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Montana Administrative Register Notice 17-290 No. 15   08/13/2009    
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BEFORE THE BOARD OF ENVIRONMENTAL REVIEW

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 17.30.201 pertaining to permit fees

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

(WATER QUALITY)

 

            TO:  All Concerned Persons

 

            1.  On September 3, 2009, at 1:30 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 rule.

 

            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., August 24, 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 rule proposed to be amended provides as follows, stricken matter interlined, new matter underlined:

 

            17.30.201  PERMIT APPLICATION, DEGRADATION AUTHORIZATION, AND ANNUAL PERMIT FEES  (1)  The purpose of this rule is to establish provide fee schedules for use in determining fees to be paid to the department under 75-5-516, MCA.  Fees to be paid are the sum of the fees in the applicable schedules.  There are three The types of fees imposed provided under this rule are:

            (a)  a permit application fees for individual permits (Schedule I.A);

            (b)  application fees for non-storm water general permits (Schedule 1.B);

            (c)  application fees for storm water general permits (Schedule 1.C);

            (d)  application fees for other activities (Schedule 1.D);

            (b) (e)  a degradation authorization fees (Schedule II); and

            (c) (f)  an annual permit fees for individual permits (Schedule III.A);

            (g)  annual fees for non-storm water permits (Schedule III.B); and

            (h)  annual fees for storm water general permits (Schedule III.C).

            (2)  For purposes of this rule, the definitions contained in ARM Title 17, chapter 30, subchapter 10 and subchapter 13 are incorporated by reference.  The following definitions also apply in this rule:

            (a)  "domestic waste" means wastewater from bathrooms, kitchens, and  laundry;

            (b)  "flow rate" means the maximum flow during a 24-hour period, expressed in gallons per day (gpd);

            (c)  "industrial waste," as defined in 75-5-103, MCA, means a waste substance from the process of business or industry or from the development of any natural resource, together with any sewage that may be present;

            (d)  "major permit" means a Montana pollutant discharge elimination system permit for a facility that is designated by the department as a major facility pursuant to ARM Title 17, chapter 30, subchapter 13;

            (e)  "minor permit" means a Montana pollutant discharge elimination system permit for a facility that is not designated by the department as major pursuant to ARM Title 17, chapter 30, subchapter 13;

            (f)  "municipal separate storm sewer system" means a conveyance or system of conveyances, including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains, that discharges to surface waters and is owned or operated by the state of Montana, a governmental subdivision of the state, a district, association, or other public body created by or pursuant to Montana law, including special districts such as sewer districts, flood control districts, drainage districts and similar entities, and designated and approved management agencies under section 208 of the federal Clean Water Act, which has jurisdiction over disposal of sewage, industrial wastes, storm water, or other wastes, and is:

            (i)  designed or used for collecting or conveying storm water;

            (ii)  not a combined sewer; and

            (iii)  not part of a publicly owned treatment works (POTW) as defined in ARM Title 17, chapter 30, subchapter 13;

            (g)  "new permit" means a permit for a facility or activity that does not have an effective permit;

            (h)  "non-traditional MS4" means a system similar to separate storm sewer systems in municipalities, such as systems at military bases, large educational, hospital, or prison complexes, and highways and other thoroughfares.  The term does not include separate storm sewers in very discrete areas, such as individual buildings;

            (i)  "other wastes," as provided in 75-5-103, MCA, means garbage, municipal refuse, decayed wood, sawdust, shavings, bark, lime, sand, ashes, offal, night soil, oil, grease, tar, heat, chemicals, dead animals, sediment, wrecked or discarded equipment, radioactive materials, solid waste, and all other substances that may pollute state waters;

            (j)  "outfall" means a disposal system through which effluent or waste leaves the facility or site; and

            (k)  "renewal permit" means a permit for an existing facility that has an effective discharge permit.

            (2) (3)  A person who applies for a permit, certificate, license, notice of intent, plan review, waiver, determination of significance, or other authorization required by rule under 75-5-201, 75-5-301, or 75-5-401, MCA, or for a modification or renewal of any of these authorizations, shall pay to the department a permit an application fee as determined under (5) of this rule (6).

            (3) (4)  A person whose activity requires an application to degrade state waters under 75-5-303, MCA, and ARM Title 17, chapter 30, subchapter 7 of this chapter shall submit a degradation authorization fee with the application, as determined under (6) of this rule (7).

            (4) (5)  A person who holds a permit, certificate, license, or other authorization required by rule under 75-5-201 or 75-5-401, MCA, shall pay to the department an annual permit fee as determined under (7) of this rule (8).

            (5) (6)  The fee schedules for new or renewal applications for, or modifications of, a Montana pollutant discharge elimination system permit under ARM Title 17, chapter 30, subchapter 11 or 13 of this chapter, a Montana ground water pollution control system permit under ARM Title 17, chapter 30, subchapter 10 of this chapter, or any other authorization under 75-5-201, 75-5-301, or 75-5-401, MCA, or rules promulgated under these authorities, is are set forth below as sSchedules I.A, I.B, and I.C, and I.D.  Payment of the permit application fee is due upon submittal of the application.  Fees must be paid in full at the time of submission of the application.  For new applications under Schedules I.A or I.B, the annual fee from Schedule III.A for the first year must also be paid at the time of application.  For new applications under Schedule I.B, the annual fee is included in the new permit amount and covers the annual fee for the calendar year in which the permit coverage becomes effective.

            (a)  Under Schedules I.A and I.B, the department shall assess a fee for each outfall.  An application fee for multiple outfalls is not required if there are multiple outfalls from the same source that have similar effluent characteristics, unless the discharges are to different receiving waters or stream segments, or result in multiple or variable (flow dependent) effluent limits or monitoring requirements.

            (b)  For purposes of (6) and (7), if a resubmitted application contains substantial changes or deficiencies requiring significant additional review, the department shall require an application resubmittal fee under Schedule I.D.  The resubmittal fee must be paid before any further review is conducted.  The department shall give written notice of the assessment within 30 days after receipt of the resubmittal and provide for appeal as specified in (11).  If the department does not receive a response to a deficiency notice within one year, the applicant shall submit a new application and associated fees in order for application processing to continue.

            (c)  The department may assess an administrative processing fee under Schedule I.D when a permittee makes substantial alterations or additions to a sediment control plan, waste management plan, nutrient management plan, or storm water pollution prevention plan.

            (d)  Application fees are nonrefundable except, as required by 75-5-516(1)(d), MCA, if the permit or authorization is not issued the department shall return a portion of the application fee based on avoided enforcement costs.  The department shall return 25% of the application fee if the application is withdrawn within 30 days after submittal.

            (e)  Facilities with an expired permit must pay the new permit application fee for individual permit coverage as specified in Schedule I. A.

            (f)  Applications for new permits or permit renewals for sources that constitute a new or increased source, as defined in ARM 17.30.702(18), must pay a significance determination fee for each outfall in addition to the application fee.

            (g)  Discharges composed entirely of storm water from industrial activities or from mining and oil and gas activities, as defined in ARM 17.30.1105, may be incorporated into a permit application submitted under Schedule I.A.  The application fee for each storm water outfall must be submitted to the department with the application.

            (h)  The application fee for an individual permit for a municipal separate storm sewer system (MS4) is determined by population based on the latest decennial census  from the United States Census Bureau.  Applications for MS4 permits with co-permittees will receive a 10% reduction in the application fee.

 

                               Schedule I.A  Application Fee for Individual Permits

 

Category

Renewal Amount(1) Fee

New Permit Fee

Publicly owned treatment works - major permit

$ 4,000 4,800

$ 5,000

Privately owned treatment works - major permit

   4,500 5,000

   5,000

Publicly owned treatment works - minor permit

   1,000 1,500

   2,500

Privately owned treatment works - minor permit

   2,500 3,000

   4,200

Ground water permit, domestic wastes

flow rate - gallons per day

1,200

 

0-10,000 gpd

1,200

   2,500

10,001 to 30,000 gpd

1,500

   2,500

more than 30,000 gpd

2,500

   4,000

Ground water permit, industrial, or other wastes

1,500

 

0-1,000 gpd

1000

   1,500

1,001 to 5,000 gpd

1,500

   2,500

5,001 to 10,000 gpd

2,500

   3,500

more than 10,000 gpd

4,800

   5,000

Concentrated animal feeding operation permit

   600

     600

Storm water permit construction, industrial, and mining, oil, and gas activities

2,000

   3,200

Traditional storm water municipal separate storm sewer system (MS4) permit

population greater than 50,000

9,000

 11,000

population 10,000 to 50,000

7,000

   9,000

population less than 10,000

6,000

   8,000

Non-traditional MS4 permit

5,000

   7,000

Other MS4 permits

4,000

   5,000

Significance determination

4,000

   5,000

Storm water outfall - (integrated)

1,000

   1,500

 

                (1)  Per outfall, multiple storm water outfalls limited to a maximum of five outfalls.

 

Schedule I.B Application Fee for Non-Storm Water General Permits

 

Category

Renewal Amount(1)

Fee

New Permit Fee

(includes initial annual fee)

Concentrated animal feeding operation, greater than 1,000 animal units

$ 450 600

$ 1,200

Concentrated animal feeding operation less than 1,000  animal units

300

 

Construction dewatering

300 400

     900

Fish farms

300 600

  1,200

Produced water

450 900

  1,200

Suction dredge

resident of Montana

nonresident of Montana

250

25

100

 

       25

     100

Sand and gravel

450 900

  1,200

Domestic sewage treatment lagoon

500 800

  1,200

Disinfected water

500 800

  1,200

Petroleum cleanup

500 800

  1,200

Storm water associated with construction residential (single family dwelling)

250

Storm water associated with construction commercial or public

450

Storm water associated with industrial activities

500

Storm water associated with mining, oil and gas

500

Storm water municipal separate storm sewer system (MS4)

1,500

Ground water remediation or dewatering

700 800

  1,400

Ground water potable water treatment facilities

700 800

  1,400

Other general permit, not listed above

400 600

  1,200

 

                (1)  Per outfall, multiple storm water outfalls limited to a maximum of five outfalls.

 

            (i)  Application fees in Schedule I.C for authorizations under the general permit for storm water associated with construction activities are based on the total acreage of disturbed land.  Renewal application fees will not be required during the general permit renewal cycle, unless the authorization has been in effect for more than four years.

              (j)  Application fees in Schedule I.C for authorizations under the general permits for storm water associated with industrial activities and mining, oil, and gas activities are based on the total size of the regulated facility or activity in acres.

            (k)  Application fees in Schedule I.C for authorizations under a general permit for a municipal separate storm sewer system (MS4) are determined by population based on the latest decennial census from the United States Census Bureau.  Applications for MS4 permit coverage with co-permittees will receive a 10% reduction in the application fee.

            (l)  Modifications to authorizations under the general permit for storm water associated with construction activities will be processed under Schedule I.D as a minor modification if the modification is submitted within six months after the date of issuance of the authorization.  Modifications, except for name changes, submitted six months or more after issuance of the authorization will be processed under Schedule I.C as a new permit application.

            (m)  Modifications, except for name changes, to authorizations under a general permit other than the general permit for storm water associated with construction activities must be processed under Schedule 1.B and I.C as a renewed application.

            (n)  A facility with a construction storm water no-exposure certification from the department must apply for and receive a new certification every five years in order to maintain a no-exposure status.

 

Schedule I.C  Application Fee for Storm Water General Permits 

 

Category

Renewal Amount

New Permit Amount

Storm water associated with construction

1 to 5 acres

more than 5 acres, up to 10 acres

more than 10 acres, up to 25 acres

more than 25 acres, up to 100 acres

more than 100 acres

 

$   900

  1,000

  1,200

  2,000

  3,500

 

$     900

    1,000

    1,200

    2,000

    3,500

Storm water associated with industrial activities

small - 5 acres or less

medium - more than 5 acres, up to 20 acres

large - more than 20 acres

 

  1,200

  1,500

  1,800

 

    1,500

    1,800

    2,000

Storm water associated with mining, oil, and gas

small - 5 acres or less

medium - more than 5 acres, up to 20 acres

large - more than 20 acres

 

  1,200

  1,500

  1,800

 

    1,500

    1,800

    2,000

Traditional storm water municipal separate storm sewer system (MS4)

population greater than 50,000

population 10,000 to 50,000

population less than 10,000

 

 

  7,000

  6,000

  5,000

 

 

  10,000

    8,000

    6,000

County MS4 permit

  4,000

    5,000

Non-traditional MS4 permit

  2,000

   3,000

Storm water no-exposure certification

required once every five years

     300

       500

Storm water construction waiver

       400

            (o)  The minimum application fee under Schedule I.D for federal Clean Water Act section 401 certification is $4,000 or 1% of the gross value of the proposed project, whichever is greater, and the maximum fee may not exceed $20,000.

 

Schedule I.C D Application Fee for Other Activities

 

Category

Amount(1)

Short-term water quality standard, turbidity "318 authorization"

$ 150 250

Short-term water quality standard, remedial activities and pesticide application "308 authorization"

250 400

Storm water no exposure certification

100

Storm water construction waiver

100

Federal Clean Water Act section 401 certification

Varies(2) See ARM 17.30.201(6)(o)

Review plans and specifications to determine if permit is necessary, pursuant to 75-5-402(2), MCA

½ Applicable Fee 2,000

Major amendment modification

Application Fee Renewal fee from Schedule I.A

Minor amendment modification, includes transfer of ownership

200 500

Resubmitted application fee

$500

Administrative processing fee

$500

 

                (1)         Per outfall, multiple storm water outfalls limited to a maximum of five outfalls.

            (2)         Minimum fee is $350, or 1% of gross value of proposed project, not to exceed $10,000.

 

            (a)  An application fee for multiple discharge points is not required if there are multiple discharge points from the same source that have similar effluent characteristics, unless the discharges are to different receiving waters or stream segments, or result in multiple or variable (flow dependent) effluent limits or monitoring requirements.

            (b)  If a resubmitted application contains substantial changes causing significant additional review, the department may require an additional application fee to be paid before any further review is conducted.  The additional fee must be calculated in the same manner as the original fee and based on those parts of the application that must be reviewed again because of the change.  The department shall give written notice of the assessment within 30 days after receipt of the resubmittal and provide for appeal as specified in (10) below.

            (6) (7)  The fee schedule for new or renewal authorizations to degrade state waters under ARM Title 17, chapter 30, subchapter 7 of this chapter is set forth in Schedule II.  Payment of the degradation authorization fee is due upon submittal of the applications.  For the domestic sewage treatment and industrial activity categories, the department shall assess a fee for each outfall.  If an application for authorization to degrade state waters is denied, the department shall return any portion 15% of the fee that it does not use to review the application submitted.

 

Schedule II  Review of Authorizations to Degrade

 

Category

 

Amount

 

Domestic sewage treatment

$2,500(1) 5,000

Industrial activity

5,000(1)

Subdivision, 1-9 lots

120/lot

Subdivision, 10+ lots

200/lot(2)

 

                (1)  Per outfall, limited to a maximum of five falls.

                (2)  Maximum fee is $5,000 per subdivision.

 

            (a)  For purposes of (5) and (6) above, if a resubmitted application or petition contains substantial changes potentially causing additional or different sources of pollution that require the application or petition to be reviewed again, the department may require an additional application fee to be paid before any further substantive review.  The additional fee must be calculated in the same manner as the original fee and based on those parts of the application that must be reviewed again because of the change.  The department shall give written notice of the assessment within 30 days after receipt of the resubmittal and provide for appeal as specified in (10) below.

            (7) (8)  The annual permit fees is are set forth in Schedules III.A, and III.B, and III.C.  No annual fee is required for activities listed in Schedule I.CD under (5) of this rule.

                (a)  Under Schedules III.A and III.B, the department shall assess a fee for each outfall.  An annual fee for multiple outfalls is not required if there are multiple outfalls from the same source that have similar effluent characteristics, unless the discharges are to different receiving waters or stream segments, or the discharges result in multiple or variable (flow dependent) effluent limits or monitoring requirements.  For ground water permits, the department shall assess a fee based on the annual average daily flow in gallons per day for each outfall.

 

Schedule III.A  Annual Fee for Individual Permits

 

Category

Minimum Fee(1)

Fee Per Million Gallons of Effluent per Day (MGD)

Publicly owned treatment works - major permit

$2,000 3,000

$2,500 3,000

Privately owned treatment works - major permit

3,000

3,000(2)

Publicly owned treatment works - minor permit

1,000 1,500

$2,500 3,000

Privately owned treatment works - minor permit

discharge of non-contact cooling water only

1,000 1,500

800

3,000(2)

800

Privately owned treatment works - minor (3)

750

750

Ground water permit, domestic wastes

annual average daily flow - gallons per day

750

3,000

            0 to 10,000 gpd

1,300

10,001 to 30,000 gpd

2,000

more than 30,000 gpd

3,000

Ground water permit, industrial, or other wastes

1,500

3,000(2)

              0 to 1,000 gpd

2,000

1,001 to 5,000 gpd

2,500

5,001 to 10,000 gpd

2,800

more than 10,000 gpd

3,000

Concentrated animal feeding operation permit

   600

Storm water permit construction, industrial, and mining, oil, and gas activities

2,000

Traditional storm water municipal separate storm sewer system (MS4) permit

population greater than 50,000

population 10,000 to 50,000

population less than 10,000

 

 

3,000

2,500

2,000

Non-traditional MS4 permit

1,500

Other MS4 permits

1,500

Storm water outfall - (integrated)

1,000

 

                (1)  Per outfall, multiple storm water outfalls limited to a maximum of five outfalls.

                (2)  Except $750 per MGD if effluent is noncontact cooling water.

                (3)  Noncontact cooling water only.

 

            Schedule III.B  Annual Fee for Non-Storm Water General Permits

 

Category

Amount(1)

Concentrated animal feeding operation, greater than 1,000 animal units

$300 600

Concentrated animal feeding operation, less than 1,000 animal units

250

Construction dewatering

250 450

Fish farms

250 450

Produced water

450 750

Portable suction dredges

resident of Montana

nonresident of Montana

200

25

100

Sand and gravel production

450 750

Domestic sewage treatment lagoon

500 850

Disinfected water

450 750

Petroleum cleanup

450 750

Storm water associated with construction, residential (single family dwelling)

NA

Storm water associated with construction, commercial or public

450

Storm water associated with industrial activities

650

Storm water associated with mining, oil and gas

650

Storm water municipal separate storm sewer system (MS4)

650

Ground water remediation or dewatering

450 800

Potable water treatment facilities

450 800

Other general permit, not listed above

350 800

 

(1)  Per outfall , multiple storm water outfalls limited to a maximum of five outfalls.

 

            (b)  Annual fees in Schedule III.C for authorizations under the general permit for storm water associated with construction activities are based on the total acreage of disturbed land.

            (c)  Annual fees in Schedule III.C for authorizations under the general permits for storm water associated with industrial activities and for mining, oil, and gas activities are based on the total size of the regulated facility or activity in acres.

            (d)  Annual fees in Schedule III.C for authorizations under the general permit for municipal separate storm sewer systems (MS4s) are determined by population in an urbanized area as defined by the United States Census Bureau.  The fees must be based on the latest available decennial census data.

 

Schedule III.C  Annual Fee for Storm Water General Permits

 

Category

Amount

Storm water associated with construction

1 to 5 acres

more than 5 acres, up to 10 acres

more than 10 acres, up to 25 acres

more than 25 acres, up to 100 acres

more than 100 acres

 

$    700

      800

   1,200

   2,000

   3,000

Storm water associated with industrial activities

small - 5 acres or less

medium - more than 5 acres, up to 20 acres

large - more than 20 acres

 

   1,000

   1,200

   1,500

Storm water associated with mining, oil, and gas

small - 5 acres or less

medium - more than 5 acres, up to 20 acres

large - more than 20 acres

 

   1,000

   1,200

   1,500

Traditional storm water municipal separate storm sewer system (MS4)

population greater than 50,000

population 10,000 to 50,000

population less than 10,000

 

 

   5,000

   4,000

   2,500

County MS4 permit

   1,200

Non-traditional MS4 permit

   1,200

 

            (a) (e)  A facility that consistently discharges effluent at less than or equal to one-half of its effluent limitations and is in compliance with other permit requirements, using maintains compliance with permit requirements, including effluent limitations and reporting requirements, as determined by the previous year's discharge and compliance monitoring data, is entitled to a 25% reduction in its annual permit fee.  Proportionate reductions in annual fee of up to 25% may be given to facilities that consistently discharge effluent at levels between 50% and 100% of their permit effluent limitations.  The annual average of the percentage of use of each parameter limit will be used to determine an overall percentage.  A new permittee is not eligible for fee reduction in its first year of operation.  A permittee with a violation of any effluent limit permit requirement during the previous year is not eligible for fee reduction.

            (b) (f)  The annual permit fee is assessed for each state fiscal calendar year or portion of the calendar year in which the permit is effective.  The fee for the fiscal previous calendar year must be received by the department by no later than March 1 following the commencement of the fiscal year not later than 30 days after the invoice date.  The fee must be paid by a check or money order made payable to the state of Montana, dDepartment of eEnvironmental qQuality.

            (8) (9)  If a person who is assessed a renewal or annual fee under this rule fails to pay the fee within 90 days after the due date for payment, the department may:

            (a)  impose an additional assessment consisting of 15 20% of the fee plus interest on the required fee beginning the first day after the payment is due.  Interest must be computed at the rate of 12% per year, established under 15-31-510(3) 15-1-216(4), MCA; or

            (b)  suspend the processing of the renewal application for a permit or authorization or, if the nonpayment involves an annual permit fee, suspend the permit, certificate, license, or other authorization for which the fee is required.  The department may lift the suspension at any time up to one year after the suspension occurs if the holder has paid all outstanding fees, including all penalties, assessments, and interest imposed under this subsection rule.

            (9) (10)  The department shall give written notice to each person assessed a fee under this rule of the amount of the fee that is assessed and the basis for the department's calculation of the fee.  This notice must be issued at least 30 days prior to the due date for payment of the assessment.  The fee is due 30 days after receipt of the written notice.

            (10) (11)  Persons assessed a fee under this rule may appeal the department's fee assessment to the board within 20 days after receiving written notice of the department's fee determination.  The appeal to the board must include a written statement detailing the reasons why the permit holder or applicant considers the department's fee assessment to be erroneous or excessive.

            (a)  If part of the department's fee assessment is not in dispute in an appeal filed under (10) above, the undisputed portion of the fee must be paid to the department upon written request of the department.

            (b)  The contested case provisions of the Montana Administrative Procedure Act, provided for in Title 2, chapter 4, part 6, MCA, apply to a hearing before the board under this section rule.

 

            AUTH:  75-5-516, MCA

            IMP:  75-5-516, MCA

 

            REASON:  Pursuant to 75-5-516, MCA, the board must prescribe fees to be assessed by the department for water quality permit applications, annual permit renewals, review of petitions for degradation, and for other water quality authorizations required under the Montana Water Quality Act, Title 75, chapter 5, MCA.  Subject to specific statutory fee caps, the Act requires the board to adopt permit fees that are sufficient to cover the board and department costs of administering the permits and other authorizations required under the Act.  Application fees are capped at $5,000 per discharge point, and annual fees are capped at $3,000 per million gallons per day.  Section 75-5-516(1) and (2), MCA.  The Act requires that annual fees cover department costs of administering the program after subtracting application fees, state general fund appropriations, and federal grants.  Section 75-5-516(2), MCA.

            Program administration costs have increased, but federal and state funding sources have not changed.  EPA and state special funding for the program decreased 10% ($40,000) from FY 2002 through FY 2009, and it is currently unknown if a $60,000 state general fund appropriation will be available.  Consequently, an increase in fees is necessary to defray a portion of the state's costs of maintaining the program.  For the biennium the annual budget for the program is approximately $2.4 million.  Revenues of approximately $2 million must be raised by permit fees.  The $2 million in fees would affect approximately 1,900 permittees.  The fee revenue will be supplemented by approximately $400,000 in special revenue funds and grants to cover the remaining costs of program administration.

            Total fee revenue generated annually by the revised fees would be approximately $2 million.  Applications are projected to generate approximately $255,000, and annual fees are projected to generate approximately $1.7 million.  The $2 million in fees would affect approximately 1,900 permittees.  The fee revenue will be supplemented by approximately $400,000 in special revenue funds and grants to cover the remaining costs of program administration.

            In this rulemaking, the board is proposing to amend the current fee schedules in ARM 17.30.201.  The four major proposed amendments to ARM 17.30.201 are:  (1) increasing both the application and annual fees for permits and authorizations; (2) establishing fees based on volume discharged for ground water discharges; (3) establishing fees for administrative processing of permit related submittals; and (4) adding explanatory text in the rules to clarify how fees are assessed under the fee schedules.  The proposed amendments are necessary to implement the statutory requirement that fees recover costs of program administration, move the fee schedule toward a system that has more equity among fee payers than the current structure, and improve the readability of the rule and schedules.

In this statement of reasonable necessity, changes to the rule text are discussed first, followed by discussion of the amendments to the fee schedules.

The proposed amendments to (1) would make minor clerical changes and conform (1) to the new schedule format.

Proposed new (2) would add definitions associated with fee assessment.  The definitions are necessary to clarify how the fee schedules apply.

            The proposed amendments to existing (2), (3), and (4), (renumbered (3), (4), and (5)) would make minor clerical changes and add to the list of types of application for which fees are provided in the revised schedules.  These amendments are necessary for clarity.

            The proposed amendments to existing (5) (renumbered (6)) would make minor clerical revisions and provide that applications are incomplete without fees.  The amendments clarify that the first annual fee is included in the new permit fee listed in Schedule I.B application fees.

            Proposed new (6)(a) would clarify that the application fees in Schedules I.A and I.B are based on the number of outfalls and describes when multiple outfalls can be combined under a single fee.  These provisions are necessary to provide clarity in the rule about the assessment process.

            Proposed new (6)(b) would establish a review fee for resubmitted applications that have substantial changes or deficiencies requiring significant additional review.  As set out in Schedule I.D, the resubmittal fee is $500. This new fee is necessary to recover additional review costs caused by changes or deficiencies in applications.  This new subsection would also provide that a new application fee is required if an application has been denied for a year or more.  In those situations, a complete re-review is often required, and the additional fee is necessary to recover the additional review costs.

            Proposed new (6)(c) would provide for an administrative processing fee for review of substantial changes to certain management plans.  As set out in Schedule I.D, the fee is $500.  This new fee is necessary to address additional review and public notice costs pertaining to changes in management plans.

            Proposed new (6)(d) would provide that application fees are nonrefundable except as provided by 75-5-516(1)(d), MCA.  The statute provides that a partial refund, based on avoided enforcement costs, must be made for applications that are not issued.  This proposed new subsection would establish the refund amount at 25% of the fee.  This reflects the approximate average per-permit cost of enforcement actions.  The proposed new subsection would also limit the refund to cases in which the permit application is withdrawn within 30 days.  This provision is necessary to recover review costs, beyond those recovered in the application fee, for applications that are active more than 30 days but subsequently withdrawn.

            Proposed new (6)(e) would require facilities with an expired individual permit to pay the new permit application fee upon reapplication.  This is necessary to create an incentive for facilities to timely apply for renewal of permits, which avoids administrative and enforcement costs associated with processing expired permit renewals.

            Proposed new (6)(f) would require a fee for significance review of discharges from new or increased sources, as defined in water quality nondegradation requirements.  Significance review is currently required in order to comply with the requirements of the Water Quality Act nondegradation provisions, but a separate fee is not currently in effect.  The proposed review fee is necessary to recover review costs.

            Proposed new (6)(g) would allow storm water discharges from industrial activities, or mining or oil and gas activities, to be incorporated into a non-storm water discharge permit application, at a lower fee.  This new subsection is necessary to describe current practices that simplify the application process.

            Proposed new (6)(h) and (k) clarify that fees for MS4 individual permits are based on population as determined by the latest U.S. decennial census.  These new subsections are necessary to describe current fee calculation procedures and to comply with federal rules pertaining to MS4 permits.

            Proposed new (6)(i) clarifies that application fees for authorizations under the general permit for storm water associated with construction activities are based on the total acreage of disturbed land.  Renewal fees are not required when the general permit is reissued unless the facility's authorization has been in effect for more than four years.  This new subsection is necessary to describe current procedures for fee assessment, to comply with federal rules pertaining to construction storm water permits, and to avoid unnecessary renewal fees for facilities who are authorized under a general permit and who are required to reapply when a new general permit is issued.

            Proposed new (6)(j) clarifies that application fees for authorizations under the general permits for storm water associated with industrial activities and mining, oil, and gas activities are based on the total acreage of the regulated facility or activity.  This new subsection is necessary to describe current procedures for assessing fees for these applications.

            Proposed new (6)(l) and (m) explain how fees are assessed for modifications of general permit authorizations.  Modifications to authorizations under the construction storm water general permit can be processed as a minor modification under Schedule I.D if submitted within six months of the authorization.  Modifications after that, other than name changes, are subject to the new permit fee.  The reason for this is that construction storm water modifications after six months tend to involve significant project extensions, which require the additional processing fee.  For authorizations under the other storm water general permits, modifications are processed as renewal applications.

            Proposed new (6)(n) would provide that a storm water no-exposure certification must be renewed every five years to remain effective.  This new subsection is necessary to describe current procedures and to comply with federal rules pertaining to industrial storm water permits.

            Proposed new (6)(o) would replace the former footnote for Schedule I.C pertaining to fees for 401 certifications.  The minimum fee is proposed to be increased from $350 to $4,000.  The new subsection is necessary to describe how fees are assessed for 401 certifications, and the fee increase is necessary to recover review costs.

            Existing (6) is being renumbered (7) and is proposed to be amended to make minor changes for clarity and to incorporate a former footnote.  The amendments also propose that 15% of the application fee for applications to degrade will be returned if the application is denied.  This percentage is necessary based on the expectation that applications to degrade will be complex and will require extensive department review time even if the application is ultimately denied.

            Existing (7) is being renumbered (8) and is proposed to be amended.  The proposed amendments are necessary to make minor changes for clarity and to incorporate a former footnote regarding outfalls.

            The provisions in new (8)(a) regarding multiple outfalls are from the current rules and are not substantively altered.

            Proposed new (8)(b) would clarify that annual fees for authorizations under the general permit for storm water associated with construction activities are based on the total acreage of disturbed land.  This new subsection is necessary to describe current fee assessment procedures and to comply with federal rules pertaining to construction storm water permits.

            Proposed new (8)(c) would clarify that annual fees for authorizations under the general permits for storm water associated with industrial activities and mining, oil, and gas activities are based on the total acreage of the regulated facility or activity.  This new subsection is necessary to describe current procedures for assessing annual fees for these authorizations.

            Proposed new (8)(d) would clarify that annual fees for MS4 general permit authorizations are based on population as determined by the latest U.S. decennial census.  This new subsection is necessary to describe current procedures and to comply with federal rules pertaining to MS4 permits.

            Existing (7)(a) is being renumbered (8)(e) and is proposed to be amended to modify the current provisions pertaining to reduction in annual fees for permit compliance.  The current subsection provides a 25% reduction to facilities that discharge at half or less than half of their permitted limits.  The amendments propose to provide the 25% reduction to all facilities that maintained compliance with all permit requirements in the previous calendar year.  Administration of the current subsection has proven to be difficult and unfairly penalizes facilities that reduce pollutants by less than half the effluent limit, even if the reduction is achieved at a large cost.  The current subsection is based on the statute at 75-5-516(2)(b)(ii), MCA.  The proposed amendments are necessary to make administration of the fee reduction simpler.  The proposed amendments meet the statutory requirement for fee reduction but extend the reduction to other permittees as well.

            Existing (7)(b) is being renumbered (8)(f) and is proposed to be amended to change the annual fee assessment period from the fiscal year to the calendar year.  This would not lead to a change in department practice.  Annual fees are currently assessed on a calendar year basis.  The reason for this is that annual fees are based on the volume and concentration of waste discharged into the state waters based on discharge data, and the discharge data is collected on a calendar year basis.  Also, 75-5-516(2)(b)(ii), MCA, requires that the 25% reduction in the annual permit fee be based on the previous calendar year's discharge data.  The amendment to the subsection is necessary to reflect current fee assessment practices and to provide for more efficient administration of the annual fees.

            Existing (8) and (9) are being renumbered (9) and (10) and are proposed to be amended to make minor changes to the existing rules pertaining to late fees and interest for unpaid permit fees.  The amendments are for clarification and to correct an erroneous statutory reference.  Section 75-5-516(5)(a), MCA, requires that interest be computed on unpaid fees as provided in 15-1-216, MCA.  The current section erroneously refers to 15-31-510(3), MCA, which does not exist.  The amendments also raise the late fee from 15% to 20%, which is the maximum allowed by the statute, and clarify that the late fees and interest apply to both permit renewal and permit annual fees that are overdue.  The amendments are necessary to clarify how late fees and interest are assessed, and to conform the rule to the statute.

            Existing (10) is being renumbered (11) and is proposed to be amended to correct an erroneous cross-reference, and make a minor clerical change.  As provided by 75-5-516(8), MCA, the appeal process set out in this section applies to any fee assessed under this section.  The proposed deletion of references elsewhere in this rule to the appeal process is intended to avoid duplicative language, and is not intended to limit the availability of appeals.

 

Fee Schedules

 

            The proposed amendments to the fee schedules are necessary to implement the statutory requirement that fees recover costs of administration after special revenue and federal grant funds are used, and to move the fee schedule toward a system that has more equity among fee payers than the current structure.

            The proposed amendments to the schedules delete the footnotes and replace them with new subsections.  The reformatting does not change the meaning of the schedules or the rule.

The revisions to Schedule I.A increase the application fees for individual permits as shown and propose to add specific categories for ground water dischargers.  Individual ground water discharge permit holders would be grouped, for fee purposes, by discharge volume.  A fee for significance review is added, which is necessary to recover costs of determining whether permitted activities will result in nonsignificant changes in existing water quality.

The revisions to Schedule I.B, pertaining to general permit authorizations, increase the existing fees as shown.  The new schedule includes a renewal amount for facilities with effective permit coverage and a slightly higher rate for facilities that have never had permit coverage.  A new column has been added to address new permit coverage.  This column includes the annual fee for the first year the permit coverage is effective.  The existing categories for storm water general permits are deleted and moved in modified form to new Schedule I.C.

A new Schedule I.C is proposed that addresses application fees for storm water general permits.  The proposed new fees are higher and are based on the size of the project or regulated activity.  Larger facilities will pay a higher fee than smaller facilities.  As provided in the proposed amendments to (6)(i), when a construction storm water general permit is reissued, renewal fees will not be required from authorization holders if their coverage has not been effective for more than four years.  The proposed new fee schedule eliminates the categories of commercial, public and residential storm water discharges.  This amendment is necessary because review fees vary with acreage rather than the type of development.

The revisions to Schedule I.D increase application fees for other activities as shown and propose to move the storm water fees to new Schedule I.C.

            The revisions to Schedule II propose to increase fees for review of domestic authorizations to the same level as for industrial authorizations.  The amendments also eliminate differentiation based on the number of lots in a subdivision.  Although no applications to degrade have been received since the process was created, these amendments are necessary because applications are expected to be complex and expected to require extensive department review time regardless of the type or size of the discharge.

The amendments to Schedule III.A increase annual fees for individual permits as shown.  Fees for ground water discharge permits are based on the amount of the discharge.

The amendments to Schedule III.B increase annual fees for non-storm water general permits as shown.  The amendments move storm water annual permit fees to the new Schedule III.C.

            A new Schedule III.C is proposed that addresses annual fees for storm water general permits.  The proposed new fees are higher than previous annual fees and are based on the size of the project or regulated activity.

 

            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., September 10, 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/ James M. Madden                         BY:  /s/ Joseph W. Russell                                  

JAMES M. MADDEN                                   JOSEPH W. RUSSELL, M.P.H.,

Rule Reviewer                                               Chairman

 

            Certified to the Secretary of State, August 3, 2009.

 

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