-569-

BEFORE THE BOARD OF ENVIRONMENTAL REVIEW OF THE STATE OF MONTANA

In the matter ofthe amendment ofARM ) 17.8.604, 17.8.610, 17.8.612, 17.8.613, ) NOTICE OF AMENDMENT

17.8.614, and 17.8.615 pertaining to ) (AIR QUALITY) open burning )

TO: All Concerned Persons

1. On December23, 2010, the Board.of Environmental Review published MAR Notice No. 17-311 regarding a notice ofpublic hearing on proposed amendment ofthe above-stated rule at page 2880, 2010 Montana Administrative Register, issue number24.



### 2. The board has amended the rules exactly as proposed.



### 3. No public comments ortestimony were received.

Reviewed by:

Is/DavidRusoff DAVID RUSOFF Rule Reviewer BOARD OF ENVIRONMENTAL REVIEW

By: 

### /s/Joseph W Russell JOSEPH W. RUSSELL, M.P.H. Chairman

,

Certified to the Secretary of State, April 4, 2011.

7-4/14/11 Montana Administrative RegisterAIR QUALITY 17.8.604

17.8.604 MATERIALS PROHIBITED FROM OPEN BURNING (1) The following material may not be disposed ofby open burning: (a) any waste which is moved from the premises where it was generated, except as provided in ARM 17.8.604(2), 17.8.611, or 17.8.612(4)(a) or (4)(b); (b) food wastes; (c) Styrofoam and other plastics; (d) wastes generating noxious odors; (e) wood and wood byproducts that have been coated, painted, stained, treated, orcontaminated by a foreign material, unless open burning is allowed under ARM 17.8.614 or 17.8.615; 

### (f) poultry litter; (g) animal droppings; (h) dead animals ordead animal parts; (i) tires, except as provided in ARM 17.8.615; 

### 0) rubber materials; (k) asphalt shingles, except as provided in ARM 17.8.614 or 17.8.615; (I) tar paper, except as provided in ARM 17.8.614 or 17.8.615; (m) automobile or aircraft bodies and interiors, except as provided in ARM 17.8.614 or 17.8.615; (n) insulated wire, except as provided in ARM 17.8.614 or 17.8.615; (o) oil or petroleum products, except as provided in ARM 17.8.614 or 17.8.615; (p) treated lumber and timbers; (q) pathogenicwastes; (r) hazardous wastes, as defined by 40 CFR Part 261, incorporated by reference in ARM 17.8.602; (s) trade wastes, except as provided in ARM 17.8.611 or 17.8.612; (t) any materials resulting from a salvage operation; (u) chemicals, exceptas provided in ARM 17.8.614 or 17.8.615; (v) Christmas tree waste as defined in ARM 17.8.601, except as provided in ARM 17.8.613; (w) asbestos or asbestos-containing materials; (x) standing or demolished structures containing prohibited material, except

as provided in ARM 17.8.612, 17.8.614, or 17.8.615; and (y) paint, except as provided in ARM 17.8.614 or 17.8.615. (2) A person may not conduct open burning ofanywood waste that is moved from the premises where itwas generated, except as provided in ARM 17.8.611 or 17.8.612(4)(a) or (4)(b), or unless the department determines: (a) the material is wood orwood byproducts that have not been coated, painted, stained, treated, orcontaminated by a foreign material; and (b) alternative methods ofdisposal are unavailable or infeasible. (3) A person conducting open burning ofwood waste which is moved from the premises where itwas generated shall comply with BACT. (4) A person intending to conduct open burning ofwood waste which is moved from the premises where itwas generated shall contactthe department by calling the number listed in ARM 17.8.601(1) priorto conducting open burning.

ADMINISTRATIVE RULES OF MONTANA 6/30/11 17-39517.8.605 ENVIRONMENTAL QUALITY

(5) Except as provided in ARM 17.8.606, a person may not open burn any nonprohibited material without first obtaining an air quality open burning permitfrom the department. (History: 75-2-111, 75-2-203, MCA; IMP, 75-2-203, 75-2-211, MCA; NEW, 1982 MAR p. 689, Eff. 4/16/82; AMD, 1991 MAR p. 126, Eff. 2/1/91; AMD, 1994 MAR p. 2528, Eff. 9/9/94; AMD, 1995 MAR p. 535, Eff. 4/14/95; AMD, 1996 MAR p. 1844, Eff. 7/4/96; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2002 MARp. 3586, Eff. 12/27/02; AMD, 2011 MAR p. 569, Eff. 4/15/11.)

17.8.605 SPECIAL BURNING PERIODS (1) Thefollowing categories of open burning may be conducted during the entire year: (a) prescribed wildland open burning; (b) open burning totrain firefighters underARM 17.8.615; (c) open burning authorized underthe emergency open burning permit provisions in ARM 17.8.611; (d) essential agricultural open burning; (e) conditional air quality open burning; 

### (f) commercial film production open burning; (g) Christmas tree waste open burning; and (h) any minor open burning that is not prohibited byARM 17.8.604 orthat is allowed byARM 17.8.606. (2) Open burning otherthan those categories listed in (1) may be conducted only during the months of March through November. (History: 75-2-111, 75-2-203, MCA; IMP, 75-2-203, MCA; NEW, 1982 MAR p. 691, Eff. 4/16/82; AMD, 1994 MAR p. 2528, Eff. 9/9/94; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2002 MAR p. 3586, Eff. 12/27/02.)

17.8.606 MINOR OPEN BURNING SOURCE REQUIREMENTS (1) Unless required to obtain an open burning permit under another provision ofthis subchapter, a minoropen burning source need not obtain an air quality open burning permit. (2) A minor open burning source must: (a) conform with BACT; (b) comply with all rules in this subchapter, exceptARM 17.8.610; and (c) comply with any requirements or regulations relating to open burning established by any agency of local government, including local air pollution agencies established under 75-2-301, MCA, ofthe Montana Clean AirAct, orany other municipal or county agency responsible for protecting public health and welfare. (3) During September, October, or November, to conduct any minor open burning not prohibited byARM 17.8.604, a minor open burning source must adhere to the burning restrictions established bythe departmentthat are available bycalling the departmentat (800) 225-6779.

17-396 6/30/11 ADMINISTRATIVE RULES OF MONTANAAIR QUALITY 17.8.610

17.8.610 MAJOR OPEN BURNING SOURCE RESTRICTIONS (1) Priorto open burning, a major open burning source must submit an application to the departmentfor an air quality major open burning permit. The application must be accompanied bythe appropriate air quality permit application fee required underARM 17.8.514 and must contain the following information: (a) a legal description ofeach planned site ofopen burning or a detailed map showing the location ofeach planned site ofopen burning; (b) the elevation ofeach planned.site of open burning; (c) the method of burning to be used at each planned site ofopen burning; and (d) the average fuel loading ortotal fuel loading at each site to be burned. (2) Proof ofpublication ofpublic notice, consistentwith this rule, must be submitted tothe department before an application will be considered complete. An applicantfor an air quality major open burning permit shall notifythe public ofthe application for permit by legal publication, at least once, in a newspaper of general circulation in each airshed (as defined bythe department) affected by the application. The notice must be published no soonerthan ten days priorto submittal ofan application and no laterthan ten days after submittal ofan application. The form ofthe notice must be provided bythe department and must include a statement that public comments concerning the application may be submitted to the departmentwithin 20 days after publication of notice orfiling ofthe application, whichever is later. A single public notice may be published for multiple applicants. (3) When the department approves ordenies the application for a permit underthis rule, a person who isjointly or severally adversely affected by the department's decision may request a hearing before the board. The request for hearing must be filed within 15 days afterthe department renders its decision and must include an affidavit setting forth the grounds forthe request. The contested

case provisions ofthe MontanaAdministrative Procedure Act, Title 2, chapter 4, part 6, MCA, apply to a hearing before the board underthis rule. The department's decision on the application is notfinal unless 15 days have elapsed from the date of the decision and there is no request for a hearing underthis section. The filing ofa requestfor a hearing postpones the effective date ofthe department's decision until the conclusion ofthe hearing and issuance ofa final decisio·n by the board. (4) A major open burning source must: (a) conform with BACT; and (b) comply with the conditions in any air quality open burning permit issued to it by the department, which will be in effectfor one yearfrom its date of issuance or anothertimeframe as specified in the permit by the department. (5) To open burn in a manner otherthan that described in the application for

an airquality open burning permit, the source mustsubmitto the department, in writing or bytelephone, a requestfor a change in the permit, including the information required by (1), and must receive approval from the department. (History: 75-2-111,75-2-203, MCA; IMP, 75-2-203,75-2-211, MCA; NEW, 1982 MAR p. 690, Eff. 4/16/82; AMD, 1992 MAR p. 2061, Eff. 9/11/92; AMD, 1994 MAR p. 2528, Eff. 9/9/94; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1999 MAR p. 1660, Eff. 7/23/99; AMD, 2002 MAR p. 3586, Eff. 12/27/02;AMD, 2011 MAR p. 569, Eff. 4/15/11.)

ADMINISTRATIVE RULES OF MONTANA 6/30/11 17-39917.8.612 ENVIRONMENTAL QUALITY

(8) An applicantfor a conditional air quality open burning permit shall notify the public ofthe application by legal publication, at least once, in a newspaper of general circulation in the area affected bythe application. The notice must be published no soonerthanten days priorto submittal ofan application and no later than ten days after submittal ofan application. Form ofthe notice must·be provided bythe department and must include a statementthat public comments may be submitted to the department concerning the application within 20 days after publication of notice orfiling ofthe application, whichever is later. A single public notice may be published for multiple applicants. (9) A conditional airquality open burning permit granted under (4)(a) ofthis rule is a temporary measure to allowtime forthe entity generating the trade wastes to develop alternative means ofdisposal. (10) When the department approves ordeniesthe application fora permit underthis rule, a person who is jointly orseverally adversely affected bythe department's decision may request a hearing before the board. The request for hearing must be filed within 15 days afterthe department renders its decision. An affidavit setting forth the groundsfor the request must be filed within 30 days after the department renders its decision. The contested case provisions ofthe Montana Administrative Procedure Act, Title 2, chapter4, part6, MCA, apply to a hearing beforethe board underthis rule. The department's decision on the application is not final until 15 days have elapsed from the date ofthe decision. Thefiling ofa request for a hearing does not staythe effective date ofthe department's decision. However, the board may order a stay upon receipt ofa petition and afinding, after notice and opportunity for hearing, that: (a) the person requesting the stay is entitled to the relief demanded in the request for a hearing; or (b) continuation ofthe permit during the appeal would produce great or irreparable injury to the person requesting the stay. (11) Upon granting a stay, the board may require a written undertaking to be given by the party requesting the stayforthe payment of costs and damages incurred by the permit applicant and its employees ifthe board determines thatthe permitwas properly issued. When requiring an undertaking, the board shall use the

same procedures and limitations as are provided in 27-19-306(2) through (4), MCA, for undertakings on injunctions. (History: 75-2-111, 75-2-203, MCA; IMP, 75-2-203, 75-2-211, MCA; NEW, 1982 MAR p

..691, Eff. 4/16/82; AMD, 1991 MAR p. 126, Eff. 2/1/91; AMD, 1992 MAR p. 2285, Eff. 10/16/92; AMD, 1994 MAR p. 2528, Eff. 9/9/94; AMD, 1995 MAR p. 535, Eff. 4/14/95; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1999 MAR p. 1660, Eff. 7/23/99; AMD, 2002 MAR p. 3586, Eff. 12/27/02; AMD, 2011 MAR p. 569, Eff. 4/15/11.)

17-402 6/30/11 ADMINISTRATIVE RULES OF MONTANAAIR QUALITY 17.8.613

17.8.613 CHRISTMAS TREEWASTE OPEN BURNING PERMITS (1) The department may issue an air quality open burning permitfor disposal ofChristmas tree waste, as defined in ARM 17.8.601(2). (2) The department may issue an air quality Christmastree waste open burning permit 

### ifthe departmentdetermines that emissionsfrom open burning will notendanger public health orwelfare orcause or contribute to a violation of any Montana orfederal ambient air quality standard. (3) Christmas tree waste open burning must conform with BACT. (4) A permit issued underthis rule is valid for oneyear, and applicants may reapply for a permit annually. (5) The department may place any reasonable requirements in an air quality Christmas tree waste open burning permitthat the department determines will reduce emissions ofair pollutants or minimize the impactofemissions, and the recipient ofa permit must adhere to those conditions. The following conditions, ata minimum, must be included in any air quality Christmas tree waste open burning permit:(a) BACTforthe year covered by the permit; and (b) a provision that the source may be required, priorto each bum, to receive approval from the department ofthe date and time ofthe proposed burn to ensure that good ventilation exists and to assign bum priorities, 

### if necessary. Approval may be requested by calling the department at (800) 225-6779. (6) An application for an airquality Christmas tree waste open burning permit must be made on a form provided by the department. The applicant shall provide adequate information to enable the departmentto determine whetherthe application satisfies the requirements ofthis rule for a permit. (7) An applicantfor an air quality Christmas tree waste open burning permit shall notify the public of its application either by publishing a notice in a newspaper ofgeneral circulation or by posting at leasttwo public notices, one on the property as described in (a)(i), and one in a conspicuous location atthe county courthouse as described in (a)(ii). (a) Posted public notices must comply with the following conditions: (i) at least one public notice must be posted on the property where the open burning is to occur, nearthe closest public right-of-way to the property, in a location clearlyvisible from the right-of-way; (ii) at least one public notice must be posted in a conspicuous location at the county courthouse in the countywhere the burning is to take place; (iii) the two public notices must be posted no soonerthan ten days priorto submittal ofthe application and no laterthan ten days after submittal ofthe application and must remain posted in a visible condition for a minimum of 15 days; and (iv) the two public notices must state the information in the application, the procedure for providing public commenttothe department on the application, the date by which public comments must be submitted tothe department, and the procedure for requesting a copy ofthe department's decision.

ADMINISTRATIVE RULES OF MONTANA 3/31/07 17-40317.8.614 ENVIRONMENTAL QUALITY

(b) Publication of public notices in a newspaper must: (i) be by legal publication, at least once, in a newspaper ofgeneral circulation in the area affected bythe application; (ii) be published no soonerthan ten days priorto submittal ofthe application and no laterthan ten days aftersubmittal ofthe application; and (iii) follow a form provided bythe department, including a statement that public comments may be submitted tothe department concerning the application within 20 days after publication of notice orfiling ofthe application, whichever is later. A single public notice may be published for multiple applicants. (8) When the department approves ordeniesthe application for a permit underthis rule, a person who isjointly orseverally adversely affected by the department's decision may request a hearing before the board. The request for hearing must be filed within 15 days afterthe department renders its decision. An affidavitsetting forth the grounds forthe request must be filed within 30 days after the department renders its decision. The contested case provisions ofthe Montana Administrative ProcedureAct, Title 2, chapter4, part6, MCA, applyto a hearing before the board underthis rule. The department's decision on the application is not final until15 days have elapsed from the date ofthe decision. The filing ofa request for a hearing does notstaythe effective date ofthe department's decision. However, the board may order a stay upon receipt ofa petition and a finding, after notice and opportunityfor hearing, that: (a) the person requesting the stay is entitled to the relief demanded in the request fora hearing; or (b) continuation ofthe permit during the appeal would produce great or irreparable injuryto the person requesting the stay. (9) Upon granting a stay, the board may require a written undertaking to be given by the party requesting the stayforthe payment ofcosts and damages incurred bythe permit applicant and its employees ifthe board determines thatthe permitwas properly issued. When requiring an undertaking, the board shall use the

same procedures and limitations as are provided in 27-19-306(2) through (4), MCA, for undertakings on injunctions. (History: 75-2-111, 75-2-203, MCA; IMP, 75-2-203, 75-2-211, MCA; NEW, 1994 MAR p. 2528, Eff. 9/9/94; TRANS, from DHES, 1996 MAR p. 2285; AMD, 1999 MAR p. 1660, Eff. 7/23/99; AMD, 2011 MAR p. 569, Eff. 4/15/11.)

17.8.614 COMMERCIAL FILM PRODUCTION OPEN BURNING PERMITS (1) The department may issue an air quality commercial film production open burning permitfor open burning ofotherwise prohibited material as part ofa commercial, educational film, orvideo production for motion pictures ortelevision. Use of pyrotechnic special effects materials, including bulk powder compositions and devices, smoke powder compositions and devices, matches and fuses, squibs and detonators, and fireworks specifically created for use by special effects pyrotechnicians for use in motion picture orvideo productions is notconsidered open burning.

17-404 6/30/11 ADMINISTRATIVE RULES OF MONTANAAIR QUALITY 17.8.614

(2) The department may issue an air quality commercial film production open burning permit underthis rule ifthe department determinesthat emissions from open burning will not endanger public health orwelfare or cause or contribute to a violation ofany Montana orfederal ambient air quality standard. (3) A permit issued underthis rule is valid for a single production. (4) Open burning underthis rule must conform with BACT. (5) The department may place any reasonable requirements in an airquality commercial film production open burning permit issued underthis rule that the department determines will reduce emissions ofair pollutants or minimizethe impact ofemissions, and the recipient ofa permit must adhere to those conditions. (6) An application for an airquality commercial film production open burning permit must be made on a form provided by the department. The applicant shall provide adequate information to enable the departmentto determine whetherthe application satisfies the requirements ofthis rule fora permit. Proofof publication of public notice, as required by (7), must be submitted tothe department before an application will be considered complete. (7) An applicantfor an air quality commercial film production open burning permit shall notify the public of its application by legal publication, at leastonce, in a newspaperofgeneral circulation in the area affected by the application. The notice mustbe published no soonerthan ten days priorto submittal ofthe application and

no laterthan ten days aftersubmittal ofthe application. Form ofthe notice must be provided by the department and must include a statementthat public comments may be submitted tothe department concerning the application within 20 days after publication ofnotice orfiling ofthe application, whichever is later. A single public notice may be published for multiple applicants. (8) When the department approves ordeniesthe application for a permit underthis rule, a person who isjointly orseverally adversely affected bythe department's decision may request a hearing before the board. The request for hearing must be filed within 15 days afterthe department renders its decision. An affidavit setting forth the groundsforthe request must be filed within 30 days after

. the department renders its decision. The contested case provisions ofthe Montana

Administrative Procedure Act, Title 2, chapter 4, part 6, MCA, applyto a hearing before the board underthis rule. The department's decision on the application is not final until 15 days have elapsed from the date ofthe decision. Thefiling ofa**r~quest** for a hearing does not staythe effective date ofthe department's decision. However, the board may order a stay upon receipt ofa petition and a finding, after notice and opportunityfor hearing, that: (a) the person requesting the stay is entitled to the reliefdemanded in the requestfor a hearing; or (b) continuation ofthe permitduring the appeal would produce great or irreparable injury tothe person requesting the stay.

ADMINISTRATIVE RULES OF MONTANA 6/30/11 17-40517.8.615 ENVIRONMENTAL QUALITY

(9) Upon granting a stay, the board may require a written undertaking to be given by the party requesting the stayforthe payment ofcosts and damages incurred bythe permit applicant and its employees ifthe board determines thatthe permitwas properly issued. When requiring an undertaking, the board shall usethe

same procedures and limitations as are provided in 27-19-306(2) through (4), MCA, for undertakings on injunctions. (History: 75-2-111, 75-2-203, MCA; IMP, 75-2-203; 75-2-211, MCA; NEW, 1994 MAR p. 2528, Eff. 9/9/94; TRANS, from DHES, 1996 MARp. 2285; AMD, 2002 MAR p. 3586, Eff. 12127/02; AMD, 2011 MAR p. 569, Eff. 4/15/11.)

17.8.615 FIREFIGHTERTRAINING (1) The department may issue an air quality open burning permitfor open burning ofasphalt shingles, tar paper, or insulated wirewhich is part ofa building orstanding structure, oil or petroleum products, and automobile or aircraft bodies and interiors, fortraining firefighters, 

### if: (a) thefire will be restricted to a building or structure, a permanenttraining facility, or otherappropriate training site, in a site otherthan a solid waste disposal site; (b) the material to be burned will not be allowed to smolder afterthe training session has terminated, and no public nuisance will be created; (c) all asbestos-containing material has been removed; (d) asphalt shingles, flooring material, siding, and insulation which might contain asbestos have been removed, unless samples have been analyzed bya certified laboratory and shown to be asbestos-free; (e) all prohibited material that can be removed safely and reasonably has been removed; 

### (f) the open burning accomplishes a legitimate training need; (g) clear educational objectives have been identified forthetraining;

· (h) burning is limited to that necessary to accomplish the educational objectives; (i) the training operations and procedures are consistentwith nationally accepted standards of good practice; and 0) emissions from open burning will not endanger public health orwelfare or
cause or contributeto a violation ofany Montana orfederal ambient air quality standard. (2) The department may place any reasonable requirements in an air quality firefighter training open burning permitthatthe department determineswill reduce emissions ofair pollutants orwill minimize the impact ofemissions, and the recipient ofa permit must adhere tothose conditions. (3) The applicant may be required, priorto each burn, to notifythe department ofthe anticipated date and location ofthe proposed training exercise and the type and amount of material to be burned. The department may be notified by phone, fax, or in writing. (4) An application for an air qualityfirefightertraining open burning permit must be made on a form provided bythe department. The applicant must provide adequate information to enable the departmentto determinewhetherthe application satisfies the requirements ofthis rule for a permit.

17-406 6/30/11 ADMINISTRATIVE RULES OF MONTANAAIR QUALITY 17.8.615

(5) Proofof publication of public notice, consistentwith this rule, must be submitted to the department before an application will 

### be considered complete. An applicantfor an air qualityfirefighter training open burning permit shall notify the public oftheapplication for a permit by legal publication, at leastonce, in a newspaper ofgeneral circulation in the area affected bythe application. The notice mustbe published no soonerthan ten days priorto submittal ofan application and

no laterthan ten days after submittal ofan application. The form ofthe notice must be provided bythe department and must include a statementthat public comments may be submitted tothe department concerning the application within 20 days after publication of notice orfiling ofthe application, whichever is later. A single public notice may be published for multiple applicants. (6) When the department approves or deniesthe application for a permit underthis rule, a person who isjointly orseverally adversely affected by the department's decision may request a hearing before the board. The request for hearing must

### befiled within 15 days afterthe department renders its decision. An affidavit setting forth the groundsforthe request must be filed within 30 days after the department renders its decision. The contested case provisions ofthe Montana Administrative Procedure Act, Title 2, chapter 4, part6, MCA, apply to a hearing beforethe board underthis rule. The department's decision on the application is not final until 15 days have elapsed from the date ofthe decision. Thefiling of a request for a hearing does notstay the effective date ofthe department's decision. However, the board may order a stay upon receipt ofa petition and afinding, after notice and opportunityfor hearing, that: (a) the person requesting the stay is entitled to the relief demanded in the requestfor a hearing; or (b) continuation ofthe permit during the appeal would produce great or irreparable injurytothe person requesting the stay. (7) Upon granting a stay, the board may require a written undertaking to be given by the party requesting the stayfor the payment ofcosts and damages incurred by the permit applicant and its employees ifthe board determines thatthe permitwas properly issued. When requiring an undertaking, the board shall use the

same procedures and limitations as are provided in 27-19-306(2) through (4), MCA, for undertakings on injunctions. (History: 75-2-111, 75-2-203, MCA; IMP, 75-2-203, 75-2-211, MCA; NEW, 1982 MAR p. 691, Eft. 4/1/82; AMD, 1994 MAR p. 2528, Eft. 9/9/94; TRANS, from DHES, 1996 MAR p. 2285; AMD, 2011 MAR p. 569, Eft. 4/15/11.)

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