification of those permits;

(6) whether the applicant, or any officer, partner, director, or any individual owning of record or beneficially (alone or with associates), 10% or more of any class of stock of the applicant have ever received a notice of violation or non-compliance, or has had a location permit or license, a strip mining license or permit, or a prospecting permit issued by any other state or federal agency suspended, fined and/or revoked, or have ever forfeited a mine site location, or strip mining bond or security in lieu of a bond and if so, a detailed explanation of the facts involved and the penalties assessed in each case must be attached;

(7) the names and addresses of all known contractors or companies who will engage in preparatory work on behalf of the applicant. As additional contractors or companies are engaged they shall be reported in writing to the department within 1 week of employment;

(8) the annual rainfall and the direction and average velocity of the prevailing winds in the area where the applicant has requested a permit;

(9) the name and date of a daily newspaper of general circulation within the county in which the applicant has prominently published an announcement of his application for a mine site location permit, and a detailed description of the land to be affected should a permit be granted;

(10) a recent aerial photograph of the proposed mining area. Such photograph shall be at a scale of 1"=660' or such other size as may be agreed to by the department.

History

Authorizing statute(s): 82-4-112, MCA
Implementing statute(s): 82-4-122, MCA
History: NEW, Eff. 4/4/75; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1806 Contents of Application: Mineral and Overburden Information

(1) The applicant shall provide to the department information, data, maps, analyses and test logs from the proposed mining area for a preliminary review of mineral and overburden characteristics. Drilling shall be performed at a suitable interval depending on the nature and variability (including chemical, physical, thickness, structure, and hydrologic characteristics) of the overburden and mineral but the interval shall not be less than 1 hole per each 100 acre grid or fraction thereof, unless the department notifies the applicant in writing that fewer holes will be acceptable.

(2) All holes shall be sampled and tested to the bottom of the lowest deposit proposed to be mined. (The applicant should keep in mind the requirements of Title 82, chapter 4, part 2, MCA, and the rules and regulations adopted pursuant thereto, in conducting the drilling program.)

History

Authorizing statute(s): 82-4-112, MCA
Implementing statute(s): 82-4-122, MCA
History: NEW, Eff. 4/4/75; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1807 Contents of Application: Studies and Inventories

The applicant shall submit, as a minimum:

(1) overburden analyses capable of meeting the requirements of Title 82, chapter 4, part 2, MCA, pursuant rules and regulations and current departmental guidelines;

(2) mineral analyses capable of meeting the requirements of Title 82, chapter 4, part 2, MCA, pursuant rules and regulations and current departmental guidelines;

(3) two sets of geologic cross-sections accurately depicting the geologic makeup beneath the surface of the proposed mining area. Each set shall depict subsurface conditions at intervals not to exceed 1,500 feet across the surface and shall run at a 90º angle to the other set. Each cross-section shall depict the thickness and geologic character of all strata beginning with the topsoil. After the department has had opportunity to review material, submitted pursuant to (1) and (2) of this rule, and this section, the applicant shall be notified in writing as to whether any additional drilling or testing will be required. If further tests are deemed necessary by the department, the additional testing program shall be clearly outlined in writing to the applicant.

(4) soil surveys and maps capable of meeting the requirements of Title 82, chapter 4, part 2, MCA, pursuant rules and regulations, and current department guidelines;

(5) vegetation surveys and maps capable of meeting the requirements of Title 82, chapter 4, part 2, MCA, pursuant rules and regulations, and current departmental guidelines;

(6) wildlife surveys and maps capable of meeting the requirements of Title 82, chapter 4, part 2, MCA, pursuant rules and regulations and current departmental guidelines;

(7) hydrology studies and maps capable of meeting the requirements of Title 82, chapter 4, part 2, MCA, pursuant rules and regulations, and current department guidelines;

(8) a listing, location and description of the archaeological, historical, ethnological and cultural values of the area of land to be affected by the proposed mining operation. When possible, such values shall be located and identified on accompanying maps. Published research or other information must be submitted or referenced;

(9) a comprehensive listing, location and description of scenic and/or geological formation or sites. Panoramic photographs may be used to show such formations or sites;

(10) a description of effect the proposed mining area operation will have on adjacent or surrounding lands.

History

Authorizing statute(s): 82-4-112, MCA
Implementing statute(s): 82-4-112, MCA
History: NEW, Eff. 4/4/75; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1808 Contents of Application: Blasting Information

(1) The applicant shall provide to the department a detailed narrative of proposed blasting methods that will be performed in conjunction with the proposed mining area operation. The applicant shall detail all other phases of the proposed operation that may have deleterious effects on a dwelling house, public building, school, church, cemetery, commercial or institutional building, public road, stream, lake, or other public property. Procedures employed to mitigate adverse effects shall be described.

History

Authorizing statute(s): 82-4-112, MCA
Implementing statute(s): 82-4-122, MCA
History: NEW, Eff. 4/4/75; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1809 Contents of Application: Mining and Reclamation Plans

The applicant shall also provide to the department a general mining and reclamation plan for the proposed mining operation. These plans shall, as a minimum, include the following topical discussions:

(1) a mining plan, including:

(a) direction of mining;

(b) estimated acreage to be disturbed yearly;

(d) length and width of proposed cuts;

(e) estimated production (tons/yr.);

(f) a narrative discussion showing that any deleted areas will be given appropriate consideration;

(g) such other or further information as the department may require;

(2) a reclamation plan, including:

(a) proposed reclaimed use;

(b) direction of final drainage;

(d) estimated acres reclaimed yearly;

(e) further information as the department may require.

History

Authorizing statute(s): 82-4-112, MCA
Implementing statute(s): 82-4-122, MCA
History: NEW, Eff. 4/4/75; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1810 Contents of Application: Mine Site Location Information

(1) The preparatory work site and proposed facilities shall be described in narrative form and located on the mine site permit map. The narrative shall categorize each disturbance as to specific purpose, disturbance method, acreage, and depths and volumes of cuts or fills. The operator shall be obligated to conduct the method of construction and reclamation in accordance with the provisions of the plans unless proposed changes requested by the company are authorized in writing by the department. The department may make changes in the construction and reclamation plans when problem situations are revealed by field inspection or as other relevant information is obtained. Upon request, all parties shall have an opportunity for a hearing, in accord with 82-4-130, MCA, prior to any modification of a permit or reclamation plan. As additional information and/or maps are obtained by the company for the intended area of operations such information shall be promptly submitted to the department. This rule does not repeal or otherwise modify the duty of an operator to annually apply for a new permit and/or the renewal of an existing permit.

History

Authorizing statute(s): 82-4-112, MCA
Implementing statute(s): 82-4-122, MCA
History: NEW, Eff. 4/4/75; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1815 Performance Standards

The operator shall:

(1) bury under adequate fill all toxic materials, shale, mineral, or other material determined by the department to be acid producing, toxic, undesirable or creating a hazard. Burial depth should be selected to prevent contact with ground water or infiltrating waters that will subsequently pollute the ground water in the area;

(2) seal off, as directed by the department, any break-through of water creating a hazard;

(3) impound, drain or treat all runoff water so as to reduce soil erosion, damage to grazing and agricultural lands, and pollution of surface and subsurface waters;

(4) remove or bury all metal, lumber, and other refuse resulting from the operation;

(5) use explosives in connection with the operation only in accordance with department specifications as found in the rules pursuant to Title 82, chapter 4, part 2, MCA, designed to minimize noise, surface damage to adjacent lands and water pollution, ensure public safety, and for other purposes;

(6) not throw, dump, pile or permit the dumping, piling, or throwing or otherwise placing of any stones, rocks, earth, soil, dirt, debris, trees, wood, logs or any other materials or substances of any kind or nature beyond or outside of the area of land which is under permit and for which a bond has been posted under 82-4-123, MCA, or place the materials described in this section in such a way that normal erosion or slides brought about by natural physical causes will permit the materials to go beyond or outside of the area of land which is under permit and for which a bond has been posted under 82-4-123, MCA;

(7) identify the location of a proposed road(s) and/or railroad loops(s), spur(s) or extension(s) on the site by prominent markings prior to the time the proposed preparatory work is inspected and prior to the commencement of construction. No such construction shall proceed along dry coulees and intermittent drainageways unless the operator takes necessary precautions to insure that no off-site sedimentation will result;

(8) construct drainage ditches on both sides of the through-cut, and the inside shoulder of a cut-fill section, with ditch relief cross-drains being spaced according to grade. Water shall be intercepted before reaching a switchback or large fill and shall be drained off or released below the fill. Drainage structures shall be constructed in order to cross a stream channel, and shall not affect the flow or sediment load of the stream;

(9) stabilize and revegetate at the first seasonal opportunity all cut and fill slopes resulting from construction of an access road, a railroad loop or a haulageway road outside of the area to be mined;

(10) not surface roads, railroad loops, spurs or extensions with refuse coal, acid producing or toxic material or with any material which will produce a concentration of suspended solids in surface drainage;

(11) employ all appropriate methods to prevent loss of haulage or access road surface material in the form of dust;

(12) condition the seed and take adequate measures to prevent erosion by means of culverts, water bars, or other devices upon the abandonment of any road, railroad loop, spur or extension. Such areas shall be abandoned in accordance with all provisions of Title 82, chapter 4, part 2, MCA, and the rules adopted pursuant thereto.

History

Authorizing statute(s): 82-4-112, MCA
Implementing statute(s): 82-4-125, MCA
History: NEW, Eff. 4/4/75; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1816 Reclamation Plan: Additional Specific Requirements

The applicant shall submit construction and reclamation plans for all intended preparatory work. Such plans shall be capable of meeting all applicable requirements which would be included in an application for permit under Title 82, chapter 4, part 2, MCA. Such plans shall include:

(1) a map showing proposed locations of railroad loops, spurs or extensive waste and refuse areas, coal handling facilities, office and maintenance buildings, all roads, dragline erection sites and other related disturbances;

(2) the estimated depths of all cuts or excavations and fills needed for on-site construction;

(3) overall dimensions for coal handling facilities, office or maintenance buildings and railroad loops insofar as disturbance is concerned;

(4) photographic transects of the proposed mine facility area. Photographic points and direction shall be located on an accompanying map. Estimated depths of proposed cuts and fills shall be identified on each photograph containing areas where cuts and/or fills are anticipated;

(5) a detailed plan, including timetables, showing the method and manner of reclaiming all disturbances related to preparatory work. Such plans shall include a description of the method and manner of reclaiming land affected by construction of railroad loops, office and maintenance areas, coal handling facilities and other disturbances associated with such preparatory work;

(6) an estimate of water usage expected to result from preparatory work activities, as well as a detailed narrative of planned procurement for such water. This narrative shall document that the water rights of other landowners will not be adversely affected;

(7) further information as the department may require. The department will notify the applicant in writing as to what additional information is required.

History

Authorizing statute(s): 82-4-112, MCA
Implementing statute(s): 82-4-122, MCA
History: NEW, Eff. 4/4/75; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1817 Water Quality: Other Laws, Nondegradation

(1) Waters within the public domain of the state that possess a quality higher than established standards shall be maintained at their present high quality consistent with the powers granted to the board.

(2) All operators shall comply with all applicable water quality standards established under Montana law and the rules adopted pursuant thereto.

History

Authorizing statute(s): 82-4-112, MCA
Implementing statute(s): 82-4-125, MCA
History: NEW, Eff. 4/4/75; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1818 Water Quality: Impoundment

(1) Treatment facilities in sufficient size and number consisting of but not limited to collection basins, water retarding structures and siltation dams shall be constructed with prior approval of the department. All such facilities shall be constructed at or above the points of discharge into receiving streams for the purpose of treating acid or toxic water and for the settling of sediment prior to discharge into the receiving stream. As part of an application for permit, an operator shall submit the design specifications, drawings, method of operation and control, and quality of discharge of the treatment facilities. The operator shall indicate on the maps submitted as part of an application for permit the proposed location of all treatment facilities. Proposed reclamation of treatment facilities shall be included in the reclamation plan. Additional treatment facilities may be required by the department after commencement of the operation if conditions so indicate a need.

(2) All approved and constructed treatment facilities shall be maintained in proper working order by the operator and operated so that they will perform as proposed in the application for permit. All treatment facilities constructed and approved pursuant to the provisions of this rule shall be monitored by the operator to assure continuous satisfactory performance until approved reclamation has been accomplished.

(3) Permanent water impoundments shall not be allowed unless approved by the department. If the department determines at any time that the proposed impoundment area will not fill to the expected levels, meet acceptable water quality standards or any other relevant criteria, the impoundment area shall be regraded and surface drainage facilitated.

(4) No water quality treatment of approved lakes or ponds shall be permitted without department approval.

(5) Monthly monitoring reports, where applicable, shall be submitted to the department including the number of operating days, the gallons of drainage treated, a log of the tests made in accordance with ARM 17.24.1819, and a description of any operating problems and the corrective action taken.

History

Authorizing statute(s): 82-4-112, MCA
Implementing statute(s): 82-4-125, MCA
History: NEW, Eff. 4/4/75; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1819 Water Quality: Treatment

(1) The operator shall by the treatment of all water leaving the mine site location prevent the drainage into the waters of the state drainage from any source, the pH of which is less than 6.0 or greater than 9.0, or which contains a concentration of iron in excess of 7 milligrams per liter (mg/l). The discharge must register positive net alkalinity (total alkalinity must exceed the total acidity) and the turbidity shall not exceed 100 Jackson candle units (JCU). The department may modify above requirements if special problems occur.

(2) The maximum total allowable increase to naturally occurring stream turbidity is 10 JCU except that 4 hours following a major precipitation event, the discharge shall not contain suspended sediments in excess of 500 JCU above normal and not over 100 JCU above normal 24 hours thereafter. All analyses are to be defined and performed according to the standard methods for the examination of water and wastewater, unless otherwise specified in writing by the department. If the above standards of this rule are in conflict with federal and/or other Montana state agencies the more stringent regulations will apply.

History

Authorizing statute(s): 82-4-112, MCA
Implementing statute(s): 82-4-125, MCA
History: NEW, Eff. 4/4/75; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1820 Water Quality: Drainage

(1) All surface water which might damage regraded slopes shall be intercepted on the uphill side of the slope or other mine site perimeters by diversion ditches and conveyed by stable channels or other means to natural or prepared watercourses outside the operation and it is determined by the department that such ditches and channels are unnecessary or would create a more serious pollution problem. Such conveyances shall be of sufficient size and grade to prevent overflow into the operations area. If the ditches are likely to carry surface water only intermittently, they shall be retopsoiled and revegetated with recommended grasses, forbs, and/or legumes. All constructed diversion ditches shall be included in the permit acreage and shown on the map.

(2) Water accumulating in the course of the operation shall meet the water quality specifications enumerated herein or shall be pumped or siphoned to a treatment or settling facility prior to discharge into a natural drainway. Under no circumstances shall water be discharged onto highly erodible soil banks.

(3) No surface drainage shall be discharged through or permitted to infiltrate into existing deep mine workings. Location of all known existing deep mines within the permit area and plans for remedial measures shall be included in the application for a permit.

(4) All drainage from the active construction area shall exit through impoundment or treatment facilities in accordance with (1) and (2) of this rule.

History

Authorizing statute(s): 82-4-112, MCA
Implementing statute(s): 82-4-125, MCA
History: NEW, Eff. 4/4/75; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1824 Topsoiling

(1) All suitable topsoiling materials, as approved by the department, shall be removed from the mine site location area before significant disturbance occurs. Removal shall precede each step of the construction operation. The operator shall indicate in the reclamation plan the equipment and method used in salvage and redistribution.

(2) Stockpiles of salvaged topsoiling material shall be located in an area where they will not be disturbed by ongoing construction operations and will not be lost to wind erosion and surface runoff. All unnecessary compaction and contamination of the stockpiles shall be eliminated. Once stockpiled it should not be rehandled until replaced on regraded disturbances. The department may require immediate planting of an annual and/or perennial crop on stockpiles for the purposes of stabilization. Proposed stockpile locations shall be indicated on the map submitted as part of an application for a permit.

(3) Stockpiled topsoiling materials shall be replaced on all areas to be seeded within a 90 day period prior to revegetative seeding or planting. Extreme care shall be exercised to guard against erosion during application and thereafter. In the case of abandoned roads, the roadbeds shall be ripped, disced, or otherwise conditioned before topsoil is replaced. The department may prescribe additional alternate conditioning methods for the reclamation of abandoned roadbeds.

(4) If necessary, redistributed topsoiling materials shall be reconditioned by discing, ripping, or other appropriate methods. Gypsum, lime, fertilizer, or other amendments may be added in accordance with ARM 17.24.701 through 17.24.703, and/or as stated in the approved reclamation plan.

(5) Regraded surfaces shall be left roughened in final contour grading to eliminate slippage zones that may develop between deposited topsoiling materials and heavy textured surfaces. The operator shall take all measures necessary to assure the stability of topsoil on graded slopes.

History

Authorizing statute(s): 82-4-112, MCA
Implementing statute(s): 82-4-125, MCA
History: NEW, Eff. 4/4/75; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1825 Planting and Revegetation

(1) A suitable permanent diverse primarily native vegetative cover capable of meeting the criteria set forth in 82-4-233, MCA, shall be established on all areas of lands affected except traveled portions of railroad loops and roadways, areas of authorized water confinements, or areas where disturbance levels will preclude vegetation establishment. Areas shall be planted or seeded during the first seasonal opportunity following completion of grading topsoil redistribution and remedial soil treatments.

(2) An operator shall establish a permanent diverse vegetative cover of predominantly native species by drill seeding or planting, by seedling transplants, by establishing sod plugs, and/or by other methods. All methods must have prior approval by the department.

(3) The operator shall utilize certified seed of named varieties that have successfully demonstrated regional long range viability. Locally collected seed and locally grown seedlings shall be utilized when available in sufficient quality and quantity.

(4) An operator shall plant seed of a pure and viable nature. Unless otherwise approved by the department, seed shall be at least 90% pure. Seeding rates shall reflect germination percentages.

(5) The operator shall consider soil, climate, and other relevant factors when planting and/or seeding to provide for the best seed germination and plant survival.

(6) All drill seeding shall be done on the contour. When grasses, shrubs and/or forbs are seeded as a mixture they maybe drill seeded in separate rows at intervals specified in the standard soil conservation service (SCS) planting guidelines. Such mixed seedings shall be done in this manner wherever necessary to avoid deleterious competition of different vegetal types or to avoid seed distribution problems due to different seed sizes.

(7) Soil amendments shall be used as necessary to supplement the soil and to aid in the establishment of a permanent vegetative cover as specified in the approved reclamation plan or as later deemed necessary by the department.

(8) An operator shall use any other means necessary to insure the establishment of a diverse and permanent vegetative cover, including but not limited to irrigation, and fencing or other protective measures.

(9) The department may require the seeding of annual grasses and/or legumes on such areas as it deems necessary.

(10) Mulch shall be immediately applied to all areas that do not have permanent or temporary cover established when, in the opinion of the department, the grade or length of any slope presents a likelihood of substantial erosion or substantial deposition of sediment into any waters of the state.

(11) The department will annually inspect seeded areas at the end of the growing season to determine species diversity, germination and seedling take. If the department determines that seedings are unsuccessful in terms of good germination and/or seedling take, immediate investigative action shall be taken by the operator at the request of the department to determine the cause so that alternatives can be employed to establish the desired permanent vegetative cover at the very next seasonal opportunity. The investigative report shall be submitted along with prescribed course of corrective action prior to the next growing season.

(12) If the area affected is to be primarily utilized by domestic stock, the department may require incorporation of a grazing system after vegetation establishment to gauge stand tolerance to grazing pressure.

History

Authorizing statute(s): 82-4-112, MCA
Implementing statute(s): 82-4-125, MCA
History: NEW, Eff. 4/4/75; TRANS, from DSL, 1996 MAR p. 2852; AMD, 2024 MAR p. 260, Eff. 2/10/24.

Mont. Admin. R. 17.24.1826 Forms

(1) Forms necessary for compliance with the Montana Strip Mine Siting Act will be available at the Department of Environmental Quality, PO Box 200901, Helena, MT 59601.

History

Authorizing statute(s): 82-4-112, MCA
Implementing statute(s): 82-4-125, MCA
History: NEW, Eff. 4/4/75; TRANS, from DSL, 1996 MAR p. 2852.

Subchapter 17.24.19 Categorical Exclusions for Abandoned Mines

Mont. Admin. R. 17.24.1901 Definitions

As used in this subchapter, the following definitions apply:

(1) “Abandoned mine lands” or “AML” means lands and waters, including associated watersheds, where extraction, beneficiation, or processing of ores or minerals occurred at coal mining operations abandoned or inadequately reclaimed before August 3, 1977, or at non‑coal mining operations abandoned or inadequately reclaimed before August 3, 1977, for which there is no continuing reclamation responsibility under state or federal law, and that are eligible for reclamation or drainage abatement under the department’s abandoned mine lands program as approved under 30 CFR 926.20.

(2) “Dangerous impoundment” means a surface or underground water, slurry, or similar impoundment related to mining that poses a threat to public safety, property, or the environment.

(3) “Dangerous slide” means slope instability, mass movement, or similar ground failure associated with AML features that pose a threat to public safety, property, or the environment.

(4) “Hazardous waste” has the meaning given in 40 CFR Part 261.

(5) “Subsidence” has the meaning given in 82-4-203, MCA.

History

Authorizing statute(s): 75-1-220, MCA
Implementing statute(s): 75-1-209, 75-1-220, MCA
History: NEW, 2026 MAR, Notice No. 2026-47, Eff. 8/22/26.

Mont. Admin. R. 17.24.1902 Abandoned Mine Land Categorical Exclusion

(1) The following AML projects conducted by the department or its contractors are determined by the department under Title 75, chapter 1, MCA, to be categorical exclusions that do not individually, collectively, or cumulatively cause significant adverse effects on the quality of the Montana environment and therefore are exempt from the procedural requirements of Title 75, chapter 1, MCA, if all of the following conditions are met and no extraordinary circumstances are present as described in 75-1-209(2), MCA:

(a) no more than 100 acres;

(b) no hazardous wastes;

(d) no hazardous or explosive gases;

(e) no dangerous impoundments;

(f) no mine fires and refuse fires;

(g) no undisturbed, noncommercial borrow or disposal sites;

(h) no dangerous slides where abatement has the potential for damaging inhabited property;

(i) no subsidences involving the placement of material into underground mine voids through drilled holes to address more than one structure; and

(j) no unresolved issues with agencies, persons, or groups or adverse effects requiring specialized mitigation.

(2) The department will review each AML project to determine, based on the project description and site-specific information, whether the project meets the requirements of (1). The department shall document this determination for each project in a written record.

(3) AML projects may proceed with a de minimis modification without requiring an environmental review under Title 75, chapter 1, MCA, provided:

(a) the project has met the requirements of (1);

(b) the project meets the requirements of ARM 17.4.607(5); and

(4) The department shall document the determination in (3) for each project and de minimis modification in a written record.

History

Authorizing statute(s): 75-1-220, MCA
Implementing statute(s): 75-1-209, 75-1-220, MCA
History: NEW, 2026 MAR, Notice No. 2026-47, Eff. 8/22/26.

Chapter 17.30 Water Quality

Subchapter 17.30.1 401 Certification

Mont. Admin. R. 17.30.101 Purpose and Policy

(1) The purpose of this subchapter is to establish procedures and criteria concerning applications for state water quality certifications submitted to the department pursuant to section 401 of the federal Clean Water Act, 33 USC section 1341, as amended.

(2) It is the policy of the board that the department shall ensure that any activity that requires a federal license or permit and that may result in a discharge to state waters shall fulfill the requirements of ARM Title 17, chapter 30 and thereby also fulfill the requirements of 33 USC sections 1311-1313, 1316, and 1317.

History

Authorizing statute(s): 75-5-401, MCA
Implementing statute(s): 75-5-402, 75-5-403, MCA
History: NEW, 1991 MAR p. 2033, Eff. 11/1/91; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.102 Definitions

In this subchapter the following terms have the meanings indicated below and are supplemental to the definitions in 75-5-103, MCA:

(1) "Applicant" means a person who applies for a license or permit issued by an agency of the federal government to conduct an activity that may result in discharge into state waters.

(2) "Licensing or permitting agency" means an agency of the federal government to which application is made for a license or permit to conduct an activity which may result in a discharge into state waters.

(3) "Regional administrator" means the administrator of Region VIII of the US environmental protection agency.

(4) "Discharge" means the injection, deposit, dumping, spilling, leaking, placing, or failure to remove, of any pollutant so that it or any constituent of the pollutant may enter into state waters.

History

Authorizing statute(s): 75-5-401, MCA
Implementing statute(s): 75-5-402, 75-5-403, MCA
History: NEW, 1991 MAR p. 2033, Eff. 11/1/91; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.103 Application for Certification

(1) A person may not conduct or commence construction for any activity requiring state water quality certification under 33 USC section 1341, as amended, unless the department has issued certification, issued with conditions, or waived certification under this subchapter.

(2) An application for state water quality certification under this subchapter is not deemed complete until the permit fee required under ARM 17.30.201 is remitted to the department.

(3) The applicant, the licensing or permitting agency, or the regional administrator (under 40 CFR 121.13) shall submit to the department a complete description of the activity for which certification is sought, including:

(a) the name and address of the applicant;

(b) a description of the facility or activity and of any discharge which may result from the facility or activity including, but not limited to:

(i) the volume of the discharge;

(ii) the biological, chemical, physical, and radiological characteristics of the discharge;

(iii) a description of the existing environment at the site of the discharge;

(iv) the size of the area affected;

(v) the location or locations at which the discharge may enter state waters; and

(vi) any environmental impact assessment, information, maps, and photographs which have been provided to the licensing or permitting agency;

(c) a description of the function and operation of equipment, facilities, activities, or practices to minimize or to treat wastes or other effluents which may be discharged, including the degree of treatment expected to be attained;

(d) the date or dates on which the activity is proposed to begin and end, if known, and the date or dates on which the discharge will take place; and

(e) a description of the methods being used or proposed to monitor the quality and characteristics of the discharge and the operation of equipment, facilities, or activities employed in the treatment or control of pollutants.

(4) The department may exempt an applicant from the information requirements of (3)(b), (c), and (e) of this rule, if the applicant's federal permit application is to the United States Army Corps of Engineers under section 404 of the federal Clean Water Act, 33 USC 1344, as amended, and the federal permit application provides the information required under these sections.

(5) The department shall review the application for completeness within 30 days of receipt of the application. If the application is not complete, the department shall notify the applicant of any additional materials reasonably necessary for review of the application.

(6) The applicant shall submit in timely fashion, at any time during the review process, any new information or modifications of the facility or activity which are pertinent to the department's certification responsibilities.

(7) An application is deemed complete if the applicant has provided all information included in (3), and the fee required in (2).

History

Authorizing statute(s): 75-5-401, MCA
Implementing statute(s): 75-5-402, MCA
History: NEW, 1991 MAR p. 2033, Eff. 11/1/91; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2018 MAR p. 2517, Eff. 12/22/18.

Mont. Admin. R. 17.30.105 Department Certification Options

(1) Except as provided in (2) , the department shall take one of the following actions upon completing its review of an application for certification submitted under this subchapter:

(a) deny certification for any activity which the department finds will result in a discharge that will violate any effluent limitation or water quality standard stated in or developed pursuant to ARM Title 17, chapter 30;

(b) issue certification for any activity which the department finds will not result in a discharge that will violate any effluent limitation or water quality standard stated in or developed pursuant to ARM Title 17, chapter 30; or

(c) issue conditional certification for any activity that with the conditions imposed will not result in a discharge that will violate any effluent limitation or water quality standard stated in or developed pursuant to ARM Title 17, chapter 30.

(2) The department may waive certification if the department finds that the activity will:

(a) cause minimal or no impacts to the quality of state waters; or

(b) require an application for a Montana pollutant discharge elimination system permit under ARM Title 17, chapter 30, subchapter 13, a Montana groundwater pollution control system permit under ARM Title 17, chapter 30, subchapter 10, a short-term exemption from water quality standards under 75-5-308, MCA, or a short-term narrative water quality standard under 75-5-318, MCA.

History

Authorizing statute(s): 75-5-401, MCA
Implementing statute(s): 75-5-402, 75-5-403, MCA
History: NEW, 1991 MAR p. 2033, Eff. 11/1/91; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1999 MAR p. 2256, Eff. 10/8/99.

Mont. Admin. R. 17.30.106 Tentative Determination by the Department

(1) The department shall, within 30 days of receipt of a completed application, notify the applicant, the federal permitting or licensing agency, and the regional administrator of its tentative determination to either issue, issue with conditions, or deny certification.

(2) The department's tentative determination must be in writing and shall explain the reasons for denying, issuing, or conditionally issuing certification.

(3) Notification of the department's tentative determination must include:

(a) the name and address of the applicant; and

(b) a statement that the department has either:

(i) examined the complete application, specifically identifying the number or code affixed to the application, and based its determination upon an evaluation of the information contained in the application that is relevant to water quality; or

(ii) examined the application and other information furnished by the applicant sufficient to permit the department to reach its decision.

(4) If a tentative issue of certification or conditional certification is made, the notification must also contain:

(a) a statement that there is reasonable assurance the facility's or activity's construction and operation will not result in a violation of effluent limits or water quality standards; and

(b) a statement of conditions which the department deems necessary for allowing the discharge, including:

(i) necessary monitoring requirements; and

(ii) the applicant will be required to allow the department reasonable entry and access to the discharge site in order to inspect the discharge for compliance with the certification requirements applicable to the facility or activity.

(5) If the department denies certification, the notification of tentative determination must include a statement explaining why the activity or permit will result in discharge of pollutants to state waters and detailing the effluent limits or water quality standards that will be violated.

(6) Where a notice is issued by the department under ARM 17.30.108, the notification of tentative determination must include a statement that, unless a written request for a hearing is filed with the department within 15 days after publication of public notice, the department's decision will become final without public hearing.

(7) The notification may also include other information as the department determines to be appropriate.

History

Authorizing statute(s): 75-5-401, MCA
Implementing statute(s): 75-5-402, MCA
History: NEW, 1991 MAR p. 2033, Eff. 11/1/91; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2018 MAR p. 2517, Eff. 12/22/18.

Mont. Admin. R. 17.30.108 Public Notice and Final Determination by the Department

(1) Except as provided in (6) of this rule, the department shall provide public notice of the department's tentative determination. The department shall mail the notice to:

(a) the applicant;

(b) federal, state, and local government agencies with jurisdiction over the location of the proposed discharge;

(d) any person on request.

(2) In addition, the department shall publish a legal notice for 2 consecutive weeks on the department's web page. The department may include additional notice which may involve:

(a) posting in the post office and public places of the municipality nearest the premises of the proposed activity;

(b) posting near the entrance to the applicant's premises and in nearby places; or

(3) Notice under (1) and (2) of this rule shall contain the information required under ARM 17.30.106(3).

(4) If there is significant public interest in a proposed action under this rule, the department shall set a public hearing, which must be scheduled not less than 30 days after the hearing has been given public notice pursuant to (1) and (2) of this rule.

(5) The deadline for written comment is 30 days from the date of issuance of the public notice pursuant to (1) and (2) or, if a public hearing is conducted pursuant to (4) of this rule, 14 days after the date of the hearing.

(6) The requirements of this section are met if an application for a permit under 33 USC 1344 is given public notice by the United States Army Corps of Engineers, the public notice contains a statement referencing the department's certification responsibility under section 401 of the federal Clean Water Act, 33 USC section 1341, and the department has received a complete application under ARM 17.30.103.

(7) The department shall make its final decision within a reasonable amount of time, not to exceed one year after the close of the comment period, as determined pursuant to (5), if the project requires public notice under 33 USC section 1344, as amended, within a reasonable amount of time, not to exceed one year after the close of the comment period set by the United States Army Corps of Engineers pursuant to (6).

History

Authorizing statute(s): 75-5-401, MCA
Implementing statute(s): 75-5-402, MCA
History: NEW, 1991 MAR p. 2033, Eff. 11/1/91; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2018 MAR p. 2517, Eff. 12/22/18.

Mont. Admin. R. 17.30.109 Appeal to the Board

(1) Within 30 days after the date of final action by the department under ARM 17.30.108, the applicant or any person or entity whose substantial interests are adversely affected by the action may appeal the department's action to the board. The appeal must be in writing and set forth the positions of the appealing party, the basis for the appeal, and the alleged errors of fact or law that were made by the department.

(a) Upon filing of an appeal under this section, the board shall appoint a hearing examiner.

(b) A hearing conducted under this section must be conducted pursuant to the contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, MCA.

(2) If a decision of the department made under ARM 17.30.108 undergoes review by the board under this section, the department shall notify the licensing or permitting agency that certification is suspended for the period in which the department's decision is under review by the board.

(3) The final decision of the board is judicially reviewable as provided under the Montana Administrative Procedure Act, Title 2, chapter 4, part 7, MCA.

History

Authorizing statute(s): 75-5-401, MCA
Implementing statute(s): 75-5-402, 75-5-403, MCA
History: NEW, 1991 MAR p. 2033, Eff. 11/1/91; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2018 MAR p. 2517, Eff. 12/22/18.

Subchapter 17.30.2 Water Quality Permit and Authorization Fees

Mont. Admin. R. 17.30.201 Permit Application, Feasibility Allowances, and Annual Permit Fees

(1) The purpose of this rule is to provide fee schedules for use in determining fees to be paid to the department under 75-5-516, MCA. The types of fees provided under this rule are:

(a) application fees for individual permits (Schedule I.A);

(b) application fees for non-storm water general permits (Schedule I.B);

(d) application fees for other activities (Schedule I.D);

(e) degradation authorization fees (Schedule II);

(f) annual fees for individual permits (Schedule III.A);

(g) annual fees for non-storm water permits (Schedule III.B); and

(h) annual fees for storm water general permits (Schedule III.C).

(2) For purposes of this rule, the definitions contained in ARM Title 17, chapter 30, subchapter 10 and subchapter 13 are incorporated by reference. The following definitions also apply in this rule:

(a) "domestic waste" means wastewater from bathrooms, kitchens, and laundry;

(b) "flow rate" means the maximum flow during a 24-hour period, expressed in gallons per day (gpd);

(c) "industrial waste," as defined in 75-5-103, MCA, means a waste substance from the process of business or industry or from the development of any natural resource, together with any sewage that may be present;

(d) "major permit" means a Montana pollutant discharge elimination system permit for a facility that is designated by the department as a major facility pursuant to ARM Title 17, chapter 30, subchapter 13;

(e) "minor permit" means a Montana pollutant discharge elimination system permit for a facility that is not designated by the department as major pursuant to ARM Title 17, chapter 30, subchapter 13;

(f) "multi-county," for pesticide permit fee purposes, means the general permit authorizing pesticide application within multiple contiguous counties, not to exceed 20, as identified by the applicant;

(g) "municipal separate storm sewer system" means a conveyance or system of conveyances, including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains, that discharges to surface waters and is owned or operated by the state of Montana, a governmental subdivision of the state, a district, association, or other public body created by or pursuant to Montana law, including special districts such as sewer districts, flood control districts, drainage districts and similar entities, and designated and approved management agencies under section 208 of the federal Clean Water Act, which has jurisdiction over disposal of sewage, industrial wastes, storm water, or other wastes, and is:

(i) designed or used for collecting or conveying storm water;

(ii) not a combined sewer; and

(iii) not part of a publicly owned treatment works (POTW) as defined in ARM Title 17, chapter 30, subchapter 13;

(h) "new permit" means a permit for a facility or activity that does not have an effective permit;

(i) "non-traditional MS4" means a system similar to separate storm sewer systems in municipalities, such as systems at military bases, large educational, hospital, or prison complexes, and highways and other thoroughfares. The term does not include separate storm sewers in very discrete areas, such as individual buildings;

(j) "other wastes," as provided in 75-5-103, MCA, means garbage, municipal refuse, decayed wood, sawdust, shavings, bark, lime, sand, ashes, offal, night soil, oil, grease, tar, heat, chemicals, dead animals, sediment, wrecked or discarded equipment, radioactive materials, solid waste, and all other substances that may pollute state waters;

(k) "outfall" means a disposal system through which effluent or waste leaves the facility or site;

(l) "pesticide" means:

(i) a substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest;

(ii) any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant; and

(iii) any nitrogen stabilizer, except that the term "pesticide" shall not include any article that is a "new animal drug" within the meaning of section 201(w) of the federal Food, Drug, and Cosmetic Act, 21 U.S.C. 321(w), that has been determined by the United States Secretary of Health and Human Services not to be a new animal drug by a regulation establishing conditions of use for the article, or that is an animal feed within the meaning of section 201(x) of 21 U.S.C. 321(x) bearing or containing a new animal drug. The term "pesticide" does not include liquid chemical sterilant products (including any sterilant or subordinate disinfectant claims on such products) for use on a critical or semi-critical device, as defined in section 201 of the federal Food, Drug, and Cosmetic Act, 21 U.S.C. 321. For purposes of the preceding sentence, the term "critical device" includes any device that is introduced directly into the human body, either into or in contact with the bloodstream or normally sterile areas of the body, and the term "semi-critical device" includes any device that contacts intact mucous membranes but that does not ordinarily penetrate the blood barrier or otherwise enter normally sterile areas of the body.

(m) "renewal permit" means a permit for an existing facility that has an effective discharge permit;

(n) "single county," for pesticide permit fee purposes, means the general permit authorizing pesticide application within one county; and

(o) "threshold," for pesticide permit fee purposes, means the area of surface water that is impacted annually by pesticide treatment, as designated in the Pesticide General Permit for specific pattern uses.

(3) A person who applies for a permit, certificate, license, notice of intent, plan review, waiver, determination of significance, or other authorization required by rule under 75-5-201, 75-5-301, or 75-5-401, MCA, or for a modification or renewal of any of these authorizations, shall pay to the department an application fee as determined under (6).

(4) A person whose activity requires an application for a feasibility allowance under 75-5-303, MCA, and ARM Title 17, chapter 30, subchapter 7 shall submit a feasibility allowance fee with the application, as determined under (7).

(5) A person who holds a permit, certificate, license, or other authorization required by rule under 75-5-201 or 75-5-401, MCA, shall pay to the department an annual permit fee as determined under (8).

(6) The fee schedules for new or renewal applications for, or modifications of, a Montana pollutant discharge elimination system permit under ARM Title 17, chapter 30, subchapter 11 or 13, a Montana ground water pollution control system permit under ARM Title 17, chapter 30, subchapter 10, or any other authorization under 75-5-201, 75-5-301, or 75-5-401, MCA, or rules promulgated under these authorities, are set forth below as Schedules I.A, I.B, I.C, and I.D. Fees must be paid in full at the time of submission of the application. For new applications under Schedule I.A, the annual fee from Schedule III.A for the first year must also be paid at the time of application. For new applications under Schedule I.B and I.C, the annual fee is included in the new permit amount and covers the annual fee for the calendar year in which the permit coverage becomes effective.

(a) Under Schedules I.A and I.B, the department shall assess a fee for each outfall, except that MS4 permit fees under Schedule I.A are based on population as provided in (6)(h). An application fee for multiple outfalls is not required if there are multiple outfalls from the same source that have similar effluent characteristics, unless the discharges are to different receiving waters or stream segments, or result in multiple or variable (flow dependent) effluent limits or monitoring requirements.

(b) For purposes of (6) and (7), if a resubmitted application contains substantial changes or deficiencies requiring significant additional review, the department shall require an application resubmittal fee under Schedule I.D. The resubmittal fee must be paid before any further review is conducted. The department shall give written notice of the assessment within 30 days after receipt of the resubmittal and provide for appeal as specified in (11). If the department does not receive a response to a deficiency notice within one year, the applicant shall submit a new application and associated fees in order for application processing to continue.

(c) The department may assess an administrative processing fee under Schedule I.D when a permittee makes substantial alterations or additions, requiring significant additional review, to a sediment control plan, waste management plan, nutrient management plan, pesticide management plan, or storm water pollution prevention plan.

(d) Application fees are nonrefundable except, as required by 75-5-516(1)(d), MCA, if the permit or authorization is not issued the department shall return a portion of the application fee based on avoided enforcement costs. The department shall return 25% of the application fee if the application is withdrawn or if the department waives federal Clean Water Act section 401 certification within 30 days after submittal.

(e) Facilities with an expired permit must pay the new permit application fee for individual permit coverage as specified in Schedule I.A.

(f) Applications for new permits or permit renewals for sources that constitute a new or increased source, as defined in ARM 17.30.702(17), must pay a significance determination fee for each outfall in addition to the application fee.

(g) Discharges composed entirely of storm water from industrial activities or from mining and oil and gas activities, as defined in ARM 17.30.1105, may be incorporated into a permit application submitted under Schedule I.A. The application fee for each storm water outfall must be submitted to the department with the application.

(h) The application fee for an individual permit for a municipal separate storm sewer system (MS4) is determined by population based on the latest decennial census from the United States Census Bureau. Applications for MS4 permits with co-permittees will receive a 10% reduction in the application fee.

Schedule I.A Application Fee for Individual Permits

Category | Renewal Fee | New Permit Fee Publicly owned treatment works - major permit | $ 4,800 | $ 5,000 Privately owned treatment works - major permit | 5,000 | 5,000 Publicly owned treatment works - minor permit | 1,500 | 2,500 Privately owned treatment works - minor permit | 3,000 | 4,200 Ground water permit, domestic wastes flow rate - gallons per day | | 0-10,000 gpd | 1,200 | 2,500 10,001 to 30,000 gpd | 1,500 | 2,500 more than 30,000 gpd | 2,500 | 4,000 Ground water permit, industrial, or other wastes | | 0-1,000 gpd | 1,000 | 1,500 1,001 to 5,000 gpd | 1,500 | 2,500 5,001 to 10,000 gpd | 2,500 | 3,500 more than 10,000 gpd | 4,800 | 5,000 Concentrated animal feeding operation permit | 600 | 600

Storm water permit construction, industrial, and mining, oil, and gas activities | 2,000 | 3,200 Traditional storm water municipal separate storm sewer system (MS4) permit | | population greater than 50,000 | 9,000 | 11,000 population 10,000 to 50,000 | 7,000 | 9,000 population less than 10,000 | 6,000 | 8,000 Non-traditional MS4 permit | 5,000 | 7,000 Other MS4 permits | 4,000 | 5,000 Significance determination | 4,000 | 5,000 Storm water outfall - (integrated) | 1,000 | 1,500

Schedule I.B Application Fee for Non-Storm Water General Permits

Category | Renewal Fee | New Permit Fee (includes initial annual fee) Concentrated animal feeding operation | $ 600 | $ 1,200 Construction dewatering | 400 | 900 Fish farms | 600 | 1,200 Produced water | 900 | 1,200 Suction dredge resident of Montana nonresident of Montana | 25 100 | 50 200 Sand and gravel | 900 | 1,200 Domestic sewage treatment lagoon | 800 | 1,200 Disinfected water | 800 | 1,200 Petroleum cleanup | 800 | 1,200 Pesticides single county - less than threshold multi-county - less than threshold single county - greater than threshold multi-county - greater than threshold | 25 50 250 600 | 50 100 500 1,200 Ground water remediation or dewatering | 800 | 1,400 Ground water potable water treatment facilities | 800 | 1,400 Other general permit, not listed above | 600 | 1,200

(i) Application fees in Schedule I.C for authorizations under the general permit for storm water associated with construction activities are based on the total acreage of disturbed land. Renewal application fees will not be required during the general permit renewal cycle, unless the authorization has been in effect for more than four years.

(j) Application fees in Schedule I.C for authorizations under the general permits for storm water associated with industrial activities and mining, oil, and gas activities are based on the total size of the regulated facility or activity in acres.

(k) Application fees in Schedule I.C for authorizations under a general permit for a municipal separate storm sewer system (MS4) are determined by population based on the latest decennial census from the United States Census Bureau. Applications for MS4 permit coverage with co-permittees will receive a 10% reduction in the application fee.

(l) Modifications to authorizations under the general permit for storm water associated with construction activities will be processed under Schedule I.D as a minor modification if the modification is submitted within six months after the date of issuance of the authorization. Modifications, except for name changes, submitted six months or more after issuance of the authorization will be processed under Schedule I.C as a new permit application.

(m) Modifications, except for name changes, to authorizations under a general permit other than the general permit for storm water associated with construction activities must be processed under Schedule I.B and I.C as a renewed application.

(n) A facility with a construction storm water no-exposure certification from the department must apply for and receive a new certification every five years in order to maintain a no-exposure status.

Schedule I.C Application Fee for Storm Water General Permits

Category | Renewal Amount | New Permit Amount (includes initial annual fee) Storm water associated with construction 1 to 5 acres more than 5 acres, up to 10 acres more than 10 acres, up to 25 acres more than 25 acres, up to 100 acres more than 100 acres | $ 900 1,000 1,200 2,000 3,500 | $ 900 1,000 1,200 2,000 3,500 Storm water associated with industrial activities small - 5 acres or less medium more than 5 acres, up to 20 acres large - more than 20 acres | 1,200 1,500 1,800 | 1,500 1,800 2,000

Storm water associated with mining, oil, and gas small - 5 acres or less medium - more than 5 acres, up to 20 acres large - more than 20 acres | 1,200 1,500 1,800 | 1,500 1,800 2,000 Traditional storm water municipal separate storm sewer system (MS4) population greater than 50,000 population 10,000 to 50,000 population less than 10,000 | 7,000 6,000 5,000 | 10,000 8,000 6,000 County MS4 permit | 4,000 | 5,000 Non-traditional MS4 permit | 2,000 | 3,000 Storm water no-exposure certification required once every five years | 300 | 500 Storm water construction waiver | | 400

(o) The minimum application fee under Schedule I.D for federal Clean Water Act section 401 certification is $400 or 1% of the gross value of the proposed project, whichever is greater, and the maximum fee may not exceed $20,000. If a fee is submitted for a 401 certification and the department waives certification, without review, because the project will require a department permit or authorization identified in ARM 17.30.105(2)(b), the department will credit the fee towards the cost of the applicable permit or authorization.

Schedule I.D Application Fee for Other Activities

Category | Amount Short-term water quality standard, turbidity "318 authorization" | $ 250 Short-term water quality standard, remedial activities and pesticide application "308 authorization" | 250 Federal Clean Water Act section 401 certification | See ARM 17.30.201(6)(o) Review plans and specifications to determine if permit is necessary, pursuant to 75-5-402(2), MCA | 2,000 Major modification | Renewal fee from Schedule I.A Minor modification, includes transfer of ownership | 500 Resubmitted application fee | 500 Administrative processing fee | 500

(7) The fee schedule for new or renewal feasibility allowances under ARM Title 17, chapter 30, subchapter 7 is set forth in Schedule II. Payment of the feasibility allowance fee is due upon submittal of the applications. For the domestic sewage treatment and industrial activity categories, the department shall assess a fee for each outfall. If an application for a feasibility allowance is denied, the department shall return 15% of the fee submitted.

Schedule II Review of Feasibility Allowance Applications

Category | Amount Domestic sewage treatment | $5,000 Industrial activity | 5,000

(8) The annual permit fees are set forth in Schedules III.A, III.B, and III.C. No annual fee is required for activities listed in Schedule I.D.

(a) Under Schedules III.A and III.B, the department shall assess a fee for each outfall, except that MS4 permit fees under Schedule III.A are based on population as determined by the latest decennial census from the United States Census Bureau. An annual fee for multiple outfalls is not required if there are multiple outfalls from the same source that have similar effluent characteristics, unless the discharges are to different receiving waters or stream segments, or the discharges result in multiple or variable (flow dependent) effluent limits or monitoring requirements. For ground water permits, the department shall assess a fee based on the annual average daily flow in gallons per day for each outfall.

Schedule III.A Annual Fee for Individual Permits

Category | Minimum Fee | Fee Per Million Gallons of Effluent per Day (MGD) Publicly owned treatment works - major permit | $ 3,000 | $ 3,000 Privately owned treatment works - major permit | 3,000 | 3,000 Publicly owned treatment works - minor permit | 1,500 | 3,000 Privately owned treatment works - minor permit discharge of non-contact cooling water only | 1,500 800 | 3,000 800

Ground water permit, domestic wastes annual average daily flow - gallons per day | | 3,000 0 to 10,000 gpd | 1,300 | 10,001 to 30,000 gpd | 2,000 | more than 30,000 gpd | 3,000 | Ground water permit, industrial, or other wastes | | 3,000 0 to 1,000 gpd | 2,000 | 1,001 to 5,000 gpd | 2,500 | 5,001 to 10,000 gpd | 2,800 | more than 10,000 gpd | 3,000 | Concentrated animal feeding operation permit | 600 | Storm water permit construction, industrial, and mining, oil, and gas activities | 2,000 | Traditional storm water municipal separate storm sewer system (MS4) permit population greater than 50,000 population 10,000 to 50,000 population less than 10,000 | 3,000 2,500 2,000 | Non-traditional MS4 permit | 1,500 | Other MS4 permits | 1,500 | Storm water outfall - (integrated) | 1,000 |

Schedule III.B Annual Fee for Non-Storm Water General Permits

Pesticides single county - less than threshold multi-county - less than threshold single county - greater than threshold multi-county - greater than threshold | 25 50 250 600 Ground water remediation or dewatering | 800 Potable water treatment facilities | 800 Other general permit, not listed above | 800

(b) Annual fees in Schedule III.C for authorizations under the general permit for storm water associated with construction activities are based on the total acreage of disturbed land.

(c) Annual fees in Schedule III.C for authorizations under the general permits for storm water associated with industrial activities and for mining, oil, and gas activities are based on the total size of the regulated facility or activity in acres.

(d) Annual fees in Schedule III.C for authorizations under the general permit for municipal separate storm sewer systems (MS4s) are based on population as determined by the latest decennial census from the United States Census Bureau. The fees must be based on the latest available decennial census data.

Schedule III.C Annual Fee for Storm Water General Permits

Category | Amount Storm water associated with construction 1 to 5 acres more than 5 acres, up to 10 acres more than 10 acres, up to 25 acres more than 25 acres, up to 100 acres more than 100 acres | $ 650 750 1,150 1,800 2,800 Storm water associated with industrial activities small - 5 acres or less medium - more than 5 acres, up to 20 acres large - more than 20 acres | 1,000 1,200 1,500 Storm water associated with mining, oil, and gas small - 5 acres or less medium - more than 5 acres, up to 20 acres large - more than 20 acres | 1,000 1,200 1,500 Traditional storm water municipal separate storm sewer system (MS4) population greater than 50,000 population 10,000 to 50,000 population less than 10,000 | 5,000 4,000 2,500 County MS4 permit | 1,200 Non-traditional MS4 permit | 1,200

(e) A facility that maintains compliance with permit requirements, including effluent limitations and reporting requirements, as determined by the previous year's discharge and compliance monitoring data, is entitled to a 25 percent reduction in its annual permit fee. A new permittee is not eligible for fee reduction in its first year of operation. A permittee that is under a formal enforcement order providing a compliance schedule for correction of permit violations is not eligible for a fee reduction until the violations are corrected. A permittee with a violation of any permit requirement during the previous year is not eligible for fee reduction.

(f) The annual permit fee is assessed for each calendar year or portion of the calendar year in which the permit is effective.

(9) If a person who is assessed a renewal or annual fee under this rule fails to pay the fee within 90 days after the due date for payment, the department may:

(a) impose an additional assessment consisting of 20 percent of the fee plus interest on the required fee beginning the first day after the payment is due. Interest must be computed at the rate of 12 percent per year, established under 15-1-216(4), MCA; or

(b) suspend the processing of the renewal application for a permit or authorization or, if the nonpayment involves an annual permit fee, suspend the permit, certificate, license, or other authorization for which the fee is required. The department may lift the suspension at any time up to one year after the suspension occurs if the holder has paid all outstanding fees, including all penalties, assessments, and interest imposed under this rule.

(10) The department shall give written notice to each person assessed a fee under this rule of the amount of the fee that is assessed and the basis for the department's calculation of the fee. The fee is due 30 days after the date of the written notice. The fee must be paid by a check, money order, or electronic transfer payable to the state of Montana, Department of Environmental Quality. The fee also may be paid on line at the e-bill payment service site.

(11) Persons assessed a fee under this rule may appeal the department's fee assessment to the board within 20 days after receiving written notice of the department's fee determination. The appeal to the board must include a written statement detailing the reasons why the permit holder or applicant considers the department's fee assessment to be erroneous or excessive.

(a) If part of the department's fee assessment is not in dispute in an appeal, the undisputed portion of the fee must be paid to the department upon written request of the department.

(b) The contested case provisions of the Montana Administrative Procedure Act, provided for in Title 2, chapter 4, part 6, MCA, apply to a hearing before the board under this rule.

History

Authorizing statute(s): 75-5-516, MCA
Implementing statute(s): 75-5-516, MCA
History: NEW, 1994 MAR p. 672, Eff. 2/25/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 382, Eff. 2/15/02; AMD, 2009 MAR p. 2462, Eff. 12/25/09; AMD, 2011 MAR p. 909, Eff. 5/27/11; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2026 MAR, Notice No. 2026-406, Eff. 8/8/26; AMD, 2026 MAR, Notice No. 2026-489, Eff. 9/5/26.

Subchapter 17.30.3 Prohibited Compounds (Phosphorus)

Mont. Admin. R. 17.30.301 Policy

(1) The provisions of this subchapter are adopted as a model rule which the department is required to adopt by 75-7-401 , MCA. The model rule is designed to enable counties to protect water quality and aquatic ecosystems by reducing the amount of phosphorus entering natural lakes.

History

Authorizing statute(s): 75-7-401, MCA
Implementing statute(s): 75-7-401, MCA
History: NEW, 1986 MAR p. 1464, Eff. 8/29/86; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.302 Definitions

In this subchapter the following terms have the meanings indicated below:

(1) "Chemical water conditioner" means a water softening chemical or other substance containing phosphorus which is intended to treat water for use in machines for washing laundry.

(2) "Commercial establishment" means any premises used for the purpose of carrying on or exercising any trade, business, profession, vocation, or commercial or charitable activity, including but not limited to laundries, hospitals, hotels, motels, and food or restaurant establishments.

(3) "Household cleaning product" means any product including but not limited to soaps and detergents, used for domestic or commercial cleaning purposes, including but not limited to the cleaning of fabrics, dishes, food utensils, and household and commercial premises. Household cleaning product does not mean foods, drugs, cosmetics, or personal care items such as toothpaste, shampoo, or hand soap.

(4) "Person" means any individual, proprietor of a commercial establishment, corporation, municipality, the state or any department, agency, or subdivision of the state, and any partnership, unincorporated association, or other legal entity.

(5) "Phosphorus" means elemental phosphorus.

(6) "Trace quantity" means an incidental amount of phosphorus which is not part of the household cleaning product formulation, and is present only as a consequence of manufacturing, and does not exceed 0.5% of the content of the product by weight expressed as elemental phosphorus.

History

Authorizing statute(s): 75-7-401, MCA
Implementing statute(s): 75-7-401, MCA
History: NEW, 1986 MAR p. 1464, Eff. 8/29/86; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.303 Prohibitions and Exceptions

(1) No household cleaning product may be distributed, sold, offered, or exposed for sale if it contains phosphorus in concentrations in excess of a trace quantity, except that no dishwashing detergent may be distributed, sold, offered, or exposed for sale if it contains phosphorus in excess of 8.7% by weight expressed as elemental phosphorus.

(2) No chemical water conditioner which contains more than 20% phosphorus by weight may be distributed, sold, offered, or exposed for sale.

(3) The following cleaning agents and other products containing phosphorus are exempt from the provisions of this rule:

(a) those used in food or beverage processing, or used by health care services and facilities;

(b) those used by commercial establishments, and those used for industrial processes or for cleaning food and beverage processing equipment, medical or surgical equipment, or dairy equipment; and

History

Authorizing statute(s): 75-7-401, MCA
Implementing statute(s): 75-7-401, MCA
History: NEW, 1986 MAR p. 1464, Eff. 8/29/86; TRANS, from DHES, 1996 MAR p. 1499.

Subchapter 17.30.5 Mixing Zones in Surface and Ground Water

Mont. Admin. R. 17.30.501 Purpose

(1) The purpose of this subchapter is to implement 75-5-301(4), MCA, which requires the department to adopt rules governing the granting of mixing zones consistent with the provisions of 75-5-302 through 75-5-307 and 80-15-201, MCA.

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.502 Definitions

The following definitions, in addition to those in 75-5-103, MCA, and ARM Title 17, chapter 30, subchapters 6 and 7, apply throughout this subchapter:

(1) "Acute toxicity" means a condition in which ambient water concentrations exceed the applicable acute aquatic life standards given in department Circular DEQ-7.

(2) "Chronic toxicity" means a condition in which ambient water concentrations exceed the applicable chronic aquatic life standards given in department Circular DEQ-7.

(3) "Constructed wetland" means a wetland intentionally designed, constructed and operated for the primary purpose of wastewater or stormwater treatment or environmental remediation.

(4) "Currently available data" means data that is readily available to the department at the time a decision is made. It does not mean new data to be obtained as a result of departmental efforts or required of the applicant.

(5) "Human health standard" means the parameters listed as human health standards in department Circular DEQ-7.

(6) "Mixing zone" is defined in 75-5-103, MCA, and also means a limited area of a surface water body or a portion of an aquifer, where initial dilution of a discharge takes place and where water quality changes may occur and where certain water quality standards may be exceeded.

(7) "Nearly instantaneous mixing zone" means an area where dilution of a discharge to water by the receiving water occurs at a nearly instantaneous rate, with the result that its boundaries are either at the point of discharge or are within two stream widths downstream of the point of discharge.

(8) "Narrative standards" means those parameters listed as narrative standards in department Circular DEQ-7.

(9) "Numeric acute standards" means the parameters listed as acute aquatic life standards in department Circular DEQ-7.

(10) "Numeric chronic standards" means the parameters listed as chronic aquatic life standards in department Circular DEQ-7.

(11) "Standard mixing zone" means a mixing zone that meets the requirements of ARM 17.30.516 and 17.30.517 and involves less data collection and demonstration than required for a source specific mixing zone.

(12) "Wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.

(13) "Zone of influence" means the area under which a well can be expected to remove water.

(14) The department adopts and incorporates by reference Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" (September 2026 edition), which establishes numeric water quality standards for toxic, carcinogenic, bioconcentrating, nutrient, radioactive, and harmful parameters. Copies of Department Circular DEQ-7 are available from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1998 MAR p. 2487, Eff. 9/11/98; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2003 MAR p. 217, Eff. 2/14/03; AMD, 2004 MAR p. 725, Eff. 4/9/04; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2008 MAR p. 946, Eff. 5/9/08; AMD, 2010 MAR p. 1796, Eff. 8/13/10; AMD, 2012 MAR p. 2060, Eff. 10/12/12; AMD, 2017 MAR p. 602, Eff. 5/13/17; AMD, 2019 MAR p. 826, Eff. 6/22/19; AMD, 2024 MAR p. 257, Eff. 2/10/24; AMD, 2026 MAR, Notice No. 2026-496, Eff. 9/26/26.

Mont. Admin. R. 17.30.505 General Considerations for Mixing Zone Designations

(1) After an assessment of information received from the applicant concerning the biological, chemical, and physical characteristics of the receiving water, as specified in ARM 17.30.506 or as requested by the department, the department will determine the applicability of a mixing zone and, if applicable, its size, configuration, and location. In defining a mixing zone, the department will consider the following principles:

(a) Mixing zones may be granted for individual parameters present in a discharge.

(b) For new or increased sources, changes in water quality at the boundary of a mixing zone must be nonsignificant as defined by ARM Title 17, chapter 30, subchapter 7, unless the change in water quality is authorized by the department pursuant to 75-5-303 , MCA.

(c) For sources discharging under a permit issued by the department prior to April 29, 1993, any mixing zone allowed under the permit will remain in effect until renewal. Upon renewal, any previously allowed mixing zone will be designated in the renewed permit, unless there is evidence that the previously allowed mixing zone will impair existing or anticipated uses.

(d) In accordance with 75-5-306 , MCA, it is not necessary that industrial wastes, sewage, or other wastes, as defined in 75-5-103 , MCA, be treated to a purer condition than the natural condition of the receiving water as long as the minimum treatment requirements are met and provided all reasonable land, soil, and water conservation practices have been applied.

(e) Estimated parameter levels in the mixing zone area will be calculated, unless the department determines that monitoring is necessary due to the potential harm to the impacted water and its beneficial uses.

(f) In granting a mixing zone, the department may impose conditions as necessary to comply with the requirements of this subchapter.

(2) Where the department determines that allowing a mixing zone at a given level for a parameter would threaten or impair existing beneficial use pursuant to this subchapter, discharge limitations will be modified as necessary to prevent the interference with or threat to the beneficial use. If necessary, these modifications may require achieving applicable numeric water quality criteria at the end-of-pipe for the parameter so that no mixing zone will be necessary or granted.

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.506 Water Quality Assessment

(1) No mixing zone will be granted if it would threaten or impair existing beneficial uses. Before any mixing zone is allowed, the applicant must provide information, as requested by the department, to determine whether a mixing zone will be allowed as well as the conditions which should be applied.

(2) In making its determination, the department will consider the following factors:

(a) Biologically important areas: the presence of fish spawning areas or shallow water nursery areas within the proposed mixing zone or a "shore hugging" effluent plume in an aquatic life segment will support a finding that the mixing zone may be inappropriate during the spawning or nursery periods.

(b) Drinking water or recreational activities: the existence of a drinking water intake, a zone of influence around a drinking water well or a well used for recreational purposes, or a recreational area within or immediately adjacent to the proposed mixing zone will support a finding that a mixing zone is not appropriate. For purposes of these rules, "recreational" refers to swimming and "recreational area" refers to a public beach or swimming area, including areas adjacent to streams or lakes.

(c) Attraction of aquatic life to the effluent plume: where currently available data support a conclusion that fish or other aquatic life would be attracted to the effluent plume, resulting in adverse effects such as acute or chronic toxicity, it may be appropriate to adjust a given mixing zone for substances believed to cause the toxic effects.

(d) Toxicity/persistence of the substance discharged: where a discharge of a parameter is at a concentration that is both toxic and persistent, it may be appropriate to deny a mixing zone. Toxicity and persistence will be given added weight to deny a mixing zone where the parameter is expected to remain biologically available and where a watershed-based solution has not been implemented. For ground water, this factor will also be considered in areas where the parameter may remain in the ground water for a period of years after the discharge ceases.

(e) Passage of aquatic organisms (including access to tributaries) : where currently available data indicate that a mixing zone would inhibit migration of fish or other aquatic species, no mixing zone may be allowed for the parameters that inhibit migration. In making this determination, the department will consider whether any parameter in the effluent plume will block migration into tributary segments.

(f) Cumulative effects of multiple mixing zones: in some cases, the existence of multiple or overlapping mixing zones may threaten or impair the existing uses of the receiving water, so that any additional mixing zone will be limited or denied for the parameter of concern.

(g) Aquifer characteristics: when currently available data indicate that the movement of ground water or pollutants within the subsurface cannot be accurately predicted, such as the movement of ground water through fractures, and also indicate that this unpredictability might result in adverse impacts due to a particular concentration of a parameter in the mixing zone, it may be appropriate to deny the mixing zone for the parameter of concern.

(h) Ground water discharges to surface water: In the case of a discharge to ground water which in turn discharges to surface water within a reasonably short time or distance, the mixing zone may extend into the surface water, and the same considerations which apply to setting mixing zones for direct discharges to surface water will apply in determining the allowability and extent of the mixing zone in the surface water.

(i) Discharges to intermittent and ephemeral streams: the "natural condition" of these waters during periods of no flow will be the average quality that occurs during periods when flow is present. If a proposed discharge occurs when there is no flow, the quality of the discharge must be at or better than this quality. If variations in seasonal stream flow are known and a mixing zone is limited to use during periods when dilution is available, such a mixing zone may be allowed by the department.

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.507 Specific Restrictions for Surface Water Mixing Zones

(1) Mixing zones for surface waters are subject to the following water quality standards:

(a) narrative water quality standards, standards for harmful substances, numeric acute and chronic standards for aquatic life; standards in Department Circular DEQ-12A; and standards based on human health must not be exceeded beyond the boundaries of the surface water mixing zone;

(b) acute standards for aquatic life for any parameter may not be exceeded in any portion of a mixing zone, unless the department specifically finds that allowing minimal initial dilution will not threaten or impair existing beneficial uses.

(2) Discharges to wetlands (other than constructed wetlands) will not be granted a mixing zone for parameters for which the state has adopted numeric acute or chronic standards for aquatic life or for human health in the surface water quality standards, unless the following can be demonstrated to the satisfaction of the department:

(a) the standards referenced in (1) will not be exceeded beyond the boundaries of the mixing zone;

(b) existing beneficial uses will not be threatened or harmed; and

(3) For discharges to surface water that first pass through the ground, such as discharges from infiltration systems or land application areas, the surface water mixing zone begins at the most upstream point of discharge into the receiving surface water. If the discharge continues to occur downstream beyond a distance equal to 10 times the stream width measured at the upstream discharge point at low flow, a standard mixing zone will not be granted.

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, 75-5-313, MCA
History: NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2014 MAR p. 1815, Eff. 8/8/14.

Mont. Admin. R. 17.30.508 Specific Restrictions for Ground Water Mixing Zones

(1) Mixing zones for ground water are to be limited and comply with the following water quality standards:

(a) Human health based ground water standards must not be exceeded beyond the boundaries of the mixing zone.

(2) No mixing zone for ground water will be allowed if the zone of influence of an existing or proposed drinking water supply well will intercept the mixing zone.

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2024 MAR p. 1581, Eff. 7/6/24.

Mont. Admin. R. 17.30.515 Department Procedures

(1) The department will determine whether a mixing zone is appropriate for a particular discharge during the department's permit, permit renewal, approval, order, or authorization review process pursuant to the rules in this subchapter. The department may determine that:

(a) no mixing zone shall be granted;

(b) the standard mixing zone applied for is appropriate;

(d) an alternative or modified mixing zone, as defined by the department, is appropriate.

(2) A person applying to the department for a mixing zone must indicate the type of mixing zone applied for and supply sufficient detail for the department to make a determination regarding the authorization of the mixing zone under the rules of this subchapter.

(3) A source specific mixing zone may not be used unless approved by the department.

(4) In making a determination of nonsignificance under the rules in ARM Title 17, chapter 30, subchapter 7, a person may use a standard mixing zone without approval from the department or request that the department specifically designate a mixing zone, which may be either a standard or source specific mixing zone.

(5) Department determinations regarding mixing zones will be accomplished within the time frames required for the underlying permit, approval, or authorization, and the applicant will be notified of that determination according to those same requirements. In all other cases, department determinations will be made and the applicant notified within 30 days after receipt of a complete application.

(6) After receiving notification of the department's determination the applicant may:

(a) accept the department's determination;

(b) modify the proposed mixing zone and reapply; or

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.516 Standard Mixing Zones for Surface Water

(1) If a discharge to surface water is small in comparison to the volume of the receiving water or if the mixing is nearly instantaneous and the parameter(s) of concern will not threaten or impair existing uses as determined under ARM 17.30.506, a standard mixing zone may be used.

(2) A standard surface water mixing zone will not be granted for a new or increased discharge to a lake or wetland.

(3) Facilities that meet the terms and conditions in (a) through (e) qualify for a standard mixing zone as follows:

(a) Facilities that discharge a mean annual flow of less than one million gallons per day (MGD) to a stream segment with a dilution ratio greater than or equal to 100:1. For purposes of this procedure, the stream dilution ratio is defined as the seven-day, ten-year (7Q10) low flow of the stream segment without the discharge, divided by the mean annual flow of the discharge. In this case discharge limitations will be based on dilution with the 7Q10.

(b) Facilities that discharge a mean annual flow less than one MGD to a stream segment with a dilution less than 100:1. In cases where dilution is less than 100:1, discharge limitations will be based on dilution with 25 percent of the 7Q10.

(d) Facilities whose discharge results in a nearly instantaneous mixing zone. Discharge limitations shall be based on dilution with the seven-day, ten-year low flow of the receiving water except as limited by consideration of the factors listed in ARM 17.30.506. For surface waters, nearly instantaneous mixing will be assumed when there is an effluent diffuser which extends across the entire stream width (at low flow), or when the mean daily flow of the discharge exceeds the seven-day, ten-year low flow of the receiving water. A discharge may also be considered nearly instantaneous if the discharger so demonstrates in accordance with a study plan approved by the department. For the purposes of this demonstration nearly instantaneous mixing will be assumed when there will be not more than a ten percent difference in bank-to-bank concentrations at a downstream distance less than two stream/river widths.

(e) Facilities that discharge the parameters found in Department Circular DEQ-12A to surface water. Discharge limitations must be based on dilution with the entire seasonal 14-day, five-year (seasonal 14Q5) low flow of the receiving water without the discharge.

(4) The length of a standard mixing zone for flowing surface water, other than a nearly instantaneous mixing zone, must not extend downstream more than the one-half mixing width distance or extend downstream more than ten times the stream width, whichever is more restrictive. For purposes of making this determination, the stream width as well as the discharge limitations are considered at the 7Q10 or seasonal 14Q5 low flow. The seasonal 14Q5 low flow may be used only in conjunction with base numeric nutrient standards in Department Circular DEQ-12A. The recommended calculation to be used to determine the one-half mixing width distance downstream from a stream bank discharge is described below.

(a) A 1/2 = [0.4(W/2) 2 V]/L, where:

(i) A 1/2 = one-half mixing width distance;

(ii) W = width in feet at the 7Q10 or seasonal 14Q5;

(iii) V = velocity of the stream at the 7Q10 or seasonal 14Q5 downstream of the discharge (in ft/second);

(iv) L = lateral dispersion coefficient for the 7Q10 or seasonal 14Q5 downstream of the discharge (in ft 2 /second), where:

(b) L = CDU, where:

(i) C = channel irregularity factor immediately downstream of the discharge, where:

(A) C = 0.1 for straight, rectangular streams;

(B) C = O.3 for channelized streams;

(D) C = 1.0 for streams with significant meandering; and

(E) C = 1.3 for streams with sharp 90º or more bends;

(ii) D = average water depth at the 7Q10 or seasonal 14Q5 downstream of the discharge (in feet);

(iii) U = shear velocity (in ft/sec), where:

(i) 32.2 is the acceleration due to gravity (32.2 ft/sec 2 );

(ii) D = average water depth at the 7Q10 or seasonal 14Q5 downstream of the discharge (in feet); and

(iii) S = slope of the channel downstream of the discharge (feet/feet).

(5) Monitoring may be required at the downgradient boundary of a surface water mixing zone only when there is a site-specific, impact-related reason to require such monitoring.

(6) A standard surface water mixing zone may be modified by the department on a case-by-case basis depending upon existing uses, flow regime, and the configuration of the stream channel. Where currently available data indicates that modifying a standard mixing zone would threaten or impair existing beneficial uses under ARM 17.30.506, the facility will not qualify for this modification procedure.

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2014 MAR p. 1815, Eff. 8/8/14.

Mont. Admin. R. 17.30.517 Standard Mixing Zones for Ground Water

(1) The following criteria apply to determine which discharges qualify for a standard ground water mixing zone:

(a) A standard ground water mixing zone is generally applicable in unconfined aquifers, but may not be appropriate for semi-confined or confined aquifers or in aquifers where ground water moves through fractures.

(b) Disposal systems that discharge to ground water through infiltration, absorption systems, injection through a disposal well, leakage from an impoundment, seepage from a land application area, or other methods may qualify for a standard mixing zone.

(c) To determine if the discharge qualifies for a standard ground water mixing zone, the person proposing the discharge must estimate the anticipated concentration of pollutants at the downgradient boundary of the mixing zone (aquatic life standards do not apply in ground water) . If the estimated concentration meets the nonsignificance criteria at the boundary of the mixing zone, as specified in ARM Title 17, chapter 30, subchapter 7, the discharge qualifies for a standard mixing zone.

(d) The estimation required in (c) must be based on a calculation of the volume of water moving through a standard cross-section of aquifer. The calculated volume of water moving through the aquifer cross-section is hypothetically mixed with the known volume and concentration of the discharge to determine the resulting concentration at the boundary of the mixing zone. The recommended method to determine the resulting concentration at the boundary of a standard ground water mixing zone is described below:

(i) Computations of the volume of ground water available for mixing are based on the equation: Q = KIA, where:

(A) Q = volume of flow;

(B) K = hydraulic conductivity;

(D) A = aquifer cross-section area.

(ii) Values for hydraulic conductivity (K) and gradient (I) may be obtained from field observations or estimated from other sources.

(iii) A specific depth and width are necessary to determine the aquifer cross-section area (A) for a standard mixing zone. The aquifer cross-section area prescribed by the following lengths is used as the area (A) in the equation:

(A) The depth of a standard ground water mixing zone extends from the top of the water table beneath the source down to 15 feet below the water table.

(B) The width of a standard mixing zone is equal to the width of the source plus the distance determined by the tangent of 5º times the length of the mixing zone on both sides of the source.

(iv) It is assumed that mixing between the discharge and the receiving ground water is complete at the aquifer cross-section area at the standard distance downgradient from the source.

(v) It is also assumed that pollutants discharged from the source do not change in volume or concentration as they migrate through the unsaturated zone down to the water table except as allowed in (vi).

(vi) For total nitrogen in residential strength wastewater discharged from a wastewater treatment system that uses absorption system pressure distribution in accordance with Department Circular DEQ-4 and does not require a Montana Pollutant Discharge Elimination System (MPDES) or Montana Ground Water Pollution Control System (MGWPCS) permit, the waste load as described in (vii)(B) may be reduced in the vadose zone and saturated zone to account for natural attenuation using Montana's Septic Trading Method in Appendix A of Department Circular DEQ-13.

(vii) The concentration of the parameter in the ground water must be measured to determine the existing load present in the ground water. The calculated volume of ground water with a measured concentration is hypothetically mixed with the known volume and concentration of the discharge using the following procedure:

(A) Volume of ground water times the concentration of the parameter = existing load;

(B) Volume of discharge times the concentration of the parameter = waste load; and

(viii) If the resulting concentration does not exceed the nonsignificance criteria specified in ARM Title 17, chapter 30, subchapter 7, for new or increased sources at the mixing zone boundary, a standard mixing zone may be granted.

(ix) The downgradient boundary of the standard mixing zone extends:

(A) between 100 and 500 feet as proposed by the applicant for individual or shared wastewater absorption systems that discharge residential strength wastewater;

(B) between 200 and 500 feet as proposed by the applicant for multiple-user wastewater absorption systems that discharge residential strength wastewater with a design flow greater than 800 gpd;

(C) between 100 and 500 feet as proposed by the applicant for commercial, multiple-user, or public wastewater absorption systems that discharge residential strength wastewater if the design flow is 800 gpd or less; and

(D) 500 feet for any other source of waste, including industrial wastewater, discharging into ground water.

(x) Monitoring may be required at the downgradient boundary of the mixing zone to measure compliance for a ground water mixing zone established for other than an individual wastewater absorption system, if there is an overriding site-specific impact-related reason to require monitoring and the mixing zone is within 500 feet of surface water, another ground water mixing zone, or a drinking water well, or if there is some other overriding site-specific, impact-related reason to require monitoring.

(2) The department adopts and incorporates by reference Department Circular DEQ-13, entitled "Montana's Policy for Nutrient Trading" (December 2012 edition), which provides procedures and requirements for generating and applying nutrient credits in department-issued discharge permits. Copies of Department Circular DEQ-13 may be obtained from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2024 MAR p. 1581, Eff. 7/6/24.

Mont. Admin. R. 17.30.518 Source Specific Mixing Zones

(1) If adequate information regarding stream flow or ground water flow is not available or if a standard mixing zone is not applicable or desired by the applicant, an applicant may request a source specific mixing zone.

(2) A source specific surface or ground water mixing zone will only be granted after the applicant demonstrates to the department that the requested mixing zone will comply with the requirements of ARM 17.30.506 and 17.30.507 and the provisions of 75-5-303 , MCA.

(3) For lakes, the area of a mixing zone must not exceed 5% of the area of the lake or extend more than a 200 foot radius from the discharge, whichever is more restrictive.

(4) For source specific mixing zones in other surface water, the applicant shall provide information adequate to demonstrate to the department that the requirements of 75-5-301 (4) , MCA, are satisfied. In addition, the applicant shall present a discussion of the mixing zone in the context of the restrictions and general considerations specified in ARM 17.30.506, and information addressing the following items, as applicable:

(a) quantity, toxicity, and persistence of the pollutant;

(b) rate of flow;

(d) concentration of pollutants within the mixing zone;

(e) length of time pollutants will be present;

(f) proposed boundaries of the mixing zone;

(g) potential impacts to water uses;

(h) potential compliance monitoring;

(i) contingency plan if pollutants migrate beyond the mixing zone at concentrations greater than the allowed limits; and

(j) specific explanation as to why the proposed mixing zone is the smallest practicable size and why it will have a minimum practicable effect on water users.

(5) For source specific mixing zones in ground water the applicant shall provide information adequate to demonstrate to the department that the requirements of 75-5-301 (4) , MCA, are satisfied. In addition, the applicant shall present a discussion of the mixing zone in the context of the restrictions and general considerations specified in ARM 17.30.506, and information addressing the following items, as applicable:

(a) quantity, toxicity, and persistence of the pollutant;

(b) water-bearing characteristics of subsurface materials;

(d) pollutant migration;

(e) volume of ground water and area available for mixing;

(f) concentration of pollutants within the mixing zone;

(g) length of time pollutants will be present;

(h) proposed boundaries of the mixing zone;

(i) potential impacts to water uses;

(j) compliance monitoring;

(k) contingency plan if pollutants migrate beyond the mixing zone at concentrations greater than the allowed limits; and

(l) specific explanation as to why the proposed mixing zone is the smallest practicable size and why it will have a minimum practicable effect on water users.

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499.

Subchapter 17.30.6 Surface Water Quality Standards and Procedures

Mont. Admin. R. 17.30.601 Policy

(1) The following standards are adopted to conserve water by protecting, maintaining, and improving the quality and potability of water for public water supplies, wildlife, fish and aquatic life, agriculture, industry, recreation, and other beneficial uses.

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.602 Definitions

In this subchapter the following terms have the meanings indicated below and are supplemental to the definitions given in 75-5-103, MCA:

(1) "Bioconcentrating parameters" means the parameters listed in department Circular DEQ-7 which have a bioconcentration factor greater than 300.

(2) "Carcinogenic parameters" means the parameters categorized as carcinogens in department Circular DEQ-7.

(3) "Chlorophyll a" means the mass of chlorophyll a pigment after correction for phaeophytins.

(4) "Conduit" means any artificial or natural duct, either open or closed, capable of conveying liquids or pollutants.

(5) "Conventional water treatment" means in order of application the processes of coagulation, sedimentation, filtration, and disinfection. If determined necessary by the department it also includes taste and odor control and lime softening.

(6) "Dewatered stream" means a perennial or intermittent stream from which water has been removed for one or more beneficial uses.

(7) "Electrical conductivity (EC)" means the ability of water to conduct an electrical current at 25ºC. The electrical conductivity of water represents the amount of total dissolved solids in the water and is expressed as microSiemens/centimeter (µS/cm) or micromhos/centimeter (µmhos/cm) or equivalent units and is corrected to 25ºC.

(8) "Discharge" means the injection, deposit, dumping, spilling, leaking, placing, or failing to remove any pollutant so that it or any constituent thereof may enter into state waters, including ground water.

(9) "EPA" means the US Environmental Protection Agency.

(10) "Ephemeral stream" means a stream or part of a stream which flows only in direct response to precipitation in the immediate watershed or in response to the melting of a cover of snow and ice and whose channel bottom is always above the local water table.

(11) "Geometric mean" means the value obtained by taking the Nth root of the product of the measured values where zero values for measured values are taken to be the detection limit.

(12) "Harmful parameters" means parameters listed as harmful in department Circular DEQ-7.

(13) "Intermittent stream" means a stream or reach of a stream that is below the local water table for at least some part of the year, and obtains its flow from both surface run-off and ground water discharge.

(14) "Mixing zone" is defined in 75-5-103, MCA, and also means a limited area of a surface water body or a portion of an aquifer, where initial dilution of a discharge takes place and where water quality changes may occur and where certain water quality standards may be exceeded.

(15) "MPDES" means the Montana pollutant discharge elimination system.

(16) "NPDES" means the national pollutant discharge elimination system.

(17) "Naturally occurring" means conditions or material present from runoff or percolation over which man has no control or from developed land where all reasonable land, soil and water conservation practices have been applied. Conditions resulting from the reasonable operation of dams in existence as of July 1, 1971, are natural.

(18) "Nonpoint source" means the source of pollutants which originates from diffuse runoff, seepage, drainage, or infiltration.

(19) "Outstanding resource water" or "ORW" has the meaning set out in 75-5-103, MCA.

(20) "Pesticide" means insecticides, herbicides, rodenticides, fungicides, or any substance or mixture of substances intended for preventing, destroying, controlling, repelling, altering life processes, or mitigating any insects, rodents, nematodes, fungi, weeds, and other forms of plant or animal life.

(21) "Phaeophytins" means the degradation products of chlorophyll.

(22) "Pollutants" means sewage, industrial wastes, and other wastes as those terms are defined in 75-5-103, MCA.

(23) "Reasonable land, soil, and water conservation practices" means methods, measures, or practices that protect present and reasonably anticipated beneficial uses. These practices include, but are not limited to, structural and nonstructural controls and operation and maintenance procedures. Appropriate practices may be applied before, during, or after pollution-producing activities.

(24) "Seasonal lake or pond" means a natural depression in the land surface that periodically holds water from precipitation or snow and ice melt in the immediate watershed.

(25) "Sodium adsorption ratio (SAR)" means a value representing the relative amount of sodium ions to the combined amount of calcium and magnesium ions in water using the following formula: SAR = [Na]/(([Ca]+[Mg])/2) ½ , where all concentrations are expressed as milliequivalents of charge per liter.

(26) "Secondary contact recreation" means activities in or on the water where the potential for immersion or ingestion of water is low, such as wading or boating.

(27) "Sediment" means solid material settled from suspension in a liquid; mineral or organic solid material that is being transported or has been moved from its site of origin by air, water, or ice and has come to rest on the earth's surface, either above or below sea level; or inorganic or organic particles originating from weathering, chemical precipitation, or biological activity.

(28) "Semi-permanent lake or pond" means a natural depression in the land surface, not including reservoirs, that receives ground water in addition to precipitation runoff from the immediate watershed, and occasionally goes dry.

(29) "Settleable solids" means inorganic or organic particles that are being transported or have been transported by water from the site or sites of origin and are settled or are capable of being settled from suspension.

(30) "Sewer" means a pipe or conduit that carries wastewater or drainage water.

(31) "Surface waters" means any waters on the earth's surface including, but not limited to, streams, lakes, ponds, and reservoirs; and irrigation and drainage systems discharging directly into a stream, lake, pond, reservoir, or other surface water. Water bodies used solely for treating, transporting, or impounding pollutants shall not be considered surface water.

(32) "Steady state" means, for the purposes of ARM 17.30.632, conditions whereby there are no activities resulting in new, increasing, or changing selenium loads to the lake or river aquatic ecosystem, and selenium concentrations in fish living in the aquatic ecosystem have stabilized.

(33) "Storm sewer" or "storm drain" means a pipe or conduit that carries storm water and surface water and street washings.

(34) "Total nitrogen" means the sum of all nitrate, nitrite, ammonia, and organic nitrogen, as N, in an unfiltered water sample. Total nitrogen in a sample may also be determined by the persulfate digestion or as the sum of total kjeldahl nitrogen plus nitrate plus nitrite.

(35) "Total phosphorus" means the sum of orthophosphates, polyphosphates, and organically bound phosphates, as P, in an unfiltered water sample. Total phosphorus may also be determined directly by persulfate digestion.

(36) "Toxic parameters" means those parameters listed as toxins in department Circular DEQ-7.

(37) "True color" means the color of water from which the turbidity has been removed.

(38) "Turbidity" means a condition in water or wastewater caused by the presence of suspended matter resulting in the scattering and absorption of light rays.

(39) "Use attainability analysis" means a scientific assessment and analysis of the factors affecting the attainment of a use(s). Information that may be used include chemical, physical and biological data, as well as photo documentation and comparison to reference conditions, that are of sufficient detail to accurately portray the level and potential level of use support of a waterbody. The use attainability analysis is required by the US EPA according to 40 CFR 131.10(g), (h) and (j).

(40) "DEQ-7" means the department circular that is adopted and incorporated by reference in ARM 17.30.619 and is entitled "Montana Numeric Water Quality Standards." This circular establishes water quality standards for toxic, carcinogenic, bioconcentrating, radioactive, and harmful parameters, and also establishes human health-based water quality standards for the following specific nutrients with toxic effects:

(a) nitrate;

(b) nitrate + nitrite; and

(41) "DEQ-12A" means the department circular that is adopted and incorporated by reference in ARM 17.30.619 and is entitled "Montana Base Numeric Nutrient Standards." This circular contains numeric water quality standards for total nitrogen and total phosphorus in surface waters.

(42) "DEQ-12B" means the department circular that is adopted and that is entitled "Montana Base Numeric Nutrient Standards Variances." This circular describes procedures for receiving a variance from the standards and will document recipients of individual variances.

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, 75-5-313, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1988 MAR p. 1191, Eff. 6/10/88; AMD, 1988 MAR p. 2221, Eff. 10/14/88; AMD, 1992 MAR p. 2064, Eff. 9/11/92; AMD, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1999 MAR p. 94, Eff. 1/15/99; AMD, 1999 MAR p. 2257, Eff. 10/8/99; AMD, 1999 MAR p. 2275, Eff. 10/8/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2002 MAR p. 2196, Eff. 8/16/02; AMD, 2003 MAR p. 779, Eff. 4/25/03; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2012 MAR p. 2060, Eff. 10/12/12; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2020 MAR p. 2336, Eff. 12/25/20.

Mont. Admin. R. 17.30.603 Application and Composition of Surface Water Quality Standards

(1) The standards in this subchapter are adopted to establish maximum allowable changes in surface water quality and to establish a basis for limiting the discharge of pollutants which affect prescribed beneficial uses of surface waters.

(2) The surface water quality standards are composed of all rules of this subchapter.

(3) The provisions of ARM 17.30.635 through 17.30.637, 17.30.640, 17.30.641, 17.30.645, and 17.30.646 apply to all surface waters unless they conflict with ARM 17.30.620 through 17.30.629 in which case the requirements of ARM 17.30.620 through 17.30.629 prevail.

(4) The standards of this subchapter are applicable where these standards are or would be violated by discharges to ground water.

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1992 MAR p. 2064, Eff. 9/11/92; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.606 Stream Classification

(1) Before streams are classified or standards established or modified, the department shall hold a public hearing.

(a) Notice of the hearing specifying the waters concerned and the classification, standards or modification of them shall be published at least once a week for three consecutive weeks in a daily newspaper of general circulation in the area affected.

(b) Notice shall also be mailed directly to persons the department believes may be affected by the proposed action.

(c) The water pollution control advisory council shall be given not less than 30 days prior to first publication to comment on the proposed action.

(d) The general rules of procedure found in ARM 17.4.101 relating to rulemaking will be followed.

History

Authorizing statute(s): 75-5-201, MCA
Implementing statute(s): 75-5-307, MCA
History: Eff. 12/31/72; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.607 Water-Use Classifications--Clark Fork Columbia River Drainage Except the Flathead and Kootenai River Drainages

(1) The water-use classifications adopted for the Clark Fork of the Columbia River drainage are as follows:

(a) Clark Fork River drainage except waters listed in (1)(a)(i) through (xv) B-1

(i) Warm Springs drainage to Meyer's Dam near Anaconda A-1

(ii) Hearst Lake drainage to the Lower Hearst Inlet (approximately at latitude 46.1013, longitude -113.0665) and Fifer Gulch drainage to the Anaconda city limits. (Anaconda municipal water supply) A-Closed

(iii) Silver Bow Creek (mainstem) from the confluence of Blacktail Creek to Warm Springs Creek I

(The concentrator tailings pond and Silver Bow Creek drainage from this pond downstream to Blacktail Creek and the tailings ponds at Warm Springs have no classification.)

(iv) Yankee Doodle Creek drainage to and including Moulton reservoir (approximately at latitude 46.0901, longitude -112.5092) A-Closed

(v) Basin Creek drainage to and including the South Butte water supply reservoir (approximately at latitude 45.8543, longitude -112.5454) A-Closed

(vi) Clark Fork River (mainstem) from Warm Springs Creek to Cottonwood Creek (near Deer Lodge) C-2

(vii) Clark Fork River (mainstem) from Cottonwood Creek to the Little Blackfoot River C-1

(viii) Tin Cup Joe Creek drainage to the Deer Lodge water supply intake (approximately at latitude 46.3892, longitude -112.8543) A-Closed

(ix) Georgetown Lake and tributaries above Georgetown Dam (headwaters of Flint Creek drainage) A-1

(x) Fred Burr Lake and headwaters from source to the outlet of the lake (Philipsburg water supply at approximate latitude 46.3096, longitude -113.1746) A-Closed

(xi) South Boulder Creek drainage to the Philipsburg water supply intake (approximately at latitude 46.3447, longitude -113.2266) A-1

(xii) Rattlesnake Creek drainage to the Missoula water supply intake (approximately at latitude 46.9149, longitude -113.9638) A-Closed

(xiii) Packer and Silver Creek drainage (tributaries to the St. Regis River) to the Saltese water supply intake A-1

(xiv) Ashley Creek drainage to the Thompson Falls water supply intake (approximately at latitude 47.6066, longitude -115.3) A-Closed

(xv) Pilgrim Creek drainage to the Noxon water supply intake (approximately at latitude 47.9906, longitude -115.7747) A-1

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1988 MAR p. 1191, Eff. 6/10/88; AMD, 1994 MAR p. 3099, Eff. 12/9/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2017 MAR p. 602, Eff. 5/13/17.

Mont. Admin. R. 17.30.608 Water-Use Classifications--Flathead River Drainage

(1) The water-use classifications adopted for the Flathead River are as follows:

(a) Flathead River drainage above Flathead Lake except waters listed in (1)(a)(i) through (viii) B-1

(i) Essex Creek drainage to the Essex water supply intake (approximately at latitude 48.2668, longitude -113.639) A-Closed

(ii) Stillwater River (mainstem) from Logan Creek to the Flathead River B-2

(iii) Whitefish Lake and its tributaries A-1

(iv) Whitefish River (mainstem) from the outlet of Whitefish Lake to the Stillwater River B-2

(v) Haskill Creek drainage to the Whitefish water supply intake (approximately at latitude 48.4584, longitude -114.3054) A-1

(vi) Ashley Creek (mainstem) from Smith Lake to bridge crossing on the airport road about one mile south of Kalispell B-2

(vii) Ashley Creek (mainstem) from bridge crossing on airport road to the Flathead River C-2

(viii) The mainstems of the north and middle forks of the Flathead River above their junction A-1

(b) Flathead Lake north of the Flathead Indian Reservation and waters of its tributaries from Flathead River inlet to U.S. Highway 93 bridge at Polson that lie outside of the Flathead Indian Reservation boundary except Swan River as listed in (1)(b)(i), but including Swan Lake proper and Lake Mary Ronan proper A-1

(i) Swan River drainage (except Swan Lake proper) B-1

(c) Waters outside of the Flathead Indian Reservation that are tributary to the Flathead River drainage below the highway bridge at Polson to confluence with Clark Fork River except the Little Bitterroot River mainstem listed in (1)(c)(i) and including the Flathead River drainage west of the Flathead Indian Reservation boundary B-1

(i) Little Bitterroot River (mainstem) from Hubbart Reservoir dam to the Flathead Indian Reservation boundary B-2

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1982 MAR p. 1745, Eff. 10/1/82; AMD, 1984 MAR p. 1802, Eff. 12/14/84; AMD, 1988 MAR p. 1191, Eff. 6/10/88; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2017 MAR p. 602, Eff. 5/13/17.

Mont. Admin. R. 17.30.609 Water-Use Classifications--Kootenai River Drainage

(1) The water-use classifications adopted for the Kootenai River are as follows:

(a) All waters except those listed in (1)(a)(i) through (iv) B-1

(i) Deep Creek drainage (tributary to the Tobacco River) to the Fortine water supply intake (approximately at latitude 48.7631, longitude -114.8980) A-1

(ii) Rainy Creek drainage to the W.R. Grace Company water supply intake (approximately at latitude 48.4485, longitude -115.4203) A-1

(iii) Rainy Creek (mainstem) from the W.R. Grace Company water supply intake (approximately at latitude 48.4485, longitude -115.4203) to the Kootenai River C-1

(iv) Flower Creek drainage to the Libby water supply intake (approximately at latitude 48.356, longitude -115.5676) A-1

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2017 MAR p. 602, Eff. 5/13/17.

Mont. Admin. R. 17.30.610 Water-Use Classifications--Missouri River Drainage Except Yellowstone, Belle Fourche, and Little Missouri River Drainages

(1) The water-use classifications adopted for the Missouri River are as follows:

(a) Missouri River drainage to and including the Sun River drainage except tributaries listed in (1)(a)(i) through (xiii) B-1

(i) East Gallatin River (mainstem) from Montana Highway No. 411 (Spring Hill Road, approximately at latitude 45.7256, longitude -111.0666) crossing to Dry Creek about five miles east of Manhattan B-2

(ii) Lyman Creek (approximately at latitude 45.7305, longitude -110.9839) and Sourdough (Bozeman) Creek (approximately at latitude 45.5987, longitude -111.0266) drainages to the Bozeman water supply intakes A-Closed

(iii) Hyalite Creek drainage to the Bozeman water supply intake (approximately at latitude 45.5618, longitude -111.0709) A-1

(iv) Big Hole River drainage to Butte Water Company intake (approximately at latitude 45.7645, longitude -112.7872) above Divide A-1

(v) Rattlesnake Creek drainage to the Dillon water supply intake (approximately at latitude 45.2442, longitude -112.7953) A-1

(vi) Indian Creek drainage to the Sheridan water supply intake (approximately at latitude 45.4787, longitude -112.1592) A-1

(vii) Basin Creek drainage to the Basin water supply intake (approximately at latitude 46.2820, longitude -112.2730) A-1

(viii) McClellan Creek drainage to the East Helena water supply intake (approximately at latitude 46.551, longitude -111.8964) A-1

(ix) Prickly Pear Creek (mainstem) from the Montana Highway No. 433 crossing about one mile northwest of East Helena to Lake Helena I

(x) Ten Mile Creek drainage to the Helena water supply intake (approximately at latitude 46.5731, longitude -112.2145) A-1

(xi) Willow Creek drainage to the White Sulphur Springs water supply intake (approximately at latitude 46.5191, longitude -110.8119) A-Closed

(xii) Muddy Creek mainstem (tributary of Sun River) I

(xiii) Sun River (mainstem) from Muddy Creek to the Missouri River B-3

(b) Missouri River drainage from Sun River to Rainbow Dam B-2

(c) Missouri River drainage from Rainbow Dam in Great Falls to the Marias River except waters listed in (1)(c)(i) through (iv) B-3

(i) Belt Creek drainage to and including Otter Creek drainage except portion of O'Brien Creek listed in (1)(c)(i)(A) B-1

(A) O'Brien Creek drainage to the Neihart water supply intake (approximately at latitude 46.9147, longitude -110.7322) A-1

(ii) Belt Creek (mainstem) from Otter Creek to the Missouri River B-2

(iii) Tributaries to Belt Creek from Otter Creek to the Missouri River B-1

(iv) Highwood and Shonkin Creek drainages B-1

(d) Marias River drainage except waters on the Blackfeet Indian Reservation and the tributaries and segments listed in (1)(d)(i) through (vi) B-2

(i) Cutbank Creek drainage except waters listed in (1)(d)(i)(A) B-1

(A) Cutbank Creek (mainstem) from Old Maids Coulee near Cut Bank to Two Medicine Creek B-2

(ii) Two Medicine Creek drainage to the Blackfeet Indian Reservation boundary except for the waters listed in (1)(d)(ii)(A) and (B) B-1

(A) Midvale Creek drainage to the Blackfeet Indian Reservation boundary A-Closed

(B) Summit Creek drainage to the Summit water supply intake (approximately at latitude 48.3184, longitude -113.3527) A-Closed

(iii) Dry Fork Marias River (mainstem) from Highway 91 crossing near Conrad to Marias River and all adjoining tributaries B-3

(iv) Teton River drainage to and including Deep Creek near Choteau B-1

(v) Marias River mainstem from Tiber Dam to the county road crossing in section 11, T29N, R5E B-1

(vi) Teton River below Interstate 15 B-3

(e) Missouri River drainage from Marias River to Fort Peck Dam except waters listed in (1)(e)(i) through (v) C-3

(i) Missouri River (mainstem) from Marias River to Fort Peck Dam B-3

(ii) Eagle Creek drainage to but excluding Dog Creek B-1

(iii) Judith River drainage except waters listed in (i)(e)(iii)(A) through (D) B-1

(A) Judith River (mainstem) from Big Spring Creek to the Missouri River B-2

(B) Sage Creek drainage below U.S. Highway 87 C-3

(D) Tributaries to Judith River from Big Spring Creek to the Missouri River C-3

(iv) Musselshell River drainage to Deadman's Basin diversion canal above Shawmut except for the water listed in (1)(e)(v)(A) B-1

(A) Musselshell River (mainstem) from Hopley Creek to Deadman's Basin Diversion Canal near Shawmut B-2

(v) Musselshell River drainage below Deadman's Basin diversion canal above Shawmut except for the waters listed in (1)(e)(v)(A) through (D) C-3

(A) Deadman's Basin Reservoir B-1

(B) Careless and Swimming Woman Creek drainage above their confluence north of Ryegate B-1

(D) South Willow Creek drainage above county road bridge in T10N, R24E, section 7 B-1

(f) Missouri River drainage from Fort Peck Dam to the Milk River B-2

(g) Milk River drainage from the International Boundary to the Missouri River except waters within tribal boundaries and the tributaries listed in (1)(g)(i) through (iv) B-3

(i) Sage Creek drainage to the section line between sections 1 and 12 T36N R5E B-1

(ii) Big Sandy Creek drainage from the Rocky Boy's Indian Reservation boundary to Town of Big Sandy infiltration wells (approximately at latitude 48.1831, longitude -110.0851) B-1

(iii) Beaver, Little Box Elder and Clear Creek (drainage near Havre) B-1

(iv) Peoples Creek drainage and the South Fork of Peoples Creek drainage except waters within the Fort Belknap Indian Reservation B-1

(h) Missouri River drainage from Milk River to North Dakota boundary except tribal waters and waters listed in (1)(h)(i) through (iii) C-3

(i) Missouri River (mainstem) from Milk River to North Dakota boundary B-3

(ii) Antelope Creek drainage near Antelope B-3

(iii) Poplar River drainage to the Fort Peck Indian Reservation boundary B-2

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1982 MAR p. 1745, Eff. 10/1/82; AMD, 1984 MAR p. 1802, Eff. 12/14/84; AMD, 1988 MAR p. 1191, Eff. 6/10/88; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1998 MAR p. 2489, Eff. 9/11/98; AMD, 2002 MAR p. 1314, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2008 MAR p. 948, Eff. 5/9/08; AMD, 2017 MAR p. 602, Eff. 5/13/17.

Mont. Admin. R. 17.30.611 Water-Use Classification--Yellowstone River Drainage

(1) The water-use classifications adopted for the Yellowstone River are as follows:

(a) Yellowstone River drainage to the Laurel water supply intake (approximately at latitude 45.6545, longitude -108.7590) B-1

(b) Yellowstone River drainage from the Laurel water supply intake (approximately at latitude 45.6545, longitude -108.7590) to the Billings water supply intake (approximately at latitude 45.7745, longitude -108.4778) except waters on the Crow Indian Reservation and the tributaries listed in (1)(b)(i) through (iii) B-2

(i) Clarks Fork of the Yellowstone River drainage from source up to and including Jack Creek near Bridger B-1

(ii) Mainstem of the Clarks Fork of the Yellowstone River from Jack Creek to the Yellowstone River B-2

(iii) Tributaries to the Clarks Fork Yellowstone River from Jack Creek to the Yellowstone River except the portion of West Fork of Rock Creek listed in (1)(b)(iii)(A) B-1

(A) West Fork of Rock Creek drainage to the Red Lodge water supply intake (approximately at latitude 45.1593, longitude -109.2779) A-1

(c) Yellowstone River drainage from the Billings water supply intake to the North Dakota state line excluding waters on the Crow Indian Reservation and the Northern Cheyenne Indian Reservation and including the Big Horn River drainage except the waters listed in (1)(c)(i) through (vii) C-3

(i) Yellowstone River mainstem B-3

(ii) Pryor Creek drainage outside the Crow Indian Reservation boundary B-1

(iii) Big Horn drainage above but excluding Williams Coulee near Hardin and excluding waters within the Crow Indian Reservation B-1

(iv) Big Horn River mainstem from the Crow Indian Reservation boundary to Yellowstone River B-2

(v) Tongue River (mainstem) from the western crossing of the Wyoming boundary and the Tongue River Reservoir to Prairie Dog Creek (approximately at latitude 45.2692, longitude -106.6243) B-2

(vi) Tongue River mainstem from Prairie Dog Creek to Yellowstone River B-3

(vii) Fox Creek drainage near Sidney B-2

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1988 MAR p. 1191, Eff. 6/10/88; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2017 MAR p. 602, Eff. 5/13/17.

Mont. Admin. R. 17.30.612 Water-Use Classifications--Little Missouri River Drainage--Belle Fourche Drainage

(1) The water-use classifications adopted for all waters in the Little Missouri and Belle Fourche drainages are ................................................................................................................................... C-3

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.613 Water-Use Classifications--Hudson Bay Drainage

The water-use classifications for the Hudson Bay drainage are:

(1) All waters outside Glacier National Park ............................................................. B-1

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.614 Water-Use Classifications--National Park, Wilderness and Primitive Area Waters

water-use classifications for all national park, wilderness and primitive area waters are as follows:

(1) All waters even if classifications listed in ARM 17.30.607 through 17.30.613 imply or state otherwise ............................................................................................................................................. A-1

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.615 Water-Use Classifications and Descriptions - Constructed Ditches, Seasonal and Semi-Permanent Lakes, and Ephemeral Streams

(1) The water-use classifications for waters in constructed irrigation ditches and drain ditches that are state waters as defined in 75-5-103 , MCA, and the water-use classification for waters in ephemeral streams and seasonal and semi-permanent lakes and ponds are as follows:

(a) waters in constructed irrigation and drain ditches that contain controlled flows of surface water and are de-watered during the non-irrigation season ............................................ D-1

(b) waters in constructed irrigation and drain ditches that contain controlled flows of surface water mixed with ground water ............................................................................................ D-2

(c) ephemeral streams including ephemeral streams with flows that are periodically augmented by discharges from point sources .................................................................. E-1

(d) ephemeral streams with flows that are augmented by continuous discharges from point sources ................................................................................................................................... E-2

(e) seasonal lakes and ponds ................................................................................ E-3

(f) semi-permanent lakes and ponds, not including reservoirs, that have an electrical conductivity (EC) less than 7,000 µS/cm ........................................................................... E-4

(g) semi-permanent lakes and ponds, not including reservoirs, that seasonally have an EC equal to or greater than 7,000 µS/cm ................................................................................ E-5

(h) streams with low or sporadic flow that, because of natural hydro-geomorphic and hydrologic conditions, are not able to support fish ............................................................ F-1

(2) Prior to reclassifying a specific water body classified in ARM 17.30.607 through 17.30.614 under one of the water-use classifications identified in (1) (a) through (h) and before the U.S. Environmental Protection Agency's approval of the water body's revised classification, a use attainability analysis must be conducted in accordance with 40 CFR 131.10(g) , (h) , and (j) .

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 2002 MAR p. 2196, Eff. 8/16/02; AMD, 2004 MAR p. 725, Eff. 4/9/04; AMD, 2006 MAR p. 528, Eff. 2/24/06.

Mont. Admin. R. 17.30.616 Water-Use Classification and Descriptions for Ponds and Reservoirs Constructed for the Disposal of Coal Bed Methane Water

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 2003 MAR p. 1274, Eff. 6/27/03; REP, 2012 MAR p. 2060, Eff. 10/12/12.

Mont. Admin. R. 17.30.617 Outstanding Resource Waters -- Designation

(1) All state surface waters located wholly within the boundaries of designated national parks or wilderness areas as of October 1, 1995, are outstanding resource waters (ORWs) . Other state waters may be designated an ORW by the department following the procedures in 75-5-316, MCA, subject to approval by the legislature.

History

Authorizing statute(s): 75-5-301, 75-5-316, MCA
Implementing statute(s): 75-5-316, MCA
History: NEW, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.618 Natural and Nonanthropogenic Water Quality Standards

(1) Named waterbodies, waterbody segments, or waterbodies within geographic regions listed below have natural or nonanthropogenic concentrations for one or more parameters that exceed the applicable standards. For these waterbodies, the standards specified in (2) supersede the otherwise applicable water quality standards found elsewhere in state law.

(2) No person may violate the numeric water quality standards identified below:

(a) Mainstem Yellowstone River Nonanthropogenic Standards. Water quality standards for human health for total recoverable arsenic (CASRN number 7440-38-2). Average arsenic concentrations during a calendar year may not exceed the standards, and downstream water quality and applicable beneficial uses shall continue to be maintained. The standards, specified by segment, are as follows:

(i) From the Montana/Wyoming border (44.9925, -110.5172) to the mouth of Mill Creek (45.4165, -110.6548): 28 µg/L;

(ii) From the mouth of Mill Creek (45.4165, -110.6548) to the mouth of the Boulder River (45.8530, -109.9247): 22 µg/L;

(iii) From the mouth of the Boulder River (45.8530, -109.9247) to the mouth of the Stillwater River (45.6399, -109.2829): 16 µg/L; and

(iv) From the mouth of the Stillwater River (45.6399, -109.2829) to the mouth of the Clarks Fork of the Yellowstone River (45.6510, -108.7145): 13 µg/L.

(3) Named waterbodies, waterbody segments, or waterbodies within geographic regions specified in (2) have no assimilative capacity for the applicable natural or nonanthropogenic standards. Therefore, the department may not grant a mixing zone under ARM Title 17, chapter 30, subchapter 5 for these waterbodies and the specified standards.

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-222, 75-5-306, MCA
History: NEW, 2020 MAR p. 1618, Eff. 8/29/20.

Mont. Admin. R. 17.30.619 Incorporations by Reference

(1) The department adopts and incorporates by reference the following state and federal requirements and procedures as part of Montana's surface water quality standards:

(a) Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" (September 2026 edition), which establishes numeric water quality standards for toxic, carcinogenic, bioconcentrating, radioactive, and harmful parameters and also establishes human health-based water quality standards for the following specific nutrients with toxic effects:

(i) nitrate;

(ii) nitrate + nitrite; and

(iii) nitrite;

(b) the Water Quality Standards Handbook, Second Edition, EPA-823-B-94-005a, August 1994, that sets forth procedures for development of site-specific criteria;

(d) 40 CFR 131.10(g), (h) and (j) (2000), which establishes criteria and guidelines for conducting a use attainability analysis;

(e) Department Circular DEQ-12A, entitled "Montana Base Numeric Nutrient Standards" (July 2014 edition), which establishes numeric water quality standards for total nitrogen and total phosphorus in surface waters; and

(f) the provision in ARM 17.30.1350(1) that authorizes compliance schedules contained in the Montana Pollutant Discharge Elimination System Permit regulations.

(2) If a court of competent jurisdiction declares 75-5-313, MCA, or any portion of that statute invalid, or if the United States Environmental Protection Agency disapproves 75-5-313, MCA, or any portion of that statute, under 30 CFR 131.21, or if rules adopted pursuant to 75-5-313(6) or (7), MCA, expire and general variances are not available, then (1)(e) and all references to DEQ-12A, base numeric nutrient standards and nutrient standards variances in ARM 17.30.201, 17.30.507, 17.30.516, 17.30.602, 17.30.622 through 17.30.629, 17.30.635, 17.30.702, and 17.30.715 are void, and the narrative water quality standards contained in ARM 17.30.637 are the standards for total nitrogen and total phosphorus in surface water, except for the Clark Fork River, for which the standards are the numeric standards in ARM 17.30.631.

(3) Copies of the materials listed in (1) may be obtained from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2002 MAR p. 2196, Eff. 8/16/02; AMD, 2003 MAR p. 217, Eff. 2/14/03; AMD, 2004 MAR p. 725, Eff. 4/9/04; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2008 MAR p. 946, Eff. 5/9/08; AMD, 2010 MAR p. 1796, Eff. 8/13/10; AMD, 2012 MAR p. 2060, Eff. 10/12/12; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2017 MAR p. 602, Eff. 5/13/17; AMD, 2019 MAR p. 826, Eff. 6/22/19; AMD, 2024 MAR p. 257, Eff. 2/10/24; AMD, 2026 MAR, Notice No. 2026-496, Eff. 9/26/26.

Mont. Admin. R. 17.30.620 Specific Surface Water Quality Standards--General

(1) Specific surface water quality standards, along with general provisions in ARM 17.30.635 through 17.30.637, 17.30.640, 17.30.641, 17.30.645, and 17.30.646, protect the beneficial water uses set forth in the water-use descriptions for the following classifications of water.

(2) Standards for Escherichia coli bacteria are based on a minimum of five samples obtained during separate 24-hour periods during any consecutive 30-day period analyzed by the most probable number or equivalent membrane filter methods.

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2006 MAR p. 528, Eff. 2/24/06.

Mont. Admin. R. 17.30.621 A-Closed Classification Standards

(1) Waters classified A-Closed are to be maintained suitable for drinking, culinary, and food processing purposes after simple disinfection. Water quality is to be maintained suitable for swimming, recreation, growth, and propagation of fishes and associated aquatic life, although access restrictions to protect public health may limit actual use of A-Closed waters for these uses.

(2) Public access and activities such as livestock grazing and timber harvest are to be controlled by the utility owner under conditions prescribed and orders issued by the department.

(3) No person may violate the following specific water quality standards for waters classified A-Closed:

(a) The geometric mean number of Escherichia coli bacteria may not exceed 32 colony forming units per 100 milliliters and 10 percent of the samples may not exceed 64 colony forming units per 100 milliliters during any 30-day period. Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b).

(b) No change from naturally occurring dissolved oxygen levels is allowed.

(d) No increase above naturally occurring turbidity is allowed except as permitted in 75-5-318, MCA.

(e) No increase above naturally occurring water temperature is allowed.

(f) No increases are allowed above naturally occurring concentrations of sediment or suspended sediment (except as permitted in 75-5-318, MCA), settleable solids, oils, or floating solids, which will or are likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, welfare, livestock, wild animals, birds, fish, or other wildlife.

(g) No increase in true color is allowed.

(h) No increases of carcinogenic, bioconcentrating, toxic or harmful parameters, pesticides, and organic and inorganic materials, including heavy metals, above naturally occurring concentrations, are allowed.

(i) No increase in radioactivity above natural background levels is allowed.

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1988 MAR p. 1191, Eff. 6/10/88; AMD, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2017 MAR p. 602, Eff. 5/13/17.

Mont. Admin. R. 17.30.622 A-1 Classification Standards

(1) Waters classified A-1 are to be maintained suitable for drinking, culinary and food processing purposes after conventional treatment for removal of naturally present impurities.

(2) Water quality must be maintained suitable for bathing, swimming, and recreation; growth and propagation of salmonid fishes and associated aquatic life, waterfowl and furbearers; and agricultural and industrial water supply.

(3) No person may violate the following specific water quality standards for waters classified A-1:

(a) The geometric mean number of Escherichia coli bacteria may not exceed 32 colony forming units per 100 milliliters and 10 percent of the samples may not exceed 64 colony forming units per 100 milliliters during any 30-day period if resulting from domestic sewage. Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b).

(b) Dissolved oxygen concentration must not be reduced below the applicable standards given in department Circular DEQ-7.

(c) Induced variation of hydrogen ion concentration (pH) within the range of 6.5 to 8.5 must be less than 0.5 pH unit. Natural pH outside this range must be maintained without change. Natural pH above 7.0 must be maintained above 7.0.

(d) No increase above naturally occurring turbidity or suspended sediment is allowed except as permitted in 75-5-318, MCA.

(g) True color must not be increased more than two color units above naturally occurring color.

(h) Concentrations of carcinogenic, bioconcentrating, toxic, radioactive, nutrient, or harmful parameters may not exceed the applicable standards set forth in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A.

(i) Dischargers issued permits under ARM Title 17, chapter 30, subchapter 13, shall conform with ARM Title 17, chapter 30, subchapter 7, the nondegradation rules, and may not cause receiving water concentrations to exceed the applicable standards contained in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A when stream flows equal or exceed the design flows specified in ARM 17.30.635(2).

(j) If site-specific criteria for aquatic life are adopted using the procedures given in 75-5-310, MCA, the criteria shall be used as water quality standards for the affected waters and as the basis for permit limits instead of the applicable standards in Department Circular DEQ-7.

(k) In accordance with 75-5-306(1), MCA, it is not necessary that wastes be treated to a purer condition than the natural condition of the receiving water as long as the minimum treatment requirements, adopted pursuant to 75-5-305, MCA, are met.

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1984 MAR p. 1802, Eff. 12/14/84; AMD, 1988 MAR p. 1191, Eff. 6/10/88; AMD, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 1999 MAR p. 94, Eff. 1/15/99; AMD, 1999 MAR p. 2257, Eff. 10/8/99; AMD, 1999 MAR p. 2275, Eff. 10/8/99; AMD, 2002 MAR p. 1089, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2017 MAR p. 602, Eff. 5/13/17.

Mont. Admin. R. 17.30.623 B-1 Classification Standards

(1) Waters classified B-1 are to be maintained suitable for drinking, culinary, and food processing purposes, after conventional treatment; bathing, swimming, and recreation; growth and propagation of salmonid fishes and associated aquatic life, waterfowl and furbearers; and agricultural and industrial water supply.

(2) No person may violate the following specific water quality standards for waters classified B-1:

(a) Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b). The water quality standard for Escherichia coli bacteria (E-coli) varies according to season, as follows:

(i) from April 1 through October 31, the geometric mean number of E-coli may not exceed 126 colony forming units per 100 milliliters and 10 percent of the total samples may not exceed 252 colony forming units per 100 milliliters during any 30-day period; and

(ii) from November 1 through March 31, the geometric mean number of E-coli may not exceed 630 colony forming units per 100 milliliters and 10 percent of the samples may not exceed 1,260 colony forming units per 100 milliliters during any 30-day period.

(b) Dissolved oxygen concentration must not be reduced below the applicable standards given in department Circular DEQ-7.

(d) The maximum allowable increase above naturally occurring turbidity is five nephelometric turbidity units except as permitted in 75-5-318, MCA.

(e) A 1ºF maximum increase above naturally occurring water temperature is allowed within the range of 32ºF to 66ºF; within the naturally occurring range of 66ºF to 66.5ºF, no discharge is allowed which will cause the water temperature to exceed 67ºF; and where the naturally occurring water temperature is 66.5ºF or greater, the maximum allowable increase in water temperature is 0.5ºF. A 2ºF per-hour maximum decrease below naturally occurring water temperature is allowed when the water temperature is above 55ºF. A 2ºF maximum decrease below naturally occurring water temperature is allowed within the range of 55ºF to 32ºF. This applies to all waters in the state classified B-1 except for Prickly Pear Creek from McClellan Creek to the Montana Highway No. 433 crossing where a 2ºF maximum increase above naturally occurring water temperature is allowed within the range of 32ºF to 65ºF; within the naturally occurring range of 65ºF to 66.5ºF, no discharge is allowed which will cause the water temperature to exceed 67ºF; and where the naturally occurring water temperature is 66.5ºF or greater, the maximum allowable increase in water temperature is 0.5ºF.

(g) True color must not be increased more than five color units above naturally occurring color.

(i) Dischargers issued permits under ARM Title 17, chapter 30, subchapter 13, shall conform with ARM Title 17, chapter 30, subchapter 7, the nondegradation rules, and may not cause receiving water concentrations to exceed the applicable standards specified in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A when stream flows equal or exceed the design flows specified in ARM 17.30.635(2).

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, 75-5-313, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1982 MAR p. 1746, Eff. 10/1/82; AMD, 1984 MAR p. 1802, Eff. 12/14/84; AMD, 1988 MAR p. 1191, Eff. 6/10/88; AMD, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 1999 MAR p. 94, Eff. 1/15/99; AMD, 1999 MAR p. 2257, Eff. 10/8/99; AMD, 1999 MAR p. 2275, Eff. 10/8/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2017 MAR p. 602, Eff. 5/13/17.

Mont. Admin. R. 17.30.624 B-2 Classification Standards

(1) Waters classified B-2 are to be maintained suitable for drinking, culinary, and food processing purposes, after conventional treatment; bathing, swimming, and recreation; growth and marginal propagation of salmonid fishes and associated aquatic life, waterfowl and furbearers; and agricultural and industrial water supply.

(2) No person may violate the following specific water quality standards for waters classified B-2:

(b) Dissolved oxygen concentration must not be reduced below the applicable standards given in department Circular DEQ-7.

(c) Induced variation of hydrogen ion concentration (pH) within the range of 6.5 to 9.0 must be less than 0.5 pH unit. Natural pH outside this range must be maintained without change. Natural pH above 7.0 must be maintained above 7.0.

(d) The maximum allowable increase above naturally occurring turbidity is 10 nephelometric turbidity units except as permitted in 75-5-318, MCA.

(f) No increases are allowed above naturally occurring concentrations of sediment or suspended sediment (except as permitted in 75-5-318, MCA), settleable solids, oils, or floating solids which will or are likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, welfare, livestock, wild animals, birds, fish, or other wildlife.

(g) True color must not be increased more than five color units above naturally occurring color.

(i) Dischargers issued permits under ARM Title 17, chapter 30, subchapter 13, shall conform with ARM Title 17, chapter 30, subchapter 7, the nondegradation rules, and may not cause receiving water concentrations to exceed the applicable standards specified in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A when stream flows equal or exceed the design flows specified in ARM 17.30.635(2).

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, 75-5-313, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1982 MAR p. 1746, Eff. 10/1/82; AMD, 1984 MAR p. 1802, Eff. 12/14/84; AMD, 1988 MAR p. 1191, Eff. 6/10/88; AMD, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 1999 MAR p. 94, Eff. 1/15/99; AMD, 1999 MAR p. 2257, Eff. 10/8/99; AMD, 1999 MAR p. 2275, Eff. 10/8/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2017 MAR p. 602, Eff. 5/13/17.

Mont. Admin. R. 17.30.625 B-3 Classification Standards

(1) Waters classified B-3 are to be maintained suitable for drinking, culinary, and food processing purposes, after conventional treatment; bathing, swimming, and recreation; growth and propagation of non-salmonid fishes and associated aquatic life, waterfowl and furbearers; and agricultural and industrial water supply.

(2) No person may violate the following specific water quality standards for waters classified B-3:

(b) Dissolved oxygen concentration must not be reduced below the applicable standards specified in department Circular DEQ-7.

(d) The maximum allowable increase above naturally occurring turbidity is 10 nephelometric turbidity units except as permitted in 75-5-318, MCA.

(e) A 3ºF maximum increase above naturally occurring water temperature is allowed within the range of 32ºF to 77ºF; within the naturally occurring range of 77ºF to 79.5ºF, no thermal discharge is allowed which will cause the water temperature to exceed 80ºF; and where the naturally occurring water temperature is 79.5ºF or greater, the maximum allowable increase in water temperature is 0.5ºF. A 2ºF per-hour maximum decrease below naturally occurring water temperature is allowed when the water temperature is above 55ºF. A 2ºF maximum decrease below naturally occurring water temperature is allowed within the range of 55ºF to 32ºF.

(i) These allowable increases apply to all waters in the state classified B-3, except for the mainstem of the Yellowstone River from the Billings water supply intake to the water diversion at Intake, where a 3ºF maximum increase above naturally occurring water temperature is allowed within the range of 32ºF to 79ºF; within the range of 79ºF to 81.5ºF, no thermal discharge is allowed which will cause the water temperature to exceed 82ºF; and where the naturally occurring water temperature is 81.5ºF or greater, the maximum allowable increase in water temperature is 0.5ºF.

(ii) From the water diversion at Intake to the North Dakota state line, a 3ºF maximum increase above naturally occurring water temperature is allowed within the range of 32ºF to 82ºF; within the range of 82ºF to 84.5ºF, no thermal discharge is allowed which will cause the water temperature to exceed 85ºF; and where the naturally occurring water temperature is 84.5ºF or greater, the maximum allowable increase in water temperature is 0.5ºF.

(g) True color must not be increased more than five color units above naturally occurring color.

(i) Dischargers issued permits under ARM Title 17, chapter 30, subchapter 13, shall conform with ARM Title 17, chapter 30, subchapter 7, the nondegradation rules, and may not cause receiving water concentrations to exceed the applicable standards specified in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A when stream flows equal or exceed the design flows specified in ARM 17.30.635(2).

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, 75-5-313, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1982 MAR p. 1746, Eff. 10/1/82; AMD, 1984 MAR p. 1802, Eff. 12/14/84; AMD, 1988 MAR p. 1191, Eff. 6/10/88; AMD, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 1999 MAR p. 94, Eff. 1/15/99; AMD, 1999 MAR p. 2257, Eff. 10/8/99; AMD, 1999 MAR p. 2275, Eff. 10/8/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2017 MAR p. 602, Eff. 5/13/17.

Mont. Admin. R. 17.30.626 C-1 Classification Standards

(1) Waters classified C-1 are to be maintained suitable for bathing, swimming, and recreation; growth and propagation of salmonid fishes and associated aquatic life, waterfowl and furbearers; and agricultural and industrial water supply.

(2) No person may violate the following specific water quality standards for waters classified C-1:

(b) Dissolved oxygen concentration must not be reduced below the applicable standards given in department Circular DEQ-7.

(d) The maximum allowable increase above naturally occurring turbidity is five nephelometric turbidity units except as permitted in 75-5-318, MCA.

(g) True color must not be increased more than five color units above naturally occurring color.

(h) Concentrations of carcinogenic, bioconcentrating, toxic, radioactive, nutrient, or harmful parameters may not exceed the applicable standards specified in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A.

(i) Dischargers issued permits under ARM Title 17, chapter 30, subchapter 13, shall conform with ARM Title 17, chapter 30, subchapter 7, the nondegradation rules, and may not cause receiving water concentrations to exceed the applicable standards specified in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A when stream flows equal or exceed the design flows specified in ARM 17.30.635(2).

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, 75-5-313, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1982 MAR p. 1746, Eff. 10/1/82; AMD, 1984 MAR p. 1802, Eff. 12/14/84; AMD, 1988 MAR p. 1191, Eff. 6/10/88; AMD, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 1999 MAR p. 94, Eff. 1/15/99; AMD, 1999 MAR p. 2257, Eff. 10/8/99; AMD, 1999 MAR p. 2275, Eff. 10/8/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2017 MAR p. 602, Eff. 5/13/17.

Mont. Admin. R. 17.30.627 C-2 Classification Standards

(1) Waters classified C-2 are to be maintained suitable for bathing, swimming, and recreation; growth and marginal propagation of salmonid fishes and associated aquatic life, waterfowl and furbearers; and agricultural and industrial water supply.

(2) No person may violate the following specific water quality standards for waters classified C-2:

(b) Dissolved oxygen concentration must not be reduced below the applicable standards given in department Circular DEQ-7. These levels apply to all waters in the state classified C-2 except for Ashley Creek below the bridge crossing on Airport Road where the dissolved oxygen concentrations may not be reduced below five mg/l from October 1 through June 1, nor below three mg/l from June 2 through September 30.

(d) The maximum allowable increase above naturally occurring turbidity is 10 nephelometric turbidity units except as permitted in 75-5-318, MCA.

(f) No increases are allowed above naturally occurring concentrations of sediment or suspended sediment (except as permitted in 75-5-318, MCA, settleable solids, oils, or floating solids, which will or are likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, welfare, livestock, wild animals, birds, fish, or other wildlife.

(g) True color must not be increased more than five color units above naturally occurring color.

(i) Dischargers issued permits under ARM Title 17, chapter 30, subchapter 13, shall conform with ARM Title 17, chapter 30, subchapter 7, the nondegradation rules, and may not cause receiving water concentrations to exceed the applicable standards specified in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A when stream flows equal or exceed the design flows specified in ARM 17.30.635(2).

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, 75-5-313, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1982 MAR p. 1746, Eff. 10/1/82; AMD, 1984 MAR p. 1802, Eff. 12/14/84; AMD, 1988 MAR p. 1191, Eff. 6/10/88; AMD, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 1999 MAR p. 94, Eff. 1/15/99; AMD, 1999 MAR p. 2257, Eff. 10/8/99; AMD, 1999 MAR p. 2275, Eff. 10/8/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2017 MAR p. 602, Eff. 5/13/17.

Mont. Admin. R. 17.30.628 I Classification Standards

(1) The goal of the state of Montana is to have these waters fully support the following uses: drinking, culinary, and food processing purposes after conventional treatment; bathing, swimming, and recreation; growth and propagation of fishes and associated aquatic life, waterfowl, and furbearers; and agricultural and industrial water supply. An analysis will be performed for each of these waters during each triennial standards review period to determine the factors preventing or limiting attainment of the designated uses listed herein. Based on these analyses, the specific standards listed below will be adjusted to reflect any improvements which have occurred in water quality as a result of water quality control of nonpoint-source pollution.

(2) No person may violate the following specific water quality standards for waters classified I:

(b) Dissolved oxygen concentration must not be reduced below the applicable standards given in department Circular DEQ-7.

(d) Except as permitted in 75-5-318, MCA, no increase in naturally occurring turbidity is allowed which will or is likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, welfare, livestock, wild animals, birds, fish, or other wildlife.

(e) No increase in naturally occurring temperature is allowed which will or is likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, welfare, livestock, wild animals, birds, fish, or other wildlife.

(f) No increases are allowed above naturally occurring concentrations of sediment or suspended sediment (except as permitted in 75-5-318, MCA), and settleable solids, oils, or floating solids, which will or are likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, welfare, livestock, wild animals, birds, fish, or other wildlife.

(g) No increase in naturally occurring true color is allowed which will or is likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, welfare, livestock, wild animals, birds, fish, or other wildlife.

(h) No discharges of toxic, carcinogenic, or harmful parameters may commence or continue which lower, or are likely to lower, the overall water quality of these waters.

(i) As the quality of these waters improves due to control of nonpoint sources, point-source dischargers will be required to improve the quality of their discharges following the MPDES rules (ARM Title 17, chapter 30, subchapter 13).

(j) Beneficial uses are considered supported when the concentrations of toxic, carcinogenic, nutrient or harmful parameters in these waters do not exceed the applicable standards specified in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A when stream flows equal or exceed the flows specified in ARM 17.30.635(2) or, alternatively, for aquatic life when site-specific criteria are adopted using the procedures given in 75-5-310, MCA. The limits shall be used as water quality standards for the affected waters and as the basis for permit limits instead of the applicable standards in Department Circular DEQ-7.

(k) Limits for toxic, carcinogenic, or harmful parameters in new discharge permits issued pursuant to the MPDES rules (ARM Title 17, chapter 30, subchapter 13) are the larger of the applicable standards specified in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A, site-specific standards, or one-half of the mean in-stream concentrations immediately upstream of the discharge point.

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, 75-5-313, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1982 MAR p. 1746, Eff. 10/1/82; AMD, 1988 MAR p. 1191, Eff. 6/10/88; AMD, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 1999 MAR p. 94, Eff. 1/15/99; AMD, 1999 MAR p. 2257, Eff. 10/8/99; AMD, 1999 MAR p. 2275, Eff. 10/8/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2017 MAR p. 602, Eff. 5/13/17.

Mont. Admin. R. 17.30.629 C-3 Classification Standards

(1) Waters classified C-3 are to be maintained suitable for bathing, swimming, and recreation, and growth and propagation of non-salmonid fishes and associated aquatic life, waterfowl, and furbearers. The quality of these waters is naturally marginal for drinking, culinary, and food processing purposes, agriculture, and industrial water supply.

(2) No person may violate the following specific water quality standards for waters classified C-3:

(b) Dissolved oxygen concentration must not be reduced below the applicable standards specified in department Circular DEQ-7.

(d) The maximum allowable increase above naturally occurring turbidity is 10 nephelometric turbidity units, except as permitted in 75-5-318, MCA.

(e) A 3ºF maximum increase above naturally occurring water temperature is allowed within the range of 32ºF to 77ºF; within the range of 77ºF to 79.5ºF, no thermal discharge is allowed which will cause the water temperature to exceed 80ºF; and where the naturally occurring water temperature is 79.5ºF or greater, the maximum allowable increase in water temperature is 0.5ºF. A 2ºF per-hour maximum decrease below naturally occurring water temperature is allowed when the water temperature is above 55ºF. A 2ºF maximum decrease below naturally occurring water temperature is allowed within the range of 55ºF to 32ºF.

(f) No increases are allowed above naturally occurring concentrations of sediment or suspended sediment (except as permitted in 75-5-318, MCA), settleable solids, oils or floating solids, which will or are likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, welfare, livestock, wild animals, birds, fish, or other wildlife.

(g) True color must not be increased more than five color units above naturally occurring color.

(i) Dischargers issued permits under ARM Title 17, chapter 30, subchapter 13, shall conform with ARM Title 17, chapter 30, subchapter 7, the nondegradation rules, and may not cause receiving water concentrations to exceed the applicable standards specified in Department Circular DEQ-7 and, unless a nutrient standards variance has been granted, Department Circular DEQ-12A when stream flows equal or exceed the design flows specified in ARM 17.30.635(2).

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, 75-5-313, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1982 MAR p. 1746, Eff. 10/1/82; AMD, 1984 MAR p. 1802, Eff. 12/14/84; AMD, 1988 MAR p. 1191, Eff. 6/10/88; AMD, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 1999 MAR p. 94, Eff. 1/15/99; AMD, 1999 MAR p. 2257, Eff. 10/8/99; AMD, 1999 MAR p. 2275, Eff. 10/8/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2012 MAR p. 2060, Eff. 10/12/12; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2017 MAR p. 602, Eff. 5/13/17.

Mont. Admin. R. 17.30.630 Temporary Water Quality Standards

(1) Following are the temporary water quality standards and related provisions for New World Mining District:

(a) The goal of the state of Montana is to have these waters support the uses listed for waters classified B-1 at ARM 17.30.623(1). The standards for the parameters listed in this rule temporarily modify the specific standards for those parameters provided in ARM 17.30.623 for each of the water bodies listed below, until the temporary standards expire or are terminated by the department. The standards for parameters not listed in this rule are the specific standards listed in ARM 17.30.623. The existing uses of the water bodies listed below must be maintained during the period that these temporary standards are in effect. No increase from existing conditions for any of the parameters that have been temporarily modified (no decrease for pH) is allowed at any point in the affected stream segments. The numerical standards for specific parameters listed below apply only at the downstream end of the stream segment. The requirements of ARM 17.30.623 apply to the waters listed in this rule except where those requirements conflict with the temporary standards listed below.

(b) The temporary standards for these stream segments are effective June 4, 1999.

(c) Temporary water quality standards for Daisy Creek, from its headwaters to its confluence with the Stillwater River in the Yellowstone River Drainage, are as follows. No increase from existing conditions (no decrease for pH) is allowed at any point in Daisy Creek for any of the following parameters. These standards are in effect until June 4, 2019. Metals standards are in terms of micrograms per liter (µg/liter) total recoverable concentrations and pH standards are in standard units (su).

(d) Temporary water quality standards for a headwater portion of the Stillwater River, a tributary of the Yellowstone River, from Daisy Creek to the Absaroka-Beartooth wilderness boundary, are as follows. No increase from existing conditions (no decrease for pH) is allowed at any point in this reach of the Stillwater River for any of the following parameters. These standards are in effect until June 4, 2019. Metals standards are in terms of micrograms per liter (µg/liter) total recoverable concentrations and pH standards are in standard units (su).

(e) Temporary water quality standards for Fisher Creek, from its headwaters to its confluence with Lady of the Lake Creek, the headwaters of the Clark's Fork of the Yellowstone River, are as follows. No increase from existing conditions (no decrease for pH) is allowed at any point in Fisher Creek for any of the following parameters. These standards are in effect until June 4, 2019. Metals standards are in terms of micrograms per liter (µg/liter) total recoverable concentrations and pH standards are in standard units (su).

History

Authorizing statute(s): 75-5-201, 75-5-312, MCA
Implementing statute(s): 75-5-312, MCA
History: NEW, 1999 MAR p. 1218, Eff. 6/4/99; AMD, 2000 MAR p. 1317, Eff. 5/26/00; AMD, 2006 MAR p. 3072, Eff. 12/22/06; AMD, 2014 MAR p. 681, Eff. 4/11/14; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.631 Numeric Algal Biomass and Nutrient Standards

(1) No person may violate the numeric water quality standards identified below.

(2) The numeric nutrient and standing crop of benthic algae water quality standards for the mainstem Clark Fork River from below the Warm Springs Creek confluence (N46º11'17", W112º46'03") to the confluence with the Flathead River (N47º21'45", W114º46'43") are as follows:

(a) In the mainstem Clark Fork River from below the Warm Springs Creek confluence (N46º11'17", W112º46'03") to the confluence with the Blackfoot River (N46º52'19", W113º53'35") the numeric water quality standards for Total Nitrogen, Total Phosphorus, and benthic algal chlorophyll a, applicable from June 21 to September 21, are as follows:

(i) Parameter | Concentration Total Phosphorus as P | 20 µg/L Total Nitrogen as N | 300 µg/L

(ii) Parameter | Density (Summer mean) - Benthic algal chlorophyll a | 100 mg/square meter (Maximum) - Benthic algal chlorophyll a | 150 mg/square meter

(b) In the Clark Fork River from the confluence with the Blackfoot River (N46º52'19", W113º53'35") to the confluence with the Flathead River (N47º21'45", W114º46'43") the numeric water quality standards for Total Nitrogen, Total Phosphorus, and benthic algal chlorophyll a, applicable from June 21 to September 21, are as follows:

(i) Parameter | Concentration Total Phosphorus as P | 39 µg/L Total Nitrogen as N | 300 µg/L

(ii) Parameter | Density (Summer mean) - Benthic algal chlorophyll a | 100 mg/square meter (Maximum) - Benthic algal chlorophyll a | 150 mg/square meter

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 2002 MAR p. 2196, Eff. 8/16/02.

Mont. Admin. R. 17.30.632 Selenium Standards for Lake Koocanusa and the Kootenai River

(1) For Lake Koocanusa and the Kootenai River mainstem, the standards specified in (6) and (7) supersede the otherwise applicable water quality standards found elsewhere in state law.

(2) Numeric selenium standards for Lake Koocanusa and the Kootenai River mainstem from the US-Canada international boundary to the Montana-Idaho border are expressed as both fish tissue and water column concentrations. When the aquatic ecosystem is in steady state and selenium data is available for both fish tissue and the water column, the fish tissue standards supersede the water column standard. When the aquatic ecosystem is in non-steady state, both the fish tissue and water column standards apply. The numeric selenium standards apply to the lake, to the river, or to both, as provided in this rule.

(3) As of December 25, 2020, Lake Koocanusa and the Kootenai River aquatic ecosystems are in non-steady state. The department will reassess the status of these aquatic systems triennially and amend this rule to reflect any change.

(4) The water column standards are derived from modeling selenium bioaccumulation in fish tissue and reflect criteria that protect the aquatic life beneficial use. Permit conditions and limits developed from the water column standards comply with the fish tissue standards.

(5) No person may violate the numeric water quality standards in (6) and (7).

(6) Fish tissue standards will be instantaneous measurements not to be exceeded. Fish tissue sample results shall be reported as a single value representing an average of individual fish samples or a composite sample, each option requiring a minimum number of five individuals from the same species. Fish tissue standards are applicable to tissues of fish in Lake Koocanusa from the US-Canada international boundary to the Libby Dam and in the mainstem Kootenai River from the outflow below the Libby Dam to the Montana-Idaho border. Egg/ovary tissue standards supersede any muscle or whole-body standards, as well as the water column standards in (7), when fish egg/ovary samples are available and when the aquatic ecosystem is in steady state. When fish egg/ovary samples are unavailable, and the aquatic ecosystem is in steady state, fish muscle or whole-body standards supersede the water column standards in (7).

Fish Tissue | Selenium Concentration Eggs/Ovaries | 15.1 mg/kg dry weight (dw) Muscle | 11.3 mg/kg dw Whole Body | 8.5 mg/kg dw

(7) Water column standards are the numeric standards for total dissolved selenium computed as a 30-day average, and shall not be exceeded more than once in three years, on average.

(a) Lake Koocanusa from the US-Canada international boundary to the Libby Dam: 0.8 µg/L.

(b) Kootenai River mainstem from the outflow below the Libby Dam to the Montana-Idaho border: 3.1 µg/L.

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 2020 MAR p. 2336, Eff. 12/25/20.

Mont. Admin. R. 17.30.635 General Treatment Standards

(1) The degree of waste treatment required to restore and maintain the quality of surface waters shall be based on the surface water quality standards and the following:

(a) the state's policy of nondegradation of existing high water quality as described in 75-5-303, MCA;

(b) present and anticipated beneficial uses of the receiving water;

(d) the quantity and quality of the sewage, industrial waste or other waste to be treated; and

(e) the presence or absence of other sources of pollution on the same watershed.

(2) For design of disposal systems, stream flow dilution requirements must be based on the minimum consecutive seven-day average flow which may be expected to occur on the average of once in ten years. When dilution flows are less than the above design flow at a point discharge, the discharge is to be governed by the permit conditions developed for the discharge through the waste discharge permit program. If the flow records on an affected surface water are insufficient to calculate a ten-year seven-day low flow, the department shall determine an acceptable stream flow for disposal system design. For total nitrogen and total phosphorus, the stream flow dilution requirements must be based on the seasonal 14Q5, which is the lowest average 14 consecutive day low flow, occurring from July through October, with an average recurrence frequency of once in five years.

(3) Where the department has determined that the disposal of sewage may adversely affect the quality of a lake or other state waters, the department may require additional information and data concerning such possible effects. Upon review of such information the department may impose specific requirements for sewage treatment and disposal as are necessary and appropriate to assure compliance with the Water Quality Act, Title 75, chapter 5, MCA.

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1982 MAR p. 1746, Eff. 10/1/82; AMD, 1984 MAR p. 1802, Eff. 12/14/84; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2012 MAR p. 2060, Eff. 10/12/12; AMD, 2014 MAR p. 1815, Eff. 8/8/14.

Mont. Admin. R. 17.30.636 General Operation Standards

(1) Owners and operators of water impoundments that cause conditions harmful to prescribed beneficial uses of state water shall demonstrate to the satisfaction of the department that continued operations will be done in the best practicable manner to minimize harmful effects. New water impoundments must be designed to provide temperature variations in discharging water that maintain or enhance the existing propagating fishery and associated aquatic life. As a guide, the following temperature variations are recommended: continuously less than 40ºF during the months of January and February, and continuously greater than 44ºF during the months of June through September.

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; EMERG, AMD, 1997 MAR p. 1588, Eff. 9/9/97.

Mont. Admin. R. 17.30.637 General Prohibitions

(1) State surface waters must be free from substances attributable to municipal, industrial, agricultural practices or other discharges that will:

(a) settle to form objectionable sludge deposits or emulsions beneath the surface of the water or upon adjoining shorelines;

(b) create floating debris, scum, a visible oil film (or be present in concentrations at or in excess of 10 milligrams per liter), or globules of grease or other floating materials;

(c) produce odors, colors, or other conditions as to which create a nuisance or render undesirable tastes to fish flesh or make fish inedible;

(d) create concentrations or combinations of materials which are toxic or harmful to human, animal, plant, or aquatic life; and

(e) create conditions which produce undesirable aquatic life.

(2) No wastes may be discharged and no activities conducted such that the wastes or activities, either alone or in combination with other wastes or activities, will violate, or can reasonably be expected to violate, any of the standards.

(3) Until such time as minimum stream flows are established for dewatered streams, the minimum treatment requirements for discharges to dewatered receiving streams must be no less than the minimum treatment requirements set forth in ARM 17.30.1203.

(4) Treatment requirements for discharges to ephemeral streams must be no less than the minimum treatment requirements set forth in ARM 17.30.1203. Ephemeral streams are subject to ARM 17.30.635 through 17.30.637, 17.30.640, 17.30.641, 17.30.645, and 17.30.646 but not to the specific water quality standards of ARM 17.30.620 through 17.30.629.

(5) Pollution resulting from storm drainage, storm sewer discharges, and non-point sources, including irrigation practices, road building, construction, logging practices, over-grazing, and other practices must be eliminated or minimized as ordered by the department.

(6) Application of pesticides in or adjacent to state surface waters must be in compliance with the labeled direction, and in accordance with provisions of the Montana Pesticides Act (Title 80, chapter 8, MCA) and the Federal Environmental Pesticides Control Act (7 USC 136, et seq., (Supp. 1973) as amended). Excess pesticides and pesticide containers must not be disposed of in a manner or in a location where they are likely to pollute surface waters.

(7) No pollutants may be discharged and no activities may be conducted which, either alone or in combination with other wastes or activities, result in the total dissolved gas pressure relative to the water surface exceeding 110% of saturation.

History

Authorizing statute(s): 75-5-201, 75-5-301, 75-6-112, MCA
Implementing statute(s): 75-5-301, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1988 MAR p. 1191, Eff. 6/10/88; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 1999 MAR p. 2256, Eff. 10/8/99; AMD, 2012 MAR p. 2060, Eff. 10/12/12.

Mont. Admin. R. 17.30.638 Outstanding Resource Waters -- Prohibitions

(1) Any new or increased point source discharge that would result in a permanent change in water quality is prohibited.

History

Authorizing statute(s): 75-5-301, 75-5-316, MCA
Implementing statute(s): 75-5-316, MCA
History: NEW, 2006 MAR p. 528, Eff. 2/24/06.

Mont. Admin. R. 17.30.640 Mixing Zone

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1992 MAR p. 2064, Eff. 9/11/92; TRANS, from DHES, 1996 MAR p. 1499; REP, 1996 MAR p. 1854, Eff. 7/4/96.

Mont. Admin. R. 17.30.641 Sampling Methods

(1) Water quality monitoring, including methods of sample collection, preservation, and analysis used to determine compliance with the standards must be in accordance with 40 CFR Part 136 (July 1, 2015) or other method allowed by the department.

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2008 MAR p. 946, Eff. 5/9/08; AMD, 2017 MAR p. 602, Eff. 5/13/17.

Mont. Admin. R. 17.30.645 Radiological Criteria

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1988 MAR p. 1191, Eff. 6/10/88; AMD, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; REP, 2016 MAR p. 517, Eff. 3/19/16.

Mont. Admin. R. 17.30.646 Bioassays

(1) Bioassay tolerance concentrations must be determined using the latest available research results for the materials, by bioassay tests procedures for simulating actual stream conditions as set forth in 40 CFR Part 136 (July 1, 2015). Any bioassay studies made must be made using a representative sensitive local species and life stages of economic or ecological importance, except that other species whose relative sensitivity is known may be used when there is difficulty in providing the more sensitive species in sufficient numbers or when such species are unsatisfactory for routine confined bioassays. All bioassay methods and species selections must be approved by the department.

History

Authorizing statute(s): 75-5-201, 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 9/5/74; AMD, 1980 MAR p. 2252, Eff. 8/1/80; AMD, 1988 MAR p. 1191, Eff. 6/10/88; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2008 MAR p. 946, Eff. 5/9/08; AMD, 2017 MAR p. 602, Eff. 5/13/17.

Mont. Admin. R. 17.30.650 D-1 Classification Standards

(1) Waters classified D-1 are to be maintained suitable for agricultural purposes and secondary contact recreation.

(2) No person may violate the following specific water quality standards for waters classified D-1:

(a) the designated uses of a receiving water body under a different classification must be fully maintained;

(b) the geometric mean number of Escherichia coli bacteria may not exceed 630 colony forming units per 100 milliliters and 10 percent of the samples may not exceed 1,260 colony forming units per 100 milliliters during any 30-day period. Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b).

(3) The narrative standards in ARM 17.30.637(1)(d) and (2) that pertain to aquatic life do not apply.

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 2002 MAR p. 2196, Eff. 8/16/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2017 MAR p. 602, Eff. 5/13/17.

Mont. Admin. R. 17.30.651 D-2 Classification Standards

(1) Waters classified D-2 are to be maintained suitable for agricultural purposes and secondary contact recreation. Because of conditions resulting from flow regulation, maintenance of the ditch or geomorphological and riparian habitat conditions, the quality of these waters is marginally suitable for aquatic life.

(2) No person may violate the following specific water quality standards for waters classified D-2:

(a) the aquatic life standards for priority pollutants listed in DEQ-7;

(b) the aquatic life standards for ammonia and other non-priority pollutants listed in DEQ-7, unless those standards are modified or removed based upon a use attainability analysis developed for a specific water body;

(d) the geometric mean number of Escherichia coli bacteria may not exceed 630 colony forming units per 100 milliliters and 10 percent of the samples may not exceed 1,260 colony forming units per 100 milliliters during any 30-day period. Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b).

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 2002 MAR p. 2196, Eff. 8/16/02; AMD, 2004 MAR p. 725, Eff. 4/9/04; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2017 MAR p. 602, Eff. 5/13/17.

Mont. Admin. R. 17.30.652 E-1 Classification Standards

(1) Waters classified E-1 are to be maintained suitable for agricultural purposes, secondary contact recreation and wildlife.

(2) No person may violate the following specific water quality standards for waters classified E-1:

(a) the designated uses of a receiving water body under a different classification must be fully maintained;

(3) The narrative standards in ARM 17.30.637(1)(d) and (2) that pertain to aquatic life do not apply.

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 2002 MAR p. 2196, Eff. 8/16/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2017 MAR p. 602, Eff. 5/13/17.

Mont. Admin. R. 17.30.653 E-2 Classification Standards

(1) Waters classified E-2 are to be maintained suitable for agricultural purposes, secondary contact recreation, and wildlife. Because of habitat, low flow, hydro-geomorphic and other physical conditions these waters are marginally suitable for aquatic life.

(2) No person may violate the following specific water quality standards for waters classified E-2:

(a) the aquatic life standards for priority pollutants listed in DEQ-7;

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 2002 MAR p. 2196, Eff. 8/16/02; AMD, 2004 MAR p. 725, Eff. 4/9/04; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2017 MAR p. 602, Eff. 5/13/17.

Mont. Admin. R. 17.30.654 E-3 Classification Standards

(1) Waters classified E-3 are to be maintained suitable for agricultural purposes, secondary contact recreation, and wildlife.

(2) No person may violate the following specific water quality standards for waters classified E-3:

(a) the geometric mean number of Escherichia coli bacteria may not exceed 630 colony forming units per 100 milliliters and 10 percent of the samples may not exceed 1,260 colony forming units per 100 milliliters during any 30-day period. Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b); and

(b) the designated uses of a receiving water body under a different classification must be fully maintained.

(3) The narrative standards in ARM 17.30.637(1)(d) and (2) that pertain to aquatic life do not apply.

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 2002 MAR p. 2196, Eff. 8/16/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2017 MAR p. 602, Eff. 5/13/17.

Mont. Admin. R. 17.30.655 E-4 Classification Standards

(1) Waters classified E-4 are to be maintained suitable for aquatic life, agricultural purposes, secondary contact recreation, and wildlife.

(2) No person may violate the following specific water quality standards for waters classified E-4:

(a) the acute and chronic aquatic life standards in DEQ-7 apply;

(b) the designated uses of a receiving water body under a different classification must be fully maintained;

(c) the geometric mean number of Escherichia coli bacteria may not exceed 630 colony forming units per 100 milliliters and 10 percent of the samples may not exceed 1,260 colony forming units per 100 milliliters during any 30-day period. Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b).

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 2002 MAR p. 2196, Eff. 8/16/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2017 MAR p. 602, Eff. 5/13/17.

Mont. Admin. R. 17.30.656 E-5 Classification Standards

(1) Waters classified E-5 are to be maintained suitable for agricultural purposes, secondary contact recreation, saline tolerant aquatic life, and wildlife.

(2) No person may violate the following specific water quality standards for waters classified E-5:

(a) the designated uses of a receiving water body under a different classification must be fully maintained;

(3) Changes in the water quality must support existing and designated uses.

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 2002 MAR p. 2196, Eff. 8/16/02; AMD, 2004 MAR p. 725, Eff. 4/9/04; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2017 MAR p. 602, Eff. 5/13/17.

Mont. Admin. R. 17.30.657 F-1 Classification Standards

(1) Waters classified F-1 are to be maintained suitable for secondary contact recreation, wildlife and aquatic life not including fish.

(2) No person may violate the following specific water quality standards for waters classified F-1:

(a) the aquatic life standards for priority pollutants listed in DEQ-7;

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 2002 MAR p. 2196, Eff. 8/16/02; AMD, 2004 MAR p. 725, Eff. 4/9/04; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2017 MAR p. 602, Eff. 5/13/17.

Mont. Admin. R. 17.30.658 G-1 Classification Standards

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 2003 MAR p. 1274, Eff. 6/27/03; AMD, 2006 MAR p. 528, Eff. 2/24/06; REP, 2012 MAR p. 2060, Eff. 10/12/12.

Mont. Admin. R. 17.30.660 Nutrient Standards Variances

(1) A person may apply to the department for a nutrient standards variance at any time following the board's adoption of base numeric nutrient standards. In addition to this rule, variances are subject to the procedures and requirements contained in Department Circular DEQ-12B (November 2019 edition).

(2) An application for a general variance must provide information demonstrating that the wastewater treatment facility meets the requirements of Department Circular DEQ-12B (November 2019 edition). The decision to grant the general variance must be reflected in the permit that is made available for public comment.

(3) An application for an individual variance must adequately demonstrate that there are no reasonable alternatives that eliminate the need for a variance and that attainment of the base numeric nutrient standards is precluded due to economic impacts or limits of technology, or both. If the demonstration relies upon economic impacts, the department shall consider any guidance developed by the department and the nutrient work group, as provided in 75-5-313(2), MCA.

(4) The department may approve the adoption of an individual variance that specifies interim effluent limits different from those contained in general variance limits contained in Department Circular DEQ-12B (November 2019 edition), if water quality modeling demonstrates that greater emphasis on the reduction of one nutrient may achieve similar water quality and biological improvements as would the equal reduction of both nitrogen and phosphorus. The variance must provide effluent limits that reflect the lowest effluent concentration that is feasible based on achieving the highest attainable condition for the receiving water. A person shall submit the proposed effluent limits and supporting data in an application for an individual nutrient variance under (3). A person who has an individual variance with effluent limits that are based on this section shall, in each subsequent triennial review of those limits conducted pursuant to 75-5-313(7), MCA, collect and submit water quality data to demonstrate whether the biological status of the receiving water continues to justify those effluent limits.

(5) The department shall review each application for an individual variance to determine whether a reasonable alternative, such as trading, a permit compliance schedule, a general variance, reuse, recharge, or land application would eliminate the need for an individual variance. If the department makes a preliminary finding that a reasonable alternative to approving an individual variance is available, the department shall consult with the applicant prior to making a final decision to approve or deny the individual variance.

(6) If, after consultation with the applicant, the department determines that no reasonable alternative to an individual variance exists, the department shall determine whether the information provided by the applicant pursuant to (3) adequately demonstrates that attaining the base numeric nutrient standards is not feasible. If the department finds that attaining the base numeric nutrient standards is not feasible, the department shall approve an individual variance, which will become effective and incorporated into the applicant's permit only after adoption by the department in a formal rulemaking proceeding.

(7) A variance is not needed in situations where a person complies with the waste load allocation established in an approved TMDL.

(8) The department adopts and incorporates by reference Department Circular DEQ-12B, entitled "Nutrient Standards Variances" (November 2019 edition), which provides procedures and requirements for nutrient standards variances. Copies of Department Circular DEQ-12B are available at the Department of Environmental Quality, 1520 East 6th Avenue, P.O. Box 200901, Helena, MT 59620-0901.

(9) If a court of competent jurisdiction determines that the United States Environmental Protection Agency's October 31, 2017 approval of the general variance is valid and lawful, then the incorporations by reference of the November 2019 edition of Department Circular DEQ-12B contained in this rule shall be void, and the May 2018 edition of Department Circular DEQ-12B shall contain the applicable general variance. If such contingency occurs, all references to the November 2019 edition of Department Circular DEQ-12B contained in this rule shall be stricken and shall be considered as replaced with the May 2018 edition.

History

Authorizing statute(s): 75-5-313, MCA
Implementing statute(s): 75-5-313, MCA
History: NEW, 2014 MAR p. 1805, Eff. 8/8/14; AMD, 2017 MAR p. 871, Eff. 6/24/17; AMD, 2018 MAR p. 1110, Eff. 6/9/18; AMD, 2019 MAR p. 2100, Eff. 11/23/19.

Mont. Admin. R. 17.30.661 Variance from Standard for Water Body Conditions

(1) The department may grant to a permittee a variance from a water quality standard if the department determines in writing that the following conditions are met:

(a) the standard is more stringent than the quality of the receiving water;

(b) the condition in (a) exists because of anthropogenic contributions of the pollutant to the water body;

(c) the condition in (a) cannot reasonably be expected to be remediated during the permit term for which the variance is sought;

(d) the discharge to which the variance would apply would not materially contribute to the condition in (a); and

(e) one of the demonstrations provided at 40 CFR 131.14(b)(2)(i)(A)(1), which is by this reference adopted and incorporated into this rule, applies.

(2) To obtain a variance, a permittee shall submit to the department an application that:

(a) identifies the pollutant for which the variance is sought;

(b) identifies the permittee by name, address, and telephone number;

(d) demonstrates to the department's satisfaction that the requirements of (1) are met; and

(e) proposes, with supporting documentation, a variance level that is:

(i) the highest attainable interim standard in the receiving stream;

(ii) the interim effluent condition that reflects the greatest pollutant reduction that is achievable; or

(iii) if no additional feasible pollutant control technology can be identified, the interim standard or effluent condition that reflects the greatest pollutant reduction achievable with the pollutant control technologies installed at the time the variance is submitted. For a variance under this paragraph (2)(e)(iii), the permittee shall prepare and implement a pollutant minimization plan that contains a structured set of activities to improve processes and pollutant controls that will prevent and reduce pollutant loading.

(3) The department shall review each application to determine whether a reasonable alternative is in place that would eliminate the need for the variance, including:

(a) a permit compliance schedule;

(b) reuse;

(d) other department actions.

(4) If the department makes a preliminary finding that a reasonable alternative to approving a variance is available, the department shall consult with the applicant prior to making a decision regarding the variance.

(6) Within 30 days after approval of the variance, the department shall submit the variance and any supporting documentation and analysis to EPA. The variance is not approved for federal Clean Water Act purposes until EPA notifies the department that the variance complies with the federal Clean Water Act, 33 USC 1251, et seq.

(7) The variance may be used to develop MPDES permit limits. A permit incorporating a variance issued by the department under this rule is subject to ARM Title 17, chapter 30, subchapter 13. The department shall review the variance five years from the date the department issues a final discharge permit incorporating the variance.

(8) The variance must be reviewed by the department every five years to reevaluate the conditions in (2)(e). Based on this review, the department may terminate, continue, or modify the variance. In order to continue or modify the variance, the permittee shall provide information demonstrating compliance with (1) and (2). In cases where water quality in the receiving stream has improved during the term of the variance, DEQ shall consider the ambient upstream condition of the waterbody, as characterized for the previous two years, in determining an appropriate variance level under (2)(e).

(9) Based on the review conducted under (8), the department may approve the variance, with any modifications after public comment and public hearing under (5). Within 30 days after department approval of the variance, the department shall submit the variance and any supporting analysis to EPA. The variance is not approved for federal Clean Water Act purposes until EPA notifies the department that the variance complies with the federal Clean Water Act, 33 USC 1251, et seq.

(10) A copy of 40 CFR 131.14(b)(2)(i)(A)(1) may be obtained from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59601-0901.

History

Authorizing statute(s): 75-5-222, MCA
Implementing statute(s): 75-5-222, MCA
History: NEW, 2018 MAR p. 830, Eff. 4/28/18.

Mont. Admin. R. 17.30.662 Temporary Water Quality Standards Variances

(1) The department may issue a temporary variance from a water quality standard in compliance with this rule and 40 CFR 131.14.

(2) To obtain a temporary variance, a permittee shall submit to the department an application that:

(a) identifies the pollutant(s) for which the variance is sought;

(b) identifies the applicable variance factor(s) under 40 CFR 131.14(b)(2)(i)(A)(1);

(d) identifies the permitted activity;

(e) identifies the receiving water body;

(f) demonstrates to the department's satisfaction that the requirements of (1) are met;

(g) demonstrates that the variance will not result in a lowering of currently attained, ambient water quality;

(h) demonstrates that the permittee cannot reasonably expect to meet a water quality standard during the permit term for which the variance is requested;

(i) demonstrates that a permit compliance schedule is not feasible to preclude the need for a variance during the permit term for which the variance is requested;

(j) includes an optimization study evaluating facility operations and infrastructure that maximize pollutant reduction; and

(k) proposes, with supporting documentation, the term of the variance and a variance level that is:

(i) the highest attainable interim standard in the receiving water body;

(ii) the interim effluent condition that reflects the greatest pollutant reduction achievable; or

(iii) if no additional feasible pollutant control technology can be identified, the interim standard or effluent condition that reflects the greatest pollutant reduction achievable with the pollutant control technologies installed at the time the variance is submitted. For a variance under this subsection, the permittee shall prepare and implement a pollutant minimization plan that contains a structured set of activities to improve processes and pollutant controls that will prevent and reduce pollutant loading.

(3) The department shall review each application to determine whether a reasonable alternative is available that would eliminate the need for the variance. Reasonable alternatives include:

(a) a permit compliance schedule;

(b) reuse, trading, recharge, or land application of the pollutant; or

(5) If the department determines that no reasonable alternative to a variance exists, the department shall determine whether the information provided by the applicant meets the requirements of (1) and (2). If the department makes a preliminary finding that the requirements of (1) and (2) are met, the department shall conduct a hearing following no less than 45 days' notice to the public. All written or oral public comments related to the variance shall be presented to the department during this public comment period. Following the public comment period, the department shall deny, approve, or approve with conditions the requested variance. An approved variance shall require the implementation of optimization study actions identified in (2)(j) as terms and conditions of the MPDES discharge permit.

(6) Within 30 days after approval of the variance, the department shall submit the variance and any supporting documentation and analysis to EPA. For new approvals or modifications, the variance is not approved for federal Clean Water Act purposes until EPA notifies the department that the variance complies with the federal Clean Water Act, 33 USC 1251, et seq.

(7) The variance must be used to develop MPDES permit limits, unless another lawful permitting option is chosen by the permittee and approved by the department. A permit incorporating a variance issued by the department under this rule is subject to ARM Title 17, chapter 30, subchapter 13.

(8) For a variance with a term greater than five years, the variance must be reviewed by the department every five years after EPA approval to reevaluate the conditions in (2)(k). Based on this review, the department may terminate, continue, or modify the variance. To continue or modify the variance, the permittee shall provide information demonstrating compliance with (1) and (2).

(9) Based on the review conducted under (8), the department may approve the variance with any modifications after public comment and public hearing under (5). Within 30 days after department approval of the variance, the department shall submit the variance and any supporting analysis to EPA. The variance is not approved for federal Clean Water Act purposes until EPA notifies the department that the variance complies with the federal Clean Water Act, 33 USC 1251, et seq.

(10) The department may decide of its own volition to issue a temporary water quality standards variance that is applicable to individual or multiple dischargers, pursuant to the procedures and requirements of this rule.

(11) The department adopts and incorporates by reference 40 CFR 131.14 (July 1, 2021).

(12) A copy of 40 CFR 131.14 may be obtained from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59601-0901.

History

Authorizing statute(s): 75-5-201, 75-5-320, MCA
Implementing statute(s): 75-5-320, MCA
History: NEW, 2022 MAR p. 2018, Eff. 10/8/22.

Mont. Admin. R. 17.30.670 Numeric Standards for Electrical Conductivity (ec) and Sodium Adsorption Ratio (sar)

(1) No person may violate the numeric water quality standards or the criteria for determining nonsignificant changes in water quality identified in (2) through (6) .

(2) The numeric standards for electrical conductivity (EC) and sodium adsorption ratio (SAR) for the mainstems of Rosebud Creek, the Tongue, Powder, and Little Powder rivers from November 1 through March 1 are as follows:

(a) for Rosebud Creek and the Tongue River, the monthly average numeric water quality standard for EC is 1500 µS/cm and no sample may exceed an EC value of 2500 µS/cm. The monthly average numeric water quality standard for SAR is 5.0 and no sample may exceed an SAR value of 7.5; and

(b) for the Powder River and the Little Powder River, the monthly average numeric water quality standard for EC is 2500 µS/cm and no sample may exceed an EC value of 2500 µS/cm. The monthly average numeric water quality standard for SAR is 6.5 and no sample may exceed an SAR value of 9.75.

(3) The numeric standards for EC and SAR for the mainstems of Rosebud Creek, the Tongue, Powder, and Little Powder rivers from March 2 through October 31 are as follows:

(a) for Rosebud Creek and the Tongue River, the monthly average numeric water quality standard for EC is 1000 µS/cm and no sample may exceed an EC value of 1500 µS/cm. The monthly average numeric water quality standard for SAR is 3.0 and no sample may exceed an SAR value of 4.5; and

(b) for the Powder River and Little Powder River, the monthly average numeric water quality standard for EC is 2000 µS/cm and no sample may exceed an EC value of 2500 µS/cm. The monthly average numeric water quality standard for SAR is 5.0 and no sample may exceed an SAR value of 7.5.

(4) For all tributaries and other surface waters in the Rosebud Creek, Tongue, Powder, and Little Powder river watersheds, the monthly average numeric water quality standard for EC is 500 µS/cm and no sample may exceed an EC value of 500 µS/cm. The monthly average numeric water quality standard for SAR from March 2 through October 31 is 3.0 and no sample may exceed an SAR value of 4.5. The monthly average numeric water quality standard for SAR from November 1 through March 1 is 5.0 and no sample may exceed an SAR value of 7.5.

(5) For the Tongue River Reservoir, the monthly average numeric water quality standard for EC is 1000 µS/cm and no sample may exceed an EC value of 1500 µS/cm. The monthly average numeric water quality standard for SAR is 3.0 and no sample may exceed an SAR value of 4.5.

(6) EC and SAR are harmful parameters for the purposes of the Montana Water Quality Act, Title 75, chapter 5, MCA.

History

Authorizing statute(s): 75-5-301, 75-5-303, MCA
Implementing statute(s): 75-5-301, 75-5-303, MCA
History: NEW, 2003 MAR p. 779, Eff. 4/25/03; AMD, 2006 MAR p. 1733, Eff. 5/19/06.

Subchapter 17.30.7 Nondegradation of Water Quality

Mont. Admin. R. 17.30.701 Purpose

(1) The purpose of this subchapter is to prohibit degradation of high quality state waters, except in certain limited circumstances, by implementing the nondegradation policy set forth in 75-5-303 , MCA, and providing criteria and procedures for:

(a) determining which activities will degrade high quality waters;

(b) department review and decision making;

(d) public review and appeal of department decisions.

History

Authorizing statute(s): 75-5-301, 75-5-303, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.702 Definitions

The following definitions, in addition to those in 75-5-103, MCA, apply throughout this subchapter (Note: 75-5-103, MCA, includes definitions for "base numeric nutrient standards," "degradation," "existing uses," "high quality waters," "mixing zone," and "parameter"):

(1) "Bioconcentrating parameters" means the parameters listed in department Circular DEQ-7 which have a bioconcentration factor greater than 300.

(2) "Carcinogenic parameters" means the parameters listed as carcinogens in department Circular DEQ-7.

(3) "Degradation" is defined in 75-5-103, MCA, and also means any increase of a discharge that exceeds the limits established under or determined from a permit or approval issued by the department prior to April 29, 1993.

(4) "Existing water quality" means the quality of the receiving water, including chemical, physical, and biological conditions immediately prior to commencement of the proposed activity or that which can be adequately documented to have existed on or after July 1, 1971, whichever is the highest quality.

(5) "Ground water" means water occupying the voids within a geologic stratum and within the zone of saturation.

(6) "Harmful parameters" means the parameters listed as harmful in department Circular DEQ-7.

(7) "Highest statutory and regulatory requirements" means all applicable effluent limitations, water quality standards, permit conditions, water quality protection practices, or reasonable land, soil, and water conservation practices. It also means compliance schedules or corrective action plans for the protection of water issued under order of a court, department, or board of competent jurisdiction.

(8) "High quality waters" is defined in 75-5-103(13), MCA, and does not include Class I surface waters (ARM 17.30.628) or Class III or Class IV ground waters (ARM 17.30.1006(3) through (4)).

(9) "Level 1a treatment" means a wastewater treatment system that:

(a) removes at least 50 percent, but less than 60 percent, of total nitrogen as measured from the raw sewage load to the system; or

(b) discharges a total nitrogen effluent concentration of greater than 24 mg/L, but not greater than 30 mg/L. The term does not include treatment systems for industrial waste. A level 1a designation allows the use of 30 mg/L nitrate (as N) as the nitrate effluent concentration for mixing zone calculations.

(10) "Level 1b treatment" means a wastewater treatment system that:

(a) removes at least 34 percent, but less than 50 percent, of total nitrogen as measured from the raw sewage load to the system; or

(b) discharges a total nitrogen effluent concentration of greater than 30 mg/L, but not greater than 40 mg/L. The term does not include treatment systems for industrial waste. A level 1b designation allows the use of 40 mg/L nitrate (as N) as the nitrate effluent concentration for mixing zone calculations.

(11) "Level 2 treatment" means a wastewater treatment system that:

(a) removes at least 60 percent of total nitrogen as measured from the raw wastewater load to the system; or

(b) discharges a total nitrogen effluent concentration of 24 mg/L or less. The term does not include treatment systems for industrial waste.

(12) "Load" means the mass of a parameter per unit of time.

(13) "Management or conservation practice" means a measure to control or minimize pollution of ground and surface waters from a nonpoint source. Examples of such measures include, but are not limited to, revegetation of disturbed soil, grazing management to prevent overgrazing, contour farming, strip farming, protection of riparian areas, drainage control, and impoundments which detain surface runoff or irrigation return water for sediment control.

(15) "Montana pollutant discharge elimination system" or "MPDES" means the permit system developed by the state of Montana for controlling the discharge of pollutants from point sources into state waters, pursuant to ARM Title 17, chapter 30, subchapter 13.

(16) "Montana ground water pollution control system" or "MGWPCS" means the permit system developed by the state of Montana for controlling the discharge of pollutants into state ground water, pursuant to ARM Title 17, chapter 30, subchapter 10.

(17) "New or increased source" means an activity resulting in a change of existing water quality occurring on or after April 29, 1993. The term does not include the following:

(a) sources from which discharges to state waters have commenced or increased on or after April 29, 1993, provided the discharge is in compliance with the conditions of, and does not exceed the limits established under or determined from, a permit or approval issued by the department prior to April 29, 1993;

(b) nonpoint sources discharging prior to April 29, 1993;

(d) activities or categories of activities causing nonsignificant changes in existing water quality pursuant to ARM 17.30.670, 17.30.715, 17.30.716, or 75-5-301(5)(c), MCA.

(18) "Nonpoint source" means a diffuse source of pollutants resulting from the activities of man over a relatively large area, the effects of which normally must be addressed or controlled by a management or conservation practice.

(19) "Ordinary high-water mark" is defined in 23-2-301, MCA.

(20) "Outstanding resource waters" or "ORW" has the meaning set out in 75-5-103, MCA.

(21) "Permit" means either an MPDES permit or an MGWPCS permit.

(22) "Reporting values (RRV)" means the detection level that must be achieved in reporting surface water or ground water monitoring or compliance data to the department unless otherwise specified in a permit, approval, or authorization issued by the department. The RRV is the department's best determination of a level of analysis that can be achieved by the majority of commercial, university, or governmental laboratories using EPA approved methods or methods approved by the department. The RRV is listed in Department Circular DEQ-7, Department Circular DEQ-12A, and in the definition of "total inorganic phosphorus."

(23) "Surface waters" means any water on the earth's surface including, but not limited to, streams, lakes, ponds, and reservoirs and irrigation drainage systems discharging directly into a stream, lake, pond, reservoir, or other water on the earth's surface. Water bodies used solely for treating, transporting, or impounding pollutants are not considered surface water for the purposes of this subchapter.

(24) "Total nitrogen" means the sum of all nitrate, nitrite, ammonia, and organic nitrogen, as N, in an unfiltered water sample. Total nitrogen in a sample may also be determined by persulfate digestion, or as the sum of total kjeldahl nitrogen plus nitrate plus nitrite.

(25) "Total phosphorus" means the sum of orthophosphates, polyphosphates, and organically bound phosphates, as P, in an unfiltered water sample. Total phosphorus may also be determined directly by persulfate digestion.

(26) "Toxic parameters" means the parameters listed as toxic in department Circular DEQ-7.

(27) "Trigger values" means the values listed as trigger values in department Circular DEQ-7 for parameters categorized as toxic, and are used to determine if proposed activities will cause degradation.

(28) The department adopts and incorporates by reference:

(i) nitrate;

(ii) nitrate + nitrite; and

(iii) nitrite;

(b) Department Circular DEQ-12A, entitled "Montana Base Numeric Nutrient Standards" (December 2013 edition), which establishes numeric water quality standards for total nitrogen and total phosphorus in surface waters;

(c) Department Circular DEQ-4, entitled "Montana Standards for Subsurface Wastewater Treatment Systems" (2023 edition), which establishes technical standards for construction of subsurface wastewater treatment systems; and

(d) 40 CFR Part 136 (July 1, 2015) which contains guidelines establishing test procedures for the analysis of pollutants.

(e) Copies of this material may be obtained from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

History

Authorizing statute(s): 75-5-301, 75-5-303, MCA
Implementing statute(s): 75-5-303, MCA
History: NEW, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1999 MAR p. 94, Eff. 1/15/99; AMD, 1999 MAR p. 2257, Eff. 10/8/99; AMD, 1999 MAR p. 2275, Eff. 10/8/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2003 MAR p. 217, Eff. 2/14/03; AMD, 2004 MAR p. 725, Eff. 4/9/04; AMD, 2004 MAR p. 1384, Eff. 6/18/04; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2008 MAR p. 946, Eff. 5/9/08; AMD, 2009 MAR p. 1786, Eff. 10/16/09; AMD, 2010 MAR p. 1796, Eff. 8/13/10; AMD, 2012 MAR p. 2060, Eff. 10/12/12; AMD, 2013 MAR p. 2081, Eff. 11/15/13; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2017 MAR p. 602, Eff. 5/13/17; AMD, 2019 MAR p. 826, Eff. 6/22/19; AMD, 2024 MAR p. 257, Eff. 2/10/24; AMD, 2024 MAR p. 1581, Eff. 7/6/24; AMD, 2026 MAR, Notice No. 2026-496, Eff. 9/26/26.

Mont. Admin. R. 17.30.705 Nondegradation Policy--Applicability and Level of Protection

(1) The provisions of this subchapter apply to any activity of man resulting in a new or increased source which may cause degradation.

(2) Department review of proposals for new or increased sources will determine the level of protection required for the impacted water as follows:

(a) For all state waters, existing and anticipated uses and the water quality necessary to protect those uses must be maintained and protected.

(b) For high quality waters, degradation may be allowed only according to the procedures in ARM 17.30.708. These rules apply to any activity that may cause degradation of high quality waters, for any parameter, unless the changes in existing water quality resulting from the activity are determined to be nonsignificant under ARM 17.30.670, 17.30.715, or 17.30.716. If degradation of high quality waters is allowed, the department will assure that within the United States Geological Survey hydrologic unit upstream of the proposed activity, there shall be achieved the highest statutory and regulatory requirements for all point and nonpoint sources. This assurance will be achieved through ongoing administration by the department of mandatory programs for control of point and nonpoint discharges.

(c) For outstanding resource waters, no degradation is allowed and no permanent change in the quality of outstanding resource waters resulting from a new or increased point source discharge is allowed.

(3) The department will comply with the provisions of the Montana Environmental Policy Act in the implementation of this subchapter.

History

Authorizing statute(s): 75-5-301, 75-5-303, MCA
Implementing statute(s): 75-5-303, MCA
History: NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2000 MAR p. 843, Eff. 3/31/00; AMD, 2006 MAR p. 528, Eff. 2/24/06.

Mont. Admin. R. 17.30.706 Informational Requirements for Nondegradation Significance/Feasibility Allowance Review

(1) Any person proposing an activity that may cause degradation is responsible for compliance with 75-5-303, MCA. Except as provided in (2), a person may:

(a) determine for themselves, using the standards contained in ARM 17.30.715 and 17.30.716, that the proposed activity will not cause significant changes in water quality as defined in ARM 17.30.705; or

(b) submit an application to the department pursuant to (3), for the department to make the determination.

(2) The department will determine whether a proposed activity may cause degradation based on information submitted by the applicant for all activities that are permitted, approved, licensed, or otherwise authorized by the department. If the department determines that additional information is necessary to determine whether the activity is nonsignificant according to criteria established by the department, the department may require the applicant to provide the information in (3)(a) through (e).

(3) Any person proposing an activity that may cause degradation and is not an activity included under (2) may complete a department "Application for Determination of Significance." Information required for the application includes, but is not limited to:

(a) quantity and concentration of the parameters expected to change as a result of the proposed activity;

(b) length of time that the water quality is expected to be changed;

(d) an analysis of the existing water quality of the receiving water, and any other downstream or downgradient waters which may be reasonably expected to be impacted, including natural variations and fluctuations in the parameter(s) which may change as a result of the proposed activity; or

(e) proposed water quality protection practices.

(4) The department will review an "Application for Determination of Significance" submitted under (3) and make a determination whether the proposed change in water quality is nonsignificant according to ARM 17.30.715 or 17.30.716 within 60 days of receipt of the completed application.

(5) Whenever the department determines that a proposed activity will not result in degradation, the department may require monitoring to verify compliance with this subchapter and 75-5-303, MCA.

(6) Whenever the department determines that a proposed activity will result in degradation, the applicant shall complete an application for a feasibility allowance if the applicant decides to proceed with the proposed activity as planned. The department will not begin review of the application until the required fee has been paid to the department.

(7) In order to provide the information that is required for the department to determine whether or not degradation is necessary because there are no economically, environmentally, and technologically feasible alternatives to the proposed activity that would result in no degradation, an application for a feasibility allowance shall include, but not be limited to, the following, when applicable:

(a) a complete description of the proposed activity;

(b) the proposed effluent or discharge limitation(s);

(d) an analysis of alternatives to the proposed activity, consistent with accepted engineering principles, demonstrating there are no economically, environmentally, and technologically feasible alternatives that are less-degrading or non-degrading. The analysis must be limited to only those alternatives that would accomplish the proposed activity's purpose;

(e) an analysis of the existing water quality of the receiving water and any other downstream or downgradient waters which may be impacted, including natural variations and fluctuations in the water quality parameter(s) for which a feasibility allowance is requested;

(f) the concentration, likely environmental fate, biological effects, and load for each parameter in the discharge likely to degrade existing water quality;

(g) the distribution of existing flows and their expected frequency;

(h) an analysis demonstrating the expected surface or ground water quality for all alternatives considered in (d);

(i) an analysis of the ground water flow system, including water-bearing characteristics of subsurface materials, rate and direction of ground water flow, and an evaluation of surface and ground water interaction;

(j) data concerning cumulative water quality effects of existing and authorized activities;

(k) a proposed monitoring and reporting plan that will determine the actual water quality changes.

(8) An applicant must demonstrate that the proposed activity will result in important economic or social development in the area that the high-quality waters are located.

(a) Factors to be addressed in the application may include, but are not limited to, the positive and negative effects of the following:

(i) allowing the proposed change in water quality;

(ii) employment considering the existing level of employment, unemployment, and wage levels in the area (i.e., increasing, maintaining, or avoiding a reduction in employment);

(iii) the fiscal status of the local, county, or state government and local public schools;

(iv) the local or state economies (i.e., increased or reduced diversity, multiplier effects);

(v) social or historical values;

(vi) public health;

(vii) housing (i.e., availability and affordability);

(viii) existing public service systems and local educational systems; or,

(ix) correction of an environmental or public health problem.

(b) Factors included in the demonstration required in (8)(a) must be quantified whenever this can be done reliably and cost-effectively. Other factors, which cannot be quantified, may be represented by an appropriate unit of measurement. If the department determines that more information is required, the department may require additional information from the applicant or seek such additional information from other sources.

(9) To determine whether or not existing and anticipated uses will be fully protected, the department shall require the following information:

(a) a showing that the change will not result in violations of Montana water quality standards outside of a mixing zone; and

(b) an analysis of the impacts of the proposed water quality changes on the existing and anticipated uses of the impacted state water.

(10) To demonstrate the least degrading water quality protection practices will be fully implemented prior to, during, and after the proposed activity, the applicant shall provide to the department a complete description and schedule for implementation of the water quality protection practices associated with the proposed activity and a viable plan showing the ability to implement the water quality protection practices.

(11) Any application submitted pursuant to this subchapter must comply with the signature and certification requirements of ARM 17.30.1323.

(12) The department shall notify the applicant in writing within 60 days after receipt of an application for a feasibility allowance that the application does or does not contain all the information necessary for the department's nondegradation review. If the information from the supplemental submittal and any subsequent supplemental submittal is inadequate, the department shall notify the applicant in writing, within 30 days after receipt of the supplemental submittal, what additional information must be submitted. In any review subsequent to the first, the department may not make a determination of incompleteness on the basis of a deficiency which could have been noted in the first review.

(13) The department adopts and incorporates by reference ARM 17.30.1323, as amended on February 14, 2003, which sets forth signature and certification requirements for MPDES permit applications. A copy of ARM 17.30.1323 may be obtained from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

History

Authorizing statute(s): 75-5-301, 75-5-303, MCA
Implementing statute(s): 75-5-303, MCA
History: NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 1274, Eff. 6/27/03; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2024 MAR p. 257, Eff. 2/10/24; AMD, 2026 MAR, Notice No. 2026-406, Eff. 8/8/26.

Mont. Admin. R. 17.30.707 Department Procedures for Review of Feasibility Allowance Applications

(1) Upon a determination by the department that an application for a feasibility allowance required under this rule is complete, the department will prepare a preliminary decision either authorizing a feasibility allowance or denying the application according to the procedures in ARM 17.30.708.

(2) An application for a feasibility allowance will be denied unless the applicant has affirmatively demonstrated and the department finds, based on a preponderance of evidence, the proposed activity to be in full compliance with 75-5-303, MCA, using the standards set out in (3) through (6). The department shall consider an analysis by the applicant and any substantive relevant information either submitted by the public or otherwise available.

(3) To determine that a feasibility allowance is necessary because there are no economically, environmentally, and technologically feasible alternatives to the proposed activity that would result in no degradation, the department shall consider the following:

(a) The department will determine the economic feasibility of the alternative water quality protection practices by evaluating the cost effects of the proposed alternatives on the economic viability of the project and on the applicant by using standard and accepted financial analyses.

(b) In order to determine the environmental feasibility of an alternative, the department will consider whether such alternative practices are available and will compare the overall environmental impacts of the various alternatives and the commitment of resources necessary to achieve the alternatives.

(c) In order to determine technological feasibility of an alternative, the department will consider whether such alternative practices are available and consistent with accepted engineering principles.

(4)

(a) To determine that the proposed activity will result in important economic or social development, the department must find that the proposed activity will provide important economic or social development in the area that the high-quality waters are located. In making its determination, the department may consider factors that include, but are not limited to, the following:

(i) effects on the state or local community resulting from increased employment opportunities considering the existing level of employment, unemployment, and wage levels in the area;

(ii) effects on the state or local economies;

(iii) effects on the fiscal status of the local, county or state governments and local public schools;

(iv) effects on the local or state economies (i.e., increased or reduced diversity, multiplier effects);

(v) effects on social or historical values;

(vi) effects on public health;

(vii) effects on housing (i.e., availability and affordability);

(viii) effects on existing public service systems and local educational systems; or,

(ix) correction of an environmental or public health problem.

(b) In making the determination required in (a), the department must consider, as appropriate, the social and economic importance to the public of allowing the proposed project, as demonstrated by the applicant, and the cost to society associated with a lowering of water quality. The department may also consider as a cost to society any identified and/or quantifiable negative social or economic effects resulting from the proposed activity.

(5) To determine that existing and anticipated uses of the receiving waters will be fully protected and that water quality standards will not be violated as a result of the proposed feasibility allowance, the department shall consider all available information.

(6) In order to authorize a feasibility allowance under this rule, the department must determine that the least degrading water quality protection practices determined by the department to be economically, environmentally, and technologically feasible will be implemented prior to, during, and after the proposed activity until the degradation no longer occurs.

(7) The department shall make its preliminary decision either authorizing the feasibility allowance or denying the application within 180 days after receipt of a complete application from the applicant. This time period may be extended upon agreement of the applicant or whenever an environmental impact statement must be prepared pursuant to Title 75, chapter 1, parts 1 and 2, MCA.

(8) To the maximum extent possible, the department will coordinate any application for a feasibility allowance with the permitting and approval requirements of other laws or programs administered by the department or by any other local, state, or federal agency.

History

Authorizing statute(s): 75-5-301, 75-5-303, MCA
Implementing statute(s): 75-5-303, MCA
History: NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2026 MAR, Notice No. 2026-406, Eff. 8/8/26.

Mont. Admin. R. 17.30.708 Department Procedures for Issuing Preliminary and Final Decisions Regarding Feasibility Allowances

(1) A preliminary decision to deny or authorize a feasibility allowance must be accompanied by a statement of basis for the decision and, if applicable, a detailed statement of conditions imposed upon any feasibility allowance.

(2) The preliminary decision must include the following information, if applicable:

(a) a description of the proposed activity;

(b) the level of protection required, e.g., for high-quality waters;

(c) a determination that a feasibility allowance is or is not necessary based on the availability of economically, environmentally, and technologically feasible alternatives that will prevent degradation;

(d) a determination of economic or social importance in the area that the high-quality waters are located;

(e) a determination that all existing and anticipated uses will or will not be fully protected;

(f) the amount of allowed degradation;

(g) a description of the required water quality protection practices;

(h) a description of all monitoring and reporting requirements; and

(i) a specific identification of any mixing zone the department proposes to allow.

(3) A statement of basis for the decision must be prepared for every preliminary decision. In general, the statement of basis must briefly set forth the principal facts and significant factual, legal, methodological, or policy questions considered in preparing the feasibility allowance. The statement of basis must include, when applicable:

(a) a description of the proposed activity which is the subject of the feasibility allowance;

(b) the type and quantity of degradation which will result if the proposed activity is authorized;

(c) a summary of the basis for the conditions imposed in any preliminary decision, including references to applicable statutory or regulatory provisions;

(d) a summary and analysis of alternatives to the proposed activity;

(e) a description of the procedures for reaching a final decision on the draft feasibility allowance including:

(i) the beginning and ending dates of the comment period and the address where comments will be received;

(ii) procedures for requesting a hearing; and

(iii) any other procedures by which the public may participate in the final decision;

(f) name and telephone number of a person to contact for additional information; and

(g) reasons supporting the preliminary decision.

(4) The preliminary decision, accompanying statement of basis, and, if applicable, the statement of conditions imposed, must be publicly noticed and made available for public comment for at least 30 days but not more than 60 days prior to a final decision. In providing public notice, the department shall comply with the following:

(a) procedures for public notice set forth in ARM 17.30.1372; and

(b) procedures for the distribution of information set forth in ARM 17.30.1041.

(5) During the public comment period any interested person may submit written comments on the preliminary decision and may request a public hearing. A request for a public hearing must be in writing and must state the nature of the issues proposed to be raised in the hearing. The department shall hold a hearing if it determines that there may be a significant degree of public interest in the preliminary decision. Any public hearing conducted under this subsection is not a contested case hearing under the provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, MCA.

(6) Within 60 days after the close of the public comment period, the department shall issue a final decision accompanied by a statement of basis for the decision and, if applicable, a statement of conditions. The final decision and statement of basis will be prepared according to the requirements of (2) and (3). In addition, the statement of basis for a final decision must include the following:

(a) which provisions, if any, of the preliminary decision have been changed in the final decision and the reasons for the change; and

(b) a description and response to all substantive comments on the preliminary decision raised during the public comment period or during any hearing.

(7) Upon issuing a final decision, the department shall notify the applicant and each person who has submitted written comments or requested notice of that decision. The notice must include reference to the procedures for appealing the decision. The final decision is effective upon issuance.

(8) The department adopts and incorporates by reference ARM 17.30.1372, which sets forth procedures for issuing public notices of MPDES permit applications and hearings, and ARM 17.30.1041 which sets forth requirements for distribution and copying of public notices and permit applications. Copies of ARM 17.30.1372 and 17.30.1041 may be obtained from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

History

Authorizing statute(s): 75-5-301, 75-5-303, MCA
Implementing statute(s): 75-5-303, MCA
History: NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2024 MAR p. 257, Eff. 2/10/24; AMD, 2026 MAR, Notice No. 2026-406, Eff. 8/8/26.

Mont. Admin. R. 17.30.715 Criteria for Determining Nonsignificant Changes in Water Quality

(1) The following criteria will be used to determine whether certain activities or classes of activities will result in nonsignificant changes in existing water quality due to their low potential to affect human health or the environment. These criteria consider the quantity and strength of the pollutant, the length of time the changes will occur, and the character of the pollutant. Except as provided in (2), changes in existing surface or ground water quality resulting from the activities that meet all the criteria listed below are nonsignificant, and are not required to undergo review under 75-5-303, MCA:

(a) activities that would increase or decrease the mean monthly flow of a surface water by less than 15 percent or the seven-day ten-year low flow by less than 10 percent;

(b) discharges containing carcinogenic parameters or parameters with a bioconcentration factor greater than 300 at concentrations less than or equal to the concentrations of those parameters in the receiving water;

(c) discharges containing toxic parameters, which will not cause changes that equal or exceed the trigger values in Department Circular DEQ-7. Whenever the change exceeds the trigger value, the change is not significant if the resulting concentration outside of a mixing zone designated by the department does not exceed 15 percent of the lowest applicable standard;

(d) changes in the concentration of nitrate in ground water which will not cause degradation of surface water if the sum of the predicted concentrations of nitrate at the boundary of any applicable mixing zone will not exceed the following values:

(i) 7.5 mg/L for nitrate sources other than domestic sewage;

(ii) 5.0 mg/L for domestic sewage effluent discharged from a conventional wastewater treatment system;

(iii) 7.5 mg/L for domestic sewage effluent discharged from a wastewater treatment system using level 2, as defined in ARM 17.30.702; or

(iv) 7.5 mg/L for domestic sewage effluent discharged from a conventional wastewater treatment system in areas where the ground water nitrate level exceeds 5.0 mg/L primarily from sources other than human waste.

For purposes of this subsection (d), the word "nitrate" means nitrate as nitrogen;

(e) changes in concentration of total inorganic phosphorus in ground water if water quality protection practices approved by the department have been fully implemented and if an evaluation of the phosphorus adsorptive capacity of the soils in the area of the activity indicates that phosphorus will be removed for a period of 50 years prior to a discharge to any surface waters;

(f) changes in the quality of water for any harmful parameter, nutrients listed at ARM 17.30.631, and parameters listed in Department Circular DEQ-12A, except as specified in (1)(g), for which water quality standards have been adopted other than carcinogenic, bioconcentrating, or toxic parameters, in either surface or ground water, if the changes outside of a mixing zone designated by the department are less than ten percent of the applicable standard and the existing water quality level is less than 40 percent of the standard;

(g) for nutrients in domestic sewage effluent discharged from a wastewater treatment system that does not require an MPDES or MGWPCS permit, except as specified in (1)(d) and (e), which will not cause changes that equal or exceed the trigger values in Department Circular DEQ-7; and

(h) changes in the quality of water for any parameter for which there are only narrative water quality standards if the changes will not have a measurable effect on any existing or anticipated use or cause measurable changes in aquatic life or ecological integrity.

(2) Notwithstanding compliance with the criteria of (1), the department may determine that the change in water quality resulting from an activity which meets the criteria in (1) is degradation based upon the following:

(a) cumulative impacts or synergistic effects;

(b) secondary byproducts of decomposition or chemical transformation;

(d) changes in flow;

(e) changes in the loading of parameters;

(f) new information regarding the effects of a parameter; or

(g) any other information deemed relevant by the department and that relates to the criteria in (1).

(3) The department may determine that a change in water quality resulting from an activity or category of activities is nonsignificant based on information submitted by an applicant that demonstrates conformance with the guidance found in 75-5-301(5)(c), MCA. In making a determination under this subsection, the department shall allow for public comment prior to a decision pursuant to the public notice procedures in ARM 17.30.1372.

(4) The following criteria and the criteria in (1)(g) apply to determine whether subsurface wastewater treatment system discharges that are not subject to ground water permitting requirements will result in nonsignificant changes in existing water quality.

(a) Except as provided in (b), the criteria in (1)(g) apply in either of the following cases:

(i) the ordinary high-water mark of a potentially impacted downgradient state surface water is less than 1/4 mile from any portion of the wastewater absorption system; or

(ii) the ordinary high-water mark of a potentially impacted downgradient state surface water is between 1/4 mile and 1/2 mile from any portion of the wastewater absorption system and:

(A) any of the absorption system soil profiles required by Department Circular DEQ-4 has a limiting layer less than 8 feet below the natural ground surface;

(B) the absorption system soil application rate pursuant to Department Circular DEQ-4 is 0.5 gallons per day per square foot (gpd/ft2) or larger; or

(C) the absorption system soil application rate pursuant to Department Circular DEQ-4 is less than 0.5 gpd/ft2 and the soil classification modifier includes extremely cobbly, extremely stony, or extremely bouldery.

(b) The criteria in (1)(g) do not apply to subsurface wastewater treatment systems that are more than 1/2 mile from a state surface water or to wastewater treatment systems in which the absorption trench is lower in elevation than all downgradient state surface water within 1/2 mile of the absorption system.

(c) The distances to surface water in (a)(i) and (a)(ii) include the five-degree expansion of the effluent plume as described for ground water mixing zones in ARM 17.30.517(1)(d)(iii)(B). The distance is based on the measured ground water flow direction between the absorption system and the ordinary high-water mark of the potentially impacted downgradient state surface water, or the shortest distance between the absorption system and the ordinary high-water mark of the potentially impacted downgradient state surface water when the ground water flow direction is estimated from topography or other method.

(d) The analysis of impacts to state surface water must use the waste load, as described in ARM 17.30.517(1)(d)(vii)(B), discharged from the absorption system, except when:

(i) the waste load can be reduced pursuant to ARM 17.30.517(1)(d)(vi); or

(ii) a saturated zone solute transport or saturated zone particle tracking model is used to demonstrate that the waste load potentially impacting the state surface water should be reduced. The model must include site-specific data characterizing the necessary hydrogeologic properties of the water-bearing units in the effluent flow path and calibrated to site-specific data.

(e) Pursuant to 75-5-301(5)(e), MCA, the requirements of (2) do not apply to subsurface wastewater treatment system discharges that are not subject to ground water permitting requirements under 75-5-401, MCA.

(5) If a court of competent jurisdiction declares 75-5-313, MCA, or any portion of that statute invalid, or if the United States Environmental Protection Agency disapproves 75-5-313, MCA, or any portion of that statute under 30 CFR 131.21, or if rules adopted pursuant to 75-5-313(6) or (7), MCA, expire and general variances are not available, then the significance criteria contained in (1)(g) are the significance criteria for total nitrogen and total phosphorus in surface water.

History

Authorizing statute(s): 75-5-301, 75-5-303, MCA
Implementing statute(s): 75-5-303, MCA
History: NEW, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1040, Eff. 6/16/95; AMD, 1995 MAR p. 2256, Eff. 10/27/95; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2003 MAR p. 217, Eff. 2/14/03; AMD, 2004 MAR p. 725, Eff. 4/9/04; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2014 MAR p. 1815, Eff. 8/8/14; AMD, 2017 MAR p. 602, Eff. 5/13/17; AMD, 2024 MAR p. 1581, Eff. 7/6/24.

Mont. Admin. R. 17.30.716 Categories of Activities That Cause Nonsignificant Changes in Water Quality

(1) In addition to the activities listed in 75-5-317 , MCA, the categories or classes of activities that are identified in this rule have been determined by the department to cause changes in water quality that are nonsignificant due to their low potential for harm to human health or the environment and their conformance with the guidance found in 75-5-301 , MCA.

(2) A wastewater treatment system that does not require an MPDES or MGWPCS permit and meets the criteria in (3) and (4) is nonsignificant.

(3) The wastewater treatment system, including primary and replacement absorption systems, must meet the following criteria:

(a) the absorption systems must be 500 feet or more (200 feet or more for lots that meet the criteria in (4)(b)) from the nearest downgradient high-quality state surface water that might be impacted. Distance between the absorption system and downgradient high-quality state surface water is based on the criteria in ARM 17.30.715(4);

(b) the wastewater treatment systems on a lot must have a combined design flow of 600 gallons per day or less, or a combined design flow of 800 gallons per day or less if all the wastewater treatment systems on the lot are level 2;

(d) each wastewater treatment system must be located entirely on the lot where wastewater is produced;

(e) each wastewater treatment system must meet the current design standards defined in ARM Title 17, chapter 36, subchapters 3 and 9, and Department Circular DEQ-4; and

(f) all wastewater treatment systems on the lot must meet the requirements in this rule.

(4) A wastewater treatment system that meets the requirements in (3) must also meet:

(a) all the requirements in one of the categories in Table 1; or

(b) the following requirements:

(i) the wastewater treatment system is in a county where the total number of subdivision lots that were reviewed pursuant to Title 76, chapter 4, part 1, MCA, and were created in that county during the previous 10 state fiscal years is fewer than 150;

(ii) the lot is not within one mile of the city limits of an incorporated city or town with a population greater than 500 as determined by the most recent census; and

(iii) the absorption system is pressure dosed.

(c)

Table 1

| Requirement | Category(1) | | 1 | 2 | 3 | 4 | 5 | 6 | 7 (i) | Minimum lot size (acres) | 2 | 2 | 1 | 2 | 1 | 2 | 20 (ii) | Maximum number of lots in common developments or phases of a subdivision | N/A | N/A | 5 | N/A | 5 | N/A | N/A (iii) | Background ground water nitrate (as N) concentration (mg/L) (2) | 2 | 2 | 2 | 2 | 2 | 2 | 4 (iv) | Pressure distribution required for the absorption system | Yes | Yes | Yes | Yes | Yes | Yes | N/A (v) | Soil profile has at least 6 feet of natural soil below absorption system that is fine sandy loam, loam, or finer (3) | Yes | N/A | N/A | N/A | N/A | N/A | N/A (vi) | Soil profile has at least 6 feet of natural soil below absorption system that is medium sand, sandy loam, or finer (3) | N/A | Yes | Yes | N/A | Yes | Yes | N/A (vii) | Soil profile has at least 6 feet of natural soil below absorption system that is medium sand, sandy loam, or finer (3), or discharge is to an elevated sand mound | N/A | N/A | N/A | N/A | N/A | N/A | Yes (viii) | Minimum depth below natural ground surface to limiting layer in soil profile (feet) | 8 | 10 | 10 | 6 | 8 | N/A | N/A (ix) | Minimum depth below natural ground surface to bedrock and ground water (feet) (4) | N/A | N/A | 50 | N/A | N/A | N/A | N/A (x) | Minimum distance from proposed subdivision boundary to any existing or approved wastewater treatment systems outside the subdivision boundaries (feet) | N/A | N/A | 500 | N/A | N/A | N/A | N/A (xi) | Level 2 wastewater treatment system | N/A | N/A | N/A | Yes | Yes | N/A | N/A (xii) | Maximum depth of absorption system below natural ground surface (inches) (5) | 24 | 24 | 24 | 24 | 24 | 24 | 24 (xiii) | Gray water in waste segregation systems (6) | N/A | N/A | N/A | N/A | N/A | Yes | N/A

FOOTNOTES

(1) "N/A" means not applicable for purposes of this rule. Requirements in all other applicable laws, rules, and circulars must be met.

(2) The reviewing authority may require multiple ground water samples over a specified time period to determine whether seasonal variation of ground water nitrate concentrations may affect compliance with this requirement.

(3) Soil profiles must be conducted in accordance with site evaluation requirements in Department Circular DEQ-4. Soils that contain 60% or more of a rock fragment (gravel, cobble, stone, or boulder) and are considered extremely gravelly, extremely cobbly, extremely stony or extremely bouldery as defined in Appendix B of Department Circular DEQ-4 will not meet this requirement. All soil profiles for a wastewater treatment system absorption system must meet these soil requirements. The six foot thickness of the specified soil type may be a continuous soil layer or a combination of multiple layers.

(4) Depth below ground surface to ground water and bedrock can be determined using local well logs or other applicable information as approved by the reviewing authority.

(5) For depths shallower than 24 inches, absorption systems must meet the requirements in Department Circular DEQ-4 for shallow-capped absorption systems.

(6) Category only applies to the gray water discharge. It does not include a blackwater discharge or an alternate system required by Department Circular DEQ-4 that treats gray water and other wastewater from the lot.

(5) A 100-foot provisional mixing zone is required for each wastewater treatment system approved as nonsignificant under this rule. Source specific provisional mixing zones are not allowed. Provisional mixing zones are subject to the same setbacks and siting requirements as mixing zones but are not subject to the requirements of ARM 17.30.715.

(6) The department may require that on-site information be provided to verify any of the criteria required in this rule.

(7) The department may determine that lots within a specific geographic area do not meet the nonsignificance criteria in (2), and those lots must be reviewed pursuant to ARM 17.30.715. This determination must be based upon information submitted in a petition demonstrating that the nonsignificance criteria in (2) should not apply within that area.

(a) A petition submitted under this rule may be considered only if it is submitted by a local governing body, a local department or board of health, a local water quality district, or by either 10% or 20, whichever is fewer, of the landowners (or persons with a contract interest in land) within the affected geographic area.

(b) A petition submitted under this rule must contain the following information:

(i) a legal description of the petition area, which is the geographic area within which the nonsignificance criteria in (2) would not apply;

(ii) a detailed description of the soils, geology, and hydrogeology of the area described in (6)(b)(i);

(iii) a current listing from a title insurance company of the names and addresses of all persons who either own or have a contract interest in land within the petition area; and

(iv) data from ground water samples taken from wells that withdraw water from the uppermost aquifer underlying the petition area or from wells that withdraw water from the uppermost aquifer underlying an area within the same or adjacent county with similar climatic, soil, geologic, and hydrogeologic conditions and a density of individual sewage systems similar to that allowed in (2)(b). The ground water data must demonstrate that one of the following conditions is met:

(A) nitrate as nitrogen concentrations exceed 5.0 mg/L in ground water samples from more than 25% of at least 30 wells that are not located within a standard mixing zone, as defined in ARM 17.30.517(1)(d)(ix), for a wastewater treatment system; or

(B) data from ground water samples collected at least three years apart from the same 15 wells indicate a statistically significant increase of greater than 1.0 mg/L in nitrate as nitrogen concentrations in the uppermost aquifer.

(c) Within 90 days after receipt of the information required in (6)(b), the department shall issue a preliminary decision as to whether the petitioner has satisfied the requirements in (6)(b), and describe the reasons for either granting or denying the petition. The preliminary decision must be mailed to the petitioner and to all landowners or persons with a contract interest in land within the petition area and must include the following information:

(i) a description of the petition area;

(ii) a summary of the basis for the preliminary decision including any modifications to the boundaries of the petition area;

(iii) a description of the procedures for public participation and of the opportunity to comment prior to the department's final decision on the petition;

(iv) the ending dates of the comment period and the address where comments will be received;

(v) procedures for requesting a hearing; and

(vi) the name, e-mail address, and telephone number of a person to contact for additional information.

(d) Within 60 days after the close of the public comment period, the department shall issue a final decision and provide written notice of its decision to the petitioner and to each person who submitted written comments. The final decision must set forth the department's reasons for granting or denying the petition and must include a response to all substantive comments received by the department during the public comment period or during any hearing.

(8) Notwithstanding (4)(c)(iii) of this rule, a wastewater discharge that otherwise meets the criteria of this rule may be reviewed for nonsignificance without a background nitrogen sample required in (4)(c)(iii) in settings where ground water cannot be sampled due to the absence or great depth of the ground water.

(9) For purposes of (8), ground water will be considered:

(a) absent if, as of the date that a person applies, the Groundwater Information Center (GWIC) database does not list a water well in the section of land, as used in the Public Lands Survey System (PLSS), containing the person’s site or in any of the eight PLSS sections adjacent to the PLSS section containing the person’s site;

(b) at great depth if, as of the date that a person applies:

(i) all water wells listed in GWIC in the PLSS section containing the person’s site, or in any of the eight PLSS sections adjacent to the PLSS section containing the person’s site, are entirely below a depth of 300 feet under the ground surface; and

(ii) no groundwater is noted at a depth of less than 300 feet under the ground surface in the lithological log of any water well listed in GWIC in the PLSS section containing the person’s site or in any of the eight PLSS sections adjacent to the PLSS section containing the person’s site.

History

Authorizing statute(s): 75-5-301, 75-5-303, MCA
Implementing statute(s): 75-5-303, 75-5-317, MCA
History: NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1997 MAR p. 2071, Eff. 11/18/97; AMD, 1998 MAR p. 936, Eff. 4/17/98; AMD, 2003 MAR p. 2274, Eff. 10/17/03; AMD, 2004 MAR p. 2579, Eff. 10/22/04; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2024 MAR p. 1581, Eff. 7/6/24; AMD, 2026 MAR, Notice No. 2026-198, Eff. 9/5/26.

Mont. Admin. R. 17.30.717 Implementation of Water Quality Protection Practices

(1) The owner of a new or increased source for which no water quality protection practices are approved by the department must design and submit a viable plan for implementation of the necessary water quality protection practices for department review, modification, and approval prior to implementation.

History

Authorizing statute(s): 75-5-301, 75-5-303, MCA
Implementing statute(s): 75-5-303, 75-5-317, MCA
History: NEW, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.718 Criteria for Nutrient Reduction from Wastewater Treatment Systems

(1) This rule describes the information that must be submitted to obtain a department classification of a as level 1a, level 1b, or level 2, as those terms are defined in ARM 17.30.702. The nitrogen treatment level that a wastewater treatment system is granted under this rule may be used as the effluent concentration in mixing zone calculations.

(2) A person seeking classification of a wastewater treatment system as level 1a, level 1b, or level 2 must submit the following background information to the department regarding the wastewater treatment system, in addition to any other information the department determines is necessary to verify the long-term treatment capabilities of the system:

(a) a description of the technology utilized by the system and the system components;

(b) engineering details regarding component sizes and materials specifications. Components include, but are not limited to, tanks, pumps, piping, control panels, and treatment media;

(d) a description of the long-term reliability of the system components;

(e) a description of the installation process; and

(f) information verifying the reliability of the wastewater treatment system manufacturer and vendor. At a minimum, the vendor or manufacturer must either:

(i) have maintained an office in Montana for the past five years with a significant portion of its business related to design, construction, or installation of wastewater treatment systems; or

(ii) demonstrate an equivalent level of experience and reliability in Montana.

(3) A person seeking classification of a wastewater treatment system as level 1a, level 1b, or level 2 must submit monitoring information as provided in this section. The department may require additional information (particularly for technologies not included in department Circular DEQ-4) if necessary to verify the long-term reliable treatment capabilities of the system.

(a) The following background information must be submitted for each system monitored:

(i) system address (including legal description) ;

(ii) system start-up date;

(iii) description of current and historical system use, particularly during the performance monitoring period; and

(iv) monitoring data collected prior to and after the required performance monitoring period.

(b) For a wastewater treatment system that uses the effluent total nitrogen concentration to determine treatment efficiency, the monitoring must be from at least six systems. For a wastewater treatment system that uses the percent total nitrogen removed from measured raw wastewater to determine treatment efficiency, the monitoring must be from at least three systems.

(c) For each wastewater treatment system that is monitored, at least one representative sample of raw wastewater must be collected and analyzed for nitrate (as N), nitrite (as N), ammonia (as N), total kjeldahl nitrogen (TKN) (as N), biological oxygen demand (BOD), and total suspended solids (TSS). This information will be used to determine the raw wastewater strength, which must not exceed residential strength and have an average TKN or total nitrogen concentration higher than 40 mg/L. Chemical characterization of raw wastewater must be based on one of the following representative samples:

(i) if the septic tank or other initial tank is used only for primary treatment of the sewage, the sample should be collected from that tank;

(ii) if the septic tank or other initial tank is used for treatment beyond primary treatment, the sample should be collected prior to start-up of the wastewater treatment system from that tank; or

(iii) another department-approved location.

(d) Each wastewater treatment system must be monitored for one year. At least one wastewater treatment system must be monitored for at least two years.

(e) Effluent sampling frequency must be at least monthly (or equivalent frequency as approved by the department) during the winter months (November through April), and at least quarterly during the summer months (May through October). At least 50% of the monitoring data from each wastewater treatment system must be collected during the winter months. For wastewater treatment systems that use percent total nitrogen removed to determine treatment efficiency, a raw wastewater sample must be collected on the same dates as the effluent samples.

(f) Each effluent sample must be analyzed for nitrate (as N), nitrite (as N), ammonia (as N), TKN (as N), BOD, TSS, and flow. If raw wastewater influent monitoring is conducted concurrently with effluent monitoring, each influent sample must be analyzed for TKN (as N) or total nitrogen. If the wastewater treatment system is experiencing significant infiltration and inflow, the department may require that raw wastewater influent samples be collected and analyzed during each effluent monitoring event to determine an accurate representation of the nitrogen-reducing capabilities of the system.

(g) Monitored wastewater treatment systems must be in Montana or a location that has an average annual air temperature of 50 degrees Fahrenheit or less. The temperature must be based on the most applicable active weather station with at least a 20-year record or the most recent 30-year National Oceanic and Atmospheric Administration average annual air temperature.

(h) The arithmetic mean of the available data will be used to determine compliance with this rule.

(i) All water analyses, except for temperature, must be conducted according to an EPA-approved method by an independent laboratory. Temperature measurements must be conducted on-site.

(j) The department may waive specific requirements in this rule if the monitoring data are substantially equivalent to those requirements.

(k) All influent and effluent data collected from all installed systems that meet the climate requirements in (3)(g) and analysis requirements in (3)(i) must be submitted to the department as part of an application for approval as level 1a, level 1b, or level 2 wastewater treatment system.

(4) The data from a wastewater treatment system that is tested under the NSF International/American National Standards Institute 245, 2022 version (NSF/ANSI 245) certification, or testing by an independent third party following the NSF/ANSI 245 2022 protocols, may be used to demonstrate compliance with the requirements in (3), except that NSF/ANSI 245, or independent third party testing following the NSF/ANSI 245 2022 protocols, data may only be used to replace one-third of the systems required in (3)(b). The NSF/ANSI 245 report (or equivalent report from independent third party) and all monitoring data collected during the testing must be submitted to the department and evaluated by the department as part of its review.

(5) In response to a request for classification of a wastewater treatment system as level 1a, level 1b, or level 2, the department may, after evaluating the wastewater treatment system under the criteria in this rule:

(a) approve the request;

(b) approve the request with modifications or conditions;

(d) deny the request pending submittal of additional information.

(6) If a wastewater treatment system that is classified as level 1a, level 1b, or level 2 is modified, and the modification may have negative effects on the total amount of nitrogen reduction, the department may require that the wastewater treatment system be re-evaluated under the criteria in this rule.

(7) If subsequent data indicate that a wastewater treatment system classified under this rule is not reliable or cannot meet required nutrient reductions, the department may rescind the classification.

(8) All wastewater treatment systems classified as a level 1a, level 1b, or level 2 must have an operation and maintenance (O&M) contract in perpetuity for each system installed. The O&M contract will be required in the subdivision approval, or as a deed restriction if a subdivision plat approval is not required for the property. O&M must be conducted by the system manufacturer, an approved vendor, or other qualified personnel. The wastewater treatment system vendor or manufacturer must offer an O&M plan that meets the requirements of this section and the requirements in Department Circular DEQ-4. At a minimum, the O&M contract must include:

(a) an on-site inspection of all the major components of the wastewater treatment system. Inspection items must include verifying proper operation of the visual/audible alarm system required in (9) and determining whether any water treatment devices have been added, modified, or removed from the water system that discharges to the wastewater treatment system. The initial start-up/installation and each subsequent inspection must include any necessary adjustments to provide adequate oxygen concentrations to the system to account for the systems elevation. Inspections must be made according to the following schedules:

(i) for a wastewater treatment system with a design flow less than 5,000 gpd that does not require an MPDES or MGWPCS permit, the inspection schedule is semi-annually for the first two years after use of the system begins and annually thereafter;

(ii) for a suspended growth wastewater treatment system with a design flow less than 5,000 gpd that does not require an MPDES or MGWPCS permit, the inspection schedule is quarterly for the first two years after use of the system begins and semi-annually thereafter; and

(iii) for a wastewater treatment system with a design flow of 5,000 gpd or larger that does not require an MPDES or MGWPCS permit, the inspection schedule is monthly for the first two years after use of the system begins and quarterly thereafter;

(b) annual effluent sampling and analysis for nitrate (as N), nitrite (as N), ammonia (as N), TKN (as N), specific conductance, carbonaceous biochemical oxygen demand (CBOD), field pH, and field temperature. Effluent sampling must be conducted after all treatment is complete, but before discharge to the absorption system. All monitoring data, including the identification of the wastewater treatment system manufacturer, must be submitted to the department if requested by the department to verify the total nitrogen reduction is adequate for the approved treatment level.

(9) All wastewater treatment systems classified as level 1a, level 1b, or level 2 must have the following features:

(a) a visual and/or audible alarm warning that indicates if a hydraulic malfunction is occurring in any portion of the treatment system prior to the absorption system; and

(b) a physical barrier that prevents the discharge of wastewater to the absorption system if a hydraulic malfunction is occurring in any portion of the treatment system prior to the absorption system.

(10) All level 1a, level 1b, or level 2, regardless of approval date under this rule, must comply with the requirements in (8).

(11) An approval as level 1a, level 1b, or level 2 under this rule does not constitute approval under Department Circulars DEQ-2 (2018) or DEQ-4 (2023) and does not constitute approval for any specific project or application of that technology.

History

Authorizing statute(s): 75-5-301, 75-5-303, MCA
Implementing statute(s): 75-5-303, MCA
History: NEW, 2004 MAR p. 1384, Eff. 6/18/04; AMD, 2024 MAR p. 1581, Eff. 7/6/24.

Subchapter 17.30.10 Montana Ground Water Pollution Control System

Mont. Admin. R. 17.30.1001 Definitions

For the purposes of this subchapter, unless the context clearly indicates otherwise, the following terms have the meanings indicated below and are supplemental to the definitions in 75-5-103, MCA:

(1) "Beneficial use" means a use of ground water designated under the appropriate classification in ARM 17.30.1006.

(2) "DEQ-7" means Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" (September 2026 edition), which establishes numeric water quality standards for toxic, carcinogenic, radioactive, bioconcentrating, nutrient, and harmful parameters.

(a) The department adopts and incorporates by reference Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" (September 2026 edition), which establishes numeric water quality standards for toxic, carcinogenic, bioconcentrating, nutrient, radioactive, and harmful parameters.

(3) "Discharge" means the addition of any pollutant to waters of the state.

(4) "Discharge limitations" means limitations imposed on the design or operation of a source to control the entry of pollutants into ground water.

(5) "Existing source" means a source which is or has been in operation or on which construction has commenced on October 29, 1982.

(6) "Ground water" means water occupying the voids within a geologic stratum and within the zone of saturation.

(7) "Mixing zone" is defined in 75-5-103, MCA.

(8) "Modification" means any change to a sewage system, treatment works, or disposal system including expansions, production increases, or process modifications which may result in new or increased discharges of pollutants into state ground waters.

(9) "Montana ground water quality standards" means the standards for ground water quality set forth in ARM 17.30.1006.

(10) "Montana pollutant discharge elimination system (MPDES)" means the system developed by the state of Montana for issuing permits for the discharge of pollutants from point sources into state surface waters pursuant to ARM Title 17, chapter 30, subchapter 12.

(11) "MGWPCS" means the Montana ground water pollution control system established in this subchapter.

(12) "MPDES permit" means any permit issued by the department pursuant to ARM Title 17, chapter 30, subchapter 13 to regulate the discharge of pollutants from point sources into state surface waters.

(13) "Nonpoint source" means a diffuse source of pollutants resulting from the activities of man over a relatively large area, the effects of which normally must be addressed or controlled by a management practice rather than by an engineered containment or structure.

(14) "Owner or operator" means any person who owns, leases, operates, controls, or supervises a source discharging pollutants to ground waters.

(15) "Public sewage system" has the meaning specified in ARM 17.38.101.

(16) "Reclaimed wastewater" is defined in 75-6-102, MCA.

(17) "Sewage" is defined in 75-5-103, MCA.

(18) "Source" means any sewage system, treatment works, point source, disposal system, concentration of pollutants, or pond containing process wastes or pollutants used, employed, or operated so that the same results or under normal operating conditions may reasonably be expected to result in the discharge of pollutants to ground waters of the state.

(19) "UIC program" means the underground injection control program established in compliance with the federal Safe Drinking Water Act, 42 USCA 300f, et seq.

(20) "Unrestricted reclaimed wastewater" means wastewater that is treated to the standards for Class A-1 or Class B-1 reclaimed wastewater, as set forth in Appendix B of Department Circular DEQ-2, entitled "Montana Department of Environmental Quality Design Standards for Public Sewage Systems" (2018 edition).

(a) The department adopts and incorporates by reference Department Circular DEQ-2, entitled "Department of Environmental Quality Design Standards for Public Sewage Systems" (2018 edition). Copies are available from the Department of Environmental Quality, Engineering Bureau, P.O. Box 200901, Helena, MT 59620-0901.

(21) "Wastewater" has the meaning specified in ARM 17.38.101.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-301, 75-5-401, MCA
History: NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1997 MAR p. 402, Eff. 2/25/97; AMD, 1999 MAR p. 94, Eff. 1/15/99; AMD, 1999 MAR p. 2257, Eff. 10/8/99; AMD, 1999 MAR p. 2275, Eff. 10/8/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2003 MAR p. 217, Eff. 2/14/03; AMD, 2004 MAR p. 725, Eff. 4/9/04; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2008 MAR p. 946, Eff. 5/9/08; AMD, 2010 MAR p. 1796, Eff. 8/13/10; AMD, 2012 MAR p. 2060, Eff. 10/12/12; AMD, 2012 MAR p. 2067, Eff. 10/12/12; AMD, 2016 MAR p. 1008, Eff. 6/4/16; AMD, 2017 MAR p. 602, Eff. 5/13/17; AMD, 2019 MAR p. 826, Eff. 6/22/19; AMD, 2019 MAR p. 836, Eff. 6/22/19; AMD, 2024 MAR p. 262, Eff. 2/10/24; AMD, 2026 MAR, Notice No. 2026-496, Eff. 9/26/26.

Mont. Admin. R. 17.30.1002 Classification of Ground Water

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-5-201, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, 1996 MAR p. 1499; REP, 1999 MAR p. 94, Eff. 1/15/99.

Mont. Admin. R. 17.30.1003 Ground Water Quality Standards

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 1982 MAR p. 1937, Eff. 10/29/82; AMD, 1994 MAR p. 2136, Eff. 8/12/94; AMD, 1995 MAR p. 1798, Eff. 9/15/95; AMD, 1996 MAR p. 555, Eff. 2/23/96; TRANS, from DHES, 1996 MAR p. 1499; REP, 1999 MAR p. 94, Eff. 1/15/99.

Mont. Admin. R. 17.30.1005 Applicability of Ground Water Standards and Basis for Classifications

(1) The standards in ARM 17.30.1006 establish the maximum allowable changes in ground water quality and are the basis for limiting discharges to ground water.

(2) The ground water standards may be exceeded within a mixing zone established pursuant to applicable provisions in ARM Title 17, chapter 30, subchapter 5.

(3) It is not necessary to treat discharges to a purer condition than the natural condition of the receiving water, within the meaning of 75-5-306, MCA.

(4) The classifications of ground water are based on natural specific conductance as specified in ARM 17.30.1006.

History

Authorizing statute(s): 75-5-301, 80-15-105, 80-15-201, MCA
Implementing statute(s): 75-5-301, 80-15-201, MCA
History: NEW, 1999 MAR p. 94, Eff. 1/15/99; AMD, 2024 MAR p. 262, Eff. 2/10/24.

Mont. Admin. R. 17.30.1006 Classifications, Beneficial Uses, and Specific Standards for Ground Waters

(1) Class I ground waters are those ground waters with a natural specific conductance less than or equal to 1,000 microSiemens/cm at 25ºC.

(a) The quality of Class I ground water must be maintained so that these waters are suitable for the following beneficial uses with little or no treatment:

(i) public and private water supplies;

(ii) culinary and food processing purposes;

(iii) irrigation;

(iv) drinking water for livestock and wildlife; and

(v) commercial and industrial purposes.

(b) Except as provided in ARM 17.30.1005(2) , a person may not cause a violation of the following specific water quality standards in Class I ground water:

(i) the human health standards for ground water listed in DEQ-7;

(ii) for concentrations of parameters for which human health standards are not listed in DEQ-7, no increase of a parameter to a level that renders the waters harmful, detrimental, or injurious to the beneficial uses listed for Class I water. The department may use any pertinent credible information to determine these levels; and

(iii) no increase of a parameter that causes a violation of the nondegradation provisions of 75-5-303 , MCA.

(2) Class II ground waters are those ground waters with a natural specific conductance that is greater than 1,000 and less than or equal to 2,500 microSiemens/cm at 25ºC.

(a) The quality of Class II ground water must be maintained so that these waters are at least marginally suitable for the following beneficial uses:

(i) public and private water supplies;

(ii) culinary and food processing purposes;

(iii) irrigation of some agricultural crops;

(iv) drinking water for livestock and wildlife; and

(v) most commercial and industrial purposes.

(b) Except as provided in ARM 17.30.1005(2) , a person may not cause a violation of the following specific water quality standards for Class II ground water:

(i) the human health standards for ground water listed in DEQ-7;

(ii) for concentrations of parameters for which human health standards are not listed in DEQ-7, no increase of a parameter to a level that renders the waters harmful, detrimental, or injurious to the beneficial uses listed for Class II water. The department may use any pertinent credible information to determine these levels; and

(iii) no increase of a parameter that causes a violation of the nondegradation provisions of 75-5-303 , MCA.

(3) Class III ground waters are those ground waters with a natural specific conductance that is greater than 2,500 and less than or equal to 15,000 microSiemens/cm at 25ºC.

(a) The quality of Class III ground water must be maintained so that these waters are at least marginally suitable for the following beneficial uses:

(i) irrigation of some salt tolerant crops;

(ii) some commercial and industrial purposes;

(iii) drinking water for some livestock and wildlife; and

(iv) drinking, culinary, and food processing purposes where the specific conductance is less than 7,000 microSiemens/cm at 25ºC.

(b) Except as provided in ARM 17.30.1005(2) , a person may not cause a violation of the following specific water quality standards for Class III ground water:

(i) the human health standards listed in DEQ-7, except that the nitrate nitrogen and nitrate plus nitrite nitrogen standards listed in DEQ-7 do not apply to ground waters with a specific conductance equal to or greater than 7,000 microSiemens/cm at 25ºC. The nitrate nitrogen and nitrate plus nitrite nitrogen standards for these waters are each 50 mg/l; and

(ii) for concentrations of parameters for which human health standards for ground water are not listed in DEQ-7, no increase of a parameter to a level that renders the waters harmful, detrimental, or injurious to the beneficial uses listed for Class III water. The department may use any pertinent credible information to determine these levels.

(4) Class IV ground waters are those ground waters with a natural specific conductance greater than 15,000 microSiemens/cm at 25 o C.

(a) The quality of Class IV ground waters must be maintained so that they are suitable for some industrial and commercial uses.

(b) Except as provided in (5) and ARM 17.30.1005(2) , a person may not cause a violation of the following specific water quality standards for Class IV ground water:

(i) the human health standards for parameters categorized as carcinogens in DEQ-7;

(ii) for concentrations of parameters in DEQ-7 which are not listed as carcinogens, no increase of a parameter to a level that would adversely affect existing beneficial uses. The nitrate nitrogen and nitrate plus nitrite nitrogen standards are each 50 mg/l;

(iii) for concentrations of parameters for which human health standards are not listed in DEQ-7, no increase of a parameter to a level that would adversely affect existing beneficial uses. The department may use any pertinent credible information to determine these levels.

(5) For Class III or IV waters, where it can be demonstrated to the satisfaction of the department that the field hydraulic conductivity is less than 0.1 feet per day in an affected or potentially affected ground water zone, the nitrate nitrogen and nitrate plus nitrite nitrogen standards in (3) (b) (i) and (4) (b) (ii) do not apply, provided that all existing and anticipated uses of the ground waters are protected.

(6) The ground water quality standards for metal parameters are based on the dissolved portion (after filtration through a 0.45 micron filter) of the contaminant in the ground water. The ground water quality standards for other parameters in department Circular DEQ-7 are based upon unfiltered samples. For inorganic parameters, compliance with standards based on filtered samples must be assumed if analyses using the total recoverable method demonstrates compliance with the numerical standards.

History

Authorizing statute(s): 75-5-301, 80-15-105, 80-15-201, MCA
Implementing statute(s): 75-5-301, 80-15-201, MCA
History: NEW, 1999 MAR p. 94, Eff. 1/15/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2003 MAR p. 217, Eff. 2/14/03; AMD, 2004 MAR p. 1617, Eff. 4/9/04; AMD, 2006 MAR p. 528, Eff. 2/24/06.

Mont. Admin. R. 17.30.1007 Sample Collection, Preservation, and Analysis Methods

(1) Methods of sample collection, preservation, and sample analysis used to determine compliance with the standards in this subchapter must be in accordance with 40 CFR Part 136 "Guidelines Establishing Test Procedures for the Analysis of Pollutants" (July 2015), or the following:

(a) EPA-SW-846, Third Edition (November 1986), as amended by Updates I (July 1992), II (September 1994), IIA (August 1993), IIB (January 1995), and III (December 1996), and IIIA (May 1999) "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods";

(b) EPA-600/R-95/131 (August 1995), "Methods for the Determination of Organic Compounds in Drinking Water", Supplement III;

(d) EPA-600/R-94/111 (May 1994), "Methods for the Determination of Metals in Environmental Samples," Supplement I; or;

(e) methods specifically approved by the department in a permit, license, authorization, or approval provided for by statute or rule.

(2) Analyses of parameters to determine compliance with ground water standards must comply with the required reporting values given in DEQ-7.

(3) The department adopts and incorporates by reference the following publications:

(a) EPA-SW-846, [Third Edition (November 1986), as amended by Updates I (July, 1992), II (September 1994), IIA (August 1993), IIB (January 1995), and III (December 1996)], "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods";

(b) EPA-600/R-95/131 (August 1995), "Methods for the Determination of Organic Compounds in Drinking Water", Supplement III;

(c) EPA-600/R-93/100 (August 1993), "Methods for the Determination of Inorganic Substances in Environmental Samples"; and

(d) EPA-600/R-94/111 (May 1994), "Methods for the Determination of Metals in Environmental Samples", Supplement I.

(4) Copies of the publications in (3)(a) through (d) are available at the Department of Environmental Quality, 1520 East Sixth Avenue, P.O. Box 200901, Helena, MT 59620-0901.

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 1999 MAR p. 94, Eff. 1/15/99; AMD, 2002 MAR p. 387, Eff. 2/15/02; AMD, 2003 MAR p. 217, Eff. 2/14/03; AMD, 2004 MAR p. 725, Eff. 4/9/04; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2008 MAR p. 946, Eff. 5/9/08; AMD, 2017 MAR p. 602, Eff. 5/13/17; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.1010 Mixing Zone

(1) Discharges of pollutants to ground waters may be granted a mixing zone by the department, provided the mixing zone is specifically identified and conforms with the requirements and procedures of ARM Title 17, chapter 30, subchapter 5.

History

Authorizing statute(s): 75-5-301, MCA
Implementing statute(s): 75-5-301, MCA
History: NEW, 1982 MAR p. 1937, Eff. 10/29/82; AMD, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2024 MAR p. 262, Eff. 2/10/24.

Mont. Admin. R. 17.30.1011 Nondegradation

(1) Any ground water whose existing quality is higher than the established groundwater quality standards for its classification must be maintained at that high quality in accordance with 75-5-303 , MCA, and ARM Title 17, chapter 30, subchapter 7.

History

Authorizing statute(s): 75-5-301, 75-5-303, MCA
Implementing statute(s): 75-5-303, MCA
History: NEW, 1982 MAR p. 1937, Eff. 10/29/82; AMD, 1994 MAR p. 2136, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1022 Exclusions from Permit Requirements

(1) In addition to the permit exclusions identified in 75-5-401, MCA, the following activities or operations are not subject to the permit requirements of this subchapter:

(a) motor vehicle wrecking facilities and county motor vehicle graveyards licensed pursuant to Title 75, chapter 10, MCA;

(b) sources that obtain an MPDES permit pursuant to ARM Title 17, chapter 30, subchapter 13;

(c) public sewage systems that were reviewed and approved by the department prior to May 1, 1998, under Title 75, chapter 6, and ARM 17.38.101. However, this exclusion does not apply to systems with a design capacity greater than 5000 gallons per day, if the operator of the system requests a modification after May 1, 1998, or if the department determines that operation of the system has caused a violation of a statute or rule administered by the department after May 1, 1998;

(d) public sewage systems that are reviewed and approved by the department after March 1, 2024, under Title 75, chapter 6, MCA, and ARM 17.38.101 under a common design plan or serving a common development that in the aggregate discharge less than one pound of total nitrogen per day;

(e) multi-family sewage disposal systems reviewed and approved by the department under Title 76, chapter 4, MCA, and multi-family sewage disposal systems reviewed and approved by a local government under Title 76, chapter 3, MCA, after May 1, 1998;

(f) multi-family sewage disposal systems reviewed and approved by the Department of Public Health and Human Services under Title 50, chapters 50, 51, and 52, MCA, and multi-family sewage disposal systems reviewed and approved by local boards of health under Title 50, chapter 2, MCA, after May 1, 1998;

(g) public sewage systems that apply reclaimed wastewater at agronomic rates to land as a method of disposal and that have been reviewed and approved by the department under Title 75, chapter 6, MCA, and ARM 17.38.101;

(h) public sewage systems that discharge unrestricted reclaimed wastewater and that have been reviewed and approved under Title 75, chapter 6, MCA, and ARM 17.38.101. Discharges of unrestricted reclaimed wastewater excluded under this rule remain subject to the monitoring and reporting requirements imposed as a condition of approval under ARM 17.38.101(8)(c).

(2) Aggregate total nitrogen load for the permit exclusion in (1)(d) is calculated by adding each contributing load from the public sewage systems reviewed and approved by the department under a common design plan or that serve a common development.

(3) Notwithstanding the exclusions set forth in (1), all sources are subject to the provisions of ARM 17.30.1001 through 17.30.1011, and 17.30.1045. Furthermore, any excluded source which the department determines may be causing or is likely to cause violations of ground water quality standards may be required to submit monitoring information pursuant to 75-5-602, MCA.

History

Authorizing statute(s): 75-5-401, MCA
Implementing statute(s): 75-5-401, 75-5-602, MCA
History: NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 1997 MAR p. 402, Eff. 2/25/97; AMD, 1998 MAR p. 1164, Eff. 5/1/98; AMD, 2012 MAR p. 2067, Eff. 10/12/12; AMD, 2024 MAR p. 262, Eff. 2/10/24.

Mont. Admin. R. 17.30.1023 Permit Applications

(1) The owner or operator of any existing source not excluded under ARM 17.30.1022 discharging pollutants into state ground waters shall file an MGWPCS permit application within one year of October 29, 1982.

(2) The owner or operator of any source with an MGWPCS permit who proposes any modification, subsequent to October 29, 1982, which the department determines may result in violation of existing permit conditions shall file a new completed MGWPCS permit application no less than 180 days prior to the day on which it is desired to commence operation of the modified discharge.

(3) The owner or operator of any proposed source not excluded under ARM 17.30.1022 which may discharge pollutants into state ground waters shall file a completed MGWPCS permit application no less than 180 days prior to the day on which it is desired to commence operation of the source.

(4) All applications for an MGWPCS permit must be submitted on forms provided by the department and must include the following:

(a) a specific site plan, indicating topography;

(b) location and description of operation of treatment works and disposal systems;

(d) list of surface owners and lessees of land within one mile of the proposed source;

(e) location of water supply wells and springs within one mile;

(f) description of waste or process solutions to be contained on site; and

(g) information describing existing ground water quality and uses within one mile of the site.

(5) In addition to the application requirements in (4), the department may require the submission of additional data and information when warranted by the potential impacts of a source.

(6) Applicants who have submitted complete permit applications for ground water discharge sources to the department under the MPDES permit program will be deemed to have complied with the requirements of this rule.

History

Authorizing statute(s): 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2024 MAR p. 262, Eff. 2/10/24.

Mont. Admin. R. 17.30.1024 Review Procedures

(1) No application will be processed by the department until all of the requested information is supplied and the application is complete. The department shall make a determination of the completeness of the information within 30 calendar days of receipt of an application.

(2) An application for a MGWPCS permit is not deemed complete until the permit fee required under ARM 17.30.201 is remitted to the department.

(3) After receipt of a complete MGWPCS permit application and requested supplemental information, the department shall make a tentative determination with respect to issuance or denial of an MGWPCS permit. The tentative determination must be based on compliance or noncompliance with the requirements of this subchapter and Title 75, chapter 5, MCA.

(4) After making the tentative determination, the department shall take the following action:

(a) If the determination is to deny an MGWPCS permit, the department shall give written notice of the denial to the applicant, including a statement of reasons for the denial.

(b) If the determination is to issue an MGWPCS permit, the department shall prepare a draft MGWPCS permit, which must include the following:

(i) proposed discharge limitations and conditions;

(ii) monitoring and reporting requirements if any;

(iii) necessary schedules of compliance, including interim dates and requirements for meeting proposed discharge limitations or other special conditions.

(5) A public notice of every tentative determination to issue a permit must be circulated by the department in accordance with the procedures described in ARM 17.30.1040 to inform the public of the proposed discharge and of the tentative determination.

(6) The department shall provide a period of not less than 30 days following the date of the public notice during which time any person may submit written views or request a public hearing on the tentative determination. Any request for a public hearing must indicate the interest of the party filing the request and the reasons why a hearing is warranted.

(7) The department may hold a hearing on its own initiative or when it determines good cause exists to hold such a hearing upon request of any person. Public notice of a public hearing on a tentative determination must be given in accordance with ARM 17.30.1040.

(8) If a public hearing is not held pursuant to (6), the department shall, within 30 days after termination of the comment period provided for in (5), make a final determination on issuance or denial of an MGWPCS permit. All written comments submitted during the 30-day comment period must be retained by the department and considered in the final determination.

(9) If a public hearing is held on the tentative determination, the department shall make its final determination on the MGWPCS permit application within 60 days following the hearing. All comments recorded during the public hearing and written comments submitted during the 30-day comment period required in (5) must be retained by the department and considered in the final determination.

(10) After making the final determination on an MGWPCS permit application the department shall issue an MGWPCS permit or give written notice to the applicant of the department's decision to deny, including notice to the applicant of its right to appeal the denial or final determination to the board.

History

Authorizing statute(s): 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2024 MAR p. 262, Eff. 2/10/24.

Mont. Admin. R. 17.30.1030 General Permit Conditions

All issued MGWPCS permits must contain general conditions including but not limited to, the following:

(1) All discharges of pollutants into state ground waters authorized by an MGWPCS permit must be consistent with the conditions of the permit; any sewerage system, treatment works or disposal system expansions, production increases or process modifications which may result in new or increased discharges of pollutants into state ground waters in violation of permit conditions must be reported to the department. After review of this information, the department will determine whether submission of a new or modified MGWPCS permit application is necessary.

(2) The discharge of pollutants to state ground waters more frequently than or at a level in excess of that identified and authorized by an MGWPCS permit is a violation of the conditions of the permit.

(3) An MGWPCS permit may be modified, suspended, or revoked in whole or in part during its term under provisions of 75-5-403 and 75-5-404 , MCA, for cause including, but not limited to, any of the following:

(a) violation of any conditions of the permit;

(b) obtaining an MGWPCS permit by misrepresentation or failure to disclose fully all relevant facts;

(c) a change in any condition or a violation of ground water standards or degradation of high quality ground waters caused by the discharge that requires either a temporary or permanent reduction or elimination of the authorized discharge; or

(d) a failure or refusal by the permittee to comply with the requirements of 75-5-602 , MCA.

(4) The department shall notify the permittee of any tentative determination that a permit should be modified pursuant to this section. The department shall provide a period of not less than 30 days following such notification during which time the permittee may submit its views regarding the tentative determination, which shall be considered in the formation of a final determination. The permittee may appeal any permit modification to the board of environmental review pursuant to 75-5-403 , MCA.

History

Authorizing statute(s): 75-5-401, MCA
Implementing statute(s): 75-5-401, 75-5-403, 75-5-404, MCA
History: NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1031 Special Permit Conditions

All issued MGWPCS permits must contain special conditions which will assure compliance with the ground water quality standards, giving consideration to the economics of waste treatment and prevention. These conditions may include, but are not limited to, the following:

(1) Authorization of discharges of pollutants into state ground waters.

(2) Discharge limitations and, if necessary, compliance schedules on each authorized discharge of pollutants into state ground waters.

(3) The basis of calculation of discharge limitations.

(4) The prohibition of certain discharges without prior approval from the department.

(5) Self-monitoring requirements for each authorized discharge including, but not limited to, the following:

(a) monitoring well configuration;

(b) pollutants to be monitored;

(d) analytical and sampling methods to be utilized by the permittee;

(e) recording and reporting procedures to be utilized by the permittee; and

(f) procedures for reporting other considerations having an effect on authorized discharges or that may affect any of the conditions of the permit;

(g) the permittee will be required to maintain self-monitoring records for a minimum of three years.

(6) Procedures to be used to alleviate ground water pollution if pollution in violation of permit conditions or ground water standards is detected.

History

Authorizing statute(s): 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1032 Duration of Permit

(1) Every permit issued under this subchapter must have a fixed term not to exceed ten years.

History

Authorizing statute(s): 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1033 Reissuance of Permits

(1) Any permittee who wishes to continue to discharge after the expiration date of their MGWPCS permit must request reissuance of their permit at least 180 days prior to its date of expiration.

(2) The request for reissuance of an MGWPCS permit must be in letter form and contain as a minimum the following information:

(a) the number of the issued MGWPCS permit and date of its issuance; and

(b) any past, present, or future changes in the quantity or quality of the authorized discharge not reflected in the conditions and terms of the issued MGWPCS permit.

(3) The department shall review each request for reissuance of an MGWPCS permit in light of the existing MGWPCS permit, information provided by the permittee with the request for reissuance, and other information available to the department to insure that the following conditions exist:

(a) That the permittee is in compliance with or has substantially complied with all the conditions and terms of the expiring MGWPCS permit.

(b) That the discharge is consistent with applicable discharge limitations and compliance schedules and ground water quality standards.

(c) That the department has up-to-date information on the permittee's production levels and waste treatment practices and the quantity, quality, and frequency of the permittee's discharge.

(4) Following the review of the request for reissuance of an MGWPCS permit and any other supplemental information requested by the department, the department shall make a tentative determination to reissue or refuse to reissue an MGWPCS permit.

(5) The processing procedures for MGWPCS permit applications described in ARM 17.30.1024 apply to the reissuance of an MGWPCS permit.

History

Authorizing statute(s): 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2024 MAR p. 262, Eff. 2/10/24.

Mont. Admin. R. 17.30.1034 Continuation of Expiring Permits

(1) The conditions of an expired permit continue in force until the effective date of a new permit if:

(a) the permittee has submitted a timely and complete application under ARM 17.30.1033 for a reissued permit; and

(b) the department, through no fault of the permittee, does not issue a new permit under ARM 17.30.1033 with an effective date on or before the expiration date of the previous permit.

(2) Permits continued under this rule remain fully effective and enforceable until the effective date of a new permit.

(3) When the permittee is not in compliance with the conditions of the expiring or expired permit, the department may choose to do any or all of the following:(a) initiate enforcement action based upon the continued permit;

(b) issue a notice of intent to deny the new permit under ARM 17.30.1024 ;

(d) take other actions authorized by the MGWPCS rules.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 2024 MAR p. 262, Eff. 2/10/24.

Mont. Admin. R. 17.30.1035 Obligation to Raise Issues and Provide Information

(1) All persons, including applicants, who believe any condition of a draft permit is inappropriate or that the department's tentative decision to prepare a draft permit is inappropriate, shall raise all reasonably ascertainable issues and submit all reasonably available arguments supporting their position by the close of the public comment period (including any public hearing) under ARM 17.30.1024 .

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 2024 MAR p. 262, Eff. 2/10/24.

Mont. Admin. R. 17.30.1040 Public Notice

(1) The department shall provide public notice of the department's tentative determination to issue a permit. The department shall mail the notice to:

(a) the applicant;

(b) any agency or entity identified in ARM 17.30.1041; and

(2) In addition, the department shall publish a notice of the tentative determination to issue a permit for two consecutive weeks on the department's web page and may include notice to the public by:

(a) posting in a newspaper of general circulation within the geographic area of the proposed discharge;

(b) posting in the post office and public places of the municipality nearest the premises of the proposed activity;

(d) any other notice that the department considers reasonable to encourage public participation in the decision.

(3) Public notice of any public hearing held pursuant to this subchapter must be circulated in advance of the hearing and at least as widely as was the notice of the department's tentative determination. Circulation must include at least the following:

(a) publication of notice in at least one newspaper of general circulation;

(b) distribution of notice to all persons and agencies receiving a copy of the notice for the MGWPCS application; and

History

Authorizing statute(s): 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2024 MAR p. 262, Eff. 2/10/24.

Mont. Admin. R. 17.30.1041 Distribution of Information

(1) The following governmental agencies must be included on a mailing list for public notice of tentative determinations to issue MGWPCS permits and are exempted from a copying fee where copies of a draft permit, fact sheet, or any related documents are requested:

(a) Montana Department of Natural Resources and Conservation;

(b) Montana Bureau of Mines and Geology;

(d) Montana Department of Agriculture;

(e) Montana Environmental Quality Council;

(f) any state or federal agency requesting an opportunity to participate in the MGWPCS permit review process;

(g) local health authorities in the county in which the source is located.

(2) Any state whose waters may be affected by the issuance of an MGWPCS permit shall be provided a copy, upon request, of the MGWPCS application, draft permit, or any related documents.

(3) Upon request, the department shall add the name of any person or group to a mailing list to receive copies of notices for all MGWPCS applications.

(4) Interested parties may request or inspect a copy of the draft MGWPCS permit, or any related documents. A reasonable copying fee will be charged for any of the aforementioned documents. The copying fee for the documents relating to any particular MGWPCS application will be included as part of the notice of application. A request for MGWPCS application documents will not be processed unless payment of the stated copying fee is included with the request.

(5) The department shall provide facilities for the inspection of all information relating to MGWPCS applications and forms, except reports, papers, or information determined to be confidential in accordance with 75-5-105, MCA. A copying machine will be available to provide copies of this information at a reasonable fee.

History

Authorizing statute(s): 75-5-401, MCA
Implementing statute(s): 75-5-105, 75-5-401, MCA
History: NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2024 MAR p. 262, Eff. 2/10/24.

Mont. Admin. R. 17.30.1042 General Permits

(1) The department may issue general MGWPCS permits pursuant to the provisions of ARM 17.30.1030.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1984 MAR p. 1804, Eff. 12/14/84; TRANS, from DHES, and AMD, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1045 Emergency Powers of the Department

(1) This rule is applicable to spills or unanticipated discharges of pesticides, herbicides, other toxic substances or any other materials that would lower the quality of any ground waters of the state below Montana ground water quality standards.

(2) The owner, operator, or person responsible for a spill or unanticipated discharge must notify the department as soon as possible by contacting the Montana Disaster and Emergency Services 24-hour duty officer [(406)324-4777], and provide all relevant information about the spill.

(3) Pursuant to 75-5-621 and 75-5-622 , MCA, and depending on the severity of the spill or accidental discharge, the department may require the owner or operator to:

(a) take immediate remedial measures;

(b) monitor the direction, depth and rate of movement of any contaminated ground waters and of the spilled or discharged material;

(c) determine the probable impact, including the duration of impact, on existing water supply wells, springs, and anticipated future beneficial uses of the ground water supply impacted;

(d) determine the probable impact, including the duration of impact, on surface waters that may be affected by contaminated ground waters; or

(e) provide alternate water supplies to existing water uses disrupted by the spill or unanticipated discharge.

History

Authorizing statute(s): 75-5-201, MCA
Implementing statute(s): 75-5-621, 75-5-622, MCA
History: NEW, 1982 MAR p. 1937, Eff. 10/29/82; TRANS, from DHES, 1996 MAR p. 1499.

Subchapter 17.30.11 Storm Water Discharges

Mont. Admin. R. 17.30.1101 Purpose and Scope

(1) This subchapter is intended to be applied together with ARM Title 17, chapter 30, subchapters 12 and 13 to establish a system for regulating discharges of potential pollutants from point source discharges of storm waters into surface waters. This subchapter and subchapter 13 of ARM Title 17, chapter 30, which regulate storm water discharges through Montana pollutant discharge elimination system (MPDES) general permits, permit authorizations, and notices of intent, are intended to be compatible with the national pollutant discharge elimination system (NPDES) as established by the United States environmental protection agency pursuant to section 402 of the federal Clean Water Act (CWA) , 33 USC 1251, et seq. Except as expressly modified in this subchapter, all requirements in ARM Title 17, chapter 30, subchapters 12 and 13 remain effective pertaining to point source discharges of storm water.

(2) The rules in this subchapter pertain to point source discharges of storm water that do not contain routine process wastewater and that do not contain non-storm water discharges except for the potential non-storm water discharges from MS4s that are listed in ARM 17.30.1111(6) (c) (iii) . ARM Title 17, chapter 30, subchapter 13 contains additional requirements pertaining to point source discharges of storm water that routinely contain process wastewater or non-storm water discharges (other than the potential non-storm water discharges for MS4s listed in ARM 17.30.1111(6) (c) (iii) ) that are regulated using an individual MPDES permit.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 2003 MAR p. 219, Eff. 2/14/03.

Mont. Admin. R. 17.30.1102 Definitions

In this subchapter, the following terms have the meanings or interpretations indicated below and shall be used in conjunction with and are supplemental to those definitions contained in 75-5-103, MCA. If not defined in this rule, terms used in this subchapter have the meanings set out in the definitions in ARM Title 17, chapter 30, subchapter 13.

(1) "Best management practices (BMPs) " means schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of state waters. BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.

(2) "Discharge of a pollutant" and "discharge of pollutants" each means any addition of any pollutant or combination of pollutants to state waters from any point source. This definition includes additions of pollutants into water of the state from surface runoff that is collected or channeled by man and discharges through pipes, sewers, or other conveyances owned by a state, municipality, or other person that do not lead to a treatment works. This term does not include the addition of pollutants by an indirect discharger.

(3) "Discharge monitoring report (DMR) " means the department uniform form for the reporting of self-monitoring results by permittees.

(4) "Facility or activity" means any MPDES point source or any other facility or activity (including land or appurtenances thereto) that is subject to regulation under the MPDES program.

(5) "Final stabilization" means the time at which all soil-disturbing activities at a site have been completed and a vegetative cover has been established with a density of at least 70% of the pre-disturbance levels, or equivalent permanent, physical erosion reduction methods have been employed. Final stabilization using vegetation must be accomplished using seeding mixtures or forbs, grasses, and shrubs that are adapted to the conditions of the site. Establishment of a vegetative cover capable of providing erosion control equivalent to pre-existing conditions at the site will be considered final stabilization.

(6) "General permit" means an MPDES permit issued under ARM 17.30.1341 authorizing a category of discharges under the Act within a geographical area.

(7) "Illicit discharge" means any discharge to a municipal separate storm sewer that is not composed entirely of storm water except discharges pursuant to an MPDES permit (other than the MPDES permit for discharges from the municipal separate storm sewer) and discharges resulting from fire fighting activities.

(8) "Infiltration" means water other than wastewater that enters a sewer system (including sewer service connections and foundation drains) from the ground through such means as defective pipes, pipe joints, connections, or manholes. Infiltration does not include inflow.

(9) "Inflow" means water other than wastewater that enters a sewer system (including sewer service connections) from sources including, but not limited to, roof leaders, cellar drains, yard drains, area drains, drains from springs and swampy areas, manhole covers, cross connections between storm sewers and sanitary sewers, catch basins, cooling towers, storm waters, surface runoff, street wash waters, or drainage. Inflow does not include infiltration.

(10) "Major municipal separate storm sewer outfall" or "major outfall" means a municipal separate storm sewer outfall that discharges from a single pipe with an inside diameter of 36 inches or more or its equivalent (discharge from a single conveyance other than circular pipe which is associated with a drainage area of more than 50 acres); or, for municipal separate storm sewers that receive storm water from lands zoned for industrial activity (based on comprehensive zoning plans or the equivalent), an outfall that discharges from a single pipe with an inside diameter of 12 inches or more or from its equivalent (discharge from other than a circular pipe associated with a drainage area of two acres or more).

(11) "Montana pollutant discharge elimination system (MPDES) " means the system developed by the department for issuing permits for the discharge of pollutants from point sources into state waters. The MPDES is specifically designed to be compatible with the federal NPDES program established and administered by the EPA.

(12) "MS4" means a municipal separate storm sewer system.

(13) "Municipal separate storm sewer" means a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains) that discharges to surface waters and is:

(a) owned or operated by the state of Montana, a governmental subdivision of the state, a district, association, or other public body created by or pursuant to Montana law, including special districts such as sewer districts, flood control districts, drainage districts and similar entities, and designated and approved management agencies under section 208 of the federal Clean Water Act, which has jurisdiction over disposal of sewage, industrial wastes, storm water, or other wastes, and is:

(i) designed or used for collecting or conveying storm water;

(ii) not a combined sewer; and

(iii) not part of a publicly owned treatment works (POTW) as defined in ARM Title 17, chapter 30, subchapter 13.

(14) "Outfall" means a point source, as defined in this subchapter, at the point where a municipal separate storm sewer discharges to surface waters. The term does not include open conveyances connecting two municipal separate storm sewers, or pipes, tunnels or other conveyances that connect segments of the same stream or other surface waters and that are used to convey surface waters.

(15) "Overburden" means any material of any nature, consolidated or unconsolidated, that overlies a mineral deposit or economically mineable geologic material (e.g., coal), excluding topsoil or similar naturally occurring surface materials that are not disturbed by mining operations.

(16) "Owner or operator" is defined at 75-5-103, MCA.

(17) "Permit" means an authorization or license issued by EPA or an approved state to implement the requirements of this rule and 40 CFR Parts 123 and 124. The term includes an NPDES general permit (ARM 17.30.1341). The term does not include any permit that has not yet been the subject of final agency action, such as a "draft permit" or a "proposed permit".

(18) "Point source" means any discernible, confined, or discrete conveyance including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel or other floating craft, from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture or agricultural storm water runoff.

(19) "Pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal, and agricultural wastes discharged into water. The terms "sewage," "industrial waste," and "other wastes" as defined in 75-5-103, MCA, are interpreted as having the same meaning as pollutant.

(20) "Process wastewater" means any water that, during manufacturing or processing, comes into direct contact with or results from the production or use of any raw material, intermediate product, finished product, byproduct, or waste product.

(21) "Runoff coefficient" means the fraction of total rainfall that will appear at a conveyance as runoff.

(22) "Site" means the land or water area where any facility or activity is physically located or conducted, including adjacent land used in connection with the facility or activity.

(23) "Small municipal separate storm sewer system" means:

(a) small MS4s, and portions of them, that are located in the following urban areas with a population of 50,000 or more people as determined by the latest decennial census by the United States Census Bureau:

(i) the city of Billings and Yellowstone County;

(ii) the city of Bozeman and Gallatin County;

(iii) the city of Great Falls and Cascade County;

(iv) the city of Helena, city of East Helena, and Lewis and Clark County; and

(v) the city of Missoula and Missoula County;

(b) the following small MS4s serving a population of at least 10,000 as determined by the latest decennial census by the United States Census Bureau and that are located outside of an urban area with a population of 50,000 or more people:

(i) MS4s located in the city of Belgrade;

(ii) MS4s located in the city of Butte; and

(iii) MS4s located in the city of Kalispell;

(d) systems similar to separate storm sewer systems in municipalities, such as systems at military bases, large educational, hospital or prison complexes, and highways and other thoroughfares. The term does not include separate storm sewers in very discrete areas, such as individual buildings.

(24) "Small MS4" means a small municipal separate storm sewer system.

(25) "Source" means any building, structure, facility, or installation from which there is or may be a discharge of pollutants.

(26) "State waters" is defined at 75-5-103, MCA.

(27) "Storm water" means storm water runoff, snow melt runoff, and surface runoff and drainage.

(28) "Storm water discharge associated with construction activity" means a discharge of storm water from construction activities including clearing, grading, and excavation that result in the disturbance of equal to or greater than one acre of total land area. For purposes of these rules, construction activities include clearing, grading, excavation, stockpiling earth materials, and other placement or removal of earth material performed during construction projects. Construction activity includes the disturbance of less than one acre of total land area that is a part of a larger common plan of development or sale if the larger common plan will ultimately disturb one acre or more.

(a) Regardless of the acreage of disturbance resulting from a construction activity, this definition includes any other discharges from construction activity designated by the department pursuant to ARM 17.30.1105(1 )(f).

(b) For construction activities that result in disturbance of less than five acres of total land area, the acreage of disturbance does not include routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original purpose of the facility.

(c) For construction activities that result in disturbance of five acres or more of total land area, this definition includes those requirements and clarifications stated in (29)(a), (b), (d) and (e).

(29) "Storm water discharge associated with industrial activity" means a discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant.

(a) For the categories of industries identified in this definition, the term includes, but is not limited to, storm water discharges from industrial plant yards; immediate access roads and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility; material handling sites; refuse sites; sites used for the application or disposal of process wastewaters (as defined in this subchapter); sites used for the storage and maintenance of material handling equipment; sites used for residual treatment, storage, or disposal; shipping and receiving areas; manufacturing buildings; storage areas (including tank farms) for raw materials, and intermediate and final products; and areas where industrial activity has taken place in the past and significant materials remain and are exposed to storm water.

(b) For the categories of industries identified in (e)(ix) of this definition, the term includes only storm water discharges from all the areas (except access roads and rail lines) that are listed in the previous sentence where material handling equipment or activities, raw materials, intermediate products, final products, waste materials, by-products, or industrial machinery are exposed to storm water.

(c) For the purposes of this definition, material handling activities include the storage, loading and unloading, transportation, or conveyance of any raw material, intermediate product, finished product, by-product, or waste product. The term excludes areas located on plant lands separate from the plant's industrial activities, such as office buildings and accompanying parking lots as long as the drainage from the excluded areas is not mixed with storm water drained from the above described areas.

(d) Industrial facilities (including industrial facilities that are federally, state, or municipally owned or operated that meet the description of the facilities listed in (e)(i) through (ix) and (30)) include those facilities designated under the provisions of ARM 17.30.1105(1)(f).

(e) The following categories of facilities are considered to be engaging in "industrial activity" for the purposes of this definition:

(i) facilities subject to storm water effluent limitations guidelines, new source performance standards, or toxic pollutant effluent standards under 40 CFR subchapter N (except facilities with toxic pollutant effluent standards that are exempted under category (e)(ix) of this definition);

(ii) facilities classified as standard industrial classifications 24 (except 2434), 26 (except 265 and 267), 28 (except 283), 29, 311, 32 (except 323), 33, 3441, 373;

(iii) hazardous waste treatment, storage, and disposal facilities, including those that are operating under interim status or a permit under subtitle C of the federal Resource Conservation and Recovery Act (RCRA);

(iv) landfills, land application sites, and open dumps that receive or have received any industrial wastes (waste that is received from any of the facilities described under this definition, or under the definitions of "storm water discharge associated with mining and oil and gas activities," and "storm water discharge associated with construction activity" that will result in construction-related disturbance of five acres or more of total land area) including those that are subject to regulation under subtitle D of RCRA;

(v) facilities involved in the recycling of materials, including metal scrapyards, battery reclaimers, salvage yards, and automobile junkyards including, but not limited to, those classified as standard industrial classification 5015 and 5093;

(vi) steam electric power generating facilities, including coal handling sites;

(vii) transportation facilities classified as standard industrial classifications 40, 41, 42 (except 4221-25), 43, 44, 45, and 5171, which have vehicle maintenance shops, equipment cleaning operations, or airport deicing operations. Only those portions of a facility that are involved in vehicle maintenance (including vehicle rehabilitation, mechanical repairs, painting, fueling, and lubrication), equipment cleaning operations, airport deicing operations, or that are otherwise identified under this definition are associated with industrial activity;

(viii) treatment works treating domestic sewage or any other sewage sludge or wastewater treatment device or system, which is used in the storage, treatment, recycling, or reclamation of municipal or domestic sewage, including land dedicated to the disposal of sewage sludge that is located within the confines of the facility, and which has a design flow of 1.0 mgd or more or is required to have an approved pretreatment program under 40 CFR Part 403. Not included are farm lands, domestic gardens, and lands used for sludge management where sludge is beneficially reused and that are not physically located in the confines of the facility, and areas that are in compliance with section 405 of the federal Clean Water Act; and

(ix) facilities under standard industrial classifications 20, 21, 22, 23, 2434, 25, 265, 267, 27, 283, 285, 30, 31 (except 311), 323, 34 (except 3441), 35, 36, 37 (except 373), 38, 39, and 4221-25, (and which are not otherwise included within (e)(i) through (e)(viii) of this definition).

(30) "Storm water discharge associated with mining and oil and gas activity" means the same as the definition for "storm water discharges associated with industrial activity" except that the term pertains only to discharges from facilities classified as standard industrial classifications 10 through 14 (mineral industry) that discharge storm water contaminated by contact with or that has come into contact with, any overburden, raw material, intermediate products, finished products, byproducts, or waste products located on the site of such operations. Such facilities include active and inactive mining operations (except for areas of coal mining operations no longer meeting the definition of a reclamation area under 40 CFR 434.11(1) because the performance bond issued to the facility by the appropriate SMCRA authority has been released, and except for areas of non-coal mining operations that have been released from applicable state or federal reclamation requirements after December 17, 1990); and oil and gas exploration, production, processing, or treatment operations; and transmission facilities. "Inactive mining operations" are mining sites that are not being actively mined but that have an identifiable owner/operator, but do not include sites where mining claims are being maintained prior to disturbances associated with the extraction, beneficiation, or processing of mined materials, nor sites where minimal activities are undertaken for the sole purpose of maintaining a mining claim.

(31) "Storm water pollution prevention plan (SWPPP) " means a document developed to help identify sources of pollution potentially affecting the quality of storm water discharges associated with a facility or activity, and to ensure implementation of measures to minimize and control pollutants in storm water discharges associated with a facility or activity. The department determines specific requirements and information to be included in a SWPPP based on the type and characteristics of a facility or activity, and on the respective MPDES permit requirements.

(32) "Surface waters" means any waters on the earth's surface including, but not limited to, streams, lakes, ponds, and reservoirs, and irrigation and drainage systems discharging directly into a stream, lake, pond, reservoir, or other surface water. Water bodies used solely for treating, transporting, or impounding pollutants shall not be considered surface water.

(33) "Total maximum daily load" or "TMDL" is defined at 75-5-103, MCA.

(34) "Uncontrolled sanitary landfill" means a landfill or open dump, whether in operation or closed, that does not meet the requirements for runon or runoff controls established pursuant to subtitle D of the Montana Solid Waste Disposal Act.

(35) "Waste load allocation" means the portion of a receiving water's loading capacity that is allocated to one of its existing or future point sources.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 2003 MAR p. 219, Eff. 2/14/03; AMD, 2024 MAR p. 257, Eff. 2/10/24; AMD, 2026 MAR, Notice No. 2026-489, Eff. 9/5/26.

Mont. Admin. R. 17.30.1105 Permit Requirement

(1) Any person who discharges or proposes to discharge storm water from a point source must obtain coverage under an MPDES general permit or another MPDES permit for discharges:

(a) associated with construction activity;

(b) associated with industrial activity;

(d) from small municipal separate storm sewer systems that are identified in ARM 17.30.1102 or designated pursuant to ARM 17.30.1107;

(e) for which the department determines that storm water controls are needed based on wasteload allocations that are part of TMDLs that address the pollutants of concern; and

(f) that the department determines are contributing to a violation of a water quality standard or are significant contributors of pollutants to surface waters.

(2) For point source discharges of storm water identified in (1) (a) through (f) that are routinely composed entirely of storm water, authorization under an MPDES general permit must be obtained pursuant to this subchapter, unless the discharge is covered under an individual MPDES permit that is issued pursuant to ARM Title 17, chapter 30, subchapter 13 to the same owner or operator for other point source discharges.

(3) For point source discharges of storm water identified in (1) (a) through (f) that are not routinely composed of storm water, and that routinely discharge pollutants, coverage under an individual MPDES storm water permit or under an MPDES general permit must be obtained pursuant to ARM Title 17, chapter 30, subchapter 13.

(4) Any person who discharges or proposes to discharge storm water combined with municipal sewage from a point source shall obtain MPDES permits in accordance with the procedures set out in ARM Title 17, chapter 30, subchapter 13 and is not subject to the provisions of this subchapter.

(5) The department may waive the permit requirements in this subchapter for a storm water discharge associated with construction activity that disturbs less than five acres of total land area if either of the following two conditions exist:

(a) the value of the rainfall erosivity factor ("R" in the revised universal soil loss equation) is less than five during the period of construction activity. The period of construction activity extends through to final stabilization. The rainfall erosivity factor must be determined using a state-approved method. The owner or operator must certify to the department that the construction activity will take place only during a period when the value of the rainfall erosivity factor is less than five. If unforeseeable conditions occur that are outside of the control of the waiver applicant, and which will extend the construction activity beyond the dates initially applied for, the owner or operator shall reapply for the waiver or obtain authorization under the general permit for storm water discharges associated with construction activity. The waiver reapplication or notice of intent must be submitted within two business days after the unforeseeable condition becomes known; or

(b) storm water controls are not needed based on a TMDL approved or established by EPA that addresses the pollutants of concern or, for non-impaired waters that do not require TMDLs, an equivalent analysis that determines allocations for construction sites disturbing less than five acres of total land area for the pollutants of concern or that determines that such allocations are not needed to protect water quality based on consideration of existing in-stream concentrations, expected growth in pollutant contributions from all sources, and a margin of safety. For the purposes of this rule, pollutants of concern include sediment, or a parameter that addresses sediment (such as total suspended solids, turbidity or siltation) , and any other pollutant that has been identified as a cause of impairment of any water body that will receive a discharge from the construction activity. The operator shall certify to the department that the construction activity will take place, and that storm water discharges will occur, within the drainage area addressed by the TMDL or equivalent analysis.

(6) Prior to October 1, 1994, discharges composed entirely of storm water are not required to obtain an MPDES permit except for:

(a) discharges with respect to which an individual MPDES permit has been issued prior to February 4, 1987; and

(b) discharges listed in (1) (a) , (b) , (c) , and (f) , except that, for discharges listed in (1) (a) , this requirement applies only to storm water discharges associated with construction activity that will result in construction-related disturbance of five acres or more of total land area.

(7) For storm water discharges designated by the department under (1) (e) and (f) , the owner or operator shall apply for a permit within 180 days of receipt of the department's notice of designation, unless the department grants a later date.

(8) Except as provided in (9) , if not authorized under a storm water general permit, a permit application or notice of intent must be submitted to the department for stormwater discharges existing as of October 1, 1992, that are associated with:

(a) industrial activity;

(b) mining and oil and gas activity; and

(c) construction activity that will result in construction-related disturbances of five acres or more of total land area and for which storm water discharges are not authorized by a storm water general permit.

(9) For discharges identified in (8) (a) through (c) that are not authorized by a general or individual MPDES permit, and which are from a facility, other than an airport, powerplant, or uncontrolled sanitary landfill, that is owned or operated by a municipality with a population of under 100,000, the permit requirements in this subchapter are effective beginning March 10, 2003.

(10) The eligibility of an owner or operator of a discharge from an MS4 for funding under Title II, Title III, or Title VI of the federal Clean Water Act shall not be affected by the regulation or nonregulation of the MS4 under this subchapter.

(11) A person may petition the department to require an MPDES permit for a discharge that is composed entirely of storm water that contributes to a violation of a water quality standard or is a significant contributor of pollutants to surface waters.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 2003 MAR p. 219, Eff. 2/14/03.

Mont. Admin. R. 17.30.1106 Exclusions

(1) In addition to the exclusions stated in ARM 17.30.1310, the following storm water discharges do not require MPDES permits:

(a) point source discharges of storm water to ground water as provided in 75-5-401(5)(g), MCA;

(b) existing or new discharges composed entirely of storm water from oil or gas exploration, production, processing, or treatment operations, or transmission facilities, unless the operation or facility:

(i) has had, at any time since November 16, 1987, a discharge of storm water resulting in the discharge of a reportable quantity for which notification is or was required pursuant to 40 CFR 110.6, 40 CFR 117.21, or 40 CFR 302.6; or

(ii) contributes to a violation of a water quality standard;

(c) existing or new discharges of storm water runoff from mining operations, from oil and gas exploration, production, processing, treatment operations, or transmission facilities, if such existing or new discharges are composed entirely of flows which are from conveyances or systems of conveyances including, but not limited to, pipes, conduits, ditches, and channels, used for collection and conveying precipitation runoff and which have not come into contact with any overburden, raw material, intermediate products, finished product, byproduct, or waste products located on the site of such operation. For purposes of this rule only, "oil and gas exploration, production, processing, treatment operations or transmission facilities" means all field activities or operations associated with exploration, production, processing, or treatment operations or transmission facilities, including activities necessary to prepare a site for drilling and for the movement and placement of drilling equipment, whether or not such field activities or operations may be considered to be construction activity.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 2003 MAR p. 219, Eff. 2/14/03; AMD, 2014 MAR p. 3056, Eff. 12/25/14.

Mont. Admin. R. 17.30.1107 Designation Procedures: Small Ms4s

(1) For purposes of this rule, "designation" means a determination by the department that an MS4 is subject to the permit requirements of this subchapter.

(2) The department shall designate an MS4 other than those identified in ARM 17.30.1102(23) if a discharge from the MS4 results in, or has the potential to result in, exceedances of water quality standards, including impairment of designated uses, or has other significant water quality impacts, including habitat and biological impacts. In making a designation under this subsection, the department shall:

(a) consider whether the MS4:

(i) has discharges to a listed impaired waterbody that is on the most recent 303(d) list;

(ii) has high growth or growth potential;

(iii) has high population density;

(iv) is contiguous to an urban area with a population of 50,000 or more people as determined by the latest decennial census by the United States Census Bureau; and

(v) is a significant contribution of pollutants to surface waters; and

(b) place a high priority on evaluating small MS4s that have a combined permanent and seasonal population of over 10,000, as determined by the latest decennial census by the United States Census Bureau plus the number of commercially advertised bedroom accommodations that will allow for an overnight stay, as listed through the chamber of commerce, or any local resort or property management company.

(3) The department shall designate an MS4 other than those identified in ARM 17.30.1102(23) if the MS4 contributes substantially to the pollutant loadings of a physically interconnected municipal separate storm sewer that is a regulated small MS4 under these rules.

(4) The department may designate an MS4 other than those identified in ARM 17.30.1102(23) pursuant to the criteria in ARM 17.30.1105(1)(e) or (f).

(5) The department may designate discharges from municipal separate storm sewers on a system-wide or on a jurisdiction-wide basis. In making its designation the department may consider the following factors:

(a) the location of the discharge with respect to surface waters;

(b) the size of the discharge;

(d) other relevant factors.

(6) Upon petition, the department may designate an MS4 under the appropriate criteria in these rules. The department shall make a final determination on a petition to designate a small MS4 within 180 days after receipt of the petition.

(7) An MS4 may petition the department to reduce the census estimates of the population served by the MS4 to account for storm water discharges to combined sewers, as defined in 40 CFR 35.2005(b) (11) , that are treated in a publicly owned treatment works. In municipalities in which combined sewers are operated, the census estimates of population may be reduced in proportion to the fraction, based on estimated lengths, of the length of combined sewers over the sum of the length of combined sewers and municipal separate storm sewers. The MS4 shall submit the MPDES permit number associated with each discharge point and a map indicating areas served by combined sewers and the location of any combined sewer overflow discharge point.

(8) The department may re-evaluate its designation of an MS4 if circumstances change or if new information becomes available.

(9) The department may waive the permit requirements of this subchapter for an MS4 identified in ARM 17.30.1102(23) if the MS4 demonstrates to the department that the MS4 has existing storm water quality control programs that are equivalent to the six minimum control measures set out in ARM 17.30.1111.

(10) The department may waive the permit requirements of this subchapter for an MS4, which would otherwise be regulated because it is located within an urban area with a population of 50,000 or more people as determined by the latest decennial census of the United States Census Bureau, if the MS4 serves a population of under 1,000 and both of the following criteria are met:

(a) discharges from the MS4 are not contributing substantially to the pollutant loadings of a physically interconnected regulated MS4; and

(b) storm water controls are not needed for the MS4 based on wasteload allocations that are part of an EPA-approved or established TMDL that addresses the pollutants of concern.

(11) The department may waive the permit requirements of this subchapter for an MS4, which would otherwise be regulated because it is located within an urban area with a population of 50,000 or more people as determined by the latest decennial census by the United States Census Bureau, if the MS4 serves a population of between 1,000 and 10,000 and both of the following criteria are met:

(a) the department has evaluated all surface waters, including small streams, tributaries, lakes, and ponds, that receive a discharge from the MS4 and has determined that storm water controls are not needed based on wasteload allocations that are part of an EPA-approved or established TMDL that addresses the pollutants of concern or, if a TMDL has not been developed or approved, an equivalent analysis that determines sources and allocations for the pollutants of concern;

(i) for purposes of this subsection, pollutants of concern include biochemical oxygen demand (BOD), sediment or a parameter that addresses sediment (such as total suspended solids, turbidity, or siltation), pathogens, oil and grease, and any pollutant that has been identified as a cause of impairment of any water body that will receive a discharge from the MS4; and

(b) the department has determined that current and future discharges from the MS4 do not have the potential to result in exceedances of water quality standards, including impairment of designated uses, or other significant water quality impacts, including habitat and biological impacts.

(12) The department shall at least once every five years review all waivers granted under this rule to determine whether any of the information required for granting the waiver has changed. The department shall consider a petition to review a waiver if the petitioner provides evidence that the information required for granting the waiver has substantially changed.

(13) The department may designate an MS4 for which the permit requirement is waived under this rule if circumstances change or new information becomes available.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 2003 MAR p. 219, Eff. 2/14/03; AMD, 2026 MAR, Notice No. 2026-489, Eff. 9/5/26.

Mont. Admin. R. 17.30.1110 Application Procedures: General

(1) This rule does not apply to storm water discharges associated with construction activity. The application procedures for such discharges are set out in ARM 17.30.1115.

(2) When a facility or activity is owned by one person but is operated by another person, it is the operator's duty to obtain a permit.

(3) Any person proposing a new point source discharge of storm water shall submit a complete application, as provided in (5) , at least 30 days before the date on which the discharge is to commence, unless permission for a later date has been granted by the department. Persons proposing a new discharge are encouraged to submit their applications well in advance of the 30-day requirement to avoid delay.

(4) Permittees of point source discharges of storm water with currently effective authorizations under a general permit shall submit a new application 30 days before the existing permit expires. The department may extend this deadline but may not extend it beyond the permit expiration date.

(5) The department may not issue an authorization under a general permit until it has received a complete application.

(a) An application for authorization under a general permit is complete when the department receives:

(i) a department application form, with the information required in (6) , and a completed SWPPP. Both the application and SWPPP must be signed as provided in ARM 17.30.1323; and

(ii) the permit fee required in ARM 17.30.201.

(b) The completeness of any application for a permit must be judged by the department independently of the status of any other permit application or permit for the same facility or activity.

(6) Applicants shall provide the following information to the department, using the application form provided by the department:

(a) a description of the nature of the business or activity that requires authorization for a point source discharge of storm water under an MPDES general permit;

(b) the name and mailing address of the owner or operator;

(d) a facility or activity contact person and telephone number;

(e) for industrial or mining and oil and gas activities, the standard industrial classification (SIC) codes that best reflect the principal products or services provided by the facility;

(f) a description of point source discharges of storm water including an indication of drainage patterns and receiving surface waters;

(g) a listing of all permits and construction approvals received or applied for from state or federal regulatory agencies;

(h) a copy of a USGS topographic quadrangle map extending one mile beyond the property boundaries of the point source discharge of storm water, depicting the facility or activity boundaries and major drainage patterns and receiving surface waters;

(i) the signature of the certifying official under ARM 17.30.1323; and

(j) any other information requested by the department.

(7) Applicants shall submit to the department a copy of the facility or activity SWPPP that provides all information requested under the SWPPP requirements as stated in the respective general permit.

(8) Applicants shall submit to the department a certification that all point source discharges of storm water have been tested or evaluated for the presence of non-storm water discharges (other than the potential non-storm water discharges for MS4s listed in ARM 17.30.1111(6) (c) (iii) ) that are not covered by an MPDES permit. If storm water sampling and analytical testing was performed as a basis for this certification, the certification must include a description of any analytical test method used, the date of any testing, and the on-site drainage points that were sampled. If a contract laboratory or consulting firm performed analyses that generated quantitative data upon which conclusions and resultant determinations are based for regulated point source discharges of storm water and potential pollutant concentrations, the identity of each laboratory or firm and the analyses performed must be provided.

(9) In addition to the information reported on the application form, applicants shall provide to the department, at its request, such other information as the department determines is reasonably necessary to assess the discharges of the facility and to determine whether to authorize the discharge under an MPDES individual or general permit.

(10) Applicants shall keep records of all data used to complete permit applications and any supplemental information submitted under this subchapter for a period of at least three years from the date the application is signed.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 2003 MAR p. 219, Eff. 2/14/03.

Mont. Admin. R. 17.30.1111 Application Procedures, Permit Requirements: Small Ms4s

(1) Owners or operators of small MS4s shall apply for authorization under an MPDES permit as provided in ARM 17.30.1110 and this rule.

(a) For small MS4s in existence on February 14, 2003, the permit requirements in this subchapter are effective beginning March 10, 2003.

(b) The owner or operator of a small MS4 that is designated after February 14, 2003 by the department under ARM 17.30.1107 shall apply for authorization within 180 days of notice by the department, unless the department grants a later date.

(2) Small MS4s shall complete an application for authorization in accordance with the requirements in ARM 17.30.1110. The application must also include the following information:

(a) a description of the BMPs that the MS4 will implement for each of the six storm water minimum control measures set out in (6) ;

(b) identification of the measurable goals for each of the BMPs including, as appropriate, the months and years in which the MS4 will undertake required actions, including interim milestones and the frequency of the action; and

(3) A small MS4 may file its own application or may jointly submit an application with other municipalities or governmental entities. If a small MS4 intends to share responsibilities for meeting the minimum control measures with other municipalities or governmental entities, the small MS4 shall submit an application that describes which minimum control measures it will implement and identify the entities that will implement the other minimum control measures within the area served by the small MS4.

(4) The general permit may include other steps necessary to obtain permit authorization.

(5) The MPDES permit for small MS4s must require at a minimum that MS4s develop, implement, and enforce a storm water management program designed to reduce the discharge of pollutants from the MS4 to the maximum extent practicable (MEP) , to protect water quality, and to satisfy the appropriate water quality requirements of the federal Clean Water Act. The storm water management program must include the minimum control measures described in (6) .

(a) For purposes of this rule, narrative effluent limitations requiring implementation of BMPs are the most appropriate form of effluent limitations when designed to satisfy technology requirements (including reductions of pollutants to the maximum extent practicable) and to protect water quality. Implementation of BMPs consistent with the provisions of the storm water management program required pursuant to this rule and the provisions of the permit shall constitute compliance with the standard of reducing pollutants to the maximum extent practicable. The department shall specify a time period of up to five years from the date of the permit or permit authorization for the MS4 to develop and implement the program.

(6) Minimum control measures include, but are not limited to:

(a) public education and outreach on storm water impacts. A small MS4 shall implement a public education program to distribute educational materials to the community or conduct equivalent outreach activities about the impacts of storm water discharges on water bodies and the steps that the public can take to reduce pollutants in storm water runoff;

(b) public involvement/participation. A small MS4 shall, at a minimum, comply with state and local public notice requirements when implementing a public involvement/ participation program;

(i) a small MS4 shall develop, implement and enforce a program to detect and eliminate illicit discharges into the small MS4;

(ii) a small MS4 shall:

(A) develop, if not already completed, a storm sewer system map, showing the location of all outfalls and the names and locations of all outfall receiving waters;

(B) to the extent allowable under state or local law, effectively prohibit, through ordinance or other regulatory mechanism, non-storm water discharges (other than the potential non-storm water discharges for MS4s listed in ARM 17.30.1111(6) (c) (iii) ) into the MS4 and implement appropriate enforcement procedures and actions;

(C) develop and implement a plan to detect and address non-storm water discharges, including illegal dumping, to the MS4; and

(D) inform public employees, businesses, and the general public of hazards associated with illegal discharges and improper disposal of waste;

(iii) a small MS4 shall address the following categories of non-storm water discharges or flows (i.e., illicit discharges) only if it identifies them as significant contributors of pollutants to the MS4:

(A) water line flushing, landscape irrigation, diverted stream flows, rising ground waters, uncontaminated ground water infiltration (as defined in ARM 17.30.1102(8) ) , uncontaminated pumped ground water, discharges from potable water sources, foundation drains, air conditioning condensation, irrigation water, springs, water from crawl space pumps, footing drains, lawn watering, individual residential car washing, flows from riparian habitats and wetlands, dechlorinated swimming pool discharges, and street wash water;

(B) discharges or flows from fire fighting activities are excluded from the effective prohibition against non-storm water and need only be addressed where they are identified as significant sources of pollutants to surface waters;

(d) construction site storm water runoff control measures including:

(i) a small MS4 shall develop, implement, and enforce a program to reduce pollutants in any storm water runoff to the MS4 from construction activities that result in a land disturbance of greater than or equal to one acre. Reduction of storm water discharges from construction activity disturbing less than one acre must be included in the program if that construction activity is part of a larger common plan of development or sale that would disturb one acre or more. If the department waives requirements for a construction site in accordance with ARM 17.30.1105(5) , the small MS4 is not required to develop, implement, or enforce a program to reduce pollutant discharges from such sites;

(ii) the development and implementation of, at a minimum:

(A) an ordinance or other regulatory mechanism to require erosion and sediment controls, as well as sanctions to ensure compliance, to the extent allowable under state or local law;

(B) requirements for construction site operators to implement appropriate erosion and sediment control BMPs;

(C) requirements for construction site operators to control waste such as discarded building materials, concrete truck washout, chemicals, litter, and sanitary waste at the construction site that may cause adverse impacts to water quality;

(D) procedures for site plan review that incorporate consideration of potential water quality impacts;

(E) procedures for receipt and consideration of information submitted by the public; and

(F) procedures for site inspection and enforcement of control measures;

(e) post-construction storm water management in new development and redevelopment. A small MS4 shall:

(i) develop, implement, and enforce a program to address storm water runoff from new development and redevelopment projects that disturb greater than or equal to one acre, including projects less than one acre that are part of a larger common plan of development or sale, that discharge into the MS4. The program must ensure that controls are in place that would prevent or minimize water quality impacts;

(ii) develop and implement strategies that include a combination of structural and non-structural BMPs appropriate for the community;

(iii) develop and implement an ordinance or other regulatory mechanism to address post-construction runoff from new development and redevelopment projects to the extent allowable under state or local law; and

(iv) ensure adequate long-term operation and maintenance of BMPs;

(f) pollution prevention and good housekeeping measures for municipal operations. A small MS4 shall develop and implement an operation and maintenance program that includes a training component and has the goal of preventing or reducing pollutant runoff from municipal operations. Using training materials that are available from EPA, the state of Montana, or other organizations, the program must include employee training to prevent and reduce storm water pollution from activities such as park and open space maintenance, fleet and building maintenance, new construction and land disturbances, and storm water system maintenance.

(7) A small MS4 may share the responsibility to implement the minimum control measures with another entity in order to satisfy their MPDES permit obligations to implement a minimum control measure.

(a) Shared responsibility is allowed only if:

(i) the other entity implements the control measure;

(ii) the particular control measure, or component thereof, is at least as stringent as the corresponding MPDES permit requirement; and

(iii) the other entity agrees to implement the control measure on behalf of the owners or operators of the regulated small MS4.

(b) In the reports submitted under (14) , the owners or operators must specify that they are relying on another entity to satisfy some of their permit obligations, unless the other entity is responsible to file the reports.

(c) The MS4 remains responsible for compliance with its permit obligations if the other entity fails to implement the control measure (or component thereof) . The MS4 should enter into a legally binding agreement with the other entity in order to minimize uncertainty about compliance with the MPDES permit.

(8) The department may specify in an MPDES permit that another governmental entity is responsible for implementing one or more of the minimum control measures for a small MS4. If the department does so, the MS4 is not required to include such minimum control measures in its storm water management program. The department may modify an MPDES permit or permit authorization to require an MS4 to implement a minimum control measure if the other entity fails to implement it.

(9) If a qualifying local program requires a small MS4 to implement one or more of the six minimum control measures of this rule, the department may include conditions in the MPDES permit or permit authorization that direct the MS4 to follow that qualifying program's requirements rather than the minimum control measures requirements of this rule. A "qualifying local program" is a local municipal storm water management program that imposes the relevant minimum control measures stated in (6) .

(10) A small MS4 is not required to meet any measurable goals identified in its application in order to demonstrate compliance with the minimum control measures in (6) (c) through (f) if EPA or the department has not provided a menu of BMPs that addresses each such minimum measure. In that event, the MS4 shall comply with other requirements of the general permit, including good faith implementation of BMPs designed to comply with the minimum control measures.

(11) The department may include, in an authorization issued to a small MS4, limitations that are more stringent than those contained in the general permit. Such limitations must be based on a TMDL or equivalent analysis that determines such limitations are needed to protect water quality.

(12) A small MS4 shall evaluate program compliance, the appropriateness of its identified BMPs, and progress towards achieving its identified measurable goals.

(13) A small MS4 shall keep records required by the MPDES permit for at least three years and shall provide its records to the department upon request. Records, including a description of the storm water management program, must be made available to the public at reasonable times during regular business hours. Provisions for the confidentiality of records are stated in ARM 17.30.1321.

(14) Unless a small MS4 relies on another entity to satisfy its MPDES permit obligations under (7) , the MS4 shall submit annual reports to the department for the first permit term. For subsequent permit terms, the MS4 shall submit reports in years two and four unless the department requires more frequent reports. The annual report must:

(a) describe the status of compliance with permit conditions, the appropriateness of the identified BMPs, and progress towards achieving the identified measurable goals for each of the minimum control measures;

(b) include information collected and analyzed, including monitoring data, if any, during the reporting period;

(d) describe changes in any identified BMPs or measurable goals for any of the minimum control measures; and

(e) notify the department if the MS4 is relying on another governmental entity to satisfy some of its permit obligations.

(15) The department may issue permits for small MS4s that are designated under ARM 17.30.1107 on a system-wide basis, jurisdiction-wide basis, watershed basis, or other appropriate basis, or may issue permits for individual discharges.

(16) An owner or operator of a small municipal separate storm sewer system may petition the department to require a separate MPDES permit for any discharge into the small municipal separate storm sewer system.

(17) When, for the discharges listed in (1) , more than one operator discharges storm water through a non-municipal or nonpublicly owned separate storm sewer system, the department may either issue a single permit to all dischargers as co-permittees, or issue separate permits to each discharger on the system. If the department issues a single permit to all dischargers on the system, each co-permittee shall be responsible only for the portion of the discharge under its ownership or control.

(a) This subsection applies to storm water discharges associated with industrial, mining, oil and gas, and construction activity that will result in construction-related disturbance of five acres or more of total land area.

(b) If there is more than one operator of a single system of such non-municipal conveyances, all operators of storm water discharges must submit applications.

(18) Each permit covering more than one operator must identify the effluent limitations, or other permit conditions if any, that apply to each operator.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 2003 MAR p. 219, Eff. 2/14/03.

Mont. Admin. R. 17.30.1115 Notice of Intent Procedures: Construction Activity

(1) A person who discharges or proposes to discharge storm water associated with construction activity shall submit to the department a notice of intent (NOI) as provided in this rule.

(a) The NOI must be signed by the owner of the project or by the operator, or by both the owner and the operator if both have responsibility to ensure that daily project activities comply with the SWPPP and other general permit conditions. If more than one operator is responsible for compliance with the SWPPP and general permit each operator shall sign the NOI.

(i) persons signing an NOI shall comply with the permit application signature requirements set out in ARM 17.30.1323.

(b) For storm water discharges associated with construction activity that result in construction-related disturbance of less than five acres of total land area, the permit requirements in this subchapter are effective beginning March 10, 2003.

(2) An NOI must be completed on an NOI form developed by the department. The NOI must be completed in accordance with the requirements stated in the general permit, and must include the legal name and address of the operators, the facility name and address, the type of facility or discharges, and the receiving surface waters.

(a) An NOI must include a narrative description of:

(i) the location (including a map) and the nature of the construction activity;

(ii) the total area of the site and the area within the site that is expected to undergo excavation during the life of the permit;

(iii) proposed measures, including BMPs, to control pollutants in storm water discharges during construction, including a brief description of applicable local erosion and sediment control requirements;

(iv) proposed measures to control pollutants in storm water discharges that will occur after construction operations have been completed, including a brief description of applicable local erosion and sediment control requirements;

(v) for a storm water discharge that will result in construction-related disturbance of five acres or more of total land area, an estimate of the runoff coefficient of the site and the increase in impervious area after the construction addressed in the permit application is completed, the nature of fill material and existing data describing the soil or the quality of the discharge; and

(vi) the name of the receiving surface waters.

(3) An NOI must be accompanied by a SWPPP, which must be completed in accordance with the requirements identified in the general permit including the following:

(a) the SWPPP must be signed by all signatories to the NOI; and

(b) the SWPPP must require the identification and assessment of potential pollutant sources that could be exposed to storm water runoff, and must contain provisions to implement BMPs, in accordance with the general permit.

(4) Authorization to discharge under the general permit is effective upon receipt by the department of a complete notice of intent and SWPPP, together with the permit fee, by the date on which construction-related disturbance is initiated.

(5) The department may include, in the general permit for storm water discharges associated with construction activity, conditions that incorporate by reference qualifying local erosion and sediment control program requirements. A "qualifying local erosion and sediment control program" is one that includes the elements listed in (6) and all additional requirements necessary to achieve the applicable technology-based standards of best available technology (BAT) and best conventional technology (BCT) . If a qualifying local program does not include one or more of the elements in (6) , then the department shall include those elements as conditions in the permit.

(6) A qualifying local erosion and sediment control program includes requirements for construction site operators to:

(a) implement appropriate erosion and sediment control BMPs;

(b) control waste such as discarded building materials, concrete truck washout, chemicals, litter, and sanitary waste at the construction site that may cause adverse impacts to water quality;

(c) develop and implement a SWPPP. A SWPPP includes site descriptions, descriptions of appropriate control measures, copies of approved local requirements, maintenance procedures, inspection procedures, and identification of non-storm water discharges; and

(d) submit a site plan for review that incorporates consideration of potential water quality impacts.

(7) Permittees shall keep records of all data used to complete the NOI and SWPPP and any supplemental information submitted under this subchapter for a period of at least three years from the date the NOI is signed.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 2003 MAR p. 219, Eff. 2/14/03.

Mont. Admin. R. 17.30.1116 Industrial No-Exposure Certification

(1) Discharges composed entirely of storm water are not regulated as discharges associated with industrial activity or discharges associated with mining and oil and gas activity if there is no exposure of industrial materials and activities to rain, snow, snowmelt, and/or runoff, and the discharger satisfies the conditions in this rule.

(a) For purposes of this rule, "no exposure" means that all industrial materials and activities are protected by a storm-resistant shelter to prevent exposure to rain, snow, snowmelt, and/or runoff. Industrial materials or activities include, but are not limited to, material handling equipment or activities, industrial machinery, raw materials, intermediate products, byproducts, final products, or waste products. Material handling activities include the storage, loading and unloading, transportation, or conveyance of any raw material, intermediate product, final product, or waste product.

(2) To qualify for the exclusion in this rule, the owner or operator of the discharge must:

(a) except as provided in (3) , provide a storm-resistant shelter to protect industrial materials and activities from exposure to rain, snow, snowmelt, and/or runoff;

(b) complete and sign, in accordance with ARM 17.30.1323, a certification form developed by the department that indicates there are no discharges of storm water contaminated by exposure to industrial materials and activities from the entire facility, except as provided in (3) ;

(d) allow the department to inspect the facility to determine compliance with the no-exposure conditions;

(e) allow the department to make no-exposure inspection reports available to the public upon request; and

(f) for facilities that discharge through an MS4, submit a copy of the certification of no exposure to the MS4 operator, and allow inspection and public reporting by the MS4 operator.

(3) A storm resistant shelter is not required for:

(a) drums, barrels, tanks and similar containers that are tightly sealed, if the containers are not deteriorated and do not leak. For purposes of this rule, "sealed" means banded or otherwise secured and without operational taps or valves; or

(b) final products, other than products that would be mobilized in storm water discharge (e.g., rock salt) .

(4) The exclusion in this rule is subject to the following limitations:

(a) the exclusion is not available for storm water discharges associated with construction activity as defined in this subchapter;

(b) the exclusion is available on a facility-wide basis only, not for individual outfalls. If a facility has some discharges of storm water that would otherwise be no-exposure discharges, permit requirements should be adjusted accordingly;

(c) if circumstances change and industrial materials or activities become exposed to rain, snow, snowmelt, and/or runoff, the conditions for this exclusion no longer apply. In such cases, the discharge becomes subject to enforcement for unpermitted discharge. Any conditionally exempt discharger who anticipates changes in circumstances should apply for and obtain permit authorization prior to the change of circumstances; and

(d) the department may deny an exclusion under this rule if it determines that the discharge causes, has a reasonable potential to cause, or contributes to a violation of a water quality standard, including designated uses.

(5) A no-exposure certification must contain the following information, at a minimum, to aid the department in determining whether a facility qualifies for the no-exposure exclusion:

(a) the legal name, address and phone number of the discharger;

(b) the facility name and address, the county name, and the township, range, section and 1/4 section where the facility is located;

(c) certification that none of the following materials or activities are, or will be in the foreseeable future, exposed to precipitation:

(i) use, storage or cleaning of industrial machinery or equipment, and areas where residuals from such activities remain and are exposed to storm water;

(ii) materials or residuals on the ground or in storm water inlets from spills/leaks;

(iii) materials or products from past industrial activity;

(iv) material handling equipment, except for adequately maintained vehicles;

(v) materials or products during loading/unloading or transporting activities;

(vi) materials or products stored outdoors, except final products intended for outside use (e.g., new cars) , if exposure to storm water does not result in the discharge of pollutants;

(vii) materials contained in open, deteriorated or leaking storage drums, barrels, tanks and similar containers;

(viii) materials or products handled/stored on roads or railways owned or maintained by the discharger;

(ix) waste material, except waste in covered, non-leaking containers (e.g., dumpsters) ;

(x) application or disposal of process wastewater, unless otherwise permitted; and

(xi) particulate matter or visible deposits of residuals from roof stacks/vents not otherwise regulated, i.e., under an air quality control permit, and evident in the storm water outflow;

(d) the following certification statement, which must be signed in accordance with the signatory requirements of ARM 17.30.1323: "I certify under penalty of law that I have read and understand the eligibility requirements for claiming a condition of "no exposure" and obtaining an exclusion from MPDES storm water permitting; and that there are no discharges of storm water contaminated by exposure to industrial activities or materials from the industrial facility identified in this document (except as allowed under ARM 17.30.1116(3) ) . I understand that I am obligated to submit a no-exposure certification form once every five years to the department and, if requested, to the operator of the local MS4 into which this facility discharges (where applicable) . I understand that I must allow the department, or MS4 operator where the discharge is into the local MS4, to perform inspections to confirm the condition of no exposure and to make such inspection reports publicly available upon request. I understand that I must obtain coverage under an MPDES permit prior to any point source discharge of storm water from the facility. I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gathered and evaluated the information submitted. Based upon my inquiry of the person or persons who manage the system, or those persons directly involved in gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 2003 MAR p. 219, Eff. 2/14/03.

Mont. Admin. R. 17.30.1117 Transfer of Permit Coverage

(1) General permit authorizations and NOIs for storm water discharges regulated under this subchapter are not transferable to a new owner or operator, including when the name and/or legal ownership of a party changes, unless the new or revised owner or operator of a facility or activity submits a new application or NOI form, a revised SWPPP if necessary, and other revised documents or information that are necessary to indicate the current conditions or status. Persons requesting transfer of general permit coverage must comply with the application procedures stated in the respective general permit and must pay a fee. If the new permittee develops a new SWPPP, the new permittee shall implement the old SWPPP until the new SWPPP is developed and implemented.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 2003 MAR p. 219, Eff. 2/14/03.

Subchapter 17.30.12 Montana Pollutant Discharge Elimination System (MPDES) Standards

Mont. Admin. R. 17.30.1201 Purpose and Scope

(1) The purpose of this subchapter is to establish effluent limitations and standards, treatment requirements, standards of performance, and other requirements for point sources discharging wastes into state surface waters. These requirements, together with the rules in subchapter 13, are adopted to discharge the responsibilities of the department under Title 75, chapter 5, parts 3 and 4, Montana Code Annotated, the Montana Water Quality Act, to adopt effluent limitations and standards, standards of performance, and treatment requirements for permits issued to point sources discharging into state surface waters. These requirements are adopted in a manner that implements the national pollutant discharge elimination system (NPDES) established under sections 301, 302, 304, 306, 307, 316, 318, and 402 of the federal Clean Water Act.

History

Authorizing statute(s): 75-5-304, MCA
Implementing statute(s): 75-5-304, 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2011 MAR p. 2131, Eff. 10/14/11; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.1202 Definitions

The following definitions, in addition to those in 75-5-103, MCA, apply throughout this subchapter:

(1) "Alternative effluent limitations" means all effluent limitations or standards of performance for the control of the thermal component of any discharge which are established under section 316(a) of the federal Clean Water Act and this subchapter.

(2) "Annual mean flow" means the average of daily flows over a calendar year. Historical data, up to ten years, must be used where available.

(3) "Applicable standards and limitations" is defined in ARM 17.30.1304.

(4) "Balanced, indigenous community" means a biotic community typically characterized by diversity, the capacity to sustain itself through cyclic changes, presence of necessary food chain species, and a lack of domination by pollution-tolerant species. Such a community may include historically non-native species introduced in connection with a program of wildlife management and species whose presence or abundance results from substantial, irreversible environmental modifications. Normally, however, such a community will not include species whose presence or abundance is attributable to the introduction of pollutants that will be eliminated by compliance by all sources with section 301(b)(2) of the federal Clean Water Act, and may not include species whose presence or abundance is attributable to alternative effluent limitations imposed pursuant to section 316(a) of the federal Clean Water Act.

(5) "Board" means the Montana Board of Environmental Review established by 2-15-3502, MCA.

(6) "Closed-cycle recirculating system" means a system designed, using minimized makeup and blowdown flows, to withdraw water from a natural or other water source to support contact and/or noncontact cooling uses within a facility. The water is usually sent to a cooling canal or channel, lake, pond, or tower to allow waste heat to be dissipated to the atmosphere and then is returned to the system. Some facilities divert the waste heat to other process operations. New source water (make-up water) is added to the system to replenish losses that have occurred due to blowdown, drift, and evaporation.

(7) "Conventional pollutant" means the following list of pollutants:

(a) biochemical oxygen demand (BOD);

(b) total suspended solids (nonfilterable) (TSS);

(d) fecal coliform; and

(e) oil and grease.

(8) "Cooling water" means water used for contact or noncontact cooling, including water used for equipment cooling, evaporative cooling tower makeup, and dilution of effluent heat content. The intended use of the cooling water is to absorb waste heat rejected from the process or processes used, or from auxiliary operations on the facility's premises. Cooling water that is used in a manufacturing process, either before or after it is used for cooling, is considered process water for the purposes of calculating the percentage of a new facility's intake flow that is used for cooling purposes in ARM 17.30.1211(6).

(9) "Cooling water intake structure" means the total physical structure and any associated constructed waterways used to withdraw cooling water from state surface water. The cooling water intake structure extends from the point at which water is withdrawn from the surface water source up to, and including, the intake pumps.

(10) "Department" means the Montana Department of Environmental Quality established by 2-15-3501, MCA.

(11) "Design intake flow" means the value assigned, during the facility's design, to the total volume of water withdrawn from a source waterbody over a specific time period.

(12) "Design intake velocity" means the value assigned, during the design of a cooling water intake structure, to the average speed at which intake water passes through the open area of the intake screen, or other device, against which organisms might be impinged or through which they might be entrained.

(13) "Effluent limitation" means any restriction or prohibition imposed by the department on quantities, discharge rates, and concentrations of chemical, physical, biological, and other constituents that are discharged from point sources, other than new sources, into state surface waters, including schedules of compliance.

(14) "Effluent limitations guidelines" means a regulation published by EPA in 40 CFR Chapter I, Subchapter N, pursuant to the requirements in section 304(b) of the federal Clean Water Act to adopt or revise effluent limitations.

(15) "Effluent standard" is defined in 75-5-103, MCA, and is synonymous with the term "effluent limitation," as defined in this subchapter, with the exception that it does not include a schedule of compliance.

(16) "Entrainment" means the incorporation of all life stages of fish and shellfish with intake water flow entering and passing through a cooling water intake structure and into a cooling water system.

(17) "EPA" means the United States Environmental Protection Agency.

(18) "Existing facility" means any facility that is not a new facility.

(19) "Existing source" is defined in ARM 17.30.1304.

(20) "Federal Clean Water Act" means the federal legislation at 33 USC 1251, et seq.

(21) "Freshwater river or stream" means a lotic (free-flowing) system that does not receive significant inflows of water from oceans or bays due to tidal action. For the purposes of this subchapter, a flow-through reservoir with a retention time of seven days or less will be considered a freshwater river or stream.

(22) "Hazardous substance" means any element or compound designated by EPA pursuant to section 311(b)(2)(A) of the federal Clean Water Act and listed in 40 CFR 116.4.

(23) "Hydraulic zone of influence" means that portion of the source waterbody hydraulically affected by the cooling water intake structure withdrawal of water.

(24) "Impingement" means the entrapment of all life stages of fish and shellfish on the outer part of an intake structure or against a screening device during periods of intake water withdrawal.

(25) "Lake or reservoir" means any inland body of open water with some minimum surface area free of rooted vegetation and with an average hydraulic retention time of more than seven days. Lakes or reservoirs might be natural water bodies or impounded streams, usually fresh, surrounded by land or by land and a man-made retainer (e.g., a dam). Lakes or reservoirs might be fed by rivers, streams, springs, and/or local precipitation. Flow-through reservoirs with an average hydraulic retention time of seven days or less should be considered a freshwater river or stream.

(26) "Maximize" means to increase to the greatest amount, extent, or degree reasonably possible.

(27) "Minimize" means to reduce to the smallest amount, extent, or degree reasonably possible.

(28) "MPDES" means the Montana pollutant discharge elimination system developed by the Department of Environmental Quality for issuing permits for the discharge of pollutants from point sources into state waters.

(29) "Natural thermal stratification" means the naturally occurring division of a waterbody into horizontal layers of differing densities as a result of variations in temperature at different depths.

(30) "New facility" means any building, structure, facility, or installation that meets the definition of a "new source'' or "new discharger'' in ARM 17.30.1304 and that is a greenfield or stand-alone facility, commences construction after January 17, 2002, and uses either a newly constructed cooling water intake structure, or an existing cooling water intake structure whose design capacity is increased to accommodate the intake of additional cooling water. New facilities include only "greenfield'' and "stand-alone'' facilities. A greenfield facility is a facility that is constructed at a site at which no other source is located, or that totally replaces the process or production equipment at an existing facility. A stand-alone facility is a new, separate facility that is constructed on property where an existing facility is located and whose processes are substantially independent of the existing facility at the same site. New facility does not include new units that are added to a facility for purposes of the same general industrial operation (for example, a new peaking unit at an electrical generating station).

(a) Examples of "new facilities'' include, but are not limited to, the following scenarios:

(i) A new facility is constructed on a site that has never been used for industrial or commercial activity. It has a new cooling water intake structure for its own use;

(ii) A facility is demolished and another facility is constructed in its place. The newly constructed facility uses the original facility's cooling water intake structure, but modifies it to increase the design capacity to accommodate the intake of additional cooling water;

(iii) A facility is constructed on the same property as an existing facility, but is a separate and independent industrial operation. The cooling water intake structure used by the original facility is modified by constructing a new intake bay for the use of the newly constructed facility or is otherwise modified to increase the intake capacity for the new facility.

(b) Examples of facilities that would not be considered a "new facility'' include, but are not limited to, the following scenarios:

(i) A facility in commercial or industrial operation is modified and either continues to use its original cooling water intake structure or uses a new or modified cooling water intake structure.

(ii) A facility has an existing intake structure. Another facility (a separate and independent industrial operation), is constructed on the same property and connects to the facility's cooling water intake structure behind the intake pumps, and the design capacity of the cooling water intake structure has not been increased. This facility would not be considered a "new facility'' even if routine maintenance or repairs that do not increase the design capacity were performed on the intake structure.

(31) "New source" is defined in ARM 17.30.1304.

(32) "Publicly owned treatment works" (POTW) is defined in ARM 17.30.1304.

(33) "Representative important species" means species that are representative, in terms of biological needs, of a balanced, indigenous community of shellfish, fish, and wildlife in the body of water into which a discharge of heat is made.

(34) "Source water" means the state waterbody (state surface waters) from which the cooling water is withdrawn.

(35) "Standard of performance" is defined in 75-5-103, MCA.

(36) "Toxic pollutant" means any pollutant designated by EPA under section 307(a)(1) of the federal Clean Water Act and listed in 40 CFR 401.15.

(37) "Variance" means any mechanism or provision under sections 301 or 316 of the federal Clean Water Act, or in the applicable "effluent limitations guidelines," which allows modification to, or waiver of, the generally applicable effluent limitation requirements or time deadlines. This includes provisions that allow the establishment of alternative limitations based on fundamentally different factors or on sections 301(c), 301(g), or 316(a) of the federal Clean Water Act.

(38) The department adopts and incorporates by reference the following federal regulations as part of the MPDES:

(a) 40 CFR 401.15 (July 1, 2010), which identifies the list of toxic pollutants designated pursuant to section 307(a)(1) of the federal Clean Water Act.

(b) 40 CFR 116.4 (July 1, 2010), which identifies elements and compounds designated as hazardous substances pursuant to section 311(b)(2)(A) of the federal Clean Water Act.

(c) Copies of these federal regulations may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena, MT 59620.

History

Authorizing statute(s): 75-5-304, MCA
Implementing statute(s): 75-5-304, 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2011 MAR p. 2131, Eff. 10/14/11; AMD, 2020 MAR p. 1879, Eff. 10/24/20; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.1203 Criteria and Standards for Imposing Technology-Based Treatment Requirements in Mpdes Permits - Variance Procedures

(1) Technology-based treatment requirements under section 301(b) of the federal Clean Water Act represent the minimum level of control that must be imposed in MPDES permits. Unless a more stringent effluent limitation applies under ARM 17.30.1344, permits issued by the department must contain the applicable technology-based treatment requirements provided in (2) and (3), according to the applicable deadlines.

(2) For POTWs, effluent limitations must be based upon secondary treatment as defined in 40 CFR Part 133, from date of permit issuance.

(3) For dischargers other than POTWs except as provided in ARM 17.30.1340(5), effluent limitations must require:

(a) the best practicable control technology currently available (BPT) in accordance with the following schedules:

(i) for effluent limitations promulgated under section 304(b) of the federal Clean Water Act after January 1, 1982, and requiring a level of control substantially greater or based on fundamentally different control technology than under permits for an industrial category issued before such date, compliance is required as expeditiously as practicable, but in no case later than March 31, 1989;

(ii) for effluent limitations established on a case-by-case basis based on best professional judgment (BPJ) under (5) in a permit issued after February 4, 1987, compliance is required as expeditiously as practicable, but in no case later than March 31, 1989;

(iii) for all other BPT effluent limitations compliance is required from the date of permit issuance.

(b) for conventional pollutants, the best conventional pollutant control technology (BCT) in accordance with the following schedule:

(i) for effluent limitations promulgated under section 304(b) of the federal Clean Water Act, compliance is required as expeditiously as practicable, but in no case later than such limitations are promulgated, and in no case later than March 31, 1989;

(ii) for effluent limitations established on a case-by-case basis based on BPJ under (5) in a permit issued after February 4, 1987, compliance is required as expeditiously as practicable, but in no case later than March 31, 1989.

(c) for all toxic pollutants identified in 40 CFR 401.15, the best available technology economically achievable (BAT) in accordance with the following schedule:

(i) for effluent limitations promulgated under section 304(b) of the federal Clean Water Act, compliance is required as expeditiously as practicable, but in no case later than March 31, 1989;

(ii) for permits issued on a case-by-case basis based on BPJ under (5) after February 4, 1987, compliance is required as expeditiously as practicable, but in no case later than March 31, 1989.

(d) for all pollutants which are neither toxic nor conventional pollutants, effluent limitations based on BAT in accordance with the following schedule:

(i) for effluent limitations promulgated under section 304(b) of the federal Clean Water Act, compliance is required as expeditiously as practicable, but in no case later than March 31, 1989;

(ii) for permits issued on a case-by-case basis based on BPJ under (5) after February 4, 1987, establishing BAT effluent imitations, compliance is required as expeditiously as practicable, but in no case later than March 31, 1989.

(4) The following variances from technology-based treatment requirements may be applied for and incorporated into MPDES permits:

(a) for dischargers other than POTWs, a variance from effluent limitations promulgated under sections 301 and 304 of the federal Clean Water Act based on fundamentally different factors in accordance with 40 CFR Part 125, Subpart D;

(b) for dischargers other than POTWs, a water quality related variance from BAT for certain nonconventional pollutants under section 301(g) of the federal Clean Water Act; and

(c) a thermal variance from BPT, BCT, and BAT under section 316(a) of the federal Clean Water Act in accordance with ARM 17.30.1210.

(5) Technology-based treatment requirements may be imposed through one of the following methods provided in (a) through (c):

(a) application of EPA-promulgated effluent limitations guidelines for dischargers by category or subcategory. These effluent limitations are not applicable to the extent that they have been remanded or withdrawn. However, in the case of a court remand, determinations underlying effluent limitations must be binding in permit issuance proceedings where those determinations are not required to be reexamined by a court remanding the regulations. In addition, dischargers may seek fundamentally different factors variances from these effluent limitations pursuant to 40 CFR, Part 125, Subpart D;

(b) on a case-by-case basis using BPJ to the extent that EPA-promulgated effluent limitations are inapplicable. The permit writer shall apply the appropriate factors listed in (6) and shall consider:

(i) the appropriate technology for the category or class of point sources of which the applicant is a member, based upon all available information; and

(ii) any unique factors relating to the applicant.

(c) through a combination of the methods described in (a) and (b). Where promulgated effluent limitations guidelines only apply to certain aspects of the discharger's operation, or to certain pollutants, other aspects or activities are subject to regulation on a case-by-case basis in order to carry out the provisions of the federal Clean Water Act;

(d) limitations developed under (6)(b) may be expressed, where appropriate, in terms of toxicity (e.g., "the LC50 for fat head minnow of the effluent from outfall 001 shall be greater than 25%''), provided that the limits reflect the appropriate requirements (for example, technology-based or water quality-based standards) of the federal Clean Water Act.

(6) In setting case-by-case limitations pursuant to (5), the permit writer shall consider the following factors:

(a) for BPT requirements:

(i) the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application;

(ii) the age of equipment and facilities involved;

(iii) the process employed;

(iv) the engineering aspects of the application of various types of control techniques;

(v) process changes; and

(vi) non-water quality environmental impact (including energy requirements).

(b) for BCT requirements:

(i) the reasonableness of the relationship between the costs of attaining a reduction in effluent and the effluent reduction benefits derived;

(ii) the comparison of the cost and level of reduction of such pollutants from the discharge from publicly owned treatment works to the cost and level of reduction of such pollutants from a class or category of industrial sources;

(iii) the age of equipment and facilities involved;

(iv) the process employed;

(v) the engineering aspects of the application of various types of control techniques;

(vi) process changes; and

(vii) non-water quality environmental impact (including energy requirements).

(i) the age of equipment and facilities involved;

(ii) the process employed;

(iii) the engineering aspects of the application of various types of control techniques;

(iv) process changes;

(v) the cost of achieving such effluent reduction; and

(vi) non-water quality environmental impact (including energy requirements).

(7) Technology-based treatment requirements are applied prior to or at the point of discharge.

(8) Technology-based treatment requirements cannot be satisfied through the use of "non-treatment'' techniques such as flow augmentation and in-stream mechanical aerators. However, these techniques may be considered as a method of achieving water quality standards on a case-by-case basis when:

(a) the technology-based treatment requirements applicable to the discharge are not sufficient to achieve the standards;

(b) the discharger agrees to waive any opportunity to request a variance under section 301(c), (g), or (h) of the federal Clean Water Act; and

(c) the discharger demonstrates that such a technique is the preferred environmental and economic method to achieve the standards after consideration of alternatives such as advanced waste treatment, recycle and reuse, land disposal, changes in operating methods, and other available methods.

(9) Technology-based effluent limitations must be established under this rule for solids, sludges, filter backwash, and other pollutants removed in the course of treatment or control of wastewaters in the same manner as for other pollutants.

(10) The department may set a permit limit for a conventional pollutant at a level more stringent than the best conventional pollution control technology BCT, or a limit for a nonconventional pollutant which must not be subject to modification under section 301(c) or (g) of the federal Clean Water Act where:

(a) effluent limitations guidelines specify the pollutant as an indicator for a toxic pollutant; or

(b) the limitation reflects BAT-level control of discharges of one or more toxic pollutants that are present in the waste stream, and a specific BAT limitation upon the toxic pollutant(s) is not feasible for economic or technical reasons;

(d) the fact sheet required by ARM 17.30.1371 sets forth the basis for the limitation, including a finding that compliance with the limitation will result in BAT-level control of the toxic pollutant discharges identified in (c), and a finding that it would be economically or technically infeasible to directly limit the toxic pollutant(s).

(11) The department may set a permit limit for a conventional pollutant at a level more stringent than BCT when:

(a) effluent limitations guidelines specify the pollutant as an indicator for a hazardous substance; or

(b) the limitation reflects BAT-level control of discharges, or an appropriate level determined under section 301(c) or (g) of the federal Clean Water Act, of one or more hazardous substance(s) that are present in the waste stream, and a specific BAT or other appropriate limitation upon the hazardous substance(s) is not feasible for economic or technical reasons;

(d) the fact sheet required by ARM 17.30.1371 sets forth the basis for the limitation, including a finding that compliance with the limitations will result in BAT-level (or other appropriate level) control of the hazardous substances discharges identified in (c), and a finding that it would be economically or technically infeasible to directly limit the hazardous substance(s).

(e) Hazardous substances that are also toxic pollutants are subject to (10).

(12) The department may not set a more stringent limit under the preceding sections if the method of treatment required to comply with the limit differs from that which would be required if the toxic pollutant(s) or hazardous substance(s) controlled by the limit were limited directly.

(13) Toxic pollutants identified under (10) remain subject to the requirements of ARM 17.30.1343(1)(a) (notification of increased discharges of toxic pollutants above levels reported in the application form). (14) The department adopts and incorporates by reference the following federal regulations as part of the MPDES:

(a) 40 CFR Part 133 (July 1, 2010), which sets forth the level of effluent quality attainable through the application of secondary treatment or equivalent treatment for POTWs;

(b) 40 CFR Part 125, Subpart D (July 1, 2010), which sets forth criteria and standards for determining fundamentally different factors under section 301 of the federal Clean Water Act;

(c) 40 CFR 401.15 (July 1, 2010), which is a list of toxic pollutants identified by EPA under section 307(a)(1) of the federal Clean Water Act.

(d) Copies of these federal regulations may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena, MT 59620.

History

Authorizing statute(s): 75-5-304, MCA
Implementing statute(s): 75-5-304, 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2011 MAR p. 2131, Eff. 10/14/11; AMD, 2020 MAR p. 1879, Eff. 10/24/20; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.1206 Toxic Pollutant Effluent Standards

(1) This rule is applicable to owners or operators of facilities specified in 40 CFR Part 129 that discharge into state surface waters.

(2) The effluent standards or prohibitions for toxic pollutants established in 40 CFR Part 129 shall be applicable to the sources and pollutants set forth in 40 CFR Part 129, and may be incorporated into any MPDES permit, renewed MPDES permit, or permit modification, in accordance with the provisions of 40 CFR Part 129.

(3) The effluent standards and prohibitions established in 40 CFR Part 129 apply to the following toxic pollutants:

(a) Aldrin, which means the compound aldrin as identified by the chemical name, 1,2,3,4,10,10-hexachloro-1,4,4a,5,8,8a-hexahydro-1,4 -endo-5,8-exo-dimethanonaphthalene and Dieldrin, which means the compound dieldrin as identified by the chemical name 1,2,3,4,10,10-hexachloro-6,7-epoxy-1,4,4a,5,6,7,8,8a-octahydro-1,4-endo-5,8-exo-dimethanonaphthalene;

(b) DDT, which means the compounds DDT, DDD, and DDE as identified by the chemical names: (DDT)-1,1,1-trichloro-2,2-bis(p-chlorophenyl) ethane and someo,p'-isomers; (DDD) or (TDE)-1,1-dichloro-2,2-bis(p-chlorophenyl) ethane and some o,p'-isomers; and (DDE)-1,1-dichloro-2,2-bis(p-chlorophenyl) ethylene;

(c) Endrin, which means the compound as identified by the chemical name 1,2,3,4,10,10-hexachloro-6,7-epoxy-1,4,4a,5,6,7,8,8a-octahydro-1,4-endo-5,8-endodimethanonaphthalene;

(d) Toxaphene, which means a material consisting of technical grade chlorinated camphene having the approximate formula of C10 H10 Cl8 and normally containing 67-69 percent chlorine by weight;

(e) Benzidine, which means the compound benzidine and its salts as identified by the chemical name 4,4'-diaminobiphenyl;

(f) Polychlorinated biphenyls (PCBs), which means a mixture of compounds composed of the biphenyl molecule which has been chlorinated to varying degrees.

(4) The department adopts and incorporates by reference 40 CFR Part 129 (July 1, 2010), which establishes toxic effluent standards pursuant to section 307 of the federal Clean Water Act, as part of the MPDES A copy of the incorporated federal regulation may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena, MT 59620.

History

Authorizing statute(s): 75-5-304, MCA
Implementing statute(s): 75-5-304, 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2011 MAR p. 2131, Eff. 10/14/11; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.1207 Effluent Limitations and Standards of Performance

(1) Permits issued to point source dischargers, other than POTWs, must include effluent limitations or standards of performance applicable to the point source that are set forth in 40 CFR Chapter I, Subchapter N, as provided below:

(a) for existing sources, effluent limitations representing the degree of effluent reduction attainable by the application of:

(i) the best practicable control technology currently achievable (BPT) for all pollutants;

(ii) the best available technology economically achievable (BAT) for toxic and nonconventional pollutants; and

(iii) the best conventional pollutant control technology (BCT) for conventional pollutants;

(b) for new sources, new source performance standards (NSPS) reflecting the best available demonstrated control technology, processes, operating methods, or other alternatives, including, where practicable, a standard permitting no discharge.

(2) The department shall ensure that the applicable effluent limitations or standards of performance set forth in 40 CFR Chapter I, Subchapter N, are included in any new MPDES permit, renewed MPDES permit, or permit modification issued in accordance with ARM Title 17, chapter 30, subchapter 13.

(3) The department adopts and incorporates by reference 40 CFR Chapter I, Subchapter N (except 40 CFR Part 403) (July 1, 2010), which sets forth federal effluent limitations and standards for existing sources and standards of performance for new sources, which are promulgated by EPA under sections 301, 304(b), 306(b), and 316(b) of the federal Clean Water Act. 40 CFR Part 403, which is excluded from this incorporation by reference, sets forth general pretreatment requirements for new and existing sources. A copy of the incorporated federal regulations may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena, MT 59620.

History

Authorizing statute(s): 75-5-304, MCA
Implementing statute(s): 75-5-304, 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2011 MAR p. 2131, Eff. 10/14/11; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.1208 Hazardous Substances

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-5-304, MCA
Implementing statute(s): 75-5-304, 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; REP, 2011 MAR p. 2131, Eff. 10/14/11.)

Mont. Admin. R. 17.30.1209 Secondary Treatment

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-5-304, MCA
Implementing statute(s): 75-5-304, 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; REP, 2011 MAR p. 2131, Eff. 10/14/11.

Mont. Admin. R. 17.30.1210 Criteria and Standards for Determining Alternative Effluent Limitations for Thermal Discharges

(1) Thermal discharge effluent limitations or standards established in permits may be less stringent than those required by applicable standards and limitations, if the discharger demonstrates to the satisfaction of the department that such effluent limitations are more stringent than necessary to assure the protection and propagation of a balanced, indigenous community of shellfish, fish, and wildlife in and on the body of water into which the discharge is made. This demonstration must show that the alternative effluent limitation desired by the discharger, considering the cumulative impact of its thermal discharge together with all other significant impacts on the species affected, will assure the protection and propagation of a balanced indigenous community of shellfish, fish, and wildlife in and on the body of water into which the discharge is to be made.

(2) In determining whether or not the protection and propagation of the affected species will be assured, the department may consider any information contained or referenced in any applicable thermal water quality criteria and thermal water quality information published by the EPA under section 304(a) of the federal Clean Water Act, or any other information the department deems relevant.

(3) Existing dischargers may base their demonstration upon the absence of prior appreciable harm in lieu of predictive studies. Any such demonstrations must show:

(a) that no appreciable harm has resulted from the normal component of the discharge, taking into account the interaction of such thermal component with other pollutants and the additive effect of other thermal sources to a balanced, indigenous community of shellfish, fish, and wildlife in and on the body of water into which the discharge has been made; or

(b) that, despite the occurrence of such previous harm, the desired alternative effluent limitations, or appropriate modifications thereof, will nevertheless assure the protection and propagation of a balanced, indigenous community of shellfish, fish, and wildlife in and on the body of water into which the discharge is made.

(4) In determining whether or not prior appreciable harm has occurred under (3)(a), the department shall consider the length of time that the applicant has been discharging and the nature of the discharge.

(5) Any initial application for a variance from thermal effluent limitations pursuant to section 316(a) of the federal Clean Water Act must include the following early screening information:

(a) description of the alternative effluent limitation requested;

(b) a general description of the method by which the discharger proposes to demonstrate that the otherwise applicable thermal discharge effluent limitations are more stringent than necessary;

(c) a general description of the type of data, studies, experiments, and other information which the discharger intends to submit for the demonstration; and

(d) such data and information as may be available to assist the department in selecting the appropriate representative important species.

(6) After submitting the early screening information under (5), the discharger shall consult with the department at the earliest practicable time, but not later than 30 days after the application is filed, to discuss the discharger's early screening information. Within 60 days after the application is filed, the discharger shall submit for department approval a detailed plan of study that the discharger will undertake to support its demonstration for a variance under section 316(a). The discharger shall specify the nature and extent of the following type of information to be included in the plan of study: biological, hydrographical, and meteorological data; physical monitoring data; engineering or diffusion models; laboratory studies; representative important species; and other relevant information. In selecting representative important species, special consideration must be given to species mentioned in applicable water quality standards. After the discharger submits its detailed plan of study, the department shall either approve the plan or specify any necessary revisions to the plan. The discharger shall provide any additional information or studies that the department subsequently determines are necessary to support the demonstration, including such studies or inspections as may be necessary to select representative important species. The discharger may provide any additional information or studies that the discharger feels are appropriate to support the demonstration.

(7) Any discharger that intends to apply for a renewal of a section 316(a) thermal variance must notify the department of its intent in writing. Within 60 days after receipt of the notification, the department shall request that the discharger include in its renewal application only such information described in (5) and (6) that the department determines is necessary to evaluate the request.

(8) In making the demonstration, the discharger shall consider any information or guidance published by EPA to assist in making such demonstrations.

(9) If an applicant desires a ruling on a section 316(a) variance before the ruling on any other necessary permit terms and conditions, it shall make such request upon filing its application under (5). This request must be granted or denied at the discretion of the department.

(10) At the expiration of the permit, any discharger holding a thermal variance must support the continuation of the variance with studies based on the discharger's actual operation experience.

History

Authorizing statute(s): 75-5-305, 75-5-401, MCA
Implementing statute(s): 75-5-305, 75-5-401, MCA
History: NEW, 2011 MAR p. 2131, Eff. 10/14/11.

Mont. Admin. R. 17.30.1211 Technology-Based Requirements for Cooling Water Intake Structures for New Facilities

(1) The purpose of this rule is to establish technology-based requirements that apply to the location, design, construction, and capacity of the cooling water intake structures at new facilities. This rule implements section 316(b) of the federal Clean Water Act for new facilities. These requirements are implemented through MPDES permits.

(2) Section 316(b) of the federal Clean Water Act provides that any standards established pursuant to sections 301 or 306 of the federal Clean Water Act and applicable to a point source must require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.

(3) New facilities that do not meet the threshold requirements regarding amount of water withdrawn or percentage of water withdrawn for cooling water purposes in (4) must meet requirements determined on a case-by-case, best professional judgment (BPJ) basis. The owner or operator of a new facility that does not meet the threshold requirements in (4) must submit the application information required in 40 CFR 122.21(r).

(4) This rule applies to a new facility if it:

(a) is a point source that uses or proposes to use a cooling water intake structure;

(b) has at least one cooling water intake structure that uses at least 25 percent of the water it withdraws for cooling purposes as specified in (6); and

(5) Use of a cooling water intake structure includes obtaining cooling water by any sort of contract or arrangement with an independent supplier, or multiple suppliers, of cooling water if the supplier or suppliers withdraw(s) water from state surface waters. Use of cooling water does not include obtaining cooling water from a public water system or the use of treated effluent that otherwise would be discharged to a state surface water. This provision is intended to prevent circumvention of these requirements by creating arrangements to receive cooling water from an entity that is not itself a point source.

(6) The threshold requirement that at least 25 percent of water withdrawn be used for cooling purposes must be measured on an average monthly basis. A new facility meets the 25 percent cooling water threshold if, based on the new facility's design, any monthly average over a year for the percentage of cooling water withdrawn is expected to equal or exceed 25 percent of the total water withdrawn.

(7) The owner or operator of a new facility that will withdraw equal to or greater than ten MGD shall comply with either the requirements of (9) or the following:

(a) reduce the facility's intake flow, at a minimum, to a level commensurate with that which can be attained by a closed-cycle recirculating cooling water system;

(b) design and construct each cooling water intake structure at the facility to a maximum through-screen design intake velocity of 0.5 feet per second;

(c) design and construct the cooling water intake structure at the facility such that the total design intake flow from all cooling water intake structures at the facility meets the following requirements:

(i) for cooling water intake structures located in a freshwater river or stream, the total design intake flow must be no greater than five percent of the source water annual mean flow;

(ii) for cooling water intake structures located in a lake or reservoir, the total design intake flow must not disrupt the natural thermal stratification or turnover pattern, where present, of the source water except in cases where the disruption is determined to be beneficial to the management of fisheries for fish and shellfish by any fishery management agency;

(d) select and implement design and construction technologies or operational measures for minimizing the impingement mortality of fish and shellfish if:

(i) there are threatened, endangered, or otherwise protected federal, state, or tribal species, or critical habitat for these species, within the hydraulic zone of influence of the cooling water intake structure;

(ii) based on information submitted by any fishery management agency or other relevant information, there are migratory and/or sport or commercial species of impingement concern to the department that pass through the hydraulic zone of influence of the cooling water intake structure; or

(iii) it is determined by the department, based on information submitted by any fishery management agency or other relevant information, that the proposed facility, after meeting the technology-based performance requirements in (7)(a), (b), and (c), would still contribute unacceptable stress to the protected species, critical habitat of those species, or species of concern;

(e) select and implement design and construction technologies or operational measures for minimizing entrainment of entrainable life stages of fish and shellfish if:

(ii) based on information submitted by any fishery management agency or other relevant information, there are or would be undesirable cumulative stressors affecting entrainable life stages of species of concern to the department and the department determines that the proposed facility, after meeting the technology-based performance requirements in (7)(a), (b), and (c), would still contribute unacceptable stress to the protected species, critical habitat of those species, or these species of concern;

(f) submit the application information required in 40 CFR 122.21(r) and ARM 17.30.1212(2);

(g) implement the monitoring requirements specified in 40 CFR 125.87; and

(h) implement the recordkeeping requirements in 40 CFR 125.88.

(8) The owner or operator of a new facility that will withdraw equal to or greater than 2 MGD and less than ten MGD, and that chooses not to comply with (7), shall comply with either the requirements of (9) or the following:

(a) design and construct each cooling water intake structure at the facility to a maximum through-screen design intake velocity of 0.5 feet per second;

(b) design and construct the cooling water intake structure at the facility such that the total design intake flow from all cooling water intake structures at the facility meets the following requirements:

(i) for cooling water intake structures located in a freshwater river or stream, the total design intake flow must be no greater than five percent of the source water annual mean flow;

(c) select and implement design and construction technologies or operational measures for minimizing the impingement mortality of fish and shellfish if:

(iii) it is determined by the department, based on information submitted by any fishery management agency or other relevant information, that the proposed facility, after meeting the technology-based performance requirements in (8)(a) and (b), would still contribute unacceptable stress to the protected species, critical habitat of those species, or species of concern;

(d) select and implement design and construction technologies or operational measures that minimize entrainment of entrainable life stages of fish and shellfish;

(e) submit the application information required in 40 CFR 122.21(r) and ARM 17.30.1212(2)(b), (c), (d);

(f) implement the monitoring requirements specified in 40 CFR 125.87; and

(g) implement the recordkeeping requirements specified in 40 CFR 125.88.

(9) The owner or operator of a new facility that will withdraw equal to or greater than two MGD, and that chooses not to comply with (7) or (8), shall comply with the following:

(a) demonstrate to the department that the technologies employed will reduce the level of adverse environmental impact from the cooling water intake structure located at the facility to a level comparable to that which would be achieved if the facility implemented the requirements of (7)(a) and (b). This demonstration must include a showing that the impacts to fish and shellfish, including important forage and predator species, within the watershed will be comparable to those that would result if the facility implemented the requirements of (7)(a) and (b). This showing may include consideration of impacts other than impingement mortality and entrainment, including measures that will result in increases in fish and shellfish, but it must demonstrate comparable performance for species that the department identifies as species of concern. In identifying such species, the department may consider information provided by any fishery management agency along with data and information from other sources;

(b) design and construct the cooling water intake structure such that the total design intake flow from all cooling water intake structures at the facility meet the following requirements:

(i) for cooling water intake structures located in a freshwater river or stream, the total design intake flow must be no greater than five percent of the source water annual mean flow; and

(d) implement the monitoring requirements specified in 40 CFR 125.87; and

(e) implement the recordkeeping requirements specified in 40 CFR 125.88.

(10) In addition to the technology-based requirements of (7), (8), and (9), the owner or operator of a new facility must comply with any more stringent requirements relating to the location, design, construction, and capacity of a cooling water intake structure or monitoring requirements that the department determines are reasonably necessary to comply with applicable water quality standards adopted by the department pursuant to 75-5-301 and 75-5-303, MCA.

(11) The department adopts and incorporates by reference the following federal regulations as part of the MPDES:

(a) 40 CFR 125.87 (July 1, 2010), which sets forth monitoring requirements for new facilities with cooling water intake structures;

(b) 40 CFR 125.88 (July 1, 2010), which sets forth record and reporting requirements for new facilities with cooling water intake structures; and

(c) 40 CFR 122.21(r) (July 1 , 2010), which sets forth application requirements for new facilities with cooling water intake structures.

(d) Copies of these federal regulations may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena, MT 59620.

History

Authorizing statute(s): 75-5-305, 75-5-401, MCA
Implementing statute(s): 75-5-305, 75-5-401, MCA
History: NEW, 2011 MAR p. 2131, Eff. 10/14/11; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.1212 Information Requirements for Cooling Water Intake Structures for New Facilities

(1) The owner or operator of a new facility with cooling water intake structures shall submit to the department a statement specifying its intent to comply with the technology-based requirements in either (7), (8), or (9) of ARM 17.30.1211.

(2) The owner or operator of a new facility that chooses to comply with the requirements of either (7) or (8) of ARM 17.30.1211 shall, in addition to meeting the application requirements of 40 CFR 122.21(r), collect and submit to the department the following information, when applying for a new or reissued permit, to demonstrate compliance with (7) or (8) of ARM 17.30.1211. (The information required under (a) applies only to an owner or operator that chooses to comply with (7) of ARM 17.30.1211):

(a) flow reduction information demonstrating a reduction in flow to a level that is commensurate with that which can be attained by a closed-cycle recirculating cooling water system, including:

(i) a narrative description of the facility's system that has been designed to reduce the facility's intake flow to a level commensurate with that which can be attained by a closed-cycle recirculating cooling water system and any engineering calculations, including documentation demonstrating that make-up and blowdown flows have been minimized; and

(ii) if the flow reduction requirement is met entirely, or in part, by reusing or recycling water withdrawn for cooling purposes in subsequent industrial processes, documentation that the amount of cooling water that is not reused or recycled has been minimized;

(b) velocity information demonstrating that the facility complies with the requirement to meet a maximum through-screen design intake velocity of no more than 0.5 feet per second at each cooling water intake structure as required in (7)(b) and (8)(a) of ARM 17.30.1211, including:

(i) a narrative description of the design, structure, equipment, and operation used to meet the velocity requirement; and

(ii) design calculations showing that the velocity requirement will be met at minimum ambient source water surface elevations, based on best professional judgment using available hydrological data, and maximum head loss across the screens or other device;

(c) source waterbody flow information demonstrating that the facility's cooling water intake structure meets the flow requirements in (7)(c) and (8)(b) of ARM 17.30.1211, including:

(i) for cooling water intake structures located in a freshwater river or stream, the annual mean flow and any supporting documentation and engineering calculations to show that the facility's cooling water intake structure meets the flow requirements; and

(ii) for cooling water intake structures located in a lake or reservoir, a narrative description of the waterbody thermal stratification and any supporting documentation and engineering calculations to show that the natural thermal stratification and turnover pattern will not be disrupted by the total design intake flow. In cases where the disruption is determined to be beneficial to the management of fisheries for fish and shellfish, supporting documentation and a written concurrence from any fisheries management agency with responsibility for fisheries potentially affected by the facility's cooling water intake structure(s); and

(d) a design and construction technology plan demonstrating compliance with (7)(d) and (e) or (8)(c) and (d) of ARM 17.30.1211, including:

(i) information to demonstrate whether or not the facility meets the criteria of (7)(d) and (e) or (8)(c) and (d) of ARM 17.30.1211;

(ii) delineation of the hydraulic zone of influence for the facility's cooling water intake structure; and

(iii) new facilities required to install design and construction technologies and/or operational measures must develop a plan explaining the technologies and measures that have been selected based on information collected for the source water biological baseline characterization required by 40 CFR 122.21(r)(3). (Examples of appropriate technologies include, but are not limited to, wedgewire screens, fine mesh screens, fish handling and return systems, barrier nets, aquatic filter barrier systems, and similar technologies. Examples of appropriate operational measures include, but are not limited to, seasonal shutdowns or reductions in flow, continuous operations of screens, and similar measures.) The plan must contain the following information:

(A) a narrative description of the design and operation of the design and construction technologies, including fish-handling and return systems, that will be used to maximize the survival of those species expected to be most susceptible to impingement, including species-specific information that demonstrates the efficacy of the technology;

(B) a narrative description of the design and operation of the design and construction technologies that will be used to minimize entrainment of those species expected to be the most susceptible to entrainment, including species-specific information that demonstrates the efficacy of the technology; and

(3) The owner or operator of a new facility that chooses to comply with (9) of ARM 17.30.1211 shall, in addition to meeting the application requirements of 40 CFR 122.21(r), collect and submit to the department the following information, when applying for a new or reissued permit, to demonstrate compliance with (9) of ARM 17.30.1211:

(a) source waterbody flow information to demonstrate that the facility's cooling water intake structure meets the source waterbody requirements in (9)(b) of ARM 17.30.1211:

(ii) for cooling water intake structures located in a lake or reservoir, a narrative description of the waterbody thermal stratification, and any supporting documentation and engineering calculations to show that the natural thermal stratification and turnover pattern will not be disrupted by the total design intake flow. In cases where the disruption is determined to be beneficial to the management of fisheries for fish and shellfish, supporting documentation and a written concurrence from any fisheries management agency with responsibility for fisheries potentially affected by the facility's cooling water intake structure(s);

(b) a comprehensive demonstration study to characterize the source water baseline in the vicinity of the cooling water intake structure(s), to characterize operation of the cooling water intake(s), and to confirm that the technology(ies) proposed and/or implemented for the facility's cooling water intake structure reduce the impacts to fish and shellfish to levels comparable to those achieved by implementing the requirements of (7)(a) and (b) in ARM 17.30.1211. To meet the "comparable level" requirement, the owner or operator shall demonstrate that:

(i) there is a reduction in both impingement mortality and entrainment of all life stages of fish and shellfish to 90 percent or greater of the reduction that would be achieved through (7)(a) and (b) of ARM 17.30.1211; or

(ii) if the demonstration includes consideration of impacts other than impingement mortality and entrainment, that the measures taken will maintain the fish and shellfish in the waterbody at a level substantially similar to that which would be achieved through (7)(a) and (b) of ARM 17.30.1211;

(c) a plan containing a proposal for how information will be collected to support the comprehensive demonstration study required in (3)(b). The plan must include:

(i) a description of the proposed and/or implemented technology(ies) to be evaluated in the study;

(ii) a list and description of any historical studies characterizing the physical and biological conditions in the vicinity of the proposed or actual intakes and their relevancy to the proposed study. If an owner or operator proposes to rely on existing source waterbody data, it must be no more than five years old, and the owner or operator must demonstrate that the existing data are sufficient to develop a scientifically valid estimate of potential impingement and entrainment impacts and provide documentation showing that the data were collected using appropriate quality assurance and quality control procedures;

(iii) any public participation or consultation with federal or state agencies undertaken in developing the plan; and

(iv) a sampling plan for data that will be collected using actual field studies in the source waterbody. The sampling plan must document all methods and quality assurance procedures for sampling and data analysis. The proposed sampling and data analysis methods must be appropriate for a quantitative survey and must be based on consideration of methods used in other studies performed in the source waterbody. The sampling plan must include:

(A) a description of the study area, including the area of influence of the cooling water intake structure and at least 100 meters beyond;

(B) taxonomic identification of the sampled or evaluated biological assemblages, including all life stages of fish and shellfish; and

(d) documentation of the results of the comprehensive demonstration study required in (3)(b), including:

(i) a source water biological study, which must include:

(A) a taxonomic identification and characterization of aquatic biological resources including:

(I) a summary of historical and contemporary aquatic biological resources;

(II) determination and description of the target populations of concern (those species of fish and shellfish and all life stages that are most susceptible to impingement and entrainment); and

(III) a description of the abundance and temporal/spatial characterization of the target populations based on the collection of multiple years of data to capture the seasonal and daily activities (such as, spawning, feeding, and water column migration) of all life stages of fish and shellfish found in the vicinity of the cooling water intake structure;

(B) an identification of all threatened or endangered species that might be susceptible to impingement and entrainment by the proposed cooling water intake structure(s); and

(ii) an evaluation of potential cooling water intake structure effects, which must include:

(A) calculations of the reduction in impingement mortality and entrainment of all life stages of fish and shellfish that would need to be achieved by the technologies that have been selected to implement and to meet requirements under (9) of ARM 17.30.1211. In order to do the calculation, the owner or operator shall determine the reduction in impingement mortality and entrainment that would be achieved by implementing the requirements of (7)(a) and (b) of ARM 17.30.1211 at the facility; and

(B) an engineering estimate of efficacy for the proposed or implemented technologies used to minimize impingement mortality and entrainment of all life stages of fish and shellfish and maximize survival of impinged life stages of fish and shellfish. The estimate of efficacy must include a demonstration that the proposed or implemented technologies reduce impingement mortality and entrainment of all life stages of fish and shellfish to a comparable level to that which would be achieved if the requirements in (7)(a) and (b) of ARM 17.30.1211 were implemented. The efficacy projection must also include a site-specific evaluation of the technology's suitability for reducing impingement mortality and entrainment based on the results of the source water biological study described in (3)(d)(i). The efficacy estimates may be determined based on case studies that have been conducted in the vicinity of the cooling water intake structure or site-specific technology prototype studies;

(iii) an evaluation of proposed restoration measures, if the owner or operator proposes to use restoration measures to maintain the fish and shellfish as allowed in (9)(a) of ARM 17.30.1211. The evaluation must include the following:

(A) information and data to show coordination with the appropriate fishery management agency(ies); and

(B) a plan that provides a list of the measures proposed to be implemented and an explanation of how the owner or operator will demonstrate and continue to ensure that the proposed restoration measures will maintain the fish and shellfish in the waterbody to a substantially similar level to that which would be achieved through (7)(a) and (b) of ARM 17.30.1211; and

(iv) a verification monitoring plan that must include:

(A) a plan to conduct, at a minimum, two years of monitoring to verify the full-scale performance of the proposed or implemented technologies and operational measures. The verification plan must begin at the start of operations of the cooling water intake structure and continue for a sufficient period of time to demonstrate that the facility is reducing the level of impingement and entrainment to the level documented in (3)(d)(ii). The plan must describe the frequency of monitoring and the parameters to be monitored. The department will use the verification monitoring to confirm that the facility is meeting the level of impingement mortality and entrainment reduction required in (9) of ARM 17.30.1211; and

(B) a plan to conduct monitoring to verify that the restoration measures will maintain the fish and shellfish in the waterbody to a substantially similar level as that which would be achieved through (7)(a) and (b) of ARM 17.30.1211.

(4) The department shall review the materials submitted by an owner or operator of a new facility with cooling water intake structures and impose appropriate requirements and conditions in permits to ensure compliance with ARM 17.30.1211, in accordance with 40 CFR 125.89.

(5) The department adopts and incorporates by reference the following federal regulations as part of the MPDES:

(a) 40 CFR 125.89 (July 1, 2010), which sets forth procedures and requirements for imposing permit conditions for new facilities with cooling water intake structures; and

(b) 40 CFR 122.21(r) (July 1 , 2010), which sets forth application requirements for new facilities with cooling water intake structures.

(c) Copies of these federal regulations may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena, MT 59620.

History

Authorizing statute(s): 75-5-305, 75-5-401, MCA
Implementing statute(s): 75-5-305, 75-5-401, MCA
History: NEW, 2011 MAR p. 2131, Eff. 10/14/11; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.1213 Alternative Requirements for Cooling Water Intake Structures for New Facilities

(1) Any interested person may request that alternative requirements less stringent than those required in ARM 17.30.1211(7) through (10) be imposed in a permit. The department may establish alternative requirements less stringent than the requirements of ARM 17.30.1211(7) through (10) only if:

(a) there is an applicable requirement under ARM 17.30.1211(7) through (10);

(b) the department determines that data specific to the facility indicate that compliance with the requirement at issue would result in compliance costs wholly out of proportion to the costs EPA considered in establishing the requirement at issue or would result in significant adverse impacts on local air quality, significant adverse impacts on local water resources other than impingement or entrainment, or significant adverse impacts on local energy markets;

(c) the alternative requirement requested is no less stringent than justified by the wholly out of proportion costs or the significant adverse impacts on local air quality, significant adverse impacts on local water resources other than impingement or entrainment, or significant adverse impacts on local energy markets; and

(d) the alternative requirement will ensure compliance with other applicable provisions of the Montana Water Quality Act, Title 75, chapter 5, MCA, and the federal Clean Water Act.

(2) The burden is on the person requesting the alternative requirement to demonstrate that alternative requirements should be authorized.

History

Authorizing statute(s): 75-5-305, 75-5-401, MCA
Implementing statute(s): 75-5-305, 75-5-401, MCA
History: NEW, 2011 MAR p. 2131, Eff. 10/14/11.

Mont. Admin. R. 17.30.1214 Technology-Based Requirements for Cooling Water Intake Structures for Existing Facilities

(1) The purpose of this rule is to establish technology-based requirements that apply to the location, design, construction, and capacity of the cooling water intake structures at existing facilities. This rule implements section 316(b) of the federal Clean Water Act for existing facilities. These requirements are implemented through MPDES permits.

(2) Section 316(b) of the federal Clean Water Act provides that any standards established pursuant to section 301 and 306 of the federal Clean Water Act and applicable to point sources shall require that the location, design, construction, and capacity of the cooling water intake structure reflect the best technology available for minimizing adverse environmental impact.

(3) Existing facilities with cooling water intake structures that are not subject to technology-based requirements under ARM 17.30.1211 must meet the requirements of section 316(b) of the federal Clean Water Act, as determined by the department on a case-by-case, best professional judgment (BPJ) basis.

History

Authorizing statute(s): 75-5-305, 75-5-401, MCA
Implementing statute(s): 75-5-305, 75-5-401, MCA
History: NEW, 2011 MAR p. 2131, Eff. 10/14/11.

Subchapter 17.30.13 Montana Pollutant Discharge Elimination System (MPDES) Permits

Mont. Admin. R. 17.30.1301 Purpose and Scope

(1) The purpose of this subchapter, taken together with subchapters 11, 12, and 14, is to establish and implement one common system for issuing permits for point sources discharging pollutants into state waters, and is intended to allow the board and department to administer a pollutant discharge permit system which is compatible with the national pollutant discharge elimination system as established by the U.S. Environmental Protection Agency pursuant to section 402 of the federal Clean Water Act, 33 USC 1251, et seq.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 220, Eff. 2/14/03.

Mont. Admin. R. 17.30.1302 Conflicting Provisions; Severability

(1) The provisions of the MPDES rules are to be construed as being compatible with and complementary to each other. In the event that any of these rules are found by a court of competent jurisdiction to be contradictory, the more stringent provisions shall apply.

(2) In the event that any provision of these rules is found to be invalid by a court of competent jurisdiction, the remaining MPDES rules shall not be affected or diminished thereby.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1303 Incorporations by Reference

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-5-304, MCA
Implementing statute(s): 75-5-304, 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 2003 MAR p. 220, Eff. 2/14/03; AMD, 2006 MAR p. 532, Eff. 2/24/06; AMD, 2007 MAR p. 201, Eff. 2/9/07; REP, 2012 MAR p. 2604, Eff. 12/21/12.

Mont. Admin. R. 17.30.1304 Definitions

(1) "Act" means the Montana Water Quality Act, Title 75, chapter 5, MCA.

(2) "Adaptive management plan" means a watershed-specific plan developed under the adaptive management program to achieve the narrative nutrient standards and address nutrients in a specific watershed. An adaptive management plan includes a watershed monitoring plan and, if required, an implementation plan.

(3) "Adaptive management program" means a watershed-scale program that protects water quality from the impacts of nutrient sources by:

(a) prioritizing phosphorus reduction, as appropriate, while accounting for site specific conditions;

(b) allowing for nutrient sources to be addressed incrementally over time by incorporating flexible decision-making which can be adjusted as management actions and other factors become better understood;

(c) reasonably balancing all factors impacting a waterbody while considering the relative cost of treatment options, their feasibility, and their expected water quality improvement;

(d) identifying specific nutrient reduction requirements; and

(e) setting as its goal the protection and achievement of beneficial uses of the waterbody.

(4) "Administrator" means the administrator of the United States Environmental Protection Agency.

(5) "Animal feeding operation" means:

(a) a lot or facility (other than an aquatic animal production facility) where the following conditions are met:

(i) animals (other than aquatic animals) have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period; and

(ii) crops, vegetation forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility.

(b) Two or more animal feeding operations under common ownership are considered, for the purposes of these rules, to be a single animal feeding operation if they adjoin each other or if they use a common area or system for the disposal of wastes.

(6) "Applicable standards and limitations" means all state, interstate, and federal standards and limitations to which a "discharge" or a related activity is subject under the federal Clean Water Act, including "effluent limitations," water quality standards, standards of performance, toxic effluent standards or prohibitions, "best management practices," and pretreatment standards.

(7) "Application" means the department's standard form for applying for a permit including any additions, revisions, or modifications to the forms.

(8) "Aquaculture project" means a defined managed water area which uses discharges of pollutants into that designated area for the maintenance or production of harvestable freshwater plants or animals.

(9) "Aquatic animal production facility" means a hatchery, fish farm, or similar operation.

(10) "Average monthly discharge limitation" means the highest allowable average of daily discharges over a calendar month, calculated as the sum of all daily discharges measured during a calendar month divided by the number of daily discharges measured during that month.

(11) "Average weekly discharge limitation" means the highest allowable average of daily discharges over a calendar week, calculated as the sum of all daily discharges measured during a calendar week divided by the number of daily discharges measured during that week.

(12) "Best management practices" ("BMPs") means schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of state waters. BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.

(13) "Board" means the Montana Board of Environmental Review established by 2-15-3502, MCA.

(14) "Bypass" means the intentional diversion of waste streams from any portion of a treatment facility.

(15) "Concentrated animal feeding operation" (CAFO) is defined in 75-5-801, MCA.

(16) "Continuous discharge" means a discharge which occurs without interruption throughout the operating hours of the facility, except for infrequent shutdowns for maintenance, process changes, or other similar activities.

(17) "Conventional pollutant" is defined in ARM 17.30.1202.

(18) "Cooling water" is defined in ARM 17.30.1202.

(19) "Cooling water intake structure" is defined in ARM 17.30.1202.

(20) "Daily discharge" means the discharge of a pollutant measured during a calendar day or any 24-hour period that reasonably represents the calendar day for purposes of sampling. For pollutants with limitations expressed in units of mass, the daily discharge is calculated as the total mass of the pollutant discharged over the day. For pollutants with limitations expressed in other units of measurement, the daily discharge is calculated as the average measurement of the pollutant over the day.

(21) "Department" means the Montana Department of Environmental Quality established by 2-15-3501, MCA.

(22) "Direct discharge" means the discharge of a pollutant.

(23) "Discharge," when used without qualification, means the discharge of a pollutant.

(24) "Discharge of a pollutant" and "discharge of pollutants" each means any addition of any pollutant or combination of pollutants to state waters from any point source. This definition includes additions of pollutants into water of the state from: surface runoff which is collected or channelled by man; discharges through pipes, sewers, or other conveyances owned by a state, municipality, or other person which do not lead to a treatment works. This term does not include an addition of pollutants by any "indirect discharger."

(25) "Discharge monitoring report" ("DMR") means the department uniform form for the reporting of self-monitoring results by permittees.

(26) "Draft permit" means a document prepared under ARM 17.30.1364 indicating the department's tentative decision to issue or deny, modify, revoke and reissue, terminate, or reissue a permit. A notice of intent to terminate a permit and a notice of intent to deny a permit, as discussed in ARM 17.30.1365, are types of draft permits. A denial of a request for modification, revocation and reissuance, or termination, as discussed in ARM 17.30.1363 is not a draft permit. A proposed permit is not a draft permit.

(27) "Effluent limitation" is defined in ARM 17.30.1202.

(28) "Effluent limitations guidelines" means a regulation published by the administrator under 40 CFR chapter 1, subchapter N, pursuant to section 304(b) of the federal Clean Water Act to adopt or revise effluent limitations.

(29) "Effluent standards" is defined in 75-5-103, MCA, and is synonymous with the term "effluent limitation," as defined in ARM 17.30.1202, with the exception that it does not include a schedule of compliance.

(30) "Entrainment" means the incorporation of all life stages of fish and shellfish with intake water flow entering and passing through a cooling water intake structure and into a cooling water system.

(31) "EPA" means the United States Environmental Protection Agency.

(32) "Existing source" means any source which is not a new source or a new discharger.

(33) "Facilities or equipment" means buildings, structures, process or production equipment, or machinery which form a permanent part of the new source and which will be used in its operation, if these facilities or equipment are of such value as to represent a substantial commitment to construct. It excludes facilities or equipment used in connection with feasibility, engineering, and design studies regarding the source or water pollution treatment for the source.

(34) "Facility or activity" means any MPDES point source or any other facility or activity (including land or appurtenances thereto) that is subject to regulation under the MPDES program.

(35) "Federal Clean Water Act" means the federal legislation at 33 USC 1251, et seq.

(36) "General permit" means an MPDES permit issued under ARM 17.30.1341 authorizing a category of discharges under the Act within a geographical area.

(37) "Hazardous substance" means any element or compound designated by EPA pursuant to section 311(b)(2)(a) of the federal Clean Water Act and listed in 40 CFR 116.4.

(38) "Impingement" means the entrapment of all life stages of fish and shellfish on the outer part of an intake structure or against a screening device during periods of intake water withdrawal.

(39) "Indirect discharger" means a non-domestic discharger introducing pollutants to a publicly owned treatment works.

(40) "Log sorting and log storage facilities" means facilities whose discharges result from the holding of unprocessed wood, for example, logs or round wood with bark or after removal of bark held in self-contained bodies of water (mill ponds or log ponds) or stored on land where water is applied intentionally on the logs (wet decking).

(41) "Major facility" means any MPDES facility or activity classified as such by the department in conjunction with the regional administrator.

(42) "Maximum daily discharge limitation" means the highest allowable daily discharge.

(43) "Montana pollutant discharge elimination system" (MPDES) means the system developed by the department for issuing permits for the discharge of pollutants from point sources into state waters. The MPDES is specifically designed to be compatible with the federal NPDES program established and administered by the EPA.

(44) "MPDES form" means any issued MPDES permit and any uniform form developed for use in the MPDES and prescribed in rules adopted by the department, including MPDES forms, MPDES permit applications, and MPDES reporting forms.

(45) "Municipality" means a city, town, county, district, association, or other public body created by or pursuant to state law and having jurisdiction over discharge of pollutants or a designated and approved management agency under section 1288 of the federal Clean Water Act.

(46) "National pollutant discharge elimination system" (NPDES) means national program for issuing, modifying, revoking and reissuing, terminating, monitoring and enforcing permits, and imposing and enforcing pretreatment requirements, under sections 307, 402, 318, and 405 of the federal Clean Water Act. The term includes "approved program."

(47) "New discharger" means any building structure, facility, or installation:

(a) from which there is or may be a discharge of pollutants;

(b) that did not commence the discharge of pollutants at a particular site prior to August 13, 1979;

(d) which has never received a finally effective MPDES permit for discharges at that site. This definition includes an indirect discharger which commences discharging into state waters after August 13, 1979.

(48) "New facility" is defined in ARM 17.30.1202.

(49) "New source" means any building, structure, facility, or installation from which there is or may be a discharge of pollutants, the construction of which commenced:

(a) after promulgation of standards of performance under section 306 of the federal Clean Water Act which are applicable to such source;

(b) after proposal of standards of performance in accordance with section 306 of the federal Clean Water Act which are applicable to such source, but only if the standards are promulgated in accordance with section 306 within 120 days of their proposal; or

(c) after the publication of proposed pretreatment standards under section 307(c) of the federal Clean Water Act which will be applicable to such source if such standards are thereafter promulgated with that section, provided that:

(i) the building, structure, facility, or installation is constructed at a site at which no other source is located;

(ii) the building, structure, facility, or installation totally replaces the process or production equipment that causes the discharge of pollutants at an existing source; or

(iii) the production or wastewater generating processes of the building, structure, facility, or installation are substantially independent of an existing source at the same site. In determining whether these are substantially independent, factors such as the extent to which the new facility is integrated with the existing plant, and the extent to which the new facility is engaged in the same general type of activity as the existing source should be considered.

(d) construction on a site at which an existing source is located results in a modification rather than a new source if the construction does not create a new building, structure, facility, or installation meeting the criteria of (c)(ii) or (iii) but otherwise alters, replaces, or adds to existing process or production equipment.

(e) construction of a new source as defined under this section has commenced if the owner or operator has:

(i) begun, or caused to begin as part of a continuous on-site construction program;

(A) any placement, assembly, or installation of facilities or equipment; or

(B) significant site preparation work including clearing, excavation, or removal of existing buildings, structures, or facilities which is necessary for the placement, assembly, or installation of new source facilities or equipment; or

(ii) entered into a binding contractual obligation for the purchase of facilities or equipment which are intended to be used in its operation within a reasonable time. Options to purchase or contracts which can be terminated or modified without substantial loss, and contracts for feasibility, engineering, and design studies do not constitute a contractual obligation under this section.

(50) "Owner or operator" means any person who owns, leases, operates, controls, or supervises a point source.

(51) "Permit" means an authorization or license issued by EPA or an "approved state" to implement the requirements of this rule and 40 CFR Parts 123 and 124. "Permit" includes an NPDES "general permit" (ARM 17.30.1341). Permit does not include any permit which has not yet been the subject of final agency action, such as a "draft permit" or a "proposed permit."

(52) "Person" means any individual, partnership, firm, association, state, interstate body, municipality, public or private corporation, subdivision, or agency of the state, trust, estate, federal agency, or any other legal entity, or an agent or employee thereof.

(53) "Pesticide discharges from pesticide application" means the discharges that result from the application of biological pesticides, and the application of chemical pesticides that leave a residue, from point sources into surface water. In the context of this definition, this does not include agricultural storm water discharges and return flows from irrigated agriculture.

(54) "Pesticide residue" means that portion of a pesticide application that is discharged from a point source into surface water and no longer provides pesticidal benefits. It also includes any degradates of the pesticide.

(55) "Point source" means any discernible, confined, or discrete conveyance, including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel, or other floating craft, from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture or agricultural storm water runoff.

(56) "Pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal, and agricultural wastes discharged into water. The terms "sewage," "industrial waste," and "other wastes" as defined in 75-5-103, MCA, are interpreted as having the same meaning as pollutant.

(57) "Pretreatment standards" means the standards promulgated by the EPA and set forth in 40 CFR Part 403 and 40 CFR chapter 1, subchapter N.

(58) "Primary industry category" means any industry category listed in Appendix A of 40 CFR Part 122.

(59) "Privately owned treatment works" means any device or system which is:

(a) used to treat wastes from any facility whose operator is not the operator of the treatment works; and

(b) not a publicly owned treatment works.

(60) "Process wastewater" means any water which, during manufacturing or processing, comes into direct contact with or results from the production or use of any raw material, intermediate product, finished product, byproduct, or waste product.

(61) "Proposed permit" means an MPDES permit prepared after the close of the public comment period (and, when applicable, any public hearing) which is sent to the department for review before final issuance by the department. A proposed permit is not a draft permit.

(62) "Publicly owned treatment works" (POTW) means any device or system used in the treatment (including recycling and reclamation) of municipal sewage or industrial wastes of a liquid nature which is owned by a state or municipality. This definition includes:

(a) sewers, pipes, or other conveyances only if they convey wastewater to a POTW providing treatment; and

(b) a city, town, county, district, or other political subdivision created by or under state law, that has jurisdiction over indirect discharges to and the discharges from a treatment works.

(63) "Recommencing discharger" means a source which recommences discharge after terminating operations.

(64) "Regional administrator" means the administrator of Region VIII of EPA, which has jurisdiction over federal water pollution control activities in the state of Montana.

(65) "Rock crushing and gravel washing facilities" means facilities which process crushed and broken stone, gravel, and riprap.

(66) "Schedule of compliance" means a schedule of remedial measures included in a permit, including an enforceable sequence of interim requirements (for example, actions, operations, or milestone events) leading to compliance with the Act and requirements thereunder.

(67) "Severe property damage" means substantial physical damage to property, damage to the treatment facilities which causes them to become inoperable, or substantial and permanent loss of natural resources which can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production.

(68) "Sewage sludge" means the solids, residues, and precipitate separated from or created in sewage by the unit processes of a publicly owned treatment works. "Sewage" as used in this definition means any wastes, including wastes from humans, households, commercial establishments, industries, and storm water runoff, that are discharged to or otherwise enter a publicly owned treatment works.

(69) "Sewage system" means any device for collecting or conducting sewage, industrial wastes, or other wastes to an ultimate disposal point.

(70) "Silvicultural point source" means any discernible, confined, and discrete conveyance related to:

(a) rock crushing and gravel washing (defined in (51)), or

(b) log sorting or log storage facilities (defined in (29)) which is operated in connection with silvicultural activities and from which pollutants are discharged into state waters. The term does not include non-point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff. However, some of these activities (such as stream crossing for roads) may involve point source discharges of dredged or fill material which may require a section 404 permit under the federal Clean Water Act.

(71) "Site" means the land or water area where any facility or activity is physically located or conducted, including adjacent land used in connection with the facility or activity.

(72) "Source" means any building, structure, facility, or installation from which there is or may be a discharge of pollutants.

(73) "Source water" means the state water body (state surface waters) from which the cooling water is drawn.

(74) "State waters" means any body of water, irrigation system, or drainage system, either surface or underground. This subchapter does not apply to irrigation waters where the waters are used up within the irrigation system and said waters are not returned to any other state waters.

(75) "Storm water" is defined in ARM 17.30.1102.

(76) "Storm water discharge associated with an industrial activity" is defined in 40 CFR 122.26(b)(14).

(77) "Storm water discharge associated with small construction activity" is defined in 40 CFR 122.26(b)(15).

(78) "Total dissolved solids" means the total dissolved (filterable) solids as determined by use of the method specified in 40 CFR Part 136.

(79) "Toxic pollutant" means any pollutant designated by EPA under section 307(a)(1) of the federal Clean Water Act and listed in 40 CFR 401.15.

(80) "Treatment works" means any works installed for treating or holding sewage, industrial wastes, or other wastes.

(81) "Upset" means an exceptional incident in which there is unintentional and temporary noncompliance with technology-based permit effluent limitations because of factors beyond the reasonable control of the permittee. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.

(82) "Variance" is defined in ARM 17.30.1202.

(83) "Whole effluent toxicity" means the aggregate toxic effect of an effluent measured by a toxicity test.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 220, Eff. 2/14/03; AMD, 2012 MAR p. 2604, Eff. 12/21/12; AMD, 2020 MAR p. 1879, Eff. 10/24/20; AMD, 2022 MAR p. 327, Eff. 3/12/22; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.1310 Exclusions

(1) The following discharges do not require MPDES permits:

(a) discharges of dredged or fill material into waters of the United States that are regulated under section 404 of the federal Clean Water Act;

(b) the introduction of sewage, industrial wastes, or other pollutants into publicly owned treatment works by indirect dischargers. Plans or agreements to switch to this method of disposal in the future do not relieve dischargers of the obligation to have and comply with permits until all discharges of pollutants to state waters are eliminated (see also ARM 17.30.1350(2)). This exclusion does not apply to the introduction of pollutants to privately owned treatment works or to other discharges through pipes, sewers, or other conveyances owned by a state, municipality, or other party not leading to treatment works;

(c) any discharge in compliance with the instructions of an on-scene coordinator pursuant to 40 CFR Part 300, et seq. (The National Oil and Hazardous Substances Pollution Plan) or 33 CFR Parts 153-157 (Pollution by Oil and Hazardous Substances);

(d) any introduction of pollutants from non point-source agricultural and silvicultural activities, including storm water runoff from orchards, cultivated crops, pastures, range lands, and forest lands, but not discharges from concentrated animal feeding operations as defined in ARM 17.30.1304(15), discharges from concentrated aquatic animal production facilities as defined in ARM 17.30.1331(1), discharges to aquaculture projects as defined in ARM 17.30.1304(5), and discharges from silvicultural point sources as defined in ARM 17.30.1304(65);

(e) return flows from irrigated agriculture;

(f) discharges into a privately owned treatment works, except as the department may otherwise require under ARM 17.30.1344; and

(g) discharges from a water transfer. Water transfer means an activity that conveys or connects waters of the state without subjecting the transferred water to intervening industrial, municipal, or commercial use. This exclusion does not apply to pollutants introduced by the water transfer activity itself to the water being transferred.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, and AMD, 1996 MAR p. 1499, Eff. 6/7/96; AMD, 2012 MAR p. 2604, Eff. 12/21/12.

Mont. Admin. R. 17.30.1311 Prohibitions

No permit may be issued:

(1) when the conditions of the permit do not provide for compliance with the applicable requirements of the Act, or rules adopted under the Act;

(2) when the applicant is required to obtain a state or other appropriate certification under section 401 of the federal Clean Water Act and that certification has not been obtained or waived;

(3) by the department where the regional administrator has objected to issuance of the permit under 40 CFR 123.44;

(4) when the imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected states;

(5) for the discharge of any radiological, chemical, or biological warfare agent or high-level radioactive waste;

(6) for any discharge inconsistent with a plan or plan amendment approved under section 208(b) of the federal Clean Water Act;

(7) to a new source or a new discharger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards. The owner or operator of a new source or new discharger proposing to discharge into a water segment which does not meet applicable water quality standards or is not expected to meet those standards even after the application of the effluent limitations required by ARM 17.30.1201 and 17.30.1203, and for which the state or interstate agency has performed a pollutants load allocation for the pollutant to be discharged, shall demonstrate, before the close of the public comment period, that:

(a) there are sufficient remaining pollutant load allocations to allow for the discharge; and

(b) the existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1312 Effect of Permit

(1) Except for any toxic effluent standards and prohibitions applicable under ARM 17.30.1206, compliance with a permit during its term constitutes compliance, for purposes of enforcement, with all applicable effluent standards. However, a permit may be modified, revoked and reissued, or terminated during its term for cause as set forth in ARM 17.30.1361 and 17.30.1363.

(2) The issuance of a permit does not convey any property rights of any sort, or any exclusive privilege.

(3) The issuance of a permit does not authorize any injury to persons or property or invasion of other private rights, or any infringement of state or local law or regulations.

History

Authorizing statute(s): 75-5-201, 75 5 401, MCA
Implementing statute(s): 75 5 401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1313 Continuation of Expiring Permits

(1) The conditions of an expired permit continue in force until the effective date of a new permit if:

(a) the permittee has submitted a timely application under ARM 17.30.1322, which is a complete application for a new permit;

(b) the department, through no fault of the permittee, does not issue a new permit with an effective date under ARM 17.30.1378 on or before the expiration date of the previous permit.

(2) Permits continued under this rule remain fully effective and enforceable until the effective date of a new permit.

(3) When the permittee is not in compliance with the conditions of the expiring or expired permit the department may choose to do any or all of the following:

(a) initiate enforcement action based upon the permit which has been continued;

(b) issue a notice of intent to deny the new permit under ARM 17.30.1370(2) ;

(d) take other actions authorized by the MPDES rules.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1321 Confidentiality of Information

(1) In accordance with 75-5-105 , MCA, any information concerning sources of pollution that is furnished to the board or department or which is obtained by either of them is a matter of public record and open to public use, provided that trade secrets may be maintained or be confidential if so determined by a court of competent jurisdiction.

(2) Claims of confidentiality for the following information must be denied:

(a) the name and address of any permit applicant or permittee; and

(b) permit applications, permits, and effluent data.

(3) Subject to (1) , information required by MPDES application forms provided by the department under ARM 17.30.1322 may not be claimed confidential, including information submitted on the forms themselves and any attachments used to supply information required by the forms.

History

Authorizing statute(s): 75-5-201, 75-5-105, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1322 Application for a Permit

(1) Any person who discharges or proposes to discharge pollutants and who does not have an effective permit, except persons covered by general permits under ARM 17.30.1341, excluded under ARM 17.30.1310, or a user of a privately owned treatment works unless the department requires otherwise under ARM 17.30.1344, shall submit a complete application to the department in accordance with this rule and ARM 17.30.1364 and 17.30.1365, 17.30.1370 through 17.30.1379, and 17.30.1383.

(a) All applicants for MPDES permits shall submit applications on department permit application forms. More than one application form may be required from a facility depending on the number and types of discharges or outfalls found there. Application forms may be obtained by contacting the Water Protection Bureau at (406) 444-5546; Department of Environmental Quality, Water Protection Bureau, 1520 East Sixth Avenue, P.O. Box 200901, Helena, MT 59620-0901; or on the department's web site at http://deq.mt.gov/default.mcpx .

(b) All applicants, other than publicly owned treatment works (POTWs), shall submit Form 1.

(d) Applicants for concentrated animal feeding operations or concentrated aquatic animal production facilities shall submit Form 2B.

(e) Applicants for existing industrial facilities, including manufacturing facilities, commercial facilities, mining activities, and silvicultural activities, shall submit Form 2C.

(f) Applicants for new industrial facilities that discharge process wastewater shall submit Form 2D.

(g) Applicants for new and existing industrial facilities that discharge only non-process wastewater shall submit Form 2E.

(h) Applicants for new and existing facilities, whose discharge is composed entirely of storm water associated with industrial activity, shall submit Form 2F, unless exempted by (11)(b) through (d). If the discharge is composed of storm water and non-storm water, the applicant shall also submit Forms 2C, 2D, and/or 2E, as appropriate, in addition to Form 2F.

(i) Applicants for new cooling water intake structures shall submit the information required in (17) in addition to any forms required in (e) through (g).

(2) When a facility or activity is owned by one person but is operated by another person, it is the operator's duty to obtain a permit.

(3) Any person proposing a new discharge shall submit an application at least 180 days before the date on which the discharge is to commence, unless permission for a later date has been granted by the department. Persons proposing a new discharge are encouraged to submit their applications well in advance of the 180-day requirement to avoid delay. See also (13) through (15) requiring time frames where a variance may be available.

(4) Any permittee with a currently effective permit shall submit a new application at least 180 days before the expiration date of the existing permit, unless permission for a later date has been granted by the department. The department may not grant permission for applications to be submitted later than the expiration date of the existing permit.

(5) The department may not issue a permit before receiving a complete application for a permit except for MPDES general permits. An application for a permit is complete when the department receives an application form and any supplemental information which are completed to the department's satisfaction. The completeness of any application for a permit must be judged independently of the status of any other permit application or permit for the same facility or activity.

(6) All applicants for MPDES permits, other than POTWs, shall provide the following information to the department, using the department's application Form 1. Additional information required of applicants is set forth in (7) through (17):

(a) the activities conducted by the applicant which require it to obtain an MPDES permit;

(b) name, mailing address, and location of the facility for which the application is submitted;

(c) up to four standard industrial category (SIC) codes and up to four North American Industry Classification System (NAICS) codes which best reflect the principal products or services provided by the facility;

(d) the operator's name, address, telephone number, electronic mail address, ownership status, and status as federal, state, private, public, or other entity;

(e) whether the facility is located on Indian lands;

(f) a listing of all permits or construction approvals received or applied for under any of the following programs:

(i) hazardous waste management program under the Resource Conservation and Recovery Act of 1976 (42 USC 6901, et seq.) (RCRA);

(ii) underground injection control (UIC) program under the federal Safe Drinking Water Act (SDWA);

(iii) MPDES program under the federal Clean Water Act;

(iv) prevention of significant deterioration (PSD) program under the Montana Clean Air Act;

(v) nonattainment program under the Montana Clean Air Act;

(vi) national emission standards for hazardous pollutants (NESHAPS) preconstruction approval under the Montana Clean Air Act;

(vii) ocean dumping permits under the Marine Protection Research and Sanctuaries Act;

(viii) dredge or fill permits under section 404 of the federal Clean Water Act; and

(ix) other relevant state or federal environmental permits;

(g) a topographic map, or other map if a topographic map is unavailable, extending one mile beyond the property boundaries of the source, depicting:

(i) the facility and each of its intake and discharge structures;

(ii) each of its hazardous waste treatment, storage, or disposal facilities;

(iii) each well where fluids from the facility are injected underground; and

(iv) those wells, springs, other surface water bodies, and drinking water wells listed in public records or otherwise known to the applicant in the map area;

(h) a brief description of the nature of the business;

(i) an indication of whether the facility uses cooling water and the source of the cooling water; and

(j) an indication of whether the facility is requesting any of the variances at (13), if known at the time of the application.

(7) Existing manufacturing, commercial, mining, and silvicultural dischargers applying for MPDES permits, except for those facilities subject to the requirements of (8), shall provide the following information to the department, using application forms provided by the department:

(a) the latitude and longitude of the outfall to the nearest 15 seconds and the name of the receiving water;

(b) a line drawing of the water flow through the facility with a water balance, showing operations contributing wastewater to the effluent and treatment units. Similar processes, operations, or production areas may be indicated as a single unit, labeled to correspond to the more detailed identification under (c). The water balance must show approximate average flows at intake and discharge points and between units, including treatment units. If a water balance cannot be determined (for example, for certain mining activities), the applicant may provide instead a pictorial description of the nature and amount of any sources of water and any collection and treatment measures;

(c) a narrative identification of each type of process, operation, or production area that contributes wastewater to the effluent for each outfall, including process wastewater, cooling water, and storm water runoff; the average flow that each process contributes; and a description of the treatment the wastewater receives, including the ultimate disposal of any solid or fluid wastes other than by discharge. Processes, operations, or production areas may be described in general terms (for example, "dye-making reactor," "distillation tower"). For a privately owned treatment works, this information must include the identity of each user of the treatment works. The average flow of point sources composed of storm water may be estimated. The basis for the rainfall event and the method of estimation must be indicated;

(d) if any of the discharges described in (c) are intermittent or seasonal, a description of the frequency, duration, and flow rate of each discharge occurrence (except for storm water runoff, spillage, or leaks);

(e) if an effluent guideline adopted under ARM 17.30.1207 applies to the applicant and is expressed in terms of production (or other measure of operation), a reasonable measure of the applicant's actual production reported in the units used in the applicable effluent guideline. The reported measure must reflect the actual production of the facility as required by ARM 17.30.1345;

(f) if the applicant is subject to any present requirements or compliance schedules for construction, upgrading, or operation of waste treatment equipment, an identification of the abatement requirement, a description of the abatement project, and a listing of the required and projected final compliance dates;

(g) information on the effluent characteristics of pollutants specified in this subsection, except information on storm water discharges that is specified in (11)(b), must be provided according to the following:

(i) when "quantitative data" for a pollutant are required, the applicant shall collect a sample of effluent and analyze it for the pollutant in accordance with analytical methods approved under 40 CFR Part 136, unless use of another method is required for the pollutant under 40 CFR subchapter N. When no analytical method is approved under Part 136 or required under subchapter N, the applicant may use any suitable method, but shall provide a description of the method. When an applicant has two or more outfalls with substantially identical effluents, the department may allow the applicant to test only one outfall and report that the quantitative data also apply to the substantially identical outfalls. The requirements in (vi), (vii), and (viii), that state that an applicant shall provide quantitative data for certain pollutants known or believed to be present, do not apply to pollutants present in a discharge solely as the result of their presence in intake water; however, an applicant shall report such pollutants as present. Grab samples must be used for pH, temperature, cyanide, total phenols, residual chlorine, oil and grease, and fecal coliform, including Escherichia coli (E-coli). For all other pollutants, a 24-hour composite sample, using a minimum of four grab samples, must be used, unless specified otherwise at 40 CFR Part 136. However, a minimum of one grab sample may be taken for effluents from holding ponds or other impoundments with a retention period greater than 24 hours. In addition, for discharges other than storm water discharges, the department may waive composite sampling for any outfall for which the applicant demonstrates that the use of an automatic sampler is infeasible and that the minimum of four grab samples will be a representative sample of the effluent being discharged. Results of analyses of individual grab samples for any parameter may be averaged to obtain the daily average. Grab samples that are not required to be analyzed immediately (see Table II at 40 CFR 136.3(e)) may be composited in the laboratory, provided that container, preservation, and holding time requirements are met (see Table II at 40 CFR 136.3 (e)) and that sample integrity is not compromised by compositing;

(ii) for storm water discharges, all samples must be collected from the discharge resulting from a storm event that is greater than 0.1 inch and at least 72 hours from the previously measurable (greater than 0.1 inch rainfall) storm event. Where feasible, the variance in the duration of the event and the total rainfall of the event should not exceed 50 percent from the average or median rainfall event in that area. For all applicants, a flow-weighted composite must be taken for either the entire discharge or for the first three hours of the discharge. The flow-weighted composite sample for a storm water discharge may be taken with a continuous sampler or as a combination of a minimum of three sample aliquots taken in each hour of discharge for the entire discharge or for the first three hours of the discharge, with each aliquot being separated by a minimum period of 15 minutes. However, a minimum of one grab sample may be taken for storm water discharges from holding ponds or other impoundments with a retention period greater than 24 hours. For a flow-weighted composite sample, only one analysis of the composite of aliquots is required. For storm water discharge samples taken from discharges associated with industrial activities, quantitative data must be reported for the grab sample taken during the first 30 minutes, or as soon thereafter as practicable, of the discharge for all pollutants specified in (11)(e). For all storm water permit applicants taking flow-weighted composites, quantitative data must be reported for all pollutants specified in (11)(e) except pH, temperature, cyanide, total phenols, residual chlorine, oil and grease, fecal coliform, and fecal streptococcus. The department may allow or establish appropriate site-specific sampling procedures or requirements, including sampling locations, the season in which the sampling takes place, the minimum duration between the previous measurable storm event and the storm event sampled, the minimum or maximum level of precipitation required for an appropriate storm event, the form of precipitation sampled (snow melt or rain fall), protocols for collecting samples under 40 CFR Part 136, and additional time for submitting data on a case-by-case basis. An applicant is expected to "know or have reason to believe'' that a pollutant is present in an effluent based on an evaluation of the expected use, production, or storage of the pollutant, or on any previous analyses for the pollutant. For example, any pesticide manufactured by a facility may be expected to be present in contaminated storm water runoff from the facility;

(iii) every applicant shall report quantitative data for every outfall for the following pollutants:

(A) biochemical oxygen demand;

(B) chemical oxygen demand;

(D) total suspended solids;

(E) ammonia (as N);

(F) temperature (both winter and summer); and

(G) pH;

(iv) the department may waive the reporting requirements for individual point sources or for a particular industry category for one or more of the pollutants listed in the above subsection if the applicant has demonstrated that such a waiver is appropriate because information adequate to support issuance of a permit can be obtained with less stringent requirements;

(v) each applicant with processes in one or more primary industry category (see Appendix A of 40 CFR Part 122) contributing to a discharge shall report quantitative data for the following pollutants in each outfall containing process wastewater:

(A) the organic toxic pollutants in the fractions designated in Table I of Appendix D of 40 CFR Part 122 for the applicant's industrial category or categories unless the applicant qualifies as a small business under (7)(h). Table II of Appendix D of 40 CFR Part 122 lists the organic toxic pollutants in each fraction. The fractions result from the sample preparation required by the analytical procedure which uses gas chromatography/mass spectrometry. A determination that an applicant falls within a particular industrial category for the purposes of selecting fractions for testing is not conclusive as to the applicant's inclusion in that category for any other purposes; and

(B) the pollutants listed in Table III of Appendix D of 40 CFR Part 122 (the toxic metals, cyanide, and total phenols);

(vi) each applicant shall indicate whether it knows or has reason to believe that any of the pollutants in Table IV of Appendix D of 40 CFR Part 122 (certain conventional and nonconventional pollutants) is discharged from each outfall. If an applicable effluent limitations guideline either directly limits the pollutant or, by its express terms, indirectly limits the pollutant through limitations on an indicator, the applicant shall report quantitative data. For every pollutant discharged which is not so limited in an effluent limitations guideline, the applicant shall either report quantitative data or briefly describe the reasons the pollutant is expected to be discharged;

(vii) each applicant shall indicate whether it knows or has reason to believe that any of the pollutants listed in Table II or Table III of Appendix D of 40 CFR Part 122 (the toxic pollutants and total phenols) for which quantitative data are not otherwise required under (7)(g)(v), is discharged from each outfall. For every pollutant expected to be discharged in concentrations of ten ppb or greater, the applicant shall report quantitative data. For acrolein, acrylonitrile, 2,4-dinitrophenol, and 2-methyl 4,6-dinitrophenol, where any of these four pollutants are expected to be discharged in concentrations of 100 ppb or greater, the applicant shall report quantitative data. For every pollutant expected to be discharged in concentrations less than ten ppb, or in the case of acrolein, acrylonitrile, 2,4-dinitrophenol, and 2-methyl 4,6-dinitrophenol, in concentrations less than 100 ppb, the applicant shall either submit quantitative data or briefly describe the reasons the pollutant is expected to be discharged. An applicant qualifying as a small business under (7)(h) is not required to analyze for pollutants listed in Table II of Appendix D of 40 CFR Part 122 (the organic toxic pollutants);

(viii) each applicant shall indicate whether it knows or has reason to believe that any of the pollutants in Table V of Appendix D of 40 CFR Part 122 (certain hazardous substances and asbestos) are discharged from each outfall. For every pollutant expected to be discharged, the applicant shall briefly describe the reasons the pollutant is expected to be discharged, and report any quantitative data it has for any pollutant;

(ix) each applicant shall report qualitative data, generated using a screening procedure not calibrated with analytical standards, for 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) if it:

(A) uses or manufactures 2,4,5-trichlorophenoxy acetic acid (2,4,5-T); 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5-TP); 2-(2,4,5-trichlorophenoxy) ethyl 2,2-dichloropropionate (Erbon); O,O-dimethyl O-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel); 2,4,5-trichlorophenol (TCP); or hexachlorophene (HCP); or

(B) knows or has reason to believe that TCDD is or may be present in an effluent;

(x) where quantitative data are required in (7)(g)(i) through (ix), existing data may be used, if available, in lieu of sampling done solely for the purpose of application, provided that:

(A) all data requirements are met; sampling was performed, collected, and analyzed no more than four and one-half years prior to submission;

(B) all data are representative of the discharge; and

(h) an applicant which qualifies as a small business under one of the following criteria is exempt from the requirements in (7)(g)(v)(A) or (vi) to submit quantitative data for the pollutants listed in Table II of Appendix D of 40 CFR Part 122 (the organic toxic pollutants):

(i) for coal mines, a probable total annual production of less than 100,000 tons per year;

(ii) for all other applicants, gross total annual sales averaging less than $100,000 per year (in second quarter 1980 dollars);

(i) a listing of any toxic pollutant which the applicant currently uses or manufactures as an intermediate or final product or byproduct. The department may waive or modify this requirement for any applicant if the applicant demonstrates that it would be unduly burdensome to identify each toxic pollutant and the department has adequate information to issue the permit;

(j) an identification of any biological toxicity tests which the applicant knows or has reason to believe have been made within the last three years on any of the applicant's discharges or on a receiving water in relation to a discharge;

(k) if a contract laboratory or consulting firm performed any of the analyses required by (7)(g), the identity of each laboratory or firm and the analyses performed;

(l) in addition to the information reported on the application form, applicants shall provide to the department, at its request, such other information as the department may reasonably require to assess the discharges of the facility and to determine whether to issue an MPDES permit. The additional information may include additional quantitative data and bioassays to assess the relative toxicity of discharges to aquatic life and requirements to determine the cause of the toxicity.

(8) Except for storm water discharges, all manufacturing, commercial, mining, and silvicultural dischargers applying for MPDES permits that discharge only non-process wastewater not regulated by an effluent limitations guideline or new source performance standard shall provide the following information to the department, using application forms provided by the department:

(a) outfall number, latitude, and longitude to the nearest 15 seconds, and the name of the receiving water;

(b) date of expected commencement of discharge (for new dischargers);

(c) an identification of the general type of waste discharged, or expected to be discharged upon commencement of operations, including sanitary wastes, restaurant or cafeteria wastes, or noncontact cooling water; an identification of cooling water additives (if any) that are used or expected to be used upon commencement of operations, along with their composition if existing composition is available;

(d) quantitative data for the pollutants or parameters listed below, unless testing is waived by the department. The quantitative data may be data collected over the past 365 days, if they remain representative of current operations, and must include maximum daily value, average daily value, and number of measurements taken. The applicant shall collect and analyze samples in accordance with 40 CFR Part 136. Grab samples must be used for pH, temperature, oil and grease, total residual chlorine, and fecal coliform, including E-coli. For all other pollutants, a 24-hour composite sample, using a minimum of four grab samples, must be used, unless specified otherwise at 40 CFR Part 136. For a composite sample, only one analysis of the composite aliquots is required. New dischargers shall include estimates for the pollutants or parameters listed below, instead of actual sampling data, along with the source of each estimate. All levels must be reported or estimated as concentration and as total mass, except for flow, pH, and temperature.

(i) The requirements of (d) apply to:

(A) biochemical oxygen demand (BOD 5 );

(B) total suspended solids (TSS);

(D) total residual chlorine (if chlorine is used);

(E) oil and grease;

(F) chemical oxygen demand (COD) (if noncontact cooling water is or will be discharged);

(G) total organic carbon (TOC) (if noncontact cooling water is or will be discharged);

(H) ammonia (as N);

(I) discharge flow;

(J) pH;

(K) temperature (winter and summer); and

(L) any pollutant not listed above, if the pollutant is present in the effluent and regulated by a state-adopted water quality standard;

(ii) The department may waive the testing and reporting requirements for any of the pollutants or flow listed in (i) if the applicant submits a request for such a waiver before or with the application that demonstrates that information adequate to support issuance of a permit can be obtained through less stringent requirements.

(iii) If the applicant is a new discharger, the applicant shall complete forms provided by the department by providing quantitative data in accordance with (d) no later than two years after commencement of discharge. However, the applicant need not complete those portions of the forms requiring tests that the applicant has already performed and reported under the discharge monitoring requirements of the MPDES permit.

(iv) The requirements of (d) and (d)(iii), that an applicant shall provide quantitative data or estimates of certain pollutants, do not apply to pollutants present in a discharge solely as a result of their presence in intake water. However, an applicant shall report such pollutants as present. Net credit may be provided for the presence of pollutants in intake water if the requirements of ARM 17.30.1345(9) are met;

(e) a description of the frequency of flow and duration of any seasonal or intermittent discharge (except for storm water runoff, leaks, or spills);

(f) a brief description of any treatment system used or to be used;

(g) any additional information the applicant wishes to be considered, such as influent data for the purpose of obtaining "net" credits pursuant to ARM 17.30.1345(9); and

(h) the signature of the certifying official under ARM 17.30.1323.

(9) New and existing concentrated animal feeding operations (CAFOs), defined in ARM 17.30.1304, and concentrated aquatic animal production facilities, defined in ARM 17.30.1331(1), shall provide the following information to the department, using application Form2B:

(a) for CAFOs:

(i) the name of the owner or operator;

(ii) the facility location and mailing addresses;

(iii) latitude and longitude of the production area (entrance to production area);

(iv) a topographic map of the geographic area in which the CAFO is located showing the specific location of the production area, in lieu of the requirements of (6)(g);

(v) specific information about the number and type of animals, whether in open confinement or housed under roof (beef cattle, broilers, layers, swine weighing 55 pounds or more, swine weighing less than 55 pounds, mature dairy cows, dairy heifers, veal calves, sheep and lambs, horses, ducks, turkeys, other);

(vi) the type of containment and storage (anaerobic lagoon, roofed storage shed, storage ponds, underfloor pits, above ground storage tanks, below ground storage tanks, concrete pad, impervious soil pad, other) and total capacity for manure, litter, and process wastewater storage (tons/gallons);

(vii) the total number of acres under control of the applicant available for land application of manure, litter, or process wastewater;

(viii) estimated amounts of manure, litter, and process wastewater generated per year (tons/gallons);

(ix) estimated amounts of manure, litter, and process wastewater transferred to other persons per year (tons/gallons); and

(x) a nutrient management plan that at a minimum satisfies the requirements specified in ARM 17.30.1343(1)(c), including, for all CAFOs subject to 40 CFR Part 412, subpart C or subpart D, the requirements of 40 CFR 412.4(c), as applicable; and

(b) for concentrated aquatic animal production facilities:

(i) the maximum daily and average monthly flow from each outfall;

(ii) the number of ponds, raceways, and similar structures;

(iii) the name of the receiving water and the source of intake water;

(iv) for each species of aquatic animals, the total yearly and maximum harvestable weight; and

(v) the calendar month of maximum feeding and the total mass of food fed during that month.

(10) New manufacturing, commercial, mining, and silvicultural dischargers applying for MPDES permits (except for new discharges of facilities subject to the requirements of (8) or new discharges of storm water associated with industrial activity that are subject to the requirements of (11)) shall provide the following information to the department, using application forms provided by the department:

(a) the latitude and longitude to the nearest 15 seconds, and the name of the receiving water;

(b) the expected date of commencement of discharge;

(c) a description of the treatment that the wastewater will receive, along with all operations contributing wastewater to the effluent, average flow contributed by each operation, and the ultimate disposal of any solid or liquid wastes not discharged;

(i) a line drawing of the water flow through the facility with a water balance as described in (7)(b);

(ii) if any of the expected discharges will be intermittent or seasonal, a description of the frequency, duration, and maximum daily flow rate of each discharge occurrence (except for storm water runoff, spillage, or leaks);

(d) if a new source performance standard promulgated under section 306 of the federal Clean Water Act or an effluent limitation guideline applies to the applicant and is expressed in terms of production (or other measure of operation), a reasonable measure of the applicant's expected actual production reported in the units used in the applicable effluent guideline or new source performance standard as required by ARM 17.30.1345(2)(b) for each of the first three years. Alternative estimates may also be submitted if production is likely to vary;

(e) the requirements in (8)(d), that an applicant shall provide estimates of certain pollutants expected to be present, do not apply to pollutants present in a discharge solely as a result of their presence in intake water; however, an applicant shall report such pollutants as present. Net credits may be provided for the presence of pollutants in intake water if the requirements of ARM 17.30.1345(9) are met. All levels (except for discharge flow, temperature, and pH) must be estimated as concentration and as total mass.

(i) Each applicant shall report estimated daily maximum, daily average, and source of information for each outfall for the pollutants or parameters in (ii). The department may waive the reporting requirements for any of these pollutants and parameters if the applicant submits a request for such a waiver before or with his application that demonstrates that information adequate to support issuance of the permit can be obtained through less stringent reporting requirements.

(ii) The requirements of (e)(i) apply to:

(A) biochemical oxygen demand (BOD);

(B) chemical oxygen demand (COD);

(D) total suspended solids (TSS);

(E) flow;

(F) ammonia (as N);

(G) temperature (winter and summer);

(H) pH; and

(I) any pollutant not listed above, if the pollutant is present in the effluent and regulated by a state-adopted water quality standard.

(iii) Each applicant shall report estimated daily maximum, daily average, and source of information for each outfall for the following pollutants, if the applicant knows or has reason to believe they will be present or if they are limited by an effluent limitation guideline or new source performance standard either directly or indirectly through limitations on an indicator pollutant: all pollutants in Table IV of Appendix D of 40 CFR Part 122 (certain conventional and nonconventional pollutants).

(iv) Each applicant shall report estimated daily maximum, daily average, and source of information for the following pollutants if he knows or has reason to believe that they will be present in the discharges from any outfall:

(A) the pollutants listed in Table III of Appendix D of 40 CFR Part 122 (the toxic metals, in the discharge from any outfall: total cyanide and total phenols); and

(B) the organic toxic pollutants in Table II of Appendix D of 40 CFR Part 122 (except bis (chloromethyl) ether, dichlorofluoromethane, and trichlorofluoromethane). This requirement is waived for applicants with expected gross sales of less than $100,000 per year for the next three years, and for coal mines with expected average production of less than 100,000 tons of coal per year.

(v) The applicant is required to report that 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) may be discharged if he uses or manufactures one of the following compounds, or if he knows or has reason to believe that TCDD will or may be present in an effluent:

(A) 2,4,5-trichlorophenoxy acetic acid (2,4,5-T) (CAS #93-76-5);

(B) 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5-TP) (CAS #93-72-1);

(D) O,O-dimethyl O-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel) (CAS #299-84-3);

(E) 2,4,5-trichlorophenol (TCP) (CAS #95-95-4); or

(F) hexachlorophene (HCP) (CAS #70-30-4).

(vi) Each applicant shall report any pollutants listed in Table V of Appendix D of 40 CFR Part 122 (certain hazardous substances) if the applicant believes they will be present in any outfall (no quantitative estimates are required unless they are already available).

(vii) No later than 24 months after the commencement of discharge from the proposed facility, the applicant is required to complete and submit forms prescribed by the department. However, the applicant need not complete those portions of the forms requiring tests which he has already performed and reported under the discharge monitoring requirements of his MPDES permit;

(f) each applicant shall report the existence of any technical evaluation concerning his wastewater treatment, along with the name and location of similar plants of which he has knowledge;

(g) any optional information the permittee wishes to have considered; and

(h) the signature of the certifying official under ARM 17.30.1323.

(11) Dischargers of storm water associated with industrial activity or with small construction activity that are required to obtain an individual permit or any other discharge of storm water that the department is evaluating for designation under ARM 17.30.1105(1)(f) and is not a municipal storm sewer, shall submit an MPDES permit application in accordance with the requirements of (6)(a) through (h), as modified and supplemented by the provisions of this section.

(a) Except as provided in (b) through (d), the operator of a storm water discharge associated with industrial activity that is required to obtain an individual permit shall provide:

(i) a site map showing topography (or indicating the outline of drainage areas served by the outfall(s) covered in the application if a topographic map is unavailable) of the facility including:

(A) each of its drainage and discharge structures;

(B) the drainage area of each storm water outfall;

(D) each past or present area used for outdoor storage or disposal of significant materials;

(E) each existing structural control measure to reduce pollutants in storm water runoff;

(F) materials loading and access areas;

(G) areas where pesticides, herbicides, soil conditioners, and fertilizers are applied;

(H) each of its hazardous waste treatment, storage, or disposal facilities (including each area not required to have a RCRA permit that is used for accumulating hazardous waste under 40 CFR 262.34);

(I) each well where fluids from the facility are injected underground; and

(J) springs and other surface water bodies that receive storm water discharges from the facility;

(ii) an estimate of the area of impervious surfaces (including paved areas and building roofs), the total area drained by each outfall (within a mile radius of the facility), and a narrative description of the following:

(A) significant materials that in the three years prior to the submittal of this application have been treated, stored, or disposed in a manner to allow exposure to storm water;

(B) method of treatment, storage, or disposal of such materials;

(C) materials management practices employed, in the three years prior to the submittal of this application, to minimize contact by these materials with storm water runoff;

(D) materials loading and access areas;

(E) the location, manner, and frequency in which pesticides, herbicides, soil conditioners, and fertilizers are applied;

(F) the location and a description of existing structural and non-structural control measures to reduce pollutants in storm water runoff; and

(G) a description of the treatment the storm water receives, including the ultimate disposal of any solid or fluid wastes other than by discharge;

(iii) a certification that all outfalls that should contain storm water discharges associated with industrial activity have been tested or evaluated for the presence of non-storm water discharges that are not covered by an MPDES permit. Tests for such non-storm water discharges may include smoke tests, fluorometric dye tests, analysis of accurate schematics, as well as other appropriate tests. The certification must include a description of the method used, the date of any testing, and the on-site drainage points that were directly observed during a test;

(iv) existing information regarding significant leaks or spills of toxic or hazardous pollutants at the facility that have taken place within the three years prior to the submittal of this application;

(v) quantitative data based on samples collected during storm events and collected in accordance with (7)(g)(ii) from all outfalls containing a storm water discharge associated with industrial activity for the following parameters:

(A) any pollutant limited in an effluent guideline to which the facility is subject;

(B) any pollutant listed in the facility's MPDES permit for its process wastewater, if the facility is operating under an existing MPDES permit;

(C) oil and grease, pH, biochemical oxygen demand, chemical oxygen demand, total suspended solids, total phosphorus, total Kjeldahl nitrogen, and nitrate plus nitrite nitrogen;

(D) any information on the discharge required under (7)(g)(vi) through (viii);

(E) flow measurements or estimates of the flow rate, the total amount of discharge for the storm event(s) sampled, and the method of flow measurement or estimation; and

(F) the date and duration (in hours) of the storm event(s) sampled, rainfall measurements or estimates of the storm event (in inches) that generated the sampled runoff, and the duration between the storm event sampled and the end of the previous measurable (greater than 0.1 inch rainfall) storm event (in hours);

(vi) operators of a discharge that is composed entirely of storm water are exempt from the requirements of (7)(b), (c), (d), and (e), and (g)(iii), (iv), (v), and (ix);

(vii) operators of new sources or new discharges, as defined in ARM 17.30.1304, that are composed in part or entirely of storm water shall include estimates for the pollutants or parameters listed in (v) instead of actual sampling data, along with the source of each estimate. Operators of new sources or new discharges composed in part or entirely of storm water shall provide quantitative data for the parameters listed in (v) within two years after commencement of discharge, unless such data has already been reported under the monitoring requirements of the MPDES permit for the discharge. Operators of a new source or new discharge that is composed entirely of storm water are exempt from the requirements of (10)(c)(i) and (ii) and (e).

(b) An operator of an existing or new storm water discharge associated with industrial activity solely under the definition in 40 CFR 122.26(b)(14)(x) or associated with small construction activity solely under the definition in ARM 17.30.1304, is exempt from the requirements of (7) and (11)(a). Such operator shall provide a narrative description of:

(i) the location, including a map, and the nature of the construction activity;

(ii) the total area of the site and the area of the site that is expected to undergo excavation during the life of the permit;

(iii) proposed measures, including best management practices, to control pollutants in storm water discharges during construction, including a brief description of applicable state and local erosion and sediment control requirements;

(v) an estimate of the runoff coefficient of the site and the increase in impervious area after the construction addressed in the permit application is completed, the nature of fill material and existing data describing the soil or the quality of the discharge; and

(vi) the name of the receiving water.

(c) The operator of an existing or new discharge composed entirely of storm water from an oil or gas exploration, production, processing, or treatment operation, or transmission facility is not required to submit a permit application in accordance with (a), unless the facility:

(i) has had a discharge of storm water resulting in the discharge of a reportable quantity for which notification is or was required pursuant to 40 CFR 117.21 or 40 CFR 302.6 at any time since November 16, 1987;

(ii) has had a discharge of storm water resulting in the discharge of a reportable quantity for which notification is or was required pursuant to 40 CFR 110.6 at any time since November 16, 1987; or

(iii) contributes to a violation of a water quality standard.

(d) The operator of an existing or new discharge composed entirely of storm water from a mining operation is not required to submit a permit application unless the discharge has come into contact with any overburden, raw material, intermediate product, finished product, byproduct, or waste product located on the site of such operations.

(e) Applicants shall provide such other information the department may reasonably require under (7)(l) to determine whether to issue a permit and may require any facility subject to (11)(b) to comply with (11)(a).

(12) Unless otherwise indicated, all new and existing publicly owned treatment works (POTWs) and other dischargers designated by the department, shall provide, at a minimum, the information in (a) through (h) to the department, using Form 2A. Permit applicants shall submit all information available at the time of permit application. The information may be provided by referencing information previously submitted to the department. The department may waive any requirement of (a) through (h), if the department has access to substantially identical information. The department may also waive any requirement of (a) through (h) that is not of material concern for a specific permit, if approved by EPA. The waiver request to the EPA must include the department's justification for the waiver. The EPA's disapproval of the proposed waiver does not constitute final agency action, but does provide notice to the department and permit applicant that EPA may object to any MPDES permit issued in the absence of the required information.

(a) All applicants shall provide the following basic information:

(i) name, mailing address, and location of the facility for which the application is submitted;

(ii) name, mailing address, telephone number, and electronic mail address of the applicant and indication as to whether the applicant is the facility's owner, operator, or both;

(iii) identification of all environmental permits or construction approvals received or applied for, including dates, under any of the following programs:

(A) hazardous waste management program under the Resource Conservation and Recovery Act (RCRA), Subpart C;

(B) underground injection control program under the Safe Drinking Water Act (SDWA);

(D) dredge or fill permits under section 404 of the CWA; and

(E) other relevant environmental permits, including state permits;

(iv) the name and population of each municipal entity served by the facility, including unincorporated connector districts. The applicant shall indicate whether each municipal entity owns or maintains the collection system and whether the collection system is separate sanitary or combined storm and sanitary, if known;

(v) information concerning whether the facility is located in Indian country and whether the facility discharges to a receiving stream that flows through Indian country;

(vi) the facility's design flow rate (the wastewater flow rate the plant was built to handle), annual average daily flow rate, and maximum daily flow rate for each of the previous three years;

(vii) identification of type(s) of collection system(s) used by the treatment works (i.e., separate sanitary sewers or combined storm and sanitary sewers) and an estimate of the percent of sewer line that each type comprises;

(viii) the following information for outfalls that discharge to state surface water and other discharge or disposal methods:

(A) for effluent discharges to state surface waters, the total number and types of outfalls (e.g., treated effluent, combined sewer overflows, bypasses, constructed emergency overflows);

(B) for wastewater discharged to surface impoundments:

(I) the location of each surface impoundment;

(II) the average daily volume discharged to each surface impoundment; and

(III) whether the discharge is continuous or intermittent;

(I) the location of each land application site;

(II) the size of each land application site, in acres;

(III) the average daily volume applied to each land application site, in gallons per day; and

(IV) whether land application is continuous or intermittent;

(D) for effluent sent to another facility for treatment prior to discharge:

(I) the means by which the effluent is transported;

(II) the name, mailing address, contact person, phone number, and electronic mail address of the organization transporting the discharge, if the transport is provided by a party other than the applicant;

(III) the name, mailing address, contact person, phone number, electronic mail address, and MPDES permit number (if any) of the receiving facility; and

(IV) the average daily flow rate from this facility into the receiving facility, in millions of gallons per day; and

(E) for wastewater disposed of in a manner not included in (a)(viii)(A) through (D) (e.g., underground percolation, underground injection):

(I) a description of the disposal method, including the location and size of each disposal site, if applicable;

(II) the annual average daily volume disposed of by this method, in gallons per day; and

(III) whether disposal through this method is continuous or intermittent.

(ix) An indication of whether the applicant is operating under or requesting to operate under a variance as specified at (14), if known at the time of application.

(b) All applicants with a design flow greater than or equal to 0.1 million gallons per day shall provide the following additional information:

(i) the current average daily volume of inflow and infiltration, in gallons per day, and steps the facility is taking to minimize inflow and infiltration;

(ii) a topographic map (or other map if a topographic map is unavailable) extending at least one mile beyond property boundaries of the treatment plant, including all unit processes, and showing:

(A) the treatment plant area and unit processes;

(B) the major pipes or other structures through which wastewater enters the treatment plant and the pipes or other structures through which treated wastewater is discharged from the treatment plant. Outfalls from bypass piping must be included, if applicable;

(D) wells, springs, and other surface water bodies listed in public records or otherwise known to the applicant within 1/4 mile of the treatment works' property boundaries;

(E) sewage sludge management facilities (including on-site treatment, storage, and disposal sites); and

(F) the location at which waste classified as hazardous under RCRA enters the treatment plant by truck, rail, or dedicated pipe;

(iii) a process flow diagram or schematic, which includes:

(A) a diagram showing the processes of the treatment plant, including all bypass piping and all backup power sources or redundancy in the system. This includes a water balance showing all treatment units, including disinfection, daily average flow rates at influent and discharge points, and approximate daily flow rates between treatment units; and

(B) a narrative description of the diagram; and

(iv) information regarding scheduled improvements and the schedule of implementation, which includes the following:

(A) the outfall number of each outfall affected;

(B) a narrative description of each required improvement;

(I) commencement of construction;

(II) completion of construction;

(III) commencement of discharge; and

(IV) attainment of operational level; and

(D) a description of permits and clearances concerning other state or federal requirements.

(c) Each applicant shall provide the following information for each outfall, including bypass points, through which effluent is discharged, as applicable:

(i) a description of each outfall that includes the following information:

(A) outfall number;

(B) county, city, or town in which outfall is located;

(D) distance from shore and depth below surface;

(E) average daily flow rate, in million gallons per day;

(F) the following information for each outfall with a seasonal or periodic discharge:

(I) number of times per year the discharge occurs;

(II) duration of each discharge;

(III) flow of each discharge; and

(IV) months in which discharge occurs; and

(G) whether the outfall is equipped with a diffuser and the type (e.g., high-rate) of diffuser used;

(ii) a description of receiving waters that includes the following information, if known for each outfall through which effluent is discharged to state surface waters:

(A) name of receiving water;

(B) name of United States Geological Survey eight-digit hydrologic unit code and state water body identification code; and

(iii) a description of treatment system, including the following information describing the treatment provided for discharges from each outfall to state water:

(A) the highest level of treatment (e.g., primary, equivalent to secondary, secondary, advanced, other) that is provided for the discharge for each outfall and:

(I) design biochemical oxygen demand or carbonaceous oxygen demand removal (percent);

(II) design suspended solids removal (percent); and, where applicable,

(III) design phosphorus removal (percent);

(IV) design nitrogen removal (percent); and

(V) any other removals that an advanced treatment system is designed to achieve; and

(B) a description of the type of disinfection used and whether the treatment plant dechlorinates (if disinfection is accomplished through chlorination).

(d) As specified in (i) through (ix), all applicants shall submit to the department effluent monitoring information for samples taken from each outfall through which effluent is discharged to state surface waters. The department may allow applicants to submit sampling data for only one outfall, on a case-by-case basis, where the applicant has two or more outfalls with substantially identical effluent. The department may also allow applicants to composite samples from one or more outfalls that discharge into the same mixing zone. For POTWs applying prior to commencement of discharge, data shall be submitted no later than 24 months after the commencement of discharge.

(i) All applicants shall sample and analyze for the following pollutants:

(A) biochemical oxygen demand or carbonaceous oxygen demand;

(B) fecal coliform;

(D) pH;

(E) temperature (winter and summer); and

(F) total suspended solids.

(ii) All applicants with a design flow greater than or equal to 0.1 million gallons per day shall sample and analyze for the pollutants listed below. Facilities that do not use chlorine for disinfection, do not use chlorine elsewhere in the treatment process, and have no reasonable potential to discharge chlorine in their effluent are not required to analyze for chlorine:

(A) ammonia (as N);

(B) chlorine (total residual, TRC);

(D) Kjeldahl nitrogen;

(E) oil and grease;

(F) phosphorus; and

(G) total dissolved solids.

(iii) The following applicants shall sample and analyze for the pollutants listed in Appendix J, Table 2 of 40 CFR Part 122, and for any other pollutants for which the department has established water quality standards applicable to the receiving waters:

(A) all POTWs with a design flow rate equal to or greater than one million gallons per day;

(B) all POTWs with approved pretreatment programs or POTWs required to develop a pretreatment program; and

(iv) The department may require sampling for additional pollutants, as appropriate, on a case-by-case basis.

(v) Applicants shall provide data from a minimum of three samples taken within four and one-half years prior to the date of the permit application. Samples must be representative of the seasonal variation in the discharge from each outfall. Existing data may be used, if available, in lieu of sampling done solely for the purpose of this application. The department may require additional samples, as appropriate, on a case-by-case basis.

(vi) All existing data for pollutants specified in (i) through (iv) that is collected within four and one-half years of the application must be included in the pollutant data summary submitted by the applicant. If, however, the applicant samples for a specific pollutant on a monthly or more frequent basis, it is only necessary, for such pollutant, to summarize all data collected within one year of the application.

(vii) Applicants shall collect samples of effluent and analyze such samples for pollutants in accordance with analytical methods approved under 40 CFR Part 136 unless an alternative is specified in the existing MPDES permit. When analysis of pH, temperature, cyanide, total phenols, residual chlorine, oil and grease, fecal coliform (including E. coli), or volatile organics is required by (i) through (iii), grab samples must be collected for those pollutants. For all other pollutants, 24-hour composite samples must be used. For a composite sample, only one analysis of the composite of aliquots is required.

(viii) The effluent monitoring data provided must include at least the following information for each parameter:

(A) maximum daily discharge expressed as concentration or mass, based upon actual sample values;

(B) average daily discharge for all samples, expressed as concentration or mass, and the number of samples used to obtain this value;

(D) the minimum detection limit (MDL) or minimum level (ML) for the analytical method used.

(ix) Unless otherwise required by the department, metals must be reported as total recoverable.

(e) All applicants shall provide an identification of any whole effluent toxicity tests conducted during the four and one-half years prior to the date of the application on any of the applicant's discharges or on any receiving water near the discharge. For POTWs applying prior to commencement of discharge, data shall be submitted no later than 24 months after the commencement of discharge.

(i) As specified in (ii) through (viii), the following applicants shall submit to the department the results of valid whole effluent toxicity tests for acute or chronic toxicity for samples taken from each outfall through which effluent is discharged to surface waters, except for combined sewer overflows:

(A) all POTWs with design flow rates greater than or equal to one million gallons per day;

(B) all POTWs with approved pretreatment programs or POTWs required to develop a pretreatment program; and

(I) the variability of the pollutants or pollutant parameters in the POTW effluent (based on chemical-specific information, the type of treatment plant, and types of industrial contributors);

(II) the ratio of effluent flow to receiving stream flow;

(III) existing controls on point or non-point sources, including total maximum daily load calculations for the receiving stream segment and the relative contribution of the POTW;

(IV) receiving stream characteristics, including possible or known water quality impairment, a water designated as an outstanding natural resource water; and

(V) other considerations (including, but not limited to, the history of toxic impacts and compliance problems at the POTW) that the department determines could cause or contribute to adverse water quality impacts.

(ii) Where the POTW has two or more outfalls with substantially identical effluent discharging to the same receiving stream segment, the department may allow applicants to submit whole effluent toxicity data for only one outfall on a case-by-case basis. The department may also allow applicants to composite samples from one or more outfalls that discharge into the same mixing zone.

(iii) Each applicant required to perform whole effluent toxicity testing pursuant to (i) shall provide:

(A) results of a minimum of four quarterly tests for a year, from the year preceding the permit application; or

(B) results from four tests performed at least annually in the four and one-half-year period prior to the application, provided the results show no appreciable toxicity using a safety factor determined by the department.

(iv) Applicants shall conduct tests with multiple species (no less than two species, e.g., fish, invertebrate, plant) and test for acute or chronic toxicity, depending on the range of receiving water dilution. Applicants shall conduct acute or chronic testing based on the following dilutions:

(A) acute toxicity testing if the dilution of the effluent is greater than 100:1 at the edge of the mixing zone;

(B) acute or chronic toxicity testing if the dilution of the effluent is between 10:1 and 100:1 at the edge of the mixing zone; and

(v) Each applicant required to perform whole effluent toxicity testing pursuant to (i) shall provide the number of chronic or acute whole effluent toxicity tests that have been conducted since the last permit reissuance.

(vi) Applicants shall provide the results using the form provided by the department, or test summaries if available and comprehensive, for each whole effluent toxicity test conducted pursuant to (i) for which such information has not been reported previously to the department.

(vii) Whole effluent toxicity testing conducted pursuant to (i) must be conducted using methods approved under 40 CFR Part 136.

(viii) For whole effluent toxicity data submitted to the department within four and one-half years prior to the date of the application, applicants shall provide the dates on which the data were submitted and a summary of the results.

(ix) Each POTW required to perform whole effluent toxicity testing pursuant to (i) shall provide any information on the cause of toxicity and written details of any toxicity reduction evaluation conducted, if any whole effluent toxicity test conducted within the past four and one-half years revealed toxicity.

(f) Applicants shall submit the following information about industrial discharges to the POTW:

(i) number of significant industrial users (SIUs) and non-significant categorical industrial users (NSCIUs), including SIUs and NSCIUs that truck or haul waste, discharging to the POTW; and

(ii) POTWs with one or more SIUs shall provide the following information for each SIU, as defined at ARM 17.30.1402, that discharges to the POTW:

(A) name and mailing address;

(B) description of all industrial processes that affect or contribute to the SIU's discharge;

(D) average daily volume of wastewater discharged, indicating the amount attributable to process flow and non-process flow;

(E) whether the SIU is subject to local limits;

(F) whether the SIU is subject to categorical standards, and if so, under which category(ies) and subcategory(ies); and

(G) whether any problems at the POTW (e.g., upsets, pass through, interference) have been attributed to the SIU in the past four and one-half years.

(iii) The information required in (i) and (ii) may be waived by the department for POTWs with pretreatment programs if the applicant has submitted either of the following that contain information substantially identical to that required in (i) and (ii):

(A) an annual report submitted within one year of the application; or

(B) a pretreatment program.

(g) POTWs receiving Resource Conservation and Recovery Act (RCRA), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or RCRA corrective action wastes or wastes generated at another type of cleanup or remediation site shall provide the following information:

(i) if the POTW receives, or has been notified that it will receive, by truck, rail, or dedicated pipe any wastes that are regulated as RCRA hazardous wastes pursuant to 40 CFR Part 261, the applicant shall report the following:

(A) the method by which the waste is received (i.e., whether by truck, rail, or dedicated pipe); and

(B) the hazardous waste number and amount received annually of each hazardous waste;

(ii) if the POTW receives, or has been notified that it will receive, wastewaters that originate from remedial activities, including those undertaken pursuant to CERCLA and sections 3004(u) or 3008(h) of RCRA, the applicant shall report the following:

(A) the identity and description of the site(s) or facility(ies) at which the wastewater originates;

(B) the identities of the wastewater's hazardous constituents, as listed in Appendix VIII of 40 CFR Part 261, if known; and

(iii) applicants are exempt from the requirements of (ii) if they receive no more than 15 kilograms per month of hazardous wastes, unless the wastes are acute hazardous wastes as specified in 40 CFR 261.30(d) and 261.33(e).

(h) Each applicant with combined sewer systems shall provide the following information:

(i) a map indicating the location of the following:

(A) all combined sewer overflow (CSO) discharge points;

(B) sensitive use areas potentially affected by CSOs (e.g., beaches, drinking water supplies, shellfish beds, sensitive aquatic ecosystems, and outstanding national resource waters); and

(ii) a diagram of the combined sewer collection system that includes the following information:

(A) the location of major sewer trunk lines, both combined and separate sanitary;

(B) the locations of points where separate sanitary sewers feed into the combined sewer system;

(D) the locations of flow-regulating devices; and

(E) the locations of pump stations;

(iii) the following information for each CSO discharge point (outfall) covered by the permit application:

(A) outfall number;

(B) county, city, or town in which each outfall is located;

(D) distance from shore and depth below surface;

(E) whether the applicant monitored any of the following in the past year for this CSO:

(I) rainfall;

(II) CSO flow volume;

(III) CSO pollutant concentrations;

(IV) receiving water quality; or

(V) CSO frequency; and

(F) the number of storm events monitored in the past year;

(iv) the following information about CSO overflows from each outfall:

(A) the number of events in the past year;

(B) the average duration per event, if available;

(D) the minimum rainfall that caused a CSO event, if available, in the last year;

(v) the following information about receiving waters:

(A) name of receiving water;

(B) name of watershed/stream system and the United States Soil Conservation Service watershed (14-digit) code, if known; and

(C) name of the United States Geological Survey hydrologic cataloging unit (eight-digit) code and the state water body identification code, if known; and

(vi) a description of any known water quality impacts on the receiving water caused by the CSO (e.g., permanent or intermittent beach closings, permanent or intermittent shellfish bed closings, fish kills, fish advisories, other recreational loss, or exceedance of any applicable water quality standard).

(i) All applicants shall provide the name, mailing address, telephone number, electronic mail address, and responsibilities of all contractors responsible for any operational or maintenance aspects of the facility.

(j) All applications shall be signed by a certifying official in compliance with ARM 17.30.1323.

(13) A discharger that is not a publicly owned treatment works (POTW) may request a variance from otherwise applicable effluent limitations under any of the following statutory or regulatory provisions within the times specified below:

(a) A request for a variance based on the presence of "fundamentally different factors" from those on which the effluent limitations guideline was based must explain how the requirements of the applicable regulatory and statutory criteria have been met, and must be filed with the department:

(i) by the close of the public comment period under ARM 17.30.1372, if the request is for a variance from best practicable control technology currently available (BPT); or

(ii) by no later than 180 days after the date on which an effluent limitation is published in the federal register, if the request involves a variance from best available technology economically achievable (BAT), best conventional pollutant control technology (BCT), or both of them.

(b) A request for a variance from the best available technology (BAT) requirements for federal Clean Water Act section 301(b)(2)(F) pollutants (commonly called "nonconventional" pollutants) pursuant to section 301(c) of the federal Clean Water Act because of the economic capability of the owner or operator, or pursuant to section 301(g) of the federal Clean Water Act because of certain environmental considerations, when those requirements were based on effluent limitation guidelines, must be made by:

(i) submitting an initial request to the department, stating the name of the discharger, the permit number, the outfall number(s), the applicable effluent guideline, and whether the discharger is requesting a federal Clean Water Act section 301(c) or 301(g) modification or both. This request must have been filed not later than:

(A) September 25, 1978, for a pollutant which is controlled by a BAT effluent limitation guideline promulgated before December 27, 1977; or

(B) 270 days after promulgation of an applicable effluent limitation guideline for guidelines promulgated after December 27, 1977; and

(ii) submitting a completed request no later than the close of the public comment period under ARM 17.30.1372 demonstrating that the requirements of ARM 17.30.1375 and the applicable requirements of 40 CFR Part 125 have been met. Notwithstanding this provision, the complete application for a request under section 301(g) of the federal Clean Water Act must be filed before the department must make a decision;

(iii) requests for variance from effluent limitations not based on effluent limitations guidelines need only comply with (ii) and need not be preceded by an initial request under (i).

(c) A modification under the federal Clean Water Act section 302(b)(2) of requirements under section 302(a) for achieving water quality related effluent limitations may be requested no later than the close of the public comment period under ARM 17.30.1372 on the permit from which the modification is sought.

(d) A variance under the federal Clean Water Act section 316(a) for the thermal component of any discharge must be filed with a timely application for a permit under this subchapter, except that if thermal effluent limitations are established under federal Clean Water Act section 402(A)(1) or are based on water quality standards the request for a variance may be filed by the close of the public comment period under ARM 17.30.1372.

(14) A discharger that is a publicly owned treatment works (POTW) may request a variance from otherwise applicable effluent limitations under federal Clean Water Act section 302(b)(2) of the requirements under section 302(a) for achieving water quality based effluent limitations no later than the close of the public comment period under ARM 17.30.1372 on the permit from which the modification is sought.

(15) Notwithstanding the time requirements in (13) and (14):

(a) the department may notify a permit applicant before a draft permit is issued under ARM 17.30.1370 that the draft permit will likely contain limitations eligibility for variances. In the notice the department may require that the applicant, as a condition of consideration of any variance request, submit an explanation of how the requirements of ARM 17.30.1203(4) applicable to the variance have been met. The department may require submission of the explanation within a specified reasonable time after receipt of the notice. The notice may be sent before the permit application has been submitted. The draft or final permit may contain the alternative limitations that may become effective upon final grant of the variance; and specified reasonable time after receipt of the notice. The notice may be sent before the permit application has been submitted. The draft or final permit may contain the alternative limitations that may become effective upon final grant of the variance; and

(b) a discharger who cannot file a timely complete request required under (13)(b)(ii) or (iii) may request an extension. The extension may be granted or denied at the discretion of the department. Extensions may not be more than six months in duration.

(16) Applicants shall keep records of all data used to complete permit applications and any supplemental information submitted under this subchapter for a period of at least three years from the date the application is signed.

(17) New facilities with new or modified cooling water intake structures, as defined in ARM 17.30.1202, shall submit to the department for review the information required in this section as part of their application. Requests for alternative requirements under ARM 17.30.1213 must be submitted with the facility's permit application required by ARM 17.30.1322. All applicants shall provide the following information:

(a) source water physical data, which includes:

(i) a narrative description and scaled drawings showing the physical configuration of all source water bodies used by the facility, including areal dimensions, depths, salinity and temperature regimes, and other documentation that supports a determination of the water body type where each cooling water intake structure is located;

(ii) identification and characterization of the source water body's hydrological and geomorphological features, as well as the methods used to conduct any physical studies to determine the intake's area of influence within the water body and the results of such studies; and

(iii) locational maps;

(b) cooling water intake structure data, which includes:

(i) a narrative description of the configuration of each of the facility's cooling water intake structures and where they are located in the water body and in the water column;

(ii) latitude and longitude in degrees, minutes, and seconds for each of the cooling water intake structures;

(iii) a narrative description of the operation of each of the facility's cooling water intake structures, including design intake flows, daily hours of operation, number of days of the year in operation and seasonal changes, if applicable;

(iv) a flow distribution and water balance diagram that includes all sources of water to the facility, recirculating flows, and discharges; and

(v) engineering drawings of the cooling water intake structures; and

(c) a source water baseline biological characterization including information required to characterize the biological community in the vicinity of the cooling water intake structures and to characterize the operation of the cooling water intake structures. The department may also use this information in subsequent permit renewal proceedings to determine if the facility's design and construction technology plan, as required in ARM 17.30.1213, should be revised. This supporting information must include existing data (if they are available). However, supplemental data using newly conducted field studies may also be submitted at the discretion of the applicant. The following information must be submitted:

(i) a list of the data in (ii) through (vi) that are not available and efforts made to identify sources of the data;

(ii) a list of species (or relevant taxa) for all life stages and their relative abundance in the vicinity of the cooling water intake structures;

(iii) identification of the species and life stages that would be most susceptible to impingement and entrainment. Species evaluated should include the forage base as well as those most important in terms of significance to commercial and recreational fisheries;

(iv) identification and evaluation of the primary period of reproduction, larval recruitment, and period of peak abundance for relevant taxa;

(v) data representative of the seasonal and daily activities (e.g., feeding and water column migration) of biological organisms in the vicinity of the cooling water intake structures;

(vi) identification of all threatened, endangered, and other protected species that might be susceptible to impingement and entrainment at the cooling water intake structures;

(vii) documentation of any public participation or consultation with federal or state agencies undertaken in development of the plan; and

(viii) if information is submitted to supplement the information requested in (i) with data collected using field studies, supporting documentation for the source water baseline biological characterization must include a description of all methods and quality assurance procedures for sampling, and data analysis including a description of the study area, taxonomic identification of sampled and evaluated biological assemblages (including all life stages of fish and shellfish), and sampling and data analysis methods. The sampling and/or data analysis methods used must be appropriate for a quantitative survey and based on consideration of methods used in other biological studies performed within the same source water body. The study area should include, at a minimum, the area of influence of the cooling water intake structure.

(18) The department adopts and incorporates by reference the following federal regulations as part of the Montana pollutant discharge elimination system. Copies of these federal regulations may be obtained from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

(a) 40 CFR Part 136 (July 1, 2015), which sets forth guidelines establishing test procedures for the analysis of pollutants;

(b) Appendix A to 40 CFR Part 122 (July 1, 2011), which sets forth a list of primary industrial categories;

(d) Appendix J to 40 CFR Part 122 (July 1, 2011), which sets forth NPDES permit testing requirements for publicly owned treatment works;

(e) 40 CFR Part 125 (July 1, 2011), which sets forth criteria for extending compliance dates and for determining the availability of a variance;

(f) 40 CFR Part 412 (July 1, 2011), which sets forth effluent guidelines and standards for concentrated animal feeding operations.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 648, Eff. 2/14/03; AMD, 2006 MAR p. 532, Eff. 2/24/06; AMD, 2012 MAR p. 2604, Eff. 12/21/12; AMD, 2017 MAR p. 602, Eff. 5/13/17; AMD, 2020 MAR p. 1879, Eff. 10/24/20; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.1323 Signatories to Permit Applications and Reports

(1) All permit applications must be signed as follows:

(a) for a corporation, by a responsible corporate officer. A responsible corporate officer means:

(i) a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy- or decision-making functions for the corporation; or

(ii) the manager of one or more manufacturing, production, or operating facilities employing more than 250 persons or having gross annual sales or expenditures exceeding $25 million (in second-quarter 1980 dollars) , if authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures.

(b) for a partnership or sole proprietorship, by a general partner or the proprietor, respectively; or

(c) for a municipality, state, federal, or other public agency, by either a principal executive officer or ranking elected official. A principal executive officer of a federal agency includes:

(i) the chief executive officer of the agency; or

(ii) a senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency.

(2) All reports required by permits and other information requested by the department must be signed by a person described in (1) or by a duly authorized representative of that person. A person is a duly authorized representative only if:

(a) the authorization is made in writing by a person described in (1) ;

(b) the authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity such as the position of plant manager, operator of a well or a well field, superintendent, position of equivalent responsibility, or an individual or position having overall responsibility for environmental matters for the company (a duly authorized representative may thus be either a named individual or any individual occupying a named position) ;

(3) If an authorization under (2) is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization satisfying the requirements of (2) must be submitted to the department prior to or together with any reports, information, or applications to be signed by an authorized representative.

(4) Any person signing a document under (1) or (2) shall make the following certification:

I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 220, Eff. 2/14/03.

Mont. Admin. R. 17.30.1330 Concentrated Animal Feeding Operations

(1) Concentrated animal feeding operations (CAFOs), as defined in 75-5-801, MCA, or designated in accordance with (5) through (7), are point sources subject to the MPDES requirements as provided in this rule. Once an animal feeding operation is defined as a CAFO for at least one type of animal, the MPDES requirements for CAFOs apply with respect to all animals in confinement at the operation and all manure, litter, and process wastewater generated by those animals or the production of those animals, regardless of the type of animal.

(2) A CAFO must not discharge a pollutant to state surface waters unless the discharge is authorized under an MPDES permit. In order to obtain authorization under an MPDES permit, the CAFO owner or operator must either apply for an individual permit or submit a notice of intent for coverage under a general permit.

(3) An application for an individual permit must include the information specified in ARM 17.30.1322(9). A notice of intent to be covered under a general permit must include the information specified in ARM 17.30.1322(9) and 40 CFR 122.28(b).

(4) CAFOs that meet the requirements of 40 CFR Part 412 must be authorized by the department under a general permit, unless the department discovers site-specific information that indicates a general permit is not sufficiently protective of water quality during its review under (8). If the department determines that a general permit is not sufficient to protect water quality, the department shall require an individual permit for the CAFO.

(5) On a case-by-case basis, the department may designate any animal feeding operation as a concentrated animal feeding operation upon determining that it is a significant contributor of pollution to state waters. In making this designation the department shall consider the following factors:

(a) the size of the animal feeding operation and the amount of wastes reaching state waters;

(b) the location of the animal feeding operation relative to state waters;

(d) the slope, vegetation, rainfall, and other factors affecting the likelihood or frequency of discharge of animal wastes and process waste waters into state waters; and

(e) other relevant factors.

(6) No animal feeding operation with less than the numbers of animals set forth in 40 CFR Part 122.23 may be designated as a CAFO unless:

(a) pollutants are discharged into state waters through a manmade ditch, flushing system, or other similar manmade device; or

(b) pollutants are discharged directly into state waters which originate outside of the facility and pass over, across, or through the facility or otherwise come into direct contact with the animals confined in the operation.

(7) A permit application is not required from a concentrated animal feeding operation designated under this rule until the department has conducted an on-site inspection of the operation and determined that the operation should and could be regulated under the permit program.

(8) The department shall review notices of intent submitted by CAFO owners for coverage under a general permit according to the procedures in 40 CFR 122.23(h)(1).

(9) The discharge of manure, litter, or process wastewater from a CAFO's land application area to state surface waters is subject to MPDES requirements, except where the discharge is an agricultural storm water discharge, as defined in 40 CFR 122.23(e).

(10) The department adopts and incorporates by reference the following federal regulations, which may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena, MT 59620:

(a) 40 CFR 122.23 (except 40 CFR 122.23(d), (f), (g), (i), and (j)) (July 1, 2012), which specifies permit application requirements, definitions, and procedures for issuing individual or general permits to CAFOs.

(b) 40 CFR 122.28(b)(2)(vii) (July 1, 2012), which sets forth informational requirements for notices of intent submitted by CAFOs.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2006 MAR p. 532, Eff. 2/24/06; AMD, 2007 MAR p. 201, Eff. 2/9/07; AMD, 2013 MAR p. 529, Eff. 4/12/13; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.1331 Concentrated Aquatic Animal Production Facilities and Aquaculture Projects

(1) "Concentrated aquatic animal production facility" means a hatchery, fish farm, or other facility which meets the criteria in Appendix C of 40 CFR Part 122, or which the department designates under (3).

(2) Concentrated aquatic animal production facilities, as defined in this rule, are point sources subject to the MPDES permit program.

(3) On a case-by-case basis, the department may designate any warm or cold water aquatic animal production facility as a concentrated animal production facility upon determining that it is a significant contributor of pollution to state waters. In making this designation the department shall consider the following factors:

(a) the location and quality of the receiving state waters;

(b) the holding, feeding, and production capacities of the facility;

(d) other relevant factors.

(4) A permit application is not required from a concentrated aquatic animal production facility designated under this rule until the department has conducted an on-site inspection of the facility and has determined that the facility should and could be regulated under the permit program.

(5) Discharges into aquaculture projects, as defined in ARM 17.30.1304(5) , are subject to the MPDES permit program through 33 USC 1318, and in accordance with 40 CFR Part 125, subpart B (July 1, 1991).

(a) "Designated project area" means the portions of the waters of Montana within which the permittee or permit applicant plans to confine the cultivated species, using a method, plan, or operation (including, but not limited to, physical confinement) which, on the basis of reliable scientific evidence, is expected to ensure that specific individual organisms comprising an aquaculture crop will enjoy increased growth attributable to the discharge of pollutants, and be harvested within a defined geographic area.

(6) The department adopts and incorporates herein by reference Appendix C of 40 CFR Part 122 which is an appendix to a federal agency rule setting forth criteria for determining whether a facility or operation merits classification as a concentrated aquatic animal production facility.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2020 MAR p. 1879, Eff. 10/24/20; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.1332 Storm Water Discharges

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; REP, 2003 MAR p. 220, Eff. 2/14/03.

Mont. Admin. R. 17.30.1333 Silvicultural Activities

(1) Silvicultural point sources, as defined in ARM 17.30.1304(56) , are point sources subject to the MPDES permit program.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1334 Technical Standards for Concentrated Animal Feeding Operation

(1) The owner or operator of a CAFO as defined in ARM 17.30.1330 that is subject to the requirements of 40 CFR 412 Subparts C or D shall develop and implement a nutrient management plan (NMP) in accordance with the requirements of this rule and 40 CFR 122.42(e). The NMP must address the form, source and amount of nutrients, and the timing and method of application for all manure, litter, and other process wastewater that is applied to land under the ownership or operational control of the CAFO.

(2) For purposes of this rule, the following terms have the meaning and interpretations as indicated below and are supplemental to the definitions contained in ARM 17.30.1304:

(a) "expected crop yield" means the estimated crop yield, expressed as bushels per acre or tons per acre, in a future year based on one of the following:

(i) if historic crop yield data are available, the expected crop yield must be based on the average of at least three years of previous crop yield data (past average yield) using the formula: estimated crop yield = 1.05 X past average yield; or

(ii) if historic crop data are unavailable, expected crop yield must be based on realistic yield goals determined from other sources and described in the facility's NMP;

(b) "field" means an area of land that is capable of supporting vegetation and is homogeneous with respect to crop or cover type where manure is to be applied and is under the control of a CAFO owner or operator;

(c) "manure" means manure, litter, or process wastewater, including bedding, compost, and raw materials or other materials comingled with manure or set aside for disposal;

(d) "multiyear phosphorus application" means phosphorus applied to a field in excess of the crop needs for that year;

(e) "Olsen soil test" means the concentration of phosphorus in the soil as determined by the Olsen sodium-bicarbonate extraction in accordance with method code 4D5 in United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), Soil Survey Laboratory Methods Manual, Soil Survey Investigations Report No. 42, Version 4.0, November 2004;

(f) "process wastewater" means water directly or indirectly used in the operation of a CAFO for any or all of the following:

(i) spillage or overflow from animal or poultry watering systems;

(ii) washing, cleaning, or flushing pens, barns, manure pits, or other CAFO facilities;

(iii) direct contact swimming, washing, or spray cooling of animals;

(iv) dust control; or

(v) any water that comes into contact with any raw materials, products, or byproducts including manure, litter, feed, milk, eggs, or bedding;

(g) "site vulnerability rating" means the narrative description of a field for phosphorus loss as determined by Table 4 (Site/Field Vulnerability to Phosphorus Loss) in United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), No. 80.1 Nutrient Management, Agronomy Technical Note MT-77 (revision 3), January 2006; and

(h) "total phosphorus index value" means the sum of the weighted risk factors for a field as determined by Table 3 (Phosphorus Index Assessment) in United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), No. 80.1 Nutrient Management, Agronomy Technical Note MT-77 (revision 3), January 2006.

(3) Except as provided in (10), application rates for manure applied to each field must be determined based on the criteria given in (a) through (c).

(a) The CAFO shall complete a field-specific assessment to determine the appropriate basis (nitrogen- or phosphorus-based) for application of plant nutrients. The field-specific assessment for CAFOs applying manure on fields that are located in a watershed that is listed as impaired for nutrients (total phosphorus or total nitrogen) must follow the method listed in (i). The field-specific assessment for CAFOs applying manure on fields that are not located in a watershed that is listed as impaired for nutrients (total phosphorus or total nitrogen) may follow the procedures in either (i) or (ii).

(i) The field-specific assessment must be based on the phosphorus index assessment method described in United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), No. 80.1 Nutrient Management, Agronomy Technical Note MT-77 (revision 3), January 2006. The nutrient application basis is determined as follows:

(A) nitrogen-based application, if the site vulnerability rating is low (total phosphorus index value is less than 11);

(B) phosphorus-based, if the site vulnerability rating is medium (total phosphorus index value is between 11 and 21);

(C) phosphorus-based application up to crop removal, if the site vulnerability rating is high (total phosphorus index value is between 22 and 43); or

(D) no application, if the site vulnerability rating is rated as very high (total phosphorus index value is greater than 43).

(ii) The field-specific assessment must be based on a representative soil sample, as described in (5), using the Olsen soil test method. The nutrient application basis is determined as follows:

(A) nitrogen-based application, if the Olsen phosphorus soil test is less than 25 mg/L;

(B) phosphorus-based application, if the Olsen phosphorus soil test is greater than 25.1 mg/L and less than 100 mg/L;

(C) phosphorus-based up to crop removal, if the Olsen phosphorus soil test is greater than 100.1 mg/L and less than 150.0 mg/L;

(D) no application, if the Olsen phosphorus soil test is greater than 150 mg/L.

(b) The CAFO shall complete a nutrient need analysis for each crop to determine the acceptable amounts of nitrogen and phosphorus to be applied to the field based on the appropriate basis (nitrogen- or phosphorus-based application) as determined in (a). The nutrient needs must be determined based on Montana State University Extension Service Publication 161, Fertilizer Guidelines for Montana Crops or other relevant sources. For crops not listed in Bulletin 161, the department may approve a fertilizer application rate provided by the local county extension service or other qualified source. The CAFO must identify the source of the nutrient needs analysis in the nutrient management plan.

(c) The CAFO shall complete a nutrient budget based on the nutrient needs of the crop as determined in (b) that accounts for all sources of nutrients available to the crop. Other sources that must be addressed where applicable include those in (i) through (vi).

(i) The nitrogen needs determined in (b) must be reduced based on nitrogen fixation credits if a legume crop was grown in the field in the previous year. Nitrogen reduction for annual legume crops is ten pounds per acre and for perennial legumes is 50 pounds per acre, unless appropriate justification is given showing a lower rate is appropriate, but not less than 35 pounds per acre for all perennial legumes except black medic and annual sweet clover, for which the rate is not less than 15 pounds per acre, and lentils and chick peas, for which the rate is not less than 30 pounds per acre.

(ii) The nitrogen needs determined in (b) must be reduced based on nitrogen residuals from past manure applications based on nitrogen mineralization rates given in Schedule I.

Schedule I. Nitrogen Mineralization Rates

Type of Wastes | First Year(1) | Second Year Fresh poultry manure | 0.90 | 0.02 Fresh swine manure | 0.75 | 0.04 Fresh cattle manure | 0.70 | 0.04 Fresh sheep and horse manure | 0.60 | 0.06 Liquid manure, covered tank | 0.65 | 0.05 Liquid manure, storage pond | 0.65 | 0.05 Solid manure, stack | 0.60 | 0.06 Solid manure, open pit | 0.55 | 0.05 Manure pack, roofed | 0.50 | 0.05 Manure pack, open feedlot | 0.45 | 0.05 Storage pond effluent | 0.40 | 0.06 Oxidation ditch effluent | 0.40 | 0.06 Aerobic lagoon effluent | 0.40 | 0.06 Anaerobic lagoon effluent | 0.30 | 0.06

(1) If irrigated, reduce first year mineralization by 0.05.

(iii) The nitrogen needs determined in (b) must be reduced based on any nutrients provided by commercial fertilizer, irrigation water, or other sources. The CAFO shall provide the basis for the nutrients adjustments on the NMP.

(iv) Nitrogen availability may be adjusted to reflect the method of application given in Schedule II. For phosphorus-based application, the nitrogen availability is 1.0.

Schedule II. Nitrogen Availability and Loss by Method of Application

(v) The nutrient budget must be completed on forms provided by the department.

(vi) If after the first three years of implementing the NMP the yield does not average at least 80 percent of the planned expected crop yield, the NMP must be amended to be consistent with the documented yield levels unless sufficient justification for the use of the higher yield is approved by the department. The amendment must be submitted as an amendment in accordance with ARM 17.30.1365.

(4) Manure that is land applied must be sampled at least once per year and analyzed for total nitrogen (as N), ammonium nitrogen (as NH 4 -N), total phosphorus (as P 2 O 5 ), total potassium (as K 2 O), and percent dry matter solids). Except for percent dry matter, the results of this analysis must be expressed as pounds per 1,000 gals for liquid wastes and pounds per ton for solid manure. The sample must be representative of the manure that is to be applied to a field and must be collected and analyzed in accordance with (a) and (b).

(a) Solid manure must be sampled from at least ten different locations (subsamples) within the material to be applied from a depth of at least 18 inches below the surface. Subsamples must be thoroughly mixed in a clean receptacle and a sample of the mixed material must be collected and placed in a sealable plastic bag or other sample container approved by the analytical laboratory. The sample must be identified with the name, source, and date. The sample must be cooled to four degrees centigrade and analyzed within seven days or frozen at minus 18 degrees centigrade for up to six months or as directed by the analytical laboratory specified in (6).

(b) Liquid manure must be agitated for a minimum of four hours prior to sample collection or until thoroughly mixed. A minimum of five one-quart subsamples must be collected from different locations in the storage facility. The subsamples must be collected from the liquid manure at a depth of least 12 inches below the surface. The subsamples must be combined into a single container and thoroughly mixed. A sample for laboratory analysis must be collected from the composited subsamples and placed into a clean one-quart plastic bottle or other sample container approved by the analytical laboratory. The sample must be identified with the name, source, and date. The sample container must not be completely filled. The sample must be cooled to four degrees centigrade and analyzed within seven days, or frozen at minus 18 degrees centigrade for up to six months or as directed by the analytical laboratory specified in (6).

(5) Each field where manure is to be land applied must be sampled at least once every five years in accordance with the procedure given in (a) through (d).

(a) A minimum of ten individual core samples must be composited to formulate a composite sample for the field. Core sampling in fields with significant landscape variation, including soil type, slope, degree of erosion, drainage, historic usage, or other factors, must be collected from each unit in proportion to the relative abundance in terms of total area. Uniform fields may be sampled in a simple random, stratified random, or systematic pattern following the guidance sources listed below. Individual core samples must be composited and thoroughly mixed in a clean plastic container except that core samples collected at different depths must be kept separate. Alternative soil sampling procedures are given in the following:

(i) United States Department of Agriculture (USDA), Natural Resource Conservation Service (NRCS), Sampling Soils for Nutrient Management – Manure Resource Series, MT, April 2007; and

(ii) Montana State University Extension, MontGuide, Interpretation of Soil Test Reports for Agriculture, MT200702AG, July 2007.

(b) The composite soil sample for phosphorus analysis must be collected from a depth of zero to six inches below the surface and analyzed for phosphorus using the Olsen soil test method. Results must be reported as mg/kg phosphorus and pounds per acre.

(c) Composite soil samples for nitrogen analysis must be collected from a depth of zero to six inches below the surface and analyzed for total nitrogen (as N) and nitrate (as N). A second composite sample must be collected at a depth of six to 24 inches and analyzed for nitrate (as N) only. Samples must be analyzed in accordance with method code 4H2a1-3 in United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), Soil Survey Laboratory Methods Manual, Soil Survey Investigations Report No. 42, Version 4.0, November 2004. Results must be reported as mg/kg total nitrogen and pounds per acre.

(6) Analytical laboratories approved for manure and soil testing are given in Montana State University Extension Service Publication 4449-1, Soil Sampling and Laboratory Selection, June 2005.

(7) Manure must be applied to fields at times and under conditions that will hold the nutrients in place for crop growth and protect surface and ground water using best management practices described in the nutrient management plan. The intended target spreading dates must be included in the NMP. Manure must not be land-applied under the following conditions:

(a) on land that is flooded or saturated with water;

(b) during or within 36 hours of a rainfall event that exceeds four hours in duration or 0.25 inches or more of precipitation; or

(i) the application area must be at least 300 feet from lakes, streams, intermittent streams, irrigation canals and ditches, open intake structures, property lines, and road right-of-ways;

(ii) permanent vegetative cover or standing stubble with crop residue greater than 50 percent; and

(iii) land slope of the field must not exceed the following criteria:

(A) six percent for application of solid manure (total solids content greater than 15 percent); or

(B) three percent for application of slurry or liquid waste (total solids content of 15 percent or less).

(8) If winter application is proposed, the CAFO must identify fields suitable for winter application in the nutrient management plan and application rates for manure must not exceed those identified in the nutrient budget as determined in (3)(c).

(9) Manure application rates and procedures must be consistent with the capabilities, including capacity and calibration range, of application equipment.

(a) For an existing CAFO, the NMP must include a statement indicating that the existing equipment has been calibrated to ensure delivery of the application rates described in the plan and has the capacity to meet those rates. The CAFO shall maintain the supporting documentation on site and shall make this information available to the department upon request.

(b) For proposed operations, or when it is not feasible to calibrate the equipment or verify its capacity at planning time, the operator shall perform this application equipment verification prior to the first application of manure. The information required in (a) must be maintained on site and incorporated into any subsequent amendment of the NMP. The CAFO shall maintain the supporting documentation on site and shall make this information available to the department upon request.

(c) If a commercial hauler is used, the hauler shall be responsible for ensuring that the equipment is capable of complying with the application rate in the NMP. The CAFO shall maintain the supporting documentation on site and shall make this information available to the department upon request.

(10) A multiyear phosphorus application is allowed for fields that require a nitrogen-based application based on a site-specific assessment (site vulnerability rating less than 22) as described in (3). When such application is made, the following conditions apply:

(a) the application may not exceed the recommended nitrogen application rate during the years of application which may include a calculation for fertilizer inefficiencies or the estimated nitrogen removal in harvested plant biomass during the year of application when there is no recommended nitrogen application;

(b) conservation practices must be included in the NMP and implemented to minimize the risk of phosphorus loss from the field; and

(c) no additional manure may be applied to the field until the phosphorus applied in the single application has been removed through plant harvest.

(11) As an alternative to the manure application rates based on the criteria given in (3), the CAFO may develop application rates for manure based on United States Department of Agriculture (USDA), Natural Resource Conservation Service (NRCS), Conservation Practice Standard, Code 590 (November 2006), provided that the following conditions are met:

(a) a field-specific assessment of the potential for nitrogen and phosphorus transport from the field to surface waters must be conducted;

(b) the form, source, amount, timing, and method of application of manure and any other nutrients to each field must be based on realistic production goals, and minimizing nitrogen and phosphorus movement to surface water must be addressed;

(c) the appropriate flexibilities for the CAFO must be maintained to implement a multiyear phosphorus application as described in (9);

(d) manure must be sampled a minimum of once annually for nitrogen and phosphorus and must be analyzed based on procedures and methods given in (4) and (5);

(e) soil must be analyzed a minimum of once every three years for phosphorus content;

(f) the results of the manure and soil sampling analysis must be used in determining manure application rates; and

(g) the nutrient budget must be completed on forms provided by the department.

(12) The department adopts and incorporates by reference the following, which may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena, MT 59620-0901, or on the department's web site at http://deq.mt.gov/default.mcpx.

(a) United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), No. 80.1 Nutrient Management Agronomy Technical Note MT-77 (revision 3), (January 2006);

(b) United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), Method 4D5 (Olsen Sodium-Bicarbonate Extraction), Soil Survey Laboratory Methods Manual, Soil Survey Investigations Report No. 42, Version 4.0, (November 2004);

(c) United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), Sampling Soils for Nutrient Management – Manure Resource Series, MT, (April 2007);

(d) Montana State University Extension, MontGuide, Interpretation of Soil Test Reports for Agriculture, MT200702AG, (July 2007);

(e) Montana State University Extension Service Publication 4449-1, Soil Sampling and Laboratory Selection, (June 2005); and

(f) United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), Conservation Practice Standard, Nutrient Management, Code 590, (November 2006).

(13) CAFO sewage lagoons must meet the setbacks established in ARM 17.30.1702.

History

Authorizing statute(s): 75-5-201, 75-5-401, 75-5-802, MCA
Implementing statute(s): 75-5-201, 75-5-401, 75-5-802, MCA
History: NEW, 2013 MAR p. 529, Eff. 4/12/13; AMD, 2019 MAR p. 836, Eff. 6/22/19; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.1340 New Sources and New Dischargers

(1) Except as otherwise provided in an applicable new source performance standard, a source is a new source if it meets the definition of new source in ARM 17.30.1304, and:

(a) it is constructed at a site at which no other source is located; or

(b) it totally replaces the process or production equipment that causes the discharge of pollutants at an existing source; or

(c) its processes are substantially independent of an existing source at the same site. In determining whether these processes are substantially independent, the department shall consider such factors as the extent to which the new facility is integrated with the existing plant; and the extent to which the new facility is engaged in the same general type of activity as the existing source.

(2) A source meeting the requirements of (1)(a), (b), or (c) is a new source only if a new source performance standard is independently applicable to it. If there is no such independently applicable standard, the source is a new discharger. (See ARM 17.30.1304.)

(3) Construction on a site at which an existing source is located results in a modification subject to ARM 17.30.1361 rather than a new source (or a new discharger) if the construction does not create a new building, structure, facility, or installation meeting the criteria of (1)(b) or (c) but otherwise alters, replaces, or adds to existing process or production equipment.

(4) Construction of a new source as defined under ARM 17.30.1304 has commenced if the owner or operator has:

(a) begun, or caused to begin as part of a continuous on-site construction program:

(i) any placement, assembly, or installation of facilities or equipment; or

(ii) significant site preparation work including clearing, excavation, or removal of existing buildings, structures, or facilities which is necessary for the placement, assembly, or installation of new source facilities or equipment; or

(b) entered into a binding contractual obligation for the purchase of facilities or equipment which are intended to be used in its operation within a reasonable time. Options to purchase or contracts which can be terminated or modified without substantial loss, and contracts for feasibility, engineering, and design studies do not constitute a contractual obligation under this rule.

(5) Except as provided in (6), any new discharger, the construction of which commenced after October 18, 1972, or new source which meets the applicable promulgated new source performance standards before the commencement of discharge, may not be subject to any more stringent new source performance standards or to any more stringent technology-based standards under ARM 17.30.1207 for the soonest ending of the following periods:

(a) ten years from the date that construction is completed;

(b) ten years from the date the source begins to discharge process or other non-construction related wastewater; or

(c) the period of depreciation or amortization of the facility for the purposes of section 167 or 169 (or both) of the Internal Revenue Code of 1954.

(6) The protection from more stringent standards of performance afforded by (5) does not apply to:

(a) additional or more stringent permit conditions which are not technology based; for example, conditions based on water quality standards, or toxic effluent standards or prohibitions under ARM 17.30.1206; or

(b) additional permit conditions in accordance with 40 CFR 125.3 controlling toxic pollutants or hazardous substances which are not controlled by new source performance standards. This includes permit conditions controlling pollutants other than those identified as toxic pollutants or hazardous substances when control of these pollutants has been specifically identified as the method to control the toxic pollutants or hazardous substances.

(7) When an MPDES permit issued to a source with a "protection period" under (5) of this rule expires on or after the expiration of the protection period, that permit must require the owner or operator of the source to comply with the requirements of section 301 of the federal Clean Water Act and any other then-applicable requirements of the Act immediately upon the expiration of the protection period. No additional period for achieving compliance with these requirements may be allowed except when necessary to achieve compliance with requirements promulgated less than three years before the expiration of the protection period.

(8) The owner or operator of a new source, a new discharger which commenced discharge after August 13, 1979, or a recommencing discharger, shall install and have in operating condition, and shall "start-up" all pollution control equipment required to meet the conditions of its permits before beginning to discharge. Within the shortest feasible time (not to exceed 90 days) , the owner or operator shall meet all permit conditions. The requirements of this rule do not apply if the owner or operator is issued a permit containing a compliance schedule under ARM 17.30.1350(1)(b) .

(9) After the effective date of new source performance standards, it is unlawful for any owner or operator of any new source to operate the source in violation of those standards applicable to the source.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2020 MAR p. 1879, Eff. 10/24/20.

Mont. Admin. R. 17.30.1341 General Permits

(1) The department may issue general permits for the following categories of point sources which the department has determined are appropriate for general permitting under the criteria listed in 40 CFR 122.28 as stated in ARM 17.30.1105:

(a) cofferdams or other construction dewatering discharges;

(b) ground water pump test discharges;

(d) placer mining operations;

(e) suction dredge operations using suction intakes no larger than four inches in diameter;

(f) oil well produced water discharges for beneficial use;

(g) animal feedlots;

(h) domestic sewage treatment lagoons;

(i) sand and gravel mining and processing operations;

(j) point source discharges of storm water;

(k) treated water discharged from petroleum cleanup operations;

(l) discharges from public water supply systems, as determined under Title 75, chapter 6, MCA;

(m) discharges to wetlands that do not contain perennial free surface water;

(n) discharges from road salting operations;

(o) asphalt plant discharges;

(p) discharges of hydrostatic testing water;

(q) discharges of noncontact cooling water;

(r) swimming pool discharge;

(s) septic tank pumper disposal sites; and

(t) pesticide application.

(2) Although MPDES general permits may be issued for a category of point sources located throughout the state, they may also be restricted to more limited geographical areas.

(3) Prior to issuing a MPDES general permit, the department shall prepare a public notice which includes the equivalent of information listed in ARM 17.30.1372(6) and shall publish the same as follows:

(a) prior to publication, notice to the U.S. Environmental Protection Agency;

(b) direct mailing of notice to the Water Pollution Control Advisory Council and to any persons who may be affected by the proposed general permit;

(c) publication of notice in a daily newspaper in Helena and in other daily newspapers of general circulation in the state or affected area;

(d) after publication, a hearing must be held and a 30-day comment period allowed as provided in ARM 17.30.1372 through 17.30.1377 and 17.30.1383.

(4) A person owning or proposing to operate a point source who wishes to operate under a MPDES general permit shall complete a standard MPDES application or notice of intent form available from the department for the particular general permit. Except for notices of intent, the department shall, within 30 days of receiving a completed application, either issue to the applicant an authorization to operate under the MPDES general permit, or shall notify the applicant that the source does not qualify for authorization under a MPDES general permit, citing one or more of the following reasons as the basis for denial:

(a) the specific source applying for authorization appears unable to comply with the following requirements:

(i) effluent standards, effluent limitations, standards of performance for new sources of pollutants, toxic effluent standards and prohibitions, and pretreatment standards;

(ii) water quality standards established pursuant to 75-5-301, MCA;

(iii) prohibition of discharge of any radiological, chemical, or biological warfare agent or high-level radioactive waste;

(iv) prohibition of any discharge which the secretary of the army acting through the chief of engineers finds would substantially impair anchorage and navigation;

(v) prohibition of any discharges to which the regional administrator has objected in writing;

(vi) prohibition of any discharge which is in conflict with a plan or amendment thereto approved pursuant to section 208(b) of the federal Clean Water Act; and

(vii) any additional requirements that the department determines are necessary to carry out the provisions of 75-5-101, et seq., MCA.

(b) the discharge is different in degree or nature from discharges reasonably expected from sources or activities within the category described in the MPDES general permit;

(d) the discharge sought to be authorized under a MPDES general permit is also included within an application or is subject to review under the Major Facility Siting Act, 75-20-101, et seq., MCA;

(e) the point source will be located in an area of unique ecological or recreational significance. Such determination must be based upon considerations of Montana stream classifications adopted under 75-5-301 , MCA, impacts on fishery resources, local conditions at proposed discharge sites, and designations of wilderness areas under 16 USC 1132 or of wild and scenic rivers under 16 USC 1274.

(5) Where authorization to operate under a MPDES general permit is denied, or a notice of intent under ARM 17.30.1115 is not applicable, the department shall proceed, unless the application or notice of intent is withdrawn, to process the application or notice of intent through the individual MPDES permit requirements under this subchapter.

(6) Every MPDES general permit must have a fixed term not to exceed five years. Except as provided in (10) , every authorization to operate under a MPDES general permit expires at the same time the MPDES general permit expires.

(7) Where authorization to operate under a MPDES general permit is issued to, or a notice of intent received from, a point source covered by an individual MPDES permit, the department shall, upon issuance of the authorization to operate or receipt of the notice of intent under the MPDES general permit, terminate the individual MPDES permit for that point source.

(8) Any person authorized or eligible to operate under a MPDES general permit may at any time apply for an individual MPDES permit according to the procedures in this subchapter. Upon issuance of the individual MPDES permit, the department shall terminate any MPDES general permit authorization or notice of intent held by such person.

(9) The department, on its own initiative or upon the petition of any interested person, may modify, suspend, or revoke in whole or in part a MPDES general permit or an authorization or notice of intent to operate under a MPDES general permit during its term in accordance with the provisions of ARM 17.30.1361 for any cause listed in ARM 17.30.1361 or for any of the following causes:

(a) the approval of a water quality management plan containing requirements applicable to point sources covered in the MPDES general permit;

(b) determination by the department that the discharge from any authorized source is a significant contributor to pollution as determined by the factors set forth in 40 CFR 122.26(c) (2) ; or

(c) a change in the availability of demonstrated technology or practices for the control or abatement of pollutants applicable to a source or to a category of sources;

(d) occurrence of one or more of the following circumstances:

(i) violation of any conditions of the permit; or

(ii) obtaining an MPDES permit by misrepresentation or failure to disclose fully all relevant facts;

(iii) a change in any condition that requires either a temporary or permanent reduction or elimination of the authorized discharge; or

(iv) a failure or refusal by the permittee to comply with the requirements of 75-5-602, MCA.

(10) The department may reissue an authorization to operate under a MPDES general permit provided that the requirements for reissuance of MPDES permits specified in ARM 17.30.1322 are met.

(11) The department shall maintain and make available to the public a register of all sources and activities authorized to operate, or with notices of intent to discharge, under each MPDES general permit including the location of such sources and activities, and shall provide copies of such registers upon request.

(12) A concentrated animal feeding operation (CAFO) owner or operator may be authorized to discharge under a general permit only in accordance with the process described in 40 CFR 122.23(h).

(13) The department adopts and incorporates by reference the following federal regulations, which may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena, MT 59620-0901:

(a) 40 CFR 122.28 (July 1, 2012), which sets forth criteria for selecting categories of point sources appropriate for general permitting;

(b) 40 CFR 124.10(d)(1) (July 1, 2012), which sets forth minimum contents of public notices; and

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1999 MAR p. 1661, Eff. 7/23/99; AMD, 2003 MAR p. 220, Eff. 2/14/03; AMD, 2011 MAR p. 909, Eff. 5/27/11; AMD, 2013 MAR p. 529, Eff. 4/12/13; AMD, 2020 MAR p. 1879, Eff. 10/24/20; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.1342 Conditions Applicable to All Permits

The following conditions apply to all MPDES permits. Additional conditions applicable to MPDES permits are set forth in ARM 17.30.1344. All conditions applicable to MPDES permits must be incorporated into the permits either expressly or by reference. If incorporated by reference, a specific citation to these rules must be given in the permit.

(1) The permittee shall comply with all conditions of this permit. Any permit noncompliance constitutes a violation of the Act and is grounds for enforcement action; for permit termination, revocation and reissuance, or modification; or denial of a permit renewal application.

(a) The permittee shall comply with effluent standards or prohibitions established under ARM 17.30.1206 for toxic pollutants within the time provided in the rules that establish these standards or prohibitions, even if the permit has not yet been modified to incorporate the requirement.

(b) The Act provides that any person who violates a permit condition is subject to a civil penalty not to exceed $10,000 per day of such violation. Any person who willfully or negligently violates a permit condition is subject to a fine not to exceed $25,000 per day of violation or imprisonment for not more than one year, or both.

(2) If the permittee wishes to continue an activity regulated by this permit after the expiration date of this permit, the permittee shall first apply for and obtain a new permit.

(3) It may not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit.

(4) The permittee shall take all reasonable steps to minimize or prevent any discharge in violation of this permit which has a reasonable likelihood of adversely affecting human health or the environment.

(5) The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by the permittee to achieve compliance with the conditions of this permit. Proper operation and maintenance also includes adequate laboratory controls and appropriate quality assurance procedures. This provision requires the operation of backup or auxiliary facilities or similar systems which are installed by a permittee only when the operation is necessary to achieve compliance with the conditions of the permit.

(6) This permit may be modified, revoked and reissued, or terminated for cause. The filing of a request by the permittee for a permit modification, revocation and reissuance, or termination, or a notification of planned changes or anticipated noncompliance does not stay any permit condition.

(7) This permit does not convey any property rights of any sort, or any exclusive privilege.

(8) The permittee shall furnish to the department, within a reasonable time, any information which the department may request to determine whether cause exists for modifying, revoking and reissuing, or terminating this permit or to determine compliance with this permit. The permittee shall also furnish to the department upon request, copies of records required to be kept by this permit.

(9) The permittee shall allow the department, or an authorized representative, upon the presentation of credentials and other documents as may be required by law, to:

(a) enter upon the permittee's premises where a regulated facility or activity is located or conducted, or where records must be kept under the conditions of this permit;

(b) have access to and copy, at reasonable times, any records that must be kept under the conditions of this permit;

(c) inspect at reasonable times any facilities, equipment (including monitoring and control equipment) , practices, or operations regulated or required under this permit; and

(d) sample or monitor at reasonable times, for the purposes of assuring permit compliance or as otherwise authorized by the Act, any substances or parameters at any location.

(10) Monitoring and records:

(a) Samples and measurements taken for the purpose of monitoring must be representative of the monitored activity.

(b) The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation, copies of all reports required by this permit, and records of all data used to complete the application for this permit, for a period of at least three years from the date of the sample, measurement, report or application. This period may be extended by request of the department at any time.

(i) the date, exact place, and time of sampling or measurements;

(ii) the individual(s) who performed the sampling or measurements;

(iii) the date(s) analyses were performed;

(iv) the individual(s) who performed the analyses;

(v) the analytical techniques or methods used; and

(vi) the results of such analyses.

(d) Monitoring must be conducted according to test procedures approved under 40 CFR Part 136, unless other test procedures have been specified in this permit.

(11) All applications, reports, or information submitted to the department must be signed and certified. (See ARM 17.30.1323.)

(12) Reporting requirements:

(a) The permittee shall give notice to the department as soon as possible of any planned physical alterations or additions to the permitted facility. Notice is required only when:

(i) the alteration or addition to a permitted facility may meet one of the criteria for determining whether a facility is a new source in ARM 17.30.1340(2); or

(ii) the alteration or addition could significantly change the nature or increase the quantity of pollutants discharged. This notification applies to pollutants which are subject neither to effluent limitations in the permit, nor to notification requirements under ARM 17.30.1343(1)(a).

(b) The permittee shall give advance notice to the department of any planned changes in the permitted facility or activity which may result in noncompliance with permit requirements.

(c) This permit is not transferable to any person except after notice to the department. The department may require modification or revocation and reissuance of the permit to change the name of the permittee and incorporate such other requirements as may be necessary under the Act. (See ARM 17.30.1360; in some cases, modification or revocation and reissuance is mandatory.)

(d) Monitoring results must be reported at the intervals specified elsewhere in this permit.

(i) Monitoring results must be reported on a discharge monitoring report (DMR).

(ii) If the permittee monitors any pollutant more frequently than required by the permit, using test procedures approved under 40 CFR 136 or as specified in the permit, the results of this monitoring must be included in the calculation and reporting of the data submitted in the DMR.

(iii) Calculations for all limitations which require averaging of measurements must utilize an arithmetic mean unless otherwise specified by the department in the permit.

(e) Reports of compliance or noncompliance with, or any progress reports on, interim and final requirements contained in any compliance schedule of this permit must be submitted no later than 14 days following each schedule date.

(f) Twenty-four hour reporting:

(i) The permittee shall report any noncompliance which may endanger health or the environment. Any information must be provided orally within 24 hours from the time the permittee becomes aware of the circumstances. A written submission must also be provided within five days of the time the permittee becomes aware of the circumstances. The written submission must contain a description of the noncompliance and its cause; the period of noncompliance, including exact dates and times, and if the noncompliance has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent reoccurrence of the noncompliance.

(ii) The following must be included as information which must be reported within 24 hours under this rule:

(A) any unanticipated bypass which exceeds any effluent limitation in the permit (see ARM 17.30.1342(7));

(B) any upset which exceeds any effluent limitation in the permit; and

(C) violation of a maximum daily discharge limitation for any of the pollutants listed by the department in the permit to be reported within 24 hours (see ARM 17.30.1344 and 40 CFR 122.44(g)).

(iii) The department may waive the written report on a case-by-case basis for reports under (ii) above if the oral report has been received within 24 hours.

(g) The permittee shall report all instances of noncompliance not reported under (a), (d), (e), and (f), at the time monitoring reports are submitted. The reports must contain the information listed in (f).

(h) Where the permittee becomes aware that it failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to the department, it shall promptly submit such facts or information.

(13) Other noncompliance:

(a) The permittee may allow any bypass to occur which does not cause effluent limitations to be exceeded, but only if it also is for essential maintenance to assure efficient operation. These bypasses are not subject to the provisions of (b) and (c).

(b) If the permittee knows in advance of the need for a bypass, it shall submit prior notice to the department, if possible at least 10 days before the date of the bypass. The permittee shall submit notice of an unanticipated bypass as required in (12)(f) (24-hour notice).

(i) bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;

(ii) there were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate backup equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance; and

(iii) the permittee submitted notices as required under (c).

(d) The department may approve an anticipated bypass, after considering its adverse effects, if the department determines that it will meet the three conditions listed above in (c)(i).

(14) Upset Conditions:

(a) Effect of an upset: An upset constitutes an affirmative defense to an action brought for noncompliance with such technology-based permit effluent limitations if the requirements of (b) are met. No determination made during administrative review of claims that noncompliance was caused by upset, and before an action for noncompliance, is final administrative action subject to judicial review.

(b) Conditions necessary for demonstration of an upset: A permittee who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that:

(i) an upset occurred and that the permittee can identify the cause(s) of the upset;

(ii) the permitted facility was at the time being properly operated;

(iii) the permittee submitted notice of the upset as required in (12)(f)(ii)(B) (24-hour notice); and

(iv) the permittee complied with any remedial measures required under (4).

(c) Burden of proof: In any enforcement proceeding the permittee seeking to establish the occurrence of an upset has the burden of proof.

(15) The department adopts and incorporates by reference:

(a) 40 CFR Part 136, which is a series of federal agency rules setting forth guidelines establishing test procedures for the analysis of pollutants; and

(b) 40 CFR 122.44(g), which is a federal agency rule requiring 24-hour notice of any violation of maximum daily discharge limits.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2020 MAR p. 1879, Eff. 10/24/20; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.1343 Additional Conditions Applicable to Specific Categories of Mpdes Permits

(1) The following conditions, in addition to those set forth in ARM 17.30.1342, apply to all MPDES permits within the categories specified below:

(a) All existing manufacturing, commercial, mining, and silvicultural dischargers, in addition to the reporting requirements under ARM 17.30.1342(12) , shall notify the department as soon as they know or have reason to believe:

(i) That any activity has occurred or will occur which would result in the discharge on a routine or frequent basis, of any toxic pollutant which is not limited in the permit, if that discharge will exceed the highest of the following "notification levels":

(A) 100 micrograms per liter;

(B) 200 micrograms per liter for acrolein and acrylonitrile; 500 micrograms per liter for 2,4-dinitrophenol and for 2-methyl-4,6-dinitrophenol; and one milligram per liter for antimony;

(C) five times the maximum concentration value reported for that pollutant in the permit application in accordance with ARM 17.30.1322(7) (g) ; or

(D) the level established by the department in accordance with ARM 17.30.1344(6) .

(ii) That any activity has occurred or will occur which would result in any discharge, on a non-routine or infrequent basis, of a toxic pollutant which is not limited in the permit, if that discharge will exceed the highest of the following "notification levels":

(A) 500 micrograms per liter;

(B) one milligram per liter for antimony;

(C) 10 times the maximum concentration value reported for that pollutant in the permit application in accordance with ARM 17.30.1322(7) (g) ; or

(D) the level established by the department in ARM 17.30.1344, in accordance with 40 CFR 122.44(f) .

(b) All POTW's shall provide adequate notice to the department of the following:

(i) any new introduction of pollutants into the POTW from an indirect discharger which would be subject to the effluent limits or standards of performance adopted and set forth in ARM 17.30.302 if it were directly discharging those pollutants; and

(ii) any substantial change in the volume or character of pollutants being introduced into that POTW by a source introducing pollutants into the POTW at the time of issuance of the permit.

(iii) For purposes of this rule, adequate notice must include information on:

(A) the quality and quantity of effluent introduced into the POTW; and

(B) any anticipated impact of the change on the quantity or quality of effluent to be discharged from the POTW.

(c) Any permit issued to a concentrated animal feeding operation (CAFO) must include the requirements specified in 40 CFR 122.42(e). In general, the requirements in that federal regulation include:

(i) a requirement to implement a nutrient management plan that contains best management practices necessary to meet the requirements of 40 CFR 122.42(e)(1) and any applicable effluent limitations in 40 CFR Part 412;

(ii) recordkeeping and reporting requirements;

(iii) requirements relating to the transfer of manure or process wastewater to other persons;

(iv) a requirement to include specific terms in the nutrient management plan and a duty to comply with those terms; and

(v) requirements relating to changes in a nutrient management plan.

(2) The department adopts and incorporates by reference the following federal regulations, which may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena, MT 59620-0901:

(a) 40 CFR 122.44(f) (July 1, 2012), which sets forth "notification levels" for dischargers of pollutants that may be inserted in a permit upon a petition from the permittee or upon the initiative of the department;

(b) 40 CFR Part 412 (July 1, 2012), which establishes the effluent limitation guidelines and best management practices for CAFOs; and

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2006 MAR p. 532, Eff. 2/24/06; AMD, 2013 MAR p. 529, Eff. 4/12/13; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.1344 Establishing Limitations, Standards, and Other Permit Conditions

(1) In addition to the conditions established under ARM 17.30.1342, 17.30.1343, 17.30.1346, 17.30.1350, and 17.30.1351, each MPDES permit must include conditions meeting the requirements stated in 40 CFR 122.43, 122.44, 124.56, and 124.57 (July 1, 1991).

(2) The department adopts and incorporates by reference:

(a) 40 CFR 122.43 (July 1, 1991), which is a federal rule that establishes applicable permit conditions in general;

(b) 40 CFR 122.44 (July 1, 1991), which is a federal agency rule setting forth additional permit conditions which may be applicable to a point source. Such conditions include technology-based and water-quality-based standards, toxic and pretreatment standards, reopener clause, reporting and monitoring requirements, permit duration and reissuance, test methods, best management practices, conditions concerning sewage sludge, privately owned treatment works, and conditions imposed in EPA grants to POTW's;

(d) 40 CFR 124.57 (July 1, 1991), which describes the public notice that must be provided for draft permits;

(e) 40 CFR chapter 1, subchapter N, (July 1, 1991), which sets forth federal effluent limitations and standards and new source performance standards;

(f) 40 CFR Part 125 (July 1, 1991), which states standards and criteria for the national point discharge elimination system;

(g) 40 CFR Part 129 (July 1, 1991), which describes toxic effluent pollutant standards; and

(h) 40 CFR Part 133, (July 1, 1991), which sets forth requirements for secondary treatment regulation.

(i) Copies of the above listed materials are available from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2020 MAR p. 1879, Eff. 10/24/20; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.1345 Calculating Mpdes Permit Conditions

(1) All permit effluent limitations, standards, and prohibitions must be established for each outfall or discharge point of the permitted facility, except as otherwise provided under ARM 17.30.1344 (40 CFR 122.44(k)) (BMP's where limitations are infeasible) and (10) (limitations on internal waste streams).

(2) Production-based limitations.

(a) In the case of POTW's, permit limitations, standards, or prohibitions must be calculated based on design flow.

(b) Except in the case of POTW's, or as provided in (3), calculation of any permit limitations, standards, or prohibitions which are based on production (or other measure of operation) must be based not upon the designed production capacity but rather upon a reasonable measure of actual production of the facility. For new sources or new dischargers, actual production must be estimated using projected production. The time period of the measure of production must correspond to the time period of the calculated permit limitations; for example, monthly production must be used to calculate average monthly discharge limitations.

(3) The department may include a condition establishing alternate permit limitations, standards, or prohibitions based upon anticipated increased (not to exceed maximum production capability) or decreased production levels.

(4) If the department establishes permit conditions under (3):

(a) The permit must require the permittee to notify the department at least two business days prior to a month in which the permittee expects to operate at a level higher than the lowest production level identified in the permit. The notice must specify the anticipated level and the period during which the permittee expects to operate at the alternate level. If the notice covers more than one month, the notice must specify the reasons for the anticipated production level increase. New notice of discharge at alternate levels is required to cover a period or production level not covered by prior notice or, if during two consecutive months otherwise covered by a notice, the production level at the permitted facility does not in fact meet the higher level designated in the notice.

(b) The permittee shall comply with the limitations, standards, or prohibitions that correspond to the lowest level of production specified in the permit, unless the permittee has notified the department under (a), in which case the permittee shall comply with the lower of the actual level of production during each month or the level specified in the notice.

(c) The permittee shall submit with the DMR the level of production that actually occurred during each month and the limitations, standards, or prohibitions applicable to that level of production.

(5) All permit effluent limitations, standards, or prohibitions for a metal must be expressed in terms of "total recoverable metal" as defined in 40 CFR Part 136 unless:

(a) an applicable effluent standard or limitation has been promulgated under the Act and specifies the limitation for the metal in the dissolved or valent or total form; or

(b) in establishing permit limitations on a case-by-case basis under ARM 17.30.1203, it is necessary to express the limitation on the metal in the dissolved or valent or total form to carry out the provisions of the Act; or

(c) all approved analytical methods for the metal inherently measure only its dissolved form (e.g., hexavalent chromium).

(6) For continuous discharges all permit effluent limitations, standards, and prohibitions, including those necessary to achieve water quality standards, must unless impracticable be stated as:

(a) maximum daily and average monthly discharge limitations for all dischargers other than publicly owned treatment works; and

(b) average weekly and average monthly discharge limitations for POTW's.

(7) Discharges which are not continuous, as defined in ARM 17.30.1304(12), must be particularly described and limited, considering the following factors, as appropriate:

(a) frequency (for example, a batch discharge must not occur more than once every three weeks);

(b) total mass (for example, not to exceed 100 kilograms of zinc and 200 kilograms of chromium per batch discharge);

(c) maximum rate of discharge of pollutants during the discharge (for example, not to exceed two kilograms of zinc per minute); and

(d) prohibition or limitation of specified pollutants by mass, concentration, or other appropriate measure (for example, must not contain at any time more than 0.1 mg/l zinc or more than 250 grams (1/4 kilogram) of zinc in any discharge).

(8) Mass limitations:

(a) All pollutants limited in permits must have limitations, standards, or prohibitions expressed in terms of mass except:

(i) for pH, temperature, radiation, or other pollutants which cannot appropriately be expressed by mass;

(ii) when applicable standards and limitations are expressed in terms of other units of measurement; or

(iii) if in establishing permit limitations on a case-by-case basis under 40 CFR 125.3, limitations expressed in terms of mass are infeasible because the mass of the pollutant discharged cannot be related to a measure of operation (for example, discharges of total suspended solids (TSS) from certain mining operations), and permit conditions ensure that dilution will not be used as a substitute for treatment.

(b) Pollutants limited in terms of mass additionally may be limited in terms of other units of measurement, and the permit must require the permittee to comply with both limitations.

(9) Pollutants in intake water:

(a) Upon request of the discharger, technology-based effluent limitations or standards must be adjusted to reflect credit for pollutants in the discharger's intake water if:

(i) the applicable effluent limitations and standards contained in 40 CFR chapter 1, subchapter N, specifically provide that they must be applied on a net basis; or

(ii) the discharger demonstrates that the control system it proposes or uses to meet applicable technology-based limitations and standards would, if properly installed and operated, meet the limitations and standards in the absence of pollutants in the intake waters.

(b) Credit for generic pollutants such as biochemical oxygen demand (BOD) or total suspended solids (TSS) should not be granted unless the permittee demonstrates that the constituents of the generic measure in the effluent are substantially similar to the constituents of the generic measure in the intake water or unless appropriate additional limits are placed on process water pollutants either at the outfall or elsewhere.

(c) Credit may be granted only to the extent necessary to meet the applicable limitation or standards, up to a maximum value equal to the influent value. Additional monitoring may be necessary to determine eligibility for credits and compliance with permit limits.

(d) Credit may be granted only if the discharger demonstrates that the intake water is drawn from the same body of water into which the discharge is made. The department may waive this requirement if it finds that no environmental degradation will result.

(e) This rule does not apply to the discharge of raw water clarifier sludge generated from the treatment of intake water.

(10) Internal waste streams:

(a) When permit effluent limitations or standards imposed at the point of discharge are impractical or infeasible, effluent limitations or standards for discharges of pollutants may be imposed on internal waste streams before mixing with other waste streams or cooling water streams. In those instances, the monitoring required by ARM 17.30.1344, in accordance with 40 CFR 122.44(i), must also be applied to the internal waste streams.

(b) Limits on internal waste streams may be imposed only when the fact sheet under ARM 17.30.1371 sets forth the exceptional circumstances which make such limitations necessary, such as when the final discharge point is inaccessible (for example, under 10 meters of water), the wastes at the point of discharge are so diluted as to make monitoring impracticable, or the interferences among pollutants at the point of discharge would make detection or analysis impracticable.

(11) Permit limitations and standards concerning disposal of pollutants into wells, POTW's, or by land application must be calculated as provided in ARM 17.30.1354.

(12) The department adopts and incorporates by reference:

(a) 40 CFR 122.44(j)(2), which is a federal agency rule setting forth a requirement for the submittal by a publicly owned treatment work (POTW) of a local pretreatment program;

(b) 40 CFR 122.45(b)(2)(ii)(A) which is a federal agency rule setting forth the availability of alternate permit limitations, standards, or prohibitions based on varying production levels;

(c) 40 CFR 136, which is a series of federal agency rules setting forth guidelines for testing procedures for the analysis of pollutants;

(d) 40 CFR 125.3, which is a federal agency rule setting forth technology-based treatment requirements for point source dischargers;

(e) 40 CFR chapter 1, subchapter N, which is a series of federal agency rules setting forth effluent guidelines and standards for point source dischargers; and

(f) 40 CFR 122.44(i), which is a federal agency rule setting forth monitoring requirements for point source dischargers.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2020 MAR p. 1879, Eff. 10/24/20; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.1346 Duration of Permits

(1) MPDES permits are effective for a fixed term not to exceed five years.

(2) Except as provided in ARM 17.30.1313, the term of a permit may not be extended by modification beyond the maximum duration specified in this rule.

(3) The department may issue any permit for a duration that is less than the full allowable term under this rule.

(4) A permit may be issued to expire on or after the statutory deadline set forth in section 301(b) (2)(A), (C), and (E) of the federal Clean Water Act (July 1, 1984), if the permit includes effluent limitations to meet the requirements of sections 301(b) (2)(A), (C), (D), (E), and (F) of the federal Clean Water Act, whether or not applicable effluent limitations guidelines have been promulgated or approved.

(5) A determination that a particular discharger falls within a given industrial category for purposes of setting a permit expiration date under (4) is not conclusive as to the discharger's inclusion in that industrial category for any other purposes, and does not prejudice any rights to challenge or change that inclusion at the time that a permit based on that determination is formulated.

(6) The department adopts and incorporates by reference sections 301(b)(2) (A), (C), (E), and (F) of the federal Clean Water Act, 33 USC 1251, et seq., which set forth deadlines for achieving effluent limitations and treatment of toxic pollutants.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2020 MAR p. 1879, Eff. 10/24/20; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.1350 Schedules of Compliance

(1) The permit may, when appropriate, specify a schedule of compliance leading to compliance with the Act and rules adopted thereunder.

(a) Any schedules of compliance under this rule must require compliance as soon as possible, but not later than any applicable statutory deadline under the Act or under the federal Clean Water Act.

(b) The first MPDES permit issued to a new source or a new discharger must contain a schedule of compliance only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised after commencement of construction but less than three years before commencement of the relevant discharge. For recommencing dischargers, a schedule of compliance must be available only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised less than three years before recommencement of discharge.

(c) Except as provided in (2)(a)(ii), if a permit establishes a schedule of compliance which exceeds one year from the date of permit issuance, the schedule must set forth interim requirements and the dates for their achievement.

(i) The time between interim dates may not exceed one year.

(ii) If the time necessary for completion of any interim requirement (such as the construction of a control facility) is more than one year and is not readily divisible into stages for completion, the permit must specify interim dates for the submission of reports of progress toward completion of the interim requirements and indicate a projected completion date.

(d) The permit must be written to require that no later than 14 days following each interim date and the final date of compliance, the permittee shall notify the department in writing of its compliance or noncompliance with the interim or final requirements, or submit progress reports if (c)(ii) is applicable.

(2) An MPDES permit applicant or permittee may cease conducting regulated activities (by terminating of direct discharge for MPDES sources) rather than continuing to operate and meet permit requirements as follows:

(a) If the permittee decides to cease conducting regulated activities at a given time within the term of a permit which has already been issued:

(i) the permit may be modified to contain a new or additional schedule leading to timely cessation of activities; or

(ii) the permittee shall cease conducting permitted activities before noncompliance with any interim or final compliance schedule requirement already specified in the permit.

(b) If the decision to cease conducting regulated activities is made before issuance of a permit whose term includes the termination date, the permit must contain a schedule leading to termination which will ensure timely compliance with applicable requirements no later than the statutory deadline.

(c) If the permittee is undecided whether to cease conducting regulated activities, the department may issue or modify a permit to contain two schedules as follows:

(i) both schedules must contain an identical interim deadline requiring a final decision on whether to cease conducting regulated activities no later than a date which ensures sufficient time to comply with applicable requirements in a timely manner if the decision is to continue conducting regulated activities;

(ii) one schedule must lead to timely compliance with applicable requirements, no later than the statutory deadline;

(iii) the second schedule must lead to cessation of regulated activities by a date which ensures timely compliance with applicable requirements no later than the statutory deadline;

(iv) each permit containing two schedules must include a requirement that after the permittee has made a final decision under (i) it shall follow the schedule leading to compliance if the decision is to continue conducting regulated activities, and follow the schedule leading to termination if the decision is to cease conducting regulated activities.

(d) The applicant's or permittee's decision to cease conducting regulated activities must be evidenced by a firm public commitment satisfactory to the department, such as a resolution of the board of directors of a corporation.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2020 MAR p. 1879, Eff. 10/24/20.

Mont. Admin. R. 17.30.1351 Requirements for Recording and Reporting of Monitoring Results

(1) All permits must specify:

(a) requirements concerning the proper use, maintenance, and installation, when appropriate, of monitoring equipment or methods (including biological monitoring methods when appropriate) ;

(b) required monitoring including type, intervals, and frequency sufficient to yield data which are representative of the monitored activity including, when appropriate, continuous monitoring;

(c) applicable reporting requirements based upon the impact of the regulated activity and as specified in ARM 17.30.1344. Reporting may be no less frequent than specified in that rule.

(2) The department may require monitoring of storm water discharges at a facility or activity covered under an MPDES general permit. Such requirements may include storm water sampling, analytical testing, evaluation of monitoring results, recording, and reporting. Monitoring requirements identified by the department must be stated in the MPDES general permit, except that the department may require a discharger to comply with monitoring requirements in addition to those in the general permit.

(3) For storm water discharges that are associated with industrial, mining, oil and gas, and construction activity and that are subject to an effluent limitation guideline, the department shall establish case-by-case requirements to report monitoring results. Such reporting must have a frequency dependent on the nature and effect of the discharge, but the frequency may in no case be less than once a year.

(4) For storm water discharges that are associated with industrial, mining, oil and gas, and construction activity with construction-related disturbance of five acres or more of total land area and that are not subject to an effluent limitation guideline, the department shall establish case-by-case requirements to report monitoring results.

(a) Such reporting must have a frequency dependent on the nature and effect of the discharge, and the permit for the discharge must, at a minimum, require that the discharger:

(i) conduct an annual inspection of the facility site to identify areas contributing to the regulated storm water discharge and to evaluate whether measures to reduce pollutant loadings identified in a storm water pollution prevention plan are adequate and properly implemented in accordance with the terms of the permit;

(ii) maintain for a period of three years a record summarizing the results of inspections; and

(iii) certify that the facility is in compliance with the plan and the permit, or identify any incidents of non-compliance.

(b) Reports and certifications required under this rule must be signed in accordance with ARM 17.30.1323.

(c) Permits for storm water discharges from inactive mining operations may, if annual inspections are impracticable, require certification once every three years by a registered professional engineer that the facility is in compliance with the permit, or alternative requirements.

(5) Permits that do not require the submittal of monitoring result reports at least annually must require that the permittee report at least annually all instances of noncompliance not reported under ARM 17.30.1342(12) .

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 220, Eff. 2/14/03.

Mont. Admin. R. 17.30.1354 Disposal of Pollutants Into Wells, Into Publicly Owned Treatment Works, or by Land Application

(1) When part of a discharger's process wastewater is not being discharged into state waters or contiguous zone because it is disposed into a well, into a POTW, or by land application thereby reducing the flow or level of pollutants being discharged into state waters, applicable effluent standards and limitations for the discharge in an MPDES permit must be adjusted to reflect the reduced raw waste resulting from such disposal. Effluent limitations and standards in the permit must be calculated by one of the following methods:

(a) If none of the waste from a particular process is discharged into state waters, and effluent limitations guidelines provide separate allocation for wastes from that process, all allocations for the process must be eliminated from calculation of permit effluent limitations or standards.

(b) In all cases other than those described in (a), effluent limitations must be adjusted by multiplying the effluent limitation derived by applying effluent limitation guidelines to the total waste stream by the amount of wastewater flow to be treated and discharged into state waters, and dividing the result by the total wastewater flow. Effluent limitations and standards so calculated may be further adjusted under 40 CFR Part 125, subpart D, to make them more or less stringent if discharges to wells, publicly owned treatment works, or by land application change the character or treatability of the pollutants being discharged to receiving waters. This method may be algebraically expressed as:

P = | E x N T

where P is the permit effluent limitation, E is the limitation derived by applying effluent guidelines to the total waste-stream, N is the wastewater flow to be treated and discharged to state waters, and T is the total wastewater flow.

(2) Section (1) does not apply to the extent that promulgated effluent limitations guidelines:

(a) control concentrations of pollutants discharged but not mass; or

(b) specify a different specific technique for adjusting effluent limitations to account for well injection, land application, or disposal into POTW's.

(3) Section (1) does not alter a discharger's obligation to meet any more stringent requirements established under ARM 17.30.1342, 17.30.1343, and 17.30.1344.

(4) The department adopts and incorporates by reference 40 CFR Part 125, subpart D, which is a series of federal agency rules setting forth criteria and standards for determining eligibility for a variance from effluent limitations based on fundamentally different factors (FDF).

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2020 MAR p. 1879, Eff. 10/24/20; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.1360 Transfer of Permits

(1) Except as provided in (2) , a permit may be transferred by the permittee to a new owner or operator only if the permit has been modified or revoked and reissued (under ARM 17.30.1361(2) (b) ) , or a minor modification made (under ARM 17.30.1362(4) ) , to identify the new permittee and incorporate such other requirements as may be necessary under the Act.

(2) As an alternative to transfers under (1) , any MPDES permit may be automatically transferred to a new permittee if:

(a) the current permittee notifies the department at least 30 days in advance of the proposed transfer date in (b) ;

(b) the notice includes a written agreement between the existing and new permittees containing a specific date for transfer of permit responsibility, coverage, and liability between them; and

(c) the department does not notify the existing permittee and the proposed new permittee of his or her intent to modify or revoke and reissue the permit. A modification under this rule may also be a minor modification under ARM 17.30.1362. If this notice is not received, the transfer is effective on the date specified in the agreement mentioned in (b) .

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1361 Modification or Revocation and Reissuance of Permits

(1) When the department receives any information (for example, inspects the facility, receives information submitted by the permittee as required in the permit (see ARM 17.30.1342) , receives a request for modification or revocation and reissuance under ARM 17.30.1365, or conducts a review of the permit file) it may determine whether or not one or more of the causes listed in (2) and (3) for modification or revocation and reissuance or both exist. If cause exists, the department may modify or revoke and reissue the permit accordingly, subject to the limitations of ARM 17.30.1365(4) (c) , and may request an updated application if necessary. When a permit is modified, only the conditions subject to modification are reopened. If a permit is revoked and reissued, the entire permit is reopened and subject to revision and the permit is reissued for a new term. See ARM 17.30.1365(4) (b) . If cause does not exist under this rule or ARM 17.30.1362, the department may not modify or revoke and reissue the permit. If a permit modification satisfies the criteria in ARM 17.30.1362 for "minor modifications" the permit may be modified without a draft permit or public review. Otherwise, a draft permit must be prepared and other procedures in ARM 17.30.1364, 17.30.1365, 17.30.1370 through 17.30.1379, 17.30.1383, and 17.30.1384 followed.

(2) The following are causes for modification but not revocation and reissuance of permits except when the permittee requests or agrees:

(a) when there are material and substantial alterations or additions to the permitted facility or activity that occurred after permit issuance which justify the application of permit conditions that are different or absent in the existing permit. Certain reconstruction activities may cause the new source provisions of ARM 17.30.1340 to be applicable;

(b) when the department receives new information that was not available at the time of permit issuance. Permits may be modified during their terms for this cause only if the information was not available at the time of permit issuance (other than revised regulations, guidance, or test methods) and would have justified the application of different permit conditions at the time of issuance. For MPDES general permits (ARM 17.30.1341) this subsection includes any information indicating that cumulative effects on the environment are unacceptable. For new source or new discharger MPDES permits (ARM 17.30.1340), this subsection includes any significant information derived from effluent testing after issuance of the permit;

(c) when the standards or requirements on which the permit was based have been changed by amendment or by judicial decision after the permit was issued. Permits may be modified during their terms for this cause only as follows:

(i) for promulgation of amended standards or requirements, when:

(A) the permit condition requested to be modified was based on a duly adopted effluent limitation guideline, water quality standards, or the secondary treatment regulations under 40 CFR Part 133; and

(B) the department has revised, withdrawn, or modified that portion of the regulation or effluent limitation guideline on which the permit condition was based, or changed a water quality standard on which the permit condition was based; and

(C) a permittee requests modification in accordance with ARM 17.30.1365 within 90 days of the final action on which the request is based.

(ii) for judicial decisions, a court of competent jurisdiction has remanded and stayed department rules or effluent limitation guidelines, if the remand and stay concern that portion of the regulations or guidelines on which the permit condition was based and a request is filed by the permittee in accordance with ARM 17.30.1365 within 90 days of judicial remand;

(d) when the department determines good cause exists for modification of a compliance schedule, such as an act of God, strike, flood, or materials shortage or other events over which the permittee has little or no control and for which there is no reasonably available remedy. However, in no case may an MPDES compliance schedule be modified to extend beyond an applicable reasonably available remedy. However, in no case may an MPDES compliance schedule be modified to extend beyond an applicable statutory deadline. (See also ARM 17.30.1362(1)(c) minor modifications);

(e) when the permittee has filed a request for a variance under the federal Clean Water Act, sections 301(c), (g), (h), (i), (k), or 316(a), or for "fundamentally different factors" within the time specified in ARM 17.30.1322 or 40 CFR 125.27(a);

(f) when required to incorporate an applicable federal Clean Water Act section 307(a) toxic effluent standard or prohibition (see ARM 17.30.1344(2));

(g) when required by the "reopener" conditions in a permit, which are established in the permit under ARM 17.30.1344(2) (toxic effluent limitations) or under any pretreatment requirements in the permit;

(h) upon request of a permittee who qualifies for effluent limitations on a net basis under ARM 17.30.1345(10) or when a discharger is no longer eligible for net limitations, as provided in ARM 17.30.1345(12);

(i) as necessary under ARM 17.30.1412 (compliance schedule for development of pretreatment program);

(j) upon failure of the department to notify, as required by section 402(b)(3) of the federal Clean Water Act, another state whose waters may be affected by a discharge from Montana;

(k) when the level of discharge of any pollutant which is not limited in the permit exceeds the level which can be achieved by the technology-based treatment requirements appropriate to the permittee under 40 CFR 125.3(c);

(l) to establish a "notification level" as provided in ARM 17.30.1344;

(m) to modify a schedule of compliance to reflect the time lost during construction of an innovative or alternative facility, in the case of a POTW which has received a grant under section 202(a)(3) of the federal Clean Water Act for 100% of the costs to modify or replace facilities constructed with a grant for innovative and alternative wastewater technology under section 202(a)(2) of the federal Clean Water Act. In no case may the compliance schedule be modified to extend beyond an applicable statutory deadline for compliance;

(n) for small municipal separate storm sewer systems, to include effluent limitations requiring implementation of minimum control measures as specified in ARM 17.30.1111(6) if:

(i) the permit does not include such measures based upon the determination that another entity was responsible for implementation of the requirements; and

(ii) the other entity fails to implement measures that satisfy the requirements;

(o) to correct technical mistakes, such as errors in calculation, or mistaken interpretations of law made in determining permit conditions; and

(p) when the discharger has installed the treatment technology considered by the department in setting effluent limitations and has properly operated and maintained the facilities but nevertheless has been unable to achieve those effluent limitations. In this case, the limitations in the modified permit may reflect the level of pollutant control actually achieved (but may not be less stringent than required by a subsequently promulgated effluent limitations guideline).

(q) To incorporate the terms of a concentrated animal feeding operation's (CAFO) nutrient management plan into the terms and conditions of a general permit, when a CAFO obtains coverage under a general permit in accordance with 40 CFR 122.23(h) and 122.28, is not a cause for modification pursuant to the requirements of this rule.

(3) The following are causes to modify or, alternatively, revoke and reissue a permit:

(a) cause exists for termination under ARM 17.30.1363, and the department determines that modification or revocation and reissuance is appropriate; and

(b) the department has received notification of a proposed transfer of the permit. A permit also may be modified to reflect a transfer after the effective date of an automatic transfer (ARM 17.30.1360(2)) but will not be revoked and reissued after the effective date of the transfer except upon the request of the new permittee.

(4) The department adopts and incorporates by reference the following federal regulations, which may be obtained from the Department of Environmental Quality, Water Protection Bureau, P.O. Box 200901, Helena, MT 59620-0901:

(a) 40 CFR Part 133 (July 1, 2012), which sets forth requirements for the level of effluent quality available through the application of secondary (or equivalent) treatment;

(b) sections 301(c), (g), (i), and (k) of the federal Clean Water Act, codified at 33 USC section 1311(c), (g), (i), and (k), which allow for modifying or extending dates for achieving effluent limitations;

(c) section 316(a) of the federal Clean Water Act, codified at 33 USC section 1326, which allows a variance from an applicable effluent limitation based on fundamentally different factors (FDF);

(d) section 402(b)(3) of the federal Clean Water Act, codified at 33 USC section 1342(b)(3), which requires that states administering the NPDES program notify other states whose waters may be affected by a proposed discharge;

(e) 40 CFR 125.3(c) (July 1, 2012), sets forth methods of imposing technology-based treatment requirements in permits;

(f) 40 CFR 122.23(h) (July 1, 2012), which sets forth procedures for CAFOs seeking coverage under a general permit; and

(g) 40 CFR 122.28 (July 1, 2012), which sets forth conditions applicable to the issuance of general permits.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 220, Eff. 2/14/03; AMD, 2013 MAR p. 529, Eff. 4/12/13; AMD, 2020 MAR p. 1879, Eff. 10/24/20; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.1362 Minor Modifications of Permits

(1) Upon the consent of the permittee, the department may modify a permit to make the corrections or allowances for changes in the permitted activity listed in this rule, without following the procedures of ARM 17.30.1364, 17.30.1365, 17.30.1370 through 17.30.1379, 17.30.1383, and 17.30.1384. Any permit modification not processed as a minor modification under this rule must be made for cause and with a draft permit (ARM 17.30.1370) and public notice as required in ARM 17.30.1364, 17.30.1365, 17.30.1370 through 17.30.1379, 17.30.1383, and 17.30.1384. Minor modifications may only:

(a) correct typographical errors;

(b) require more frequent monitoring or reporting by the permittee;

(c) change an interim compliance date in a schedule of compliance, provided the new date is not more than 120 days after the date specified in the existing permit and does not interfere with attainment of the final compliance date requirement; or

(d) allow for a change in ownership or operational control of a facility where the department determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittees has been submitted to the department;

(e) change the construction schedule for a discharger that is a new source. No such change may affect a discharger's obligation to have all pollution control equipment installed and in operation prior to discharge under ARM 17.30.1340;

(f) delete a point source outfall when the discharge from that outfall is terminated and does not result in discharge of pollutants from other outfalls except in accordance with permit limits;

(g) conform to ARM 17.30.1342 and 17.30.1343(1);

(h) incorporate conditions of a POTW pretreatment program that has been approved in accordance with the procedures in ARM 17.30.1413 (or a modification thereto that has been approved in accordance with the procedures in ARM 17.30.1426) as enforceable conditions of the POTW's permits; or

(i) incorporate changes to the terms of a CAFO's nutrient management plan that have been reviewed and approved in accordance with the requirements of 40 CFR 122.42(e)(6).

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2013 MAR p. 529, Eff. 4/12/13.

Mont. Admin. R. 17.30.1363 Termination of Permits

(1) The following are causes for terminating a permit during its term, or for denying a permit renewal application:

(a) noncompliance by the permittee with any condition of the permit;

(b) the permittee's failure in the application or during the permit issuance process to disclose fully all relevant facts, or the permittee's misrepresentation of any relevant facts at any time;

(c) a determination that the permitted activity endangers human health or the environment and can only be regulated to acceptable levels by permit modification or termination; or

(d) a change in any condition that requires either a temporary or a permanent reduction or elimination of any discharge controlled by the permit (for example, plant closure or termination of discharge by connection to a POTW) .

(2) The department shall follow the applicable procedures in ARM 17.30.1364, 17.30.1365, 17.30.1370 through 17.30.1379, 17.30.1383, and 17.30.1384 in terminating any MPDES permit under this rule.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1364 Application Processing Procedures

(1)

(a) Any person who requires a permit under the MPDES program shall complete, sign, and submit to the department an application for each permit required under ARM 17.30.1301. Application procedures for authorizations under MPDES general permits are set forth at ARM 17.30.1341.

(b) The department may not begin the processing of a permit until the applicant has fully complied with the application requirements for that permit. See ARM 17.30.1322.

(2) The department shall review for completeness every application for a permit. Each application for a permit submitted by a new source or new discharger should be reviewed for completeness by the department within 30 days of its receipt. Each application for a permit submitted by an existing source should be reviewed for completeness within 60 days of receipt. If the application is incomplete, the department shall advise the applicant of the information necessary to make the application complete. When the application is for an existing source, the department shall specify in the notice of deficiency a date for submitting the necessary information. After the application is complete, the department may request additional information from an applicant but only when necessary to clarify, modify, or supplement previously submitted material. Requests for such additional information do not render an application incomplete.

(3) If an applicant fails or refuses to correct deficiencies in the application, the permit may be denied and appropriate enforcement actions may be taken by the department.

(4) If the department decides that a site visit is necessary for any reason in conjunction with the processing of an application, it shall notify the applicant and schedule a date.

(5) The effective date of an application is the date on which the department determines that the application is complete as provided in (3) .

(6) For each application from a major MPDES new source or major MPDES new discharger, the department shall, no later than the effective date of the application, prepare and mail to the applicant a project decision schedule. The schedule must specify target dates by which the department intends to:

(a) prepare a draft permit;

(b) give public notice;

(d) issue a final permit.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1365 Modification, Revocation and Reissuance, or Termination of Permits

(1) During their term, permits may be modified, revoked and reissued, or terminated either at the request of any interested person (including the permittee) . However, permits may only be modified, revoked and reissued, or terminated for the reasons specified in ARM 17.30.1361 or 17.30.1363. All requests must be in writing and must contain facts or reasons supporting the request.

(2) If the department decides the request is not justified, it shall send the requester a brief written response giving a reason for the decision. Denials of requests for modification, revocation and reissuance, or termination are not subject to public notice, comment, or hearings. Denials by the department may be appealed to the board by a petition or letter setting forth the relevant facts. The board, after hearing, may affirm the department's action or may direct the department to begin modification, revocation and reissuance, or termination proceedings under (3) .

(3) During their term, permits may be modified, revoked and reissued, or terminated upon the initiative of the department. However, such action may only be taken for one or more of the reasons specified in ARM 17.30.1361 or 17.30.1363. If the department modifies, revokes and reissues, or terminates a permit, the department shall give written notice of its action to the holder who may file a written request within 30 days for a hearing before the board in the manner stated in 75-5-611 , MCA. Such hearing must be held within 30 days after the board receives written request. If the holder does not request a hearing, a modification of a permit is effective 30 days after receipt of notice by the holder unless the department specifies a later date. If the holder does request a board hearing, no order modifying his permit may be effective until 20 days after the holder has received notice of the board's action. The effective date of a termination or suspension of a permit by the department or board must be in accordance with 75-5-404 , MCA.

(4)

(a) If the department tentatively decides to modify or revoke and reissue a permit under ARM 17.30.1361, it shall prepare a draft permit under ARM 17.30.1370 incorporating the proposed changes. The department may request additional information and, in the case of a modified permit, may require the submission of an updated application. In the case of revoked and reissued permits, the department shall require the submission of a new application.

(b) In a permit modification under this rule, only those conditions to be modified may be reopened when a new draft permit is prepared. All other aspects of the existing permit remain in effect for the duration of the unmodified permit. When a permit is revoked and reissued under this rule, the entire permit is reopened just as if the permit had expired and was being reissued. During any revocation and reissuance proceeding the permittee shall comply with all conditions of the existing permit until a new final permit is reissued.

(5) If the department tentatively decides to terminate a permit under ARM 17.30.1363, it shall issue a notice of intent to terminate. A notice of intent to terminate is a type of draft permit which follows the same procedures as any draft permit prepared under ARM 17.30.1370.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1370 Draft Permits

(1) Once an application is complete, the department shall tentatively decide whether to prepare a draft permit or to deny the application.

(2) If the department tentatively decides to deny the permit application, it shall issue a notice of intent to deny. A notice of intent to deny the permit application is a type of draft permit which follows the same procedures as any draft permit prepared under this rule. See (5) . If the department's final decision (ARM 17.30.1378) is that the tentative decision to deny the permit application was incorrect, it shall withdraw the notice of intent to deny and proceed to prepare a draft permit under (3) .

(3) If the department decides to prepare a draft permit, it shall prepare a draft permit that contains the following information:

(a) all conditions under ARM 17.30.1342;

(b) all compliance schedules under ARM 17.30.1350;

(d) effluent limitations, standards, prohibitions and conditions under ARM 17.30.1342, 17.30.1343, and 17.30.1344.

(4) All draft permits prepared by the department under this rule must be accompanied by a fact sheet, if required by ARM 17.30.1371, and must be publicly noticed (ARM 17.30.1372) and made available for public comment (ARM 17.30.1373) . The department shall give notice of opportunity for a public hearing (ARM 17.30.1374) , issue a final decision (ARM 17.30.1378) , and respond to comments (ARM 17.30.1377) . An appeal may be taken in accordance with 75-5-403 , MCA. The applicant must submit a written request for hearing within 30 days of receiving the department's final decision.

(5) A statement of basis must be prepared for every draft permit for which a fact sheet is not prepared. The statement of basis must briefly describe the derivation of the conditions of the draft permit and the reasons for them or, in the case of notices of intent to deny or terminate, reasons supporting the tentative decision. The statement of basis must be sent to the applicant and, on request, to any other person.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1371 Fact Sheet

(1) A fact sheet must be prepared for every draft permit for a major facility or activity, and for every draft permit which the department finds is the subject of widespread public interest or raises major issues. The fact sheet must briefly set forth the principal facts and the significant factual, legal, methodological and policy questions considered in preparing the draft permit. The department shall send this fact sheet to the applicant and, on request, to any other person.

(2) The fact sheet must include, when applicable:

(a) a brief description of the type of facility or activity which is the subject of the draft permit;

(b) the type and quantity of wastes, fluids, or pollutants which are proposed to be discharged.

(c) a brief summary of the basis for the draft permit conditions including references to applicable statutory or regulatory provisions;

(d) reasons why any requested variances or alternatives to required standards do or do not appear justified;

(e) a description of the procedures for reaching a final decision on the draft permit including:

(i) the beginning and ending dates of the comment period under ARM 17.30.1372 and the address where comments will be received;

(ii) procedures for requesting a hearing and the nature of that hearing; and

(iii) any other procedures by which the public may participate in the final decision; and

(f) name and telephone number of a person to contact for additional information.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1372 Public Notice of Permit Actions and Public Comment Period

(1) The department shall give public notice that the following actions have occurred:

(a) a permit application has been tentatively denied under ARM 17.30.1370(2);

(b) a draft permit has been prepared under ARM 17.30.1370(4);

(d) an MPDES new source determination has been made under ARM 17.30.1340.

(2) No public notice is required when a request for permit modification, revocation and reissuance, or termination is denied under ARM 17.30.1365(2). Written notice of that denial must be given to the requester and to the permittee.

(3) Public notices may describe more than one permit or permit actions.

(4) Public notice of the preparation of a draft permit (including a notice of intent to deny a permit application) required under (1) must allow at least 30 days for public comment. If the department determines that an environmental impact statement (EIS) must be prepared for a new source, public notice of the draft permit may not be given until after a draft EIS is issued. Public notice of a public hearing must be given at least 30 days before the hearing. (Public notice of the hearing may be given at the same time as public notice of the draft permit and the two notices may be combined.)

(5) Public notice of activities described in (1)(a) must be given by the following methods:

(a) by mailing a copy of a notice to the following persons (any person otherwise entitled to receive notice under this rule may waive his or her rights to receive notice for any classes and categories of permits):

(i) the applicant;

(ii) federal and state agencies with jurisdiction over fish and wildlife resources and other appropriate government authorities, including any affected states;

(iii) any state agency responsible for plan development under federal Clean Water Act section 208(b)(2), 208(b)(4), or 303(e), and the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service;

(iv) any user identified in the permit application of a privately owned treatment works;

(v) persons on a mailing list developed by:

(A) including those who request in writing to be on the list;

(B) soliciting persons for "area lists" from participants in past permit proceedings in that area; and

(C) notifying the public of the opportunity to be put on the mailing list through periodic publication in the public press and in such publications as regional and state funded newsletters, environmental bulletins, or state law journals (the department may update the mailing list from time to time by requesting written indication of continued interest from those listed. The department may delete from the list the name of any person who fails to respond to such a request);

(vi) to any unit of local government having jurisdiction over the area where the facility is proposed to be located; and

(vii) to each state agency having any authority under state law with respect to the construction or operation of such facility.

(b) for major permits and MPDES general permits, a notice published in a daily or weekly newspaper within the area affected by the facility or activity;

(d) any other method reasonably calculated to give actual notice of the action in question to the persons potentially affected by it, including press releases or any other forum or medium to elicit public participation; and

(e) for major permits and MPDES general permits, in addition to the publication of a notice in a daily or weekly newspaper, as described in (5)(b), the department may also publish all notices of activities described in (1) to the department's public website.

(6) All public notices issued under this rule must contain the following minimum information:

(a) name and address of the office processing the permit action for which notice is being given;

(b) name and address of the permittee or permit applicant and, if different, of the facility or activity regulated by the permit;

(c) a brief description of the business conducted at the facility or activity described in the permit application or the draft permit;

(d) name, address, and telephone number of a person from whom interested persons may obtain further information, including copies of the draft permit as the case may be, statement of basis or fact sheet, and the application;

(e) a brief description of the comment procedures required by ARM 17.30.1373 and 17.30.1374 and the time and place of any hearing that will be held, including a statement of procedures to request a hearing (unless a hearing has already been scheduled) and other procedures by which the public may participate in the final permit decision; and

(f) a general description of the location of each existing or proposed discharge point and the name of the receiving water.

(7) In addition to the general public notice described in (6)(a), the public notice of a hearing under ARM 17.30.1374 must contain the following information:

(a) reference to the date of previous public notices relating to the permit;

(b) date, time, and place of the hearing; and

(8) In addition to the general public notice described in (4)(a), all persons identified in (5)(a)(i) through (iv) must be afforded an opportunity to request a copy of the fact sheet, the permit application (if any), and the draft permit (if any).

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2020 MAR p. 1879, Eff. 10/24/20.

Mont. Admin. R. 17.30.1373 Public Comments and Requests for Public Hearings

(1) During the public comment period provided under ARM 17.30.1372, any interested person may submit written comments on the draft permit and may request a public hearing, if no hearing has already been scheduled. A request for a public hearing must be in writing and must state the nature of the issues proposed to be raised in the hearing. All comments must be considered in making the final decision and must be answered as provided in ARM 17.30.1377.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1374 Public Hearings

(1)

(a) The department shall hold a public hearing whenever it finds, on the basis of requests, a significant degree of public interest in a draft permit(s) ;

(b) the department may also hold a public hearing at its discretion, whenever, for instance, such a hearing might clarify one or more issues involved in the permit decision;

(2) Any person may submit oral or written statements and data concerning the draft permit. Reasonable limits may be set upon the time allowed for oral statements, and the submission of statements in writing may be required. The public comment period under ARM 17.30.1372 must automatically be extended to the close of any public hearing under this rule. The hearing officer may also extend the comment period by so stating at the hearing.

(3) A tape recording or written transcript of the hearing must be made available to the public.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1375 Obligation to Raise Issues and Provide Information

(1) All persons, including applicants, who believe any condition of a draft permit is inappropriate or that the department's tentative decision to deny an application, terminate a permit, or prepare a draft permit is inappropriate, shall raise all reasonably ascertainable issues and submit all reasonably available arguments supporting their position by the close of the public comment period (including any public hearing) under ARM 17.30.1372.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1376 Reopening of the Public Comment Period

If any data, information or arguments submitted during the public comment period, including information or arguments required under ARM 17.30.1375, appear to raise substantial new questions concerning a permit, the department may take one or more of the following actions:

(1) prepare a new draft permit, appropriately modified, under ARM 17.30.1370;

(2) prepare a revised fact sheet under ARM 17.30.1371, and reopen the comment period under ARM 17.30.1376; or

(3) reopen or extend the comment period under ARM 17.30.1370 to give interested persons an opportunity to comment on the information or arguments submitted.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1377 Response to Comments

(1) At the time that any final permit decision is issued under ARM 17.30.1378, the department shall issue a response to comments. This response must:

(a) specify which provisions, if any, of the draft permit have been changed in the final permit decision, and the reasons for the change; and

(b) briefly describe and respond to all significant comments on the draft permit raised during the public comment period, or during any hearing.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1378 Issuance and Effective Date of Permit

(1) After the close of the public comment period under ARM 17.30.1372, the department will issue a final permit decision. The department will notify the applicant and each person who has submitted written comments or requested notice of that decision for contesting the decision. The notice must include reference to the procedures for appealing the decision. For the purpose of this rule, a final permit decision means a final decision to issue, deny, modify, revoke and reissue, or terminate a permit.

(2) A final permit decision is effective 30 days after the service of notice of the decision under (1) unless:

(a) a later effective date is specified in the decision, or an appeal is filed pursuant to these rules;

(b) a stay is granted pursuant to ARM 17.30.1379; or

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1379 Stays of Contested Permit Conditions

(1) If a request to the department for review of an MPDES permit is granted, the effect of the contested permit conditions must be stayed and may not be subject to judicial review pending final action by the department. If the permit involves a new source, new discharger, or a recommencing discharger, the applicant shall be without a permit for the proposed new facility, source, or discharger pending final action by the department.

(2) Uncontested conditions which are not severable from those contested must be stayed together with the contested conditions. Stayed provisions of permits for existing facilities and sources must be identified by the department. All other provisions of the permit for the existing facility or source must remain fully effective and enforceable.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1383 Conditions Requested by Government Agencies

(1) If during the comment period the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, or any other state or federal agency with jurisdiction over fish, wildlife, or public health advises the department in writing that the imposition of specified conditions upon the permit is necessary to avoid substantial impairment of fish, or wildlife resources, the department may include the specified conditions in the permit to the extent they are determined necessary to carry out the provisions of ARM 17.30.1350 and of the Act.

(2) In appropriate cases the department may consult with one or more of the agencies referred to in this rule before issuing a draft permit and may reflect their views in the statement of basis, the fact sheet, or the draft permit.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1384 Disposal Wells

Disposal of pollutants into wells that affect state waters is prohibited, except:

(1) as provided in the terms and conditions of an MPDES permit; or

(2) water, gas, or other material which is injected into a well to facilitate production of oil or gas or water derived in association with oil or gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved under ARM 36.22.1226 through ARM 36.22.1234 and it has been determined that such injection or disposal will not result in the degradation of ground or surface water resources.

History

Authorizing statute(s): 75-5-304, MCA
Implementing statute(s): 75-5-304, 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1385 Agency Membership Restrictions

(1) Any body which approves MPDES permit applications or portions thereof may not include as a member any person who receives, or has during the previous two years received a significant portion of his income directly or indirectly from permit holders or applicants for a permit.

(2) For the purposes of this rule, the term "body" includes any individual who has or shares authority to approve permit applications or portions thereof, either in the first instance or on appeal.

(3) For the purposes of this rule, the term "significant portion of his income" means 10% of gross personal income for a calendar year, except that it means 50% of gross personal income for a calendar year if the recipient is over 60 years of age and is receiving such portion pursuant to retirement, pension, or similar arrangement.

(4) For the purposes of this rule, the term "permit holders or applicants for a permit" does not include any department or agency of a state government, such as a department of parks or a department of fish and game.

(5) For the purposes of this rule, the term "income" includes retirement benefits, consultant fees, and stock dividends.

(6) For the purposes of this rule, income is not received "directly or indirectly from permit holders or applicants for a permit" where it is derived from mutual fund payments, or from other diversified investments over which the recipient does not know the identity of the primary sources of income.

History

Authorizing statute(s): 75-5-304, MCA
Implementing statute(s): 75-5-304, 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1386 State and Epa Coordination

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-5-304, MCA
Implementing statute(s): 75-5-304, 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499; REP, 2016 MAR. p. 517, Eff. 3/19/16.

Mont. Admin. R. 17.30.1387 Small Confinement Facilities for Animals

(1) Unless considered necessary by the department, the procedural requirements of ARM 17.30.1370 through 17.30.1377 and the requirements for state-EPA coordinators in ARM 17.30.1386 do not apply to small confinement facilities for animals.

History

Authorizing statute(s): 75-5-304, MCA
Implementing statute(s): 75-5-304, 75-5-401, MCA
History: NEW, 1989 MAR p. 2060, Eff. 12/8/89; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1388 Development of an Adaptive Management Program Implementing Narrative Nutrient Standards

(1) The department will adopt rules, in consultation with the Nutrient Work Group, for:

(a) the development of the Adaptive Management Program under which point source dischargers whose discharges include total phosphorus and/or nitrogen may apply for Individual Montana Pollutant Discharge Elimination System Permits (MPDES).

(i) Applications for MPDES Permits from these point source dischargers must include an Adaptive Management Plan. The Adaptive Management Plan must include a Watershed Monitoring Plan and may include an Implementation Plan.

(ii) The Watershed Monitoring Plan must:

(A) quantify nutrient loading from both point and non-point sources within watersheds;

(B) evaluate impacts of nutrients on beneficial uses of surface water bodies by requiring monitoring of appropriate response variables and any associated impact thresholds; and

(iii) If an Implementation Plan is required, the Implementation Plan:

(A) must establish a process for identifying nutrient loading reductions and other actions needed to achieve the narrative nutrient standards and protect beneficial uses. This process will prioritize phosphorus, considering site specific conditions; and

(B) may include flexibility for point sources to identify a variety of specific actions to reduce nutrient loading within the watershed. These actions must be based on results from the Watershed Monitoring Plan or department assessments.

(b) the establishment of a process for incorporating the Watershed Monitoring Plan requirements and any Implementation Plan into MPDES permits;

(c) the establishment of a process for developing nutrient loading reductions and other actions that can be incorporated into MPDES permits as enforceable conditions; and

(d) the development of an Incentive Program to incentivize additional nutrient reductions and other actions using methods that improve water quality beyond minimum requirements.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-321, 75-5-401, MCA
History: NEW, 2022 MAR p. 327, Eff. 3/12/22.

Authorizing statute(s): 75-5-201, 75-5-304, MCA
Implementing statute(s): 75-5-304, MCA
History: NEW, 1989 MAR p. 2063, Eff. 12/8/89; AMD, 1992 MAR p. 1241, Eff. 6/12/92; TRANS, from DHES, 1996 MAR p. 1499; REP, 2016 MAR p. 517, Eff. 3/19/16.

Authorizing statute(s): 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA
Implementing statute(s): 50-1704, RCM 1947 [not codified temporary], 75-5-401, MCA
History: NEW, 1978 MAR p. 1322, Eff. 8/25/78; TRANS, from DHES, 1996 MAR p. 1499; REP, 1997 MAR p. 402, Eff. 2/25/97.

Subchapter 17.30.16 Water Quality Administrative Enforcement Procedure

Mont. Admin. R. 17.30.1601 Enforcement Procedure

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-5-201, MCA
Implementing statute(s): 75-5-611, MCA, Eff. 12/31/72
History: AMD, 1989 MAR p. 611, Eff. 5/12/89; TRANS, from DHES, 1996 MAR p. 1499; REP, 1996 MAR p. 1854, Eff. 7/4/96.

Mont. Admin. R. 17.30.1602 Emergency Procedure

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-5-201, MCA
Implementing statute(s): 75-5-621, MCA
History: Eff. 12/31/72; TRANS, from DHES, 1996 MAR p. 1499; REP, 2016 MAR p. 517, Eff. 3/19/16.

Subchapter 17.30.17 Miscellaneous Policies and Procedures

Mont. Admin. R. 17.30.1701 Nutrient Trading

(1) The board adopts and incorporates by reference Department Circular DEQ-13, entitled Montana's Policy for Nutrient Trading (December 2012 edition). Copies are available from the Department of Environmental Quality, Technical and Financial Assistance Bureau, P.O. Box 200901, Helena, MT 59620-0901.

(2) The department shall approve a nutrient trade that is consistent with the requirements and guidelines established in Montana's Policy for Nutrient Trading.

(3) An owner or operator of a point source discharge may submit an application for nutrient trading to the department prior to or concurrent with an application for a new, renewed, or modified MPDES permit. The application must include the information specified in Montana's Policy for Nutrient Trading and be consistent with the guidelines and requirements contained in that policy.

(4) An application to trade may be submitted for any of the following purposes:

(a) to comply with an approved total maximum daily load (TMDL) for nutrients;

(b) to offset a new or increased discharge of nutrients into a nutrient-impaired water;

(d) to offset a new or increased discharge of nutrients into waters that are high quality for nutrients; or

(e) to comply with the nonsignificance criteria for nutrients in ARM 17.30.715.

(5) A trade proposed pursuant to (3) must be described in the draft permit and is subject to public comment. If approved, the trade must be described in the final permit and is not effective until the final permit is issued. The final permit must contain permit conditions that ensure that the terms of the trade are enforceable.

History

Authorizing statute(s): 75-5-201, 75-5-401, MCA
Implementing statute(s): 75-5-401, MCA
History: NEW, 2012 MAR p. 2605, Eff. 12/21/12.

Mont. Admin. R. 17.30.1702 Setbacks Between Sewage Lagoons and Water Wells

(1) For purposes of this rule, the following definitions apply:

(a) "Lagoon area" means the surface area of the lagoon within the design of the high-water mark.

(b) "Maximum day well demand" means the highest volume of water discharged from a water well on any day in a year.

(c) "Sewage lagoon" means any holding or detention pond that is used for treatment or storage of water-carried waste products from residences, public buildings, institutions, or other buildings, including discharge from human beings or animals, together with ground water infiltration and surface water present. For purposes of this rule, the term includes concentrated animal feeding operations but does not include storm water facilities or subsurface wastewater treatment systems.

(d) "Water well" has the same meaning as 75-5-103, MCA.

(2) All new water wells and new sewage lagoons must meet the setbacks in (3), unless the applicant demonstrates that a shorter setback is allowed under (4) or (6). Water wells and sewage lagoons that existed or were approved by the department before the effective date of this rule must meet the setbacks under either of the following circumstances:

(a) if the lagoon area is proposed to be increased; or

(b) if the maximum daily pumping rate of a water well is proposed to be increased.

(3) The following setbacks apply, unless the applicant demonstrates that a lesser setback is allowed under (4) or (6):

(a) 1,000 feet between a water well and the design high-water mark of a sewage lagoon;

(b) 200 feet between a well for a public water supply system with continuous disinfection that meets the 4-log virus inactivation and the design high-water mark of a sewage lagoon;

(c) 200 feet between a water well and the design high-water mark of a sewage lagoon if the geometric mean number of E. coli bacteria in the influent flow to the sewage lagoon does not exceed 126 colony forming units per 100 milliliters and 10 percent of the total samples do not exceed 252 colony forming units per 100 milliliters during any 30-day period; and

(d) 100 feet between a water well and the design high-water mark of a sewage lagoon if the applicant demonstrates there is no hydraulic connection between the sewage lagoon and the water well as demonstrated by groundwater gradients under the maximum day pumping rate or by confined conditions that prevent lagoon discharges from impacting the water well.

(4) A setback less than the setbacks in (3)(a) through (c) may be used if the applicant demonstrates that the distance needed to achieve 4-log pathogen reduction of effluent migration from the sewage lagoon to the water well is less than the setback distance in (3)(a) through (c). In no instance, however, may the setback be less than 100 feet.

(5) To make the demonstration in (4), the pathogen reduction between the sewage lagoon and the water well must be calculated according to one of the following methods:

(a) METHOD 1 – Travel Time Method - The vertical travel time in the vadose zone for the wastewater to reach groundwater is calculated using the following equation:

t1 = [(d)*(θ) ÷ (α)] * 365

Where:

t1 = vertical travel time (days)

α is total effluent recharge – the maximum allowable leakage rate or actual measured leakage rate if the measured rate is available (in/yr)

θ is volumetric soil moisture (percent)

d is the depth to groundwater (in)

The horizontal travel time in the saturated zone for the wastewater to reach the water well is calculated using the following equations:

t2 = [ne÷(K*i)] * [x – {(Q÷(2*π*K*b*i)) * (ln(1+((2*π* K*b*i*x)÷Q)))}]

Where:

t2 = horizontal travel time (days)

K is hydraulic conductivity of the saturated aquifer (feet/day)

i is hydraulic gradient (feet/foot)

b is aquifer saturated thickness (feet)

ne is effective porosity (dimensionless)

π is pi, 3.14 (dimensionless)

ln is natural logarithm

Q is the maximum day well demand (feet 3 /day)

x is the horizontal distance from the sewage lagoon to the water well (feet). Value is positive when well is downgradient of sewage lagoon, negative if well is upgradient of sewage lagoon.

The total log pathogen reduction from the bottom of the sewage lagoon to the water well is calculated using the following equation:

Pt = (t1 + t2)*0.02

Where:

Pt = Log reduction of pathogens during vertical and horizontal travel

0.02 = log 10 pathogen removal/day

(b) METHOD 2 – Travel time and VIRULO - The horizontal travel time (t2) is calculated the same as for Method 1. The horizontal log reduction is calculated using the following equation:

Ph = (t2)*0.02

Where:

Ph = Log reduction of pathogens during horizontal travel

The pathogen reduction during vertical movement in the vadose zone is calculated using VIRULO. The value of Ph is added to VIRULO results to provide the total pathogen reduction from the bottom of the sewage lagoon to the water well.

(6) In calculating 4-log pathogen reduction under (4), the following requirements apply:

(a) Hydraulic conductivity must be based on the aquifer material most likely to transmit lagoon discharges to the water well and be determined by one of the following methods:

(i) The maximum hydraulic conductivity value of the aquifer material shown in Table 1. The hydraulic conductivity for aquifer materials not included in Table 1 may be calculated by the applicant using other methods acceptable to the department. The aquifer material must be the most permeable soil layer that is at least six inches thick and is below the bottom of the sewage lagoon infiltrative surface, as identified in any test pit or borehole. This method may only be used for facilities that are not requesting a source-specific ground water mixing zone, as defined in ARM 17.30.518.

TABLE 1

(ii) A pumping test at least 8 hours long, representative of the hydraulic conductivity of the aquifer material, and conducted on a well(s) with complete lithology and construction details. Results for pumping tests must be submitted electronically on DNRC Form 633. Pumping tests must be conducted in accordance with the requirements in ARM 36.12.121(2)(a) through (f), (3)(a), (3)(c), (3)(g), (3)(i), (3)(j), and (3)(k).

(b) Hydraulic gradient must be based on the aquifer material most likely to transmit lagoon discharges to the water well and must be determined by one of the following methods:

(i) The regional topographic slope in an area that includes the water well and the sewage lagoon. The minimum hydraulic gradient that may be used with this method is 0.005 feet/feet, and the maximum gradient that may be used is 0.05 feet/feet. This method may not be used for facilities requesting a source-specific ground water mixing zone as defined in ARM 17.30.518.

(ii) Groundwater potentiometric maps of the aquifer that accurately represent the local hydraulic gradient in the area of the water well and sewage lagoon.

(iii) Surveyed static water elevations in at least three wells that draw water from the aquifer, accurately represent the local hydraulic gradient in the area of the water well and sewage lagoon, and are measured on the same date to the nearest 0.01 foot.

(i) Test pits or boreholes must be completed to a minimum depth of 10 feet below the bottom of the sewage lagoon infiltrative surface or until an impervious layer, as defined in Circular DEQ-4, is encountered.

(ii) A minimum of two test pits or boreholes must be completed for the first 0.5 acre of lagoon area that is within 1,000 feet of a water well. A maximum of one additional test pit or borehole for each additional acre of lagoon area within 1,000 feet of a water well may be required if the department determines that additional test pits or boreholes are necessary to adequately characterize the soils between the sewage lagoon and the water well. The test pits or boreholes must be located to provide representative information on the soils beneath the sewage lagoon that affect the vertical and horizontal migration of pathogens from the sewage lagoon to the affected water well.

(iii) If the test pit or borehole locations are not within 50 feet of the toe of the sewage lagoon embankment, then the locations must be approved by the department before they are completed. The borehole method must provide a continuous soil sample that is representative of the soil and lithology profile.

(iv) For purposes of defining soil effective porosity and volumetric soil moisture that are used in (5), soils must be described according to the Unified Soil Classification System. The soil description must include information regarding the presence or absence of seasonal saturated conditions. If there is no evidence of saturated conditions from the test pit, borehole, or other evidence, then the depth to groundwater must be estimated as the bottom of the test pit or borehole.

(d) Soils with greater than 35 percent retained on the No. 10 sieve and geologic materials with fractures do not receive credit for virus reduction in the vadose zone.

(e) The well discharge rate used in calculations must be based on the maximum day well demand, which must be determined by using historic discharge rate records or other methods as approved by the department.

(7) The department may determine the setback calculated in accordance with this rule should be decreased—but in no instance shorter than 100 feet—if the applicant demonstrates equivalent protection of the water source that supplies the water well.

History

Authorizing statute(s): 75-5-411, MCA
Implementing statute(s): 75-5-411, MCA
History: NEW, 2019 MAR p. 836, Eff. 6/22/19.

Subchapter 17.30.18 Procedures for Local Water Quality District Program Approval and Granting Enforcement Authority

Mont. Admin. R. 17.30.1801 Purpose

(1) The purpose of this subchapter is to establish procedures for the approval of local water quality district programs, to establish procedures for granting enforcement authority to local water quality districts, and to ensure that the programs and enforcement actions are consistent with Title 75, chapter 5, MCA. Nothing in these rules may be considered to limit or restrict the authority of a local government to adopt rules and regulations authorized by other laws of the state.

History

Authorizing statute(s): 75-5-106, 75-5-201, MCA
Implementing statute(s): 75-5-106, 75-5-311, MCA
History: NEW, 1993 MAR p. 543, Eff. 4/16/93; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1802 Definitions

For the purposes of this subchapter, the following definitions, in addition to those in 7-13-4502 and 75-5-103, MCA, will apply:

(1) "District" means a "local water quality district" established with definite boundaries for the purpose of protecting, maintaining, and improving the quality of state water as authorized by Title 7, chapter 13, part 45, MCA, and the rules of this subchapter.

(2) "Program" means a local water quality district program designed to protect, maintain, and improve the quality of state water within the boundaries of a local water quality district established according to the procedures specified in Title 7, chapter 13, part 45, MCA.

History

Authorizing statute(s): 75-5-201, MCA
Implementing statute(s): 75-5-106, 75-5-311, MCA
History: NEW, 1993 MAR p. 543, Eff. 4/16/93; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1803 Notification Requirements

(1) Upon passage of a resolution of intention to create a local water quality district, the commissioners shall submit a copy of the resolution to the department as notification that the commissioners intend to develop a district program and to apply for department approval of the program. Submission of the resolution of intention to the department initiates the consultation process required by 75-5-311(1), MCA.

History

Authorizing statute(s): 75-5-201, MCA
Implementing statute(s): 75-5-311, MCA
History: NEW, 1993 MAR p. 543, Eff. 4/16/93; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.1805 Program Application Content

(1) To obtain approval of a district program, the district's board of directors shall file an application with the department. The application shall contain the following:

(a) a map delineating the boundaries of the district and a description of the existing or potential water pollution problems within the proposed district;

(b) a map indicating general land ownership and use within the district for land units 1 square mile or more in size;

(d) identification of the district program goals and objectives;

(e) a district program work plan and implementation schedule;

(f) a program budget;

(g) information necessary for the department to conduct an analysis of potential impacts to human health and the environment caused by implementation of the district program;

(h) a description of any proposed district permit programs; and

(i) copies of any proposed local ordinances for the regulation of the facilities and sources of pollution specified in 75-5-311(4) , MCA, along with a statement demonstrating that the local ordinances meet the following conditions:

(i) the local requirements are compatible with and no less stringent than state requirements for the protection of water quality, pursuant to 75-5-311(5) (a) , MCA, and

(ii) the district's enforcement procedures and enforcement actions are consistent with state enforcement actions, pursuant to 75-5-311(5) (b) and (c) , MCA.

History

Authorizing statute(s): 75-5-201, MCA
Implementing statute(s): 75-5-311, MCA
History: NEW, 1993 MAR p. 543, Eff. 4/16/93; TRANS, from DHES, 1996 MAR p. 1499.

Mont. Admin. R. 17.30.1806 Program Approval and Reporting

(1) Upon receipt of a district program application by the department, the department will have 30 calendar days to conduct a completeness review of the application. If the application is incomplete, the department shall send written notification to the board of directors identifying the deficiencies and requesting additional information. Upon receipt of the requested information, the department will have 30 days to conduct a completeness review.

(2) Upon determination that the application is complete, the department must notify the board of directors and provide a report and recommendation regarding approval of the district program. The department must hold a hearing on the application within 60 days following this notification.

(3) Prior to implementation of the local water quality district program in areas that have been added to the district, changes in the boundaries of a district must be described in a program amendment and submitted to the department for approval as an amendment to the approved program in accordance with 75-5-311(7) , MCA, and the procedures in (1) and (2) of this rule.

(4) One year after department approval of a district program and annually thereafter, the board of directors shall submit to the department a report that evaluates the effectiveness of the district program. The report shall include a description of program activities, a discussion of the degree to which program goals, objectives and schedules have been satisfied, monitoring results, a budget summary, and a description of the number and status of permits issued and enforcement actions initiated, as applicable to a particular district program.

(5) A district shall retain all records for a minimum of 3 years and make its monitoring data available to the department upon request.

History

Authorizing statute(s): 75-5-201, MCA
Implementing statute(s): 75-5-311, MCA
History: NEW, 1993 MAR p. 543, Eff. 4/16/93; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2024 MAR p. 257, Eff. 2/10/24.

Mont. Admin. R. 17.30.1807 Procedures for Granting State Enforcement Authority to Local Water Quality Districts

(1) Whenever a person is in violation of 75-5-605, MCA, at a location within the district, the department may request that the district enforce the provisions of Title 75, chapter 5, MCA, and rules implementing that chapter for the particular violations. Alternatively, the district may request enforcement authority from the department in a particular case as specified under this rule.

(2) The district shall submit a letter to the department requesting authorization to enforce the provisions of Title 75, chapter 5, MCA, which contains appropriate documentation of the violation(s) as required by 75-5-106, MCA.

(3) The department shall authorize a district to enforce the provisions of Title 75, chapter 5, MCA, in response to a district's request unless the department retains jurisdiction and pursues enforcement.

(4) A district is authorized to enforce the provisions of Title 75, chapter 5, MCA, and rules implementing that chapter upon receipt of a letter issued by the department granting enforcement authority for a particular case. The department shall respond to the district's request within 5 working days after the department's receipt of the request. The letter of authorization may include any limitations or conditions determined necessary by the department. Nothing in the grant of authority to a district may be construed to limit the department's legal responsibility and authority to take enforcement action against the person responsible for the source of pollution.

(5) The department may revoke the enforcement authorization for a district if it determines that conditions exist that warrant such revocation. Such conditions may include but are not limited to:

(a) the district lacks adequate enforcement capabilities or resources for effective enforcement efforts;

(b) the district requests the department to undertake enforcement in the case;

(d) a re-assessment of conditions or change of conditions that indicate that enforcement by the department would be more effective than local enforcement.

(6) A district authorized to undertake enforcement actions pursuant to this section shall coordinate its enforcement activities with the department in a manner determined by the department.

History

Authorizing statute(s): 75-5-106, 75-5-201, MCA
Implementing statute(s): 75-5-106, MCA
History: NEW, 1993 MAR p. 543, Eff. 4/16/93; TRANS, from DHES, 1996 MAR p. 1499.

Authorizing statute(s): 75-5-201, MCA
Implementing statute(s): 75-5-611, MCA
History: NEW, 1998 MAR p. 940, Eff. 4/17/98; REP, 2006 MAR p. 1139, Eff. 5/5/06.

Chapter 17.35 Vessel Pumpout Facilities

Subchapter 17.35.1 Location, Design, Construction, Operation, and Maintenance Recommendations

Mont. Admin. R. 17.35.101 General

(1) The Clean Vessel Act of 1992 encourages construction of vessel pumpout facilities at watercraft terminals located on or adjacent to state waters. This law is codified at PL-92-587. Proper construction, operation, and maintenance of these facilities will protect water quality and reduce the potential for the spread of water-borne diseases.

(2) Boaters are encouraged to learn how to use marina pumpout stations.

History

Authorizing statute(s): 23-2-522, MCA
Implementing statute(s): 23-2-522, MCA
History: NEW, 2015 MAR p. 1388, Eff. 9/11/15; AMD, 2026 MAR, Notice No. 2026-85, Eff. 9/26/26.

Mont. Admin. R. 17.35.102 Location

(1) Stationary pumping equipment should generally be located as close to the boat off-loading point as possible and where boats need to maneuver the least. All components of the vessel pumpout station should meet the setback distances required in ARM Title 17, chapter 36, subchapters 3 or 9, as applicable, except that compliance with the setback requirement between a holding tank and surface water is not included in this recommendation.

(2) Holding tanks should be located where they are readily accessible for inspection and maintenance. The bottom of the tank should not be deeper than 12 feet from the finished grade or access road for ease of pumping and maintenance.

History

Authorizing statute(s): 23-2-522, MCA
Implementing statute(s): 23-2-522, MCA
History: NEW, 2015 MAR p. 1388, Eff. 9/11/15.

Mont. Admin. R. 17.35.103 Design

(1) Vessel pumpout stations should include means of flushing tanks, lines, and other components that contact sewage. In addition, a pumpout facility should be equipped with a wash-down system to allow cleaning of portable toilets.

(2) Vessel pumpout stations should include a secondary spill containment system to prevent discharge to surface waters from spills, leaks, maintenance, servicing, or storage.

History

Authorizing statute(s): 23-2-522, MCA
Implementing statute(s): 23-2-522, MCA
History: NEW, 2015 MAR p. 1388, Eff. 9/11/15.

Mont. Admin. R. 17.35.104 Pipes, Fittings, and Hoses

(1) All tanks, pumps, lines, hoses, and other equipment should be clearly marked as "nonpotable" with a permanent label placed in a conspicuous location.

(2) All discharge piping should be made of flexible, heavy-duty material that will be non-collapsing and non-kinking with locking interconnectors. Corrugated or ribbed hoses should not be used.

(3) Lines should be watertight and appropriately fastened or secured to the dock or pier. Forced main systems should contain appropriate "thrust" blocks and other security fastenings.

(4) All lines and hoses should have an approved backflow prevention device that meets the requirements of ARM Title 17, chapter 38, subchapter 3.

(5) A valve should be provided on the discharge line at the pump and on the suction hose at the nozzle. If a suction hose is to be installed in such a manner that sewage would discharge from the line when the pump is removed for service, a gate valve should be provided on the pump end of the suction hose.

(6) Positive locking connections on the end of the discharge line should be provided to prevent it from coming loose during discharge. A friction nozzle (right angle preferred) or wand-type attachment should be provided on the end of the suction hose. Adapters should be provided to fit any discharge connection from one and one-half to four inches in diameter.

(7) Discharge lines should be protected from freezing and prevented from leaking into the water.

(8) Suction hoses should be equipped with clear tubing or a sight glass on the suction end of the hose to allow the attendant to determine when pumping is complete.

(9) The connection between a suction hose and a vessel should include pipe splash guards or positive locking connections to prevent spilling from the suction hose or disconnection during waste discharge.

History

Authorizing statute(s): 23-2-522, MCA
Implementing statute(s): 23-2-522, MCA
History: NEW, 2015 MAR p. 1388, Eff. 9/11/15.

Mont. Admin. R. 17.35.105 Pumping Equipment

(1) Pumpout stations should meet the requirements of Department Circular DEQ-4, Subchapter 4.2, except where they conflict with this chapter.

(2) Pumps should be of a macerator type or have sufficient size suction and discharge openings to prevent clogging. Manually operated pumps should not be used.

(3) An event or hour meter should be installed on each pump.

History

Authorizing statute(s): 23-2-522, MCA
Implementing statute(s): 23-2-522, MCA
History: NEW, 2015 MAR p. 1388, Eff. 9/11/15.

Mont. Admin. R. 17.35.106 Holding Tank

(1) Holding tanks should meet the requirements of Department Circular DEQ-4, Subchapter 8.1, except where they conflict with this chapter.

(2) Vessel pumpout holding tanks should be sized to meet the requirements of Table 1 for the volume of sewage generated and the frequency of removal of material from the holding tank.

Table 1

Total Number of Boats Serviced with Holding Tank Between Licensed Septic Pumper Servicings | Minimum Holding Tank Volume (Gallons) 1-20 | 500 21-40 | 600 41-60 | 900 61-80 | 1200 81-100 | 1500 100+ | 2000

History

Authorizing statute(s): 23-2-522, MCA
Implementing statute(s): 23-2-522, MCA
History: NEW, 2015 MAR p. 1388, Eff. 9/11/15.

Mont. Admin. R. 17.35.107 Portable Sanitation Devices

(1) Pumpout facilities designed to receive waste from portable marine sanitation devices should:

(a) have a unit opening of a minimum of 12 inches in diameter; and

(b) be equipped with a water tight cover that completely covers the receiving unit.

History

Authorizing statute(s): 23-2-522, MCA
Implementing statute(s): 23-2-522, MCA
History: NEW, 2015 MAR p. 1388, Eff. 9/11/15; AMD, 2026 MAR, Notice No. 2026-85, Eff. 9/26/26.

Mont. Admin. R. 17.35.108 Construction

(1) All discharge from a vessel pumpout facility should be directed to a holding tank meeting the requirements of this chapter with removal and disposal by a licensed septic hauler as defined in ARM Title 17, chapter 50, subchapter 8.

(2) All collection systems should meet the requirements of Department Circular DEQ-4, Subchapter 4.1, unless modified by this chapter.

History

Authorizing statute(s): 23-2-522, MCA
Implementing statute(s): 23-2-522, MCA
History: NEW, 2015 MAR p. 1388, Eff. 9/11/15.

Mont. Admin. R. 17.35.109 Operation, Maintenance, Certification, and as-Builts

(1) Operation and maintenance of vessel pumpout facilities should generally conform to the requirements in Department Circular DEQ-4, Appendix D, with the following additions:

(a) for public facilities, hours of operation for vessel pumpout stations should be posted in a conspicuous place where readily observable by the public;

(b) hoses, pumps, and equipment should be flushed after each use by pumping clean water through the system which empties into an approved disposal area (never onto the ground or into the water) and to disinfect all suction connections; and

(c) the operator should wear appropriate protective clothing, such as gloves, and should wash his or her hands following contact with the system.

History

Authorizing statute(s): 23-2-522, MCA
Implementing statute(s): 23-2-522, MCA
History: NEW, 2015 MAR p. 1388, Eff. 9/11/15.

Chapter 17.36 Subdivisions/on-Site Subsurface Wastewater Treatment

Subchapter 17.36.1 Subdivision Application and Review

Mont. Admin. R. 17.36.101 Definitions

For purposes of subchapters 1, 3, 6, and 8, the following definitions apply:

(1) "Accessory building" has the same meaning as defined in ARM 17.38.101(3)(a).

(2) "Approved well drilling area" is an area or areas designated on a lot layout within which a well may be drilled. The area must meet all required well location setbacks, including those for well isolation zones.

(3) "Bedrock" means material that cannot be readily excavated by hand tools, or material that does not allow water to pass through or that has insufficient quantities of fines to provide for the adequate treatment and disposal of wastewater. The term does not include gravel and other rock fragments as defined in Department Circular DEQ-4, Appendix B.

(4) "Bedroom" means any room that is or may be used for sleeping. An unfinished basement is considered an additional bedroom.

(5) "Campground" is defined in 50-52-101, MCA.

(6) "Certificate of survey" is defined in 76-3-103, MCA.

(7) "Cesspool" means a seepage pit without a septic tank to pretreat the wastewater.

(8) "Commercial unit" means the area under one roof that is occupied by a business or other nonresidential use. A building housing two businesses is considered two commercial units.

(9) "Condominium" is defined in 70-23-101, MCA.

(10) "Connection" means a line that provides water or sewer service to a single building or main building with accessory buildings. The term is synonymous with "service connection" as defined in ARM 17.38.101. For purposes of ARM 17.36.123, "connection" means a water or sewer line that connects a subdivision to a public system.

(11) "Department" means the Montana Department of Environmental Quality.

(12) "Deviation" means a department-approved departure from a requirement contained in a department circular.

(13) "Drainage way" means a course or channel along which storm water moves in draining an area.

(14) "Dry well" means a storm water detention structure that collects surface runoff and discharges the water below the natural ground surface.

(15) "Escarpment" means any slope greater than 50% that extends vertically six feet or more as measured from toe to top.

(16) "Existing system" means a water supply or wastewater disposal system that was installed prior to the submittal of a subdivision application under this subchapter.

(17) "Experimental system" means a wastewater treatment system for which specific design standards are not provided in Department Circular DEQ-4 or DEQ-2.

(18) "Facilities" means public or private facilities for the supply of water or disposal of sewage, storm water, or solid waste and any pipes, conduits, or other stationary method by which water, storm water, sewage, or solid wastes might be transported or distributed.

(19) "Fill" means artificially placed soil.

(20) "Floodplain" means the area adjoining the watercourse or drainway that would be covered by a flood that is expected to recur on the average of once every 100 years or by a flood that has a one percent chance of occurring in any given year. The floodplain consists of the floodway and the floodfringe, as defined in ARM 36.15.101.

(21) "Gray water" means wastewater that is collected separately from sewage flow and that does not contain industrial chemicals, hazardous wastes, or wastewater from toilets.

(22) "Ground water monitoring" means measuring the depth from the natural ground surface to the seasonally high ground water performed in accordance with Department Circular DEQ-4.

(23) "Holding tank" means a watertight receptacle that receives wastewater for retention and does not as part of its normal operation dispose of or treat the wastewater. The term does not include surge tanks used in a gray water irrigation system if the system meets the requirements of ARM 17.36.319 and Department Circular DEQ-4.

(24) "Impervious layer" means any layer of material in the soil profile that has a percolation rate slower than 240 minutes per inch.

(25) "Individual water system" means any water system that serves one living unit or commercial unit and that is not a public water supply system as defined in 75-6-102, MCA.

(26) "Individual wastewater system" means a wastewater system that serves one living unit or commercial unit and that is not a public sewage system as defined in 75-6-102, MCA.

(27) "Limiting layer" means bedrock, an impervious layer, or seasonally high ground water.

(28) "Living unit" means the area under one roof that can be used for one residential unit and that has facilities for sleeping, cooking, and sanitation. A duplex is considered two living units.

(29) "Local health officer" means health officer as defined in 50-1-101, MCA, or the health officer's designee.

(30) "Lot" is synonymous with "tract" or "parcel" for purposes of this chapter.

(31) "Main" is defined in ARM 17.38.101.

(32) "Mixing zone" is defined in 75-5-103, MCA.

(33) "Mobile home" means a trailer equipped with necessary service connections that is designed for use as a long-term residence.

(34) "Multiple-user wastewater system" means a wastewater system that serves, or is intended to serve, more than two living units or commercial units or a combination of both and that is not a public sewage system as defined in 75-6-102, MCA. In estimating the population that will be served by a proposed residential system, the reviewing authority shall multiply the number of living units by 2.5.

(35) "Multiple-user water supply system" means a water supply system that serves, or is intended to serve, more than two living units or commercial units or a combination of both and that is not a public water supply system as defined in 75-6-102, MCA. In estimating the population that will be served by a proposed residential system, the reviewing authority shall multiply the number of living units by 2.5.

(36) "Municipal" means pertaining to an incorporated city or town.

(37) "Natural soil" means soil that has developed through natural processes and to which no fill material has been added.

(38) "Parcel" means a part of land which is created by a division of land. The term is synonymous with "tract" and "lot" for purposes of this chapter.

(39) "Permanent space" means a space, regardless of occupancy, for recreational camping vehicles or mobile homes, with facilities for the supply of water or disposal of sewage provided by individual hookups, a service building, or centralized dump stations for sewage or fill stations for water.

(40) "Plat" is defined in 76-3-103, MCA.

(41) "Preliminary plat" is defined in 76-3-103, MCA.

(42) "Professional engineer" means an engineer licensed or otherwise authorized to practice engineering in Montana pursuant to Title 37, chapter 67, MCA.

(43) "Public wastewater system" means a system for collection, transportation, treatment, or disposal of wastewater that serves 15 or more families or 25 or more persons daily for any 60 or more days in a calendar year. In estimating the population that will be served by a proposed residential system, the reviewing authority shall multiply the number of living units by 2.5, so that ten or more proposed residential connections will be considered a public system.

(44) "Public water supply system" means a system for the provision of water for human consumption from a community well, water hauler for cisterns, water bottling plant, water dispenser, or other water supply that has at least 15 service connections or that regularly serves at least 25 persons daily for any 60 or more days in a calendar year. In estimating the population that will be served by a proposed residential system, the reviewing authority shall multiply the number of living units by 2.5, so that ten or more proposed residential connections will be considered a public system.

(45) "Recreational camping vehicle" means a vehicular unit designed primarily as temporary living quarters for recreational, camping, travel, or seasonal use, and that either has its own power or is mounted on, or towed by, another vehicle. The basic types of RVs are camping trailer, fifth wheel trailer, motor home, park trailer, travel trailer, and truck camper.

(46) "Registered sanitarian" means a person licensed to practice the profession of sanitarian in Montana pursuant to Title 37, chapter 40, MCA.

(47) "Reviewing authority" is defined in 76-4-102, MCA.

(48) "Seepage pit" means a covered underground receptacle that receives wastewater after primary treatment and allows the wastewater to seep into the surrounding soil.

(49) "Septic tank" means a wastewater settling tank in which settled sludge is in immediate contact with the wastewater flowing through the tank while the organic solids are decomposed by anaerobic action.

(50) "Sewage" is synonymous with "wastewater" for purposes of this chapter.

(51) "Shared wastewater system" means a wastewater system that serves, or is intended to serve, two living units or commercial units or a combination of both and that is not a public sewage system as defined in 75-6-102, MCA.

(52) "Shared water system" means a water system that serves, or is intended to serve, two living units or commercial units or a combination of both and that is not a public water supply system as defined in 75-6-102, MCA.

(53) "Site evaluation" means an evaluation to determine if a site is suitable for the installation of a subsurface wastewater treatment system.

(54) "Slope" means the rate that a ground surface declines in feet per 100 feet. It is expressed as percent of grade.

(55) "Soil profile" means a description of the soil strata to a depth of eight feet using the United States Department of Agriculture (USDA) soil classification system method, which can be found in Appendix B, Department Circular DEQ-4.

(56) "Spring" means natural opening in the earth's surface from which water issues or seeps.

(57) "State waters" is defined in 75-5-103, MCA.

(58) "Subsurface wastewater treatment system" means the process of wastewater treatment in which the effluent is applied below the soil surface or into a mound by an approved distribution system.

(59) "Surface water" means any water on the earth's surface including, but not limited to, streams, lakes, ponds, reservoirs, and irrigation ditches, whether fresh or saline.

(60) "Tract" is synonymous with "lot" or "parcel" for the purposes of this chapter.

(61) "Unstable land forms" means areas showing evidence of mass down-slope movement such as hummock hill slopes, debris flows, landslides, and rock falls. Unstable land forms may be evidenced by slip surfaces roughly parallel to the hillside; landslide scars and carving debris ridges; fences, trees, or telephone poles which appear tilted; or tree trunks which bend uniformly as they enter the ground.

(62) "Waiver" means a department-approved departure from a requirement contained in department rules. Granting of waivers must be in accordance with ARM 17.36.601.

(63) "Wastewater" means water-carried wastes. For purposes of these rules, wastewater does not include storm water. The term includes, but is not limited to, the following:

(a) household, commercial, or industrial wastes;

(b) chemicals;

(d) animal and vegetable matter in suspension or solution.

(64) "Wastewater treatment system" or "wastewater disposal system" means a system that receives wastewater for purposes of treatment, storage, or disposal. The term includes, but is not limited to, all disposal methods described in Department Circulars DEQ-2 and DEQ-4.

(65) "Well" is synonymous with the term "water well" defined in 75-5-103(41), MCA.

(66) "Well isolation zone" means the area within a 100-foot radius of a water well unless a smaller, site-specific radius is approved by the department under Circular DEQ-20, Standard 1.8.

(67) "Zone of saturation" means the area beneath the ground in which all open spaces are filled with ground water.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 11/3/75; AMD, Eff. 5/6/76; AMD, 1977 MAR p. 746, Eff. 10/25/77; AMD, 1984 MAR p. 1027, Eff. 7/13/84; AMD, 1984 MAR p. 1568, Eff. 10/26/84; AMD, 1992 MAR p. 2145, Eff. 9/25/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2000 MAR p. 967, Eff. 4/14/00; AMD, 2000 MAR p. 3371, Eff. 12/8/00; AMD, 2002 MAR p. 1981, Eff. 5/17/02; AMD, 2003 MAR p. 221, Eff. 2/14/03; AMD, 2009 MAR p. 1786, Eff. 10/16/09; AMD, 2014 MAR p. 2098, Eff. 9/19/14; AMD, 2016 MAR p. 722, Eff. 4/23/16; AMD, 2023 MAR p. 324, Eff. 4/15/23; AMD, 2023 MAR p. 1861, Eff. 12/23/23.

Mont. Admin. R. 17.36.102 Application--General

(1) To initiate review of an application under 76-4-114 or 76-4-134, MCA, a person must submit a complete application to the department. The application must be signed by all owners of record of the property or properties. In the application, the owners may designate an authorized representative responsible for subsequent correspondence with the reviewing authority. If the department has certified a local department or board of health to review subdivisions pursuant to 76-4-104, MCA, the application must be submitted to the local reviewing authority.

(2) A subdivision application must be on a form provided by the department. A person may request a copy:

(a) by written request to the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901;

(b) by visiting the department’s website at http://www.deq.mt.gov; or

(3) A copy of the complete application must be submitted concurrently to the local health officer having jurisdiction for purposes of reviewing compliance with local laws and regulations, as provided in ARM 17.36.108. The copy must be accompanied by all supporting information submitted to the reviewing authority. All resubmittals to the reviewing authority must also be provided to the local health officer.

(4) To resume review of an application that has been inactive for more than one year after the issuance of a denial letter by the reviewing authority, the applicant shall reapply and submit fees as required by subchapter 8. This requirement does not apply if the file is inactive due to ground water monitoring, or other requirements imposed by the reviewing authority or another agency.

(5) Plans for proposed subdivision facilities that will be public water supply or public sewage disposal systems must be reviewed in accordance with the provisions of Title 75, chapter 6, MCA, and ARM Title 17, chapter 38, subchapter 1. In estimating the population that will be served by a proposed residential system, the reviewing authority shall multiply the number of living units by 2.5.

(6) In addition to meeting the requirements of this chapter, parcels designed for the placement of mobile homes or recreational camping vehicles may be subject to the requirements of ARM Title 37, chapter 111, subchapter 12.

(7) If an application includes facilities for onsite wastewater treatment or disposal, including gray water irrigation, the developer shall notify the designated agent of the local board of health prior to presenting the subdivision application to the reviewing authority. The designated agent may conduct a preliminary site assessment to determine whether the site meets applicable state and local requirements.

(8) The application procedures and requirements for previously approved facilities are described in ARM 17.36.112.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, 76-4-125, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 11/3/75; AMD, Eff. 5/6/76; AMD, 1977 MAR p. 746, Eff. 10/25/77; AMD, 1981 MAR p. 254, Eff. 3/27/81; AMD, 1992 MAR p. 2145, Eff. 9/25/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2000 MAR p. 967, Eff. 4/14/00; AMD, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2009 MAR p. 1786, Eff. 10/16/09; AMD, 2014 MAR p. 2772, Eff. 9/19/14; AMD, 2023 MAR p. 324, Eff. 4/15/23; AMD, 2026 MAR, Notice No. 2026-85, Eff. 9/26/26.

Mont. Admin. R. 17.36.103 Application--Contents

(1) In addition to the completed application form required by ARM 17.36.102, the following information must be submitted to the reviewing authority as part of an application:

(a) a fee calculation sheet, as provided by the department, and payment of review fees as required in subchapter 8;

(b) for multiple-user and public systems, one copy of a design report and one copy of plans and specifications for water supply, wastewater treatment, and storm water systems. For individual and shared systems, see the specific requirements in Circulars DEQ-4 and DEQ-20. Prior to final approval, the reviewing authority will require three copies of final plans and specifications for multiple-user and public systems;

(d) vicinity maps or plans showing the locations of the following features:

(i) lakes, streams, irrigation ditches, wetlands, and springs; and

(ii) a large-scale vicinity map showing existing, previously approved, and proposed wells, wastewater treatment systems, drainfields, existing and approved mixing zones and other sources of contamination within 100 feet of the proposed subdivision, or approved public water and public wastewater mains within 500 feet of the boundaries of the subdivision; and lagoons within 1,000 feet of any existing or proposed drinking well;

(e) evidence that the water source for the application is sufficient in terms of quality, quantity, and dependability, in accordance with ARM 17.36.117;

(f) evidence to show whether the wastewater treatment systems, including gray water systems, are sufficient in terms of capacity and dependability in accordance with ARM Title 17, chapter 36, subchapter 3;

(g) a copy of the nondegradation analysis and calculations as required by ARM 17.30.715. If the proposed wastewater disposal facilities for a subdivision are subject to the discharge permit requirements of Title 75, chapter 5, MCA, and ARM Title 17, chapter 30, the applicant shall first obtain the discharge permit and provide the reviewing authority with a copy of the discharge permit nondegradation determination;

(h) evidence that storm water facilities will be of sufficient size and located to ensure proper drainage and treatment in accordance with ARM 17.36.310;

(i) the name of the solid waste disposal site that will serve the subdivision and information as required in ARM 17.36.120;

(j) a copy of any environmental assessment prepared for the subdivision;

(k) a copy of the plat, certificate of survey, deed, or other document that is consistent with the document that will be, or has been, filed with the county clerk and recorder for the subdivision;

(l) if planning and platting approval is required under Title 76, chapter 3, MCA, the applicant must provide:

(i) a copy of the preliminary plat approval and findings of fact; and

(ii) any public comments or summaries of public comments collected as provided in 76-3-604 (7), MCA;

(m) a copy of applicable supporting legal documents;

(n) a copy of any applicable existing certificate of subdivision approval and the approved lot layout document;

(o) a letter from the Montana Sage Grouse Habitat Conservation Program or evidence that the subdivision is located outside designated sage grouse habitat as required under Executive Order 12-2015;

(p) the information required in ARM 17.30.1702 regarding setbacks between sewage lagoons and wells; and

(q) all additional information that is required under this chapter or that the reviewing authority determines is reasonably necessary for the review of the proposed subdivision.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, 76-4-125, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 11/3/75; AMD, Eff. 5/6/76; AMD, 1977 MAR p. 746, Eff. 10/25/77; AMD, 1984 MAR p. 1027, Eff. 7/13/84; AMD, 1992 MAR p. 2145, Eff. 9/25/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2009 MAR p. 1786, Eff. 10/16/09; AMD, 2011 MAR p. 2278, Eff. 10/28/11; AMD, 2014 MAR p. 2098, Eff. 9/19/14; AMD, 2016 MAR p. 722, Eff. 4/23/16; AMD, 2019 MAR p. 836, Eff. 6/22/19; AMD, 2023 MAR p. 324, Eff. 4/15/23; AMD, 2024 MAR p. 2057, Eff. 8/24/24.

Mont. Admin. R. 17.36.104 Application--Lot Layout Document

(1) The applicant shall provide lot layout documents for the subdivision application. At least one copy of the lot layout must be submitted with the subdivision application. Prior to final approval, four copies of the final lot layout must be submitted. The lot layout documents must be on sheets no larger than 11" x 17", at a scale no smaller than 1" = 200'. The reviewing authority may require a larger scale if needed to enhance readability. Multiple sheets may be used for large developments, provided that individual lots are not split across two sheets. If multiple sheets are used, a single sheet must also be provided, using an appropriate scale, that shows the entire development.

(2) The following information must be provided on the lot layout documents. Other information (e.g., percolation test results, soil profile descriptions) may be included on the lot layout documents only if the documents remain legible:

(a) the name of the subdivision, and the county, section, township and range (e.g., "Sec. 12 T27N R6E") in which the subdivision is located;

(b) a north arrow and scale;

(d) an identifier or number for each lot (e.g., "Lot 1, Lot 2," "Tract 1, Tract 2," or "Parcel 1, Parcel 2");

(e) locations of existing and proposed easements;

(f) locations of existing and proposed roads and utilities;

(g) locations of drainageways;

(h) name and affiliation of the person who prepared the lot layout;

(i) information as set out in Table 1 for the specific water supply, wastewater, and storm water facilities in the subdivision, and those located within 100 feet of the perimeter of the subdivision or parcel. All systems must be labeled as "existing" or "proposed." For individual and shared systems, the locations and design details do not have to be shown on the lot layout if those details will not be determined until the time of septic permitting.

TABLE 1

REQUIREMENTS FOR LOT LAYOUTS

| Subdivisions served by nonmunicipal wells | Subdivisions served by nonmunicipal wastewater systems | Subdivisions served by municipal water or municipal sewer systems Existing wells and proposed well locations or approved drilling areas, setbacks in ARM 17.36.323 Table 2, and features listed in ARM 17.36.103(1)(d) within 100 feet of the subdivision | X | X | X Water lines (suction and pressure) | | | X Water lines (extension and connections) | X | X | X Existing and proposed wastewater systems (drainfield, replacement area, and existing septic tanks) | X | X | Existing and proposed gray water irrigation systems | X | X | X Percent and direction of slope across the drainfield | X | X | Sewer lines (extensions and connections) | X | X | X Lakes, springs, irrigation ditches, wetlands and streams | X | X | Percolation test locations, if provided, keyed to result form | | X | Soil pit locations keyed to soil profile descriptions | | X | Ground water monitoring wells keyed to monitoring results form | X | X | X Floodplain boundaries | X | X | X Cisterns | X | X | X Existing and proposed building locations | X | X | X Driveways | X | X | X Road cuts and escarpments or slopes > 25% | | X | Mixing zone boundaries and direction of ground water flow | X | X | Locations, sizes, and design details of proposed storm water facilities | X | X | X Locations and sizes of existing storm water facilities | X | X | X

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, 76-4-125, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 11/3/75; AMD, Eff. 5/6/76; AMD, 1977 MAR p. 746, Eff. 10/25/77; AMD, 1984 MAR p. 1027, Eff. 7/13/84; AMD, 1992 MAR p. 2145, Eff. 9/25/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2009 MAR p. 1786, Eff. 10/16/09; AMD, 2014 MAR p. 2098, Eff. 9/19/14; AMD, 2023 MAR p. 324, Eff. 4/15/23.

Mont. Admin. R. 17.36.105 Subdivision and Platting Act Exclusions Subject to Department Review

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-125, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 11/3/75; AMD, Eff. 5/6/76; AMD, 1977 MAR p. 746, Eff. 10/25/77; AMD, 1984 MAR p. 1027, Eff. 7/13/84; TRANS, from DHES, 1996 MAR p. 1499; REP, 2002 MAR p. 1465, Eff. 5/17/02.

Mont. Admin. R. 17.36.106 Review Procedures--Lots Filed with Sanitary Restrictions Before 1973

(1) Subdivision lots recorded with sanitary restrictions prior to July 1, 1973, shall be reviewed in accordance with requirements set forth in this chapter. In cases where any requirements of this chapter would preclude the use for which each lot was originally intended, then the applicable requirements (including the absence thereof) in effect at the time such lot was recorded shall govern except that sanitary restrictions in no case shall be lifted from any such lot which cannot satisfy any of the following requirements:

(a) if a subsurface wastewater treatment system is utilized, soil conditions must provide for safe treatment and disposal of wastewater effluent;

(b) the proposed water supply must comply with the requirements of this chapter; and

(i) if a subsurface wastewater treatment system is utilized, there must be at least four feet from the natural ground surface to a limiting layer;

(ii) the site for any subsurface wastewater treatment system may not exceed 25 percent in slope; and

(iii) no part of the lot utilized for the subsurface wastewater treatment system components addressed in Department Circular DEQ-4, Chapter 6 may be located in a 100-year floodplain.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, 76-4-114, 76-4-125, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 11/3/75; AMD, Eff. 5/6/76; AMD, 1977 MAR p. 746, Eff. 10/25/77; AMD, 1984 MAR p. 1027, Eff. 7/13/84; AMD, 1992 MAR p. 2145, Eff. 9/25/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2011 MAR p. 2278, Eff. 10/28/11; AMD, 2014 MAR p. 2098, Eff. 9/19/14; AMD, 2016 MAR p. 722, Eff. 4/23/16; AMD, 2018 MAR p. 1588, Eff. 8/11/18; AMD, 2023 MAR p. 324, Eff. 4/15/23.

Mont. Admin. R. 17.36.108 Compliance with Local Requirements

(1) The applicant shall provide the department with evidence as to whether non-public facilities for the supply of water and disposal of wastewater are in compliance with applicable laws and regulations of local government. The evidence must be in one of the following forms:

(a) for an application that is not subject to review by a local reviewing authority under 76-4-104, MCA, a certification of compliance that is signed by the local health officer having jurisdiction. The applicant shall submit the certification to the department prior to the department issuing a certificate of subdivision approval; or

(b) for an application that is subject to review by a local reviewing authority under 76-4-104, MCA, a signed certificate of subdivision approval.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, 76-4-125, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 11/3/75; AMD, Eff. 5/6/76; AMD, 1977 MAR p. 746, Eff. 10/25/77; AMD, 1981 MAR p. 254, Eff. 3/27/81; AMD, 1984 MAR p. 1027, Eff. 7/13/84; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2000 MAR p. 967, Eff. 4/14/00; AMD, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2011 MAR p. 2278, Eff. 10/28/11; AMD, 2023 MAR p. 324, Eff. 4/15/23.

Mont. Admin. R. 17.36.110 Certificate of Approval

(1) Subject to the local certification requirements set out in (2), the reviewing authority shall issue a certificate of subdivision approval if:

(a) an applicant has submitted all of the information required by this chapter;

(b) the requirements of this chapter and of the Montana Environmental Policy Act have been met; and

(i) wastewater will not pollute or degrade state waters or endanger public health;

(ii) all wastewater disposal facilities are sufficient in terms of capacity and dependability;

(iii) the water supply will be sufficient in terms of quality, quantity, and dependability;

(iv) solid waste disposal will be in accordance with applicable state laws and rules; and

(v) storm drainage will have proper drainageways and the drainage will not pollute state waters.

(2) The reviewing authority may not issue a certificate of subdivision approval if non-public facilities for water supply or for the disposal of wastewater are proposed, unless the applicant has submitted evidence, in accordance with ARM 17.36.108(1), that the design for the non-public water supply and wastewater disposal facilities complies with applicable laws and regulations of local government.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, 76-4-125, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 11/3/75; AMD, Eff. 5/6/76; AMD, 1977 MAR p. 746, Eff. 10/25/77; AMD, 1984 MAR p. 1027, Eff. 7/13/84; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2000 MAR p. 967, Eff. 4/14/00; AMD, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2011 MAR p. 2278, Eff. 10/28/11; AMD, 2014 MAR p. 2098, Eff. 9/19/14.

Mont. Admin. R. 17.36.111 Mobile Homes and Recreational Camping Vehicles

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

Rules 17.36.112

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, 76-4-125, MCA
History: NEW, 1984 MAR p. 1027, Eff. 7/13/84; AMD, 1992 MAR p. 2145, Eff. 9/25/92; TRANS, from DHES, 1996 MAR p. 1499; REP, 2002 MAR p. 1465, Eff. 5/17/02.

Mont. Admin. R. 17.36.112 Review of Previously Approved Facilities: Procedures

(1) A facility previously approved under Title 76, chapter 4, MCA, that is submitted for review under this chapter is not subject to review if the facility:

(a) is not proposed to be changed;

(b) is not affected by a proposed change to another facility; and

(i) To determine whether previously approved water, sewer, and storm water facilities are operating properly, the reviewing authority may require submittal of well logs, water sampling results, any septic permit issued, and evidence that the septic tank has been pumped in the previous three years unless the system is less than five years old.

(2) A facility previously approved by a local reviewing authority but not under Title 76, chapter 4, MCA, is not subject to review if the applicant submits evidence that the facility:

(a) meets the criteria in (1);

(b) complies with all required setbacks in ARM 17.36.323; and

(c) if the lot was created after the effective dates for mixing zones and well isolation zones, complies with all required setbacks in ARM 17.36.122.

(3) The owner of a parcel that deviates from the conditions of approval shall obtain approval from the reviewing authority as provided in (3) through (6).

(4) Applications for amendments (rewrites) of certificates of subdivision approval must be submitted in accordance with ARM 17.36.102. The facilities are subject to the rules and standards in effect at the time the application is submitted, except that, if a requirement in the applicable rules and standards would preclude a previously approved use of the parcel, the department may consider a deviation or waive the requirement that would preclude the use. Waivers and deviations are subject to ARM 17.36.601. Applications for rewrites must also describe any changes to previously approved facilities. The reviewing authority may require the applicant to submit additional information that the reviewing authority determines is necessary for the review.

(5) Amendments that consist solely of the relocation or modification of previously approved facilities may be made through approval of a revised lot layout document in accordance with (a) through (c).

(a) A revised lot layout document may be issued for lots with previously approved facilities if:

(i) the changes consist solely of the relocation or modification of previously approved facilities shown on the lot layout that do not affect the conditions of approval in a COSA statement;

(ii) there are no changes in lot boundaries; and

(iii) the changes comply with applicable rules. Changes in previously approved facilities are subject to the rules and standards in effect at the time the application is submitted, except that, if a requirement in the applicable rules and standards would preclude a previously approved use of the parcel, the department may consider a deviation or waive the requirement that would preclude the use. Revised lot layouts must show any changes to previously approved facilities. The reviewing authority may require the applicant to submit additional information that the reviewing authority determines is necessary for the review.

(b) An applicant seeking approval of a revised lot layout must submit all of the following to the reviewing authority:

(i) a completed joint application, including the applicable review fee;

(ii) a copy of the revised lot layout document that complies with ARM 17.36.104; and

(iii) all other information that the reviewing authority deems necessary to demonstrate compliance with applicable rules.

(c) The approved revised lot layout must be filed with the county clerk and recorder and a copy must be provided to the department.

(6) At the time of septic permitting, local health departments that have been certified as the reviewing authority under ARM 17.36.116 may approve minor deviations from a certificate of subdivision approval without triggering an additional review under this chapter.

(a) The proposed minor deviations must meet the requirements of the most current version of DEQ-4 and this rule.

(b) Minor deviations are limited to:

(i) replacing distribution piping with gravelless trenches or vice versa;

(ii) replacing a standard trench system with a pressure-dosed system;

(iii) replacing a previously approved system with an equivalent system;

(iv) replacing components in a previously approved system with equivalent components;

(v) replacing the wastewater treatment system with a system that provides greater treatment than the approved system;

(vi) installing any Level 2 system in place of any other Level 2 system that provides equivalent treatment; and

(vii) approving changes to sizes of approved wastewater treatment systems, unless there are site constraints that would cause a violation of this chapter.

(7) Amendments to an existing certificate of subdivision approval that consist solely of replacing approved facilities for the supply of drinking water or disposal of wastewater with connection to a municipal or county public water system or public wastewater system must be submitted using a notification of change form provided by the department or by submitting an application under ARM 17.36.112(3).

(8) A person qualifies for 15-day expedited review to deviate from a certificate of subdivision approval if the only deviation is to add an accessory dwelling unit, as defined in 76-2-345, MCA, to a parcel that has existing public water and wastewater services, that have rated capacity, as defined in 75-6-130, MCA, for the accessory dwelling unit.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, 76-4-125, MCA
History: NEW, 2014 MAR p. 2098, Eff. 9/19/14; AMD, 2016 MAR p. 722, Eff. 4/23/16; AMD, 2018 MAR p. 1588, Eff. 8/11/18; AMD, 2023 MAR p. 324, Eff. 4/15/23; AMD, 2023 MAR p. 1861, Eff. 12/23/23; AMD, 2026 MAR, Notice No. 2026-198, Eff. 9/5/26.

Mont. Admin. R. 17.36.115 Certification of Independent Reviewers as the Reviewing Authority

(1) An engineer or sanitarian may be certified as an independent reviewer to review files under 76-4-104(4), MCA, subject to the requirements in this rule.

(2) An engineer or sanitarian must complete the following before becoming certified as an independent reviewer to perform subdivision reviews:

(a) complete a training program developed by the department; and

(b) pass, with a score of at least 90 percent, a written examination administered by the department that demonstrates knowledge of:

(i) Title 76, chapter 4, MCA;

(ii) this chapter;

(iii) applicable department circulars;

(iv) Title 75, chapter 5, MCA;

(v) ARM Title 17, chapter 30, subchapters 5 and 7; and

(vi) other applicable laws and regulations.

(3) An independent reviewer is subject to the limitations and requirements set forth in 76-4-104(12) through (15), MCA.

(4) To maintain certification, an independent reviewer must have completed at least one subdivision review in the preceding two years. Independent reviewers who have not completed at least one subdivision review in the preceding two years shall satisfy the requirements in (2)(b) prior to performing subdivision review.

(5) The department may suspend or revoke the certification of an independent reviewer if the department determines that the independent reviewer has not complied with the Sanitation in Subdivisions Act or other applicable statutes or rules.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, MCA
History: NEW, 2023 MAR p. 1861, Eff. 12/23/23.

Mont. Admin. R. 17.36.116 Certification of Local Department or Board of Health as the Reviewing Authority

(1) A local department or board of health, if it requests certification, must be certified as the reviewing authority within the scope of 76-4-104(3), MCA, if the following requirements are met and the sanitarian or engineer is qualified as described in (3):

(a) the local department or board of health employs a registered sanitarian or a professional engineer responsible to perform the actual review. Those local governments employing more than one registered sanitarian or professional engineer shall designate one such person to be responsible for the review program;

(2) The local department or board of health is required, pursuant to a written contract, to review subdivision applications according to the requirements of Title 76, chapter 4, MCA, and this chapter.

(3) A registered sanitarian or registered professional engineer must complete the following before becoming certified to perform subdivision reviews:

(a) pass, with a score of at least 90 percent, a written examination administered by the department that demonstrates knowledge of:

(i) Title 76, chapter 4, MCA;

(ii) this chapter;

(iii) applicable department circulars;

(iv) Title 75, chapter 5, MCA;

(v) ARM Title 17, chapter 30, subchapters 5 and 7; and

(vi) other applicable laws and regulations;

(b) have a minimum of one year's experience performing subdivision review under the direct supervision of the department or of a certified registered sanitarian or professional engineer; and

(c) for individuals previously certified under this subsection, complete at least one subdivision review in the preceding two years. Previously certified individuals who have not completed at least one subdivision review in the preceding two years shall, prior to performing subdivision review, satisfy the requirements in (3)(a).

(4) The department's oversight of a certified local reviewing authority's review of subdivision applications shall be limited to the following:

(a) within the statutory review period, the department shall determine, by reference to the local reviewing authority's review checklist or by other means, whether the local reviewer has conducted an element review and a completeness review of the application and whether the local reviewer has completed a compliance review of all systems designated by the contract between the department and the local reviewing authority. If the department determines that any part of these tasks was not completed, the department may return the application to the local reviewing authority for further review or may itself complete the review;

(b) within the statutory review period, the department may check the accuracy of the local reviewing authority's review of subdivision applications. The department's accuracy checks must be limited to ten percent of the applications submitted to the department by the local reviewing authority, except that the department may also review an application:

(i) upon the request of the local reviewing authority; or

(ii) when the department has reason to question the local reviewing authority's determination for a particular application;

(c) if the department identifies possible errors or discrepancies in the local reviewer's determination regarding an application, the department shall consult with the local reviewer. If, after consultation, the department does not agree with the local reviewer's determination regarding an application's compliance with applicable state laws, rules, and circulars, the department may, prior to the expiration of the review period for the application, modify the local determination regarding the state requirements;

(d) the department may conduct an annual audit of a representative sample of locally reviewed applications.

(5) The department retains the right to suspend or revoke the certification of the local department or board of health if the department determines that the local reviewing authority is not complying with the sanitation in subdivisions act or other applicable statutes or rules.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, 76-4-105, MCA
History: NEW, 1986 MAR p. 1509, Eff. 9/12/86; AMD, 1992 MAR p. 2145, Eff. 9/25/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2011 MAR p. 2278, Eff. 10/28/11; AMD, 2014 MAR p. 2098, Eff. 9/19/14; AMD, 2018 MAR p. 1588, Eff. 8/11/18; AMD, 2023 MAR p. 324, Eff. 4/15/23.

Mont. Admin. R. 17.36.117 Water Systems

(1) Plans for proposed subdivision facilities that include public water supply systems must be reviewed in accordance with the provisions of Title 75, chapter 6, MCA, and ARM Title 17, chapter 38, subchapter 1.

(2) Non-Public Water Systems must comply with Circular DEQ-20.

(3) Systems requiring design by a professional engineer per DEQ-20 or ARM 17.38.101 are subject to the requirements of ARM 17.36.121.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, MCA
History: NEW, 2023 MAR p. 324, Eff. 4/15/23.

Mont. Admin. R. 17.36.120 Solid Wastes

(1) Solid wastes stored within the subdivision must be placed in adequate containers and removed at a frequency to prevent a nuisance. When removed from the subdivision, the solid wastes must be disposed of at a department-licensed site in accordance with ARM 17.50.508 or an appropriate out-of-state waste disposal site.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 11/3/75; AMD, Eff. 5/6/76; AMD, 1977 MAR p. 746, Eff. 10/25/77; AMD, 1984 MAR p. 1027, Eff. 7/13/84; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 1465, Eff. 5/17/02; TRANS, from 17.36.309, 2023 MAR p. 324, Eff. 4/15/23.

Mont. Admin. R. 17.36.121 Requirements for Systems Designed by Professional Engineers

(1) The requirements in this rule apply to systems for which plans and specifications must be submitted to the department by a professional engineer under ARM 17.36.117(1) and (2), 17.36.310(2), or 17.36.320(2).

(2) The applicant shall document in the application their commitment to retain a professional engineer. The professional engineer shall provide certification that the system was built in conformance with the plans and specifications approved by the reviewing authority.

(3) A person may not commence or continue the operation of the system, or any portion of the system, until a professional engineer has certified by letter to the department that the system, or portion of the system constructed, altered, or extended to that date, was completed in substantial accordance with the plans and specifications approved by the department. The letter shall further certify that there are no deviations from the design standards of the applicable circulars, other than those previously approved by the department.

(4) Within 90 days after completion of construction of the system, a set of certified "as-built" drawings must be signed by a professional engineer and submitted to the department.

(5) If construction of the system is not completed within three years after the department has issued its written approval of the plans and specifications, the approval is void. Plans and specifications must be resubmitted to the department with appropriate fees, for review and approval. If the original conditions of approval, applicable rules, and design standards have not changed since the department approved the system, the department shall reissue the approval to allow an additional three years to complete construction.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, MCA
History: NEW, 2014 MAR p. 2098, Eff. 9/19/14; AMD, 2018 MAR p. 1588, Eff. 8/11/18; TRANS and AMD, from 17.36.314, 2023 MAR p. 324, Eff. 4/15/23; AMD, 2026 MAR, Notice No. 2026-85, Eff. 9/26/26.

Mont. Admin. R. 17.36.122 Operation and Maintenance, Ownership, Easements, and Agreements

(1) Public systems must be owned by an individual or entity that meets the requirements of 75-6-126, MCA. The owner must be responsible for operation and maintenance and must have authority to charge appropriate fees.

(2) For multiple-user systems, the reviewing authority may require the applicant to create a homeowners' association, county sewer district, or other administrative entity that will be responsible for operation and maintenance and that will have authority to charge appropriate fees.

(3) When required by department circulars or this chapter, an operation and maintenance manual must be provided for water supply, wastewater treatment, and storm water facilities meeting the requirements of that circular or rule.

(4) Easements must be obtained if the reviewing authority determines they are needed to allow adequate operation and maintenance of the system or to comply with (6). Easements must be filed with the county clerk and recorder at the time the certificate of subdivision approval issued under this chapter is filed. Easements must be in one of the following forms:

(a) in writing signed by the grantor of the easement that adequately describes what is being conveyed, contains language of conveyance, and identifies the grantor and grantee of the easement; or

(b) if the same person owns both parcels, shown on the plat or certificate of survey for the proposed subdivision.

(5) If an application includes a shared or multiple-user system that serves more than one lot, the applicant shall submit to the reviewing authority a draft user agreement that identifies the rights and responsibilities of each user. User agreements must be in a form acceptable to the department.

(6) Proposed drainfield mixing zones and proposed well isolation zones, as those terms are defined in 76-4-102, MCA, must be wholly within the boundaries of a lot as provided in this section. This rule applies to all subdivisions subject to review under Title 76, chapter 4, MCA, including new subdivision applications, subdivision rewrites, revised lot layouts, and minor deviations, except as provided in (c). For purposes of this rule, a setback envelope or provisional mixing zone is equivalent to a drainfield mixing zone.

(a) For lots created after March 30, 2011, a proposed drainfield mixing zone must be located wholly within the boundaries of the lot unless:

(i) the adjoining land is owned by the same person;

(ii) an easement has been obtained for the mixing zone from the affected landowner;

(iii) for public land, appropriate authorization has been obtained from the public entity; or

(iv) the mixing zone extends onto adjoining land that is dedicated for use as a right-of-way for roads, railroads, or utilities.

(b) For lots created after October 1, 2013, a proposed well isolation zone must be located wholly within the boundaries of the lot unless:

(i) the adjoining land is owned by the same person;

(ii) an easement has been obtained for the well isolation zone from the affected landowner;

(iii) for public land, appropriate authorization has been obtained from the public entity; or

(iv) for individual wells only, the well is located a minimum of 50 feet inside the lot boundary and extends onto adjoining land that is dedicated for use as a right-of-way for roads, railroads, or utilities.

(i) divisions provided for in 76-3-207, MCA, except for family transfers under 76-3-207(1)(b), MCA;

(ii) lots created before October 1, 2021, and excluded from review pursuant to 76-4-125, MCA;

(iii) changes to an existing well isolation zone or mixing zone that was previously approved under Title 76, chapter 4, MCA, if the changes would not increase the size, location, or boundaries of the existing isolation or mixing zone;

(iv) drainfield mixing zones that were approved under Title 50, chapter 2, MCA, before October 1, 2025; or

(v) drainfield mixing zones that were approved under Title 50, chapter 2, MCA, after October 1, 2025, if the local governing body has adopted rules that prohibit construction of a subsurface wastewater treatment system if the associated mixing zone would encroach onto adjacent property, except as allowed in 76-4-104(7)(i), MCA.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, MCA
History: NEW, 2000 MAR p. 3371, Eff. 12/8/00; AMD, 2003 MAR p. 221, Eff. 2/14/03; AMD, 2016 MAR p. 722, Eff. 4/23/16; AMD, 2018 MAR p. 1588, Eff. 8/11/18; TRANS and AMD, from 17.36.326, 2023 MAR p. 324, Eff. 4/15/23; AMD, 2026 MAR, Notice No. 2026-198, Eff. 9/5/26.

Mont. Admin. R. 17.36.123 Connection to Public Water Supply and Wastewater Systems

(1) New water supply and sewage disposal facilities in a proposed subdivision must be provided by a connection to a public water supply or public wastewater system if any boundary of the subdivision is within 500 feet of any component of the public system and the public system meets the requirements of (2)(a) and (b). The department may grant a waiver, pursuant to ARM 17.36.601, of the requirement to connect to a public system if the applicant demonstrates that connection to the public system is physically or economically impractical, or that easements cannot be obtained. For purposes of this rule, a connection is economically practical if the cost of constructing the connection to the system is less than or equal to three times the cost of constructing approvable systems on the site.

(2) Unless a waiver is granted pursuant to ARM 17.36.601, the reviewing authority may not approve the connection of a proposed subdivision to an existing public system unless:

(a) the existing public system is approved by the department and is in compliance with the provisions of Title 75, chapter 6, part 1, MCA, and ARM Title 17, chapters 30 and 38;

(b) the managing entity of the public system certifies to the reviewing authority, on a form acceptable to the department, that:

(i) the system has an adequate capacity to meet the needs of the subdivision;

(ii) the connections are authorized;

(iii) the system is in compliance with ARM Title 17, chapter 38, and all other applicable department regulations; and

(iv) the appropriate water rights exist for this connection; and

(c) the applicant submits to the reviewing authority the name and public water supply ID (PWSID) number of the public system.

(3) If the proposed additional connections will create a new public system, the applicant shall submit plans and specifications for the entire system (existing and proposed) for review and approval by the department in accordance with the provisions of Title 75, chapter 6, part 1, MCA, and ARM Title 17, chapters 30 and 38.

(4) Subject to the criteria in (2) and (3), a municipal or county water and/or sewer district must accept a connection request from a proposed subdivision and make public wastewater service available if requested by an applicant if:

(a) any boundary of the subdivision is within 1000 feet of any component of a public municipal or county sewer district wastewater system; and

(b) any boundary of the subdivision borders surface water or where surface water is present or the subdivision is unable to pass the nonsignificance criteria in 75-5-301, MCA, for surface water impacts.

(5) A municipal water or sewer system, or a county water and/or sewer district system, shall provide a connection to a proposed subdivision if:

(a) the proposed subdivision requests the connection;

(b) the boundary of the subdivision is within 501 to 1,000 feet of any component of the public system; and

(6) In addition to new water and sewer facilities in (1), this rule applies to rewrites of certificates of subdivision approval that include an increase in water or wastewater flows or load and to reviews of lots that were created under ARM 17.36.605(2)(a).

History

Authorizing statute(s): 76-4-104, MCA; Section 1, ch. 328, L. 2025
Implementing statute(s): 76-4-104, MCA; Section 1, ch. 328, L. 2025
History: NEW, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2014 MAR p. 2098, Eff. 9/19/14; TRANS and AMD, from 17.36.328, 2023 MAR p. 324, Eff. 4/15/23; AMD, 2023 MAR p. 1861, Eff. 12/23/23; AMD, 2026 MAR, Notice No. 2026-198, Eff. 9/5/26.

Mont. Admin. R. 17.36.124 Subdivisions Adjacent to State Waters

(1) Where the department has determined that the disposal of sewage from a proposed subdivision may adversely affect the quality of a lake or other state waters, the department may require additional information and data concerning such possible effects. Upon review of such information, the department may impose specific requirements for sewage treatment and disposal as are necessary and appropriate to ensure compliance with the following:

(a) the Water Quality Act, Title 75, chapter 5, MCA; and

(b) water quality and non-degradation standards established in ARM Title 17, chapter 30, subchapters 6, 7, 10, and 12.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, 76-4-125, MCA
History: NEW, 1984 MAR p. 1027, Eff. 7/13/84; AMD, 1992 MAR p. 2145, Eff. 9/25/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2014 MAR p. 2098, Eff. 9/19/14; TRANS, from 17.36.312, 2023 MAR p. 324, Eff. 4/15/23; AMD, 2026 MAR, Notice No. 2026-85, Eff. 9/26/26.

Mont. Admin. R. 17.36.125 Condominium Conversions

(1) Except as provided in (2) and (3), condominiums, including those to be constructed on parcels of land that are exempted from review under the provisions of Title 76, chapter 3, MCA, are subject to review under the requirements of this chapter. This requirement includes conversion of existing structures into condominiums.

(2) Conversions of existing structures into condominiums are not subject to this chapter where the converted units are to be served by existing municipal water and sewer facilities in a Class I or II city as defined in 7-1-4111, MCA.

(3) The water or sewage disposal system in an existing building to be converted into condominiums is not subject to review under this chapter if:

(a) it has already been approved under either department requirements; or

(b) it has been approved by the local health department under local requirements.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-111, 76-4-125, MCA
History: NEW, 1984 MAR p. 1027, Eff. 7/13/84; TRANS, from DHES, 1996 MAR p. 1499; TRANS, from 17.36.313, 2023 MAR p. 324, Eff. 4/15/23; AMD, 2026 MAR, Notice No. 2026-85, Eff. 9/26/26.

Mont. Admin. R. 17.36.126 Adoption by Reference

(1) For purposes of this chapter, the department adopts and incorporates by reference the following documents. All references to these documents in this chapter refer to the edition set out below:

(a) Department Circular DEQ-1, "Standards for Water Works," 2024 edition;

(b) Department Circular DEQ-2, "Design Standards for Public Sewage Systems," 2018 edition;

(d) Department Circular DEQ-4, "Montana Standards for Subsurface Wastewater Treatment Systems," 2023 edition;

(e) Department Circular DEQ-7, "Montana Numeric Water Quality Standards" (September 2026 edition);

(f) Department Circular DEQ-8, "Montana Standards for Subdivision Storm Drainage," 2024 edition;

(g) Department Circular DEQ-10, "Standards for the Development of Springs for Public Water Systems," 2014 edition;

(h) Department Circular DEQ-16, "Standards for Hauled Water Cisterns for Noncommunity Public Systems," 2014 edition;

(i) Department Circular DEQ-20, "Standards for Non-Public Water Systems," 2023 edition;

(j) Department Circular PWS-5, "Ground Water Under the Direct Influence of Surface Water Evaluation," 2022 edition;

(k) Department Circular PWS-6, "Source Water Protection Delineation," 1999 edition;

(l) the U.S. Department of Agriculture's National Soil Survey Handbook (USDA, NRCS, September 1999), and the Soil Survey Manual (USDA, October 1993), which contain a recognized set of methods for identifying the nature and characteristics of soils; and

(m) ARM 17.30.1702 regarding setbacks between sewage lagoons and wells.

(2) Copies of the documents incorporated by reference in this rule may be obtained from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, MCA
History: NEW, 2000 MAR p. 3371, Eff. 12/8/00; AMD, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2003 MAR p. 221, Eff. 2/14/03; AMD, 2004 MAR p. 2589, Eff. 10/22/04; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2006 MAR p. 540, Eff. 2/24/06; AMD, 2008 MAR p. 946, Eff. 5/9/08; AMD, 2009 MAR p. 1786, Eff. 10/16/09; AMD, 2010 MAR p. 1796, Eff. 8/13/10; AMD, 2012 MAR p. 2060, Eff. 10/12/12; AMD, 2012 MAR p. 2067, Eff. 10/12/12; AMD, 2013 MAR p. 2081, Eff. 11/15/13; AMD, 2014 MAR p. 1802, Eff. 8/8/14; AMD, 2016 MAR p. 1008, Eff. 6/4/16; AMD, 2017 MAR p. 602, Eff. 5/13/17; AMD, 2018 MAR p. 1588, Eff. 8/11/18; AMD, 2019 MAR p. 826, Eff. 6/22/19; AMD, 2022 MAR p. 1695, Eff. 8/27/22; TRANS and AMD, from 17.36.345, 2023 MAR p. 324, Eff. 4/15/23; AMD, 2024 MAR p. 2144, Eff. 9/7/24; AMD, 2024 MAR p. 2191, Eff. 9/21/24; AMD, 2026 MAR, Notice No. 2026-496, Eff. 9/26/26.

(b) a lot proposed with greater than 25 percent impervious area.

(3) Storm drainage plans that are required to be designed by a professional engineer under (2) must meet the requirements in ARM 17.36.121 except for the following:

(a) a three-year expiring approval in ARM 17.36.121 does not apply;

(b) certification and as-built drawing requirements listed in ARM 17.36.121(2) through (4) do not apply for retention ponds for residential lots, designed solely for, and located on, the lot where the additional runoff is generated; and

(c) certification and as-built drawing requirements listed in ARM 17.36.121(2) through (4) are required for storm water facilities that treat additional runoff generated on 2 or more lots.

(4) A storm drainage plan must include a maintenance plan for all drainage structures. The maintenance plan must describe the drainage structures, provide a maintenance schedule, and designate the entity responsible for performing maintenance. The reviewing authority may require the applicant to create a homeowner's association or other legal entity that will be responsible for maintenance of storm drainage structures and that will have authority to charge appropriate fees. The maintenance plan must include easements and agreements as necessary for operation and maintenance of all proposed storm drainage structures or facilities.

(5) The applicant shall obtain an easement if the reviewing authority determines the easement is needed to allow adequate operation and maintenance of the facilities. The easement must be filed with the county clerk and recorder at the time the certificate of subdivision approval issued under this chapter is filed. The easement must be in one of the following forms:

(a) in writing signed by the grantor of the easement; or

(b) if the same person owns both parcels, shown on the plat or certificate of survey for the proposed subdivision.

(6) The requirements of (1), (2), (3), and (4) are not required under the following circumstances:

(a) subdivisions located entirely within a first-class or second-class municipality, as described in 7-1-4111, MCA, or within a Municipal Separate Storm Sewer System (MS4) general permit area, as defined in ARM 17.30.1102, if:

(i) the applicant submits to the reviewing authority a letter of consent from the municipal or MS4 entity on a form provided by the department; and

(ii) the municipal or MS4 entity either accepts the stormwater into a municipal storm water system or requires the applicant to comply with municipal or MS4 storm water drainage design standards;

(b) lots 5 acres or larger in size if the applicant provides information demonstrating that the total impervious area on the lot will be less than 5% of the lot area, including easements and right-of-ways; or

(c) lots that are exempt from review under 76-3-207(1)(a), (d), (e), or (f), MCA, if the parcels are used for one living unit and no more than 25% of each qualifying parcel is impervious. To qualify for this exemption, the applicant must provide an estimate of each parcel's total impervious area and verification of the intended use. A change in the percentage of impervious area beyond 25% or changing from more than one living unit will require review.

(7) If material will be displaced or added within a delineated floodplain, the applicant shall provide evidence that the floodplain permit coordinator has been notified and that appropriate approvals can be obtained. Adequate evidence must be in the form of a floodplain permit or certification from the floodplain coordinator.

(8) If applicable, the applicant shall obtain an MPDES permit for storm water discharges, pursuant to ARM Title 17, chapter 30.

(9) Storm water that reaches state surface waters must be treated prior to discharge if the reviewing authority determines that untreated storm water is likely to degrade the receiving waters.

(a) minimum treatment of storm water consists of removal of settleable solids and floatable material. The reviewing authority may require more extensive treatment if deemed necessary to protect state waters from degradation;

(b) plans for the treatment facility must be approved by the reviewing authority.

(10) The department may grant a waiver from any of the requirements in this rule pursuant to the provisions of ARM 17.36.601.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, 76-4-125, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 11/3/75; AMD, Eff. 5/6/76; AMD, 1977 MAR p. 746, Eff. 10/25/77; AMD, 1984 MAR p. 1027, Eff. 7/13/84; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2003 MAR p. 221, Eff. 2/14/03; AMD, 2014 MAR p. 2098, Eff. 9/19/14; AMD, 2018 MAR p. 1588, Eff. 8/11/18; AMD, 2023 MAR p. 324, Eff. 4/15/23; AMD, 2023 MAR p. 1861, Eff. 12/23/23.

Mont. Admin. R. 17.36.319 Gray Water Reuse

(1) This rule applies to gray water reuse on subdivision parcels that are subject to review, or that have been approved, under Title 76, chapter 4, MCA.

(2) Except as provided in (3) and (4), treatment and disposal of gray water must be by means of a wastewater treatment system that meets all of the requirements of this chapter and applicable department circulars. Gray water reuse within a building or residence for uses such as toilet flushing is permitted without review, provided that the gray water is ultimately disposed of by means of a wastewater treatment system that is in compliance with this chapter and applicable department circulars.

(3) Gray water may be used for irrigation as provided in (4). If a gray water irrigation system meets all of the requirements in (4), the system is not subject to the requirements of subchapter 3.

(4) Gray water that is collected separately from sewage flow and that does not contain industrial chemicals, hazardous wastes, or wastewater from toilets may be used for irrigation, if the following requirements are met:

(a) prior to installation, a gray water irrigation system must have a permit from the local health department;

(b) gray water irrigation must be subsurface, with a collection and application system that is designed, installed, and used in accordance with Department Circular DEQ-4;

(c) as provided in 75-5-326, MCA, gray water may not be used to irrigate plants to be consumed by humans, and gray water systems may not be located within a floodplain, as defined in 76-5-103, MCA. For purposes of this rule, "plants to be consumed by humans" does not include nut and fruit trees;

(d) there must be a minimum of four feet of natural soil between the point of gray water application and a limiting layer, as defined in ARM 17.36.101;

(e) unless a waiver is granted by the department, the following horizontal setback distances must be maintained. Gray water irrigation may not occur within:

(i) 100 feet of wells;

(ii) 100 feet of surface water;

(iii) 100 feet of a floodplain; or

(iv) two feet of a property line;

(f) gray water from kitchens may be used for irrigation only where a waste segregation system is used. For purposes of this rule, a "waste segregation system" consists of dry disposal of toilet waste by a method such as composting, chemical, dehydrating, or incinerator treatment, with a separate disposal method for gray water;

(g) gray water irrigation systems in subdivisions may not be installed unless approved under Title 76, chapter 4, MCA. If a system complies with (4)(a) through (e), review under Title 76, chapter 4, MCA, is not required if the system serves:

(i) a parcel that has a previous certificate of subdivision approval issued pursuant to Title 76, chapter 4, MCA, if no other changes to the certificate are proposed, except that review under Title 75, chapter 6, MCA, is required before a public wastewater system is modified to include a gray water irrigation system; or

(ii) a parcel that, when created, was exempt from review under Title 76, chapter 4, MCA, because it was served solely by municipal facilities, as defined in 76-4-102, MCA.

(5) Subdivision applications must contain descriptions of the soils within 25 feet of proposed gray water irrigation areas. Soils must be described in accordance with Appendix B of Department Circular DEQ-4. Each test hole must be keyed by a number on a copy of the lot layout or map with the information provided in the report.

(6) Gray water irrigation systems with a design flow greater than or equal to 2,500 gallons per day must be designed by a professional engineer.

(7) The department may require user agreements for systems that serve more than one user. The department may require easements for systems that cross property lines.

(8) If an existing gray water irrigation system is present in a proposed subdivision, the department shall review the adequacy of the system for the proposed use and the capability of the system to operate without risk to public health and without pollution of state waters. Existing systems must comply with state and local laws and regulations, including permit requirements, applicable at the time of installation.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, MCA
History: NEW, 2009 MAR p. 1786, Eff. 10/16/09.

Mont. Admin. R. 17.36.320 Sewage Systems: Design and Construction

(1) All components of sewage treatment systems must be designed and installed in accordance with Department Circular DEQ-4, Department Circular DEQ-2, or other applicable department circular and are subject to the following restrictions:

(a) systems designed in accordance with Department Circular DEQ-2 may not be used for individual, shared, or multiple-user systems, except as provided in Department Circular DEQ-4; and

(b) experimental systems are allowed only pursuant to a waiver granted in accordance with ARM 17.36.601.

(2) Multiple-user systems with design flows greater than or equal to 2500 gallons per day must be designed by a professional engineer and are subject to the requirements in ARM 17.36.121.

(3) Subsurface wastewater treatment systems must comply with ARM Title 17, chapter 36, subchapter 3, and Circular DEQ-4.

(a) The applicant must provide the following minimum information for wastewater submittals:

(i) site evaluation information, soil profile descriptions, percolation tests if required, and other pertinent soil information for each proposed drainfield, and seasonal high ground water information;

(ii) drainfield dimensions, including lateral length and lateral width based on application rate and design flow; drainfield location and type of system; and direction and percentage of slope across the treatment area or a contour map with a contour interval of at least two feet;

(iii) setback information as required by ARM 17.36.323; and

(iv) criteria necessary to make a non-degradation significance determination.

(b) Additional design details showing compliance with DEQ-4 will be required by the reviewing authority if:

(i) the proposed wastewater system is multiple-user or public;

(ii) the discharge is not residential strength;

(iii) the local health department does not issue septic permits for parcels reviewed under Title 76, chapter 4, MCA; or

(iv) the site will require strict adherence to the lot layout at the time of installation, as determined by the reviewing authority.

(4) For subsurface systems, a minimum separation of at least four feet of natural soil must exist between the infiltrative surface or the liner of a lined system and a limiting layer. Exceptions to this rule are:

(a) at least six feet of natural soil must exist between the infiltrative surface or the liner of a lined system and a limiting layer on a slope of greater than 15 percent; and

(b) for elevated sand mounds constructed in accordance with Department Circular DEQ 4, the depth of the key may be included as part of the separation distance between the infiltrative surface and a limiting layer.

(5) The proposed subsurface sewage treatment area must include an area for 100 percent replacement of the system, except that the replacement area for elevated sand mounds may be allowed as provided in Department Circular DEQ-4. If a size reduction is approved for a system, the replacement area must have area sufficient for the system without the size reduction. Unless a waiver is approved by the department pursuant to ARM 17.36.601, the replacement area must meet the same requirements as the primary area. If the replacement area is not immediately adjacent to the primary area, or if there is evidence that site conditions for the replacement area may vary from those for the primary area, the applicant shall submit adequate evidence of the suitability of the replacement area.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, MCA
History: NEW, 2000 MAR p. 3371, Eff. 12/8/00; AMD, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2003 MAR p. 221, Eff. 2/14/03; AMD, 2014 MAR p. 1824, Eff. 8/8/14; AMD, 2023 MAR p. 324, Eff. 4/15/23.

Mont. Admin. R. 17.36.321 Sewage Systems: Allowable New and Replacement Systems

(1) All systems must be designed and installed in accordance with Department Circular DEQ-4, Department Circular DEQ-2, or other applicable department circular. Requirements applicable to review of existing sewage treatment systems are set out in ARM 17.36.327.

(2) Systems designed in accordance with Department Circular DEQ-2 may not be used for individual, shared, or multiple-user systems, except as provided in Department Circular DEQ-4.

(3) The following sewage systems may not be used for new systems, but may be used as replacement systems subject to the limitations provided in Department Circular DEQ-4:

(a) artificially drained systems;

(b) absorption beds;

(d) seepage pits; and

(e) holding tanks, except that:

(i) the department may grant a waiver, pursuant to ARM 17.36.601, to allow holding tanks in facilities owned and operated by a local, state, or federal unit of government, or in facilities licensed by the Department of Public Health and Human Services and inspected by the local health department. Holding tanks must be designed and maintained in accordance with the requirements in Department Circular DEQ-4 and all other requirements imposed by the department and local health department; and

(ii) the department may grant a waiver, pursuant to ARM 17.36.601 and with concurrence by the local health department, to allow holding tanks to replace a failed system when no other alternative that meets these rules is reasonably available.

(4) Cesspools are prohibited as new or replacement systems.

(5) Sealed pit privies may be used only in facilities owned and operated by a local, state, or federal unit of government, or in facilities where use of a sealed pit privy is authorized by the Department of Public Health and Human Services.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, MCA
History: NEW, 2000 MAR p. 3371, Eff. 12/8/00; AMD, 2003 MAR p. 221, Eff. 2/14/03; AMD, 2014 MAR p. 1824, Eff. 8/8/14; AMD, 2023 MAR p. 1861, Eff. 12/23/23.

Mont. Admin. R. 17.36.322 Sewage Systems: Siting

(1) Gravity-fed subsurface sewage treatment systems may not be used if natural slopes are greater than 15 percent. A pressure-dosed sewage treatment system with a design flow of 5000 gallons per day or less may be used on slopes greater than 15 percent and up to 25 percent, if a professional engineer or a person qualified to evaluate and identify soil in accordance with Department Circular DEQ-4 submits adequate evidence that there will be no visible outflow of liquid downslope from the subsurface sewage treatment system.

(2) The department may grant a waiver to allow pressure-dosed subsurface sewage treatment systems on slopes greater than 25 percent and up to 35 percent. For the department to grant such a waiver, a professional engineer or a person qualified to evaluate and identify soil in accordance with Department Circular DEQ-4 shall submit adequate evidence that there will be no visible outflow of liquid downslope from the subsurface sewage treatment system. Prior to granting such a waiver, the department shall consult with the local health department.

(3) Subsurface sewage treatment systems may not be installed on unstable landforms.

(4) Unless it is designed to accommodate such conditions, no component of any sewage treatment system may be located under structures or driveways, parking areas, under other areas subjected to vehicular traffic, or other areas subject to compaction. Drainfields must not be located in swales or depressions where runoff may flow or accumulate.

(5) Pursuant to 76-4-104(6)(i), MCA, a proposed drainfield mixing zone must meet the requirements of ARM 17.36.122(6).

(6) For lots two acres in size or less, the applicant shall physically identify the drainfield location by staking or other acceptable means of identification. For lots greater than two acres in size, the department may require the applicant to physically identify the drainfield location.

(7) The department may require the applicant to show detailed lot layouts on a contour map if the department determines that there is a question about suitability of the drainfield location.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, MCA
History: NEW, 2000 MAR p. 3371, Eff. 12/8/00; AMD, 2011 MAR p. 2278, Eff. 10/28/11; AMD, 2014 MAR p. 1824, Eff. 8/8/14; AMD, 2023 MAR p. 324, Eff. 4/15/23; AMD, 2026 MAR, Notice No. 2026-85, Eff. 9/26/26.

Mont. Admin. R. 17.36.323 Setbacks

(1) Minimum setback distances, in feet, shown in Table 2 of this rule must be maintained, except as provided in the table footnotes or as allowed through a deviation granted under ARM Title 17, chapter 38, subchapter 1. The setbacks in this rule are not applicable to gray water irrigation systems that meet the setbacks and other requirements of ARM 17.36.319.

TABLE 2

SETBACK DISTANCES

(in feet)

From | To Drinking Water Wells | To Sealed Components (1) and Other Components (2) | To Drainfields/Soil Absorption Systems (3) Public or multiple-user drinking water wells/springs | - | 100 (4) | 100 Individual and shared drinking water wells | - | 50 (18) | 100 (18) Other wells (5) | - | 50 (4) | 100 (4) Suction lines | - | 50 | 100 Cisterns | - | 25 | 50 Roadcuts, escarpment | - | 10 (6) | 25 Slopes > 35 percent (7) | - | 10 (6) | 25 Property boundaries | 10 (8) | 10 (8) | 10 (8) Subsurface drains | - | 10 | 10 Water mains | - | 10 (9) | 10 Drainfields/Soil absorption systems | 100 | 10 | - Foundation walls | - | 10 | 10 Surface water (10), springs | 100 (4) (11) (12) | 50 (4) (11) | 100 (4) (11) (13) Floodplains | 10 (4) (11) | - Sealed components - no setbacks (1) Other components - 100 (2) (4) (11) | 100 (11) (14) Mixing zones | 100 (4) (18) | - | - Storm water ponds and ditches (15) | 25 (4) (16) | 10 (4) | 25 (4) Sewage Lagoons | 1000 (17) | - | -

(1) Sealed components include holding tanks, sealed pit privies, raw wastewater pumping stations,

the components addressed in chapters 4 and 5 of Department Circular DEQ-4, and those components completely contained within a sealed vessel. Sealed components must meet the requirements of ARM 17.36.322(4). Drainfields do not have to meet setbacks to effluent transport pipes, manifolds, drop boxes, and distribution pipes as described in section 4.3 of DEQ-4.

(2) Other components include the components addressed in Department Circular DEQ-4, Chapter 7, except those components completely contained within a sealed vessel.

(3) Absorption systems include the systems addressed in Department Circular DEQ-4, Chapters 6 and 8, subject to the limitations in ARM 17.36.321.

(4) A waiver of this requirement may be granted by the department pursuant to ARM 17.36.601.

(5) Other wells include, but are not limited to, irrigation and stock watering, but do not include observation wells as addressed in Department Circular DEQ-4.

(6) Sewer lines and sewer mains may be located in roadways and on steep slopes if the lines and mains are safeguarded against damage.

(7) Down-gradient of the sealed component, other component, or drainfield/soil absorption system.

(8) Easements may be used to satisfy the setback to property boundaries.

(9) Unless a waiver is granted by the department pursuant to ARM 17.36.601, sewer mains that cross water mains must be laid with a minimum vertical separation distance of 18 inches between the mains.

(10) For purposes of this rule, "surface water" does not include intermittent storm water.

(11) The department may require more separation from the floodplain or from surface water or springs if it determines that site conditions or water quality requirements indicate a need for the greater distance.

(12) Pursuant to Department Circular DEQ-20, the reviewing authority may require greater than a 100-foot horizontal separation between a well and surface water if there is a potential that the well may be influenced by contaminants in the surface water.

(13) A waiver may be granted by the department. In addition to the requirements of ARM 17.36.601, a waiver request from this setback must demonstrate that ground water flow at the drainfield site cannot flow into the surface water or spring. The setback between drainfields or soil absorption systems to irrigation ditches does not apply if the ditch is lined with a full culvert.

(14) After consultation with the local health department, a waiver may be granted by the department, pursuant to ARM 17.36.601. In addition to the requirements of ARM 17.36.601, a waiver request from this setback must:

(a) demonstrate that the surface water or spring seasonally high water level is at least 100-foot horizontal distance from the drainfield;

(b) demonstrate that the bottom of the drainfield will be at least two feet above the maximum 100-year flood elevation; and

(15) Storm water ponds and ditches are those structures that temporarily hold or convey water as part of storm water management.

(16) The setback is 100 feet for public wells, unless a deviation is granted under ARM Title 17, chapter 38, subchapter 1.

(17) A lesser setback may be allowed in accordance with ARM 17.30.1702.

(18) This setback applies unless the department has approved a smaller source-specific well isolation zone under Department Circular DEQ-20, Standard 1.8. In that case, the source specific well isolation zone distance applies.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, MCA
History: NEW, 2000 MAR p. 3371, Eff. 12/8/00; AMD, 2009 MAR p. 1786, Eff. 10/16/09; AMD, 2014 MAR p. 1824, Eff. 8/8/14; AMD, 2016 MAR p. 722, Eff. 4/23/16; AMD, 2023 MAR p. 324, Eff. 4/15/23; AMD, 2023 MAR p. 1861, Eff. 12/23/23.

Mont. Admin. R. 17.36.324 Sewage Systems: Floodplains

(1) The applicant shall identify the location of any floodplain on the lot layout document. The department may require the applicant to provide additional information, such as elevations at specific locations.

(2) The applicant shall submit evidence adequate to allow the department to establish the location of the floodplain if:

(a) the federal or state government has not designated the floodplain, or if the location of the floodplain is in question with respect to a proposed subdivision; and

(b) the stream is shown as an intermittent or perennial stream on the most current USGS 7 1/2 minute (1:24,000) topographic map (unless the applicant provides adequate information that the stream is not subject to flooding) .

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, MCA
History: NEW, 2000 MAR p. 3371, Eff. 12/8/00.

Mont. Admin. R. 17.36.325 Sewage Systems: Site Evaluation

(1) The reviewing authority may require that percolation tests, conducted in accordance with department Circular DEQ-4, be performed within the boundary of each proposed subsurface sewage treatment system. Percolation tests must be keyed by a number on the lot layout to the results in the report form.

(2) If the applicant or the department has reason to believe that ground water will be within seven feet of the surface at any time of the year within the boundaries of the treatment system, ground water monitoring must be conducted in accordance with Department Circular DEQ-4.

(3) The applicant shall provide descriptions of the soils within 25 feet of the boundaries of each proposed drainfield. Soil descriptions for the proposed subdivision must meet the following requirements:

(a) Soil descriptions must be done in accordance with Department Circular DEQ-4. The characteristics that must be addressed include, but are not limited to, soil texture, soil structure, soil consistence, and indicators of redoximorphic features.

(b) Soil descriptions must be based on data obtained from test holes. Test holes must be dug in accordance with Department Circular DEQ-4. The number of test holes must be as provided in (c), unless a waiver is granted by the department pursuant to ARM 17.36.601. Before a waiver is granted, the applicant shall complete test holes for 25 percent of the proposed drainfield locations in the proposed subdivision, shall demonstrate that the soils are consistent throughout the area requested for a waiver, and shall obtain the approval of the local reviewing authority. The department may require additional test holes than are required in (c) if the department determines that there is significant variability of the soils in the proposed drainfield areas. Each test hole must be keyed by a number on a copy of the lot layout or map with the information provided in the application.

(c) At least one test hole must be dug for each individual drainfield and for each shared (two-user) drainfield. At least three test holes must be dug for each multiple-user and public drainfield. At least one test hole must be dug for each zone of a pressure-dosed drainfield.

(d) If the applicant or the department has reason to believe that a limiting layer is within seven feet of the ground surface at the site of a proposed subsurface sewage treatment system, the department may require additional test holes and soil descriptions sufficient to describe the suitability of the soil.

(4) Sewage systems that are subject to the design requirements of Department Circular DEQ-2 must meet the siting requirements of that circular.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, MCA
History: NEW, 2000 MAR p. 3371, Eff. 12/8/00; AMD, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2003 MAR p. 221, Eff. 2/14/03; AMD, 2014 MAR p. 1824, Eff. 8/8/14.

Mont. Admin. R. 17.36.327 Sewage Systems: Existing Systems

(1) The provisions of (2) through (5) apply only to existing non-public sewage systems in proposed subdivisions. Facilities previously approved under Title 76, chapter 4, MCA, must be reviewed in accordance with ARM 17.36.112. Public sewage supply systems must meet the requirements of Title 75, chapter 6, MCA, and rules promulgated thereunder.

(2) If an existing sewage treatment system is present, the department shall review the adequacy of the existing system for the proposed use and the capability of the existing system to operate without risk to public health and without pollution of state waters. To assist the department in making this determination, the applicant shall submit the following information, together with fees as provided in ARM 17.36.802:

(a) evidence demonstrating the proper hydraulic functioning of each existing system;

(b) evidence as to whether each existing system complied with state and local laws and regulations, including permit requirements, applicable at the time of installation; and

(c) evidence that each existing septic tank was pumped within three years prior to the department’s review unless the existing septic tank is less than five years old.

(3) The setbacks requirements in ARM 17.36.323 apply, but may be waived for existing sewage systems pursuant to ARM 17.36.601.

(4) The applicant shall provide for a replacement area for each existing system. Unless a waiver is approved by the department pursuant to ARM 17.36.601, replacement areas must comply with the requirements of this subchapter.

(5) Existing cesspools and pit privies must be replaced by a system approved under this subchapter. Holding tanks may be allowed by waiver pursuant to ARM 17.36.321(3)(g)(ii). Existing sealed pit privies must also be replaced, unless they are at a facility owned and operated by a local, state, or federal unit of government, or are at a facility where use of a sealed pit privy is authorized by the Department of Public Health and Human Services.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, MCA
History: NEW, 2000 MAR p. 3371, Eff. 12/8/00; AMD, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2016 MAR p. 722, Eff. 4/23/16; AMD, 2023 MAR p. 324, Eff. 4/15/23.

Mont. Admin. R. 17.36.330 Water Supply Systems--General

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, MCA
History: NEW, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2003 MAR p. 221, Eff. 2/14/03; AMD, 2014 MAR p. 2098, Eff. 9/19/14; AMD, 2018 MAR p. 1588, Eff. 8/11/18; REP, 2023 MAR p. 324, Eff. 4/15/23.

Mont. Admin. R. 17.36.331 Water Supply Systems: Water Quality

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, MCA
History: NEW, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2014 MAR p. 2098, Eff. 9/19/14; REP, 2023 MAR p. 324, Eff. 4/15/23.

Mont. Admin. R. 17.36.332 Water Supply Systems: Water Quantity and Dependability

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, MCA
History: NEW, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2003 MAR p. 221, Eff. 2/14/03; AMD, 2014 MAR p. 2098, Eff. 9/19/14; REP, 2023 MAR p. 324, Eff. 4/15/23.

Mont. Admin. R. 17.36.333 Water Supply Systems: Design and Construction

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, MCA
History: NEW, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2003 MAR p. 221, Eff. 2/14/03; AMD, 2014 MAR p. 2098, Eff. 9/19/14; REP, 2023 MAR p. 324, Eff. 4/15/23.

Mont. Admin. R. 17.36.334 Water Supply Systems: Operation and Maintenance, Ownership, Easements, and Agreements

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, MCA
History: NEW, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2014 MAR p. 2098, Eff. 9/19/14; AMD, 2016 MAR p. 722, Eff. 4/23/16; AMD, 2018 MAR p. 1588, Eff. 8/11/18; REP, 2023 MAR p. 324, Eff. 4/15/23.

Mont. Admin. R. 17.36.335 Water Supply Systems: Existing Systems

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, MCA
History: NEW, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2014 MAR p. 2098, Eff. 9/19/14; AMD, 2018 MAR p. 1588, Eff. 8/11/18; REP, 2023 MAR p. 324, Eff. 4/15/23.

Mont. Admin. R. 17.36.336 Alternate Water Supply Systems

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, MCA
History: NEW, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2003 MAR p. 221, Eff. 2/14/03; AMD, 2006 MAR p. 528, Eff. 2/24/06; AMD, 2014 MAR p. 2098, Eff. 9/19/14; REP, 2023 MAR p. 324, Eff. 4/15/23.

Mont. Admin. R. 17.36.340 Lot Sizes

(1) This rule sets out, for purposes of the review of proposed subdivisions, the requirements for minimum lot or parcel size.

(2) Subject to (4), each proposed new subdivision lot, area proposed for condominiums, or area proposed for permanent multiple spaces for recreational camping vehicles or mobile homes, must be of sufficient size to satisfy all of the following criteria:

(a) facilities on each lot must comply with the setback requirements in ARM 17.36.323, except that setbacks for existing sewage systems may be waived pursuant to ARM 17.36.327(3);

(b) drainfield mixing zones must be located in compliance with ARM 17.36.122;

(d) as shown on the lot layout document, each lot must have adequate space for the sewage treatment system, drainfield replacement area, water supply, and all permanent structures including, but not limited to, driveways, houses, garages, ditches, service lines, easements, and utilities. Easements may be used to satisfy this requirement.

(3) For lots created before July 1, 1973, and for which sanitary restrictions are proposed to be lifted, the requirements of (2)(a) and (d) apply, subject to the provisions of ARM 17.36.117(1).

(4) The reviewing authority may require lot sizes larger than those allowable under (2) if necessary to protect human health or water quality.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, MCA
History: NEW, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2003 MAR p. 221, Eff. 2/14/03; AMD, 2003 MAR p. 1804, Eff. 8/15/03; AMD, 2013 MAR p. 265, Eff. 3/1/13; AMD, 2014 MAR p. 2098, Eff. 9/19/14; AMD, 2023 MAR p. 324, Eff. 4/15/23.

Subchapter 17.36.6 Subdivision Waivers and Exclusions

Mont. Admin. R. 17.36.601 Waivers--Deviations

(1) The department may grant a waiver from a requirement of this subchapter only if a waiver is specifically authorized for that requirement and the applicant demonstrates that the conditions in the specific waiver authorization and in (3) are met.

(2) The department may grant a deviation from a requirement of department circulars only if the applicant demonstrates to the department that all specific waiver conditions in the applicable circular and the conditions in (3) are met.

(3) A request for a waiver or deviation must be in writing and must be accompanied by information substantiating the request and by the appropriate fee. The applicant shall also demonstrate that the waiver or deviation:

(a) would be unlikely to cause pollution of state water in violation of 75-5-605 , MCA;

(b) would protect the quality and potability of water for drinking water supplies and domestic uses and would protect the quality of water for other beneficial uses, including those uses specified in 76-4-101 , MCA; and

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-125, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 11/3/75; AMD, Eff. 5/6/76; AMD, 1977 MAR p. 746, Eff. 10/25/77; AMD, 1992 MAR p. 2145, Eff. 9/25/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 1465, Eff. 5/17/02.

Mont. Admin. R. 17.36.602 Subdivisions in Master Planned Area

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-125, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 11/3/75; AMD, Eff. 5/6/76; AMD, 1977 MAR p. 746, Eff. 10/25/77; AMD, 1984 MAR p. 1027, Eff. 7/13/84; AMD, 1992 MAR p. 2145, Eff. 9/25/92; TRANS, from DHES, 1996 MAR p. 1499; REP, 2002 MAR p. 1465, Eff. 5/17/02.

Mont. Admin. R. 17.36.605 Exclusions

(1) The exclusions in this rule are in addition to the exclusions set out in 76-4-111 and 76-4-125(2), MCA. A subdivision excluded under 76-4-111 or 76-4-125(2), MCA, is subject to review under 76-4-130, MCA, if the subdivision causes facilities previously approved under Title 76, chapter 4, part 1, MCA, to deviate from the conditions of approval.

(2) The reviewing authority may exclude the following parcels created by divisions of land from review under Title 76, chapter 4, part 1, MCA, unless the exclusion is used to evade the provisions of that part:

(a) a parcel that has no facilities for water supply, wastewater disposal, storm drainage, or solid waste disposal, if no facilities will be constructed on the parcel;

(b) a parcel that has a previous approval issued under Title 76, chapter 4, part 1, MCA, if:

(i) no facilities other than those previously approved exist or will be constructed on the parcel; and

(ii) the division of land will not cause approved facilities to deviate from the conditions of approval, in violation of 76-4-130, MCA;

(c) a parcel that will be affected by a proposed boundary line adjustment, if the parcel has existing facilities for water supply, wastewater disposal, storm drainage, or solid waste disposal that were not subject to review, and have not been reviewed, under Title 76, chapter 4, part 1, MCA, and if:

(i) no facilities, other than those in existence prior to the boundary line adjustment, or those that were previously approved as replacements for the existing facilities, will be constructed on the parcel;

(ii) existing facilities on the parcel complied with state and local laws and regulations, including permit requirements, which were applicable at the time of installation; and

(iii) the local health officer determines that existing facilities are adequate for the existing use. As a condition of the exemption, the local health officer may require evidence that:

(A) existing septic tanks have been pumped within the previous three years;

(B) the parcel includes acreage or features sufficient to accommodate a replacement drainfield;

(D) adequate storm drainage and solid waste disposal are provided.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-125, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 11/3/75; AMD, Eff. 5/6/76; AMD, 1977 MAR p. 746, Eff. 10/25/77; AMD, 1984 MAR p. 1027, Eff. 7/13/84; AMD, 1992 MAR p. 2145, Eff. 9/25/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2013 MAR p. 265, Eff. 3/1/13; AMD, 2014 MAR p. 2098, Eff. 9/19/14; AMD, 2023 MAR p. 1861, Eff. 12/23/23.

Mont. Admin. R. 17.36.606 Exclusions--Compliance with Public Water Supply Act

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-125, MCA
History: Eff. 12/31/72; AMD, Eff. 11/4/73; AMD, Eff. 11/3/75; AMD, Eff. 5/6/76; AMD, 1977 MAR p. 746, Eff. 10/25/77; AMD, 1984 MAR p. 1027, Eff. 7/13/84; TRANS, from DHES, 1996 MAR p. 1499; REP, 2002 MAR p. 1465, Eff. 5/17/02.

Mont. Admin. R. 17.36.610 Certifying Authority Under 76-4-127, Mca

(1) A county water and/or sewer district is eligible to be a certifying authority under 76-4-127, MCA, if the district:

(a) is incorporated under Title 7, chapter 13, MCA;

(b) is in compliance with Title 75, chapters 5 and 6, MCA;

(c) has an on-staff or retained professional engineer to certify compliance with department design standards for water, wastewater, and storm water facilities; and

(d) has a utility master plan approved by the department within the past 10 years that addresses capacity of the water and wastewater systems to serve additional development in compliance with department design circulars.

(2) A municipality is eligible to be a certifying authority under 76-4-127, MCA, if the municipality:

(a) is in compliance with Title 75, chapters 5 and 6, MCA;

(b) has an on-staff or retained professional engineer to certify compliance with department design standards for water, wastewater, and storm water facilities; and

(c) when applicable, certifies the additional connections are subject to the provisions of Title 76, chapter 3, MCA, and the municipality is in compliance with a development plan approved by the department pursuant to ARM 17.38.101(20).

(3) A municipality that has been authorized to act as a certifying authority under this rule may be authorized to approve requests for a subdivision exemption under 76-4-125(1)(d), MCA, if the on-staff or retained professional engineer has completed an annual training program conducted by the department.

History

Authorizing statute(s): 76-4-104, MCA
Implementing statute(s): 76-4-104, 76-4-125, 76-4-127, MCA
History: NEW, 2020 MAR p. 319, Eff. 3/1/20; AMD, 2023 MAR p. 1861, Eff. 12/23/23.

Mont. Admin. R. 17.36.611 Subdivisions Exempt from Mepa Review

(1) A department action under this subchapter is exempt from conducting an environmental review under Title 75, chapter1, parts 1 and 2, MCA, if the subdivision meets the criteria in 76-4-136, MCA.

(2) To qualify for this exemption, the applicant must submit a detailed explanation and supporting documentation and maps that demonstrate compliance with the criteria in 76-4-136, MCA.

History

Authorizing statute(s): 76-4-136, MCA
Implementing statute(s): 76-4-136, MCA
History: NEW, 2023 MAR p. 1861, Eff. 12/23/23.

Subchapter 17.36.8 Subdivision Review Fees

Mont. Admin. R. 17.36.801 Purpose

(1) The purpose of this subchapter is to establish a schedule of fees to be paid to the department for the local and state review of subdivision applications. The schedule consists of three sections relating to the collection of fees for the review of:

(a) divisions of land;

(b) condominiums; and

(2) The fees are based on the complexity of the subdivision. Factors determining complexity include:

(a) the number of lots;

(b) the type of water system to serve the development;

(d) the degree of environmental research necessary to supplement the review procedure.

History

Authorizing statute(s): 76-4-105, MCA
Implementing statute(s): 76-4-105, MCA
History: NEW, EMERG, Eff. 5/15/75; NEW, Eff. 9/5/75; AMD, Eff. 5/6/76; AMD, EMERG, 1977 MAR p. 536, Eff. 9/6/77; AMD, 1977 MAR p. 750, Eff. 10/25/77; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1998 MAR p. 646, Eff. 3/13/98; AMD, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2026 MAR, Notice No. 2026-85, Eff. 9/26/26.

Mont. Admin. R. 17.36.802 Fee Schedules

(1) An applicant for approval under this subchapter shall pay the following fees:

(a) type of lots:

(i) subdivision lot or parcel or townhouse $ 160

(ii) condominium/trailer court/recreational camping vehicle campground unit or space $ 60

(iii) resubmittal fee - previously approved lot, boundaries are not changed per lot or parcel $ 90

(b) type of water system:

(i) individual or shared water supply system (existing, previously approved, and proposed)

(A) per unit $110

(B) source-specific well isolation zone, each $250

(ii) multiple-user system (non-public):

(A) - each new system $ 400 (plus $ 130/hour for review in excess of four hours)

(B) - new distribution system design per lineal foot $ 0.30

(iii) public water system:

(A) new system per component per ARM 17.38.106 fee schedule

(i) existing or previously approved systems per unit $ 90

(ii) new gravity fed system per drainfield $ 120

(iii) new dosed system, elevated sand mound, ET systems, intermittent sand filter, ETA systems, recirculating sand filter, recirculating trickling filter, aerobic treatment unit, nutrient removal, and whole house subsurface drip irrigation systems:

(A) per design $ 180 (plus $ 130/hour for review in excess of two hours)

(B) per drainfield $ 120

(iv) gray water reuse systems, holding tanks, sealed pit privies, unsealed pit privies, seepage pits, waste segregation, experimental systems $ 120 (plus $ 130/hour in excess of two hours)

(v) multiple-user wastewater system (non-public):

(A) - new collection system design per lineal foot $ 0.30

(B) - connection to collection system per lot or unit $ 90

(vi) new public wastewater system per component per ARM 17.38.106 fee schedule

(d) other:

(i) deviation from circular per request or design $ 250 (plus $ 130/hour for review in excess of two hours)

(ii) waiver from rule per request $ 250 (plus $ 130/hour for review in excess of two hours)

(iii) reissuance of original approval statement per request $ 70

(iv) review of revised lot layout document per request $ 160

(v) municipal facilities exemption checklist (former master plan exemption) per application $ 120

(vi) nonsignificance determinations/categorical exemption reviews:

(A) - individual/shared systems per drainfield $ 70 (plus $ 130/hour for review in excess of two hours)

(B) - multiple-user non-public systems per lot or structure $ 40 (plus $ 130/hour for review in excess of two

hours)

(D) - public systems per drainfield per ARM 17.38.106 fee schedule

(vii) storm drainage plan review:

(A) - Circular DEQ-8 simple plan review per project $ 130

(B) - Circular DEQ-8 standard plan review:

(I) per project $ 220

(II) plus per lot $ 50 (plus $ 130/hour for review in excess of 30 minutes per lot)

(viii) preparation of environmental assessments/environmental impact statements/MEPA exemptions: actual cost

(ix) review for compliance with ARM 17.30.718 $900.00 (plus $130/hour for review in excess of 6 hours).

History

Authorizing statute(s): 76-4-105, MCA
Implementing statute(s): 76-4-105, MCA
History: NEW, EMERG, Eff. 5/15/75; NEW, Eff. 9/5/75; AMD, Eff. 5/6/76; AMD, EMERG, 1977 MAR p. 536, Eff. 9/6/77; AMD, 1977 MAR p. 750, Eff. 10/25/77; AMD, 1980 MAR p. 2967, Eff. 11/29/80; AMD, 1981 MAR p. 1288, Eff. 10/30/81; AMD, 1983 MAR p. 851, Eff. 7/15/83; AMD, 1984 MAR p. 1027, Eff. 7/13/84; AMD, 1992 MAR p. 2145, Eff. 9/25/92; AMD, 1993 MAR p. 542, Eff. 4/16/93; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1998 MAR p. 646, Eff. 3/13/98; AMD, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2009 MAR p. 2477, Eff. 12/25/09; AMD, 2013 MAR p. 1827, Eff. 10/18/13; AMD, 2014 MAR p. 2098, Eff. 9/19/14; AMD, 2016 MAR p. 722, Eff. 4/23/16; AMD, 2020 MAR p. 319, Eff. 3/1/20; AMD, 2023 MAR p. 1861, Eff. 12/23/23.

Mont. Admin. R. 17.36.804 Disposition of Fees

(1) The department shall use the fees collected pursuant to ARM 17.36.802 to fund the following functions:

(a) review performed pursuant to subchapter 1 to determine whether:

(i) the application complies with subchapter 3;

(ii) to grant a waiver or deviation pursuant to ARM 17.36.601; or

(iii) the proposed subdivision is excluded from review pursuant to ARM 17.36.605;

(b) review performed pursuant to ARM 17.30.706 to determine whether significant degradation will occur;

(d) preparation of an environmental assessment pursuant to ARM 17.4.609 and 17.4.610, including costs of gathering data and information, analysis, printing, distribution, and hearing costs;

(e) subject to 75-1-205, MCA, preparation of an environmental impact statement pursuant to ARM 17.4.615 through 17.4.629, including costs of analysis, printing, distribution, and hearing costs, and excluding the costs of information and data gathering which are subject to fee assessment pursuant to 75-1-202, MCA;

(f) reimbursement of local government entities as provided in (2) and (3); and

(g) conducting inspections and enforcement activities pursuant to 76-4-107 and 76-4-108, MCA.

(2) The department shall reimburse local governing bodies under department contract to review subdivisions as follows:

(a) for subdivisions with individual wastewater treatment systems, the department shall reimburse $35 per lot plus 80 percent of the review fee under ARM 17.36.802 for the following actions performed by the local governing body:

(i) each review of water, storm water, and wastewater systems;

(ii) nonsignificance determinations and categorical exemptions; and

(iii) review of revised lot layout documents.

(3) The department may reimburse counties that have not been delegated review authority but that perform review services including, but not limited to, inspection of proposed and approved facilities and assistance to persons in the application procedure as follows:

(a) $35 per parcel for subdivisions with individual or shared wastewater treatment systems. A site evaluation must accompany the submittal.

(4) Funds must be reimbursed to the local governing bodies quarterly, based upon the fiscal year starting on July 1 and ending on June 30 of each year.

History

Authorizing statute(s): 76-4-105, MCA
Implementing statute(s): 76-4-105, MCA
History: NEW, EMERG, Eff. 5/15/75; NEW, Eff. 9/5/75; AMD, Eff. 5/6/76; AMD, EMERG, 1977 MAR p. 536, Eff. 9/6/77; AMD, 1977 MAR p. 750, Eff. 10/25/77; AMD, 1980 MAR p. 2967, Eff. 11/29/80; AMD, 1981 MAR p. 1288, Eff. 10/30/81; AMD, 1984 MAR p. 1027, Eff. 7/13/84; AMD, 1992 MAR p. 2145, Eff. 9/25/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1998 MAR p. 646, Eff. 3/13/98; AMD, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2014 MAR p. 2098, Eff. 9/19/14; AMD, 2016 MAR p. 722, Eff. 4/23/16; AMD, 2018 MAR p. 1588, Eff. 8/11/18.

Mont. Admin. R. 17.36.805 Changes in Subdivision

(1) If, during the review process, or after approval, an applicant proposes to change the water supply system, wastewater treatment system, storm water drainage plan, or solid waste disposal plan of a subdivision or if such changes are necessitated by a department determination that proposed plans are inadequate, such changes must be submitted to the reviewing authority for review and are subject to the resubmittal review fee and fees for the components proposed for change as listed in ARM 17.36.802.

(2) Other changes for plan components not listed in ARM 17.36.802 are also subject to additional review fees. The department shall determine the exact amount of the additional fee based on how much review time the change(s) require. Review time must be charged at the rate of $105 per hour with a minimum charge of $105.

History

Authorizing statute(s): 76-4-105, MCA
Implementing statute(s): 76-4-105, MCA
History: NEW, EMERG, Eff. 5/15/75; NEW, Eff. 9/5/75; AMD, Eff. 5/6/76; AMD, EMERG, 1977 MAR p. 536, Eff. 9/6/77; AMD, 1977 MAR p. 750, Eff. 10/25/77; AMD, 1984 MAR p. 1027, Eff. 7/13/84; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1998 MAR p. 646, Eff. 3/13/98; AMD, 2002 MAR p. 1465, Eff. 5/17/02; AMD, 2009 MAR p. 2477, Eff. 12/25/09; AMD, 2013 MAR p. 1827, Eff. 10/18/13

Subchapter 17.36.9 On-Site Subsurface Wastewater Treatment Systems

Mont. Admin. R. 17.36.901 Scope

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-5-201, MCA
Implementing statute(s): 75-5-305, MCA
History: NEW, 1992 MAR p. 2148, Eff. 9/25/92; TRANS, from DHES, 1996 MAR p. 1499; REP, 2003 MAR p. 222, Eff. 2/14/03.

Mont. Admin. R. 17.36.902 General Requirements

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-5-201, MCA
Implementing statute(s): 75-5-305, MCA
History: NEW, 1992 MAR p. 2148, Eff. 9/25/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2000 MAR p. 3398, Eff. 12/8/00; REP, 2003 MAR p. 222, Eff. 2/14/03.

Mont. Admin. R. 17.36.903 Definitions

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-5-201, MCA
Implementing statute(s): Sec. 75-5-305, MCA
History: NEW, 1992 MAR p. 2148, Eff. 9/25/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2000 MAR p. 3398, Eff. 12/8/00; REP, 2003 MAR p. 222, Eff. 2/14/03.

Mont. Admin. R. 17.36.907 Technical Requirements

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-5-201, MCA
Implementing statute(s): 75-5-305, MCA
History: NEW, 1992 MAR p. 2148, Eff. 9/25/92; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2000 MAR p. 3398, Eff. 12/8/00; REP, 2003 MAR p. 222, Eff. 2/14/03.

Mont. Admin. R. 17.36.909 Variance Appeals to the Department

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED

History

Authorizing statute(s): 75-5-201, MCA
Implementing statute(s): 75-5-305, MCA
History: NEW, 1992 MAR p. 2148, Eff. 9/25/92; TRANS, from DHES, 1996 MAR p. 1499; REP, 2003 MAR p. 222, Eff. 2/14/03.

Mont. Admin. R. 17.36.910 Local Variances

Publisher status: INEFFECTIVE (not currently effective).

IS REPEALED SUBSURFACE WASTEWATER TREATMENT

History

Authorizing statute(s): 75-5-201, MCA
Implementing statute(s): 75-5-305, MCA
History: NEW, 1992 MAR p. 2148, Eff. 9/25/92; TRANS, from DHES, 1996 MAR p. 1499; REP, 2003 MAR p. 222, Eff. 2/14/03.

Mont. Admin. R. 17.36.911 Scope

(1) These rules are intended to protect the public health, safety, and welfare by setting forth minimum standards for the construction, alteration, repair, extension, and use of wastewater treatment systems within the state.

(2) Under 50-2-116, MCA, local boards of health must adopt regulations no less stringent than this subchapter 9 for wastewater treatment systems for private and public buildings and facilities.

History

Authorizing statute(s): 75-5-201, MCA
Implementing statute(s): 75-5-305, MCA
History: NEW, 2003 MAR p. 222, Eff. 2/14/03; AMD, 2009 MAR p. 1786, Eff. 10/16/09.

Mont. Admin. R. 17.36.912 Definitions

For purposes of this subchapter, the following definitions apply:

(1) "Absorption bed" means an absorption system that consists of excavations greater than three feet in width where the distribution system is laid for the purpose of distributing pretreated waste effluent into the ground.

(2) "Absorption trench" means an absorption system that consists of excavations less than or equal to three feet in width where the distribution system is laid for the purpose of distributing pretreated waste effluent into the ground.

(4) "Cesspool" means a seepage pit without a septic tank to pretreat the wastewater.

(5) "Commercial unit" means the area under one roof that is occupied by a business or other nonresidential use. A building housing two businesses is considered two commercial units.

(6) "Department" means the Montana Department of Environmental Quality.

(7) "Drainage way" means a course or channel along which storm water moves in draining an area.

(8) "Experimental system" means a wastewater treatment system for which specific design standards are not provided in Department Circular DEQ-4, DEQ-2, or this subchapter.

(9) "Failed system" means a wastewater treatment and/or disposal system that no longer provides the treatment and/or disposal for which it was intended, or violates any of the requirements of ARM 17.36.914.

(10) "Floodplain" means the area adjoining the watercourse or drainway that would be covered by a flood that is expected to recur on the average of once every 100 years or by a flood that has a one percent chance of occurring in any given year. The floodplain consists of the floodway and the flood fringe, as defined in ARM Title 36, chapter 15.

(11) "Gray water" means wastewater that is collected separately from a sewage flow and that does not contain industrial chemicals, hazardous wastes, or wastewater from toilets.

(12) "Ground water observation well" means a well installed for the purpose of measuring the depth from the natural ground surface to the seasonally high ground water.

(13) "Holding tank" means a watertight receptacle that receives wastewater for retention and does not, as part of its normal operation, dispose or treat the wastewater. The term does not include surge tanks used in a gray water irrigation system if the system meets the requirements of ARM 17.36.919.

(14) "Impervious layer" means any layer of material in the soil profile that has a percolation rate slower than 240 minutes per inch.

(15) "Individual wastewater system" means a wastewater system that serves one living unit or commercial unit. The term does not include a public sewage system as defined in 75-6-102, MCA.

(16) "Limiting layer" means bedrock, an impervious layer, or seasonally high ground water.

(17) "Living unit" means the area under one roof that can be used for one residential unit and which has facilities for sleeping, cooking, and sanitation. For example, a duplex is considered two living units.

(18) "Multiple-user wastewater system" means a wastewater system that serves or is intended to serve more than two living units or commercial units or a combination, but which is not a public sewage system as defined in 75-6-102, MCA. In estimating the population that will be served by a proposed residential system, the reviewing authority shall multiply the number of living units by 2.5.

(19) "Municipal" means pertaining to an incorporated city or town.

(20) "Percolation test" means a standardized test used to assess the infiltration rate of soils, performed in accordance with Appendix A in Department Circular DEQ-4.

(21) "Piped water supply" means a plumbing system that conveys water into a structure from any source including, but not limited to, wells, cisterns, springs, or surface water.

(22) "Pit privy" means a pit that receives undiluted, non-water-carried toilet wastes.

(23) "Replacement system" means a wastewater treatment system proposed to replace a failed, failing, or contaminating system.

(24) "Reviewing authority" means a local board of health or local health officer, as those terms are defined in 50-2-101, MCA, or their designees.

(25) "Sealed pit privy" means an enclosed receptacle designed to receive non-water-carried toilet wastes into a watertight vault.

(26) "Seasonally high ground water" means the depth from the natural ground surface to the upper surface of the zone of saturation, as measured in an unlined hole or perforated monitoring well during the time of the year when the water table is the highest. The term includes the upper surface of a perched water table.

(27) "Seepage pit" means a covered underground receptacle that receives wastewater after primary treatment and allows the wastewater to seep into the surrounding soil.

(28) "Septic tank" means a wastewater settling tank in which settled sludge is in immediate contact with the wastewater flowing through the tank while the organic solids are decomposed by anaerobic action.

(29) "Shared wastewater system" means a wastewater system that serves or is intended to serve two living units or commercial units or a combination of both. The term does not include a public sewage system as defined in 75-6-102, MCA.

(30) "Site evaluation" means an evaluation to determine if a site is suitable for the installation of a subsurface wastewater treatment system.

(31) "Slope" means the rate that a ground surface declines in feet per 100 feet. It is expressed as percent of grade.

(32) "Soil profile" means a description of the soil strata to a depth of eight feet using the United States Department of Agriculture (USDA) soil classification system method in Appendix B, Department Circular DEQ-4.

(33) "Subsurface wastewater treatment system" means the process of wastewater treatment in which the effluent is applied below the soil surface or into a mound by an approved distribution system.

(34) "Variance" means the grant, pursuant to ARM 17.36.922, by the reviewing authority of an exception to the minimum requirements set out in this subchapter or Department Circular DEQ-4.

(35) "Wastewater" means water-carried wastes. For purposes of these rules, wastewater does not include storm water. The term includes, but is not limited to, the following:

(a) household, commercial, or industrial wastes;

(b) chemicals;

(d) animal and vegetable matter in suspension or solution.

(36) "Wastewater treatment system" or "wastewater disposal system" means a system that receives wastewater for purposes of treatment, storage, or disposal. The term includes, but is not limited to, all disposal methods described in Department Circular DEQ-4.

History

Authorizing statute(s): 75-5-201, MCA
Implementing statute(s): 75-5-305, MCA
History: NEW, 2003 MAR p. 222, Eff. 2/14/03; AMD, 2004 MAR p. 2579, Eff. 10/22/04; AMD, 2009 MAR p. 1786, Eff. 10/16/09; AMD, 2014 MAR p. 1824, Eff. 8/8/14.

Mont. Admin. R. 17.36.913 General Requirements

(1) No person may construct, alter, extend, or utilize a wastewater treatment or disposal system that may:

(a) contaminate any actual or potential drinking water supply;

(b) cause a public health hazard as a result of access to insects, rodents, or other possible carriers of disease to humans;

(d) violate any law or regulation governing water pollution or wastewater treatment and disposal, including the rules contained in this subchapter;

(e) pollute or contaminate state waters, in violation of 75-5-605 , MCA;

(f) degrade state waters unless authorized pursuant to 75-5-303 , MCA; or

(g) cause a nuisance due to odor, unsightly appearance or other aesthetic consideration.

History

Authorizing statute(s): 75-5-201, MCA
Implementing statute(s): 75-5-305, MCA
History: NEW, 2003 MAR p. 222, Eff. 2/14/03.

Mont. Admin. R. 17.36.914 Wastewater Treatment Systems - Technical Requirements

(1) Except as provided in ARM 17.36.916, all wastewater treatment systems must be designed and constructed in accordance with the applicable requirements in ARM 17.36.913 and in Department Circular DEQ-4.

(2) Department Circular DEQ-4, 2023 edition, which sets forth standards for subsurface sewage treatment systems, and Department Circular DEQ-2, 2016 edition, which sets forth design standards for public sewage systems, are adopted and incorporated by reference for purposes of this subchapter. All references to these documents in this subchapter refer to the editions set out above. Copies are available from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

(3) Wastewater treatment systems must be located to maximize the vertical separation distance from the bottom of the absorption trench to the seasonally high ground water level, bedrock, or other limiting layer, but under no circumstances may this vertical separation be less than four feet of natural soil. For elevated sand mounds constructed in accordance with Department Circular DEQ 4, the depth of the key may be included as part of the separation distance between the infiltrative surface and a limiting layer.

(4) A replacement area or replacement plan must be provided for each new or expanded wastewater treatment system. Replacement areas and plans must comply with the requirements of this subchapter.

(5) A site evaluation must be performed for each wastewater treatment system. As determined by the reviewing authority, the site evaluation may include the following:

(a) soil descriptions for proposed wastewater treatment systems. Soil descriptions must be based on data obtained from test holes within 25 feet of each wastewater treatment location. Test holes must be at least eight feet in depth unless a limiting layer precludes digging to eight feet;

(b) percolation test results within the boundaries of the proposed wastewater treatment system; and

(c) if the applicant or the reviewing authority has reason to believe that ground water will be within seven feet of the surface at any time of the year within the boundaries of the system, the applicant must provide data to demonstrate that the minimum separation distance required by (3) between the absorption trench bottom and the seasonally high ground water level can be maintained. The reviewing authority may require the applicant to install ground water observation wells to a depth of at least eight feet to determine the seasonally high ground water level. The applicant shall monitor the observation wells through the seasonally high ground water period. Measurement must occur for a long enough period of time to detect a peak and a sustained decline in the ground water level.

(6) If a department-approved public collection and treatment system is readily available within a distance of 200 feet of the property line for connection to a new source of wastewater, or as a replacement for a failed system, and the owner or managing entity of the public collection and treatment system approves the connection, wastewater must be discharged to the public system. For purposes of this rule:

(a) a public system is not "readily available" if there is evidence demonstrating that connection to the system is physically or economically impractical, or that easements cannot be obtained; and

(b) a connection is "economically impractical" if the cost of connection to the public system equals or exceeds three times the cost of installation of an approvable system on the site.

(7) Wastewater treatment systems, except for sealed components that are designed, constructed, and tested as set out in ARM 17.36.918, may not be located in drainage ways.

History

Authorizing statute(s): 75-5-201, MCA
Implementing statute(s): 75-5-305, MCA
History: NEW, 2003 MAR p. 222, Eff. 2/14/03; AMD, 2004 MAR p. 2579, Eff. 10/22/04; AMD, 2009 MAR p. 1786, Eff. 10/16/09; AMD, 2012 MAR p. 2067, Eff. 10/12/12; AMD, 2013 MAR p. 2081, Eff. 11/15/13; AMD, 2016 MAR p. 1008, Eff. 6/4/16; AMD, 2023 MAR p. 324, Eff. 4/15/23; AMD, 2023 MAR p. 1861, Eff. 12/23/23.

Mont. Admin. R. 17.36.916 Absorption Beds, Holding Tanks, Seepage Pits, Pit Privies, Cesspools - Technical Requirements and Prohibitions

(1) The wastewater treatment systems described in (3) through (7) may be allowed only if the reviewing authority determines that:

(a) site constraints prevent the applicant from constructing any system described in Department Circular DEQ-4;

(b) all off-site treatment alternatives have been considered and are infeasible;

(d) all other requirements in this subchapter applicable to the proposed system are met.

(2) Applications for permits for wastewater treatment systems described in (3) through (7) must include a demonstration that no other alternatives to wastewater disposal are feasible.

(3) Absorption beds may be used for replacement systems only and may not be constructed in unstabilized fill. Absorption beds must also meet the design and construction requirements in Department Circular DEQ-4.

(4) Seepage pits may be used for replacement systems only, and only when no other means of treatment and disposal is available.

(a) Seepage pits must have a minimum vertical separation of 25 feet between the bottom of the pit and ground water.

(b) Permit applications for seepage pits must include plans for the proposed pit. Seepage pits must meet the design and construction requirements in Department Circular DEQ-4.

(5) Holding tank systems may be approved only if the facility to be served is for seasonal use.

(a) For purposes of this rule "seasonal use" means use for not more than a total of four months (120 days) during any calendar year. Permit applications for holding tanks must show that the property use conforms to the "seasonal use" limitation or that a variance has been granted.

(b) Holding tanks must meet the design and construction requirements in Department Circular DEQ-4.

(c) Permit applications for holding tanks must include plans for the proposed holding tank system. The plans must include the following information:

(i) the method for monitoring tank levels;

(ii) the method for waterproofing the tank;

(iii) a maintenance plan, which must include annual water tightness testing and periodic pumping by a licensed septic tank pumper; and

(iv) the method for tank stabilization if seasonal high ground water is expected to be within 12 inches of tank's base.

(6) Sealed pit privy systems may be approved only if the facility to be served does not have a piped water supply, and the facility is a seasonal-use recreational site.

(a) Permit applications for sealed pit privies must include plans for the proposed sealed pit. Sealed pit privy systems must meet the design and construction requirements in Department Circular DEQ-4.

(7) Unsealed pit privies may be approved only for seasonal use in remote locations that are not accessible to septic tank pumpers.

(8) New construction or alteration of cesspools is prohibited.

History

Authorizing statute(s): 75-5-201, MCA
Implementing statute(s): 75-5-305, MCA
History: NEW, 2003 MAR p. 222, Eff. 2/14/03; AMD, 2004 MAR p. 2579, Eff. 10/22/04; AMD, 2009 MAR p. 1786, Eff. 10/16/09.

Mont. Admin. R. 17.36.918 Horizontal Setbacks, Floodplains

(1) Minimum horizontal setback distances (in feet) are as follows:

TABLE 1

SETBACK DISTANCES

(in feet)

From | To Sealed components (1) and other components (2) | To Absorption systems (3) Public or multiple-user drinking water wells/springs | 100 | 100 Individual and shared drinking water supply wells | 50 (9) | 100 (9) Other wells (4) | 50 | 100 Suction lines | 50 | 100 Cisterns | 25 | 50 Roadcuts, escarpments | 10 (5) | 25 Slopes > 35 percent (6) | 10 (5) | 25 Property boundaries (7) | 10 | 10 Subsurface drains | 10 | 10 Water mains (8) | 10 | 10 Drainfields/sand mounds (3) | 10 | - Foundation walls | 10 | 10 Surface water, springs | 50 | 100 Floodplains | --Sealed components - no setbacks (1) Other components - 100 (2) | 100

FOOTNOTES

(1) Sealed components include holding tanks, sealed pit privies, and the components addressed in Department Circular DEQ-4, Chapters 4 and 5. Holding tanks and sealed pit privies must be located at least ten feet outside the floodplain or any openings must be at least two feet above the floodplain elevation.

(2) Other components include the components addressed in Department Circular DEQ-4, Chapter 7.

(3) Absorption systems include the systems addressed in Department Circular DEQ-4, Chapters 6 and 8 subject to the limitations in ARM 17.36.916.

(4) Other wells include, but are not limited to, irrigation and stock watering, but do not include observation wells as addressed in Department Circular DEQ-4.

(5) Sewer lines and sewer mains may be located in roadways and on steep slopes if the lines and mains are safeguarded against damage.

(6) Down-gradient of the sealed component, other component, or drainfield/sand mound.

(7) Easements may be used to satisfy the setback to property boundaries.

(8) Sewer mains that cross water mains must be laid with a minimum vertical separation distance of 18 inches between the mains.

(9) This setback applies unless the department has approved a smaller source specific well isolation zone under Circular DEQ-20, Standard 1.8. In that case, the source specific well isolation zone distance applies.

(2) The reviewing authority may require greater horizontal separation distances than those specified in Table 1, if it determines that site conditions or water quality requirements indicate a need for the greater distance.

(3) If the floodplain has not been designated and its level relative to a wastewater system is in question, the applicant shall submit evidence adequate to allow the reviewing authority to establish the location of the floodplain.

(4) Sealed components of wastewater treatment systems, if located within a 100-year floodplain, must be designed and constructed to prevent surface water and ground water inundation, and pump lines must be pressure tested prior to use. Pipes must have a pressure rating of at least two times the operating pressure or pump shutoff pressure, whichever is greater. Pipes must be tested at 1 1/2 times the operating pressure or pump shutoff pressure, whichever is greater, or must be tested as specified by the manufacturer.

(5) The setbacks in this rule are not applicable to gray water irrigation systems that meet the requirements of ARM 17.36.919.

(6) On and after October 1, 2025, the department will approve a proposed drainfield mixing zone only if the proposed drainfield mixing zone meets the requirements of ARM 17.36.122(6)(a).

History

Authorizing statute(s): 75-5-201, MCA
Implementing statute(s): 75-5-305, MCA
History: NEW, 2003 MAR p. 222, Eff. 2/14/03; AMD, 2009 MAR p. 1786, Eff. 10/16/09; AMD, 2014 MAR p. 1824, Eff. 8/8/14; AMD, 2023 MAR p. 1861, Eff. 12/23/23; AMD, 2026 MAR, Notice No. 2026-198, Eff. 9/5/26.

Mont. Admin. R. 17.36.919 Gray Water Reuse

(1) Except as provided in (2) and (3), treatment and disposal of gray water must be by means of a wastewater treatment system that meets all of the requirements of this subchapter and applicable department circulars. Gray water reuse within a building or residence for uses such as toilet flushing is permitted without a permit under this subchapter, provided that the gray water is ultimately disposed of by means of a wastewater treatment system that is in compliance with this subchapter and applicable department circulars.

(2) Gray water may be used for irrigation as provided in (3). If a gray water irrigation system meets all of the requirements in (3), the system is not subject to the requirements of ARM 17.36.914, 17.36.916, and 17.36.918.

(3) Gray water that is collected separately from sewage flow and that does not contain industrial chemicals, hazardous wastes, or wastewater from toilets may be used for irrigation, if the following requirements are met:

(a) prior to installation, a gray water irrigation system must obtain a permit under this subchapter;

(b) gray water irrigation must be subsurface, using a collection and application system that is designed, installed, and used in accordance with Department Circular DEQ-4;

(c) as provided in 75-5-326, MCA, gray water may not be used to irrigate plants to be consumed by humans, and gray water systems may not be located in a floodplain, as defined in 76-5-103, MCA. For purposes of this rule, "plants to be consumed by humans" does not include nut and fruit trees;

(d) there must be a minimum vertical separation of four feet of natural soil between the point of gray water application and a limiting layer, as defined in ARM 17.36.912;

(e) gray water irrigation may not occur within:

(i) 100 feet of wells;

(ii) 100 feet of surface water;

(iii) 100 feet of a flood plain; or

(iv) two feet of a property line;

(g) if required under Title 76, chapter 4, MCA, and implementing rules, a gray water irrigation system must obtain subdivision approval from the department.

(4) Soil descriptions must be provided for each proposed gray water irrigation system. Soils must be described in accordance with Appendix B of Department Circular DEQ-4.

(5) Gray water irrigation systems with a design flow greater than or equal to 2,500 gallons per day must be designed by a professional engineer.

(6) The reviewing authority may require user agreements for systems that serve more than one user. The reviewing authority may require easements for systems that cross property lines.

History

Authorizing statute(s): 75-5-201, MCA
Implementing statute(s): 75-5-305, MCA
History: NEW, 2009 MAR p. 1786, Eff. 10/16/09.

Mont. Admin. R. 17.36.920 Permits

(1) The reviewing authority shall administer a permit system for the construction, alteration, repair, and extension of wastewater treatment and disposal systems.

(2) Permit applications must:

(a) identify the owner of the system, location of the system, and type of system to be installed;

(b) provide a justification for the type of system proposed;

(d) show separation distances for the features indicated in ARM 17.36.918.

(3) The reviewing authority shall maintain records of all permits.

(4) For permits for new or increased sources, the reviewing authority shall show on the permit the method used for the non-significance determination made pursuant to ARM Title 17, chapter 30, subchapter 7.

(5) For permits issued for replacement of wastewater treatment systems that do not meet minimum standards for subdivisions as set out in ARM Title 17, chapter 36, subchapter 3, the reviewing authority shall notify the owner that the design may limit the ability of the owner to subdivide the property.

History

Authorizing statute(s): 75-5-201, MCA
Implementing statute(s): 75-5-305, MCA
History: NEW, 2003 MAR p. 222, Eff. 2/14/03.

Mont. Admin. R. 17.36.922 Local Variances

(1) As provided in this rule, a local board of health, as defined in 50-2-101, MCA, may grant variances from the requirements in this subchapter and in Department Circular DEQ-4, except for requirements established by statute.

(2) The local board of health may grant a variance from a requirement only if it finds that all the following criteria are met:

(a) granting the variance will not:

(i) contaminate any actual or potential drinking water supply;

(ii) cause a public health hazard as a result of access to insects, rodents, or other possible carriers of disease to humans;

(iii) cause a public health hazard by being accessible to persons or animals;

(iv) violate any law or regulation governing water pollution or wastewater treatment and disposal, including the rules contained in this subchapter except for the rule that the variance is requested from;

(v) pollute or contaminate state waters, in violation of 75-5-605, MCA;

(vi) degrade state waters unless authorized pursuant to 75-5-303, MCA; or

(vii) cause a nuisance due to odor, unsightly appearance, or other aesthetic consideration;

(b) compliance with the requirement from which the variance is requested would result in undue hardship to the applicant;

(c) the variance is necessary to address extraordinary conditions that the applicant could not reasonably have prevented;

(d) no alternatives that comply with the requirement are reasonably feasible; and

(e) the variance requested is not more than the minimum needed to address the extraordinary conditions.

(3) The local board of health's decision regarding a variance of a requirement in this subchapter or in Department Circular DEQ-4 may be appealed to the department pursuant to ARM 17.36.924.

History

Authorizing statute(s): 75-5-201, 75-5-305, MCA
Implementing statute(s): 75-5-305, MCA
History: NEW, 2003 MAR p. 222, Eff. 2/14/03; AMD, 2005 MAR p. 86, Eff. 10/22/04; AMD, 2009 MAR p. 1786, Eff. 10/16/09; AMD, 2011 MAR p. 1548, Eff. 8/12/11.

Mont. Admin. R. 17.36.924 Variance Appeals to the Department

(1) Upon receiving an appeal of a local board of health's variance decision under 75-5-305, MCA, the department shall determine within 30 days whether the appeal meets the requirements of (2) and notify the appellant in writing of its determination.

(2) The appeal to the department must be in writing and must provide the following information:

(a) the name of the appellant;

(b) the local government entity or entities that made the decision on the application for variance at the local level;

(d) a summary explanation of the variance that is sought;

(e) a statement of the law or ordinance at issue in the matter; and

(f) copies of all applications and supporting materials submitted to the local board of health, and of any written decisions issued by the local board of health.

(3) If the appeal does not fulfill the requirements of (2), the department shall state in its notice to the appellant the deficiencies that must be addressed in a resubmittal. The department shall also notify the appellant in writing when its submittal meets the requirements of (2).

(4) If the appeal fulfills the requirements of (2), the department shall proceed to review the local variance decision under the contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, MCA.

(5) As provided in 2-4-612, MCA, the common law and statutory rules of evidence apply in department proceedings to review local board variance decisions. The parties may provide evidence and testimony to the department in addition to that presented to the local board.

(6) In evaluating the local board variance decision, the department shall apply the variance criteria in ARM 17.36.922(2), and may not consider local variance criteria. The department may substitute its judgment for that of the local board as to the interpretation and application of the variance criteria in ARM 17.36.922(2). However, the department shall be bound by the local board's interpretation of other local board rules in effect at the time of the local board's decision.

(7) Challenges to the applicability or validity of a rule of the local board are outside the scope of department review. Variance requests that do not seek to go below a state minimum standard are also outside the scope of department review. If a variance is requested from a local requirement that is more stringent than the requirements in this subchapter, the department may review the local board's decision only if the variance, if granted, would also require a variance from the requirements in this subchapter.

(8) The department shall issue a formal decision, including findings of fact and conclusions of law, within 30 days after the hearing process is completed.

History

Authorizing statute(s): 75-5-201, 75-5-305, MCA
Implementing statute(s): 75-5-305, MCA
History: NEW, 2003 MAR p. 222, Eff. 2/14/03; AMD, 2011 MAR p. 1548, Eff. 8/12/11.

Subchapter 17.36.11 Administrative Enforcement Procedure

Mont. Admin. R. 17.36.1103 Enforcement Procedures

Publisher status: INEFFECTIVE (not currently effective).

(transferred)

History

Authorizing statute(s): 75-6-103, MCA
Implementing statute(s): 75-6-109, MCA
History: NEW, 1995 MAR p. 282, Eff. 2/10/95; TRANS, from DHES, 1996 MAR p. 1499; TRANS, 17.38.603, 1998 MAR p. 2754, Eff. 10/9/98.

Mont. Admin. R. 17.36.1107 Suspended Penalties

Publisher status: INEFFECTIVE (not currently effective).

(transferred)

History

Authorizing statute(s): 75-6-103, MCA
Implementing statute(s): 75-6-109, MCA
History: NEW, 1995 MAR p. 282, Eff. 2/10/95; TRANS, from DHES, 1996 MAR p. 1499; TRANS, to 17.36.607, 1998 MAR p. 2754, Eff. 10/9/98.

Chapter 17.38 Public Water and Sewage System Requirements

Subchapter 17.38.1 Public Water and Sewer Plans, Cross Connections, and Drilling Water Wells

Mont. Admin. R. 17.38.101 Plans for Public Water Supply or Public Sewage System

(1) For purposes of this rule, "delegated division of local government" means a local government that has been delegated authority pursuant to ARM 17.38.102 and 75-6-121, MCA, to review and approve plans and specifications for public water supply or public sewage systems, as designated in the written delegation.

(2) The purpose of this rule is to assure the protection of public health and the quality of state waters by requiring review and approval, by either the department or a delegated division of local government, of plans and specifications for siting, construction, and modification of public water supply and public sewage systems prior to the beginning of construction.

(3) As used in this rule, the following definitions apply in addition to those in 75-6-102, MCA:

(a) "Accessory building" means a subordinate building or structure on the same lot as the main building, which is under the same ownership as the main building, and which is devoted exclusively to an accessory use such as a garage, workshop, art studio, guest house, or church rectory;

(b) "Applicant" means a person who submits plans and specifications for approval pursuant to this rule;

(d) "Main" means any line providing water or sewer to multiple service connections, any line serving a water hydrant that is designed for fire fighting purposes, or any line that is designed to water or sewer main specifications;

(e) "Public sewage system" means a system of collection, transportation, treatment, or disposal of sewage that serves 15 or more families or 25 or more persons daily for any 60 or more days in a calendar year. Public sewage systems are further categorized as follows:

(i) "Community sewage system" means a public sewage system that serves at least 15 service connections used by year-round residents or that regularly serves at least 25 year-round residents; or

(ii) "Non-community sewage system" means any public sewage system which is not a community sewage system;

(f) "Reclaimed wastewater" is defined in 75-6-102, MCA;

(g) "Rural distribution system" means those portions of a water distribution system that are outside the limits of a city or town and that:

(i) have fewer than four service connections per mile on average;

(ii) are constructed of water mains six inches in diameter or less; and

(iii) do not provide fire flows.

(h) "Service connection" means a line that provides water or sewer service to a single building or main building with accessory buildings, and that is designed to service line specifications;

(i) "Sewage system" means a device for collecting or conducting sewage, industrial wastes, or other wastes to an ultimate disposal point;

(j) "Subsurface sewage treatment system" means the method of sewage treatment in which the effluent is applied below the soil surface;

(k) "Wastewater" means sewage, industrial waste, other wastes, or any combination thereof;

(l) "Wastewater system" means a public sewage system or other system that collects, transports, treats, or disposes of industrial wastes;

(m) "Professional engineer" means an engineer licensed or otherwise authorized to practice engineering in Montana pursuant to Title 37, chapter 67, MCA;

(n) "Public water supply system" means a system for the provision of water for human consumption from a community well, water hauler for cisterns, water bottling plant, water dispenser, or other water supply that has at least 15 service connections or that regularly serves at least 25 persons daily for any 60 or more days in a calendar year. Public water supply systems are further categorized as follows:

(i) "Community water system" means a public water supply system that serves at least 15 service connections used by year-round residents or that regularly serves at least 25 year-round residents; or

(ii) "Non-community water system" means a public water supply system that is not a community water system.

(o) "Development plan" has the meaning in 75-6-130(9)(a), MCA; and

(p) "Rated capacity" has the meaning in 75-6-130(9)(b), MCA.

(4) A person may not commence or continue the construction, alteration, extension, or operation of a public water supply system or public sewage system until the applicant has submitted a design report along with the necessary plans and specifications for the system to the department or a delegated division of local government for its review and has received written approval. Three sets of plans and specifications are needed for final approval. Approval by the department or a delegated division of local government is contingent upon construction and operation of the public water supply or public sewage system consistent with the approved design report, plans, and specifications. Failure to construct or operate the system according to the approved plans and specifications or the department's conditions of approval is an alteration for purposes of this rule. Design reports, plans, and specifications must meet the following criteria:

(a) the design report, plans, and specifications for community water systems must be prepared and designed by a professional engineer in accordance with the format and criteria set forth in department Circular DEQ-1, "Montana Department of Environmental Quality Standards for Water Works;"

(b) the design report, plans, and specifications for noncommunity water systems must be prepared in accordance with the format and criteria set forth in Department Circular DEQ-3, "Standards for Small Water Systems."

(i) The department or a delegated division of local government may require the plans and specifications for such a system to be prepared by a professional engineer when the complexity of the proposed system warrants such engineering (e.g., systems using gravity storage, pressure booster/reduction stations).

(ii) Except as provided in (iii), the department or a delegated division of local government will require the plans and specifications for such a system to be prepared by a professional engineer when:

(A) system components subject to review under Department Circular DEQ-1, "Standards for Water Works," are proposed;

(B) chlorination subject to review under Department Circular DEQ-3, "Standards for Small Water Systems," is proposed; or

(C) springs subject to review under Department Circular DEQ-10, "Standards for the Development of Springs to Serve Public Water Supply Systems" are proposed.

(iii) The department or a delegated division of local government may allow standard plans and specifications previously approved by the department to be used for such a system in place of those prepared by a professional engineer on a case-by-case basis;

(c) the design report, plans, and specifications for all public sewage systems, except public subsurface sewage treatment systems, must be prepared and designed by a professional engineer in accordance with the format and criteria set forth in Department Circular DEQ-2, "Montana Department of Environmental Quality Design Standards for Public Sewage Systems." The design report, plans, and specifications for a public sewage system must also be designed to protect public health and ensure compliance with the Montana Water Quality Act, Title 75, chapter 5, MCA, and rules adopted under the Act, including ARM Title 17, chapter 30, subchapter 7;

(d) the department adopts and incorporates by reference ARM 17.36.320 through 17.36.325. The design report, plans, and specifications for public subsurface sewage treatment systems must be prepared in accordance with ARM 17.36.320 through 17.36.325, and with the format and criteria set forth in Department Circular DEQ-4, "Montana Standards for Subsurface Wastewater Treatment Systems." For public subsurface sewage treatment systems with a design flow greater than or equal to 2500 gallons per day, the design report, plans, and specifications must be prepared by a professional engineer.

(e) the department adopts and incorporates by reference ARM 17.36.319 for purposes of review of public gray water irrigation systems. The design report, plans, and specifications for public gray water irrigation systems must be prepared in accordance with ARM 17.36.319, and in accordance with the format and criteria set forth in Department Circular DEQ-4, "Montana Standards for Subsurface Wastewater Treatment Systems." For purposes of this chapter, "gray water" means wastewater that is collected separately from a sewage flow and that does not contain industrial chemicals, hazardous wastes, or wastewater from toilets.

(f) the design report, plans, and specifications for water extensions or replacements that meet the criteria in "Water Main Certified Checklist" may be submitted under that abbreviated process;

(g) the design report, plans, and specifications for sewer extensions or replacements that meet the criteria in "Sewer Main Certified Checklist" may be submitted under that abbreviated process;

(h) the design report, plans, and specifications for new community water supply wells that meet the criteria specified in the "Community Water Supply Well Expedited Review Checklist" may be submitted under that abbreviated process;

(i) the design report, plans, and specifications for new non-community water supply wells that meet the criteria specified in the "Non-community Water Supply Well Expedited Review Checklist" may be submitted under that abbreviated process; and

(j) the department may grant a deviation from the standards referenced in (4)(a) through (e) when the applicant has demonstrated to the satisfaction of the department that strict adherence to the standards of this rule is not necessary to protect public health and the quality of state waters. Deviations from the standards may be granted only by the department.

(5) To resume review of plans and specifications for a project that has been inactive for more than a year after issuance of a denial letter by the reviewing authority, the applicant must resubmit plans and specifications and fees as required in ARM 17.38.106.

(6) Plans and specifications for a project that would violate the approval of a public water supply system, public wastewater system, or that would cause a significant deficiency, as defined in ARM 17.38.104(1), may not be approved by the reviewing authority.

(7) Except as provided in (10)(a), upon receipt of a submittal or resubmittal under (4), the department shall provide a written response to the applicant within 60 days that either approves the submittal, approves the submittal with conditions, describes additional information that must be submitted to the department, or denies the submittal.

(8) The department or a delegated division of local government shall issue a written approval for a public water supply system or public sewage system if it determines that the design report, plans, and specifications are complete and the applicant has complied with all provisions of this rule. The approval may be conditional as follows:

(a) the department's approval of a public water supply system may set forth conditions of approval which may include, but shall not be limited to, those specifying limits on quantities available for irrigation and fire flows, limited storage, standby power sources, and peak flows;

(b) the department's approval of a public sewage system may set forth conditions of approval which may include, but shall not be limited to, expected performance characteristics and performance limitations such as operations, staffing, financing, wastewater loads, standby power, and access; or

(c) the department's approval of the use of reclaimed wastewater by a public sewage system must require compliance with the treatment standards, monitoring, recordkeeping, and reporting requirements required for each classification, as described in Department Circular DEQ-2.

(9) Except as provided in (11)(b), unless the applicant has completed the construction, alteration, or extension of a public water supply or public sewage system within three years after the department or a delegated unit of local government has issued its written approval, the approval is void and a design report, plans, and specifications must be resubmitted as required by (4) with the appropriate fees specified in this subchapter.

(a) If the relevant design standards and administrative rules have not changed since the original approval was issued, the department may, at its discretion, reapprove the project using the following abbreviated process:

(i) The original design report, plans, and specifications must be resubmitted as required by (4).

(ii) The engineer or firm that originally submitted the project must, in writing, grant permission for the department to re-review the plan set, and state that the conditions surrounding the original submission have not changed.

(iii) The review fee will be established by the hourly rate designated in ARM 17.38.106(3) multiplied by the time required to review the plans and specifications.

(10) Continuously active public water supply systems with a public water system ID number that have never submitted plans and specifications for department review are not required to submit plans and specifications unless specifically required by the department.

(a) Community and non-transient, non-community public water supply systems that are inactive for three or more years must submit a design report, plans, and specifications, as required by (4) with the appropriate fees specified in this subchapter, for approval prior to reactivation. Previously approved systems that have been inactive for three or more years may, at the department's discretion, use the abbreviated review process described in (9)(a).

(b) Transient non-community public water supply systems that have been inactive for three or more years are not required to submit a design report, plans, and specifications to re-activate if:

(i) current water samples show the source is coliform-absent and nitrogen levels less than the maximum contaminant level;

(ii) no water system facility modifications have been made to the system during inactivation;

(iii) any significant deficiencies or sanitary defects previously identified have been corrected;

(iv) the water source is not under the influence of surface water; and

(v) the PWSID number is submitted to the department.

(11) As provided in 75-6-131, MCA, the following requirements apply to regional public water supply systems for which a final engineering report has been approved by the United States Bureau of Reclamation. These requirements are in addition to the other requirements in this chapter, except where a rule specifically provides otherwise:

(a) Upon receipt of a submittal or resubmittal under (4) of plans, specifications, or deviation requests for the storage, pumping, and distribution portions of a regional public water supply system, the department shall provide a written response within 40 calendar days after a submittal and within 20 working days after a resubmittal. The department's response must approve the submittal, approve the submittal with conditions, describe additional information that must be submitted to the department, or deny the submittal.

(b) Portions of a regional public water supply system for which the department has reviewed and approved plans, specifications, or deviations under (4) are not subject to changes in department design or construction criteria for a period of 72 months after the department's approval. Unless the applicant has completed construction, alteration, or extension of the approved portions of the system within 72 months after the department's approval, the approval is void and a design report, plans, and specifications must be resubmitted under (4) with the appropriate fees specified in this subchapter. The department may grant a completion deadline extension if the applicant requests an extension in writing and demonstrates adequate justification to the department.

(c) Except as provided in (4) and (11)(b), the approval of a regional water system's standard construction contract documents and provisions for amendments to those documents remains in effect for the construction period of the project as contained in the final engineering report approved by the United States Bureau of Reclamation.

(12) The applicant shall not deviate from the approved plans and specifications without first receiving approval from the governmental entity that approved the plans and specifications.

(13) A person may not commence or continue the operation of a public water supply or public sewage system, or any portion of such system, prior to certifying by letter to the department or a delegated division of local government that the system, or portion of the system constructed, altered, or extended to that date, was completed in substantial accordance with plans and specifications approved by the department and there are no deviations from the design standards of the applicable circulars other than those previously approved by the department pursuant to ARM 17.38.101. For a system or any portion of a system designed by a professional engineer, an engineer shall sign and submit the certification letter to the department or a delegated division of local government.

(14) Within 90 days after the completion of construction, alteration, or extension of a public water supply or public sewage system, or any portion of such system, a complete set of certified "as-built" drawings must be signed and submitted to the department or a delegated division of local government. The department may require that the "as-built" submittal be accompanied by an operation and maintenance manual. For a system or any portion of a system designed by a professional engineer, an engineer shall sign and submit the certified "as-built" drawings to the department or a delegated division of local government.

(15) The applicant shall submit documentation indicating commitment to retain a qualified professional to provide certification that the system was built in conformance with the approved plans and specifications. If the system was designed by a professional engineer, the documentation must indicate that the certification will be provided by a professional engineer.

(16) The department or a delegated division of local government may require that chemical analyses, microbiological examinations, flow tests, pressure tests, treatment plant performance records, or other measures of performance for a public water supply or public sewage system be conducted by the applicant to substantiate that the system complies with the criteria set forth in the design report, plans, and specifications.

(17) When design reports, plans, and specifications submitted pursuant to this rule are also part of a submittal for compliance with plan review pursuant to the Sanitation in Subdivisions Act, (Title 76, chapter 4, MCA) the applicant shall so indicate by written notice accompanying the submittal. Review under this rule will then be conducted pursuant to Title 76, chapter 4, MCA.

(18) When design reports, plans, and specifications submitted pursuant to this rule include a proposal to use reclaimed wastewater, the department or delegated division of local government may not approve the proposal until the applicant has obtained any necessary approvals required under Title 85, MCA, from the Department of Natural Resources and Conservation.

(19) An owner or operator of a public sewage system may not:

(a) use reclaimed wastewater for a use that has not been approved by the department or by a delegated division of local government, according to the use classification system in Department Circular DEQ-2, "Montana Department of Environmental Quality Design Standards for Public Sewage Systems;" or

(b) use reclaimed wastewater that has not been treated to the applicable standards for the use set forth in Department Circular DEQ-2, "Montana Department of Environmental Quality Design Standards for Public Sewage Systems."

(20) Fees for review and approval of development plans will be at the hourly rate provided for in ARM 17.38.106(3).

(21) The review timeframe for development plans is 60 calendar days.

(22) For purposes of this chapter, the department adopts and incorporates by reference the following documents. All references to these documents in this chapter refer to the edition set out below:

(a) Department Circular DEQ-1, 2024 edition, which sets forth the requirements for the design and preparation of plans and specifications for public water supply systems;

(b) Department Circular DEQ-2, 2018 edition, which sets forth the requirements for the design and preparation of plans and specifications for sewage works;

(d) Department Circular DEQ-4, 2023 edition, which sets forth standards for subsurface wastewater treatment systems;

(e) Department Water Main Certified Checklist, 2014 edition, which sets forth minimum criteria and design standards for water main extensions and replacements;

(f) Department Sewer Main Certified Checklist, 2014 edition, which sets forth minimum criteria and design standards for sewer main extensions and replacements;

(g) Department Community Water Supply Well Expedited Review Checklist, 2018 edition, which sets forth minimum criteria and design standards for new community water supply wells;

(h) Department Noncommunity Water Supply Well Expedited Review Checklist, 2018 edition, which sets forth minimum criteria and design standards for new non-community water supply wells;

(i) 40 CFR 141.5, which sets forth siting requirements for public water supply components;

(j) Department Circular DEQ-10, 2014 edition, which sets forth the standards for development of springs to serve public water supply systems; and

(k) Department Circular DEQ-16, 2014 edition, which sets forth standards for cisterns to serve noncommunity public water supply systems.

(23) A copy of any of the documents adopted under (22) may be viewed at the Department of Environmental Quality, 1520 East Sixth Avenue, Helena, MT 59620-0901.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, 75-6-112, 75-6-121, MCA
History: NEW, 1977 MAR p. 1173, Eff. 12/24/77; AMD, 1981 MAR p. 205, Eff. 3/13/81; AMD, 1985 MAR p. 163, Eff. 2/15/85; AMD, 1992 MAR p. 2152, Eff. 9/25/92; AMD, 1995 MAR p. 667, Eff. 4/28/95; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1998 MAR p. 1167, Eff. 5/1/98; AMD, 1999 MAR p. 1895, Eff. 9/10/99; AMD, 2000 MAR p. 3398, Eff. 12/8/00; AMD, 2003 MAR p. 230, Eff. 2/14/03; AMD, 2003 MAR p. 1630, Eff. 6/27/03; AMD, 2004 MAR p. 2579, Eff. 10/22/04; AMD, 2004 MAR p. 3016, Eff. 1/1/05; AMD, 2006 MAR p. 540, Eff. 2/24/06; AMD, 2007 MAR p. 1666, Eff. 10/26/07; AMD, 2008 MAR p. 2625, Eff. 12/25/08; AMD, 2009 MAR p. 1786, Eff. 10/16/09; AMD, 2009 MAR p. 1794, Eff. 10/16/09; AMD, 2011 MAR p. 1545, Eff. 8/12/11; AMD, 2012 MAR p. 2067, Eff. 10/12/12; AMD, 2013 MAR p. 2081, Eff. 11/15/13; AMD, 2014 MAR p. 1802, Eff. 8/8/14; AMD, 2014 MAR p. 1824, Eff. 8/8/14; AMD, 2016 MAR p. 1008, Eff. 6/4/16; AMD, 2019 MAR p. 836, Eff. 6/22/19; AMD, 2022 MAR p. 1695, Eff. 8/27/22; AMD, 2023 MAR p. 324, Eff. 4/15/23; AMD, 2023 MAR p. 1861, Eff. 12/23/23; AMD, 2024 MAR p. 2144, Eff. 9/7/24.

Mont. Admin. R. 17.38.102 Delegation of Review of Small Public Water and Sewage System Plans and Specifications

(1) The department shall delegate to divisions of local government the review of plans and specifications for:

(a) small public water supply systems and small public sewage systems; and

(b) extensions or alterations of existing public water and public sewage systems.

(2) Delegation may occur only if:

(a) a division of local government submits a written application to the department that includes the following:

(i) a statement of intent that affirms the local government's intent to ensure that systems which it reviews comply with the minimum standards established in ARM 17.38.101;

(ii) names and qualifications of those employees who will be providing the review for the local unit of government; and

(iii) a request that the department provide training for public water and sewage system review.

(b) the department finds that the local government's review will protect public health and the quality of state waters.

(3) Local governments shall be reimbursed 90% of the review fee for performing these reviews and the department must receive the remaining 10% of the review fee.

(4) Local governments conducting reviews under this rule shall complete all documents necessary to complete the review and comply with:

(a) the Montana Environmental Policy Act provided in Title 75, chapter 1, parts 1 through 3, MCA;

(b) real property takings requirements in accordance with Title 70, MCA; and

History

Authorizing statute(s): 75-6-104, 75-6-121, MCA
Implementing statute(s): 75-6-121, MCA, NEW, 1992 MAR p. 2152, Eff. 9/25/92
History: TRANS, from DHES, 1996 MAR p. 1499; AMD, 2012 MAR p. 2067, Eff. 10/12/12; AMD, 2023 MAR p. 1861, Eff. 12/23/23.

Mont. Admin. R. 17.38.103 Public Water and Sewage Projects Eligible for Categorical Exclusion from Mepa Review

(1) Except as provided in (2), a department action under this subchapter and under either Title 75, chapter 6, part 1 or Title 75, chapter 6, part 2, MCA, is excluded from the requirement to prepare an environmental assessment or an environmental impact statement if the application for department review is for any of the following projects:

(a) projects relating to existing infrastructure systems such as sewage systems, drinking water supply systems, and stormwater systems, including combined sewer overflow systems that involve:

(i) minor upgrading;

(ii) minor expansion of system capacity;

(iii) rehabilitation (including functional replacement) of the existing system and system components; or

(iv) construction of new minor ancillary facilities adjacent to or on the same property as existing facilities; or

(b) projects in unsewered communities involving the replacement of existing on-site systems, provided that the new on-site systems do not result in substantial increases in the volume of discharges or in loadings of pollutants from existing sources, and do not relocate existing discharges.

(2) A categorical exclusion may not be granted for a department action under (1) if:

(a) the action would authorize facilities that will provide a new discharge or relocate an existing discharge to ground or surface waters;

(b) the action would result in an increase above permit levels established for the facility under the Montana pollutant discharge elimination system or Montana ground water pollution control system for either volume of discharge or loading rate of pollutants to receiving waters;

(c) the action would authorize facilities that will provide capacity to serve a population at least 30% greater than the existing population;

(d) the action is not supported by the state, or other regional growth plan or strategy;

(e) the action directly or indirectly involves or relates to upgrading or extending infrastructure systems primarily for the purposes of future development;

(f) the department has received information indicating that public controversy exists over the project's potential effects on the quality of the human environment; or

(g) the department determines that the proposed project that is the subject of the state action shows some potential for causing a significant effect on the quality of the human environment, based on ARM 17.4.608, or might possibly affect:

(i) sensitive environmental or cultural resource areas; or

(ii) endangered or threatened species and their critical habitats.

(3) The department shall document its decision to issue a categorical exclusion by referencing the application, providing a brief description of the proposed action, and describing how the action meets the criteria for a categorical exclusion in (1) without violating the criteria in (2).

(4) The department may revoke a categorical exclusion if:

(a) the project is not initiated within the time period specified in the facility plan, or a new or modified application is submitted;

(b) the proposed action no longer meets the requirements for a categorical exclusion because of changes in the proposed action;

(d) state, local, tribal, or federal laws may be violated.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 2009 MAR p. 412, Eff. 4/17/09; AMD, 2012 MAR p. 2067, Eff. 10/12/12; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.104 Significant Deficiency

(1) For the purposes of this rule, "significant deficiency" means:

(a) any defect in design, operation, or maintenance of a public water supply system or public sewage system;

(b) a failure or malfunction of the system, that the department determines causes, or has the potential to cause, the introduction of fecal, chemical, or other contamination into a drinking water supply or a source of ice; or

(c) practices and conditions that hinder the determination of the source or potential source of contamination, such as improper sample locations or sample taps.

(2) If the department determines that a significant deficiency exists with a public water supply system or a public sewage system, the department shall provide written notice to the system owner. The system owner shall correct the deficiency in accordance with a plan and timeframe approved by the department.

(3) If the department has reason to believe that a significant deficiency or sanitary defect may exist with a public water supply system or a public sewage system, the department may request the system owner to provide additional information to assist the department in making a final determination. The system owner shall provide the department with the requested information. If the system owner fails to supply the requested information, the department may make a determination based on available information about the potential risk of contamination from the system to drinking water or a source of ice. The department may require the system owner to take measures that the department determines are appropriate to prevent contamination.

History

Authorizing statute(s): 75-6-104, 75-6-112, MCA
Implementing statute(s): 75-6-104, 75-6-112, MCA
History: NEW, 2013 MAR p. 212, Eff. 2/15/13; AMD, 2017 MAR p. 220, Eff. 2/18/17; AMD, 2024 MAR p. 253, Eff. 2/10/24; AMD, 2026 MAR, Notice No. 2026-85, Eff. 9/26/26.

Mont. Admin. R. 17.38.105 Cross Connections

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-6-103, MCA
Implementing statute(s): 75-6-103, MCA
History: Eff. 12/31/72; AMD, 1992 MAR p. 2152, Eff. 9/25/92; TRANS, from DHES, 1996 MAR p. 1499; REP, 1998 MAR p. 958, Eff. 4/17/98.

Mont. Admin. R. 17.38.106 Fees

(1) The purpose of this rule is to establish fee schedules to be used to calculate fees to be paid to the department for review of plans and specifications for public water supply and public sewage systems, as required under Title 75, chapter 6, part 1, MCA, and ARM 17.38.101.

(2) Department review will not be initiated until fees calculated under (2)(a) through (f) and (5) have been received by the department. If applicable, the final approval will not be issued until the calculated fees under (3) and (4) have been paid in full. The total fee for the review of a set of plans and specifications is the sum of the fees for the applicable parts or subparts listed in these subsections:

(a) The fee schedule for designs requiring review for compliance with Department Circular DEQ-1 is set forth in Schedule I, as follows:

SCHEDULE I

Policies

ultra violet disinfection $875

point-of-use/point-of-entry treatment $875

Section 1.0 Engineering Report $350

Section 3.1 Surface water

quality and quantity $875

structures $875

Section 3.2 Ground water $1,050

Section 4.1 Microscreening $350

Section 4.2 Clarification

standard clarification $875

solid contact units $1,750

Section 4.3 Filtration

rapid rate $2,190

pressure filtration $1,750

diatomaceous earth $1,750

slow sand $1,750

direct filtration $1,750

biologically active filtration $1,750

membrane filtration $1,750

micro and ultra filtration $1,750

bag and cartridge filtration $520

Section 4.4 Disinfection $875

Section 4.5 Softening $875

Section 4.6 Ion Exchange $875

Section 4.7 Aeration

natural draft $350

forced draft $350

spray/pressure $350

packed tower $875

Section 4.8 Iron and manganese $875

Section 4.9 Fluoridation $875

Section 4.10 Stabilization $520

Section 4.11 Taste and odor control $700

Section 4.12 Adsorptive media $875

Chapter 5 Chemical application $1,220

Chapter 6 Pumping facilities $1,220

Section 7.1 Plant storage $1,220

Section 7.2 Hydropneumatic tanks $520

Section 7.3 Distribution storage $1,220

Chapter 8 Distribution system

per lot fee $90

non-standard specifications $520

transmission distribution (per lineal foot) $0.30

rural distribution system (per lineal foot) $0.04

sliplining existing mains (per lineal foot) $0.20

Chapter 9 Waste disposal $875

Appendix A

new systems $350

modifications $175

(b) The fee schedule for designs requiring review for compliance with Department Circular DEQ-2 is set forth in Schedule II, as follows:

SCHEDULE II

Chapter 10 Engineering reports and facility plans

engineering reports (minor) $350

comprehensive facility plan (major) $1,750

Chapter 30 Design of sewers

per lot fee $90

non-standard specifications $520

collection system (per lineal foot) $0.30

sliplining existing mains (per lineal foot) $0.20

Chapter 40 Sewage pumping station

force mains (per lineal foot) $0.30

1000 gpm or less $875

greater than 1000 gpm $1,750

Chapter 60 Screening grit removal

screening devices and comminutors $520

grit removal $520

flow equalization $875

Chapter 70 Settling $1,400

Chapter 80 Sludge handling $2,800

Chapter 90 Biological treatment $4,200

nonaerated treatment ponds $1,400

aerated treatment ponds $2,450

Chapter 100 Disinfection $1,120

Chapter 120 Irrigation and Rapid Infiltration Systems $1,220

Appendices A and C (per design) $1,220

(c) The fee schedule for designs requiring review for compliance with Department Circular DEQ-3 is set forth in Schedule III, as follows:

SCHEDULE III

Section 3.2 Ground water $1,050

Chapter 6 Pump facilities $520

Chapter 7 Finished storage/hydropneumatic tanks $520

Chapter 8 Distribution system $520

(d) The fee schedule for designs requiring review for compliance with Department Circular DEQ-4 is set forth in Schedule IV, as follows:

SCHEDULE IV

Chapter 4 Pressure Dosing $350

Chapter 5 Septic Tanks $350

Chapter 6 Soil Absorption Systems $350

Chapter 6, Subchapter 6.8 ETA and ET Systems $875

Chapter 7, Subchapters 7.1, 7.2, and 7.3 Filters $350

Chapter 7, Subchapter 7.4 Aerobic Treatment $875

Chapter 7, Subchapter 7.5 Chemical Nutrient-Reduction Systems $875

Chapter 7, Subchapter 7.6 Alternate Advanced Treatment Systems $875

Chapter 8 Holding Tanks, Pit Privy, Seepage Pits, Waste Segregation, Experimental Systems $350

Appendix D $350

Non-degradation Review $520

(e) The fee schedule for designs requiring review for compliance with Department Circular DEQ-10 is set forth in Schedule V as follows:

SCHEDULE V

Spring box and collection lateral $440

(f) The fee schedule for designs requiring review for compliance with Department Circular DEQ-16 is set forth in Schedule VI, as follows:

SCHEDULE VI

Cisterns $520

(3) Fees for review of plans and specifications not covered under (2) are established by the department based on a charge of $150 per hour multiplied by the time required to review the plans and specifications. The review time applied to each set of plans and specifications will be determined by the review engineer and documented with time sheets.

(4) The fee for review of plans and specifications previously denied, for staff time over two hours, is $150 per hour, assessed in half-hour increments, multiplied by the time required to review the plans and specifications. The review time applied to each set of plans and specifications must be determined by the review engineer and documented with time sheets.

(5) The fee for review of deviations is $300 per deviation.

(6) Fee payment must be in the form of a check or money order made payable to the state of Montana, Department of Environmental Quality.

(7) When a resubmitted set of plans and specifications contains substantial changes in the design that require the plans and specifications to be reviewed again, the department may require an additional review fee. The additional fee will be calculated in the same manner as the original fee and based on those parts of the standard that must be reviewed again due to the change in design. The department shall give notice and provide for appeal as specified under 75-6-108(6), MCA.

History

Authorizing statute(s): 75-6-108, MCA
Implementing statute(s): 75-6-108, MCA
History: NEW, 1992 MAR p. 2152, Eff. 9/25/92; AMD, 1995 MAR p. 667, Eff. 4/28/95; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 230, Eff. 2/14/03; AMD, 2004 MAR p. 2579, Eff. 10/22/04; AMD, 2005 MAR p. 577, Eff. 4/15/05; AMD, 2006 MAR p. 540, Eff. 2/24/06; AMD, 2007 MAR p. 1666, Eff. 10/26/07; AMD, 2010 MAR p. 910, Eff. 4/16/10; AMD, 2011 MAR p. 1545, Eff. 8/12/11; AMD, 2012 MAR p. 2067, Eff. 10/12/12; AMD, 2013 MAR p. 212, Eff. 2/15/13; AMD, 2014 MAR p. 1824, Eff. 8/8/14; AMD, 2020 MAR p. 319, Eff. 3/1/20; AMD, 2026 MAR, Notice No. 2026-198, Eff. 9/5/26.

Subchapter 17.38.2 Public Water Supply Requirements

Mont. Admin. R. 17.38.201 Purpose

(1) The purpose of this subchapter is:

(a) to ensure the safety of public water supplies with respect to bacteriological, chemical, and radiological quality; and

(b) to promote efficient operation of public water supply systems through control tests, laboratory analyses, operating records, and reports.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1977 MAR p. 1187, Eff. 12/24/77; AMD, 1982 MAR p. 594, Eff. 3/26/82; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2024 MAR p. 253, Eff. 2/10/24; AMD, 2026 MAR, Notice No. 2026-85, Eff. 9/26/26.

Mont. Admin. R. 17.38.201A INCORPORATION BY REFERENCE--PUBLICATION DATES AND AVAILABILITY OF REFERENCED DOCUMENTS

17.38.201A INCORPORATION BY REFERENCE--PUBLICATION DATES AND AVAILABILITY OF REFERENCED DOCUMENTS

(1) Unless expressly provided otherwise, in this subchapter where the department has adopted and incorporated by reference a federal regulation, the reference is to the July 1, 2015, edition of the Code of Federal Regulations (CFR).

(2) Copies of materials adopted and incorporated by reference in this subchapter may be obtained from the Public Water Supply Section, Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901, phone: (406) 444-4400.

(3) Copies of federal materials may also be obtained from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402; or from the Environmental Protection Agency web site at http://www.gpo.gov/fdsys/pkg/CFR-2015-title40-vol23/pdf/CFR-2015-title40-vol23.pdf .

(4) Suppliers of public water supply systems shall comply with the portions of 40 CFR Parts 141 and 142 adopted and incorporated by reference in this subchapter.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 2000 MAR p. 3400, Eff. 12/8/00; AMD, 2003 MAR p. 1279, Eff. 6/27/03; AMD, 2004 MAR p. 3016, Eff. 1/1/05; AMD, 2008 MAR p. 2625, Eff. 12/25/08; AMD, 2010 MAR p. 1798, Eff. 8/13/10; AMD, 2017 MAR p. 220, Eff. 2/18/17; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.202 Definitions

In this subchapter, the following terms have the meanings indicated below and must be used in conjunction with and supplemental to those definitions contained in 75-6-102, MCA. In addition, the department adopts and incorporates by reference the definitions in 40 CFR 141.2, except for the following terms: "clean compliance history," "person," "public water supply system (PWS)," "ground water under the direct influence of surface water (GWUDISW)," "special irrigation district," and "state." The terms "person," "public water supply system," "ground water under the direct influence of surface water," and "state," as used in this subchapter and in the portions of 40 CFR Parts 141 and 142 adopted by reference in this subchapter, have the meanings defined below.

(1) "Act," except as used in the portions of 40 CFR Part 141 referenced in this subchapter, means Title 75, chapter 6, part 1, MCA.

(2) "Approved laboratory" means a laboratory licensed and approved by the Montana Department of Public Health and Human Services to analyze water samples from public water supply systems to determine their compliance with maximum contaminant levels (MCLs) and other monitoring requirements of this subchapter.

(3) "Ground water under the direct influence of surface water (GWUDISW)" has the same meaning as adopted and incorporated by reference from 40 CFR 141.2, except that GWUDISW determinations for regulatory compliance purposes are made in accordance with the Department of Environmental Quality Circular PWS-5, Ground Water Under the Direct Influence of Surface Water. This circular is adopted and incorporated by reference in ARM 17.38.209.

(4) "Person" means an individual, firm, partnership, company, association, corporation, city, town, local government entity, federal agency, or any other governmental or private entity, whether organized for profit or not.

(5) "Public water supply system (PWS)" means a system for the provision of water for human consumption from a community well, water hauler for cisterns, water bottling plant, water dispenser, or other water supply that has at least 15 service connections or that regularly serves at least 25 persons daily for any 60 or more days in a calendar year.

(6) "State," as used in the portions of 40 CFR Parts 141 and 142 adopted and incorporated by reference in this subchapter, means:

(a) the Montana Department of Environmental Quality with respect to regulation of public water supply and wastewater systems for compliance with this subchapter; and

(b) the Montana Department of Public Health and Human Services with respect to certification of laboratories for performing water sample analyses for public water supply systems as required in 40 CFR Part 141.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1977 MAR p. 1187, Eff. 12/24/77; AMD, 1982 MAR p. 594, Eff. 3/26/82; AMD, 1991 MAR p. 1492, Eff. 8/16/91; AMD, 1994 MAR p. 2131, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1998 MAR p. 1167, Eff. 5/1/98; AMD, 2000 MAR p. 3400, Eff. 12/8/00; AMD, 2003 MAR p. 1279, Eff. 6/27/03; AMD, 2008 MAR p. 2625, Eff. 12/25/08; AMD, 2017 MAR p. 220, Eff. 2/18/17; AMD, 2024 MAR p. 253, Eff. 2/10/24; AMD, 2026 MAR, Notice No. 2026-85, Eff. 9/26/26.

Mont. Admin. R. 17.38.203 Maximum Inorganic Chemical Contaminant Levels

(1) The department adopts and incorporates by reference:

(a) 40 CFR 141.6(j) and 141.6(k), which set forth effective dates associated with a revised maximum contaminant level for arsenic;

(b) 40 CFR 141.11 and 141.62(b), which set forth maximum contaminant levels for inorganic contaminants;

(d) 40 CFR 141.80(c), which sets forth the action levels for lead and copper.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1977 MAR p. 1187, Eff. 12/24/77; AMD, 1982 MAR p. 594, Eff. 3/26/82; AMD, 1991 MAR p. 1492, Eff. 8/16/91; AMD, 1994 MAR p. 2131, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2000 MAR p. 3400, Eff. 12/8/00; AMD, 2003 MAR p. 1279, Eff. 6/27/03; AMD, 2004 MAR p. 3016, Eff. 1/1/05; AMD, 2008 MAR p. 2625, Eff. 12/25/08; AMD, 2010 MAR p. 1798, Eff. 8/13/10; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.204 Maximum Organic Chemical Contaminant Levels

(1) The department adopts and incorporates by reference 40 CFR 141.61(a), 141.61(c), 141.64(a) and (a)(1), 141.64(b)(1)(i), and 141.64(b)(2)(i). These federal rules establish maximum contaminant levels for synthetic organic contaminants, volatile organic contaminants, and disinfection byproducts.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1977 MAR p. 1187, Eff. 12/24/77; AMD, 1982 MAR p. 594, Eff. 3/26/82; AMD, 1991 MAR p. 1492, Eff. 8/16/91; AMD, 1994 MAR p. 2131, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2000 MAR p. 3400, Eff. 12/8/00; AMD, 2008 MAR p. 2625, Eff. 12/25/08; AMD, 2011 MAR p. 144, Eff. 2/11/11; AMD, 2024 MAR p. 253, Eff. 2/10/24; AMD, 2026 MAR, Notice No. 2026-85, Eff. 9/26/26.

Mont. Admin. R. 17.38.205 Maximum Turbidity Contaminant Levels

(1) The department adopts and incorporates by reference 40 CFR 141.13, 141.73, 141.173, 141.550, and 141.551, which set forth maximum contaminant levels for turbidity, except for the following changes:

(a) The terms "one turbidity unit" and "1 NTU" mean 1.0 nephelometric turbidity unit, and the terms "five turbidity units" and "5 NTU" mean 5.0 nephelometric turbidity units for the purposes of this subchapter.

(b) The following replaces 40 CFR 141.73(a) (1): "For systems using conventional filtration or direct filtration, the turbidity level of representative samples of the system's combined filtered water must be less than or equal to 0.5 NTU in at least 95% of the measurements taken each month, and may not at any time exceed 1.0 NTU."

(c) The following replaces 40 CFR 141.73(a) (2), and is also added at the end of 40 CFR 141.173(a) (1) and 141.551: "For systems using conventional filtration or direct filtration, the turbidity level of representative samples of a system's effluent from individual filters, measured at a point prior to mixing with effluent from other filters or other sources, may not exceed 0.5 NTU in at least 95% of the measurements taken each month, and may not at any time exceed 5.0 NTU. This requirement is not violated if the turbidity reading for the effluent from each individual filter is the first reading of the month that exceeds 0.5 NTU and the individual filter is taken off-line within 24 hours after the sample analysis that shows the exceedance."

(d) The first sentence in 40 CFR 141.551 is replaced with the following sentence: "Your system must meet three strengthened combined filter effluent turbidity limits."

(2) The department may invalidate a turbidity measurement if it determines that the measurement was not indicative of true water quality. This determination shall be based on documentation that the exceedance was caused by turbidimeter performance difficulty or sample site location problems. If the department invalidates the turbidity reading on one of these bases, the turbidity reading may not be included in the 95% compliance calculations required under this rule.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1977 MAR p. 1187, Eff. 12/24/77; AMD, 1982 MAR p. 594, Eff. 3/26/82; AMD, 1991 MAR p. 1492, Eff. 8/16/91; AMD, 1994 MAR p. 2131, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2000 MAR p. 3400, Eff. 12/8/00; AMD, 2005 MAR p. 257, Eff. 1/1/05; AMD, 2024 MAR p. 253, Eff. 2/10/24; AMD, 2026 MAR, Notice No. 2026-85, Eff. 9/26/26.

Mont. Admin. R. 17.38.206 Maximum Radiological Contaminant

(1) The department adopts and incorporates by reference 40 CFR 141.66(b), (c), (d), (e), and (f). These federal rules establish maximum contaminant levels for radiological contaminants.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1977 MAR p. 1187, Eff. 12/24/77; AMD, 1982 MAR p. 594, Eff. 3/26/82; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2000 MAR p. 3400, Eff. 12/8/00; AMD, 2003 MAR p. 1279, Eff. 6/27/03; AMD, 2010 MAR p. 1798, Eff. 8/13/10; AMD, 2024 MAR p. 253, Eff. 2/10/24; AMD, 2026 MAR, Notice No. 2026-85, Eff. 9/26/26.

Mont. Admin. R. 17.38.207 Maximum Microbiological Contaminant Levels

(1) The department adopts and incorporates by reference 40 CFR 141.63(a), 141.63(b), 141.63(c), and 141.63(d). These federal rules establish maximum contaminant levels for microbiological contaminants.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1977 MAR p. 1187, Eff. 12/24/77; AMD, 1982 MAR p. 594, Eff. 3/26/82; AMD, 1991 MAR p. 1492, Eff. 8/16/91; AMD, 1994 MAR p. 2131, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1998 MAR p. 1167, Eff. 5/1/98; AMD, 2000 MAR p. 3400, Eff. 12/8/00; AMD, 2017 MAR p. 220, Eff. 2/18/17; AMD, 2024 MAR p. 253, Eff. 2/10/24; AMD, 2026 MAR, Notice No. 2026-85, Eff. 9/26/26.

Mont. Admin. R. 17.38.208 Treatment Requirements

(1) The department adopts and incorporates by reference 40 CFR 141.70, which sets forth general surface water treatment requirements, with the following changes:

(a) 40 CFR 141.70(b)(1) is modified to read "It meets the requirements for avoiding filtration in 40 CFR 141.71 as amended in ARM 17.38.208, and the disinfection requirements in 40 CFR 141.72(a), or."

(b) 40 CFR 141.70(b)(2) is modified to read "It meets the filtration requirements in 40 CFR 141.73 and in ARM 17.38.205(1)(b)(ii), and the disinfection requirements in 40 CFR 141.72(a)."

(c) 40 CFR 141.70(c) is modified to read "Each public water supply system, except a transient noncommunity system, using a surface water source or a ground water source under the direct influence of surface water must be operated by qualified personnel who meet the requirements specified in Title 37, chapter 42, parts 1 through 3, MCA."

(2) The department adopts and incorporates by reference 40 CFR 141.71, which sets forth requirements for avoiding filtration, except for the following changes:

(a) Only surface water sources from watersheds classified as A-Closed in ARM 17.30.621 may be considered for use as a public water supply source without filtration.

(b) "5 NTU" means "5.0 nephelometric turbidity units" for the purposes of this subchapter.

(c) The requirements concerning watershed protection listed in 40 CFR 141.71(b) (2) (i) through 141.71(b) (2) (iii) are replaced by the following items (i) through (iii) , respectively:

(i) characterize the watershed hydrology and land ownership by:

(A) documenting land-ownership areas and specific landowners;

(B) identifying point and non-point sources of pollution discharge, including roads and drainage ditches;

(C) identifying the location of septic tanks and other waste disposal facilities and their proximity to surface water; and

(D) producing a documented watershed map depicting all of the items in (2) (c) (i) through (iii) and assigning a reference number or other code by which to identify specific areas and impacts.

(ii) identify watershed characteristics and activities that may have an adverse effect on source water quality by:

(A) documenting activities and specific land uses in all public areas on the watershed map, including pollution control measures practiced by the owner-agency and the population of users involved;

(B) identifying activities and improvements on all private lands (e.g., buildings; grazing or other agricultural uses and numbers of livestock involved; animal waste management practices; disposal of human wastes; population involved on a maximum and average-day basis; and use of fertilizers, pesticides, and herbicides) ; and

(iii) monitor the occurrence of activities that may have an adverse effect on source water quality by:

(A) denoting minimum surveillance, monitoring methods, and frequency; and

(B) denoting the agency, contract personnel, or other party responsible for assessing impacts and the responsible party's qualifications.

(d) The first two sentences in the last paragraph of 40 CFR 141.71(b)(2)(iii) are replaced with the following:

At a minimum, the supplier of a public water supply system shall demonstrate, through land ownership or department-approved written agreements with landowners within the watershed, or both, that it can control all human activities that may have an adverse impact on the microbiological quality of the source water or that may interfere with disinfection treatment. Adverse activities include, but are not limited to: recreational activities such as swimming, boating, camping, fishing, hiking, and hunting; and sewage and septic tank discharges. A supplier shall also demonstrate through land ownership or department-approved written agreements with landowners within the watershed, or both, that recreational activities such as fishing, swimming, boating and camping on the terminal water supply reservoir are prohibited. A terminal water supply reservoir is the area providing the storage of water immediately prior to treatment and delivery to the distribution system. A supplier shall control access on roads through land ownership or department-approved written agreements with landowners within the watershed. A supplier shall submit an annual report to the department that identifies any special concerns about the watershed and how the concerns are being addressed, describes activities in the watershed that affect water quality, and projects the adverse activities expected to occur in the future and describes how the supplier expects to address them.

(e) The department adopts and incorporates by reference 40 CFR 141.171, which sets forth requirements, in addition to the requirements in 40 CFR 141.71, for avoiding filtration.

(3) The department adopts and incorporates by reference 40 CFR 141.72, which sets forth treatment requirements for public water suppliers that use surface water.

(4) The department adopts and incorporates by reference the following:

(a) 40 CFR 141.43(a) and (d), which set forth prohibition on use of lead pipes, solder, and flux;

(b) 40 CFR 141.61(b), which sets forth best available technologies (BATs) for synthetic and volatile organic contaminants;

(c) 40 CFR 141.62(c), which sets forth BATs for inorganic contaminants, and 40 CFR 141.62(d), which sets forth small system compliance technologies (SSCT) for arsenic;

(d) 40 CFR 141.63(e) and 141.63(f), which set forth BATs for microbiological contaminants;

(e) 40 CFR 141.64(a)(2), 141.64(b)(1)(ii), 141.64(b)(2)(ii), and 141.64(b)(2)(iii), which sets forth BATs for disinfection byproducts;

(f) 40 CFR 141.66(g) and 40 CFR 141.66(h), which set forth BATs and small system compliance technologies (SSCT) for radionuclides, respectively;

(g) 40 CFR 141.76(a) and (c), which set forth recycle provisions;

(h) 40 CFR 141.81, which sets forth the applicability of lead and copper corrosion control treatment steps to small, medium, and large water systems;

(i) 40 CFR 141.82, which sets forth a description of the lead and copper corrosion control requirements;

(j) 40 CFR 141.83, which sets forth lead and copper source water treatment requirements;

(k) 40 CFR 141.84, which sets forth lead service line replacement requirements;

(l) 40 CFR Part 141, Subpart J, which sets forth requirements for the use of non-centralized treatment devices;

(m) 40 CFR Part 141, Subpart K, which sets forth treatment technique requirements for acrylamide and epichlorohydrin;

(n) 40 CFR 141.135, which sets forth treatment technique requirements for control of disinfection byproduct precursors;

(o) 40 CFR 141.170, which sets forth general treatment requirements in addition to the requirements in 141.70 for public water suppliers that use surface water;

(p) 40 CFR 141.173(b), which sets forth treatment requirements, in addition to the requirements in 40 CFR 141.72, for public water suppliers that use filtered surface water;

(q) 40 CFR 141.500, which sets forth general treatment requirements, in addition to the requirements in 141.70, for public water suppliers that use surface water or GWUDISW and that serve fewer than 10,000 people;

(r) 40 CFR 141.501, which identifies the public water suppliers that are subject to the requirements of 40 CFR Part 141, Subpart T;

(s) 40 CFR 141.502 which stipulates the effective date for the requirements of 40 CFR Part 141, Subpart T, except that "January 14, 2005" is changed to "January 1, 2005";

(t) 40 CFR 141.503, which stipulates that public water suppliers that use surface water or GWUDISW and that serve fewer than 10,000 people must comply with the applicable requirements of 40 CFR Part 141, Subpart T;

(u) 40 CFR 141.510 and 141.511, which set forth requirements for construction of finished water storage reservoirs for public water suppliers that use surface water or GWUDISW and that serve fewer than 10,000 people;

(v) 40 CFR 141.520, 141.521 and 141.522, which stipulate that public water suppliers that use surface water or GWUDISW, do not provide filtration, and that serve fewer than 10,000 people must comply with the new watershed protection requirements of 40 CFR Part 141, Subpart T; and

(w) 40 CFR 141.552, which describes microbiological contaminant removal efficiencies that public water suppliers must demonstrate to obtain state approval of alternative filtration technologies.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1991 MAR p. 1492, Eff. 8/16/91; AMD, 1994 MAR p. 2131, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1998 MAR p. 1167, Eff. 5/1/98; AMD, 2000 MAR p. 3400, Eff. 12/8/00; AMD, 2003 MAR p. 1279, Eff. 6/27/03; AMD, 2004 MAR p. 3016, Eff. 1/1/05; AMD, 2006 MAR p. 540, Eff. 2/24/06; AMD, 2008 MAR p. 2625, Eff. 12/25/08; AMD, 2009 MAR p. 1794, Eff. 10/16/09; AMD, 2012 MAR p. 1141, Eff. 6/8/12; AMD, 2017 MAR p. 220, Eff. 2/18/17; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.209 Ground Water Under the Direct Influence of Surface Water Determinations

(1) The department adopts and incorporates by reference the Department of Environmental Quality Circular PWS-5, Ground Water Under the Direct Influence of Surface Water, 2022 edition. This circular establishes the standards for making ground water under the direct influence of surface water determinations.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 2003 MAR p. 1279, Eff. 6/27/03; AMD, 2008 MAR p. 2625, Eff. 12/25/08; AMD, 2022 MAR p. 1695, Eff. 8/27/22; AMD, 2026 MAR, Notice No. 2026-85, Eff. 9/26/26.

Mont. Admin. R. 17.38.210 Consecutive System Coverage

(1) As provided in this rule, a consecutive system that meets all of the conditions in (1)(a) through (e) may be excluded from the requirements of the National Primary Drinking Water Regulations, as described in 40 CFR Part 141. A consecutive system that is granted an exclusion under this rule is not excluded from any requirements, additional to those in 40 CFR Part 141, which are applicable to the system under Title 75, chapter 6, MCA, or rules adopted thereunder. In order to be considered for the exclusion, a consecutive system must:

(a) consist only of distribution and storage facilities and not have any collection or treatment facilities;

(b) obtain all of its water from, but not be owned or operated by, a public water system to which the regulations of Part 141 apply;

(d) not be a carrier that conveys passengers in interstate commerce;

(e) document that the wholesale water system from which it obtains all of its water will:

(i) include the consecutive system in its sampling plans;

(ii) be responsible for issuing public notice; and

(iii) be responsible for issuing consumer confidence reports for the consecutive system.

(2) To obtain an exclusion from the requirements of Part 141, a consecutive system must apply to the department. The request must be in writing and must document the system's conformance with the requirements of (1)(a) through (e). The request must be accompanied by a signed copy of the written agreement between the wholesale and consecutive systems. The agreement must implement the requirements of (1)(e).

(3) Based on a consideration of potential impacts to public health, the department may grant, partially grant, or deny a request for exclusion, and may revoke or modify any exclusion after it is granted.

(4) Unless otherwise required by the department, consecutive systems are not required to duplicate their wholesaler's entry-point sampling.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 2008 MAR p. 2625, Eff. 12/25/08; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.211 Ground Water Rule

(1) The department adopts and incorporates by reference 40 CFR Part 141, subpart S, except for 40 CFR 141.402(a)(2)(iv). This federal rule establishes the requirements to ensure that systems using ground water sources are adequately protected.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 2009 MAR p. 1794, Eff. 10/16/09; AMD, 2017 MAR p. 220, Eff. 2/18/17; AMD, 2024 MAR p. 253, Eff. 2/10/24; AMD, 2026 MAR, Notice No. 2026-85, Eff. 9/26/26.

Mont. Admin. R. 17.38.212 Initial Distribution System Evaluations

(1) The department adopts and incorporates by reference 40 CFR Part 141, subpart U. This federal rule establishes the requirements for determining monitoring locations and other requirements for subpart V compliance monitoring.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 2009 MAR p. 1794, Eff. 10/16/09; AMD, 2024 MAR p. 253, Eff. 2/10/24; AMD, 2026 MAR, Notice No. 2026-85, Eff. 9/26/26.

Mont. Admin. R. 17.38.213 Stage 2 Disinfection Byproducts Requirements

(1) The department adopts and incorporates by reference 40 CFR Part 141, subpart V. This federal rule establishes the requirements for monitoring and complying with maximum contaminant levels based on running annual averages for disinfection byproducts.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 2009 MAR p. 1794, Eff. 10/16/09; AMD, 2024 MAR p. 253, Eff. 2/10/24; AMD, 2026 MAR, Notice No. 2026-85, Eff. 9/26/26.

Mont. Admin. R. 17.38.214 Enhanced Treatment for Cryptosporidium

(1) The department adopts and incorporates by reference 40 CFR Part 141, subpart W. This federal rule establishes or extends treatment requirements in lieu of maximum contaminant levels for cryptosporidium.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 2009 MAR p. 1794, Eff. 10/16/09; AMD, 2024 MAR p. 253, Eff. 2/10/24; AMD, 2026 MAR, Notice No. 2026-85, Eff. 9/26/26.

Mont. Admin. R. 17.38.215 Bacteriological Quality Samples

(1) The total coliform monitoring frequency for all public water supply systems serving 1,000 or fewer people is one sample/month.

(2) The department adopts and incorporates by reference the table in 40 CFR 141.857(b), which sets forth total coliform monitoring frequency requirements for all public water supply systems serving more than 1,000 people.

(a) The minimum monitoring frequency for total coliforms is based on the average daily population served by the system during the month of peak use.

(3) Upon written request of the water supplier, the department may reduce the required coliform sampling frequency for a non-seasonal transient noncommunity water system that uses only ground water that is not under the direct influence of surface water and serves a maximum daily population of 1,000 persons or fewer to once in each calendar quarter.

(a) Before applying for quarterly monitoring, the system must operate and sample coliform bacteria monthly for a minimum of 24 consecutive months;

(b) The determination to reduce monitoring must be based upon the results of coliform bacteria samples from the past 24 consecutive months of system operation, sanitary surveys, and any other information that indicates quarterly sampling is adequate to protect public health;

(c) A water supplier, who is authorized to sample quarterly may continue to sample quarterly unless triggered to return to monthly monitoring. The following will trigger monthly monitoring, or more frequent monitoring pursuant to (4), the month following the event:

(i) the system triggers a Level 2 assessment or two Level 1 assessments under the provisions of 40 CFR 141.859 in a rolling 12-month period;

(ii) the system has an E. coli MCL violation;

(iii) the system has a coliform treatment technique violation;

(iv) the system has two 40 CFR Part 141, subpart Y, monitoring violations or one subpart Y monitoring violation and one Level 1 assessment under the provisions of 40 CFR 141.859 in a rolling 12-month period for a system on quarterly monitoring;

(v) constructing or modifying a system or system components without prior department approval, in violation of 75-6-112, MCA, and ARM 17.38.101;

(vi) determination that a source or distribution system is vulnerable to contamination based upon the results of a sanitary survey, sample analyses, technical investigations or other scientifically defensible information; or

(vii) not maintaining or operating a system in accordance with the requirements of this chapter when the department determines that the violation may affect the microbiological quality of the water supply system.

(d) When monthly monitoring is triggered, the department shall provide written notice to the system that monthly monitoring is required;

(e) Under extreme circumstances, for the purpose of determining eligibility for remaining on or qualifying for quarterly monitoring, the department may elect to not count monitoring violations under 40 CFR 141.860(c)(1) if the missed sample is collected no later than the end of the monitoring period following the monitoring period in which the sample was missed. The system must collect the make-up sample in a different week than the routine sample for that monitoring period and must collect the sample as soon as possible during the monitoring period. This authority does not affect the provisions of 40 CFR 141.860(c)(1) and 141.861(a)(4);

(f) The system must continue monthly monitoring until the following criteria have been met:

(i) within the last 12 months, the system must have completed a sanitary survey or a site visit by the department or a voluntary Level 2 assessment by a party approved by the department, be free of sanitary defects, and have a protected water source;

(ii) no MCL violations under 40 CFR 141.63, no monitoring violations under 40 CFR 141.21 or subpart Y, and no coliform treatment technique trigger exceedances or treatment technique violations under subpart Y, for a minimum of 12 months;

(iii) valid samples that do not contain coliform bacteria have been taken for at least 12 consecutive months of system operation;

(iv) the department has approved all submitted plans and specifications for system construction and modifications in accordance with 75-6-112, MCA, and ARM 17.38.101;

(v) the identified sources of contamination have been removed;

(vi) appropriate improvements in maintenance and operation have been implemented; and

(vii) the public water system petitions the department and the petition is approved in writing.

(g) Systems collecting samples on a quarterly frequency must conduct additional routine monitoring the month following one or more total coliform-positive samples (with or without a Level 1 treatment technique trigger). Systems must collect at least three routine samples during the next month. Systems may either collect samples at regular time intervals throughout the month or may collect all required routine samples on a single day if samples are taken from different sites. Systems must use the results of additional routine samples in coliform treatment technique trigger calculations under 40 CFR 141.859(a).

(4) The department may increase the required sampling frequency of any public water supply system based upon sampling results or other conditions that indicate a risk to the health of the water users. The department shall provide the supplier with a written explanation of any revised sampling requirements. A supplier shall implement any increase in sampling frequency immediately upon receipt of written notice of the increase from the department.

(5) The department adopts and incorporates by reference the following, which set forth requirements for the revised total coliform rule (RTCR):

(a) 40 CFR 141.851, except that the term "April 1, 2016" is replaced with "February 18, 2017." This rule sets forth general requirements for the RTCR;

(b) 40 CFR 141.852, which sets forth analytical methods and laboratory certification requirements for coliform testing, except that, for the purpose of this subchapter, the phrase "laboratory certified by the EPA or a primacy State" means "approved laboratory" as defined in ARM 17.38.202;

(c) 40 CFR 141.853, except for subsection (a)(5)(ii) and subsection (b). And except that the term "March 31, 2016" is replaced with "February 18, 2017." This rule sets forth general monitoring requirements for all systems;

(d) 40 CFR 141.854(a)(1) through 141.854(a)(3), which set forth general requirements for non-community water systems serving 1,000 or fewer people using only ground water;

(e) 40 CFR 141.854(i)(1), 141.856(a)(4)(i), and 141.857(a)(4)(i), except that the term "April 1, 2016" is replaced with "February 18, 2017." This rule provides start-up procedure requirements for seasonal systems. The department may exempt any seasonal system from some or all of the requirements for seasonal systems if the entire distribution system remains pressurized during the entire period that the system is not operating;

(f) 40 CFR 141.855(a), which sets forth general requirements for community systems serving 1,000 or fewer people using only ground water;

(g) 40 CFR 141.856(a)(1) through 141.856(a)(3) and 141.856(c), which set forth general requirements for subpart H public water systems serving 1,000 or fewer people;

(h) 40 CFR 141.857(a)(1) through 141.857(a)(3) and 141.857(c). This rule sets forth general requirements for public water systems serving more than 1,000 people;

(i) 40 CFR 141.858, which sets forth repeat monitoring and E. coli requirements, except for the following changes:

(i) the first sentence in 141.858(a)(1) is changed to "If a sample taken under ARM 17.38.215(1) through (3), 40 CFR 141.856(c), or 40 CFR 141.857(c), is total coliform-positive, the system must collect a set of repeat samples within 24 hours of being notified of the positive result."; and

(ii) 141.858(a)(5) is changed to "Results of all routine and repeat samples taken under ARM 17.38.215, not invalidated by the State, must be used to determine whether a coliform treatment technique trigger specified in 40 CFR 141.859 has been exceeded.";

(j) 40 CFR 141.859, except for subsection (a)(2)(iii) and subsection (b)(4)(ii). This rule sets forth requirements for coliform treatment technique triggers and assessments for protection against potential fecal contamination;

(k) 40 CFR 141.860, which sets forth requirements for violations; and

(l) 40 CFR 141.861, which sets forth requirements for reporting and recordkeeping.

(6) A special purpose sample, including a sample taken to determine whether adequate disinfection has occurred after pipe placement or repair, may not be taken from a part of the public water supply distribution system that is actively serving the public and must not be used to determine compliance with the RTCR. Repeat samples taken pursuant to 40 CFR 141.858 are not special purpose samples and must be used to determine whether the coliform treatment technique trigger has been exceeded.

(7) The department shall perform a special monitoring evaluation during each sanitary survey of ground water systems serving 1,000 or fewer people to review the status of the system, including the distribution system, to determine whether the system is on an appropriate monitoring schedule. After the department has performed the special monitoring evaluation during each sanitary survey, the department may modify the system's monitoring schedule, as necessary, or it may allow the system to stay on its existing monitoring schedule, consistent with this rule. The department may not allow systems to begin less frequent monitoring under the special monitoring evaluation unless the system has already met the applicable criteria for less frequent monitoring in (3)(b).

(8) A supplier shall collect at least two samples that must be analyzed for coliform bacteria from any new source of water supply to demonstrate compliance with this subchapter before the source is connected to a public water supply system.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1977 MAR p. 1187, Eff. 12/24/77; AMD, 1982 MAR p. 594, Eff. 3/26/82; AMD, 1987 MAR p. 311, Eff. 3/27/87; AMD, 1991 MAR p. 1492, Eff. 8/16/91; AMD, 1994 MAR p. 2131, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1998 MAR p. 1167, Eff. 5/1/98; AMD, 1998 MAR p. 1927, Eff. 6/26/98; AMD, 1999 MAR p. 1222, Eff. 6/4/99; AMD, 2000 MAR p. 3400, Eff. 12/8/00; AMD, 2004 MAR p. 3016, Eff. 1/1/05; AMD, 2017 MAR p. 220, Eff. 2/18/17; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.216 Chemical and Radiological Quality Samples

(1) A supplier of water shall collect water samples taken from each entry point location serving a community and nontransient noncommunity public water supply system for analysis by an approved laboratory of the following inorganic chemicals:

(a) alkalinity total

(b) calcium

(d) sodium

(e) iron

(f) manganese

(g) hardness

(h) specific conductance

(i) sulphate

(j) chloride

(k) magnesium

(2) Samples required in (1) must be collected and analyzed at the frequency for regulated inorganic chemicals, other than nitrate and nitrite, as required in (3) . The department may waive the sampling and analysis requirement for any or all of these chemicals if the results of at least one sample demonstrate that further sampling is unnecessary.

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

(a) 40 CFR 141.23, which sets forth sampling and analytical method requirements for inorganic chemicals except that 141.23(i) is replaced with the following:

"(i) Compliance with 40 CFR 141.11 or 141.62(b) (as appropriate) shall be determined based on the analytical result(s) obtained at each sampling point.

(1) For systems monitoring more than once per year, compliance with the maximum contaminant levels, as described in 40 CFR 141.11 or 141.62(b) , for fluoride, asbestos, barium, cadmium, chromium, mercury, selenium, antimony, beryllium, cyanide, nickel, thallium, or arsenic is determined by a running annual average at any sampling point.

(2) For systems monitoring annually or less frequently for fluoride, asbestos, barium, cadmium, chromium, mercury, selenium, antimony, beryllium, cyanide, nickel, thallium, or arsenic whose sample result(s) exceed(s) a maximum contaminant level, as described in 40 CFR 141.11 or 141.62(b) , must begin quarterly sampling. The system will not be considered in violation of the maximum contaminant level until it has completed one year of quarterly sampling.

(3) If any sample result will cause the running annual average to exceed the maximum contaminant level at the sampling point, the system will be considered out of compliance with the maximum contaminant level immediately.

(4) If a system fails to collect the required number of samples, compliance will be based on the total number of samples collected.

(5) If any sample result is less than the detection limit, zero will be used to calculate the annual average.

(6) Compliance with the maximum contaminant levels for nitrate and nitrite is determined based on one sample if the levels of these contaminants are below the MCLs. If the levels of nitrate and/or nitrite exceed the MCLs in the initial sample, a confirmation sample is required in accordance with paragraph (f)(2) of this section, and compliance shall be determined based on the average of the initial and confirmation samples.

(7) Arsenic sampling results will be reported to the nearest 0.001mg/L."

(b) 40 CFR 141.24, which sets forth sampling and analytical method requirements for organic chemicals other than total trihalomethanes;

(d) 40 CFR 141.26, which sets forth sampling requirements for radioactive contaminants in community water systems;

(e) CFR 141.27, which sets forth requirements for alternate analytical methods;

(f) 40 CFR 141.28, which sets forth requirements for the use of certified laboratories by public water system suppliers and by the department, except that, for the purpose of this subchapter, the phrase "certified laboratory" means "approved laboratory" as defined in ARM 17.38.202. References to 40 CFR 141.21 in 40 CFR 141.28 also refer to ARM 17.38.215;

(g) 40 CFR 141.29, which sets forth sampling requirements for consecutive public water systems;

(h) 40 CFR 141.40, which sets forth special sampling and analytical method requirements for unregulated inorganic and organic contaminants;

(i) 40 CFR 141.41, which sets forth special monitoring and analytical method requirements for sodium;

(j) 40 CFR 141.42, which sets forth special requirements for water system materials subject to corrosion;

(k) 40 CFR 141.80, which sets forth general requirements for the control of lead and copper;

(l) 40 CFR 141.86, which sets forth sampling and analytical method requirements for lead and copper;

(m) 40 CFR 141.87, which sets forth sampling requirements for water quality parameters;

(n) 40 CFR 141.88, which sets forth sampling requirements for lead and copper in source water;

(o) 40 CFR 141.89, which sets forth analytical method requirements for lead, copper, and water quality parameters;

(p) 40 CFR 141.130, which sets forth general requirements for control of disinfectants and disinfection byproducts;

(q) 40 CFR 141.131, which sets forth analytical method requirements for disinfectants and disinfection byproducts;

(r) 40 CFR 141.132, which sets forth sampling requirements for disinfectants and disinfection byproducts; and

(s) 40 CFR 141.133, which sets forth compliance requirements for disinfectants and disinfection byproducts.

(4) A supplier shall sample every new source of water supply, both surface and ground, for nitrate and nitrite analyses to demonstrate compliance with this subchapter before the water is served to the public. Unless otherwise directed by the department, a supplier also shall sample all new sources of water supply for analysis of the parameters identified in (3) before the end of the calendar quarter in which the source is connected to a public water supply. A supplier shall also sample a new source serving a transient non-community water system for either total dissolved solids (TDS) or specific conductance.

(5) Further sampling or corrective action may be required by the department if the results of the analyses do not demonstrate conformance with applicable maximum contaminant levels or actions levels.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1977 MAR p. 1187, Eff. 12/24/77; AMD, 1982 MAR p. 594, Eff. 3/26/82; AMD, 1991 MAR p. 1492, Eff. 8/16/91; AMD, 1994 MAR p. 2131, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1998 MAR p. 1167, Eff. 5/1/98; AMD, 2000 MAR p. 3400, Eff. 12/8/00; AMD, 2003 MAR p. 1279, Eff. 6/27/03; AMD, 2004 MAR p. 3016, Eff. 1/1/05; AMD, 2008 MAR p. 2625, Eff. 12/25/08; AMD, 2010 MAR p. 1798, Eff. 8/13/10; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.217 Sampling and Reporting Responsibility

(1) The supplier of a public water supply system is responsible for the proper collection of samples required in this subchapter for microbiological, inorganic, organic, and radiological analysis and submission of the samples to an approved laboratory or to the state laboratory at the times designated by the department. The supplier is also responsible for performing the control tests required in this subchapter. Department personnel, where their programs allow, may assist in the collection, submission and analysis of the samples. Suppliers are also responsible for reporting the results of these samples and control tests in accordance with the requirements of this subchapter. A supplier shall use reporting formats specified by the department for any reporting required in this subchapter.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1977 MAR p. 1187, Eff. 12/24/77; AMD, 1982 MAR p. 594, Eff. 3/26/82; AMD, 1991 MAR p. 1492, Eff. 8/16/91; AMD, 1994 MAR p. 2131, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1998 MAR p. 1167, Eff. 5/1/98; AMD, 2000 MAR p. 3400, Eff. 12/8/00; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.218 Verification Samples

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-6-103, MCA
Implementing statute(s): 75-6-103, MCA
History: NEW, 1977 MAR p. 1187, Eff. 12/24/77; AMD, 1982 MAR p. 594, Eff. 3/26/82; AMD, 1991 MAR p. 1492, Eff. 8/16/91; AMD, 1994 MAR p. 2131, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1998 MAR p. 1167, Eff. 5/1/98; REP, 2000 MAR p. 3400, Eff. 12/8/00.

Mont. Admin. R. 17.38.219 Special Samples

(1) Under special conditions, additional samples may be required by the department. Such samples may be to determine adequacy of disinfection following line installation, replacement, or repair. Samples may also be required for determination of adequacy of source, storage, treatment or distribution of water to the public. The department may use these samples to determine compliance with MCLs, action levels, and treatment technique requirements, as set forth in this subchapter.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1977 MAR p. 1187, Eff. 12/24/77; AMD, 1982 MAR p. 594, Eff. 3/26/82; AMD, 1991 MAR p. 1492, Eff. 8/16/91; AMD, 1994 MAR p. 2131, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.225 Control Tests

(1) To determine compliance with treatment requirements of this subchapter, to judge variations in water quality, to identify objectionable water characteristics, and to detect the presence of foreign substances which may adversely affect the quality of the water, control tests must be performed, recorded, and reported by water suppliers in accordance with procedures and reporting formats approved by the department.

(2) Disinfectant residual tests must be conducted daily by:

(a) surface water systems and consecutive systems to a surface water system in accordance with the requirements in 40 CFR 141.72 and with the other requirements in this subchapter for disinfectant residual monitoring for surface water supplies. At least two disinfectant residual tests must be conducted daily, one at each entry point to the distribution system and one in the distribution system;

(b) ground water systems in accordance with 40 CFR Par 141, subpart S. Disinfectant residual tests must be conducted daily at each entry point to the distribution system to prove compliance with the four-log virus inactivation or removal requirement; and

(c) ground water systems required by the department under ARM 17.38.229 to maintain a residual, and by consecutive systems connected to those systems, at each entry point to the distribution system and, if required to maintain a residual in the distribution system, one in the distribution system. For consecutive systems, the entry point is the point at which the purchased water enters the distribution system of the consecutive system.

(3) The department may waive, on a case-by-case basis, disinfection residual testing at the entry point, in the distribution system, or both for ground water and consecutive systems.

(4) A test for chlorine residual in the distribution system must be made at selected points consistent with the department-approved microbiological sample siting plan and changed regularly so as to cover the system completely at least each week.

(5) Only the following analytical methods or other methods approved by the department may be used to demonstrate compliance with the requirements of this rule:

(a) Turbidity measurements must be taken as set forth in 40 CFR 141.74. Secondary turbidity standards may be used for daily calibration of turbidimeters if those standards are calibrated against an EPA-approved primary at least quarterly. Documentation of the date, analyst performing the procedure, procedures used, and results of the quarterly calibration checks must be maintained by the water system and reported to the department within ten days following the end of the month during which this procedure took place.

(b) Residual disinfectant concentrations must be measured as set forth in 40 CFR 141.74. Residual disinfectant concentrations for free chlorine and combined chlorine may also be measured by using DPD colorimetric test kits if approved by the department.

(d) Measurements for pH must be taken as set forth in 40 CFR 141.23(k)(1).

(6) All control test measurements, except for bacteriological samples, for community and nontransient noncommunity water supply systems must be conducted by a person certified under the provisions of Title 37, chapter 42, MCA, or by a person who has been properly trained to conduct these measurements by the operator in responsible charge or by the department. Bacteriological samples for community and nontransient noncommunity water supply systems must be collected by a person approved by the department or certified under the provisions of Title 37, chapter 42, MCA. Measurements for total coliform bacteria, fecal coliform bacteria, and heterotrophic plate count must be conducted by an approved laboratory.

(7) The department adopts and incorporates by reference the following:

(a) 40 CFR 141.22, which sets forth turbidity sampling and analytical requirements, except for the second and third sentences in 141.22(a).

(b) 40 CFR 141.74, which sets forth analytical and monitoring requirements, except for the following changes:

(i) "1 NTU" means 1.0 nephelometric turbidity unit for the purposes of this subchapter;

(ii) The first sentence in 40 CFR 141.74(b)(4)(i)(B)(ii) is replaced with the following: "If the system uses more than one point of disinfectant application before or at the first customer, the system must determine the CT value of each disinfection sequence immediately prior to the next point of disinfectant application during peak hourly flow, except that contact time achieved prior to filtration is not included in this calculation.";

(iii) The following phrase is inserted after the phrase "system's filtered water" in the first sentence in 40 CFR 141.74(c)(1): "and individual filter effluent";

(iv) The last sentence in 40 CFR 141.74(c)(1) is not adopted; and

(v) 40 CFR 141.74(b)(5) and 141.74(c)(2) are modified to read: "The residual disinfectant concentration of the water entering the distribution system must be monitored continuously, and the lowest value must be recorded each day, except that if there is a failure in the continuous monitoring equipment, grab sampling every four hours may be conducted in lieu of continuous monitoring, but for no more than five working days following the failure of the equipment."

(d) 40 CFR 141.174, which sets forth filtration sampling requirements;

(e) 40 CFR 141.530, 141.531, 141.532, 141.533, 141.534, 141.535, 141.536, 141.540, 141.541, 141.542, 141.543 and 141.544, which set forth requirements for disinfection profiling and benchmarking for public water suppliers using surface water or GWUDISW and that serve fewer than 10,000 people;

(f) 40 CFR 141.553, which describes turbidity monitoring provisions for systems that utilize lime softening;

(g) 40 CFR 141.560, which describes individual filter monitoring requirements for public water suppliers that utilize direct or conventional filtration treatment;

(h) 40 CFR 141.561, which describes monitoring requirements for public water suppliers when continuous turbidity monitoring equipment fails;

(i) 40 CFR 141.562, which describes turbidity monitoring requirements for public water suppliers that utilize two or fewer filters; and

(j) Title 37, chapter 42, MCA, which sets forth requirements for water treatment plant operators.

(8) Copies of Title 37, chapter 42, MCA, may be obtained from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1977 MAR p. 1187, Eff. 12/24/77; AMD, 1982 MAR p. 594, Eff. 3/26/82; AMD, 1991 MAR p. 1492, Eff. 8/16/91; AMD, 1994 MAR p. 2131, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2000 MAR p. 3400, Eff. 12/8/00; AMD, 2004 MAR p. 3016, Eff. 1/1/05; AMD, 2008 MAR p. 2625, Eff. 12/25/08; AMD, 2009 MAR p. 1794, Eff. 10/16/09; AMD, 2012 MAR p. 1141, Eff. 6/8/12; AMD, 2017 MAR p. 220, Eff. 2/18/17; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.226 Control Tests--Surface Supplies

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-6-103, MCA
Implementing statute(s): 75-6-103, MCA
History: NEW, 1977 MAR p. 1187, Eff. 12/24/77; AMD, 1982 MAR p. 594, Eff. 3/26/82; AMD, 1991 MAR p. 1492, Eff. 8/16/91; AMD, 1994 MAR p. 2131, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1998 MAR p. 2035, Eff. 5/1/98; REP, 2000 MAR p. 3400, Eff. 12/8/00.

Mont. Admin. R. 17.38.227 Special Control Tests

A special test may be required for a public water supply system exceeding the following amounts:

Constituent Maximum Amount

(1) Iron............................................0.30 mg/l

(2) Manganese..............................0.05 mg/l

(3) Chloride...................................250.00 mg/l

(4) Sulfate......................................250.00 mg/l

(5) Total dissolved solids.............500.00 mg/l

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1977 MAR p. 1187, Eff. 12/24/77; AMD, 1982 MAR p. 594, Eff. 3/26/82; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.228 Ultraviolet Treatment for Groundwater Sources

(1) Systems that use ultraviolet (UV) treatment for any groundwater source must meet the requirements of this rule All UV treatment must be reviewed and approved by the department under the requirements of ARM 17.38.101. All systems that are designed and approved to provide 4-log virus inactivation must treat all water to be served to achieve 4-log virus inactivation.

(2) For systems using UV treatment that does not provide 4-log virus inactivation:

(a) a sample tap must be installed that allows for sampling of raw water from each source individually;

(b) one raw water total coliform sample must be collected by the system from each source that is subject to the UV treatment at the same frequency as the distribution system total coliform samples. Raw water samples under this rule are in addition to routine total coliform monitoring; and

(3) Systems with UV treatment that provide 4-log virus inactivation must monitor to ensure the UV treatment is functioning.

(a) Monitoring must be done at the point of disinfectant application.

(b) The dose and flow rate must be monitored and recorded continuously.

(c) For each day the treatment system is operating and serving water, the following must be recorded for each UV reactor:

(i) date;

(ii) treatment plant name;

(iii) treatment plant on and off time;

(iv) dose; and

(v) flow rate.

(4) Systems with UV treatment that provide 4-log virus inactivation must report on department-approved forms and formats that include the following information:

(a) Public water system name; public water system identification number; month and year; treatment plant name; treatment plant status (on and off);

(b) For each day the treatment system was operational and serving water, it must include the date, minimum daily dose, and highest flow rate;

(c) If the UV treatment system consists of multiple UV reactors, the monitoring and reporting shall be for each reactor separately;

(d) The operational status of all UV lamps; and

(e) The calibration of ultraviolet transmittance (UVT) instruments, calibration of the UV sensors, and recalibration of reference sensors in accordance with a protocol the department approves.

(f) Water that does not meet the specifications of this rule is not allowed. All of the water served must be treated by UV treatment to the minimum UV dose as approved by the department.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 2024 MAR p. 2144, Eff. 9/7/24.

Mont. Admin. R. 17.38.229 Microbial Treatment

(1) Full-time disinfection with chlorine, chlorine dioxide, chloramines, or a disinfectant that maintains a residual is mandatory where the source of water is from lakes, reservoirs, or streams, or ground water sources under the direct influence of surface water, or where the water may be exposed to a potential source of contamination including, but not limited to:

(a) losses of pressure within the system that could result in backflow or infiltration conditions;

(b) substandard distribution, pumping, or storage facilities; or

(c) other circumstances where the department determines that the history and nature of contamination indicates a residual is required for a safe water.

(2) Full-time microbial treatment that provides adequate inactivation or removal of harmful pathogens is mandatory whenever the water may be exposed to a potential source of contamination through:

(a) treatment processes, as determined by the department; or

(b) unprotected or poorly protected ground water sources.

(3) Methods of full-time microbial treatment must be reviewed and approved by the department prior to the installation or use of any form of treatment.

(4) When the department determines a residual is required in a ground water system, the residual disinfectant concentration measured as free chlorine, total chlorine, combined chlorine, chlorine dioxide, or other department approved disinfectant(s) must not be less than 0.2mg/l using the DPD method or 0.1mg/l using the amperometric titration method. A heterotrophic bacteria concentration in water in the distribution system less than or equal to 500 per milliliter, measured as heterotrophic plate count (HPC), is an acceptable substitute for disinfectant residual for purposes of determining compliance with this rule.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1977 MAR p. 1187, Eff. 12/24/77; AMD, 1982 MAR p. 594, Eff. 3/26/82; AMD, 1991 MAR p. 1492, Eff. 8/16/91; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1998 MAR p. 1167, Eff. 5/1/98; AMD, 2003 MAR p. 1279, Eff. 6/27/03; AMD, 2006 MAR p. 540, Eff. 2/24/06; AMD, 2009 MAR p. 1794, Eff. 10/16/09; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.230 Fluoridation

(1) Where fluoridation is practiced, laboratory analysis must be made at least once daily of the water after fluoridation to assure an average fluoride content of not over 1.5 ppm in the finished water, using a control range from 0.9 ppm lower limits to 1.5 ppm upper limit.

(2) Proper records of the analyses must be kept on file and a copy forwarded to the department monthly. One sample of treated water must be submitted monthly to the department for analysis.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1977 MAR p. 1187, Eff. 12/24/77; AMD, 1982 MAR p. 594, Eff. 3/26/82; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.231 Sanitary Surveys

(1) Public water supply systems must undergo an initial sanitary survey by June 29, 1994, for community systems and nontransient noncommunity systems, and by June 29, 1999, for transient noncommunity water systems. Thereafter, nontransient noncommunity and transient noncommunity water systems must undergo another sanitary survey at least once every five years, and community water supply systems must undergo another sanitary survey at least once every three years except that the department may define a process by which a community system may be determined to be an outstanding performer and have its sanitary survey schedule reduced to no less frequently than every five years. The department must review the results of each sanitary survey to determine whether the existing monitoring frequency is adequate and what additional measures, if any, the system needs to undertake to improve drinking water quality.

(2) Sanitary surveys must be performed by the department or an agent approved by the department. The supplier is responsible for ensuring the survey takes place.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1991 MAR p. 1492, Eff. 8/16/91; AMD, 1994 MAR p. 2131, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2009 MAR p. 1794, Eff. 10/16/09; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.234 Testing and Sampling Records and Reporting Requirements

(1) To ensure the safety of water delivered to the consumers, it is essential that there be a record of laboratory examinations of the water sufficient to show it is safe with respect to both bacteriological quality and other maximum contaminant levels. Suppliers of water shall maintain accurate and complete testing records at all water plants and for all water systems. Complete records must be made available to the department upon request.

(2) A supplier shall keep a daily record of the samples and control tests required in ARM 17.38.225, 17.38.227, 17.38.228, 17.38.230, and 17.38.234(4). The records must be kept on report forms approved by the department and must be prepared in duplicate. Unless indicated otherwise in these rules, the original records must be forwarded to the department by the tenth day of the month following testing.

(3) Recordkeeping requirements for water haulers are set forth in ARM 17.38.513.

(4) Actual laboratory reports may be kept or data may be transferred to tabular summaries, provided the following information is included:

(a) the date, place and time of sampling;

(b) the name of the person who collected the sample;

(c) identification of the sample as to whether it was a routine distribution system sample, repeat sample, triggered source sample, confirmation sample, composite sample, raw or process water sample, or other special purpose sample;

(d) date and time of analysis;

(e) laboratory and person responsible for performing analysis;

(f) the analytical technique/method used, analysis number; and

(g) the results of the analysis.

(5) A supplier of a public water supply system that has exceeded the microbiological contaminant MCLs specified in ARM 17.38.207 shall report the violation to the department by the end of the day it learns of the violation either electronically, by fax, or by telephone to (406) 444-1947. If the supplier chooses to report by telephone, and a person does not answer the telephone, leaving a voicemail message will constitute compliance with this reporting requirement.

(6) A supplier utilizing a water treatment plant employing coagulation, settling, softening, or filtration shall keep a daily record of the operations performed in the treatment process together with measured flows, phenolphthalein (p) alkalinity, total alkalinity, hardness (where softening is utilized), chemical doses, observations, and costs related to the operation of the plant.

(7) The department adopts and incorporates by reference the following:

(a) 40 CFR 141.31, which sets forth general reporting requirements for public water supplies;

(b) 40 CFR 141.33, which sets forth general recordkeeping requirements for public water supplies;

(d) 40 CFR 141.75, which sets forth reporting requirements for public water supplies that use surface water or GWUDISW, except that, for the purposes of this subchapter "5 NTU" means 5.0 nephelometric turbidity units;

(e) 40 CFR 141.76(b) and (d), which set forth reporting and recordkeeping requirements for the recycle provisions;

(f) 40 CFR 141.90 and 141.91, which set forth reporting and recordkeeping requirements for lead and copper;

(g) 40 CFR 141.134, which, in addition to 40 CFR 141.31, sets forth reporting requirements for disinfection byproducts;

(h) 40 CFR 141.175, which, in addition to 40 CFR 141.75, sets forth reporting requirements for public water supplies that serve 10,000 or more people that use surface water or GWUDISW;

(i) 40 CFR 141.563, which sets forth reporting and follow-up actions that public water suppliers that utilize surface water or GWUDISW, serve fewer than 10,000 people, and are required to filter must take when certain individual filter turbidity limits are exceeded;

(j) 40 CFR 141.564, which sets forth reporting and follow-up actions that public water suppliers that utilize surface water or GWUDISW, serve fewer than 10,000 people, are required to filter, and utilize lime softening must take when certain individual filter turbidity limits are exceeded;

(k) 40 CFR 141.570, which, in addition to 40 CFR 141.75, sets forth general reporting requirements for public water suppliers that utilize surface water or GWUDISW and serve fewer than 10,000 people; and

(l) 40 CFR 141.571, which, in addition to 40 CFR 141.75, sets forth general recordkeeping requirements for public water suppliers that utilize surface water or GWUDISW and that serve fewer than 10,000 people.

(8) Upon request by the department, a public water supplier shall ensure that recommendations of a certified professional engineer required under 40 CFR 141.175 or 40 CFR 141.563 are implemented through consultation and technical assistance provided by the department or by a third party approved by the department.

(9) Upon discovering that a waterborne disease outbreak potentially attributable to that water system has occurred, a supplier shall report that occurrence to the department as soon as possible, but no later than by the end of the next business day.

(10) Upon request by the department, suppliers shall timely submit to the department copies of any records required to be maintained by these rules.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1977 MAR p. 1187, Eff. 12/24/77; AMD, 1982 MAR p. 594, Eff. 3/26/82; AMD, 1991 MAR p. 1492, Eff. 8/16/91; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1998 MAR p. 1167, Eff. 5/1/98; AMD, 2000 MAR p. 3400, Eff. 12/8/00; AMD, 2003 MAR p. 1279, Eff. 6/27/03; AMD, 2004 MAR p. 3016, Eff. 1/1/05; AMD, 2008 MAR p. 2625, Eff. 12/25/08; AMD, 2010 MAR p. 1798, Eff. 8/13/10; AMD, 2012 MAR p. 1141, Eff. 6/8/12; AMD, 2017 MAR p. 220, Eff. 2/18/17; AMD, 2024 MAR p. 253, Eff. 2/10/24; AMD, 2024 MAR p. 2144, Eff. 9/7/24.

Mont. Admin. R. 17.38.235 Operating Records

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-6-103, MCA
Implementing statute(s): 75-6-103, MCA
History: NEW, 1977 MAR p. 1187, Eff. 12/24/77; AMD, 1982 MAR p. 594, Eff. 3/26/82; AMD, 1991 MAR p. 1492, Eff. 8/16/91; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1998 MAR p. 1167, Eff. 5/1/98; REP, 2000 MAR p. 3400, Eff. 12/8/00.

Mont. Admin. R. 17.38.239 Public Notification for Community and Noncommunity Supplies

(1) The department adopts and incorporates by reference 40 CFR Part 141, subpart Q. This federal rule establishes public notification requirements for drinking water violations.

(2) The department adopts and incorporates by reference 40 CFR Part 141, subpart O. This federal rule establishes requirements for consumer confidence reports.

(3) The department adopts and incorporates by reference 40 CFR Part 141.85. This federal rule establishes the public education and supplemental monitoring requirements for exceedances of the lead action level.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1991 MAR p. 1492, Eff. 8/16/91; AMD, 1994 MAR p. 2131, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1998 MAR p. 1167, Eff. 5/1/98; AMD, 2000 MAR p. 3400, Eff. 12/8/00; AMD, 2003 MAR p. 1279, Eff. 6/27/03; AMD, 2008 MAR p. 2625, Eff. 12/25/08; AMD, 2010 MAR p. 1798, Eff. 8/13/10; AMD, 2024 MAR p. 253, Eff. 2/10/24; AMD, 2026 MAR, Notice No. 2026-85, Eff. 9/26/26.

Mont. Admin. R. 17.38.244 Variances and Exemptions

(1) The department adopts and incorporates by reference the following:

(a) 40 CFR 141.4(a) , which sets forth general requirements for variances and exemptions;

(b) 40 CFR Part 142, Subpart E, which sets forth requirements for variances, except that the department has the same authority as the EPA administrator has in a state that does not have primary enforcement responsibility for enforcement of the SDWA;

(c) 40 CFR Part 142, Subpart F, which sets forth requirements for the issuance of exemptions, except that the department has the same authority as the EPA administrator has in a state that does not have primary enforcement responsibility for enforcement of the SDWA;

(d) 40 CFR Part 142, Subpart G, which sets forth the identification of best technologies, treatment techniques, or other means generally available; and

(e) CFR Part 142, Subpart K, which sets forth the requirements for variances for small public water supply systems.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, 75-6-107, MCA
History: NEW, 1991 MAR p. 1492, Eff. 8/16/91; AMD, 1994 MAR p. 2131, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1998 MAR p. 1167, Eff. 5/1/98; AMD, 2000 MAR p. 3400, Eff. 12/08/00; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.248 Service Connection Fees

(1) A public water supplier shall pay to the department an annual fee for each state fiscal year. The annual fee must be postmarked or delivered to the department no later than March 1 of each year.

(2) For purposes of this rule, an active service connection is one that provides water service for human consumption to a customer that is billed directly or otherwise held directly responsible by a public water supply system supplier for payment for that service. Activities that do not qualify as human consumption include water used exclusively by livestock or for fire protection.

(3) The annual fee does not apply to a service connection if:

(a) the service connection has been turned off for the entire fiscal year prior to any March 1 fee payment deadline; and

(b) the public water supply system has not required payment for service for that time period.

(4) Each community public water supply system supplier shall determine the total number of active service connections for each fiscal year based on an assessment that occurs between July 1 and August 1 of that fiscal year.

(5) The total annual service connection fee is determined by multiplying the number of active service connections by the appropriate annual fee per service connection.

(6) Regardless of the number of service connections, the minimum annual fee for any community public water system is $100.

(7) Fees for community public water supply systems are determined as follows:

(a) The annual fee per active service connection is $2.25 for fiscal years 1992 and 1993.

(b) Beginning fiscal year 1994, the annual fee per active service connection is $2.00.

(8) Fees for noncommunity public water supply systems are determined as follows:

(a) The annual fee for a nontransient noncommunity public water supply system is $100.

(b) The annual fee for any other noncommunity public water supply system is $50.

(9) Failure to pay the annual fee, including any outstanding past-due balance, by March 1 of the fiscal year for which the fee is assessed subjects suppliers to an additional charge to be calculated by multiplying the total outstanding balance by 10%.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, 75-6-108, MCA
History: NEW, 1991 MAR p. 2617, Eff. 12/27/91; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2000 MAR p. 3400, Eff. 12/8/00; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.249 Certified Operator and Designated Contact Person

(1) The owner of a community or nontransient noncommunity public water supply or wastewater treatment system shall retain a certified operator, as defined in Title 37, chapter 42, MCA. The certified operator shall perform monitoring and reporting in accordance with the requirements of this subchapter. The certified operator must be in responsible charge of the public water supply or wastewater treatment system in accordance with Title 37, chapter 42, MCA.

(2) Within 30 days of a written request by the department, the owner of a public water supply or wastewater treatment system shall provide the name, address, and telephone number of a designated person who shall be responsible for contact and communications with the department. The designated person shall be responsible for matters related to system alteration, extension and construction, monitoring and sampling, maintenance, operation, record keeping, notification, and reporting.

(3) The owner of a public water supply or wastewater treatment system shall report any change in certified operator or designated person to the department within 30 days after the change.

(4) Any communication or notice made by the department to a person designated under (2) is deemed to be adequate communication or notice to the owner of the public water supply or wastewater treatment system.

(5) The department adopts and incorporates by reference Title 37, chapter 42, MCA. These statutes establish requirements for operators of public water supply systems and wastewater treatment plants. A person may request a copy by:

(a) calling (406) 444-2544;

(b) visiting the Department of Environmental Quality’s website; or

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1977 MAR p. 1187, Eff. 12/24/77; AMD, 1982 MAR p. 594, Eff. 3/26/82; AMD, 1991 MAR p. 1492, Eff. 8/16/91; AMD, 1994 MAR p. 2131, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1999 MAR p. 1895, Eff. 9/10/99; AMD, 2003 MAR p. 1279, Eff. 6/27/03; AMD, 2024 MAR p. 253, Eff. 2/10/24; AMD, 2026 MAR, Notice No. 2026-85, Eff. 9/26/26.

Mont. Admin. R. 17.38.255 Variance "a"

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-6-103, MCA
Implementing statute(s): 75-6-103, 75-6-107, MCA
History: NEW, 1982 MAR p. 595, Eff. 3/26/82; AMD, 1991 MAR p. 1492, Eff. 8/16/91; TRANS, from DHES, 1996 MAR p. 1499; REP, 2000 MAR p. 3400, Eff. 12/8/00.

Mont. Admin. R. 17.38.256 Variance "b"

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-6-103, MCA
Implementing statute(s): 75-6-103, 75-6-107, MCA
History: NEW, 1982 MAR p. 595, Eff. 3/26/82; AMD, 1991 MAR p. 1492, Eff. 8/16/91; AMD, 1994 MAR p. 2131, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1998 MAR p. 1167, Eff. 5/1/98; REP, 2000 MAR p. 3400, Eff. 12/8/00.

Mont. Admin. R. 17.38.257 Exemptions

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-6-103, MCA
Implementing statute(s): 75-6-103, 75-6-107, MCA
History: NEW, 1982 MAR p. 595, Eff. 3/26/82; AMD, 1991 MAR p. 1492, Eff. 8/16/91; TRANS, from DHES, 1996 MAR p. 1499; REP, 2000 MAR p. 3400, Eff. 12/8/00.

Mont. Admin. R. 17.38.258 Compliance Plan--General

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-6-103, MCA
Implementing statute(s): 75-6-103, 75-6-107, MCA
History: NEW, 1982 MAR p. 595, Eff. 3/26/82; TRANS, from DHES, 1996 MAR p. 1499; REP, 2000 MAR p. 3400, Eff. 12/8/00.

Mont. Admin. R. 17.38.259 Compliance Plan--Variances

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-6-103, MCA
Implementing statute(s): 75-6-103, 75-6-107, MCA
History: NEW, 1982 MAR p. 595, Eff. 3/26/82; TRANS, from DHES, 1996 MAR p. 1499; REP, 2000 MAR p. 3400, Eff. 12/8/00.

Mont. Admin. R. 17.38.260 Compliance Plan--Exemptions

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-6-103, MCA
Implementing statute(s): 75-6-103, 75-6-107, MCA
History: NEW, 1982 MAR p. 595, Eff. 3/26/82; AMD, 1991 MAR p. 2617, Eff. 12/27/91; TRANS, from DHES, 1996 MAR p. 1499; REP, 2000 MAR p. 3400, Eff. 12/8/00.

Mont. Admin. R. 17.38.261 Application for Variance or Exemption

(1) A supplier of water may apply for a variance or exemption by completing an application form provided by the department. The department will not commence review of an application for a variance or exemption until the application form has been completed and all information requested by the department for review of the application has been submitted.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, 75-6-107, MCA
History: NEW, 1982 MAR p. 595, Eff. 3/26/82; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.262 Grant of a Variance or Exemption

(1) At a public hearing held pursuant to ARM 17.38.244, a presiding officer shall accept information, comments and data from persons relevant to the terms proposed by the department for a variance or exemption and its accompanying compliance plan. The hearing is not subject to the contested case procedure of the Montana Administrative Procedure Act, and cross-examination is not allowed. The presiding officer has the discretion to limit repetitive testimony.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, 75-6-107, MCA
History: NEW, 1982 MAR p. 595, Eff. 3/26/82; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2000 MAR p. 3400, Eff. 12/8/00; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.263 Denial of a Variance or Exemption

(1) If the department decides to deny an application for a variance or exemption, the department shall notify the applicant of its decision in writing. The notice must include a statement of reasons for the denial.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, 75-6-107, MCA
History: NEW, 1982 MAR p. 595, Eff. 3/26/82; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.264 Appeal of a Variance or Exemption to the Board

(1) When the department decides to grant, deny, modify or revoke a variance or exemption, a person aggrieved by the department's decision may appeal the department's decision to the board if the person aggrieved files a petition under oath with the board within 15 days after the department renders its decision. The petition of appeal must contain the following information:

(a) the name and address of the petitioner;

(b) the reasons why an appeal is sought; and

(c) if the appeal is from the grant or modification of a variance, exemption or compliance plan, the provisions of the variance, exemption or compliance plan which the petitioner wants reviewed by the board.

(2) For the purposes of this rule, "a person aggrieved by the department's decision" means the applicant for a variance or exemption, or a person who is served by the public water supply system which was the subject of the department's decision.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, 75-6-107, MCA
History: NEW, 1982 MAR p. 595, Eff. 3/26/82; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.265 Effective Date of Variance or Exemption

(1) A variance or exemption becomes effective 15 days after the department renders its decision if no petition of appeal has been filed with the board within those 15 days. The filing of a petition of appeal as required by ARM 17.38.264 postpones the effective date of the variance or exemption until the board has issued a final decision on the appeal.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, 75-6-107, MCA
History: NEW, 1982 MAR p. 595, Eff. 3/26/82; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.270 Adoption and Incorporation by Reference

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 75-6-103, MCA
Implementing statute(s): 75-6-103, MCA
History: NEW, 1991 MAR p. 1492, Eff. 8/16/91; AMD, 1994 MAR p. 2131, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1998 MAR p. 1167, Eff. 5/1/98; REP, 2000 MAR p. 3400, Eff. 12/8/00.

Mont. Admin. R. 17.38.271 Department Recordkeeping

(1) The department shall maintain records regarding its public water supply program and make reports to the U.S. Environmental Protection Agency concerning its program in a manner that is consistent with requirements set forth in 40 CFR 142.14 and 142.15.

(2) The department hereby adopts and incorporates by reference 40 CFR 142.14 and 142.15, which describe recordkeeping and reporting requirements for state drinking water programs, except as listed below:

(a) The first portion of 40 CFR 142.14(a)(10)(i)(B) is modified to read "Section 141.854(j) of this chapter –";

(b) 40 CFR 142.14(a)(10)(ii)(A), 142.14(a)(10)(ii)(B), and 142.14(a)(10)(ii)(C) are not adopted; and

(3) Copies may be obtained by contacting the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901, (406) 444-4400.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1994 MAR p. 2131, Eff. 8/12/94; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2017 MAR p. 220, Eff. 2/18/17; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Subchapter 17.38.3 Cross-Connections in Drinking Water Supplies

Mont. Admin. R. 17.38.301 Definitions

For the purposes of this subchapter, unless the context requires otherwise, the following definitions, in addition to those in 75-6-102, MCA, apply:

(1) "Approved backflow prevention assembly or device" means an assembly or device approved by the department.

(2) "Back pressure" means any increase of water pressure in the downstream piping system above the supply pressure at a point where backflow could occur.

(3) "Back siphonage" means a form of backflow caused by a reduction in supply pressure which causes a negative or sub-atmospheric pressure to exist in the water system.

(4) "Backflow" means the undesirable reversal of water flow or the reversal of water flow containing other liquids, gases or other substances from a connected source that flows into the distribution pipes of the public water supply system.

(5) "Backflow prevention assembly" means an apparatus that consists of a backflow prevention device, two shutoff valves, and appropriate test ports.

(6) "Backflow prevention device" means an apparatus designed to prevent backflow.

(7) "Certified backflow prevention assembly tester" means a person who holds a current certificate issued by a certification program of any state authorizing the person to test backflow prevention assemblies or who holds a current certificate from the American Society of Sanitary Engineers or the American Backflow Prevention Association.

(8) "Cross-connection" is defined in 75-6-102, MCA.

(9) "Degree of hazard" means the level of risk created by either a pollutant (non-health hazard) or a contaminant (health hazard), as derived from an assessment of the materials that may come in contact with the distribution system through a cross-connection.

(10) "Health hazard" means a condition that causes or creates a potential for water contamination that may cause disease or have other physical or toxic effects on humans.

(11) "Non-health hazard" means a condition that causes or creates a potential for water quality degradation but does not constitute a health hazard.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1998 MAR p. 958, Eff. 4/17/98; AMD, 2012 MAR p. 1141, Eff. 6/8/12; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.302 Incorporation by Reference

(1) The department adopts and incorporates by reference the "Manual of Cross-Connection Control" (10th edition), published by the Foundation for Cross-Connection Control and Hydraulic Research, University of Southern California (October 2009). This publication sets forth standards for cross-connections to public water supply systems. Copies of this publication may be obtained by contacting the Foundation for Cross-Connection Control and Hydraulic Research, University of Southern California, Kaperielian Hall 200, Los Angeles, CA 90089-2531 or at https://fccchr.usc.edu .

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1998 MAR p. 958, Eff. 4/17/98; AMD, 2003 MAR p. 1279, Eff. 6/27/03; AMD, 2012 MAR p. 1141, Eff. 6/8/12; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.305 Cross-Connections: Regulatory Requirements

(1) A cross-connection on a public water supply system must be eliminated by the disconnection of the cross-connection whenever reasonably practicable. Whenever elimination of a cross-connection is not reasonably practicable and the cross-connection creates a health or non-health hazard, the hazard must be eliminated by the insertion into the piping of an approved backflow prevention assembly or device in accordance with (2).

(2) For the cross-connections identified below, the following types of approved backflow prevention assemblies or devices must be used:

(a) A health hazard created by a cross-connection that may be subject to back pressure must be eliminated by an approved reduced pressure principle backflow prevention assembly (RP) or an air-gap.

(b) A health hazard created by a cross-connection that may be subject to back siphonage, but not subject to back pressure, must be eliminated by an approved air-gap, pressure vacuum breaker assembly (PVB), spill-resistant pressure vacuum breaker assembly (SVB), atmospheric vacuum breaker (AVB), or a reduced pressure principle backflow prevention assembly (RP).

(c) A non-health hazard created by a cross-connection that may be subject to back pressure and back siphonage must be eliminated, at a minimum, by an approved double check valve assembly (DC). This cross-connection condition may also be eliminated by an air-gap or by an approved reduced pressure principle backflow prevention assembly (RP).

(d) A non-health hazard created by a cross-connection that may be subject to back siphonage, but is not subject to back pressure, must be eliminated, at a minimum, by an approved double check valve assembly (DC), pressure vacuum breaker assembly (PVB), spill-resistant pressure vacuum breaker assembly (SVB), or an atmospheric vacuum breaker (AVB). This cross-connection condition may also be eliminated by an air-gap or by an approved reduced pressure principle backflow prevention assembly (RP).

(3) Backflow prevention assemblies and devices must be approved by the department.

(4) A backflow prevention assembly or device must be installed and maintained, at a minimum, in accordance with the manufacturer's specifications.

(5) This rule applies to piping between water systems outside of any building and to piping within any building, including cross-connections in plumbing systems.

(6) The department may not approve a plan for the construction of a public water supply system containing provisions for cross-connection unless provisions for the protection of the public water supply are demonstrated in the plan.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1998 MAR p. 958, Eff. 4/17/98; AMD, 2012 MAR p. 1141, Eff. 6/8/12; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.310 Voluntary Cross-Connection Control Programs: Application Requirements

(1) To obtain approval of a voluntary cross-connection control program, an owner or operator of a public water supply system shall file an application with the department.

(2) The application must be accompanied by a copy of the local ordinances or plan of operations that describes the methods for implementing the cross-connection control program. The local ordinances or plan of operations must include the following:

(a) a statement defining the responsibilities of the public water supplier and the responsibilities of the consumer regarding implementation of the program;

(b) a requirement for a survey to be conducted by the owner or operator of a public water supply system for the purpose of identifying locations where cross-connections are likely to occur and evaluating the degree of hazard at each location;

(c) a requirement to eliminate cross-connections and hazards in compliance with ARM 17.38.305 on a priority basis beginning with those identified as having the highest degree of hazard. A health hazard must be assigned a higher degree of risk than all non-health hazards;

(d) a description of the procedures and criteria that the public water supplier must or will use to evaluate the degree of hazard represented by a cross-connection. The procedures and criteria must, at a minimum, be consistent with the procedures and criteria specified in the "Manual of Cross-Connection Control", incorporated by reference in ARM 17.38.302;

(e) the method for identifying the appropriate backflow prevention assembly or device for a specific degree of hazard. The methodology must be in accordance with the "Manual of Cross-Connection Control" incorporated by reference in ARM 17.38.302, or as described in ARM 17.38.305(2);

(f) a requirement for the installation of backflow prevention assemblies or devices where cross-connections identified in the survey cannot be practically eliminated;

(g) a provision for maintaining permanent records of the locations and types of backflow prevention assemblies or devices installed in the public water supply system and a provision requiring records regarding the inspection and testing of these backflow prevention assemblies or devices; and

(h) a written procedure that will be used to inspect and test a backflow prevention assembly or device. The procedures must provide that a certified backflow prevention assembly tester, as defined in this subchapter, will be used to conduct the inspection and testing.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1998 MAR p. 1277, Eff. 4/17/98; AMD, 2012 MAR p. 1141, Eff. 6/8/12; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.311 Voluntary Cross-Connection Control Programs: Procedure for Review of Applications

(1) Upon receipt of an application for a voluntary cross-connection control program, the department shall review the application within 60 days to determine if the application is complete. If the application is incomplete, the department shall send written notification to the public water supplier identifying the deficiencies and requesting additional information. Within 60 days of receipt of the requested information, the department shall review the application for compliance with this subchapter.

(2) After reviewing a complete application for compliance with this subchapter, the department shall approve the application if it meets the requirements of ARM 17.38.312 and disapprove the application if it does not meet those requirements. The department shall notify the public water supplier in writing that the voluntary program is or is not approved by the department. If a voluntary program is not approved, the department shall specify the reasons for its denial of the application.

(3) If a public water supplier wishes to modify a department-approved voluntary program for cross-connection control, the modification must be submitted to the department for its review and approval according to the requirements of this subchapter.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1998 MAR p. 958, Eff. 4/17/98; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.312 Voluntary Cross-Connection Control Programs: Standards and Requirements for Cross-Connection Control

(1) The department shall approve a voluntary program for cross-connection control if:

(a) the applicant has submitted an application that meets the requirements of ARM 17.38.310;

(b) the program provides for elimination of cross-connections, health hazards, and non-health hazards, and for installation and maintenance of backflow prevention assemblies or devices in accordance with ARM 17.38.305;

(c) the program provides that backflow prevention assemblies or devices must be inspected and tested, at least annually, in accordance with the "Manual of Cross-Connection Control", incorporated by reference in ARM 17.38.302; and

(d) the program provides that inspection and testing of backflow prevention assemblies or devices must be performed by a certified backflow prevention assembly tester.

(2) A cross-connection is exempt from the standards in this rule if the following conditions are met:

(a) the cross-connection is with a public water supply system that has been approved by the department;

(b) the owner or operator of the public water supply that is or will be connected to the system with the approved voluntary cross-connection control program:

(i) sends a written request for an exemption to the public water supplier with the approved voluntary program; and

(ii) submits a sanitary survey conducted within the three years preceding the request for an exemption that:

(A) indicates that there are no cross-connections that violate the requirements of ARM 17.38.305(1) and (2) within the public water supply system that is or will be connected; and

(B) has been conducted by the department or a person who has contracted with the department for the purpose of performing the sanitary survey; or

(c) the public water supplier with the approved voluntary program determines that the public water supply that is or will be connected is acceptable as a source.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1998 MAR p. 958, Eff. 4/17/98; AMD, 2012 MAR p. 1141, Eff. 6/8/12; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Subchapter 17.38.5 Water Hauled for Cisterns

Mont. Admin. R. 17.38.501 Purpose

(1) The purpose of this subchapter is to assure the safety and purity of water hauled from a public water supply source to fill cisterns or other reservoirs to provide water for human consumption.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1979 MAR p. 38, Eff. 1/26/79; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.502 Definitions

(1) "Department" means the Department of Environmental Quality.

(2) "Water hauler" is a water supplier that is a public water supply system, as defined in 75-6-102, MCA, and that is engaged in the business of transporting water, through a non-piped conveyance, from a water source to a cistern or other facility.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1979 MAR p. 38, Eff. 1/26/79; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2011 MAR p. 1545, Eff. 8/12/11; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.503 Equipment, Specifications and Operation

(1) Equipment used for the conveying and hauling of water must have water contact surfaces that are made of non-corrodible and non-toxic materials. All interior coatings, platings, or paints shall be free of toxic materials.

(2) Water-contact surfaces must be smooth for easy cleaning and sanitizing.

(3) Inlets, outlets, piping, hose, and tank openings must be constructed to prevent entrance of foreign materials that may contaminate the water.

(4) The tanks or containers shall be free of deep pits, excessive scale, dents, or crimps which may tend to hold contaminating matter.

(5) All water contact surfaces including tanks must never have been used to transport or handle toxic or noxious substances.

(6) All inlet openings must be kept closed except when filling or cleaning.

(7) Flexible delivery piping, connectors, and ends are to be protected at all times. During delivery, cistern or reservoir must be protected from contamination.

(8) Tanks used for hauling water for human consumption shall not be used for any other purpose.

(9) Each piece of equipment used to haul water may be inspected periodically by representatives of the department.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1979 MAR p. 38, Eff. 1/26/79; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.510 Sanitizing Equipment

(1) Hauling equipment must be cleaned and sanitized:

(a) before being used the first time and after a period of non-use.

(b) after any portion of equipment has been dismantled or repaired.

(d) at least weekly.

(2) Equipment shall be cleaned by scrubbing with normal cleaning aids, being careful to flush away all foreign materials.

(3) The equipment shall be sanitized by exposing it to:

(a) steam at 170º F for 15 minutes, or

(b) steam at 200º F for 5 minutes, or

(c) chlorine, iodine, or other approved sanitizers at recommended strength and contact time. Application of chemical sanitizers can be done by fogging, spraying, jet-blowing, or any other procedure approved by the department.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1979 MAR p. 38, Eff. 1/26/79; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.511 Water Supply

(1) Water to be hauled must be taken both from:

(a) a department-approved community public water supply system; and

(b) a department-approved water loading station that meets the requirements of Department Circular DEQ-1.

(2) Water haulers shall collect bacteriological samples from the water hauling equipment at least once per month for each approved public water supplier the hauler uses that month.

(3) If a water hauler's public water supplier is in compliance with the monitoring and maximum contaminant level requirements set forth in ARM Title 17, chapter 38, subchapter 2, the water hauler is not required to duplicate the entry point sampling of the supplier. However, the department may require the hauler to perform entry point sampling.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1979 MAR p. 38, Eff. 1/26/79; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2011 MAR p. 1545, Eff. 8/12/11; AMD, 2024 MAR p. 253, Eff. 2/10/24; AMD, 2026 MAR, Notice No. 2026-85, Eff. 9/26/26.

Mont. Admin. R. 17.38.512 Filling Points

(1) Filling points must be constructed in order to protect against contamination of the filling pipe or hose when not in use. They must also be protected during the tank filling operation to prevent contamination of either the water being piped into the tank or water in the public water supply system.

(2) There must be no direct connection between the hose or pipe on the public water supply and the hauling tank itself. An air gap must be provided or an adequate back flow prevention device must be installed on the filler pipe.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1979 MAR p. 38, Eff. 1/26/79; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Mont. Admin. R. 17.38.513 Chemical Treatment of Water

(1) Except as provided in (3), water haulers shall dose each load of water with enough chlorine to provide a free chlorine or total chlorine residual of at least 0.4 parts per million (ppm), not to exceed 4.0 ppm, at the time the water hauling equipment is filled and at the time the water is delivered to the receiving system. Water haulers shall use department-approved methods to monitor the chlorine residual concentration.

(2) Water haulers shall monitor each load of water, and shall record chlorine residual results on department-approved forms. Haulers shall retain the records of chlorine residual results for each load and shall provide the records to the department upon request. Chlorine residual records must be retained for ten years, as required by 40 CFR, Part 141.33, which is incorporated by reference in ARM 17.38.234. By the tenth of the month following a delivery, haulers shall report the following to the department on department-approved forms:

(a) one chlorine residual result for each day water is delivered, taken from the load with the lowest monitored residual result; and

(b) for days that a hauler obtains and delivers water from multiple public water suppliers, one chlorine residual result per supplier per day, taken from the loads with the lowest monitored residual result.

(3) Water haulers using an approved chloraminated source of water shall monitor, record, and report residuals as required in (1) and (2), but are not required to adjust total chlorine levels.

History

Authorizing statute(s): 75-6-104, MCA
Implementing statute(s): 75-6-104, MCA
History: NEW, 1979 MAR p. 38, Eff. 1/26/79; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2009 MAR p. 1794, Eff. 10/16/09; AMD, 2011 MAR p. 1545, Eff. 8/12/11; AMD, 2024 MAR p. 253, Eff. 2/10/24.

Authorizing statute(s): 75-6-103, MCA
Implementing statute(s): 75-6-109, MCA
History: NEW, 1995 MAR p. 282, Eff. 2/10/95; TRANS, from DHES, 1996 MAR p. 1499; TRANS, from 17.36.1107, 1998 MAR p. 2754, Eff. 10/9/98; REP, 2016 MAR p. 517, Eff. 3/19/16.

Authorizing statute(s): 75-6-103, 75-6-112, MCA
Implementing statute(s): 75-6-113, MCA
History: Eff. 12/31/72; TRANS, from DHES, 1996 MAR p. 1499; REP, 2009 MAR p. 1794, Eff. 10/16/09.

Chapter 17.40 Water Treatment Systems and Operators

Subchapter 17.40.1 Water and Wastewater Operators Advisory Council

Mont. Admin. R. 17.40.101 Council Organization

(1) The water and wastewater operators advisory council is described in ARM 17.1.101 of these rules.

History

Authorizing statute(s): 2-4-201, MCA
Implementing statute(s): 2-4-201, MCA
History: NEW, Eff. 12/5/75; AMD, 1983 MAR p. 1720, Eff. 11/26/83; TRANS, from DHES, 1996 MAR p. 1499.

Subchapter 17.40.2 Water and Wastewater Systems and Operators

Mont. Admin. R. 17.40.201 Definitions

In addition to the terms defined in 37-42-102, MCA:

(1) "Advanced or tertiary wastewater treatment" means additional treatment to remove suspended or dissolved substances remaining after conventional secondary wastewater treatment processes. Treatment may utilize biological or chemical treatment processes. Mechanical tertiary treatment processes refer to advanced treatment processes that require extensive use of mechanical equipment such as pumps, blowers, chemical metering, motors and other pieces of equipment and structures.

(2) "Certified operator-in-training" means an operator who does not satisfy the experience requirements set forth in ARM 17.40.213, but has:

(a) passed the certification examination; and

(b) met applicable continuing education requirements in ARM 17.40.213.

(3) "Facility-based training" means training provided by the owner of a water treatment system, water distribution system or wastewater treatment system for its employees and either held at that treatment facility or taught, in whole or in part, by other employees of that facility.

(4) "Fully certified operator" means an operator who:

(a) has met applicable continuing education requirements, if any, in ARM 17.40.213; and

(b) has passed the certification examination and satisfies the experience requirements set forth in ARM 17.40.207;

(c) is an operator certified pursuant to ARM 17.40.203(1) who is still employed at the system where he was employed July 1, 1967;

(d) was certified pursuant to 37-42-305, MCA, before March 1, 1982; or

(e) is certified pursuant to ARM 17.40.203(8).

(5) "Ground water" means water occupying the voids within a geologic stratum and within the zone of saturation.

(6) "On-site wastewater treatment system" means a sewage system using a mechanical or septic tank based treatment process where the treated waste is disposed of using a soil disposal system.

(7) "Responsible charge" means responsibility exercised by an individual in day-by-day operation or supervision of a water system, wastewater treatment system, or any part thereof, which may affect the quality or quantity of water for human consumption or the quality of effluent produced by the wastewater treatment system.

(8) "Secondary wastewater treatment" means a process that reduces the concentrations of contaminants in wastewater, through biological treatment methods such as lagoons, trickling filters, activated sludge, sequencing batch reactors or bio-discs to generally meet the numeric criteria of the National Secondary Treatment Standards contained in 40 CFR Part 133, which have been adopted by reference in ARM Title 17, chapter 30, subchapter 12.

(9) "Surface waters" means any water on the earth's surface including, but not limited to, streams, lakes, ponds, reservoirs, and irrigation drainage systems discharging directly into a stream, lake, pond, reservoir or other water on the earth's surface. Water bodies used solely for treating, transporting or impounding pollutants are not considered surface water for the purposes of this chapter.

(10) "Temporary certificate" means a certificate that is issued to a department-approved applicant, who does not meet the full certification requirements, to be an operator in responsible charge of a specified system.

(11) "Wastewater treatment system" means a wastewater treatment plant as defined in 37-42-102, MCA.

(12) "Water treatment system" means a water treatment plant as defined in 37-42-102, MCA.

History

Authorizing statute(s): 37-42-202, MCA
Implementing statute(s): 37-42-202, MCA
History: NEW, Eff. 12/5/75; AMD, 1981 MAR p. 1787, Eff. 12/18/81; AMD, 1986 MAR p. 1078, Eff. 6/27/86; AMD, 1991 MAR p. 1276, Eff. 7/26/91; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1997 MAR p. 545, Eff. 3/25/97; AMD, 1998 MAR p. 2966, Eff. 11/6/98; AMD, 2002 MAR p. 3148, Eff. 11/15/02; AMD, 2012 MAR p. 886, Eff. 4/27/12; AMD, 2015 MAR p. 2144, Eff. 12/11/15.

Mont. Admin. R. 17.40.202 Classification of Systems

(1) For operators certified prior to January 1, 2016, all water supply systems and wastewater systems are classified according to population served or type of treatment as shown below:

(a) Water distribution systems:

(i) Class 1--serving more than 20,000 people;

(ii) Class 2--serving 2,500 to 20,000 people;

(iii) Class 3--serving 500 to 2,500 people;

(iv) Class 4--serving 100 to 500 people;

(v) Class 5--serving fewer than 100 people.

(b) Water treatment systems:

(i) Class 1--treatment for surface water utilizing chemical coagulation, filtration, and disinfection;

(ii) Class 2--treatment for surface water not utilizing chemical coagulation;

(iii) Class 3--well water supply serving greater than 2,500 people, with or without disinfection;

(iv) Class 4--well water supply serving 100 to 2,500 people, with or without disinfection;

(v) Class 5--well water supply serving fewer than 100 people, with or without disinfection.

(i) Class 1--secondary and advanced (tertiary) treatment provided by conventional activated sludge plants, biological nutrient removal plants, ammonia conversion processes, or other tertiary processes such as effluent filtration and membrane bioreactor systems;

(ii) Class 2--secondary treatment provided by extended aeration activated sludge plants such as oxidation ditches and package plants, fixed-growth trickling filter and bio-disc plants, or sequencing batch reactors;

(iii) Class 3--secondary treatment provided by aerated lagoons;

(iv) Class 4--lagoons not utilizing artificial aeration.

(d) Industrial wastewater treatment systems:

(i) Class 1--physical-chemical or biological treatment facility treating more than 1.0 mgd, including, but not limited to, the following:

(A) air flotation;

(B) air stripping;

(D) electrochemical treatment;

(E) activated sludge;

(F) anaerobic digestion;

(G) aerobic digestion;

(H) nutrient removal systems;

(I) tertiary treatment; or

(J) chemical clarification;

(ii) Class 2--biological treatment facilities treating 1.0 mgd or less, including, but not limited to, the following:

(A) clarification;

(B) filtration;

(D) carbon adsorption;

(E) ion exchange;

(F) disinfection;

(G) trickling filters;

(H) bio-disc systems;

(I) sequencing batch reactors;

(J) biological sand filters;

(K) membrane filtration; or

(L) advanced on-site treatment and disposal systems described under certification class (e)(ii) requirements;

(iii) Class 3--industrial treatment facilities, including, but not limited to, the following:

(A) oil-water separation;

(B) grinding or communitors;

(D) neutralization (pH adjustment);

(E) aerated lagoons;

(F) on-site septic tank treatment systems with pressure dosed drainfields;

(G) siphon dosed drainfields; or

(H) elevated sand mounds;

(iv) Class 4--industrial treatment facilities, including, but not limited to, the following:

(A) detention ponds;

(B) sedimentation ponds;

(D) lagoons without mechanical mixing or aeration;

(E) septic systems treating the discharge from drinking water treatment systems; or

(F) on-site treatment using standard septic tanks and gravity drainfields.

(e) On-site systems:

(i) No class 1;

(ii) Class 2--package biological wastewater treatment systems, which are public sewage systems and are regulated with a MGWPCS discharge permit, including, but not limited to, the following:

(A) conventional activated sludge;

(B) sequencing batch reactor;

(D) extended aeration activated sludge systems;

(iii) Class 3--treatment systems, which are public sewage systems and are regulated with a MGWPCS discharge permit, including, but not limited to, the following:

(A) recirculating media trickling filters;

(B) intermittent sand filters;

(D) aerobic wastewater treatment units;

(E) chemical nutrient reduction systems;

(F) alternate advanced treatment systems; and

(G) experimental systems;

(iv) Class 4--treatment with soil absorption systems, which are public sewage systems and are regulated with a MGWPCS discharge permit, including, but not limited to:

(A) standard absorption trenches;

(B) shallow capped absorption trenches;

(D) sand-lined absorption trenches;

(E) gravelless trenches and other absorption methods;

(F) elevated sand mounds;

(G) evapotranspiration absorption and evapotranspiration systems;

(H) subsurface drip;

(I) gray water irrigation systems;

(J) absorption beds; and

(K) experimental systems.

(2) For operators certified on or after January 1, 2016, all water supply systems and wastewater systems are classified according to population served or type of treatment as shown below:

(a) Water distribution systems:

(i) Class 1--serving more than 15,000 people;

(ii) Class 2--serving 1,501 to 15,000 people;

(iii) Class 3--serving 500 to 1,500 people;

(iv) Class 4--serving fewer than 500 people.

(b) Water treatment systems:

(i) Class 1--treatment for surface water utilizing chemical coagulation, filtration, and disinfection;

(ii) Class 2--treatment for surface water not utilizing chemical coagulation;

(iii) Class 3--ground water supply serving at least 500 people with or without disinfection;

(iv) Class 4--ground water supply serving fewer than 500 people with or without disinfection.

(i) Class 1--secondary and advanced (tertiary) treatment provided by:

(A) conventional activated sludge plants;

(B) biological nutrient removal plants;

(D) extended aeration activated sludge plants, such as oxidation ditches and package plants, fixed-growth trickling filter, and bio-disc plants;

(E) sequencing batch reactors; and

(F) other tertiary processes, such as effluent filtration and membrane bioreactor systems;

(ii) Class 2--no class 2;

(iii) Class 3--secondary treatment provided by aerated lagoons or lagoons not utilizing artificial aeration;

(iv) Class 4--no class 4.

(d) Industrial wastewater treatment systems:

(i) Class 1--physical-chemical or biological treatment facility treating more than 1.0 mgd, including, but not limited to, the following:

(A) air flotation;

(B) air stripping;

(D) electrochemical treatment;

(E) activated sludge;

(F) anaerobic digestion;

(G) aerobic digestion;

(H) nutrient removal systems;

(I) tertiary treatment; or

(J) chemical clarification;

(ii) Class 2--biological treatment facilities treating 1.0 mgd or less, including, but not limited to, the following:

(A) clarification;

(B) filtration;

(D) carbon adsorption;

(E) ion exchange;

(F) disinfection;

(G) trickling filters;

(H) bio-disc systems;

(I) sequencing batch reactors;

(J) biological sand filters;

(K) membrane filtration; or

(L) advanced on-site treatment and disposal systems described under certification class (e)(ii) requirements;

(iii) Class 3--industrial treatment facilities, including, but not limited to, the following:

(A) oil-water separation;

(B) grinding or communitors;

(D) neutralization (pH adjustment);

(E) aerated lagoons;

(F) on-site septic tank treatment systems with pressure-dosed drainfields;

(G) siphon-dosed drainfields; or

(H) elevated sand mounds;

(iv) Class 4--industrial treatment facilities, including, but not limited to, the following:

(A) detention ponds;

(B) sedimentation ponds;

(D) lagoons without mechanical mixing or aeration;

(E) septic systems treating the discharge from drinking water treatment systems; or

(F) on-site treatment using standard septic tanks and gravity drainfields.

(e) On-site systems:

(i) no class 1;

(ii) Class 2--package biological wastewater treatment systems, which are public sewage systems and are regulated with a MGWPCS discharge permit, including, but not limited to, the following:

(A) conventional activated sludge;

(B) sequencing batch reactor;

(D) extended aeration activated sludge systems;

(iii) Class 3--treatment systems, which are public sewage systems and are regulated with a MGWPCS discharge permit, including, but not limited to, the following:

(A) recirculating media trickling filters;

(B) intermittent sand filters;

(D) aerobic wastewater treatment units;

(E) chemical nutrient reduction systems;

(F) alternate advanced treatment systems; and

(G) experimental systems;

(iv) Class 4--treatment with soil absorption systems, which are public sewage systems and are regulated with a MGWPCS discharge permit, including, but not limited to:

(A) standard absorption trenches;

(B) shallow capped absorption trenches;

(D) sand-lined absorption trenches;

(E) gravelless trenches and other absorption methods;

(F) elevated sand mounds;

(G) evapotranspiration absorption and evapotranspiration systems;

(H) subsurface drip;

(I) gray water irrigation systems;

(J) absorption beds; and

(K) experimental systems.

(3) In order to calculate the class of a particular water supply system pursuant to (1)(a) or (b) when an accurate population census is not available, the population served may be determined by multiplying the number of service connections by 2.5.

(4) For the purposes of this subchapter, a system classified with a lower number is considered more complex than a system classified with a higher number, i.e., a Class 1 system is more complex than a Class 2 system.

History

Authorizing statute(s): 37-42-202, MCA
Implementing statute(s): 37-42-104, 37-42-304, 37-42-306, MCA
History: NEW, Eff. 12/5/75; AMD, 1981 MAR p. 1787, Eff. 12/18/81; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1997 MAR p. 545, Eff. 3/25/97; AMD, 1998 MAR p. 2966, Eff. 11/6/98; AMD, 2003 MAR p. 10, Eff. 11/15/02; AMD, 2012 MAR p. 886, Eff. 4/27/12; AMD, 2015 MAR p. 2144, Eff. 12/11/15.

Mont. Admin. R. 17.40.203 Certification of Operators

(1) Certification must be granted to an applicant under the grandfather clause (37-42-303(2), MCA) if the applicant submits a statement from the governing board or owner of a water supply system or wastewater system stating the applicant was in responsible charge of the system on July 1, 1967.

(2) If an addition is installed after July 1, 1967 to a system that existed on July 1, 1967, the person who was in responsible charge of the system on July 1, 1967 and has a grandfather clause certificate may be granted a grandfather clause certificate at a classification for a more complex system, if:

(a) the person participated in the installation; and

(b) evidence is presented to the department that the operator has been trained and is qualified to operate the more complex system.

(3) A fully certified operator who terminates employment as an operator may renew the operator's certificate annually for a period of two years beyond the expiration date of the operator's current certificate, if the operator meets the renewal requirements in 37-42-308, MCA, and ARM 17.40.213 each of these years. At the end of the two-year period, a certificate is invalid. After two years, to receive a new certificate, the operator must prove to the department that the operator:

(a) has sufficient continuing education credits for the current biennium;

(b) has paid a fee equal to the renewal fee required under ARM 17.40.212; and either:

(c) is employed in a position that provides continuing familiarity with hands-on operation of the system classification for which the operator is seeking certification; or

(d) is otherwise competent to operate the system classification for which the operator is seeking certification.

(4) The department may, upon receipt and approval of a fully completed application and payment of an appropriate fee as determined under ARM 17.40.212, issue a temporary certificate. A temporary certificate is effective for six months from the date of issuance, or until the operator becomes fully certified, whichever occurs first. The department may renew a temporary certificate for reasonable cause. A temporary certificate is valid only for the person to whom it is issued, for the system identified on the certificate, and for the period of time identified on the certificate. Temporary certificates may not be transferred to another person or system.

(5) The department shall issue a certificate to the applicant if the applicant meets all requirements of this chapter for certification. The certificate is only valid to the person to whom it is issued and may not be transferred to another person.

(6) If a census or a revision of the rules in this chapter shows a system qualifies for a more complex classification or the system is modified in a way that triggers a more complex classification, each fully certified operator of the system may obtain the more complex classification if:

(a) the operator makes a written request to the department for a more complex classification; and

(b) the department determines that the applicant has the education and experience that are necessary to operate the system, as defined in ARM 17.40.207.

(7) An operator whose system has been changed to a less complex classification because of a revision of the rules in this chapter or a change in status of the system will be given certification at that less complex classification upon renewal of the operator's annual certificate, unless the operator makes a written request to the department and the department determines that the operator meets all requirements for operating a more complex classified system. In that case, the operator will remain certified at the operator's present classification, and the renewal requirements are the requirements for that more complex certification classification.

(8) An operator who is fully certified in another state may obtain a reciprocal certification in Montana if the department determines that the operator's application and supporting material verify that the operator:

(a) has experience that meets Montana's minimum requirements;

(b) is in responsible charge of a system located in Montana that requires a certified operator; and

(c) has passed a water supply system operator examination in that state that has a U.S. environmental protection agency-approved water supply system operator certification program; or

(d) has passed a wastewater operator examination in that state at least equivalent to that required by Montana.

(9) The examination referred to in (8)(c) and (d) must be for a certification classification at least as complex as the classification for which the operator seeks reciprocal certification in Montana.

(10) Operators certified under (8) must pay a one-time fee of $70 in addition to the fees applicable for the Montana certification sought.

(11) Certificates are effective for a base year from July 1 of one year through June 30 of the subsequent year. Certificates may be renewed annually.

History

Authorizing statute(s): 37-42-202, MCA
Implementing statute(s): 37-42-304, 37-42-305, 37-42-306, 37-42-307, 37-42-308, MCA
History: NEW, Eff. 12/5/75; AMD, 1981 MAR p. 1787, Eff. 12/18/81; AMD, 1983 MAR p. 1720, Eff. 11/26/83; AMD, 1991 MAR p. 1276, Eff. 7/26/91; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1997 MAR p. 545, Eff. 3/25/97; AMD, 1999 MAR p. 1804, Eff. 8/27/1999; AMD, 2000 MAR p. 72, Eff. 1/14/00; AMD, 2002 MAR p. 3148, Eff. 11/15/02; AMD, 2012 MAR p. 886, Eff. 4/27/12.

Mont. Admin. R. 17.40.206 Examinations

(1) A person desiring to take the examination for certification as a water supply or wastewater treatment system operator must complete the department's application form and return it to the department at least 30 days before the date of the examination. The proper fee, as determined under ARM 17.40.212, must accompany the application. Upon department approval, the applicant may take the examination.

(2) An annual application fee is required for each application for water certification and each application for wastewater certification. Examination fees are required for each examination taken.

(3) An operator certified under one classification by examination and another under ARM 17.40.203(1) will receive one certificate showing both certifications, with that classification held under ARM 17.40.203(1) noted by "(g.c.)."

(4) All classes of examinations will be given by department staff or by a council member at a time and place set by the department.

(5) Each person submitting an application and application fee for certification that meet department requirements will be sent a notice of the time and place of the examination.

(6) Examinations will not be returned to examinees, but will be on file for one year at the department. A failing examination will be kept two years.

(7) An operator holding a temporary certificate who fails the examination two times loses the temporary certificate upon notice from the department of the second failure. However, the operator may take the examination whenever it is given by re-applying in conformance with department requirements.

(8) The department shall provide a duplicate original certificate, to the person certified only, upon payment of a $10 fee.

History

Authorizing statute(s): 37-42-202, MCA
Implementing statute(s): 37-42-201, 37-42-301, 37-42-305, 37-42-306, MCA
History: NEW, Eff. 12/5/75; AMD, 1981 MAR p. 1787, Eff. 12/18/81; AMD, 1983 MAR p. 1720, Eff. 11/26/83; AMD, 1991 MAR p. 1276, Eff. 7/26/91; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1997 MAR p. 545, Eff. 3/25/97; AMD, 2002 MAR p. 3148, Eff. 11/15/02; AMD, 2004 MAR p. 1143, Eff. 5/7/04; AMD, 2010 MAR p. 745, Eff. 3/26/10; AMD, 2012 MAR p. 886, Eff. 4/27/12; AMD, 2015 MAR p. 2144, Eff. 12/11/15.

Mont. Admin. R. 17.40.207 Experience and Education

(1) An operator certified after June 30, 1991, must have graduated from high school or hold a GED certificate, unless the applicant submits a written application for a special exception from this requirement and the department grants the exception. The department may only grant a special exception from this requirement upon finding that the applicant has the reading, writing and comprehension skills necessary to otherwise meet the requirements of this subchapter and to protect the public health and quality of Montana's waters.

(2) To become fully certified, an operator, in addition to passing the certification examination for the operator's specific classification, must have the following operating experience in a facility of that classification:

(a) Class 1--two and one-half years' experience;

(b) Class 2--two years' experience;

(d) Class 4--one year experience.

(3) If the department determines that experience gained at a system classified as less complex is applicable to a system classified as more complex, this experience or a portion of it may be credited toward the experience requirement for the more complex classification.

(4) Two days of education in post-secondary engineering training or the equivalent may be substituted for each day of experience, up to 1/2 of the experience requirement.

(5) A person who has passed the examination but lacks the requisite experience will be issued a certificate as CERTIFIED OPERATOR-IN-TRAINING. When the experience requirement is fulfilled and the operator returns a verified experience voucher to the department, a certificate as CERTIFIED OPERATOR will be issued.

History

Authorizing statute(s): 37-42-202, MCA
Implementing statute(s): 37-42-201, 37-42-302, 37-42-306, MCA
History: NEW, 1981 MAR p. 1787, Eff. 12/18/81; AMD, 1983 MAR p. 1720, Eff. 11/26/83; AMD, 1991 MAR p. 1276, Eff. 7/26/91; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1997 MAR p. 545, Eff. 3/25/97; AMD, 2002 MAR p. 3148, Eff. 11/15/02; AMD, 2015 MAR p. 2144, Eff. 12/11/15.

Mont. Admin. R. 17.40.208 Certified Operator in Charge of System; Exceptions

(1) Every water or wastewater treatment system must have an individual in responsible charge at the system site or on call at all times who can respond in a timely manner to threats to public or environmental health.

(2) Except as provided in this rule, the individual in responsible charge of a system must be a fully certified operator for that class or a more complex class of system.

(3) An operator with a temporary certificate or an operator-in-training certificate may be the operator in responsible charge of a system upon:

(a) written request to the department by the system owner and verification by the owner that the system is unable to employ a fully certified operator; and

(b) a finding by the department that the operator has the basic knowledge necessary to operate the system and that public health will be protected. The department shall base its decision on:

(i) the results of any on-site inspection of the system;

(ii) review of the plans and specifications of the system;

(iii) review of the operator's records, experience and training; and

(iv) examination of any other reasonably available and relevant information.

History

Authorizing statute(s): 37-42-202, MCA
Implementing statute(s): 37-42-104, 37-42-302, 37-42-305, MCA
History: NEW, 1981 MAR p. 1787, Eff. 12/18/81; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1997 MAR p. 545, Eff. 3/25/97; AMD, 2002 MAR p. 3148, Eff. 11/15/02; AMD, 2012 MAR p. 886, Eff. 4/27/12.

Mont. Admin. R. 17.40.212 Fees

(1) An applicant for certification shall pay to the department:

(a) for any classification level of water distribution or water treatment system, an application fee of $70, the payment of which entitles the applicant to take examinations for 12 months from the date of the application, provided that the applicant pays the fee required for each examination as specified in (2) ; and

(b) for any classification level of wastewater treatment, an application fee of $70, the payment of which entitles the applicant to take examinations for 12 months from the date of the application, provided that the applicant pays the fee required for each examination as specified in (2) .

(2) The fee is $70 for each examination for certification as an operator of a water treatment system, water distribution system, or wastewater treatment system.

(3) A certified operator applying for renewal of a certificate shall pay to the department by June 30 of every year:

(a) for a certificate in any classification level of water distribution or water treatment, a renewal fee of $30;

(b) for a certificate in any classification level of wastewater treatment, a renewal fee of $40.

(4) The department shall suspend a certificate and mail notice of the suspension to the operator by the seventh working day after June 30 if the department did not receive the renewal fee specified in (3) by June 30.

(5) Any renewal application received from an applicant whose certificate has been suspended must be accompanied by $30 in addition to the fee required by (1) .

History

Authorizing statute(s): 37-42-202, MCA
Implementing statute(s): 37-42-304, 37-42-308, MCA
History: EMERG, NEW, 1983 MAR p. 1250, Eff. 9/16/83; AMD, 1991 MAR p. 1276, Eff. 7/26/91; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1997 MAR p. 545, Eff. 3/25/97; AMD, 2000 MAR p. 72, Eff. 1/14/00; AMD, 2002 MAR p. 3148, Eff. 11/15/02; AMD, 2004 MAR p. 1143, Eff. 5/7/04.

Mont. Admin. R. 17.40.213 Continuing Education Requirements

(1) Each fully-certified operator and certified operator-in-training (hereafter collectively called "certified operators") shall earn a continuing education credit or credits, as specified in this rule, during each two-year period commencing on July 1 of each even-numbered year as follows:

(a) The department shall count continuing education credits taken by a certified operator in the month of June of each even-numbered year toward satisfying the operator's continuing education requirements for the next continuing education two-year period only.

(b) A certified operator shall submit all continuing education credit report forms to the department by June 15 of each even-numbered year. If the department has not received continuing education credit report forms showing that an operator earned sufficient credits to entitle the operator to renew a certificate during a continuing education two-year period by June 15 of an even-numbered year, the department shall, by July 1 of that even-numbered year, mail to the operator, and every system for which the operator is designated as an operator under ARM Title 17, chapter 38, subchapter 2, a notice suspending the certificate of the operator until the department receives a credit report form showing that sufficient credits were earned by May 31 of the even-numbered year. If the department receives, within 30 days after the notice of suspension was mailed, a report form showing that a suspended operator earned sufficient credits during a continuing education two-year period, and all other requirements for renewal have been met, the department shall lift the suspension and renew the certificate. The department shall revoke any certificate that remains suspended for a period of more than 30 days. However, the department, before this revocation, shall notify the certificate holder by certified mail at the address on the issued certificate of its intention to revoke, at least ten days before the time set for action to be taken by the department on the certificate.

(c) A Class 1 fully-certified operator shall earn two credits for a water certification and two credits for a wastewater certification held by the operator.

(d) A Class 1 certified operator-in-training shall earn one credit for a water certification and one credit for a wastewater certification held by the operator.

(e) A Class 2, 3, or 4 fully-certified operator shall earn one credit for a water certification and one credit for a wastewater certification held by the operator.

(f) A Class 2, 3, or 4 certified operator-in-training shall earn 1/2 credit for a water certification and 1/2 credit for a wastewater certification held by the operator.

(g) A Class 5 fully-certified operator shall earn 0.4 credits for a water certification held by the operator for water treatment or water distribution.

(h) A Class 5 certified operator-in-training shall earn 0.2 credits for a water certification held by the operator.

(2) A credit consists of ten contact hours, and 1/2 credit consists of five contact hours. A contact hour is defined as a 60-minute participation in an approved course.

(a) To determine the number of credits to be awarded to a certified operator for teaching a course, 0.1 credit per actual hour of instruction shall be awarded in addition to the credits earned for attending that course.

(3) Newly certified operators (previously uncertified) who are certified from January 1 of an odd-numbered year to June 30 of the following even-numbered year are not required to earn the credit applicable to each certificate until the next two-year period.

(4) If a certified operator upgrades a certificate or becomes newly certified during the period from January 1 of an odd-numbered year to June 30 of the following even-numbered year and that upgrade increases the credit requirement, the operator shall during that same two-year period earn the lower credit requirement but is not required to meet the higher credit requirement until the next two-year period commences.

(5) Only a certified operator who fulfills the credit requirements before the end of each two-year period may obtain renewal of a certificate. Except as provided in (1) and (13), the certificate of an operator who does not fulfill the credit requirements expires on June 30 of the applicable two-year period and the person may receive a new certificate on submission of an application, payment of the appropriate application and examination fees, and passage of the appropriate examination.

(6) All subject matter for which credit will be granted must be relevant to the operation, maintenance, or safety of water treatment systems, water distribution systems, wastewater treatment systems, or industrial wastewater treatment systems as classified in ARM 17.40.202. Eligible topics may include subjects regarding operation and maintenance of systems and machinery, electrical systems, hydraulics, chemical treatment, biological testing, disinfection, or use of mathematics and chemistry where applicable.

(a) A safety course qualifies for full credits if it is specific to any type of water supply or wastewater treatment system operation; other safety courses that contain topics that are generally applicable to water or wastewater treatment system qualify for half credit.

(b) The department shall maintain a list of topics that, although not specific to water or wastewater treatment system operation, are generally applicable and are approved for half credit.

(7) There are three types of education offerings that qualify for continuing education credit:

(a) training courses offered by the department;

(b) courses or conferences specifically approved for credit by the department; and

(8) In addition to the requirements in (6), the subject matter of the educational offering must be relevant to the particular class(es) of certificates to which the credit is being applied. A certified operator may receive credit only for courses approved for the type of certification(s) held by that operator.

(9) A correspondence course that is approved by the department may be used to earn credit. However, the provider must issue proof of completion to the department before credit may be awarded.

(10) Certified operators holding both water and wastewater certificates may earn credits toward the continuing education requirements of both certificates (i.e., dual credits) by attending a course which has been approved for both classes of certificates.

(11) Facility-based training is eligible for credits only if the training meets all other requirements of this subchapter for continuing education credits.

(12) Vendor shows approved by the department under this rule qualify for credit. A maximum amount of 0.05 credits per vendor show will be allowed for participation in a department-approved vendor show. The certified operator will be required to provide evidence of attendance at the approved vendor show to validate participation for credit.

(13) The department may, in individual cases involving hardship or extenuating circumstances, grant an extension of time of up to one year to fulfill the minimum credit requirements. Hardship or extenuating circumstances include documented health-related confinement or other circumstances beyond the control of the certified operator which prevent attendance at the required activities. All requests for extensions must be made prior to June 30 of the even-numbered year in which the credit is required to be submitted for registration.

(14) It is the certified operator's responsibility to notify the department on the appropriate form of the credit earned during the period. The credit earned during the period must be included with the application for renewal.

(15) The continuing education credit requirements of this rule are waived for one continuing education two-year period for a certified operator during periods when the person is a government employee working as an operator and assigned to duty outside of the United States.

(16) The department shall temporarily inactivate the certificate of a certified operator who is on active military duty if the operator notifies the department in writing of the change in status and requests inactivation.

(17) The department shall reactivate the certificate temporarily inactivated under (16) upon the return of the operator to the continental United States if the operator:

(a) requests in writing that the department reactivate the certificate(s); and

(b) pays to the department the renewal fee for the year the operator returns.

(18) After a certificate has been reactivated under (17), the certified operator shall meet the continuing education credit requirements for the current continuing education two-year period by the June 30 deadline or within 18 months of the operator's return, whichever is longer.

History

Authorizing statute(s): 37-42-202, MCA
Implementing statute(s): 37-42-304, 37-42-305, 37-42-306, 37-42-307, 37-42-308, MCA
History: NEW, 1986 MAR p. 1078, Eff. 6/27/86; AMD, 1991 MAR p. 1276, Eff. 7/26/91; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1997 MAR p. 545, Eff. 3/25/97; AMD, 1998 MAR p. 2966, Eff. 11/6/98; AMD, 2002 MAR p. 3148, Eff. 11/15/02; AMD, 2004 MAR p. 1619, Eff. 5/7/04; AMD, 2015 MAR p. 2144, Eff. 12/11/15.

Mont. Admin. R. 17.40.214 Disciplinary Actions--Description of Grounds-- Procedures for Revocation or Suspension of Certificate, and Reprimand of Certified Operator

(1) The department may issue a written order imposing any of the disciplinary actions in (2) if the department determines that, as provided in 37-42-321(1) , MCA:

(a) the operator has practiced fraud or deception;

(b) reasonable care, judgment, or the application of the operator's knowledge or ability was not used in the performance of the operator's duties; or

(2) Disciplinary actions the department may order under (1) include revoking a certificate or any of the other disciplinary actions listed in 37-1-136, MCA, including:

(a) suspension of an order of revocation on terms and conditions determined by the department;

(b) suspension of the right to operate under a certificate for a period not exceeding one year;

(d) reprimand of a certified operator.

(3) The department shall serve the order, by certified mail or personally, on the certified operator.

(4) Section 37-42-321(3) , MCA, states: "A person aggrieved by an order of the department under this section may request a hearing before the board by submitting a written request stating the reason for the request within 30 days after receipt of the department's decision." The department's order becomes final if the aggrieved person does not appeal it within 30 days after receiving it.

(5) The contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, MCA, apply to a hearing held under this rule.

History

Authorizing statute(s): 37-42-202, MCA
Implementing statute(s): 37-42-321, MCA
History: NEW, 1991 MAR p. 1276, Eff. 7/26/91; TRANS, from DHES, 1996 MAR p. 1499; AMD, 1997 MAR p. 545, Eff. 3/25/97; AMD, 2002 MAR p. 3148, Eff. 11/15/02.

Mont. Admin. R. 17.40.215 Approved Training Providers

(1) To be approved as a training provider, the provider must first apply to the department for approval and demonstrate in writing, using the department's form, that:

(a) training is one of the provider's principal programs;

(b) the provider offers training appropriate for water and wastewater treatment operators; and

(c) that the provider does not have a vested interest in selling or marketing any product or service related to water or wastewater treatment other than training.

(2) Based on the written submittal, the department may, in writing, approve the provider for educational offerings under this rule for up to two years. The department may revoke its approval of the training provider, in writing, for good cause, after notice and an opportunity for an informal conference with the department.

(3) An approved training provider shall provide the following documentation, maintain the following records, and make such information available to the department upon request:

(a) Attendance registration forms must be maintained. The provider shall keep registration forms on file for at least two years. The registration forms must state:

(i) the provider's name;

(ii) the title of the course;

(iii) the date and location of the course;

(iv) the name of the person monitoring attendance at each course;

(v) each attendee's name and operator number;

(vi) the water or wastewater treatment system where each attendee is employed;

(vii) the number of continuing education credits (credits) earned by each attendee; and

(viii) whether the course is facility-based training.

(b) A notice of a course sponsored by an approved training provider must be sent to the department two weeks before the course begins, along with the training announcement required under (3)(c). The provider shall keep a copy of this notice on file for at least two years. The notice must be on the department's form or an equivalent form requiring the same information. The notice must include:

(i) the name of the training provider;

(ii) the title of the course;

(iii) the number of contact hours;

(iv) the class(es) of certificate(s) for which the course is approved;

(v) any prerequisites;

(vi) the name(s) of the instructor(s) and their qualifications for teaching the course as provided in (4);

(vii) location and date of the course;

(viii) fee or membership required; and

(ix) the provider's contact person for the course.

(c) The provider shall prepare a training announcement for each course announcing the availability of the course. The provider shall send a copy of the training announcement to the department along with the notice required in (3)(b) and shall keep the training announcement on file for at least two years. The training announcement must state:

(i) the classes of certification for which the course is approved;

(ii) the number of credits available;

(iii) a specific agenda;

(iv) identity and qualifications of the instructor(s); and

(v) date(s), location(s), and fee.

(vi) In addition, the training announcement must clearly inform attendees that they will receive credit only if the attendee holds the class of certificate for which the course is approved.

(d) The training provider shall provide each attendee with a form on which attendees can evaluate the course. The course evaluation form must, at a minimum, provide attendees with the opportunity to state how the course might be improved, whether the course imparts knowledge that is useful to attendees and attendee's evaluation of instructor(s). The training provider shall keep course evaluations on file for at least two years.

(e) The training provider shall distribute to each attendee a continuing education credit report form provided by the department to be filled out by the attendee.

(i) Attendees shall fill out the form by providing:

(A) their name;

(B) certification class and type;

(D) address; and

(E) instructions for applying credits earned.

(ii) Attendees shall return the credit report form to the training provider. The provider shall complete the form adding information concerning:

(A) course title, location and date;

(B) subject of training including whether credits are available for more than one class of certificate;

(D) whether the course is facility-based training.

(iii) The provider shall verify the information by signing the form and shall send the completed and signed form to the department within two weeks after the end of the course.

(iv) The department shall count continuing education credits taken by a certified operator in the month of June of each even-numbered year toward satisfying the operator's continuing education requirements for the next continuing education two-year period only.

(v) For continuing education credits taken during a continuing education two-year period to count toward satisfying a certified operator's continuing education requirements, those credits must be reported on credit report forms received by the department by June 15 of each even-numbered year. If credits sufficient to satisfy the continuing education requirements are not so reported, the certificate of the operator may be suspended or revoked as set forth in ARM 17.40.213.

(vi) The department shall keep the credit report forms on file for at least two years.

(f) The provider shall keep copies on file of any written instructional materials or exams used in the course for at least two years.

(4) In order for a course to qualify for credits, all instructors must:

(a) have at least four years' practical experience in the subject matter to be presented;

(b) have experience as a professional trainer in the subject matter to be presented;

(d) be professional or technical staff of the department or another Montana state or federal agency with expertise in the subject matter to be presented; or

(e) be approved by the department based on instructor's education and experience in the subject matter to be presented.

(5) The training provider shall determine, subject to department approval, the number of credits available and to what class(es) of certificate(s) credits apply in accordance with ARM 17.40.213. The provider shall include this information in the training announcement as required in (3)(c) of this rule.

History

Authorizing statute(s): 37-42-202, MCA
Implementing statute(s): 37-42-202, MCA
History: NEW, 1998 MAR p. 2966, Eff. 11/6/98; AMD, 2002 MAR p. 3148, Eff. 11/15/02; AMD, 2015 MAR p. 2144, Eff. 12/11/15.

Subchapter 17.40.3 Waste Water Treatment Works Revolving Fund

Mont. Admin. R. 17.40.301 Purpose

(1) The purpose of this subchapter is to implement the Water Pollution Control State Revolving Fund Act pursuant to Title 75, chapter 5, part 11, MCA, and sections 601 through 607 of the Federal Water Pollution Control Act, 33 USC 1381 through 1387, as amended.

(2) This program creates a perpetual financing mechanism for eligible water pollution control projects through use of loans and other financial incentives.

(3) The department of natural resources and conservation may also adopt rules that address measures for protecting the financial solvency of the water pollution control state revolving fund, including measures requiring debt security requirements for loans.

History

Authorizing statute(s): 75-5-1105, MCA
Implementing statute(s): 75-5-1105, MCA
History: NEW, 1990 MAR p. 1468, Eff. 7/27/90; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 232, Eff. 2/14/03.

Mont. Admin. R. 17.40.302 Definitions

In this subchapter, the following terms have the meanings indicated below, certain of which are supplemental to the definitions contained in 75-5-103 and 75-5-1102, MCA, and sections 601 through 607 of the Federal Water Pollution Control Act, 33 USC 1251 through 1387, as amended. Terms used herein without definition have the meanings given them in the Act or the federal Act.

(1) "Act" means the Water Pollution Control State Revolving Fund Act, Title 75, chapter 5, part 11, MCA.

(2) "Department" means the Montana department of environmental quality established by 2-15-3501, MCA.

(3) "Department of natural resources and conservation" means the Montana department of natural resources and conservation established by 2-15-3301, MCA.

(4) "Eligible water pollution control projects" means projects that meet the requirements of the federal Act and are approved by the department, including certain wastewater collection and treatment system projects, sewage system projects, storm sewer or storm drainage projects, solid waste management projects, and other nonpoint source projects.

(5) "EPA" means the United States environmental protection agency.

(6) "Federal act" means the federal Act as defined in 75-5-1102, MCA.

(7) "Intended use plan" or "IUP" means the document prepared annually by the department that identifies uses of the funds in the program and describes how those uses support the goals of the program.

(8) "Municipality" means municipality as defined in 75-5-1102, MCA.

(9) "Nonpoint source" means a source of pollutants that originate from diffuse runoff, seepage, drainage, or infiltration.

(10) "Nonpoint source management plan" means the most recent report submitted by the department to EPA pursuant to 33 USC 1329.

(11) "Nonpoint source project" means a project that has been approved in the nonpoint source management plan and that is eligible and has qualified for financing under the program pursuant to the federal Act, the Act, these rules, and applicable department of natural resources and conservation rules, and may include, without limitation, the following:

(a) solid waste management systems;

(b) manure storage facilities;

(d) urban storm water runoff;

(e) ground water protection;

(f) animal feed operations;

(g) no-till farm equipment;

(h) wetlands restoration and preservation;

(i) stream bank restoration;

(j) submerged aquatic vegetation;

(k) construction runoff; and

(l) conservation easements.

(12) "Project priority list" means the list of projects expected to receive financial assistance under the program, ranked in accordance with a priority system developed under 33 USC 1296.

(13) "Private person" means a private person as defined in 75-5-1102, MCA.

(14) "Professional engineer" means an engineer licensed or otherwise authorized to practice engineering in Montana pursuant to Title 37, chapter 67, MCA.

(15) "Program" means the water pollution control state revolving fund program established by the Act.

(16) "Project" has the same meaning as in 75-5-1102, MCA.

(17) "Revolving fund" means the revolving fund as defined in 75-5-1102, MCA.

(18) "Sewage system" means any device for collection or conveyance of sewage or industrial wastes to an ultimate disposal point.

(19) "Solid waste management system" has the same meaning as in 75-10-203, MCA, except that, for the purposes of this subchapter, the term includes activities of and components and improvements to a solid waste management system including, but not limited to, the acquisition of land, installation of liners, monitoring of wells, construction and closure of landfills or composting facilities, and all necessary and related equipment.

(20) "Treatment works" has the same meaning as in 33 USC 1292.

(21) "Wastewater" means sewage, sewage sludge, industrial waste, other wastes, or any combination thereof.

(22) "Wastewater system" means a public sewage system or other system that collects, transports, treats or disposes of wastewater.

History

Authorizing statute(s): 75-5-1105, MCA
Implementing statute(s): 75-5-1102, MCA
History: NEW, 1990 MAR p. 1468, Eff. 7/27/90; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 232, Eff. 2/14/03.

Mont. Admin. R. 17.40.303 Use of the Fund--Eligible Activities for Fund Assistance

(1) The department shall administer the program in accordance with the federal Act, the Act, the trust indenture regarding the program, and these rules. If there is a conflict among the Act, the trust indenture, or these rules, the department shall resolve the conflict by applying the following order of precedence:

(a) the Act;

(b) the trust indenture;

(2) The revolving fund may be used, without limitation, to:

(a) provide financial assistance to municipalities for construction, renovation, rehabilitation, expansion, improvement, or acquisition of publicly owned treatment works including, but not limited to:

(i) preliminary planning to determine the feasibility of the treatment works, engineering or architectural designs, plans and working drawings; or

(ii) construction and construction management of treatment works, including devices and systems used in the storage, conveyance, treatment, recycling and reclamation of municipal waste, storm water runoff, or combined sewer overflows.

(b) make loans to municipalities and private persons for projects that are consistent with the nonpoint source management plan and that have qualified as nonpoint source projects. These projects may include, but are not limited to:

(i) preliminary planning to determine the feasibility of the nonpoint source project, engineering or architectural plans and working drawings; or

(ii) acquisition of land and equipment and construction of facilities relating to nonpoint source projects;

(d) pay reasonable expenses incurred in administering the fund, except that funds used for this purpose may not exceed 4%, or the maximum amount allowed under the federal Act, of the capitalization grants received from the EPA.

History

Authorizing statute(s): 75-5-1105, MCA
Implementing statute(s): 75-5-1107, MCA
History: NEW, 1990 MAR p. 1468, Eff. 7/27/90; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 232, Eff. 2/14/03.

Mont. Admin. R. 17.40.308 Types of Financial Assistance

(1) The department or the department of natural resources and conservation may provide financial assistance from the revolving fund by:

(a) making a loan for the costs of eligible water pollution control projects, subject to the following requirements:

(i) the term may not exceed 20 years after completion of the project, unless otherwise permitted by the federal Act, the Act, the trust indenture regarding the program, the department, and the department of natural resources and conservation;

(ii) repayment must begin as prescribed by the department of natural resources and conservation, but in any event not later than one year after project completion with all principal and interest payments credited directly to the fund;

(iii) the loan recipient shall establish a dedicated source of revenue for repayment of the loan; and

(iv) satisfaction of all additional requirements of the department of natural resources and conservation;

(b) purchasing or refinancing an existing municipal debt obligation for construction of an eligible water pollution control project begun after March 7, 1985, subject to all applicable requirements of the federal Act;

(d) guaranteeing a revolving fund established by a municipality that is similar to the state revolving fund.

History

Authorizing statute(s): 75-5-1105, MCA
Implementing statute(s): 75-5-1107, MCA
History: NEW, 1990 MAR p. 1468, Eff. 7/27/90; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 232, Eff. 2/14/03.

Mont. Admin. R. 17.40.309 Criteria for Financial Assistance to Municipalities

(1) To be eligible for financial assistance from the revolving fund, a municipality must:

(a) meet financial capability requirements set by the department of natural resources and conservation for the proposed project that ensure sufficient revenues will be available to operate and maintain the project for its useful life and to repay the loan;

(b) agree to operate and maintain the facility constructed or improved by the project so that it will function properly over the useful life of the project;

(c) maintain proper financial records in accordance with generally accepted governmental accounting standards, and agree to periodic audits by the department or a contractor to the department;

(d) meet the statutory requirements listed in 33 USC 1382 for projects constructed with funds made available directly by federal capitalization grants;

(e) provide legal assurance that the necessary property titles, easements, and rights-of-way have been obtained to construct, operate and maintain the facility;

(f) prepare an engineering report evaluating the proposed project, including an analysis of cost-effectiveness and environmental effects;

(g) meet the applicable plan and specification requirements for the project (for example, for public wastewater systems, those described in ARM 17.38.101, and for solid waste management systems, those described in ARM 17.50.506) ;

(h) utilize proper construction inspection and project management procedures; and

(i) meet all applicable local, state, and federal laws and regulations.

(2) All projects funded with financial assistance from the revolving fund must be listed on the project priority list and intended use plan as described in ARM 17.40.315 and 17.40.316, respectively.

History

Authorizing statute(s): 75-5-1105, MCA
Implementing statute(s): 75-5-1105, 75-5-1113, MCA
History: NEW, 1990 MAR p. 1468, Eff. 7/27/90; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 232, Eff. 2/14/03.

Mont. Admin. R. 17.40.310 Criteria for Loans to Private Persons

(1) A private person is eligible for a loan from the fund if the person's project proposal meets the following criteria:

(a) the project is consistent with the nonpoint source management plan and has qualified as a nonpoint source project;

(b) appropriate technical and administrative assistance is available for the project;

(d) adequate funding sources are available to completely finance the project;

(e) the project meets the criteria for loans as stated in 75-5-1113, MCA; and

(f) the project satisfies all conditions for financing of the project required by the department of natural resources and conservation.

History

Authorizing statute(s): 75-5-1105, MCA
Implementing statute(s): 75-5-1113, MCA
History: NEW, 1990 MAR p. 1468, Eff. 7/27/90; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 232, Eff. 2/14/03.

Mont. Admin. R. 17.40.311 Application Procedures

(1) A complete application package may be submitted to the department at any time. The department shall consider applications in the order received. If the department determines, in its sole discretion, that it lacks sufficient time to consider an application during the state fiscal year (July 1 through June 30) in which it was submitted, the department shall consider the application during the next fiscal year.

(2) A municipality that seeks direct loan assistance, a loan guarantee, or insurance for a municipal obligation must submit:

(a) a completed uniform application form;

(b) a preliminary engineering or technical report that includes an assessment of the environmental impacts associated with the proposed project;

(d) a project schedule;

(e) an engineering contract with information concerning procurement of services; and

(f) other information needed for evaluating the project, as determined by the department or required pursuant to administrative rules issued by the department of natural resources and conservation.

(3) A municipality that seeks loan assistance to refinance projects previously constructed and subject to outstanding indebtedness must submit:

(a) a completed uniform application form;

(b) cost information, including a description of existing indebtedness;

(c) documentation indicating how the requirements listed in ARM 17.40.309 were satisfied when the project was originally constructed; and

(d) other information needed for evaluating the project, as determined by the department or the department of natural resources and conservation.

(4) A private person who seeks financial assistance in connection with a nonpoint source project must submit:

(a) a completed loan application in a form determined by the department and the department of natural resources and conservation to be appropriate for the private person;

(b) a project work plan;

(d) a reasonably detailed description of the project;

(e) a reasonably detailed estimate of the cost of the project;

(f) a timetable for the construction of the project and for payment of the cost of the project;

(g) a description of the source or sources of funds to be used in addition to the proceeds of the loan to pay the cost of the project;

(h) a description of the source or sources of revenue proposed to be used to repay the loan;

(i) a current financial statement of the system showing assets, liabilities, revenues, and expenses;

(j) a statement as to whether, at the time of application, there are any outstanding loans, notes, bonds, or other obligations payable from the revenue of the system and, if so, a description of the loans, notes, bonds, or other obligations;

(k) a statement as to whether, at the time of the application, there are any outstanding loans, notes, or other obligations of the private person and, if so, a description of the loans, notes, or other obligations;

(l) all information that the department or the department of natural resources and conservation may require in order to determine the effect of making the loan on the tax exempt status of the state's bonds; and

(m) all other information that the department or the department of natural resources and conservation may require to determine the feasibility of a project and the applicant's ability to repay the loan including, but not limited to:

(i) engineering reports;

(ii) economic feasibility studies; and

(iii) legal opinions.

(n) other information needed for evaluating the project, as determined by the department or the department of natural resources and conservation.

History

Authorizing statute(s): 75-5-1105, MCA
Implementing statute(s): 75-5-1111, MCA
History: NEW, 1990 MAR p. 1468, Eff. 7/27/90; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 232, Eff. 2/14/03.

Mont. Admin. R. 17.40.315 Project Priority List

(1) The project priority list is established for rating and ranking possible projects for fund assistance.

(2) The department shall list all potential eligible projects on the project priority list, including projects proposed by project applicants and projects that the department determines are needed.

(3) The project priority list must include:

(a) a category assignment for each project based on the type of construction anticipated;

(b) an assignment of a numerical score for each project through use of the department's ranking criteria and ranking system, which must rate and rank projects according to:

(i) water quality impairment as it relates to:

(A) surface water; and

(B) ground water;

(ii) effectiveness of the proposed project in improving water quality;

(iii) activity-specific criteria; and

(iv) the applicant's readiness to proceed; and

(4) The priority list must be revised at least annually to consider new projects and changes in project status, and to allocate available revenues from the fund for eligible uses.

History

Authorizing statute(s): 75-5-1105, MCA
Implementing statute(s): 75-5-1112, MCA
History: NEW, 1990 MAR p. 1468, Eff. 7/27/90; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 232, Eff. 2/14/03.

Mont. Admin. R. 17.40.316 Intended Use Plan--Ranking for Funding Purposes

(1) The department shall prepare an intended use plan (IUP) annually.

(2) A project selected for funding is subject to denial by the department of natural resources and conservation based on its review for financial capability, as required under 75-5-1113, MCA.

(3) The following factors must be considered in developing the IUP:

(a) ability of each listed project to proceed within the fiscal year;

(b) each project's position on the project priority list;

(c) long-term health and viability of the revolving fund, and the ability of the revolving fund to support the project; and

(d) financial need of the project applicant.

History

Authorizing statute(s): 75-5-1105, MCA
Implementing statute(s): 75-5-1112, MCA
History: NEW, 1990 MAR p. 1468, Eff. 7/27/90; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 232, Eff. 2/14/03.

Mont. Admin. R. 17.40.317 Public Participation

(1) The project priority rating and ranking system, project priority list, and intended use plan are subject to full public scrutiny. Each year the department shall mail the draft priority list to the program's list of interested persons as defined in 2-4-102, MCA, publish notice of its availability in at least five newspapers of general circulation, and post such notice on the department's website.

(2) After preparation of the draft Montana rating and ranking system, the draft project priority list, and the draft intended use plan, a formally advertised public hearing must be held to allow public comment concerning the rating and ranking system, project priority list, and intended use plan. All public comments received by the department must be addressed in a written summary.

History

Authorizing statute(s): 75-5-1105, MCA
Implementing statute(s): 75-5-1112, MCA
History: NEW, 1990 MAR p. 1468, Eff. 7/27/90; TRANS, from DHES, 1996 MAR p. 1499; AMD, 2003 MAR p. 232, Eff. 2/14/03.

Mont. Admin. R. 17.40.318 State Revolving Fund Projects Eligible for Categorical Exclusion from Mepa Review

(1) Except as provided in (2), a department action under Title 75, chapter 5, part 11, MCA, and this subchapter is excluded from the requirement to prepare an environmental assessment (EA) or environmental impact statement (EIS) if the application for department review is for any of the following projects:

(a) projects relating to existing infrastructure systems such as sewer systems, drinking water supply systems, and stormwater systems, including combined sewer overflow systems that involve: