Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY

OF THE STATE OF MONTANA

In the matter of the amendment of ARM 17.50.523 pertaining to transportation

)

NOTICE OF AMENDMENT

(SOLID WASTE MANAGEMENT)

TO: All Concerned Persons

1. On January 8, 2016, the Department of Environmental Quality published MAR Notice No. 17-381 pertaining to the public hearing on the proposed amendment of the above-stated rule at page 4, 2016 Montana Administrative Register, Issue No. 1.

2. The department has amended the rule exactly as proposed.

3. The following comments were received and appear with the department's responses:

COMMENT NO. 1: The language of this rule is straightforward. It requires that loads being transported to waste facilities be "covered and secured" to prevent "discharge, dumping, spilling, or leaking from the transport vehicle." It should lead to fewer spills of oilfield exploration and production waste.

RESPONSE: The department agrees that the amendment to ARM 17.50.523 should lead to fewer spills of oilfield exploration and production waste.

COMMENT NO. 2: The amendment to ARM 17.50.523 is overly broad. It places a blanket requirement to cover all loads that contain Naturally Occurring Radioactive Materials (NORM) and Technologically Enhanced Naturally Occurring Radioactive Materials (TENORM) while in transit. This rule would affect all loads, regardless of how the load is packaged. For example, a load of waste that is packaged in poly bags on a flatbed truck would have an additional requirement to cover the entire load.

RESPONSE: The rule is intended to apply to all loads of oilfield exploration and production waste. In the event that a load of oilfield exploration and production waste was transported in poly bags on a flatbed truck, ARM 17.50.523 would require additional coverage over the bags. However, it is the department's understanding that oilfield exploration and production waste is not typically transported in this manner. If this method of transporting oilfield exploration and production waste becomes more prevalent, and it can be shown that this method is effective in preventing discharging, dumping, spilling, or leaking, the department may consider an exception for this method in future rulemaking.

COMMENT NO. 3: This rule moves the compliance responsibility of this type of waste directly to transporters, in most cases trucks. Trucking is already heavily regulated by the Federal Motor Carrier Safety Administration and the Montana Department of Transportation. 49 CFR Section 393.110 already specifies that loads must be properly secured. Motor Carrier Services officers at the Montana Department of Transportation have the authority to enforce this regulation now.

RESPONSE: The Federal Motor Carrier Safety Administration and the Montana Department of Transportation regulate certain aspects of trucking and can enforce 49 CFR Section 393.110. The department does not have the authority to enforce 49 CFR Section 393.110. Additionally, depending on how a load is packaged, 49 CFR Section 393.110 may not apply to the types of loads targeted by ARM 17.50.523. However, 75-10-204(3), MCA, requires the department to adopt rules governing transportation of solid wastes so that the department can ensure that solid waste is transported in a manner that is protective of public health and safety.

COMMENT NO. 4: To enforce this rule, there would have to be officers or inspectors that witness noncompliance. Alternatively, compliance would need to be required by the waste facility.

RESPONSE: The department disagrees. ARM 17.50.523(2) will be enforced in the same manner as ARM 17.50.523(1) and the rest of the department's administrative rules. The department will investigate complaints when they are made. The department also anticipates that it will work with solid waste management facilities to ensure compliance.

COMMENT NO. 5: If the department is going to rely on law enforcement citations for enforcement, the likely enforcement agency is the Montana Department of Transportation. Montana Department of Transportation officers do not have the authority to enforce rules adopted pursuant to 75-10-204, MCA.

RESPONSE: The department does not intend to rely on Montana Department of Transportation officers to enforce ARM 17.50.523(2).

COMMENT NO. 6: The department could ensure that loads are properly packaged without adopting this rule if it coordinated with the Montana Department of Transportation and law enforcement.

RESPONSE: The department does work with the Montana Department of Transportation and law enforcement in its enforcement actions. However, the department has a statutory mandate to adopt rules regulating the transport of solid waste.

COMMENT NO. 7: This rule would include all construction companies, as how would roadside enforcement know what was being hauled without stopping the vehicle. The rule would become a hardship on all carriers.

RESPONSE: ARM 17.50.523(2) will be enforced in the same manner as ARM 17.50.523(1) and the rest of the department's administrative rules. The department does not intend to stop vehicles. The department will investigate complaints when they are made and work with solid waste management facilities to ensure compliance.

COMMENT NO. 8: There have been issues where loads may have been spilled, but this rule does nothing to solve the problem.

RESPONSE: ARM 17.50.523(2) adds the additional requirement for coverage when waste haulers are transporting oilfield exploration and production waste. The department believes that the rule will lead to fewer spills of oilfield exploration and production waste.

Reviewed by: DEPARTMENT OF ENVIRONMENTAL

QUALITY

/s/ John F. North BY: /s/ Tom Livers

JOHN F. NORTH TOM LIVERS, Director

Rule Reviewer

Certified to the Secretary of State, April 11, 2016.