HomeMy WebLinkAbout09-06-19 Correspondence - M. Suplee, Ph.D. (with Montana Department of Environmental Quality) to Andrus - Amendment to Administrative Rules of Montana 6
Q11ontana Department
of Environmental Quality'
September 6, 2019
Dear Interested Party;
On October 22, 2019,the Department of Environmental Quality(department) will hold a public
hearing to consider proposed amendments of Administrative Rules of Montana (ARM)
17.30.660, pertaining to nutrient standards variances. The amendments are necessary to
incorporate by reference proposed changes to Department Circular DEQ-12B (DEQ-12B).
The department is proposing to revise DEQ-12B to respond to the U.S. District Court for the
District of Montana's Order in Upper Missouri Waterkeeper v. U.S. EPA, Case No. CV-16-52-GF-
BMM (July 16, 2019). While the Court found significant portions of the general nutrients
standards variance to be lawful and supported by the record, the Court partially vacated and
remanded a portion of EPA's approval of the general variance found in DEQ-12B. The Court
then stayed this vacatur and provided the department 120 days from the date of the Order to
adopt a revised general variance timeline, and provided U.S. EPA 90 days to complete its review
of these changes. The Court did not vacate EPA's approval of the department's findings
concerning widespread economic and social impacts, nor did it vacate approval of the treatment
requirements found in Table 1213-1 of DEQ-12B (what the Court refers to as the "Current
Variance Standard" or"highest attainable condition"). This rulemaking is only intended to
address the specific concerns of the Court related to (a)the timeline necessary to meet the
Table 126-1 treatment requirements and (b)the timeline and process necessary to meet the
base numeric nutrient standards contained in Department Circular DEQ-12A. The rulemaking
will allow continued use and application of the general variance for eligible dischargers and will
prevent the related economic and social harm from requiring immediate compliance with the
base numeric nutrient standards.
Concerned persons may submit their data,views, or arguments, either orally or in writing, at the
public hearing. The public hearing will be held on October 22, 2019, at 1:00 p.m., in Room 111
of the Metcalf Building, 1520 E. Sixth Avenue, Helena, Montana. Written data,views, or
arguments may also be submitted to Sandy Scherer, Legal Secretary, 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 sscherer@mt.gov, no later than 5:00 p.m., October 22,
2019. To be guaranteed consideration, mailed comments must be postmarked on or before
that date. A copy of proposed Department Circular DEQ-12B (November 2019) may be viewed
at the department's website: http://deq.mt.gov/water/drinkingwater/standards/#menu4.
Copies may also be obtained by contacting Mike Suplee at(406)444-0831 or msuolee@mt.gov.
Sincerely,
Michael SupleeFPh.D.
�
Acting Supervisor,Water Quality Standards& Modeling Section
Steve Bullock, Governor I Shaun McGrath, Director I P.O.Box 200901 1 Helena,MT 59620-0901 1(406)444-2544 1 www.deq.mt.gov
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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 standard ) ON PROPOSED AMENDMENT
variances )
(WATER QUALITY)
TO: All Concerned Persons
1. On October 22, 2019, at 1:00 p.m., the Department of Environmental
Quality (department) will hold a public hearing in Room 111 of the Metcalf Building,
1520 E. 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 Sandy
Scherer no later than 5:00 p.m., October 15, 2019, to advise us of the nature of the
accommodation that you need. Please contact Sandy Scherer at the Department of
Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone
(406) 444-2630; fax (406) 444-4386; or e-mail sscherer@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 (May 2018 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 (May 2018 November 2019 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 (May 8 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
MAR Notice No. 17-408 17-9/6/19
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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) through (7) remain the same.
(8) The department adopts and incorporates by reference Department
Circular DEQ-12B, entitled "Nutrient Standards Variances" (May 2919 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.
AUTH: 75-5-201, 75-5-301, MCA
IMP: 75-5-313, MCA
REASON: The department is proposing to revise Department Circular DEQ-
12B to respond to the U.S. District Court for the District of Montana's Order in Upper
Missouri Waterkeeper v. U.S. EPA, Case No. CV-16-52-GF-BMM (July 16, 2019).
While the Court found significant portions of the general nutrients standards variance
to be lawful and supported by the record, the Court partially vacated and remanded
a portion of EPA's approval of the general variance found in Department Circular
DEQ-12B. The Court then stayed this vacatur and provided the department 120
days from the date of the Order to adopt a revised general variance timeline, and
provided U.S. EPA 90 days to complete its review of these changes. The Court did
not vacate EPA's approval of the department's findings concerning widespread
economic and social impacts, nor did it vacate approval of the treatment
requirements found in Table 1213-1 of Department Circular DEQ-12B (what the Court
refers to as the "Current Variance Standard" or "highest attainable condition"). This
rulemaking is only intended to address the specific concerns of the Court related to
(a) the timeline necessary to meet the Table 1213-1 treatment requirements and (b)
the timeline and process necessary to meet the base numeric nutrient standards
contained in Department Circular DEQ-12A. The rulemaking will allow continued
use and application of the general variance for eligible dischargers and will prevent
the related economic and social harm from requiring immediate compliance with the
base numeric nutrient standards.
The economic and social justification for the Table 1213-1 treatment
requirements, as well as the treatment requirements themselves, are not subject to
the proposed amendments to Department Circular DEQ-12B. The Court found the
justifications and treatment requirements to be reasonable and did not vacate these
portions of EPA's approval. Because EPA's approval was limited to only 36
municipal facilities, this proposed rulemaking is also, thereby, limited to those 36
facilities.
Timeline Necessary to Meet Table 1213-1 Requirements: In its July 16, 2019 Order,
the Court reiterated the conclusion that the adoption of a 17-year timeline to merely
reach the Table 1213-1 values violated the direction of the Federal Clean Water Act
MAR Notice No. 17-408 17-9/6/19
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and that the general variance must instead begin with the Table 1213-1 treatment
requirements. In doing so, the Court also recognized "the reality that discharges
throughout the State of Montana currently stand at different levels of attainment." In
response to this direction, the department is proposing that mechanical dischargers
(>_1.0 million gallons per day and < 1.0 million gallons per day) and lagoon
dischargers must attain the Table 1213-1 treatment requirements as soon as
possible. Because the general variance is implemented through MPDES permitting
process, the department will be able to ensure that facilities are achieving the Table
1213-1 treatment requirements as soon as possible.
Several mechanical facilities are currently achieving the Table 12B-1 treatment
requirements and most of the remaining mechanical facilities should be able to attain
the treatment requirements well before July 1, 2027. However, the department has
identified one mechanical facility, the Town of Manhattan, that may require up to July
1, 2027 to achieve the Table 1213-1 treatment requirements. For the mechanical
facilities that are not yet able to attain the Table 1213-1 treatment requirements, i.e.,
the Cities of Butte, Helena, Kalispell, and Manhattan, the department anticipates it
will be able to publicly-notice draft MPDES permits to incorporate the Table 1213-1
treatment requirements, or a compliance schedule to achieve the same, no later
than July 31, 2020. This rulemaking clarifies that a compliance schedule may be
used to ensure the Table 1213-1 treatment requirements will be met as soon as
possible.
Because Table1213-1 already requires that lagoon facilities maintain long-term
average effluent concentrations for TP and TN, lagoon facilities, in the short-term,
must focus on implementing pollutant minimization programs as soon as possible.
In section 2.2.1.2. of the amended Circular DEQ-12B, the department is now
required to complete its statewide lagoon performance evaluations no later than
2020 (instead of 2022). Because of this change, lagoon facilities will be required to
complete reviews of operational methods two years sooner, leading to earlier
attainment of PMP requirements.
Timeline and Process Necessary to Meet the Base Numeric Nutrient Standards: To
address the Court's concerns about demonstrating progress toward meeting the
base numeric nutrient standards, the department amended Circular DEQ-12B to
include section 2.3. This section describes the process for reviewing and amending
the Table1213-1 treatment requirements and how the department and eligible
facilities will proceed as the treatment requirements are modified through the
triennial review procedure. In the event the Table 1213-1 treatment requirements are
not modified during a triennial review, the proposed changes to Circular DEQ-12B
also require the submission and implementation of a revised optimization/pollutant
minimization program for those facilities that are currently achieving the Table 1213-1
treatment requirements. This change will ensure all facilities will continue to make
progress toward attaining the base numeric nutrient standards.
Section 2.3 also addresses the specific timeline to achieve the base numeric nutrient
standards and is consistent with the Court's adoption of Plaintiff's proposed timeline
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of 2035. Under the terms of 75-5-313(8), MCA, the general variance may be
established for a period not to exceed 20 years. Because the original version of the
general nutrient standards variance became effective for state law purposes on
August 8, 2014, the term of the general variance may not extend beyond August 7,
2034,
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 Sandy Scherer, Legal Secretary, 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 sscherer@mt.gov, no later than 5:00 p.m., October
22, 2019. To be guaranteed consideration, mailed comments must be postmarked
on or before that date. A copy of proposed Department Circular DEQ-12B
(November 2019) may be viewed at the department's website:
http://deq.mt.gov/water/drinkingwater/standards/#menu4. Copies may also be
obtained by contacting Mike Suplee at (406) 444-0831 or msuplee@mt.gov.
5. 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 supply; public sewage systems
regulation; hard rock (metal) mine reclamation; major facility siting; opencut mine
reclamation; strip mine reclamation; subdivisions; renewable energy grants/loans;
wind energy bonding, 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 Sandy Scherer, Legal Secretary, 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 Sandy Scherer at sscherer@mt.gov, or may be
made by completing a request form at any rules hearing held by the department.
6. Kurt Moser, attorney for the department, has been designated to preside
over and conduct the hearing.
7. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
8. With regard to the requirements of 2-4-111, MCA, the department has
determined that the amendment of the above-referenced rule will not significantly
and directly impact small businesses.
MAR Notice No. 17-408 17-9/6/19
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Reviewed by: DEPARTMENT OF ENVIRONMENTAL
QUALITY
/s/Edward Haves BY: /s/Shaun McGrath
EDWARD HAYES SHAUN McGRATH
Rule Reviewer Director
Certified to the Secretary of State, August 27, 2019.
MAR Notice No. 17-408 17-9/6/19