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| Montana Administrative Register Notice 17-389 | No. 24 12/23/2016 | |
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BEFORE THE BOARD OF ENVIRONMENTAL REVIEW AND THE DEPARTMENT OF ENVIRONMENTAL QUALITY OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On February 10, 2017, at 9:00 a.m., the Board of Environmental Review and 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 rules.
2. The board and 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 Hillary Houle, no later than 5:00 p.m., February 3, 2017, to advise us of the nature of the accommodation that you need. Please contact Hillary Houle, Director Office Support Coordinator, Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-2544; fax (406) 444-4386; or e-mail hhoule@mt.gov.
3. The rules proposed to be amended provide as follows, stricken matter interlined, new matter underlined:
17.24.645 GROUND WATER MONITORING (1) through (5) remain the same. (6) Methods of sample collection, preservation, and sample analysis must be conducted in accordance with 40 CFR Part 136 titled "Guidelines Establishing Test Procedures for the Analysis of Pollutants" (July (7) and (8) remain the same.
AUTH: 82-4-204, MCA
REASON: See reasons below (ARM 17.24.646 and ARM 17.30.502).
17.24.646 SURFACE WATER MONITORING (1) through (5) remain the same. (6) Methods of sample collection, preservation, and sample analysis must be conducted in accordance with 40 CFR Part 136 titled "Guidelines Establishing Test Procedures for the Analysis of Pollutants" (July (7) remains the same.
AUTH: 82-4-204, MCA
REASON: See reason statement below (ARM 17.30.502) for DEQ-7 amendment. Outdated versions of 40 CFR Part 136 are referenced at ARM 17.24.645 and 646, ARM 17.30.619, 641, and 646, ARM 17.30.1007, and ARM 17.30.1322. The board proposes updating these references to the 2015 version in order to stay current with federal requirements and maintain primacy for regulation under the Federal Water Pollution Control Act. A summary of new and revised approved analytical methods in the 2015 version of 40 CFR 136 can be seen in the Federal Register from February 19, 2015. (See 80 Fed. Reg. 8956 available at https://www.epa.gov/cwa-methods/cwa-methods-regulatory-history. Copies are also available at the Department of Environmental Quality, 1520 E. Sixth Avenue, P.O. Box 200901, Helena, MT 59620-0901.)
17.30.502 DEFINITIONS The following definitions, in addition to those in 75-5-103, MCA, and ARM Title 17, chapter 30, subchapters 6 and 7, apply throughout this subchapter: (1) through (13) remain the same. (14) The board adopts and incorporates by reference Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" (
AUTH: 75-5-301, 80-15-105, MCA
REASON: The proposed Circular DEQ-7 can be viewed on the department's web site at http://deq.mt.gov/Water/WQPB/Standards. Modifications to the circulars and the reasons for the modifications are as follows: Grammar, wordsmithing, and technical edits: The board proposes the following edits to improve the readability, searchability, and accuracy of DEQ-7: adding units to all columns in the table; correcting the spelling of Indeno(1,2,3-cd)pyrene; and using dashes instead of hyphens throughout the document and noting in the introduction that dashes must be used for the search function to work properly. Finally, PCBs is not possessive and the apostrophe has been removed in order to be consistent with the department's editorial guidelines. The board also proposes removing the numbers assigned by N. Irving Sax (SAX) to dangerous materials. These numbers are taken from Dangerous Properties of Industrial Materials. They are not available for all chemicals included in DEQ-7. Additionally, the board found that users seeking SAX numbers obtain them directly from SAX's Dangerous Properties of Industrial Materials rather than obtaining information within DEQ-7. Chemical Abstract Service Registry Numbers (CASRN) and National Institute for Occupational Safety and Health (NIOSH) numbers are included in DEQ-7. These numbers are much more widely used chemical identifiers. CASRN and NIOSH numbers will continue to be maintained and updated in DEQ-7. However, the board proposes removing SAX numbers to avoid unnecessary updates to information that is not essential in DEQ-7. The board proposes to edit the wording in footnote (1) as follows to remove confusion about the origin of the harmful category in DEQ-7: "Footnote (1) discusses the categories of parameters (harmful, toxic, or carcinogenic)." In the previous version of DEQ-7 the harmful category was mentioned separately from the other two, and it was unclear whether it was intended as a separate category. Correction of errors: The board proposed a correction of errors in the human health criterion for dioxin in surface water listed in DEQ-7, which is 5x10-9. Dioxin is a priority pollutant and EPA's human health criterion for dioxin with a 1x10-6 excess lifetime cancer risk is 5x10-9. Section 75-5-301(2)(a), MCA, requires that the criteria be based on an excess lifetime cancer risk level of 1x10-5. The board proposes correcting the surface water human health criterion for dioxin to 5x10-8 in order to comply with the statute. The board proposes to correct a misplaced decimal place in the criteria for beta emitters and gamma emitters. DEQ-7 currently has both parameters set at 0.4 millrem (mrem) per yr. The EPA maximum contaminant levels (MCL), which DEQ-7 references for beta emitters and gamma emitters, are both listed at 4 mrems/yr. Section 75-5-203, MCA, states that Montana's water quality standards cannot be more stringent than federal standards unless the board finds evidence that a more stringent standard is necessary to protect public health. The board does not have evidence that a more stringent standard is necessary to protect human health, and proposes correcting the human health criteria for beta emitters and gamma emitters to 4 mrems/year in order to comply with Montana statute. Footnote (7): The units in footnote (7) are currently stated in micrograms per liter (µg/L) in order to provide more consistency throughout the document. However, the equations presented in footnote (7) are written in milligrams per liter (mg/L). The board proposes changing the units for the equations back to mg/L for accuracy. The tables in footnote (7) are accurately presented in µg/L and will remain as such. Footnote (19): Required reporting values (RRVs) in DEQ-7 are based on data provided by environmental laboratories for the methods they use for each pollutant. Revised footnote (19) provides that, based on the method of calculation and the number of programs that use DEQ-7, there are situations where DEQ may require alternate reporting values to meet analytical and reporting needs. The Montana Pollutant Discharge Elimination System (MPDES) permitting program uses RRVs. For certain parameters, such as total residual chlorine, the RRV in DEQ-7 is not low enough to meet their needs. Footnote (39): The board is proposing that footnote (39) relating to endosulfans only apply to aquatic life criteria in order to be consistent with 304(a) national recommended water quality criteria (NRWQC). In the aquatic life table of NRWQC, the listings for alpha- and beta-endosulfan include the following note: "This value was derived from data for endosulfan and is most appropriately applied to the sum of alpha-endosulfan and beta-endosulfan." The NRWQC's recommendations for human health do not contain the same note. EPA has generally approved multiple methods for Clean Water Act pollutants under 40 CFR part 136 and 40 CFR chapter I, subchapters N and O. Some of the approved analytical methods have greater sensitivities and lower minimum levels or method detection limits than other approved methods for the same pollutant. In August 2014, EPA amended its Clean Water Act regulations to state that NPDES program (the federal equivalent of the MPDES program) permit applicants must use EPA-approved sufficiently sensitive analytical methods for analysis of pollutants or pollutant parameters in permits. These sufficiently sensitive methods must be capable of detecting and measuring the pollutants at or below the applicable water quality criteria or permit limits. By requiring sufficiently sensitive methods for analysis of pollutants under a MPDES permit, MPDES permit writers will have the ability to require an approved method that is sufficiently sensitive to meet the needs of the permit, and DEQ will ensure that data meaningful to the decision-making process will be generated and reported. Therefore, the board proposes including a statement in footnote (19) referring to EPA's sufficiently sensitive method requirement and stating that it supersedes the RRVs in DEQ-7 where the sufficiently sensitive methods generate lower reporting limits than those required by the RRVs. Updates to human health criteria: In June 2015, EPA updated ambient water quality criteria for the protection of human health for 94 chemical pollutants. These updated criteria reflect the latest scientific information and EPA policies, including updated body weight, drinking water consumption rate, fish consumption rate, bioaccumulation factors, health toxicity values, and relative source contributions. (See 80 Fed. Reg. 36986 (June 29, 2015) available at https://www.epa.gov/wqc/human-health-water-quality-criteria. Copies are also available at the Department of Environmental Quality, 1520 E. Sixth Avenue, P.O. Box 200901, Helena, MT 59620-0901). The board proposes adoption of these updated human health criteria and revisions to the introduction of DEQ-7 to reflect the updated exposure inputs (drinking water intake was updated from 2 liters of water to 2.4 liters of water, the average adult body weight was updated from 70 kilograms (kg) to 80 kg, and the fish consumption rate was updated from 17.4 grams per day to 22 grams per day). The board also proposes revising the source of the criteria in DEQ-7 consistent with EPA's recommended criteria (e.g., chlorobenzene changes from MCL to priority pollutant (PP)). The board also proposes updating an additional 67 human health criteria in DEQ-7. These criteria are primarily pesticides for which EPA and DEQ have calculated health advisories. They are being recalculated using EPA's 2015 adopted exposure inputs described above in order to remain consistent with federal requirements. The board proposes updating the human health criterion for total trihalomethanes. This criterion is based on the Safe Drinking Water Act maximum contaminant level. This change is proposed to make DEQ-7 consistent with federal requirements and DEQ's drinking water program. Addition of new human health criterion: Dinitrophenols is an EPA 304(a) recommended criterion not currently listed in DEQ-7. The board proposes including this pollutant in DEQ-7 for consistency and compliance with federal regulations. Updates to aquatic life criteria: The board proposes adoption of carbaryl as new aquatic life criteria and revisions to the cadmium aquatic life criteria consistent with the EPA 304(a) recommended criteria. For more information see: https://www.epa.gov/wqc/aquatic-life-criteria-carbaryl and https://www.epa.gov/wqc/aquatic-life-criteria-cadmium. Copies are also available at the Department of Environmental Quality, 1520 E. Sixth Avenue, P.O. Box 200901, Helena, MT 59620-0901. Addition of new pesticides: The Montana Agricultural Chemical Groundwater Protection Act requires the board to adopt pesticide human health criteria for groundwater when new pesticides without criteria are found in groundwater in Montana. New pesticides discovered in groundwater in Montana for which criteria have been calculated include clothianidin, glufosinate ammonium, saflufenacil, thiamethoxam, and sulfentrazone. Removal of criteria for color, turbidity, pH, and temperature: The board proposes removal of color, turbidity, pH, and temperature from DEQ-7. The purpose of DEQ-7 is to house numeric water quality criteria. The criteria for color, turbidity, pH, and temperature describe the values for those criteria based on natural conditions. In some stream classifications, these criteria reflect a slight variation of the natural condition. Natural conditions vary based on many factors, including changes in season and flow. Because color, turbidity, pH, and temperature do not have a set maximum value, they are not true numeric criteria. They are narrative parameters because they rely on determination of the natural condition of the parameter in the receiving water. In addition to removing these narrative criteria from the table in DEQ-7, the board proposes removal of a sentence in the introduction of DEQ-7 that provides examples of numeric standards that change with each stream classification because it erroneously lists color, turbidity, pH, and temperature as numeric criteria. Also, footnote (18) is specific to narrative criteria and is only used for pH and color, and, therefore, is proposed to be removed from DEQ-7. These changes are necessary to resolve confusion about how these criteria should be implemented. Additionally, the criteria for color, turbidity, pH, and temperature are described in detail in the use class descriptions in ARM Title 17, chapter 30, subchapter 6 and their inclusion in DEQ-7 is redundant and unnecessary. Trigger Values for Nitrate: The board proposes correcting the trigger values for nitrate (as nitrogen [N]) and nitrate plus nitrite (as N) as follows: surface water trigger values are 10 micrograms per liter (µg/L), ground water trigger values are 5,000 µg/L. The trigger values would also include a reference to ARM 17.30.715. Trigger values are used to determine if an increase in concentration of a toxic parameter is nonsignificant per the nondegradation rules ARM 17.30.701, et seq. Due to clerical errors, "10" was omitted from both of the parameters above in the 2012 version of DEQ-7. Because of the removal of the "10," the trigger values read that the surface water trigger value is 5,000 µg/L, and that the ground water trigger value is included in ARM 17.30.715. This is incorrect and makes assessment of nondegradation for nitrate (as N) and nitrate plus nitrite (as N) impractical. The proposed changes would allow for nondegradation review of these two parameters as intended. The board also proposes to include a reference to DEQ Circular 12 in the introduction to DEQ-7. This is necessary for clarity and consistency between the two documents.
17.30.607 WATER-USE CLASSIFICATIONS--CLARK FORK COLUMBIA RIVER DRAINAGE EXCEPT THE FLATHEAD AND KOOTENAI RIVER DRAINAGES (1) The water-use classifications adopted for the Clark Fork of the Columbia River drainage are as follows: (a) Clark Fork River drainage except waters listed in (1)(a)(i) through (xv) ............................................................................................................ B-1 (i) through (vii) remain the same. (viii) Tin Cup Joe Creek drainage to the Deer Lodge water supply intake (approximately at latitude 46.3892, longitude -112.8543)................. A-Closed (ix) remains the same. (x) Fred Burr Lake and headwaters from source to the outlet of the lake (Philipsburg water supply at approximate latitude 46.3096, longitude -113.1746).............................................................................................. A-Closed (xi) South Boulder Creek drainage to the Philipsburg water supply intake (approximately at latitude 46.3447, longitude -113.2266).......................... A-1 (xii) Rattlesnake Creek drainage to the Missoula water supply intake (approximately at latitude 46.9149, longitude -113.9638)................. A-Closed (xiii) through (xv) remain the same.
IMP: 75-5-301, MCA
REASON: See reason statement below (ARM 17.30.611).
17.30.608 WATER-USE CLASSIFICATIONS--FLATHEAD RIVER DRAINAGE (1) The water-use classifications adopted for the Flathead River are as follows: (a) through (a)(viii) remain the same. (b) Flathead Lake north of the Flathead Indian Reservation and waters of its tributaries from Flathead River inlet to U.S. Highway 93 bridge at Polson that lie outside of the Flathead Indian Reservation boundary except Swan River as listed in (1)(b)(i) (i) remains the same. (c) Waters outside of the Flathead Indian Reservation that are tributary to the Flathead River drainage below the highway bridge at Polson to confluence with Clark Fork River except (i)
IMP: 75-5-301, MCA
REASON: See reason statement below (ARM 17.30.611).
17.30.609 WATER-USE CLASSIFICATIONS--KOOTENAI RIVER DRAINAGE (1) The water-use classifications adopted for the Kootenai River are as follows: (a) All waters except those listed in (1)(a)(i) through (iv)......................... B-1 (i) Deep Creek drainage (tributary to the Tobacco River) to the Fortine water supply intake (approximately at latitude 48.7631, longitude -114.8980)............... A-1 (ii) Rainy Creek drainage to the W.R. Grace Company water supply intake (approximately at latitude 48.4485, longitude -115.4203).......................... A-1 (iii) Rainy Creek (mainstem) from the W.R. Grace Company water supply intake (approximately at latitude 48.4485, longitude -115.4203) to the Kootenai River................................................................................................. C-1 (iv) remains the same.
IMP: 75-5-301, MCA
REASON: See reason statement below (ARM 17.30.611).
17.30.610 WATER-USE CLASSIFICATIONS--MISSOURI RIVER DRAINAGE EXCEPT YELLOWSTONE, BELLE FOURCHE, AND LITTLE MISSOURI RIVER DRAINAGES (1) The water-use classifications adopted for the Missouri River are as follows: (a) Missouri River drainage to and including the Sun River drainage except tributaries listed in (1)(a)(i) through (xiii)............................................................ B-1 (i) through (iv) remain the same. (v) Rattlesnake Creek drainage to the Dillon water supply intake (approximately at latitude 45.2442, longitude -112.7953).................................... A-1 (vi) Indian Creek drainage to the Sheridan water supply intake (approximately at latitude 45.4787, longitude -112.1592).................................... A-1 (vii) Basin Creek drainage to the Basin water supply intake (approximately at latitude 46.2820, longitude -112.2730).................................... A-1 (viii) through (c) remain the same. (d) Marias River drainage except waters on the Blackfeet Indian Reservation and the tributaries and segments listed in (1)(d)(i) through (vi)........................... B-2 (i) Cutbank Creek drainage except waters listed in (1)(d)(i)(A) (A) (ii) Two Medicine Creek drainage to the Blackfeet Indian Reservation Boundary except for the waters listed in (1)(d)(ii)(A) (A) Midvale Creek drainage to the (B) Summit Creek drainage to the Summit water supply intake (approximately at latitude 48.3184, longitude -113.3527)........................... A-Closed (iii) through (vi) remain the same. (e) Missouri River drainage from Marias River to Fort Peck Dam except waters listed in (1)(e)(i) through (i) through (D) remain the same. (iv) (A) remains the same. (A) through (f) remain the same. (g) through (iv)..................................................................................................... B-3 (i) remains the same. (ii) Big Sandy Creek drainage from the Rocky Boy's Indian Reservation Boundary to Town of Big Sandy infiltration wells (approximately at latitude 48.1831, longitude -110.0851)........................................................................................ B-1 (iii) remains the same. (iv) Peoples Creek drainage (i) remains the same. (ii) boundary......................................................................................................... B-2
IMP: 75-5-301, MCA
REASON: See reason statement below (ARM 17.30.611).
17.30.611 WATER-USE CLASSIFICATION--YELLOWSTONE RIVER DRAINAGE (1) The water-use classifications adopted for the Yellowstone River are as follows: (a) Yellowstone River drainage to the Laurel water supply intake (approximately at latitude (b) Yellowstone River drainage from the Laurel water supply intake (approximately at latitude 45.6545, longitude -108.7590) to the Billings water supply intake (approximately at latitude 45.7745, longitude -108.4778) except waters on the Crow Indian Reservation and the tributaries listed in (1)(b)(i) through (iii)............ B-2 (i) through (iii) remain the same. (c) Yellowstone River drainage from the Billings water supply intake to the North Dakota state line excluding waters on the Crow Indian Reservation and the Northern Cheyenne Indian Reservation and including the Big Horn River drainage except the waters listed in (1)(c)(i) through (i) remains the same. (ii) Pryor Creek drainage (iii) Big Horn drainage above but excluding Williams Coulee near Hardin and excluding waters within the Crow Indian Reservation......................................... B-1 (iv) (vii) through (ix) remain the same, but are renumbered (v) through (vii).
IMP: 75-5-301, MCA
REASON: The board proposes updating the surface water use designations that use drinking water intakes by including a more specific, defined endpoint location using latitude and longitude. This will remove confusion about where specific use classes begin and end on a stream. The board proposes removing tribal waters from Montana's use class designations because the State of Montana does not have jurisdiction over tribal waters, and respects the water quality standards, including use class designations, for tribal waters set by the respective jurisdictional agencies. Therefore, it is unnecessary to include use class designations for these waters in state standards. ARM 17.30.609(1)(a) references "waters except those listed in (1)(a)(i)," and should reference "waters except those listed in (1)(a)(i) through (iv)." The board proposes making this revision for accuracy.
17.30.619 INCORPORATIONS BY REFERENCE (1) The board adopts and incorporates by reference the following state and federal requirements and procedures as part of Montana's surface water quality standards: (a) Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" ( (i) through (b) remain the same. (c) 40 CFR Part 136 (July 1, (d) 40 CFR 131.10(g), (h) and (j) (2000), which establishes criteria and guidelines for conducting a use attainability analysis; (e) Department Circular DEQ-12A, entitled "Montana Base Numeric Nutrient Standards" (July 2014 edition), which establishes numeric water quality standards for total nitrogen and total phosphorus in surface waters (f) the provision in ARM 17.30.1350(1) that authorizes compliance schedules contained in the Montana Pollutant Discharge Elimination System Permit regulations. (2) and (3) remain the same.
REASON: See reason for ARM 17.30.502, setting forth reasons for updates and revisions to DEQ-7. The board also proposes to incorporate by reference the authorizing provision for compliance schedules for water quality-based effluent limitations (WQBELs) contained in the MPDES rules at ARM 17.30.1350(1) because in 2015, EPA revised 40 CFR 131.15, requiring EPA review and approval of state rules authorizing compliance schedules for water quality-based effluent limits in MPDES permits. EPA considers such authorizing provisions to be water quality standards. Compliance schedules are Clean Water Act NPDES permitting tools that can be used in situations in which a discharger is unable to immediately achieve compliance with effluent limitations based on water quality standards. They allow dischargers additional time to take steps (e.g., planning and construction of required facilities) necessary to achieve compliance with such effluent limitations. (See 80 Fed. Reg. 51020, 51041 (August 21, 2015) available at https://www.epa.gov/wqs-tech/final-rulemaking-update-national-water-quality-standards-regulation. Copies are also available at the Department of Environmental Quality, 1520 E. Sixth Avenue, P.O. Box 200901, Helena, MT 59620-0901.) ARM 17.30.1350(1) gives the MPDES program authority to use compliance schedules and details their requirements. This provision was adopted in 1989, but has not been submitted to EPA for approval because it was not considered a water quality standard at that time. The state will submit this provision to EPA in order to comply with the new regulatory requirement. The board also proposes to update the reference to 40 CFR Part 136 to reference the most current regulation.
17.30.621 A-CLOSED CLASSIFICATION STANDARDS (1) and (2) remain the same. (3) No person may violate the following specific water quality standards for waters classified A-Closed: (a) The geometric mean number of Escherichia coli bacteria may not exceed 32 colony forming units per 100 milliliters and 10 (b) through (i) remain the same.
IMP: 75-5-301, MCA
REASON: See reason statement below (ARM 17.30.657).
17.30.622 A-1 CLASSIFICATION STANDARDS (1) and (2) remain the same. (3) No person may violate the following specific water quality standards for waters classified A-1: (a) The geometric mean number of Escherichia coli bacteria may not exceed 32 colony forming units per 100 milliliters and 10 (b) through (k) remain the same.
IMP: 75-5-301, MCA
REASON: See reason statement below (ARM 17.30.657).
17.30.623 B-1 CLASSIFICATION STANDARDS (1) remains the same. (2) No person may violate the following specific water quality standards for waters classified B-1: (a) Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b). The water quality standard for Escherichia coli bacteria (E-coli) varies according to season, as follows: (i) through (k) remain the same.
REASON: See reason statement below (ARM 17.30.657).
17.30.624 B-2 CLASSIFICATION STANDARDS (1) remains the same. (2) No person may violate the following specific water quality standards for waters classified B-2: (a) Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b). The water quality standard for Escherichia coli bacteria (E-coli) varies according to season, as follows: (i) through (k) remain the same.
REASON: See reason statement below (ARM 17.30.657).
17.30.625 B-3 CLASSIFICATION STANDARDS (1) remains the same. (2) No person may violate the following specific water quality standards for waters classified B-3: (a) Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b). The water quality standard for Escherichia coli bacteria (E-coli) varies according to season, as follows: (i) through (k) remain the same.
REASON: See reason statement below (ARM 17.30.657).
17.30.626 C-1 CLASSIFICATION STANDARDS (1) remains the same. (2) No person may violate the following specific water quality standards for waters classified C-1: (a) Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b). The water quality standard for Escherichia coli bacteria (E-coli) varies according to season, as follows: (i) through (k) remain the same.
REASON: See reason statement below (ARM 17.30.657).
17.30.627 C-2 CLASSIFICATION STANDARDS (1) remains the same. (2) No person may violate the following specific water quality standards for waters classified C-2: (a) Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b). The water quality standard for Escherichia coli bacteria (E-coli) varies according to season, as follows: (i) through (k) remain the same.
REASON: See reason statement below (ARM 17.30.657).
17.30.628 I CLASSIFICATION STANDARDS (1) remains the same. (2) No person may violate the following specific water quality standards for waters classified I: (a) Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b). The water quality standard for Escherichia coli bacteria (E-coli) varies according to seasons as follows: (i) through (k) remain the same.
REASON: See reason statement below (ARM 17.30.657).
17.30.629 C-3 CLASSIFICATION STANDARDS (1) remains the same. (2) No person may violate the following specific water quality standards for waters classified C-3: (a) Water quality criteria for Escherichia coli are expressed in colony forming units per 100 milliliters of water or as most probable number, which is a statistical representation of the number of organisms in a sample, as incorporated by reference in 40 CFR 136.3(b). The water quality standard for Escherichia coli bacteria (E-coli) varies according to season, as follows: (i) through (k) remain the same.
REASON: See reason statement below (ARM 17.30.657).
17.30.641 SAMPLING METHODS (1) Water quality monitoring, including methods of sample collection, preservation, and analysis used to determine compliance with the standards must be in accordance with 40 CFR Part 136 (July 1,
IMP: 75-5-301, MCA
REASON: The board proposes to update the reference to 40 CFR Part 136 to reference the most current regulation.
17.30.646 BIOASSAYS (1) Bioassay tolerance concentrations must be determined using the latest available research results for the materials, by bioassay tests procedures for simulating actual stream conditions as set forth in 40 CFR Part 136 (July 1,
IMP: 75-5-301, MCA
REASON: The board proposes to update the reference to 40 CFR Part 136 to reference the most current regulation.
17.30.650 D-1 CLASSIFICATION STANDARDS (1) remains the same. (2) No person may violate the following specific water quality standards for waters classified D-1: (a) remains the same. (b) the geometric mean number of Escherichia coli bacteria may not exceed 630 colony forming units per 100 milliliters and 10 (3) remains the same.
AUTH: 75-5-301, MCA IMP: 75-5-301, MCA
REASON: See reason statement below (ARM 17.30.657).
17.30.651 D-2 CLASSIFICATION STANDARDS (1) remains the same. (2) No person may violate the following specific water quality standards for waters classified D-2: (a) through (c) remain the same. (d) the geometric mean number of Escherichia coli bacteria may not exceed 630 colony forming units per 100 milliliters and 10
AUTH: 75-5-301, MCA IMP: 75-5-301, MCA
REASON: See reason statement below (ARM 17.30.657).
17.30.652 E-1 CLASSIFICATION STANDARDS (1) remains the same. (2) No person may violate the following specific water quality standards for waters classified E-1: (a) remains the same. (b) the geometric mean number of Escherichia coli bacteria may not exceed 630 colony forming units per 100 milliliters and 10 (3) remains the same.
AUTH: 75-5-301, MCA IMP: 75-5-301, MCA
REASON: See reason statement below (ARM 17.30.657).
17.30.653 E-2 CLASSIFICATION STANDARDS (1) remains the same. (2) No person may violate the following specific water quality standards for waters classified E-2: (a) through (c) remain the same. (d) the geometric mean number of Escherichia coli bacteria may not exceed 630 colony forming units per 100 milliliters and 10
AUTH: 75-5-301, MCA IMP: 75-5-301, MCA
REASON: See reason statement below (ARM 17.30.657).
17.30.654 E-3 CLASSIFICATION STANDARDS (1) remains the same. (2) No person may violate the following specific water quality standards for waters classified E-3: (a) the geometric mean number of Escherichia coli bacteria may not exceed 630 colony forming units per 100 milliliters and 10 (b) and (3) remain the same.
AUTH: 75-5-301, MCA IMP: 75-5-301, MCA REASON: See reason statement below (ARM 17.30.657).
17.30.655 E-4 CLASSIFICATION STANDARDS (1) remains the same. (2) No person may violate the following specific water quality standards for waters classified E-4: (a) and (b) remain the same. (c) the geometric mean number of Escherichia coli bacteria may not exceed 630 colony forming units per 100 milliliters and 10
AUTH: 75-5-301, MCA IMP: 75-5-301, MCA
REASON: See reason statement below (ARM 17.30.657).
17.30.656 E-5 CLASSIFICATION STANDARDS (1) remains the same. (2) No person may violate the following specific water quality standards for waters classified E-5: (a) remains the same. (b) the geometric mean number of Escherichia coli bacteria may not exceed 630 colony forming units per 100 milliliters and 10 (3) remains the same.
AUTH: 75-5-301, MCA IMP: 75-5-301, MCA
REASON: See reason statement (ARM 17.30.657).
17.30.657 F-1 CLASSIFICATION STANDARDS (1) remains the same. (2) No person may violate the following specific water quality standards for waters classified F-1: (a) through (c) remain the same. (d) the geometric mean number of Escherichia coli bacteria may not exceed 630 colony forming units per 100 milliliters and 10
AUTH: 75-5-301, MCA IMP: 75-5-301, MCA
REASON: Traditional plate tests for Escherichia coli (E. coli), including membrane filtration, estimate or count "colonies" of bacteria reported as colony forming units (cfu). These provide a direct count of an indicator organism (E. coli) in water based on the development of colonies in/on media and a calculation is performed. While these microscopic counts may be more accurate, they are costly and time consuming, and the problem of bacteria viability remains. Very few tests are conducted to determine live and dead colonies. Exact counts are generally not feasible to obtain. Newer tests, such as Colilert report data, are reported as most probable number (mpn) which is a statistical representation of what level of E. coli is likely present in a sample. While mpn and cfu are not entirely equivalent, for the purposes of reporting, these terms are currently used interchangeably by the EPA. EPA has approved both these methods for enumeration in federal rule for ambient water (40 CFR, 2003) and for wastewater and sludge (40 CFR, 2007). The board proposes adding mpn to the E. coli surface water criteria so that E. coli may be reported to the department in either cfu or mpn.
17.30.702 DEFINITIONS The following definitions, in addition to those in 75-5-103, MCA, apply throughout this subchapter (Note: 75-5-103, MCA, includes definitions for "base numeric nutrient standards," "degradation," "existing uses," "high quality waters," "mixing zone," and "parameter"): (1) through (7) remain the same. (8) "High quality waters" is defined in 75-5-103 (9) through (26) remain the same. (27) The board adopts and incorporates by reference: (a) Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" ( (i) through (c) remain the same. (d) 40 CFR Part 136 (July 1, (e) remains the same.
IMP: 75-5-303, MCA
REASON: See reasons for ARM 17.30.502 setting forth reasons for updates and revisions to DEQ-7.
ARM 17.30.702(8) references the MCA definition of high quality waters as 75-5-103(10), MCA. Because of revisions to that statute, that definition is now at 75-5-103(13), MCA. The board proposes to remove the reference to the subsection in order to make the citation accurate and to eliminate the need to amend the rule because of a future amendment to the statute. The board also proposes to update the reference to 40 CFR Part 136 to reference the most current regulations.
17.30.715 CRITERIA FOR DETERMINING NONSIGNIFICANT CHANGES IN WATER QUALITY (1) The following criteria will be used to determine whether certain activities or classes of activities will result in nonsignificant changes in existing water quality due to their low potential to affect human health or the environment. These criteria consider the quantity and strength of the pollutant, the length of time the changes will occur, and the character of the pollutant. Except as provided in (2), changes in existing surface or ground water quality resulting from the activities that meet all the criteria listed below are nonsignificant, and are not required to undergo review under 75-5-303, MCA: (a) through (e) remain the same. (f) changes in the quality of water for any harmful parameter, nutrients listed at ARM 17.30.631, and parameters listed in Department Circular DEQ-12A, except as specified in (1)(g), for which water quality standards have been adopted other than carcinogenic, bioconcentrating, or toxic parameters, in either surface or ground water, if the changes outside of a mixing zone designated by the department are less than ten percent of the applicable standard and the existing water quality level is less than 40 percent of the standard; (g) through (4) remain the same.
IMP: 75-5-303, MCA
REASON: Most numeric nutrient standards for Montana are housed in Circular DEQ-12A and were adopted by the board in 2014. However, the board previously adopted numeric nutrient standards on the Clark Fork River and these are contained in ARM 17.30.631. During the adoption of DEQ-12A, which included the circular's inclusion in the nondegradation nonsignificance criteria (ARM 17.30.715), the earlier-adopted nutrient standards for the Clark Fork River were inadvertently excluded from nondegradation review. This change will address this oversight. Although benthic algal chlorophyll a criteria are included with the nitrogen and phosphorus criteria in ARM 17.30.631, chlorophyll a is not subject to nondegradation review under ARM 17.30.715(1)(f). This is because nitrogen and phosphorus are the nutrient parameters included in the rule, and growth of chlorophyll a is the result of an overabundance of those nutrients. Therefore, controlling nitrogen and phosphorus through nondegradation will prevent overgrowth of chlorophyll a and will ensure that the chlorophyll a criteria are met.
17.30.1001 DEFINITIONS The following definitions, in addition to those in 75-5-103, MCA, apply throughout this subchapter: (1) remains the same. (2) "DEQ-7" means Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" ( (a) The board adopts and incorporates by reference Department Circular DEQ-7, entitled "Montana Numeric Water Quality Standards" ( (3) through (17) remain the same.
REASON: See reason for ARM 17.30.502 setting forth reasons for update and revisions to DEQ-7.
17.30.1007 SAMPLE COLLECTION, PRESERVATION, AND ANALYSIS METHODS (1) Methods of sample collection, preservation, and sample analysis used to determine compliance with the standards in this subchapter must be in accordance with 40 CFR Part 136 "Guidelines Establishing Test Procedures for the Analysis of Pollutants" (July (a) through (4) remain the same.
AUTH: 75-5-301, MCA IMP: 75-5-301, MCA
REASON: The board proposes to update the reference to 40 CFR Part 136 to reference the most current regulation.
17.30.1322 APPLICATION FOR A PERMIT (1) through (17) remain the same. (18) The board adopts and incorporates by reference the following federal regulations as part of the Montana pollutant discharge elimination system. Copies of these federal regulations may be obtained from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901. (a) 40 CFR Part 136 (July 1, (b) through (f) remain the same.
IMP: 75-5-401, MCA
REASON: The board proposes to update the reference to 40 CFR Part 136 to reference the most current regulation.
17.36.345 ADOPTION BY REFERENCE (1) For purposes of this chapter, the department adopts and incorporates by reference the following documents. All references to these documents in this chapter refer to the edition set out below: (a) through (d) remain the same. (e) Department Circular DEQ-7, "Montana Numeric Water Quality Standards" ( (f) through (2) remain the same.
AUTH: 76-4-104, MCA IMP: 76-4-104, MCA
REASON: See ARM 17.30.502, setting forth reasons for update and revisions to DEQ-7.
17.55.109 INCORPORATION BY REFERENCE (1) For the purposes of this subchapter, the department adopts and incorporates by reference: (a) Department Circular DEQ-7, "Montana Numeric Water Quality Standards" ( (b) through (5) remain the same.
AUTH: 75-10-702, 75-10-704, MCA IMP: 75-10-702, 75-10-704, 75-10-711, MCA
REASON: See ARM 17.30.502, setting forth reasons for update and revisions to DEQ-7.
17.56.507 ADOPTION BY REFERENCE (1) For purposes of this subchapter, the department adopts and incorporates by reference: (a) Department Circular DEQ-7, "Montana Numeric Water Quality Standards" ( (b) through (3) remain the same.
AUTH: 75-11-319, 75-11-505, MCA IMP: 75-11-309, 75-11-505, MCA
REASON: See ARM 17.30.502, setting forth reasons for update and revisions to DEQ-7.
17.56.608 ADOPTION BY REFERENCE (1) For purposes of this subchapter, the department adopts and incorporates by reference: (a) Department Circular DEQ-7, "Montana Numeric Water Quality Standards" ( (b) through (3) remain the same.
AUTH: 75-11-319, 75-11-505, MCA IMP: 75-11-309, 75-11-505, MCA
REASON: See ARM 17.30.502, setting forth reasons for update and revisions to DEQ-7.
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 Hillary Houle, Director Office Support 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 hhoule@mt.gov, no later than 5:00 p.m. February 20, 2017. To be guaranteed consideration, mailed comments must be postmarked on or before that date.
5. The board and department maintain 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 Hillary Houle, Director Office Support Coordinator, Department of Environmental Quality, 1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana 59620-0901, faxed to the office at (406) 444-4386, e-mailed to Hillary Houle at hhoule@mt.gov; or may be made by completing a request form at any rules hearing held by the department.
6. Andres Haladay, attorney for the board and 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 board and the department have determined that the amendment of the above-referenced rules will not significantly and directly impact small businesses.
Reviewed by: DEPARTMENT OF ENVIRONMENTAL QUALITY
/s/ John F. North BY: /s/ Joan Miles JOHN F. NORTH JOAN MILES, CHAIRMAN Rule Reviewer
Certified to the Secretary of State, December 12, 2016. |
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For questions about the organization of the ARM or this web site, contact sosarm@mt.gov.
