2003 Montana Legislature

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HOUSE BILL NO. 144

INTRODUCED BY HARRIS

BY REQUEST OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY


AN ACT REVISING CERTAIN UNDERGROUND STORAGE TANK LAWS; INCREASING THE TIME LIMIT FOR SUBMITTING CLEANUP EXPENSE REIMBURSEMENT REQUESTS; AMENDING DEFINITIONS; CHANGING THE ANNUAL TANK REGISTRATION FEES; REVISING REQUIREMENTS FOR COMPLIANCE INSPECTIONS AND PERMITS; AMENDING SECTIONS 75-11-307, 75-11-503, 75-11-505, AND 75-11-509, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE.

 

AN ACT REVISING CERTAIN UNDERGROUND STORAGE TANK LAWS; INCREASING THE TIME LIMIT FOR SUBMITTING CLEANUP EXPENSE REIMBURSEMENT REQUESTS; AMENDING DEFINITIONS; CHANGING THE ANNUAL TANK REGISTRATION FEES; REVISING REQUIREMENTS FOR COMPLIANCE INSPECTIONS AND PERMITS; AMENDING SECTIONS 75-11-307, 75-11-503, 75-11-505, AND 75-11-509, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

 

     Section 1.  Section 75-11-307, MCA, is amended to read:

     "75-11-307.  Reimbursement for expenses caused by a release. (1) Subject to the availability of money from the fund under subsection (5), an owner or operator who is eligible under 75-11-308 and who complies with 75-11-309 and any rules adopted to implement those sections must be reimbursed by the board from the fund for the following eligible costs caused by a release from a petroleum storage tank:

     (a)  corrective action costs as required by a department-approved corrective action plan, except if the corrective action plan addresses releases of substances other than petroleum products from an eligible petroleum storage tank, the board may reimburse only the costs that would have reasonably been incurred if the only release at the site was the release of the petroleum or petroleum products from the eligible petroleum storage tank; and

     (b)  compensation paid to third parties for bodily injury or property damage. The board may not reimburse for property damage until the corrective action is completed.

     (2)  An owner or operator may not be reimbursed from the fund for the following expenses:

     (a)  corrective action costs or the costs of bodily injury or property damage paid to third parties that are determined by the board to be ineligible for reimbursement;

     (b)  costs for bodily injury and property damage, other than corrective action costs, incurred by the owner or operator;

     (c)  penalties or payments for damages incurred under actions by the department, board, or federal, state, local, or tribal agencies or other government entities involving judicial or administrative enforcement activities and related negotiations;

     (d)  attorney fees and legal costs of the owner, the operator, or a third party;

     (e)  costs for the repair or replacement of a tank or piping or costs of other materials, equipment, or labor related to the operation, repair, or replacement of a tank or piping;

     (f)  expenses incurred before April 13, 1989, for owners or operators seeking reimbursement from the petroleum tank release cleanup fund and expenses incurred before May 15, 1991, for owners or operators seeking reimbursement from the petroleum tank release cleanup fund for a tank storing heating oil for consumptive use on the premises where it is stored or for a farm or residential tank with a capacity of 1,100 gallons or less that is used for storing motor fuel for noncommercial purposes;

     (g)  expenses exceeding the maximum reimbursements provided for in subsection (4); and

     (h)  expenses for work completed by or on behalf of the owner or operator more than 2 5 years prior to the owner's or operator's request for reimbursement. This limitation does not apply to claims for compensation paid to third parties for bodily injury or property damage. The running of the 5-year limitation period is suspended by an appeal of the board's denial of eligibility for reimbursement. If a written request for hearing is filed under 75-11-309, the suspension of the 5-year limitation period is effective from the date of the board's initial eligibility denial to the date on which the initial eligibility denial is overturned or reversed by the board, a district court, or the state supreme court, whichever occurs latest. The board may grant reasonable extensions of this limitation period if it is shown that the need for the extension is not due to the negligence of the owner or operator or agent of the owner or operator.

     (3)  An owner or operator may designate a person as an agent to receive the reimbursement if the owner or operator remains legally responsible for all costs and liabilities incurred as a result of the release.

     (4)  Subject to the availability of funds under subsection (5):

     (a)  for releases eligible for reimbursement from the petroleum tank release cleanup fund that are discovered and reported on or after April 13, 1989, from a tank storing heating oil for consumptive use on the premises where it is stored or from a farm or residential tank with a capacity of 1,100 gallons or less that is used for storing motor fuel for noncommercial purposes, the board shall reimburse an owner or operator for:

     (i)  50% of the first $10,000 of eligible costs and 100% of subsequent eligible costs, up to a maximum total reimbursement of $495,000:

     (A)  for single-walled tank system releases; and

     (B)  for double-walled tank system releases for which the release date was prior to October 1, 1993; or

     (ii) 100% of the eligible costs, up to a maximum total reimbursement of $500,000, for properly designed and installed double-walled tank system accidental releases that were discovered and reported on or after October 1, 1993; and

     (b)  for all other releases eligible for reimbursement from the petroleum tank release cleanup fund that are discovered and reported on or after April 13, 1989, the board shall reimburse an owner or operator for:

     (i)  50% of the first $35,000 of eligible costs and 100% of subsequent eligible costs, up to a maximum total reimbursement of $982,500:

     (A)  for single-walled tank system releases; and

     (B)  for double-walled tank system releases for which the release date was prior to October 1, 1993; or

     (ii) 100% of the eligible costs, up to a maximum total reimbursement of $1 million, for properly designed and installed double-walled tank system accidental releases that were discovered and reported on or after October 1, 1993.

     (5)  If the fund does not contain sufficient money to pay approved claims for eligible costs, a reimbursement may not be made and the fund and the board are not liable for making any reimbursement for the costs at that time. When the fund contains sufficient money, eligible costs must be reimbursed subsequently in the order in which they were approved by the board."

 

     Section 2.  Section 75-11-503, MCA, is amended to read:

     "75-11-503.  Definitions. Unless the context requires otherwise, in this part, the following definitions apply:

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

     (2)  "Department" means the department of environmental quality provided for in 2-15-3501.

     (3)  "Dispose" or "disposal" means the discharge, injection, deposit, dumping, spilling, leaking, or placing of any regulated substance into or onto the land or water so that the regulated substance or any constituent of the regulated substance may enter the environment or be emitted into the air or discharged into any waters, including ground water.

     (4)  "Person" means the United States, an individual, firm, trust, estate, partnership, company, association, corporation, city, town, local governmental entity, or any other governmental or private entity, whether organized for profit or not.

     (5)  "Regulated substance":

     (a)  means:

     (i)  a hazardous substance as defined in 75-10-602; or

     (ii) petroleum, including crude oil or any fraction of crude oil, that is liquid at standard conditions of temperature and pressure (60 degrees F and 14.7 pounds per square inch absolute);

     (b)  does not include a substance regulated as a hazardous waste under Title 75, chapter 10, part 4.

     (6)  "Storage" means the actual or intended containment of regulated substances, either on a temporary basis or for a period of years.

     (7)  "Underground storage tank" or "tank":

     (a)  means, except as provided in subsections (7)(b)(i) through (7)(b)(xi):

     (i)  any one or a combination of tanks used to contain a regulated substance, the volume of which is 10% or more beneath the surface of the ground; and

     (ii) any underground pipes used to contain or transport a regulated substance and connected to a storage tank, whether the storage tank is entirely above ground, partially above ground, or entirely under ground; and

     (iii) ancillary equipment designed to prevent, detect, or contain a release from an underground storage tank;

     (b)  does not include:

     (i)  a farm or residential tank that was installed as of April 27, 1995, that has a capacity of 1,100 gallons or less, and that is used for storing motor fuel for noncommercial purposes;

     (ii) a farm or residential tank that was installed as of April 27, 1995, that has a capacity of 1,100 gallons or less, and that is used for storing heating oil for consumptive use on the premises where it is stored;

     (iii) farm or residential underground pipes that were installed as of April 27, 1995, and that are used to contain or to transport motor fuels for noncommercial purposes or heating oil for consumptive use on the premises where it is stored from an aboveground storage tank with a capacity of 1,100 gallons or less;

     (iv) a septic tank;

     (v)  a pipeline facility, including gathering lines, regulated under:

     (A)  the Natural Gas Pipeline Safety Act of 1968, 49 U.S.C. 1671, et seq.;

     (B)  the Hazardous Liquid Pipeline Safety Act of 1979, 49 U.S.C. 2001, et seq.; or

     (C)  state law comparable to the provisions of law referred to in subsection (7)(b)(v)(A) or (7)(b)(v)(B), if the facility is intrastate;

     (vi) a surface impoundment, pit, pond, or lagoon;

     (vii) a storm water or wastewater collection system;

     (viii) a flow-through process tank;

     (ix) a liquid trap or associated gathering lines directly related to oil or gas production and gathering operations;

     (x)  a storage tank situated in an underground area, such as a basement, cellar, mine, draft, shaft, or tunnel, if the storage tank is situated upon or above the surface of the floor;

     (xi) any pipe connected to a tank described in subsections (7)(b)(i) through (7)(b)(ix); or

     (xii) underground pipes connected to an aboveground storage tank at a petroleum refinery that is subject to facility-wide facilitywide corrective action permit provisions under 75-10-406 or the federal Resource Conservation and Recovery Act of 1976, 42 U.S.C. 6901 through 6987, as amended."

 

     Section 3.  Section 75-11-505, MCA, is amended to read:

     "75-11-505.  Administrative rules. The department may adopt, amend, or repeal rules for the prevention and correction of leakage from underground storage tanks, including:

     (1)  reporting by owners and operators;

     (2)  financial responsibility;

     (3)  release detection, prevention, and corrective action;

     (4)  procedures and standards for the issuance, nonissuance, renewal, nonrenewal, modification, revocation, suspension, and enforcement of permits authorizing the operation of underground storage tanks;

     (5)  standards for design, construction, installation, and closure;

     (6)  development of a schedule of annual fees, not to exceed $70 for a tank over 1,100 gallons and not to exceed $20 for a tank 1,100 gallons or less, per tank, for tank registration, not to exceed $108 for a tank over 1,100 gallons and not to exceed $36 for a tank 1,100 gallons or less, for each tank, for tank registration to defray state and local costs of implementing an underground storage tank program. The department may prorate fees to cover periods not equal to 12 months in order to provide staggered scheduling of renewal dates.

     (7)  a penalty schedule and a system for assessment of administrative penalties, notice, and appeals under 75-11-525; and

     (8)  delegation of authority and funds to local agents for inspections and implementation. The delegation of authority to local agents must complement and may not duplicate existing authority for implementation of rules adopted by the department of justice that relate to underground storage tanks."

 

     Section 4.  Section 75-11-509, MCA, is amended to read:

     "75-11-509.  Inspections -- permits. (1) The owner or operator of an active underground storage tank must have the tank inspected for compliance with this part by January 1, 2002, and at least once every 3 years thereafter by an inspector who is licensed pursuant to Title 75, chapter 11, part 2, to perform underground storage tank inspections. The inspector may not be:

     (a)  the owner or operator of the tank;

     (b)  an employee of the owner or operator; or

     (c)  for the first inspection required by this subsection (1) and for a period of 3 years after the installation or modification of the tank was completed, the installer who installed or modified the tank and whose name or signature was on the permit required by 75-11-212.

     (2) The owner or operator of an inactive underground storage tank shall comply with requirements for testing, inspection, recordkeeping, and reporting provided in rules adopted pursuant to this part.

     (3) The department may by rule authorize temporary permits for the installation, testing, and operation of underground storage tanks. The requirements in subsection (8) for a 3-year permit term and for permit issuance only after inspection by a licensed inspector do not apply to temporary permits.

     (2)(4)  The department shall by rule provide:

     (a) requirements for the scope and timing of inspections.; and

     (b) requirements for testing, inspection, recordkeeping, and reporting for inactive tanks to ensure that these tanks do not pose a threat to public health, safety, or the environment while inactive or upon their return to active status.

     (3)(5)  The inspector shall provide the owner or operator with an inspection report that meets the requirements of rules adopted by the department to ensure compliance with this part and rules adopted pursuant to this part.

     (4)(6)  The owner or operator shall retain the original inspection report and mail a copy to the department.

     (5)(7)  If the inspection report indicates violations, the owner or operator shall correct the violations and obtain a followup inspection. Followup inspection reports must be provided to the owner or operator and to the department.

     (6)(8)  A person may not place a regulated substance in an underground storage tank unless the owner or operator has been issued a valid permit from the department for the tank. Permits must be issued for a term of 3 years. The department may not issue or renew a permit unless the owner or operator has filed with the department an inspection report by a licensed inspector. who certifies that Except as provided in subsection (9), prior to issuing or renewing a permit, the department shall determine, on the basis of the inspection report and other relevant information, that the operation and maintenance of the tank was in compliance with this part and rules adopted pursuant to this part on the date of inspection.

     (9) The department may issue and renew permits for tanks that are not in full compliance with the operation and maintenance requirements of this part and rules adopted pursuant to this part only if the department requires, in a compliance order issued pursuant to 75-11-512 or 75-11-525, that the noncompliance be corrected at the earliest practicable time. The department may also take other enforcement actions, including actions for penalties under this chapter, and may pursue any other remedy available to the department to address noncompliance with this part or with rules, permits, or orders issued pursuant to this part.

     (10) The department may determine to not issue or not renew a permit for a tank if the department finds that there has been significant noncompliance with this part or with rules, permits, or orders issued pursuant to this part. If the department proposes to not issue or not renew a permit, it must have a written notice letter served personally or by certified mail on the owner or operator informing the owner or operator of the reason for the action. The owner or operator may request a hearing before the board. The hearing request must be in writing and must be filed with the board no later than 30 days after the service of the notice letter. The contested case provisions of the Montana Administrative Procedure Act, provided for in Title 2, chapter 4, part 6, apply to a hearing conducted under this section."

 

     Section 5.  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 6.  Effective date. [This act] is effective on passage and approval.

 

     Section 7.  Applicability. [Section 1] applies to all claims for reimbursement of expenses on file with the department of environmental quality on [the effective date of this act].

- END -

 


Latest Version of HB 144 (HB0144.ENR)
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