BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY
OF THE STATE OF MONTANA
In the matter of the amendment of ARM 17.53.111, 17.53.112, 17.53.113, 17.53.207, and 17.53.603 pertaining to hazardous waste fees, registration of generators, information requests and annual reports
NOTICE OF AMENDMENT
TO: All Concerned Persons
1. On October 15, 2009, the Department of Environmental Quality published MAR Notice No. 17-294 regarding a notice of public hearing on the proposed amendment of the above-stated rules at page 1717, 2009 Montana Administrative Register, issue number 19.
2. The department has amended ARM 17.53.111, 17.53.112, 17.53.113, 17.53.207, and 17.53.603 exactly as proposed.
3. The following comments were received and appear with the department's responses:
COMMENT NO. 1: The Montana Petroleum Association (MPA) commented that it understands the funding options available to the department, but that there are several fee increase rules being promulgated at this time. MPA expressed concern about the cumulative effects on Montana business of all the fee increases being sought by the agency and stated that many of the increases are significant.
MPA suggested a continued dialogue between the regulated industry and the department in an effort to find ways to mitigate these increases. MPA commented that an effort to reduce the level of increases would be helpful to maintaining a viable and healthy economic base in Montana during these difficult economic times.
RESPONSE: The department acknowledges MPA's concern for the cumulative effect of all fee increases being sought by the agency. Other recently proposed department program fee increases, such as subdivision fees (MAR Notice No. 17-295), water quality permit fees (MAR Notice No. 17-290), and air quality fees (MAR Notice No. 17-286) are outside the scope of this rulemaking, however, the department agrees with the concept of a dialog on the cumulative effect of fees, and is open to further communication on the subject.
State law (75-10-402, MCA) provides that hazardous waste management should be addressed by the state, and authorizes the department to adopt, administer, and enforce a hazardous waste management program pursuant to the federal Resource Conservation and Recovery Act of 1976 (RCRA).
In response to federal funding cuts, the department proposed an increase to the registration and annual registration maintenance fees in ARM 17.53.113 to defray a portion of the state's costs of maintaining the hazardous waste program (program). EPA funding for the program has decreased 29% from FY 2004 ($478,783) through FY 2009 ($339,129).
COMMENT NO. 2: Columbia Falls Aluminum Company, LLC (CFAC) commented that it opposes the changes to the registration and registration maintenance fees in ARM 17.53.113.
CFAC stated that, historically, it has been one of the largest generators of hazardous waste in Montana and that, while aluminum production at the plant is presently curtailed, efforts are underway to negotiate the necessary agreements to restart. CFAC stated that, when that opportunity arises, CFAC will resume production at a level that remains indefinite at this time. However, the impact of implementing the proposed changes to ARM 17.53.113 may be catastrophic. CFAC provided the following estimates of the impact of the proposed fee increases at different levels of production.
No. Potlines Haz Waste Current Rule Proposed Rule Percent
generated Cost ($) Cost ($) Increase
1 2000 tons $ 2095 $ 40,200 1800%
2 3000 3095 60,200 1900%
3 4000 4095 80,200 1900%
CFAC stated that the proposed fee increases would hinder, rather than help, bringing the plant back into production and into Montana's economy.
RESPONSE: The rationale for raising the various hazardous waste fees is discussed in the Response to Comment No. 1.
CFAC's hazardous waste disposal costs when the plant is operating are much greater than the current proposed hazardous waste registration maintenance fees. CFAC disposes of most of its hazardous waste at Chemical Waste Management of the Northwest, Inc. in Arlington, Ore. CFAC's average amount of generated hazardous waste for the last five full years has been approximately 3,150 tons. The hazardous waste disposal cost is approximately $225 per ton. Therefore, currently, an annual registration maintenance fee based on the average of 3,150 tons at the 2009 rate of a $200 flat fee plus $5 per ton would be about 2% of the disposal cost, and the fee for 3,150 tons generated at the 2012 rate of a $200 flat fee plus $20 per ton would be about 9% of the disposal cost.
Also, the highest proposed registration maintenance fee is $200 plus $20 per ton for hazardous waste generated in 2012.
Reviewed by: DEPARTMENT OF ENVIRONMENTAL
/s/ David Rusoff By: /s/ Richard H. Opper
David Rusoff RICHARD H. OPPER, DIRECTOR
Certified to the Secretary of State, November 30, 2009.