_________ Bill No. _______

Introduced By _______________________________________________________________________________

A Bill for an Act entitled: "An Act eliminating the requirement that the Board of Environmental Review set ground water quality standards for agricultural chemicals at maximum contaminant levels; eliminating authority to adopt interim standards; establishing guidance for adoption of standards for toxic, noncarcinogenic agricultural chemicals; and amending sections 80-15-102, 80-15-104, 80-15-105, 80-15-201, 80-15-212, and 80-15-403, MCA."

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

Section 1.  Section 80-15-102, MCA, is amended to read:

"80-15-102.   Definitions. Unless the context requires otherwise, in this chapter, the following definitions apply:

(1)  "Agricultural chemical" means any of the following:

(a)  a pesticide as defined in 80-8-102;

(b)  an isomer, degradation, or metabolic product of a pesticide; or

(c)  a commercial fertilizer as defined in 80-10-101.

(2)  "Aquifer" means a water-bearing, subsurface formation capable of yielding sufficient quantities of water to a well for a beneficial use.

(3)  "Best management plans" and "best management practices" mean activities, procedures, and practices established by the department, in consultation with the Montana state university-Bozeman extension service, to prevent or remedy the introduction of agricultural chemicals into ground water to the extent technically and economically practical.

(4)  "Board" means the board of environmental review provided for in 2-15-3502.

(5)  "Confirmatory procedure" means a process for verifying the detection of agricultural chemicals in water, soil, and other related media.

(6)  "EPA" means the United States environmental protection agency.

(7)  "Ground water" means any water of the state occupying the voids within a geologic formation and within the zone of saturation.

(8)  "Interim numerical standard" means a health-based number that expresses the concentration of an agricultural chemical allowed in ground water and that is adopted by a rule of the board pursuant to 80-15-201(3) or (4).

(9)  "Margin of safety" means numerical margins that are applied to the no observable effect level in an agricultural chemical toxicology study and that are used by the EPA to extrapolate data obtained from studies of animals to humans, including sensitive individuals.

(10) "No observable effect level" means the highest dose level of an agricultural chemical to which a laboratory animal is exposed, per unit of body weight, at which no effect is observed, as established by EPA's pesticide registration process.

(11)(8) "Nonpoint source" means a diffuse source of agricultural chemicals resulting from human activities over a relatively large area, the effects of which must normally be addressed or controlled by a management or conservation practice.

(12) "Nonpromulgated federal standard" means a health advisory or a suggested no adverse response level that is published but not promulgated by regulation by EPA and that is a suggested measure of the health risk represented by the concentration of an agricultural chemical in water.

(13) "Numerical risk assessment" means a scientific procedure used to measure the statistical probability of human health risk associated with exposure to an agricultural chemical.

(14) "Oncogenic potential" means the potential of an agricultural chemical to cause tumors in laboratory animals and the extrapolation of that potential to humans through use of statistical models and other evidence.

(15)(9) "Person" means any individual, group, firm, cooperative, corporation, association, partnership, political subdivision, state or federal government agency, or other organization or entity.

(16)(10) "Point of standards application" means the specific location in an aquifer where ground water quality and quantity are sampled, measured, evaluated, or otherwise used by either the department or the department of environmental quality to implement the provisions of this chapter.

(17)(11) "Point source" means a point source as defined in 75-5-103, including but not limited to chemical mixing, loading, and storage sites and sites of agricultural chemical spills.

(18) "Promulgated federal standard" means an agricultural chemical maximum contaminant level as established under the federal Safe Drinking Water Act, a national primary drinking water standard, or an interim drinking water regulation or other EPA regulation based on federal law.

(19)(12) "Registrant" means a person as defined in 80-8-102 and 80-10-101.

(20)(13) "Standard" means the numerical value expressing the concentration of an agricultural chemical in ground water that, when exceeded, presents a potential human health risk over a lifetime of consumption and that is adopted by a rule of the board as required by 80-15-201 a standard of water quality adopted by the board pursuant to 75-5-301.

(21)(14) "Use" means any act of handling or release of an agricultural chemical or exposure of humans or the environment to an agricultural chemical, including but not limited to application, mixing, loading, storage, disposal, or transportation."

Section 2.  Section 80-15-104, MCA, is amended to read:

"80-15-104.   Administration. (1) The department and the department of environmental quality shall administer this chapter.

(2)  The department of environmental quality is responsible for the establishment and enforcement of agricultural chemical ground water quality standards and interim numerical standards as authorized by 80-15-201 adopted under Title 75, chapter 5, ground water monitoring as authorized by 80-15-202 and 80-15-203, providing comments to the department during the development of agricultural chemical ground water management plans, promoting research as set forth in 80-15-107, and related responsibilities set forth in Title 75, chapter 5.

(3)  The department is responsible for the preparation, implementation, and enforcement of agricultural chemical ground water management plans as authorized by 80-15-211 through 80-15-218, 80-15-401 through 80-15-405, and 80-15-411 through 80-15-414, public education as authorized by 80-15-106, ground water monitoring as authorized by 80-15-202 and 80-15-203, other duties related to promoting research as set forth in 80-15-107, and related responsibilities set forth in Title 80, chapters 8 and 10.

(4)  This chapter does not limit the department's responsibility to enforce agricultural chemical label directions and prohibitions.

(5)  The administration of this chapter, including rulemaking and hearing functions authorized by this chapter, must be conducted in accordance with the Montana Administrative Procedure Act, Title 2, chapter 4."

Section 3.  Section 80-15-105, MCA, is amended to read:

"80-15-105.   Rulemaking. (1) The board, subject to the provisions of 80-15-110, shall adopt rules for the administration of this chapter for which the board and the department of environmental quality have responsibility. These rules must include but are not limited to:

(a)  standards and interim numerical standards for agricultural chemicals in ground water as authorized by 80-15-201;

(b)  procedures for ground water monitoring as authorized by 80-15-202 and 80-15-203;

(c)  field and laboratory operational quality assurance, quality control, and confirmatory procedures that are authorized by 80-15-107, 80-15-202, and 80-15-203 and that may include, through adoption by reference, procedures that have been established or approved by EPA for quality assurance and quality control;

(d)  standards for maintaining the confidentiality of data and information declared confidential by EPA and the confidentiality of chemical registrant data and information protected from disclosure by federal or state law as required by 80-15-108; and

(e)  administrative civil penalties as authorized by 80-15-412.

(2)  The department shall adopt rules necessary to carry out its responsibilities under this chapter. These rules must include but are not limited to:

(a)(1)  procedures for ground water monitoring as authorized by 80-15-202 and 80-15-203;

(b)(2)  the content and procedures for development of agricultural chemical ground water management plans, including the content of best management practices and best management plans, procedures for obtaining comments from the department of environmental quality on the plans, and the adoption of completed plans and plan modifications as authorized by 80-15-211 through 80-15-218;

(c)(3)  standards for maintaining the confidentiality of data and information declared confidential by EPA and of chemical registrant data and information protected from disclosure by federal or state law as required by 80-15-108;

(d)(4)  field and laboratory operational quality assurance, quality control, and confirmatory procedures that are authorized by 80-15-107, 80-15-202, and 80-15-203 and that may include, through adoption by reference, procedures that have been established or approved by EPA for quality assurance and quality control;

(e)(5)  emergency procedures as authorized by 80-15-405;

(f)(6)  procedures for issuance of compliance orders as authorized by 80-15-403; and

(g)(7)  procedures for the assessment of administrative civil penalties as authorized by 80-15-412."

Section 4.  Section 80-15-201, MCA, is amended to read:

"80-15-201.   Ground water standards. (1) The board shall adopt standards and, as applicable, interim numerical standards for agricultural chemicals in ground water pursuant to 75-5-301. The standards must be the same as any promulgated or nonpromulgated federal standard established by EPA, although the board may determine, pursuant to the requirements of subsection (4), that an interim numerical standard different from either a promulgated or nonpromulgated federal standard is justified. Promulgated federal standards must receive preference. Except as provided in subsections (3) and (4), if more than one nonpromulgated federal standard exists for an agricultural chemical, the board must adopt the most recently established nonpromulgated federal standard.

(2)  The board is not required to adopt a standard or interim numerical standard for each agricultural chemical registered in the state. The only standards and interim numerical standards required are for those agricultural chemicals:

(a)  that are addressed by promulgated and nonpromulgated federal standards;

(b)  the presence of which has been verified in ground water as provided in 80-15-202; or

(c)  that the department and the department of environmental quality predict may appear in ground water, in accordance with the procedures and determinations specified in 80-15-202 and 80-15-203.

(3)  If a promulgated federal standard has not been adopted or a nonpromulgated federal standard has not been published for an agricultural chemical for which the board is required to establish a standard or interim numerical standard as specified in subsections (2)(b) and (2)(c), the department of environmental quality shall request EPA to establish a promulgated or nonpromulgated federal standard. If the department of environmental quality determines that EPA cannot comply with the request within 15 days, the board shall adopt an interim numerical standard, provided that the board shall review the interim numerical standard whenever EPA adopts a promulgated federal standard or publishes a nonpromulgated federal standard for the agricultural chemical in question.

(4)  The board may adopt an interim numerical standard that is different from either a promulgated or nonpromulgated federal standard if there is significant new and relevant technical information available that is scientifically valid. The board shall review the interim numerical standard when EPA establishes or revises the promulgated or nonpromulgated federal standard for the agricultural chemical in question.

(5)  The board shall consider the following in adopting any interim numerical standard under either subsection (3) or (4):

(a)  effects on a person weighing 70 kilograms and drinking 2 liters of water per day over a lifetime; and

(b)  EPA's conclusions regarding the no observable effect level, including the margin of safety identified by EPA, when scientific data indicates oncogenic potential for the agricultural chemical and EPA has determined that a numerical risk assessment is not justified, is inappropriate, or does not serve as the primary toxicological basis for regulation.

(6)  Nothing in this section may interfere with the board's responsibility to adopt rules and standards under Title 75, chapter 6.

(2) In adopting ground water standards under 75-5-301 for agricultural chemicals that are toxic and noncarcinogenic, the board shall consider:

(a) the estimated amount of daily exposure to humans, including sensitive subpopulations, that is likely to be without appreciable risk of deleterious effect during a lifetime; and

(b) the application of that estimated amount to a person weighing 70 kilograms (an average adult) drinking 2 liters of water a day over a lifetime."

Section 5.  Section 80-15-212, MCA, is amended to read:

"80-15-212.   Specific agricultural chemical ground water management plans. (1) Except as provided in 80-15-216, the department shall develop and implement agricultural chemical ground water management plans specific to particular agricultural chemicals and to a defined geographical area:

(a)  when the level of an agricultural chemical found in ground water is at 50% of the standard or interim numerical standard at a point of standards application and is scientifically validated;

(b)  when a definite trend of increased presence of the agricultural chemical in ground water at a point of standards application is scientifically validated;

(c)  when agricultural chemicals have been determined to have migrated in the ground water from the point of detection;

(d)  when EPA proposes to suspend or cancel registration of an agricultural chemical, prohibits or restricts the chemical's sale or use in the state, or otherwise initiates action against a chemical because of ground water concerns and when EPA's action, restriction, or prohibition will be implemented unless the state develops an adequate management plan; or

(e)  when agricultural chemicals that possess or are suspected of possessing properties that indicate potential to migrate to ground water are being applied on areas underlaid by ground water that is vulnerable to impairment.

(2)  Any person using an agricultural chemical that is addressed by a specific agricultural chemical ground water management plan in the geographical region that is addressed by the plan shall comply with the plan. The department may specifically identify and designate persons who are under the plan and may inform any person about the plan.

(3)  The department shall prioritize preparation of specific agricultural chemical ground water management plans in consideration of the specific circumstances of each area and within available resources."

Section 6.  Section 80-15-403, MCA, is amended to read:

"80-15-403.   Compliance orders. (1) In furtherance of 80-15-402, the department may issue a compliance order to a person who violates a standard, an interim numerical standard, or any other requirement established pursuant to this chapter. The department shall coordinate its proposed actions pursuant to this section with proposed actions of the department of environmental quality pursuant to 75-5-613, if any. Issuance of a compliance order under this chapter precludes the department from taking other enforcement actions for the same violation under Title 80, chapter 8 or 10.

(2)  (a) The department may issue a compliance order to a person who violates any requirement established pursuant to this chapter. This subsection does not apply:

(i)  to commercial wood treatment facilities; or

(ii) when agricultural chemicals have caused or are likely to cause contamination of a public water supply system, as defined in 75-6-102.

(b)  The provisions of this subsection (2) are not intended to void or affect indemnity or liability agreements between the person who owns, leases, or has possession or control of the site and the person who sold the site, who is the lessor, or who has relinquished possession or control of the site.

(3)  When issuing a compliance order, the department may require a person who has violated a provision of 80-15-402 to conduct monitoring to assist in determining the presence or level of concentration of an agricultural chemical in ground water and the effectiveness of cleanup efforts. The department shall specify criteria in the compliance order for determining the duration of monitoring.

(4)  A compliance order must specify the requirement violated and must set a time for compliance. In establishing a time for compliance, the department shall take into account the seriousness of the violation and any good faith efforts that the person has made to comply with the requirement that has been violated. A compliance order issued under this section must be served either personally by a person qualified to perform service under the Montana Rules of Civil Procedure or by certified mail."

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