HomeMy WebLinkAbout04-17-17 Correspondence - DEQ to Commission - ARM Amendment re Nutrient Standard Variances •
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Montana Department
of Environmental Quality
NOTICE OF ADMINISTRATIVE RULEMAKING
TO: Interested Parties
FROM: Myla Kelly, Water Quality Standards and Modeling Section Supervisor
Water Quality Planning Bureau
Water Quality Division
Montana Department of Environmental Quality
SUBJECT: Amendment of ARM 17.30.660 pertaining to nutrient standard variances.
A notice of the proposed amendments to Department of Environmental Quality(the Department) rule
ARM 17.30.660 is enclosed.The proposed amendments are necessary to adopt by reference several
proposed changes to Department Circular DEQ-12B (DEQ-12B).
Variances from numeric nutrient standards are intended to prevent substantial and widespread
economic impacts to Montana communities. DEQ-1213, the variance circular, was originally adopted in
August 2014, and contains wastewater treatment requirements that came from statute (see 75-5-
313(5)(b), MCA).This is the Department's first review of the DEQ-126's wastewater treatment
requirements since its adoption.Statute requires a review of the circular every three years.
In between the time that the Department adopted DEQ-12B and today,the U.S. Environmental
Protection Agency updated (in August 2015) its regulations regarding water quality standards variances.
One of the most important changes to the federal rules was that a highest attainable condition must
now be identified when a variance is granted. To comply with the new federal rules,wastewater
treatment requirements in the circular must reflect the highest attainable condition as determined,
mainly, by economic impact considerations.
Other proposed changes to DEQ-12B include addition of detailed instructions on how variances for
permittees in the>_1 million gallons per day(MGD) and <1 MGD discharger categories are to be
permitted; updates to the nutrient concentrations a permittee receiving a general variance is required
to achieve as a monthly average, end of pipe; a change to the way permit limits are determined if the
facility's discharge is better than the required concentrations listed in DEQ-126; addition of a list of nine
steps designed to bring permittees into compliance with the required concentrations listed in DEQ-12B
as well as a requirement for the Department to establish a schedule for completion of the necessary
steps; addition of a requirement for permittees to include a pollutant minimization program; and a
requirement that the permittee will have to identify the time it will take to achieve the highest
attainable condition and to submit a pollutant minimization plan once the highest attainable condition
has been met.These changes are explained further in the attached notice of proposed amendment.
The Department met with its Nutrient Work Group advisory group (or a subcommittee of it) eight times
between 9/14/2016 and 3/27/2017 to discuss the necessary changes to DEQ-1213. Most discussions
centered on what the highest attainable condition is for different wastewater discharge permit holders.
The Department carefully considered the input from the Nutrient Work Group prior to crafting the final
Steve Bullock,Governor I Tom Livers, Director I P.O.Box 200901 1 Helena,MT 59620-0901 1 (406)444-2544 1 www.deq.mt.gov
treatment requirements for DEQ-12B. Numerous wastewater engineers provided input during these
discussions.
An electronic copy of the proposed changes to DEQ-12B and the attached rule notice,as well as the
technical support document explaining the proposed changes to DEQ-12B may be obtained at:
http://deg.mt.gov/Water/`WQINFO/nutrientworkgroup . Copies may also be obtained by calling Myla
Kelly at (406) 444-3639 or emailing her at mkelly2@mt.gov .
A public hearing to consider the proposed amendments will be held May 31, 2017 at 9:00 a.m. in room
111 of the Metcalf Building at 1520 E Sixth Avenue, Helena, MT.The Department will make reasonable
accommodations for individuals with disabilities who wish to participate in the hearing or need an
alternative accessible format of this notice. If you require an accommodation, contact the Department
no later than 5:00 p.m. May 24, 2017,to advise us of the nature of the accommodation that you need.
Please contact Denise Hartman at Department of Environmental Quality, PO Box 200901, Helena,
Montana 59620-0901; phone 406-444-2630; fax 406-444-4386 or email at dhartman2@mt.Bov.
Written data, views,or arguments regarding the proposed rule amendments and changes to DEQ-12B
may be submitted to Denise Hartman, Department of Environmental Quality, 1520 E Sixth Ave, PO Box
200901, Helena, Montana 59620-0901;406-444-2630;fax 406-444-4386 or email at dhartman2@mt.gov
no later than May 31, 20171 at 5:00 p.m.To be guaranteed consideration, mailed comments must be
postmarked on or before this date.
If you wish to receive rule notices by email or to be removed from the interested persons list, please
contact Timmie Smart at Department of Environmental Quality, Metcalf Building PO Box 200901,
Helena, MT 59620-0901;406-444-6749 fax 406-444-6836; Email: tsmart uemt.gov and provide any
updates to your contact information.
1 The initial notice indicates that the comment period closes on May 12,2017. However,in the Amended Notice
and Extension of Comment Period of Proposed Amendments,which is also enclosed,the Department extended
the comment period until May 31, 2017.
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BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY
OF THE STATE OF MONTANA
In the matter of the amendment of ARM ) AMENDED NOTICE AND
17.30.660 pertaining to nutrient ) EXTENSION OF COMMENT
standard variances } PERIOD ON PROPOSED
AMENDMENTS
(WATER QUALITY)
TO: All Concerned Persons
1. On April 14, 2017, the Department of Environmental Quality published
MAR Notice 17-390 pertaining to the public hearing on proposed amendment of the
above-referenced rule at page 394 of the 2017 Montana Administrative Register,
Issue Number 7.
2. The department will make reasonable accommodations for persons with
disabilities who wish to participate in this rulemaking process or need an alternative
accessible format of this notice. if you require an accommodation, contact Myla
Kelly no later than 5:00 p.m., May 24, 2017, to advise us of the nature of the
accommodation that you need. Please contact Myla Kelly at Department of
Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone
(406) 444-3639; fax (406) 444-4386; or e-mail MKelly2@mt.gov.
3. The Department of Environmental Quality is extending the comment
period to comply with federal comment period requirements for state agency water
quality rulemaking. The date, time, and place of the public hearing remain the same.
4. Concerned persons may submit their data, views, or arguments, either
orally or in writing, at the hearing. Written data, views, or arguments may also be
submitted to Denise Hartman, Administrative Rules Coordinator, Department of
Environmental Quality, 1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana
59620-0901; faxed to (406) 444-4386; or e-mailed to dhartman2@mt.gov, no later
than 5:00 p.m., on May 31, 2017. To be guaranteed consideration, mailed
comments must be postmarked on or before that date.
Reviewed by: DEPARTMENT OF ENVIRONMENTAL
QUALITY
Is/John F. North BY: /s/Tom Livers
JOHN F. NORTH TOM LIVERS
Rule Reviewer Director
Certified to the Secretary of State, April 17, 2017.
MAR Notice No. 17-390
-394-
BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY
OF THE STATE OF MONTANA
In the matter of the amendment of ARM ) NOTICE OF PUBLIC HEARING
17.30.660 pertaining to nutrient ) ON PROPOSED AMENDMENT
standard variances )
} (WATER QUALITY)
TO: All Concerned Persons
1. On May 31, 2017, at 9:00 a.m., the Department of Environmental Quality
will hold a public hearing in Room 111 of the Metcalf Building, 1520 East Sixth
Avenue, Helena, Montana, to consider the proposed amendment of the above-
stated rule.
2. The department will make reasonable accommodations for persons with
disabilities who wish to participate in this rulemaking process or need an alternative
accessible format of this notice. If you require an accommodation, contact Myla
Kelly no later than 5:00 p.m., May 24, 2017, to advise us of the nature of the
accommodation that you need. Please contact Myla Kelly at Department of
Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone
(406) 444-3639; fax (406) 444-4386; or e-mail MKelly2@mt.gov.
3. The rule proposed to be amended provides as follows, stricken matter
interlined, new matter underlined:
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 (july 2$14 June 2017 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 (J'`'�4 June 2017 edition). The decision to grant
the general variance must be reflected in the permit that is made available for public
comment.
(3) remains the same.
(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 (july June 2017 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
MAR Notice No. 17-390 7-4/14/17
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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) through (7) remain the same.
(8) The department adopts and incorporates by reference Department
Circular DEQ-12B, entitled "Nutrient Standards Variances" (July-2014 June 2017
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.
Auth: 75-5-201, 75-5-301, MCA
IMP: 75-5-313, MCA
REASON: Department Circular DEQ-12B contains details on how to
implement variances from base numeric nutrient standards, and the current version
of the circular expires on July 1, 2017. Section 75-5-313(7), MCA, requires the
department to revisit and update key aspects of Circular DEQ-12B every three
years. The department is proposing to modify Department Circular DEQ-12B itself
in several important aspects. Those modifications are explained below. The
proposed rule amendments would incorporate by reference the updated version of
Circular DEQ-12B (June 2017).
Changes applicable to both general and individual variances: The proposed
circular would include detailed instructions on how variances for permittees in two
discharger categories (?1 MGD, <1 MGD) are to be permitted. Specifically, a fixed
coefficient of variation (CV; that is, the standard deviation/mean) of 0.6 would be
used when deriving a permittee's average monthly permit limit. Currently, the
department uses a variable CV computed from samples collected over the past few
years from a permittee's discharge. Analysis revealed that the current approach
may lead to future permit limits with an increasing likelihood of non-compliance,
even though the permittee's discharge concentrations are in fact lower (i.e., better)
because the CV of effluent nutrient samples is likely to increase as lower nutrient
concentrations are achieved. The proposed change should alleviate the problem
because it would institute a CV that is realistic for the point in time in the future when
permittees achieve low nutrient concentrations in their effluent.
Changes applicable to general variances: The circular contains Table 1213-1,
which presents the nutrient concentrations a permittee receiving a general variance
is required to achieve as a monthly average, end-of-pipe. The total nitrogen and
phosphorus concentrations in the July 2014 version of the circular came from 75-5-
313(5)(b), MCA. This statute required the department to adopt the concentrations
by May 2016 and revisit and update them every 3 years. This is the department's
first review of the treatment requirements in Table 1213-1. In August 2015, the U.S.
Environmental Protection Agency modified its regulations regarding variances. One
of the most important changes to the federal rules was that a "highest attainable
condition" (HAC) must now be identified when a variance is granted. Montana's
nutrient variances are based on economic impact considerations, so in order to
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comply with federal requirements, the requirements in Section 2.0 and Table 12B-1
of Circular DEQ-12B must reflect the HAC. The department and the nutrient work
group evaluated a considerable amount of cost, economic, and other technical
material in order to determine what the HAC might be for each discharger group.
The concentrations shown in the proposed June 2017 version of the circular reflect
those findings. The proposed concentrations are, for permittees that discharge
>_1 MGD, 300 pg/L for total phosphorus and 6,000 pg/L for total nitrogen. For
permittees that discharge <1 MGD, the proposed concentrations are 1,000 pg/L for
total phosphorus and 10,000 pg/L for total nitrogen. No change is proposed for
lagoons. The rationale for these numbers is contained in a technical support
document entitled "First Triennial Review of Base Numeric Nutrient Standards and
Variances." A copy of this document is available as described in paragraph 5 in this
notice.
If the proposed (June 2017) edition of Circular DEQ-12B is adopted, there will
be a change in the way permitting is undertaken in the >_1 MGD and <1 MGD
discharge categories when a facility's discharge is better (i.e., at lower
concentrations) than the concentrations in the updated Table 1213-1. Prior to the
adoption of nutrient standards and variances in 2014, there were a number of
permittees in these two discharger categories whose effluent quality was better than
the concentrations now in Table 1213-1. Since most of them were able to achieve
those concentrations before the nutrient standards were adopted, and presumably
without incurring substantial and widespread economic harm, the department has
been establishing their general variance permit limits at their existing discharge
quality. With this triennial review, the treatment levels in Table 1213-1 now reflect the
category HACs, established at Montana-specific acceptable economic thresholds.
Therefore, going forward, for permittees whose effluent concentrations were, before
July 1, 2017, lower than the concentrations in Table 1213-1, the general variance
would be based on the actual total N and/or total P concentrations of their effluent.
For permittees who, after July 1, 2017, attain or do better than the Table 1213-1
values, the Table 1213-1 values would be the permit limits. The HAC analysis utilized
site specific engineering data and represents performance levels that reflect current
technology. It is also presumed that as influent loading increases, effluent quality
may be more variable and less certain at concentration levels less than HAC values.
For those permittees who are not in compliance with the concentrations in
Table 1213-1, the modified circular also contains a list of nine steps, which are
contained in proposed Table 1213-2, that are designed to bring the permittee into
compliance with the concentrations. The proposed circular would require the
department in the discharge permit to require completion of the steps that the
department deems necessary for the permittee to achieve the concentrations and to
establish a schedule for their completion.
Another significant change to the circular, in order to comply with the new
federal rules, is the requirement for permittees to include a pollutant minimization
program (PMP). This program is to be submitted by a permittee at the time the
permittee achieves the HAC (that is, when the permittee actually achieves the
concentrations in Table 1213-1). The time it will take different permittees to achieve
the concentrations in Table 1213-1 is expected to vary. Through the permitting
MAR Notice No. 17-390 7-4/14/17
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process and the specific details of each facility, the time required would generally be
as short as possible. But when a permittee does achieve the concentrations in
Table 12B-1, the permittee would be required to submit to the department a PMP
plan, which is a structured set of activities to improve processes and pollutant
controls that will prevent and reduce pollutant loadings. A PMP might, for example,
be working with an upstream nonpoint agriculture source to implement best
management practices to reduce nutrient runoff from their fields.
Finally, the department is proposing to add to the circular language indicating
that if the general variance for one category of dischargers is invalidated by a court
or disapproved by EPA, the general variance for the other categories remains in
effect. This is proposed in order to provide that general variances that have not
been disapproved will not be affected by disapproval of the variance for another
category.
Changes applicable to individual variances: By going through the process of
applying for an individual variance, a permittee will have identified a treatment level
that is the highest attainable condition, tailored to their specific economic and social
situation. Whether the permittee will achieve the HAC in the near term (e.g., within
the next permit cycle) or beyond will depend on various factors; these factors will be
documented in the variance and the permit. As part of individual variance, the
permittee will have to identify the time it will take to achieve the HAC; this
requirement is reflected in the proposed modified circular. When the permittee does
achieve the HAC, the permittee would be required to submit a PMP (as permittees
under the general variance are required to do). This requirement is reflected in the
proposed amended circular.
4. As stated above, the proposed modified DEQ Circular-12B contains
modified numeric concentrations and a fixed numeric coefficient of variation for
deriving a permittee's average monthly permit limit. While the department is
generally requesting comments on every proposed modification to the circular, the
department is specifically requesting comment on whether these numbers should be
lower or higher.
5. A copy of proposed Department Circular DEQ-12B (June 2017) and the
technical support document entitled "First Triennial Review of Base Numeric Nutrient
Standards and Variances" may be viewed at the department's website using the
following path: http://deq.mt.gov/Water/WQINFO/nutrientworkgroup. Copies may
also be obtained by calling Myla Kelly at (406) 444-3639 or e-mailing her at
MKelly2@mt.gov.
6. Concerned persons may submit their data, views, or arguments, either
orally or in writing, at the hearing. Written data, views, or arguments may also be
submitted to Denise Hartman, Administrative Rules Coordinator, Department of
Environmental Quality, 1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana
59620-0901; faxed to (406)444-4386; or e-mailed to dhartman2@mt.gov, no later
than 5:00 p.m., May 12, 2017. To be guaranteed consideration, mailed comments
must be postmarked on or before that date.
7-4/14/17 MAR Notice No. 17-390
-398-
7. The department maintains a list of interested persons who wish to receive
notices of rulemaking actions proposed by this agency. Persons who wish to have
their name added to the list shall make a written request that includes the name,
e-mail, and mailing address of the person to receive notices and specifies that the
person wishes to receive notices regarding: air quality; hazardous waste/waste oil;
asbestos control; water/wastewater treatment plant operator certification; solid
waste;junk vehicles; infectious waste; public water supplies; public sewage systems
regulation; hard rock (metal) mine reclamation; major facility siting; opencut mine
reclamation; strip mine reclamation; subdivisions; renewable energy grants/loans;
wastewater treatment or safe drinking water revolving grants and loans; water
quality; CECRA; underground/above ground storage tanks; MEPA; or general
procedural rules other than MEPA. Notices will be sent by e-mail unless a mailing
preference is noted in the request. Such written request may be mailed or delivered
to Denise Hartman, Administrative Rules Coordinator, Department of Environmental
Quality, 1520 E. Sixth Ave., P.O. Box 200901, Helena, Montana 59620-0901, faxed
to the office at (406) 444-4386, e-mailed to Denise Hartman at dhartman2@mt.gov;
or may be made by completing a request form at any rules hearing held by the
department.
8. Kurt Moser, attorney for the department, has been designated to preside
over and conduct the hearing.
9. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
10. With regard to the requirements of 2-4-111, MCA, the department has
determined that the amendment of the above-referenced rule will significantly and
directly impact small businesses.
Reviewed by: DEPARTMENT OF ENVIRONMENTAL
QUALITY
Is/John F. North BY: Isl Tom Livers
JOHN F. NORTH TOM LIVERS
Rule Reviewer Director .
Certified to the Secretary of State, April 3, 2017.
MAR Notice No. 17-390 7-4/14/17