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Montana Administrative Register Notice 17-286 No. 12   06/25/2009    
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BEFORE THE BOARD OF ENVIRONMENTAL REVIEW

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 17.8.501, 17.8.504, 17.8.505, and 17.8.514 pertaining to definitions, permit application fees, operation fees, and open burning fees

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

(AIR QUALITY)

 

            TO:  All Concerned Persons

 

            1.  On July 27, 2009, at 1:45 p.m., the Board of Environmental Review will hold a public hearing in Room 35, Metcalf Building, 1520 East Sixth Avenue, Helena, Montana, to consider the proposed amendment of the above-stated rules.

 

            2.  The board will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice.  If you require an accommodation, contact Elois Johnson, Paralegal, no later than 5:00 p.m., July 6, 2009, to advise us of the nature of the accommodation that you need.  Please contact Elois Johnson at Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-2630; fax (406) 444-4386; or e-mail ejohnson@mt.gov.

 

            3.  The rules proposed to be amended provide as follows, stricken matter interlined, new matter underlined:

 

            17.8.501  DEFINITIONS  For the purposes of this subchapter, the following definitions apply:

            (1) remains the same.

            (2)  "Modified source" means a facility for which an application to modify, as defined in ARM Title 17, chapter 8, subchapter 7, is submitted to the department.

            (3)  "New source" means a source, as defined in ARM Title 17, chapter 8, subchapter 1, for which the department has not previously issued a Montana air quality permit.

            (2) and (3) remain the same, but are renumbered (4) and (5).

            (6)  "Source type A" means a facility subject to the provisions of ARM Title 17, chapter 8, subchapter 12.

            (7)  "Source type B" means a facility subject to the provisions of ARM Title 17, chapter 8, subchapter 7.

            (8)  "Source type NSR/PSD" means a facility subject to the provisions of ARM Title 17, chapter 8, subchapters 8, 9, or 10.

            (9)  "Source type S/SM" means a facility subject to the provisions of ARM 17.8.1204(3).

            (4)  "Wildland fire use" means the management of naturally-ignited fire to accomplish specific resource management objectives in predefined geographic areas.  The term does not include fire on agricultural land.

 

            AUTH:  75-2-111, MCA

            IMP: 75-2-211, MCA

 

            17.8.504  AIR QUALITY PERMIT APPLICATION FEES  (1)  An applicant submitting a Montana air quality permit application, as required in ARM Title 17, chapter 8, subchapters 7, 8, 9, or 10, shall submit an application fee as provided in (1)(a), and (b), and (c):

            (a)  $3,000 for an application subject to the provisions of ARM Title 17, chapter 8, subchapters 8, 9, or 10 for a facility for which the department has not previously issued a Montana air quality permit; or the following table sets forth source types and associated fees:

 

Source Type

New Source

Modified Source

NSR/PSD

$15,000

$500

A

$1,200

$500

S/SM

$1,000

$500

B

$800

$500

 

            (b)  $500 for an application not included in (1)(a) for a portable facility.; and

            (c)  $500 for an application to register an oil and gas well facility.

            (2) through (5) remain the same.

 

            AUTH:  75-2-111, 75-2-220, 75-2-234, MCA

            IMP:  75-2-211, 75-2-220, 75-2-234, MCA

 

            17.8.505  AIR QUALITY OPERATION FEES  (1) through (6) remain the same.

            (7)  The air quality operation fee for facilities other than portable facilities or registered oil and gas well facilities is based on the actual, or estimated actual, amount of air pollutants emitted by the facility during the previous calendar year and is an administrative fee of $600 800, plus $31.29 [an amount within the range of $36 to $41, to be determined by the board based on the hearing record] per ton of PM-10, sulfur dioxide, lead, oxides of nitrogen, and volatile organic compounds emitted.

            (8)  The air quality operation fee for portable facilities is $600 800.

            (9)  The air quality operation fee for registered oil and gas well facilities is $600 800.

            (10) through (13) remain the same.

 

            AUTH:  75-2-111, 75-2-220, 75-2-234, MCA

            IMP:  75-2-211, 75-2-220, 75-2-234, MCA

 

            17.8.514  AIR QUALITY OPEN BURNING FEES  (1) through (4) remain the same.

            (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 $17.40 20.60; plus

                  tons of oxides of nitrogen emitted in the previous

                  appropriate calendar year,

                  multiplied by $4.35 5.15; plus

                  tons of volatile organic compounds emitted in the

                  previous appropriate calendar year,

                  multiplied by $4.35 5.15; or

 

            (b) remains the same.

            (6)  To conduct wildland fire use burning, an applicant for an air quality major open burning permit shall, in addition to submitting the fees specified in (5), submit a fee of $1,000.

            (7) remains the same, but is renumbered (6).

 

            AUTH:  75-2-111, MCA

            IMP:  75-2-211, 75-2-220, MCA

 

            REASON:  Pursuant to 75-2-220, MCA, the department assesses air quality permit application fees, annual air quality operation fees, and open burning permit fees.  In the aggregate, these fees must be sufficient to cover the department's costs of developing and administering the permitting requirements for the Clean Air Act of Montana.  Under ARM 17.8.510, the structure and the amount of the fees are to be determined and reviewed annually by the board.  The amount of money the department needs to generate through the collection of air quality operation fees depends primarily on the legislative appropriation and to a lesser extent various factors regarding the evaluation of the recently-received legislative appropriation and the department concluding its budget process.  The emission component of the operation fee is revised also to account for changes in the total amount of pollutants emitted in the state in the previous calendar year.

            Annual air quality operation fees are required for all facilities that hold an air quality permit, that will be required to obtain an air quality permit pursuant to the Title V air quality operating permit program, or that are registered oil and gas well facilities.  For facilities other than portable facilities and registered oil and gas well facilities, for which a flat administrative fee is assessed, the air quality operation fee has been based on the actual, or estimated actual, amount of air pollutants emitted during the previous calendar year and includes an administrative fee plus a per-ton fee for tons of PM-10 (particulate matter having an aerodynamic diameter less than or equal to 10 microns), sulfur dioxide, lead, oxides of nitrogen, and volatile organic compounds emitted.

            For fiscal year 2010, the board is proposing to establish a five-class schedule of application fee charges.  The schedule is intended to move toward a system that creates more equity among fee payers than the current flat rate application fee structure.  The board estimates the new class schedule for permit application fees would affect approximately 23 source applications.

            The board is proposing to set the air quality operation fees to be billed in calendar year 2009 to fund the department's activities in fiscal year 2010.  These fees would be based on emissions reported from calendar year 2008.

            The exact appropriation is not known at this time as the legislative session recently concluded and the department is engaged in its budgeting process.  However, the appropriation for fiscal year 2010 is approximately $4.87 million, an increase of $.91 million from fiscal year 2009.  The total amount of pollutants reported for 2008 is 85,376 tons.  The total amount of pollutants for 2007 was 98,374 tons.  Based upon the estimated increase in the appropriation and the decrease in the emission inventory, in order to cover the department's costs of developing and administering the air quality permitting program, the board proposes to amend ARM 17.8.505(7) by (1) increasing the fee for portable and registered oil and gas well facilities and (2) establishing a fee assessed on a per-ton basis that would not exceed the approximate appropriation.  That fee will be set between $36 and $41 per ton of emissions depending upon the results of the department's budgeting process.  In calendar year 2009, operation fees would be assessed for an estimated 1400 emitting facilities.  The cumulative amount of the application and operating fees would approximately equal the appropriation.

            In addition, the board is proposing to amend ARM 17.8.514 by revising the fee required for major open burning permit applications for fiscal year 2010.  Each year, in consultation with the major open burners in the state, the department develops a budget reflecting the cost the department will incur that fiscal year in operating its Smoke Management Program for major open burners.  Fees assessed to individual burners are based upon the budget and the burner's actual, or estimated actual, emissions from the previous calendar year in which the burner conducted open burning pursuant to an air quality major open burning permit.  For calendar year 2008, the major open burners reported 621,595 tons of emissions, compared to 890,885 tons for calendar year 2007, or a decrease of 269,290 tons.

            The operating budget for the 11 major open burners in fiscal year 2010 is $71,300, compared to a budget of $79,285 for fiscal year 2009.  The decrease of $7,985 in major open burning funding reflects a decrease of $1,069 in personnel costs for services related to an information technology feasibility inquiry that is now concluded.  The budget also reflects a corresponding decrease of $281 in associated benefits.  The budget reflects a reduction of $5,100 in technical support costs expended in the last fiscal year to assess the feasibility of migrating the Airshed Management System (AMS) database to a state-owned server and to assess the eventual maintenance of the database.  A continuation of that assessment and the migration of the AMS database are no longer necessary as the feasibility study concluded no reliable resources or IT expertise exist to support migration or ongoing AMS database maintenance.  Other reductions include the elimination of the satellite communications service ($4,550) because other free services are publicly available.  The department also no longer pays the $340 permit notice publication fee.  The budget includes an increase of $1,000 for the cost of an internet connection for the use of the AMS database.  The budget also reflects a net increase in personnel services indirect costs in the amount of $1,888 as the personnel services indirect rate rose from 21% to 24%.  However, the indirect costs associated with operating costs fell $349 as a result of operating cost decreases.  The board is proposing to increase the permit fees from $17.40 per ton of particulate, $4.35 per ton of oxides of nitrogen, and $4.35 per ton of volatile organic compounds emitted to $20.60, $5.15, and $5.15, respectively.

            In addition, the board proposes to repeal the definition of "wildland fire use" in ARM 17.8.501(4).  The board is advised the term is no longer used to describe the management activities regarding naturally-ignited fire to accomplish specific resource management objectives in predefined geographic areas.  Therefore, the fee formerly assessed for this activity as a separate provision at ARM 17.8.514(6) is also necessarily proposed for repeal.

            The cumulative amount of the fees to be collected from the major open burners would equal the department's direct costs to operate the major open burning program ($71,300).  This amount would be distributed among the 11 major open burners.  The department approved claims for nonmonetary contributions to the major open burning program equivalent to $19,624 pursuant to ARM 17.8.514(7).  The department developed the proposed major open burning fee levels based on these approved claims and reported emissions from each of the major open burners in the last calendar year.

            The board also is proposing minor editorial amendments to ARM 17.8.501, 17.8.504, and 17.8.505 that are not intended to have any substantive effect.

 

            4.  Concerned persons may submit their data, views, or arguments, either orally or in writing, at the hearing.  Written data, views, or arguments may also be submitted to Elois Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana 59620-0901; faxed to (406) 444-4386; or e-mailed to ejohnson@mt.gov, no later than 5:00 p.m., August 3, 2009.  To be guaranteed consideration, mailed comments must be postmarked on or before that date.

 

            5.  Katherine Orr, attorney for the board, or another attorney for the Agency Legal Services Bureau, has been designated to preside over and conduct the hearing.

 

            6.  The board maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies that the person wishes to receive notices regarding:  air quality; hazardous waste/waste oil; asbestos control; water/wastewater treatment plant operator certification; solid waste; junk vehicles; infectious waste; public water supply; public sewage systems regulation; hard rock (metal) mine reclamation; major facility siting; opencut mine reclamation; strip mine reclamation; subdivisions; renewable energy grants/loans; wastewater treatment or safe drinking water revolving grants and loans; water quality; CECRA; underground/above ground storage tanks; MEPA; or general procedural rules other than MEPA.  Notices will be sent by e-mail unless a mailing preference is noted in the request.  Such written request may be mailed or delivered to Elois Johnson, Paralegal, 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 Elois Johnson at ejohnson@mt.gov, or may be made by completing a request form at any rules hearing held by the board.

 

            7.  The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

Reviewed by:                                     BOARD OF ENVIRONMENTAL REVIEW

 

 

 

/s/ David Rusoff                                   BY:  /s/ Joseph W. Russell                                  

DAVID RUSOFF                                         JOSEPH W. RUSSELL, M.P.H.,

Rule Reviewer                                              Chairman

 

            Certified to the Secretary of State, June 15, 2009.

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