House Bill No. 529

Introduced By denny



A Bill for an Act entitled: An Act generally revising the laws that the department of environmental quality administers; amending sections 75-2-211, 75-20-204, 82-4-205, 82-4-361, and 82-4-441, MCA; and providing an immediate effective date.



Be it enacted by the Legislature of the State of Montana:



Section 1.  Section 75-2-211, MCA, is amended to read:

"75-2-211.   Permits for construction, installation, alteration, or use. (1) The board shall by rule provide for the issuance, modification, suspension, revocation, and renewal of a permit issued under this part.

(2)  Not later than 180 days before construction, installation, or alteration begins or as a condition of use of any machine, equipment, device, or facility that the board finds may directly or indirectly cause or contribute to air pollution or that is intended primarily to prevent or control the emission of air pollutants, the owner or operator shall file with the department the appropriate permit application on forms available from the department.

(3)  The permit program administered by the department pursuant to this section must include the following:

(a)  requirements and procedures for permit applications, including standard application forms;

(b)  requirements and procedures for submittal of information necessary to determine the location, quantity, and type of emissions;

(c)  procedures for public notice and opportunity for comment or public hearing, as appropriate;

(d)  procedures for providing notice and an opportunity for comment to contiguous states and federal agencies, as appropriate;

(e)  requirements for inspection, monitoring, recordkeeping, and reporting;

(f)  procedures for the transfer of permits;

(g)  requirements and procedures for suspension, modification, and revocation of permits by the department;

(h)  requirements and procedures for appropriate emission limitations and other requirements, including enforceable measures necessary to ensure compliance with those limitations and requirements;

(i)  requirements and procedures for permit modification and amendment; and

(j)  requirements and procedures for issuing a single permit authorizing emissions from similar operations at multiple temporary locations, which permit may include conditions necessary to ensure compliance with the requirements of this chapter at all authorized locations and a requirement that the owner or operator notify the department in advance of each change in location.

(4)  This section does not restrict the board's authority to adopt regulations providing for a single air quality permit system.

(5)  The department may, for good cause shown, waive or shorten the time required for filing the appropriate applications.

(6)  The department shall require that applications for permits be accompanied by any plans, specifications, and other information that it considers necessary.

(7)  An application is not considered filed until the applicant has submitted all fees required under 75-2-220 and all information and completed application forms required pursuant to subsections (2), (3), and (6) of this section. If the department fails to notify the applicant in writing within 30 days after the purported filing of an application that the application is incomplete and fails to list the reasons why the application is considered incomplete, the application is considered filed as of the date of the purported filing.

(8)  (a) If an application for a permit requires the preparation of an environmental impact statement under the Montana Environmental Policy Act, Title 75, chapter 1, parts 1 through 3, the department shall notify the applicant in writing of the approval or denial of the application within:

(i)  180 days after the department's receipt of a filed application, as provided in subsection (7), if the department prepares the environmental impact statement; or

(ii) within 30 days after issuance of the final environmental impact statement by the lead agency if a state agency other than the department has been designated by the governor as lead agency for preparation of the environmental impact statement.; or

(iii) if the application is for a machine, equipment, a device, or a facility at an operation that requires a permit under Title 82, chapter 4, part 1, 2, or 3, 30 days of issuance of the final environmental impact statement in accordance with time requirements of Title 82, chapter 4, part 1, 2, or 3.

(b)  If an application does not require the preparation of an environmental impact statement, the department shall notify the applicant in writing within 60 days after its receipt of a filed application, as provided in subsection (7), of its approval or denial of the application. The time for notification may be extended for 30 days by written agreement of the department and the applicant. Additional 30-day extensions may be granted by the department on request of the applicant. Notification of approval or denial may be served personally or by certified mail on the applicant or the applicant's agent.

(c)  If an application for a permit is for the construction, installation, alteration, or use of a source that is also required to obtain a license pursuant to 75-10-221 or a permit pursuant to 75-10-406, the department shall act on the permit application within the time period provided for in 75-2-215(3)(e).

(d)  Failure by the department to act in a timely manner does not constitute approval or denial of the application. This does not limit or abridge the right of any person to seek available judicial remedies to require the department to act in a timely manner.

(9)  When the department approves or denies the application for a permit under this section, a person who is jointly 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 after the department renders its decision and must include an affidavit setting forth the grounds for the request. The contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to a hearing before the board under this subsection.

(10) The department's decision on the application is not final unless 15 days have elapsed from the date of the decision and there is no request for a hearing under this section. The filing of a request for a hearing postpones the effective date of the department's decision until the conclusion of the hearing and issuance of a final decision by the board."



Section 2.  Section 75-20-204, MCA, is amended to read:

"75-20-204.   Facilities subject to federal energy regulatory commission jurisdiction. (1) For a facility that is subject to the jurisdiction of the federal energy regulatory commission, the department shall file a state recommendation with the commission.

(2)  A person making application to the federal energy regulatory commission shall file with the department notice of and a copy of the federal application regarding any facility subject to subsection (1). The state recommendation must be based on its study of the federal application and other material gained through intervention in the federal proceeding.

(3)  A person subject to the provisions of subsection (2) shall pay a fee to the department pursuant to 85-2-124 at the time that an application is filed with the federal energy regulatory commission. The fee shall must be used by the department to carry out its responsibilities under Title 85, chapter 2, and to develop a state recommendation and participate as a party in any necessary federal proceeding to assert the state recommendation. The fee may not exceed one-half the amount that could be assessed under 75-20-215. No A fee prescribed by 75-20-215 may not be assessed against a person paying a fee under this section.

(4)  Any A person who fails to file a timely notice of and a copy of the federal application with the department so as to prevent, preventing the department from timely compliance with this section and with the rules, statutes, or procedures governing the proceedings before the federal energy regulatory commission, is subject to the provisions of 75-20-408."



Section 3.  Section 82-4-205, MCA, is amended to read:

"82-4-205.   Administration by department. The department:

(1)  shall exercise general supervision, administration, and enforcement of this part and all rules and orders adopted under this part;

(2)  shall examine and pass upon all plans and specifications submitted by the operator for the method of operation, subsidence stabilization, water control, backfilling, grading, highwall reduction, and topsoiling and for the reclamation of the area of land affected by the operator's operation;

(3)  shall issue orders requiring an operator to adopt the remedial measures necessary to comply with this part and rules adopted under this part;

(4) shall order the suspension of any permit for failure to comply with this part or a rule adopted under this part;

(5)  shall issue, after an opportunity for hearing, a final order revoking a permit when the requirements set forth by notice of noncompliance, order of suspension, or order requiring remedial measures have not been complied with according to the terms in the notice or order;

(6)  shall order the halting of any operation that is started without first having secured a permit as required by this part or order the cessation of operations not in compliance with this part in accordance with 82-4-251;

(7)  shall conduct hearings under the provisions of this part or rules adopted by the board;

(8)  shall make investigations and inspections necessary to ensure compliance with this part;

(9)  may encourage and conduct investigations, research, experiments, and demonstrations and collect and disseminate information relating to strip mining and to underground mining and reclamation of lands and waters affected by strip mining and underground mining;

(10) may adopt rules with respect to the filing of reports, the issuance of permits, monitoring, and other matters of procedure and administration;

(11)(10) may conduct hearings under the provisions of this part."



Section 4.  Section 82-4-361, MCA, is amended to read:

"82-4-361.   Violation -- penalties -- waiver. (1) (a) Except as provided in subsections (1)(b) and (2), a civil penalty of not less than $100 or more than $1,000 for each of the following violations, an additional civil penalty of not less than $100 or more than $1,000 for each day during which the violation continues, and an injunction from continuing the violation may be imposed against:

(i)  a person or operator who violates a provision of this part, a rule or order adopted under this part, or a term or condition of a permit; or

(ii) any director, officer, or agent of a corporation who willfully authorizes, orders, or carries out a violation of a provision of this part, a rule or order adopted under this part, or a term or condition of a permit.

(b)  If the violation created an imminent danger to the health or safety of the public or caused significant environmental harm, the maximum penalty is $5,000 for each day of violation.

(2)  (a) The department may bring an action for a restraining order or a temporary or permanent injunction against an operator or other person violating or threatening to violate an order adopted under this part.

(b)  The civil penalties provided for in this section may be waived for a minor violation if it is determined that the violation does not represent potential harm to public health, public safety, or the environment and does not impair the administration of this part. The board shall adopt rules to implement and administer a procedure for waiver of a penalty under this subsection.

(3)  The department shall notify the person or operator of the violation. The department shall issue a statement of proposed penalty within 30 days after notice of the violation. The person or operator, by filing a written request within 20 days of receipt of the notice of proposed penalty, is entitled to a hearing on the issues of whether the alleged violation has occurred and whether the penalty proposed to be assessed is proper. After the hearing or after the time for requesting a hearing has expired, the board department shall make findings of fact and issue a written decision as to the occurrence of the violation and whether the amount of penalty is warranted. The board department shall order the payment of a penalty in that amount. The person or operator shall remit the amount of the penalty or petition for judicial review within 30 days of receipt of the order. A person or operator who fails to request the hearing provided for in this subsection or who fails to petition for judicial review within 30 days of receipt of the order forfeits that person's or operator's right to seek judicial review of the violation or penalty determinations. These penalties are recoverable in an action brought by the department."



Section 5.  Section 82-4-441, MCA, is amended to read:

"82-4-441.   Penalty -- enforcement. (1) A person who violates any of the provisions of this part, rules adopted under this part, or provisions of a contract for reclamation:

(a)  shall pay a civil penalty of not less than $100 or more than $1,000 for the violation;

(b)  shall pay an additional civil penalty of not less than $100 or more than $1,000 for each day during which a violation continues following the service of notice of the violation; and

(c)  may be enjoined from continuing the violation as provided in this section.

(2)  The civil penalties provided for in this section may be waived for a minor violation if it is determined that the violation does not represent potential harm to public health, public safety, or the environment and does not impair the administration of this part. The board shall adopt rules to implement and administer a procedure for waiver of a penalty under this subsection.

(3)  The department shall notify the person or operator of the violation. The person or operator is entitled, by filing a written request within 20 days of receipt of the notice of violation, to a hearing on the issues of whether the alleged violation has occurred and whether the penalty proposed to be imposed is proper. The department shall issue a statement of proposed penalty no more than 10 days after notice of violation. After the hearing or after the time for requesting a hearing has expired, the board department shall make findings of fact, issue a written decision as to the occurrence of the violation and the amount of penalty warranted, and order the payment of a penalty in that amount. The person or operator shall remit the amount of the penalty within 30 days of the order. If the person or operator wishes to obtain judicial review of the assessment, the person or operator shall submit with the penalty a statement that the penalty is being paid under protest and the department shall hold the payment in escrow until judicial review is complete. A person or operator who fails to request and submit testimony at the hearing provided for in this subsection or who fails to pay the assessed penalty under protest within 30 days of the order assessing the penalty forfeits the right to seek judicial review of the violation or penalty determinations. These penalties are recoverable in an action brought by the department in the district court of the first judicial district of this state, in and for the county of Lewis and Clark, or in the district court of the county in which the opencut mine is located.

(4)  The department may bring an action to enjoin an operator or other person violating or threatening to violate this part, rules adopted pursuant to this part, or a contract made pursuant to this part in the district court of the first judicial district of this state, in and for the county of Lewis and Clark, or in the district court of the county in which the opencut mine is located."



Section 6.  Saving clause. [This act] does not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before [the effective date of this act].



Section 7.  Effective date. [This act] is effective on passage and approval.

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