76-4-135. State regulations no more stringent than federal regulations or guidelines. (1) After April 14, 1995, except as provided in subsections (2) through (5) or unless required by state law, the department may not adopt a rule to implement this chapter that is more stringent than the comparable federal regulations or guidelines that address the same circumstances. The department may incorporate by reference comparable federal regulations or guidelines.
(2) The department may adopt a rule to implement this chapter that is more stringent than comparable federal regulations or guidelines only if the department makes a written finding after a public hearing and public comment and based on evidence in the record that:
(a) the proposed state standard or requirement protects public health or the environment of the state; and
(b) the state standard or requirement to be imposed can mitigate harm to the public health or environment and is achievable under current technology.
(3) The written finding must reference information and peer-reviewed scientific studies contained in the record that forms the basis for the department's conclusion. The written finding must also include information from the hearing record regarding the costs to the regulated community that are directly attributable to the proposed state standard or requirement.
(4) (a) A person affected by a rule of the department adopted after January 1, 1990, and before April 14, 1995, that that person believes to be more stringent than comparable federal regulations or guidelines may petition the department to review the rule. If the department determines that the rule is more stringent than comparable federal regulations or guidelines, the department shall comply with this section by either revising the rule to conform to the federal regulations or guidelines or by making the written finding, as provided under subsection (2), within a reasonable period of time, not to exceed 12 months after receiving the petition. A petition under this section does not relieve the petitioner of the duty to comply with the challenged rule. The department may charge a petition filing fee in an amount not to exceed $250.
(b) A person may also petition the department for a rule review under subsection (4)(a) if the department adopts a rule after January 1, 1990, in an area in which no federal regulations or guidelines existed and the federal government subsequently establishes comparable regulations or guidelines that are less stringent than the previously adopted department rule.
(5) This section does not apply to a rule adopted under the emergency rulemaking provisions of 2-4-303(1).
History: En. Sec. 3, Ch. 471, L. 1995.
Structure Montana Code Annotated
Title 76. Land Resources and Use
Chapter 4. State Regulation of Subdivisions
Part 1. Sanitation in Subdivisions
76-4-103. What constitutes subdivision
76-4-104. Rules for administration and enforcement
76-4-105. Subdivision fees -- subdivision program funding
76-4-106. Cooperation with other governmental agencies
76-4-107. Authority to inspect and monitor -- certification
76-4-110. Additional remedies available
76-4-111. Exemption for certain condominiums, townhomes, and townhouses
76-4-112. Easements and restrictive covenants
76-4-113. Notification to purchasers
76-4-114. Review of application
76-4-115. Contents of application -- supplemental information
76-4-117. through 76-4-120 reserved
76-4-121. Restrictions on subdivision activities
76-4-122. Certain filings prohibited
76-4-125. Land divisions excluded from review
76-4-129. Joint application form and concurrent review
76-4-130. Deviation from certificate of subdivision approval
76-4-131. Applicability of public water supply laws
76-4-132. Special revenue account -- deposit and use of fees
76-4-133. Installation inspection
76-4-134. Owner request for review
76-4-135. State regulations no more stringent than federal regulations or guidelines