2017 Montana Legislature

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SENATE BILL NO. 337

INTRODUCED BY D. ANKNEY

 

AN ACT ELIMINATING THE BOARD OF ENVIRONMENTAL REVIEW; REASSIGNING DUTIES AND POWERS OF THE BOARD OF ENVIRONMENTAL REVIEW; TRANSFERRING RULEMAKING AUTHORITY; AMENDING SECTIONS 7-13-4502, 7-13-4513, 7-13-4517, 15-24-3001, 37-42-102, 37-42-321, 50-2-116, 50-79-401, 50-79-403, 75-1-220, 75-1-1001, 75-2-103, 75-2-104, 75-2-105, 75-2-112, 75-2-201, 75-2-202, 75-2-203, 75-2-204, 75-2-206, 75-2-207, 75-2-211, 75-2-212, 75-2-213, 75-2-215, 75-2-217, 75-2-218, 75-2-219, 75-2-220, 75-2-221, 75-2-231, 75-2-234, 75-2-301, 75-2-302, 75-2-401, 75-2-402, 75-2-411, 75-2-421, 75-2-422, 75-2-425, 75-2-426, 75-2-428, 75-2-515, 75-5-103, 75-5-105, 75-5-106, 75-5-201, 75-5-202, 75-5-203, 75-5-222, 75-5-301, 75-5-302, 75-5-303, 75-5-304, 75-5-305, 75-5-307, 75-5-308, 75-5-310, 75-5-311, 75-5-312, 75-5-313, 75-5-314, 75-5-315, 75-5-316, 75-5-318, 75-5-401, 75-5-402, 75-5-403, 75-5-404, 75-5-502, 75-5-514, 75-5-515, 75-5-516, 75-5-611, 75-5-614, 75-5-621, 75-5-641, 75-5-702, 75-5-802, 75-6-102, 75-6-104, 75-6-105, 75-6-106, 75-6-107, 75-6-108, 75-6-109, 75-6-112, 75-6-113, 75-6-116, 75-6-121, 75-6-131, 75-10-103, 75-10-104, 75-10-112, 75-10-115, 75-10-203, 75-10-206, 75-10-221, 75-10-223, 75-10-224, 75-10-227, 75-10-403, 75-10-406, 75-10-408, 75-10-409, 75-10-413, 75-10-414, 75-10-417, 75-10-418, 75-10-424, 75-10-501, 75-10-515, 75-10-540, 75-10-714, 75-10-727, 75-10-732, 75-10-736, 75-10-1201, 75-10-1221, 75-10-1222, 75-11-203, 75-11-211, 75-11-218, 75-11-219, 75-11-223, 75-11-224, 75-11-503, 75-11-505, 75-11-508, 75-11-509, 75-11-512, 75-11-513, 75-11-516, 75-11-525, 75-20-104, 75-20-105, 75-20-201, 75-20-207, 75-20-208, 75-20-211, 75-20-215, 75-20-216, 75-20-219, 75-20-223, 75-20-301, 75-20-303, 75-20-304, 75-20-401, 75-20-406, 75-20-407, 75-20-410, 75-20-411, 75-20-1001, 75-20-1202, 75-20-1203, 75-20-1205, 76-3-622, 76-4-102, 76-4-108, 76-4-126, 76-4-1001, 80-15-102, 80-15-105, 80-15-110, 80-15-201, 82-4-102, 82-4-103, 82-4-112, 82-4-123, 82-4-129, 82-4-130, 82-4-203, 82-4-205, 82-4-206, 82-4-207, 82-4-223, 82-4-226, 82-4-227, 82-4-231, 82-4-232, 82-4-234, 82-4-235, 82-4-239, 82-4-251, 82-4-254, 82-4-303, 82-4-304, 82-4-305, 82-4-309, 82-4-321, 82-4-332, 82-4-335, 82-4-338, 82-4-339, 82-4-342, 82-4-353, 82-4-361, 82-4-362, 82-4-371, 82-4-403, 82-4-406, 82-4-422, 82-4-427, 82-4-437, 82-4-441, 82-4-442, 82-4-445, 82-4-1001, 82-15-102, AND 82-15-120, MCA; AND REPEALING SECTIONS 2-15-3502, 75-2-111, 75-6-103, 75-10-106, 82-4-111, AND 82-4-204, MCA.

 

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

 

     Section 1.  Section 7-13-4502, MCA, is amended to read:

     "7-13-4502.  Definitions. As used in this part, unless the context indicates otherwise, the following definitions apply:

     (1)  "Board of directors" means the board of directors provided for in 7-13-4516 or a joint board of directors provided for in 7-13-4527.

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

     (3)(2)  "Commissioners" means the board of county commissioners or the governing body of a city-county consolidated government.

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

     (4)  "Family residential unit" means a single-family dwelling.

     (5)  "Fee-assessed units" means all real property with improvements, including taxable and tax-exempt property as shown on the property assessment records maintained by the county, and mobile homes and manufactured homes as defined in 15-24-201.

     (6)  "Local water quality district" means an area established with definite boundaries for the purpose of protecting, preserving, and improving the quality of surface water and ground water in the district as authorized by this part."

 

     Section 2.  Section 7-13-4513, MCA, is amended to read:

     "7-13-4513.  Insufficient protest to bar proceedings -- resolution creating district -- power to implement local water quality program. (1) The commissioners may create a local water quality district, establish fees, and appoint a board of directors if the commissioners find that insufficient protests have been made in accordance with 7-13-4511 or if the registered voters who reside in the proposed district have approved a referendum as provided in 7-13-4512.

     (2)  To create a local water quality district, the commissioners shall pass a resolution in accordance with the resolution of intention introduced and passed by the commissioners or in accordance with the terms of the referendum.

     (3)  The commissioners and board of directors may implement a local water quality program after the program is approved by the board of environmental review department pursuant to 75-5-311."

 

     Section 3.  Section 7-13-4517, MCA, is amended to read:

     "7-13-4517.  Powers and duties of board of directors. The board of directors of a local water quality district, with the approval of the commissioners, may:

     (1)  develop a local water quality program, to be submitted to the board of environmental review department, for the protection, preservation, and improvement of the quality of surface water and ground water in the district. In developing the program, the board of directors shall consult with the board or boards of supervisors of conservation districts, established as provided in 76-15-201, whose geographical area of jurisdiction is included within the boundaries of the local water quality district.

     (2)  implement a local water quality program;

     (3)  administer the budget of the local water quality district;

     (4)  employ personnel;

     (5)  purchase, rent, or lease equipment and material necessary to develop and implement an effective program;

     (6)  cooperate or contract with any corporation, association, individual, or group of individuals, including any agency of the federal, state, or local government, in order to develop and implement an effective program;

     (7)  receive gifts, grants, or donations for the purpose of advancing the program and acquire, by gift, deed, or purchase, land necessary to implement the local water quality program;

     (8)  administer local ordinances that are adopted by the commissioners and governing bodies of the participating cities and towns and that pertain to the protection, preservation, and improvement of the quality of surface water and ground water;

     (9)  apply for and receive from the federal government or the state government, on behalf of the local water quality district, money to aid the local water quality program;

     (10) borrow money for assistance in planning or refinancing a local water quality district and repay loans with the money received from the established fees; and

     (11) construct facilities that cost not more than $5,000 and maintain facilities necessary to accomplish the purposes of the district, including but not limited to facilities for removal of water-borne contaminants; water quality improvement; sanitary sewage collection, disposal, and treatment; and storm water or surface water drainage collection, disposal, and treatment."

 

     Section 4.  Section 15-24-3001, MCA, is amended to read:

     "15-24-3001.  Electrical generation and transmission facility exemption -- definitions. (1) (a) Except as provided in subsections (1)(b) and (3), an electrical generation facility and related delivery facilities constructed in the state of Montana after May 5, 2001, and before January 1, 2006, may be exempt from property taxation for a 10-year period beginning on the date that an owner or operator of an electrical generation facility and related delivery facilities commences to construct the facility as defined in 75-20-104(6)(a) and (6)(b) 75-20-104(5)(a) and (5)(b). In order to be exempt from property taxation, an owner and operator of an electrical generation facility and related delivery facilities shall offer contracts to sell 50% of that facility's net generating output at a cost-based rate, which includes a rate of return not to exceed 12%, to customers for a 20-year period from the date of the facility's completion.

     (b)  The property tax exemption allowed under subsection (1)(a) is limited to a 5-year period for generation facilities powered by oil or gas turbines.

     (2)  To the extent that 50% of the net generating output of the facility is not contracted for delivery to consumers for a contract term extending 5 years to 20 years from the completion of the facility, as determined by the owner, surplus capacity must be offered on a declining contract term basis for the remainder of the contract period at a cost-based rate that includes a rate of return not to exceed 12%. Surplus capacity that is not contracted for in this fashion may be sold at market rates.

     (3)  (a) Except as provided in subsection (3)(c), if an owner or operator of property exempt from taxation under subsection (1)(a) signs a contract to sell power as required in subsection (1) and then fails to perform the contract during the first 10-year period, the 10-year property tax exemption in subsection (1) is void and the property is subject to a rollback tax as provided in 15-24-3002.

     (b)  Except as provided in subsection (3)(c), if an owner or operator of property exempt from taxation under subsection (1)(b) signs a contract to sell power as required in subsection (1) and then fails to perform the contract during the first 5-year period, the 5-year property tax exemption in subsection (1) is void and the property is subject to a rollback tax as provided in 15-24-3002.

     (c)  If an owner or operator fails to perform the contract due to earthquakes or other acts of God, theft, sabotage, acts of war, other social instabilities, or equipment failure, the property tax exemption in subsection (1)(a) or (1)(b) is not void and the owner or operator is not subject to the rollback tax as provided in 15-24-3002.

     (4)  For the purposes of this section, the following definitions apply:

     (a)  (i) "Electrical generation facility" means any combination of a physically connected generator or generators, associated prime movers, and other associated property, including appurtenant land and improvements and personal property, that are normally operated together to produce 20 average megawatts or more of electric power. The term is limited to generating facilities that produce electricity from coal-fired steam turbines, oil or gas turbines, or turbine generators that are driven by falling water.

     (ii) The term does not include:

     (A)  electrical generation facilities used for noncommercial purposes or exclusively for agricultural purposes; or

     (B)  a qualifying small power production facility, as that term is defined in 16 U.S.C. 796(17), that is owned and operated by a person not primarily engaged in the generation or sale of electricity other than electric power from a small power production facility and that is classified under 15-6-134 and 15-6-138.

     (b)  "Related delivery facilities" means transmission facilities necessary to deliver the energy from the electrical generation facility to the existing network transmission system.

     (c)  "Surplus capacity" means that portion of the 50% of net generating output not contracted for use.

     (5)  The department shall appraise exempt electrical generation facilities for each year that the property is exempt and determine the taxable value of the property as if it were subject to property taxation."

 

     Section 5.  Section 37-42-102, MCA, is amended to read:

     "37-42-102.  Definitions. Unless the context requires otherwise, in this chapter, the following definitions apply:

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

     (2)(1)  "Certificate" means a certificate of competency issued by the department, stating that the operator holding the certificate has met the requirements for the specified operator classification of the certification program.

     (3)(2)  "Community water system" means a public water supply system that serves at least 15 service connections used by year-round residents or that regularly serves at least 25 year-round residents.

     (4)(3)  "Council" means the water and wastewater operators' advisory council provided for in 2-15-2105.

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

     (6)(5)  "Industrial waste" means any waste substance from the processes of business or industry or from the development of a natural resource, together with any sewage that may be present.

     (7)(6)  "Industrial waste discharge system" means a system that discharges industrial waste into state waters.

     (8)(7)  "Nontransient noncommunity water system" means a public water system, as defined in 75-6-202, that is not a community system and that regularly serves at least 25 of the same persons for at least 6 months a year.

     (9)(8)  "Operator" means the person in direct responsible charge of the operation of a water treatment plant, water distribution system, or wastewater treatment plant.

     (10)(9) "State waters" means the term as defined in 75-6-102.

     (11)(10) "Wastewater treatment plant" means a facility that:

     (a)  is designed to remove solids, bacteria, or other harmful constituents of sewage, industrial waste, or other wastes; and

     (b)  is part of either an industrial waste discharge system or a public sewage system as defined in 75-6-102.

     (12)(11) "Water distribution system" means that portion of the water supply system that conveys water from the water treatment plant or other supply source to the premises of the consumer and that is part of a community water system or a nontransient noncommunity water system.

     (13)(12) "Water supply system" means a system of pipes, structures, and facilities through which water is obtained, treated, sold, distributed, or otherwise offered to the public for household use or use by humans and that is part of a community water system or a nontransient noncommunity water system.

     (14)(13) "Water treatment plant" means that portion of the water supply system that alters either the physical, chemical, or bacteriological quality of the water and renders it safe and palatable for human use."

 

     Section 6.  Section 37-42-321, MCA, is amended to read:

     "37-42-321.  Revocation of operator's certificate -- disciplinary action by department. (1) The department may issue an order revoking the certificate of an operator when the department finds that:

     (a)  the operator has practiced fraud or deception;

     (b)  reasonable care, judgment, or the application of the operator's knowledge or ability was not used in the performance of the operator's duties; or

     (c)  the operator is incompetent or unable to properly perform the operator's duties.

     (2)  The department may issue an order taking any disciplinary action listed in 37-1-136.

     (3)  A person aggrieved by an order of the department under this section may request a hearing before the board department by submitting a written request stating the reason for the request within 30 days after receipt of the department's decision.

     (4)  The contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to a hearing held under this section."

 

     Section 7.  Section 50-2-116, MCA, is amended to read:

     "50-2-116.  Powers and duties of local boards of health. (1) In order to carry out the purposes of the public health system, in collaboration with federal, state, and local partners, each local board of health shall:

     (a)  appoint and fix the salary of a local health officer who is:

     (i)  a physician;

     (ii) a person with a master's degree in public health; or

     (iii) a person with equivalent education and experience, as determined by the department;

     (b)  elect a presiding officer and other necessary officers;

     (c)  employ qualified staff;

     (d)  adopt bylaws to govern meetings;

     (e)  hold regular meetings at least quarterly and hold special meetings as necessary;

     (f)  identify, assess, prevent, and ameliorate conditions of public health importance through:

     (i)  epidemiological tracking and investigation;

     (ii) screening and testing;

     (iii) isolation and quarantine measures;

     (iv) diagnosis, treatment, and case management;

     (v)  abatement of public health nuisances;

     (vi) inspections;

     (vii) collecting and maintaining health information;

     (viii) education and training of health professionals; or

     (ix) other public health measures as allowed by law;

     (g)  protect the public from the introduction and spread of communicable disease or other conditions of public health importance, including through actions to ensure the removal of filth or other contaminants that might cause disease or adversely affect public health;

     (h)  supervise or make inspections for conditions of public health importance and issue written orders for compliance or for correction, destruction, or removal of the conditions;

     (i)  bring and pursue actions and issue orders necessary to abate, restrain, or prosecute the violation of public health laws, rules, and local regulations;

     (j)  identify to the department an administrative liaison for public health. The liaison must be the local health officer in jurisdictions that employ a full-time local health officer. In jurisdictions that do not employ a full-time local health officer, the liaison must be the highest ranking public health professional employed by the jurisdiction.

     (k)  subject to the provisions of 50-2-130, adopt necessary regulations that are not less stringent than state standards for the control and disposal of sewage from private and public buildings and facilities that are not regulated by Title 75, chapter 6, or Title 76, chapter 4. The regulations must describe standards for granting variances from the minimum requirements that are identical to standards promulgated by the board of environmental review department of environmental quality and must provide for appeal of variance decisions to the department of environmental quality as required by 75-5-305. If the local board of health regulates or permits water well drilling, the regulations must prohibit the drilling of a well if the well isolation zone, as defined in 76-4-102, encroaches onto adjacent private property without the authorization of the private property owner.

     (2)  Local boards of health may:

     (a)  accept and spend funds received from a federal agency, the state, a school district, or other persons or entities;

     (b)  adopt necessary fees to administer regulations for the control and disposal of sewage from private and public buildings and facilities;

     (c)  adopt regulations that do not conflict with rules adopted by the department:

     (i)  for the control of communicable diseases;

     (ii) for the removal of filth that might cause disease or adversely affect public health;

     (iii) subject to the provisions of 50-2-130, for sanitation in public and private buildings and facilities that affects public health and for the maintenance of sewage treatment systems that do not discharge effluent directly into state water and that are not required to have an operating permit as required by rules adopted under 75-5-401;

     (iv) subject to the provisions of 50-2-130 and Title 50, chapter 48, for tattooing and body-piercing establishments and that are not less stringent than state standards for tattooing and body-piercing establishments;

     (v)  for the establishment of institutional controls that have been selected or approved by the:

     (A)  United States environmental protection agency as part of a remedy for a facility under the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. 9601, et seq.; or

     (B)  department of environmental quality as part of a remedy for a facility under the Montana Comprehensive Environmental Cleanup and Responsibility Act, Title 75, chapter 10, part 7; and

     (vi) to implement the public health laws; and

     (d)  promote cooperation and formal collaborative agreements between the local board of health and tribes, tribal organizations, and the Indian health service regarding public health planning, priority setting, information and data sharing, reporting, resource allocation, service delivery, jurisdiction, and other matters addressed in this title.

     (3)  A local board of health may provide, implement, facilitate, or encourage other public health services and functions as considered reasonable and necessary."

 

     Section 8.  Section 50-79-401, MCA, is amended to read:

     "50-79-401.  Administrative hearings. In a proceeding under this chapter for granting, suspending, revoking, or amending a license or for determining compliance with or granting exceptions from rules adopted under this chapter, the board of environmental review department of environmental quality shall first afford an opportunity for a hearing on the record upon the request of a person whose interest may be affected by the proceeding and shall admit the person as a party to the proceeding."

 

     Section 9.  Section 50-79-403, MCA, is amended to read:

     "50-79-403.  Emergency orders and rules. When the department finds that an emergency exists requiring immediate action to protect the public health and safety, the department may, without notice or hearing, issue a rule or order reciting the existence of the emergency and requiring that such action be taken as considered necessary to meet the emergency. Notwithstanding any provision of this chapter to the contrary, the rule or order is effective immediately. A person to whom the rule or order is directed shall comply with it immediately but on application to the board shall department of environmental quality must be afforded a prompt hearing. On the basis of the hearing the emergency rule or order shall must be continued, modified, or revoked by the board department of environmental quality within 30 days after the hearing or when the emergency no longer exists."

 

     Section 10.  Section 75-1-220, MCA, is amended to read:

     "75-1-220.  Definitions. For the purposes of this part, the following definitions apply:

     (1)  "Alternatives analysis" means an evaluation of different parameters, mitigation measures, or control measures that would accomplish the same objectives as those included in the proposed action by the applicant. For a project that is not a state-sponsored project, it does not include an alternative facility or an alternative to the proposed project itself. The term includes alternatives required pursuant to Title 75, chapter 20.

     (2)  "Appropriate board" means, for administrative actions taken under this part by the:

     (a)  department of environmental quality, the board of environmental review department of environmental quality, as provided for in 2-15-3502 2-15-3501;

     (b)  department of fish, wildlife, and parks, the fish and wildlife commission, as provided for in 2-15-3402, and the state parks and recreation board, as provided for in 2-15-3406;

     (c)  department of transportation, the transportation commission, as provided for in 2-15-2502;

     (d)  department of natural resources and conservation for state trust land issues, the board of land commissioners, as provided for in Article X, section 4, of the Montana constitution;

     (e)  department of natural resources and conservation for oil and gas issues, the board of oil and gas conservation, as provided for in 2-15-3303; and

     (f)  department of livestock, the board of livestock, as provided for in 2-15-3102.

     (3)  "Complete application" means, for the purpose of complying with this part, an application for a permit, license, or other authorization that contains all data, studies, plans, information, forms, fees, and signatures required to be included with the application sufficient for the agency to approve the application under the applicable statutes and rules.

     (4)  "Cumulative impacts" means the collective impacts on the human environment within the borders of Montana of the proposed action when considered in conjunction with other past, present, and future actions related to the proposed action by location or generic type.

     (5)  "Environmental review" means any environmental assessment, environmental impact statement, or other written analysis required under this part by a state agency of a proposed action to determine, examine, or document the effects and impacts of the proposed action on the quality of the human and physical environment within the borders of Montana as required under this part.

     (6)  "Project sponsor" means any applicant, owner, operator, agency, or other entity that is proposing an action that requires an environmental review. If the action involves state agency-initiated actions on state trust lands, the term also includes each institutional beneficiary of any trust as described in The Enabling Act of Congress, approved February 22, 1899, 25 Stat. 676, as amended, the Morrill Act of 1862, 7 U.S.C. 301 through 308, and the Morrill Act of 1890, 7 U.S.C. 321 through 329.

     (7)  "Public scoping process" means any process to determine the scope of an environmental review.

     (8)  (a) "State-sponsored project" means:

     (i)  a project, program, or activity initiated and directly undertaken by a state agency;

     (ii) except as provided in subsection (8)(b)(i), a project or activity supported through a contract, grant, subsidy, loan, or other form of funding assistance from a state agency, either singly or in combination with one or more other state agencies; or

     (iii) except as provided in subsection (8)(b)(i), a project or activity authorized by a state agency acting in a land management capacity for a lease, easement, license, or other authorization to act.

     (b)  The term does not include:

     (i)  a project or activity undertaken by a private entity that is made possible by the issuance of permits, licenses, leases, easements, grants, loans, or other authorizations to act by the:

     (A)  department of environmental quality pursuant to Titles 75, 76, or 82;

     (B)  department of fish, wildlife, and parks pursuant to Title 87, chapter 4, part 4;

     (C)  board of oil and gas conservation pursuant to Title 82, chapter 11; or

     (D)  department of natural resources and conservation or the board of land commissioners pursuant to Titles 76, 77, 82, and 85; or

     (ii) a project or activity involving the issuance of a permit, license, certificate, or other entitlement for permission to act by another agency acting in a regulatory capacity, either singly or in combination with other state agencies."

 

     Section 11.  Section 75-1-1001, MCA, is amended to read:

     "75-1-1001.  Penalty factors. (1) In determining the amount of an administrative or civil penalty to which subsection (4) applies, the department of environmental quality or the district court, as appropriate, shall take into account the following factors:

     (a)  the nature, extent, and gravity of the violation;

     (b)  the circumstances of the violation;

     (c)  the violator's prior history of any violation, which:

     (i)  must be a violation of a requirement under the authority of the same chapter and part as the violation for which the penalty is being assessed;

     (ii) must be documented in an administrative order or a judicial order or judgment issued within 3 years prior to the date of the occurrence of the violation for which the penalty is being assessed; and

     (iii) may not, at the time that the penalty is being assessed, be undergoing or subject to administrative appeal or judicial review;

     (d)  the economic benefit or savings resulting from the violator's action;

     (e)  the violator's good faith and cooperation;

     (f)  the amounts voluntarily expended by the violator, beyond what is required by law or order, to address or mitigate the violation or impacts of the violation; and

     (g)  other matters that justice may require.

     (2)  After the amount of a penalty is determined under subsection (1), the department of environmental quality or the district court, as appropriate, may consider the violator's financial ability to pay the penalty and may institute a payment schedule or suspend all or a portion of the penalty.

     (3)  The department of environmental quality may accept a supplemental environmental project as mitigation for a portion of the penalty. For purposes of this section, a "supplemental environmental project" is an environmentally beneficial project that a violator agrees to undertake in settlement of an enforcement action but which the violator is not otherwise legally required to perform.

     (4)  This section applies to penalties assessed by the department of environmental quality or the district court under Title 75, chapters 2, 5, 6, 11, and 20; Title 75, chapter 10, parts 2, 4, 5, and 12; and Title 76, chapter 4.

     (5)  The board of environmental review and the department of environmental quality may, for the statutes listed in subsection (4) for which each has rulemaking authority, adopt rules to implement this section."

 

     Section 12.  Section 75-2-103, MCA, is amended to read:

     "75-2-103.  Definitions. Unless the context requires otherwise, in this chapter, the following definitions apply:

     (1)  "Air contaminant" means dust, fumes, mist, smoke, other particulate matter, vapor, gas, odorous substances, or any combination of those air contaminants.

     (2)  "Air pollutants" means one or more air contaminants that are present in the outdoor atmosphere, including those pollutants regulated pursuant to section 7412 and Subchapter V of the federal Clean Air Act, 42 U.S.C. 7401, et seq.

     (3)  "Air pollution" means the presence of air pollutants in a quantity and for a duration that are or tend to be injurious to human health or welfare, animal or plant life, or property or that would unreasonably interfere with the enjoyment of life, property, or the conduct of business.

     (4)  "Associated supporting infrastructure" means:

     (a)  electric transmission and distribution facilities;

     (b)  pipeline facilities;

     (c)  aboveground ponds and reservoirs and underground storage reservoirs;

     (d)  rail transportation;

     (e)  aqueducts and diversion dams;

     (f)  devices or equipment associated with the delivery of an energy form or product produced at an energy development project; or

     (g)  other supporting infrastructure, as defined by board rule, that is necessary for an energy development project.

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

     (6)(5)  (a) "Commercial hazardous waste incinerator" means:

     (i)  an incinerator that burns hazardous waste; or

     (ii) a boiler or industrial furnace subject to the provisions of 75-10-406.

     (b)  Commercial hazardous waste incinerator does not include a research and development facility that receives federal or state research funds and that burns hazardous waste primarily to test and evaluate waste treatment remediation technologies.

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

     (8)(7)  "Emission" means a release into the outdoor atmosphere of air contaminants.

     (9)(8)  (a) "Energy development project" means each plant, unit, or other development and associated developments, including any associated supporting infrastructure, designed for or capable of:

     (i)  generating electricity;

     (ii) producing gas derived from coal;

     (iii) producing liquid hydrocarbon products;

     (iv) refining crude oil or natural gas;

     (v)  producing alcohol to be blended for ethanol-blended gasoline and that are eligible for a tax incentive pursuant to Title 15, chapter 70, part 5;

     (vi) producing biodiesel and that are eligible for a tax incentive for the production of biodiesel pursuant to 15-32-701; or

     (vii) transmitting electricity through an electric transmission line with a design capacity of equal to or greater than 50 kilovolts.

     (b)  The term does not include a nuclear facility as defined in 75-20-1202.

     (10)(9) "Environmental protection law" means a law contained in or an administrative rule adopted pursuant to Title 75, chapter 2, 5, 10, or 11.

     (11)(10) "Hazardous waste" means:

     (a)  a substance defined as hazardous under 75-10-403 or defined as hazardous in department administrative rules adopted pursuant to Title 75, chapter 10, part 4; or

     (b)  a waste containing 2 parts or more per million of polychlorinated biphenyl (PCB).

     (12)(11) (a) "Incinerator" means any single- or multiple-chambered combustion device that burns combustible material, alone or with a supplemental fuel or with catalytic combustion assistance, primarily for the purpose of removal, destruction, disposal, or volume reduction of any portion of the input material.

     (b)  Incinerator does not include:

     (i)  safety flares used to combust or dispose of hazardous or toxic gases at industrial facilities, such as refineries, gas sweetening plants, oil and gas wells, sulfur recovery plants, or elemental phosphorus plants;

     (ii) space heaters that burn used oil;

     (iii) wood-fired boilers; or

     (iv) wood waste burners, such as tepee, wigwam, truncated cone, or silo burners.

     (13)(12) "Medical waste" means any waste that is generated in the diagnosis, treatment, or immunization of human beings or animals, in medical research on humans or animals, or in the production or testing of biologicals. The term includes:

     (a)  cultures and stocks of infectious agents;

     (b)  human pathological wastes;

     (c)  waste human blood or products of human blood;

     (d)  sharps;

     (e)  contaminated animal carcasses, body parts, and bedding that were known to have been exposed to infectious agents during research;

     (f)  laboratory wastes and wastes from autopsy or surgery that were in contact with infectious agents; and

     (g)  biological waste and discarded material contaminated with blood, excretion, exudates, or secretions from humans or animals.

     (14)(13) (a) "Oil or gas well facility" means a well that produces oil or natural gas. The term includes:

     (i)  equipment associated with the well and used for the purpose of producing, treating, separating, or storing oil, natural gas, or other liquids produced by the well; and

     (ii) a group of wells under common ownership or control that produce oil or natural gas and that share common equipment used for the purpose of producing, treating, separating, or storing oil, natural gas, or other liquids produced by the wells.

     (b)  The equipment referred to in subsection (15)(a) (13)(a) includes but is not limited to wellhead assemblies, amine units, prime mover engines, phase separators, heater treater units, dehydrator units, tanks, and connecting tubing.

     (c)  The term does not include equipment such as compressor engines used for transmission of oil or natural gas.

     (15)(14) "Person" means an individual, a partnership, a firm, an association, a municipality, a public or private corporation, the state or a subdivision or agency of the state, a trust, an estate, an interstate body, the federal government or an agency of the federal government, or any other legal entity and includes persons resident in Canada.

     (16)(15) "Principal" means a principal of a corporation, including but not limited to a partner, associate, officer, parent corporation, or subsidiary corporation.

     (17)(16) "Small business stationary source" means a stationary source that:

     (a)  is owned or operated by a person who employs 100 or fewer individuals;

     (b)  is a small business concern as defined in the Small Business Act, 15 U.S.C. 631, et seq.;

     (c)  is not a major stationary source as defined in Subchapter V of the federal Clean Air Act, 42 U.S.C. 7661, et seq.;

     (d)  emits less than 50 tons per year of an air pollutant;

     (e)  emits less than a total of 75 tons per year of all air pollutants combined; and

     (f)  is not excluded from this definition under 75-2-108(3).

     (18)(17) (a) "Solid waste" means all putrescible and nonputrescible solid, semisolid, liquid, or gaseous wastes, including but not limited to garbage; rubbish; refuse; ashes; swill; food wastes; commercial or industrial wastes; medical waste; sludge from sewage treatment plants, water supply treatment plants, or air pollution control facilities; construction, demolition, or salvage wastes; dead animals, dead animal parts, offal, animal droppings, or litter; discarded home and industrial appliances; automobile bodies, tires, interiors, or parts thereof; wood products or wood byproducts and inert materials; styrofoam and other plastics; rubber materials; asphalt shingles; tarpaper; electrical equipment, transformers, or insulated wire; oil or petroleum products or oil or petroleum products and inert materials; treated lumber and timbers; and pathogenic or infectious waste.

     (b)  Solid waste does not include municipal sewage, industrial wastewater effluents, mining wastes regulated under the mining and reclamation laws administered by the department of environmental quality, or slash and forest debris regulated under laws administered by the department of natural resources and conservation."

 

     Section 13.  Section 75-2-104, MCA, is amended to read:

     "75-2-104.  Limitations -- personal cause of action unabridged -- venue. (1) This chapter may not be construed to:

     (a)  grant to the board department any jurisdiction or authority with respect to air contamination existing solely within commercial and industrial plants, works, or shops;

     (b)  affect the relations between employers and employees with respect to or arising out of any condition of air contamination or air pollution;

     (c)  supersede or limit the applicability of any law or ordinance relating to sanitation, industrial health, or safety; or

     (d)  abridge, limit, impair, create, enlarge, or otherwise affect substantively or procedurally the right of a person to damages or other relief on account of injury to persons or property and to maintain an action or other appropriate proceeding.

     (2)  A judicial challenge to a permit issued pursuant to this chapter by a party other than the permit applicant or permitholder must include the party to whom the permit was issued unless otherwise agreed to by the permit applicant or permitholder. All judicial challenges of permits for projects with a project cost, as determined by the court, of more than $1 million must have precedence over any civil cause of a different nature pending in that court. If the court determines that the challenge was without merit or was for an improper purpose, such as to harass, to cause unnecessary delay, or to impose needless or increased cost in litigation, the court may award attorney fees and costs incurred in defending the action.

     (3)  An action to challenge a permit decision pursuant to this chapter must be brought in the county in which the permitted activity will occur. If an activity will occur in more than one county, the action may be brought in any of the counties in which the activity will occur.

     (4)  A judicial action or proceeding pursuant to this chapter for an equine slaughter or processing facility must comply with 81-9-240 and 81-9-241."

 

     Section 14.  Section 75-2-105, MCA, is amended to read:

     "75-2-105.  Confidentiality of records. (1) Records or other information concerning air pollutant sources that are furnished to or obtained by the board or department are a matter of public record and open to public use. However, any information unique to the owner or operator of an air pollutant source that would, if disclosed, reveal methods or processes entitled to protection as trade secrets must be maintained as confidential if so determined by a court of competent jurisdiction. The owner or operator shall file a declaratory judgment action to establish the existence of a trade secret if the owner or operator wishes the information to enjoy confidential status. The department must be served in the action and may intervene as a party in the action. A trade secret not intended to be public when submitted to the board or department must be submitted in writing and clearly marked as confidential. However, emission data and operating permits issued by the department pursuant to 75-2-217 through 75-2-219 may not be considered confidential for the purposes of this section.

     (2)  This section does not prevent the use of records or information by the board or department in compiling or publishing analyses or summaries relating to the general condition of the outdoor atmosphere if the analyses or summaries do not identify an owner or operator or reveal information otherwise made confidential by this section."

 

     Section 15.  Section 75-2-112, MCA, is amended to read:

     "75-2-112.  Powers and responsibilities of department. (1) The department is responsible for the administration of this chapter.

     (2) Subject to the provisions of 75-2-207, the department shall:

     (a) adopt, amend, and repeal rules for the administration, implementation, and enforcement of this chapter, for issuing orders under and in accordance with 42 U.S.C. 7419, and for fulfilling the requirements of 42 U.S.C. 7420 and regulations adopted pursuant to that section, except that, for purposes other than agricultural open burning, the department may not adopt permitting requirements or any other rule relating to:

     (i) any agricultural activity or equipment that is associated with the use of agricultural land or the planting, production, processing, harvesting, or storage of agricultural crops by an agricultural producer and that is not subject to the requirements of 42 U.S.C. 7475, 7503, or 7661a;

     (ii) a commercial operation relating to the activities or equipment referred to in subsection (2)(a)(i) that remains in a single location for less than 12 months and is not subject to the requirements of 42 U.S.C. 7475, 7503, or 7661a; or

     (iii) forestry equipment and its associated engine used for forestry practices that remain in a single location for less than 12 months and are not subject to the requirements of 42 U.S.C. 7475, 7503, or 7661a;

     (b) hold hearings relating to any aspect of or matter in the administration of this chapter at a place designated by the department. The department may compel the attendance of witnesses and the production of evidence at hearings. The department shall designate an attorney to assist in conducting hearings and shall appoint a reporter who must be present at all hearings and take full stenographic notes of all proceedings, transcripts of which will be available to the public at cost.

     (c) issue orders necessary to effectuate the purposes of this chapter;

     (d) by rule require access to records relating to emissions;

     (e) by rule adopt a schedule of fees required for permits, permit applications, and registrations consistent with this chapter;

     (f) have the power to issue orders under and in accordance with 42 U.S.C. 7419.

     (2)(3)  The department shall:

     (a)  by appropriate administrative and judicial proceedings, enforce orders issued by the board;

     (b)  secure necessary scientific, technical, administrative, and operational services, including laboratory facilities, by contract or otherwise;

     (c)  prepare and develop a comprehensive plan for the prevention, abatement, and control of air pollution in this state;

     (d)  encourage voluntary cooperation by persons and affected groups to achieve the purposes of this chapter;

     (e)  encourage local units of government to handle air pollution problems within their respective jurisdictions on a cooperative basis and provide technical and consultative assistance for this. If local programs are financed with public funds, the department may contract with the local government to share the cost of the program. However, the state share may not exceed 30% of the total cost.

     (f)  encourage and conduct studies, investigations, and research relating to air contamination and air pollution and their causes, effects, prevention, abatement, and control;

     (g)  determine, by means of field studies and sampling, the degree of air contamination and air pollution in the state;

     (h)  make a continuing study of the effects of the emission of air contaminants from motor vehicles on the quality of the outdoor atmosphere of this state and make recommendations to appropriate public and private bodies with respect to this;

     (i)  collect and disseminate information and conduct educational and training programs relating to air contamination and air pollution;

     (j)  advise, consult, contract, and cooperate with other agencies of the state, local governments, industries, other states, interstate and interlocal agencies, the United States, and any interested persons or groups;

     (k)  consult, on request, with any person proposing to construct, install, or otherwise acquire an air contaminant source or device or system for the control thereof concerning the efficacy of this device or system or the air pollution problems which may be related to the source, device, or system. Nothing in this consultation relieves a person from compliance with this chapter, rules in force under it, or any other provision of law.

     (l)  accept, receive, and administer grants or other funds or gifts from public or private agencies, including the United States, for the purpose of carrying out this chapter. Funds received under this section shall must be deposited in the state treasury to the account of the department.

     (3)(4)  The department may assess fees to the applicant for the analysis of the environmental impact of an application to redesignate the classification of any area, except those areas within the exterior boundaries of a reservation of a federally recognized Indian tribe, under the classifications established by 42 U.S.C. 7470 through 7479 (prevention of significant deterioration of air quality). The determination of whether or not a fee will be assessed is to be on a case-by-case basis."

 

     Section 16.  Section 75-2-201, MCA, is amended to read:

     "75-2-201.  Classifying and reporting air contaminant sources. (1) The board department may classify air contaminant sources which in its judgment may cause or contribute to air pollution according to levels and types of emissions and other characteristics which relate to air pollution and may require reporting for any such class or classes. Such The classifications shall must be made with special reference to effects on health, economic and social factors, and physical effects on property and may be applied to the state as a whole or to any designated area.

     (2)  Any person operating or responsible for the operation of air contaminant sources of any class for which the rules of the board department may require reporting shall make reports containing such any information as may be required concerning location, size and height of contaminant outlets, processes employed, fuels used, and the nature and time periods or duration of emissions and any other matter relevant to air pollution which that is available or reasonably capable of being assembled."

 

     Section 17.  Section 75-2-202, MCA, is amended to read:

     "75-2-202.  Board Department to set ambient air quality standards. (1) The board department shall establish ambient air quality standards for the state.

     (2)  Ambient air quality standards for fluorides shall must be established through limitations upon on the concentration of fluorides in forage grasses, hay, and silage."

 

     Section 18.  Section 75-2-203, MCA, is amended to read:

     "75-2-203.  Board Department to set emission levels. (1) The board department may establish the limitations of the levels, concentrations, or quantities of emissions of various pollutants from any source necessary to prevent, abate, or control air pollution. Except as otherwise provided in or pursuant to this section, such those levels, concentrations, or quantities shall be are controlling, and no emission in excess thereof shall be of those levels is lawful.

     (2)  In any area where the concentration of air pollution sources or of population or where the nature of the economy or of land and its uses so may require, the board department may fix more stringent requirements governing the emission of air pollutants than those in effect pursuant to subsection (1) of this section.

     (3)  The board department may by rule use any widely recognized measuring system for measuring emission of air contaminants.

     (4)  Should federal minimum standards of air pollution be set by federal law, the board department may, if necessary in some localities of this state, set more stringent standards by rule."

 

     Section 19.  Section 75-2-204, MCA, is amended to read:

     "75-2-204.  Rules relating to construction, installation, alteration, operation, or use. The board department may by rule prohibit the construction, installation, alteration, operation, or use of a machine, equipment, device, or facility that it 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, unless the owner or operator has obtained a permit under this part or has registered the source of air contaminants with the department if the source is in a category for which only registration is required by the rules adopted to implement this part."

 

     Section 20.  Section 75-2-206, MCA, is amended to read:

     "75-2-206.  Study of effects of sulfur dioxide on health and environment. (1) To the extent that funds are available, the board department shall conduct an ongoing study in areas of Montana where there are major industrial sources of sulfur dioxide. The study shall concentrate on the effects on human health and the environment of ambient sulfur dioxide concentrations separately and in conjunction with particulates.

     (2)  Notwithstanding other funding sources to pay for the study, the board department may accept funds and grants from private and public sources."

 

     Section 21.  Section 75-2-207, MCA, is amended to read:

     "75-2-207.  State regulations no more stringent than federal regulations or guidelines -- exceptions -- procedure. (1) After April 14, 1995, except as provided in subsections (2) and (3) or unless required by state law, the board or 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 board or department may incorporate by reference comparable federal regulations or guidelines.

     (2)  (a) The board or department may adopt a rule to implement this chapter that is more stringent than comparable federal regulations or guidelines only if:

     (i)  a public hearing is held;

     (ii) public comment is allowed; and

     (iii) the board or the department makes a written finding after the public hearing and comment period that is based on evidence in the record that the proposed standard or requirement:

     (A)  protects public health or the environment;

     (B)  can mitigate harm to the public health or the environment; and

     (C)  is achievable with current technology.

     (b)  The written finding required under subsection (2)(a)(iii) must reference information and peer-reviewed scientific studies contained in the record that form the basis for the board's or the department's conclusion. The written finding must also include information from the hearing record regarding costs to the regulated community that are directly attributable to the proposed standard or requirement.

     (c)  (i) A person or entity affected by a rule of the board or department adopted after January 1, 1990, and before April 14, 1995, that the person or entity believes is more stringent than comparable federal regulations or guidelines may petition the board or department to review the rule.

     (ii) If the board or department determines that the rule is more stringent than comparable federal regulations or guidelines, the board or department shall either revise the rule to conform to the federal regulations or guidelines or follow the process provided in subsections (2)(a) and (2)(b) within a reasonable period of time, not to exceed 6 months after receiving the petition.

     (iii) A petition under this section does not relieve the petitioner of the duty to comply with the challenged rule. The board or department may charge a petition filing fee in an amount not to exceed $250.

     (iv) A person may also petition the board or department for a rule review under subsection (2)(a) if the board or 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 board or department rule.

     (3)  This section does not apply to a rule adopted under the emergency rulemaking provisions of 2-4-303(1)."

 

     Section 22.  Section 75-2-211, MCA, is amended to read:

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

     (2)  (a) Except as provided in 75-1-208(4)(b), 75-2-234, and subsections (2)(b) and (2)(c) of this section, 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 department 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.

     (b)  Except as provided in subsection (2)(e), the owner or operator of an oil or gas well facility shall file the permit application with the department no later than January 3, 2006, or 60 days after the initial well completion date, whichever is later. For purposes of this section, the initial well completion date for an oil or gas well facility is:

     (i)  for an oil or gas well facility producing oil, the date when the first oil is produced through wellhead equipment into lease tanks from the ultimate producing interval after casing has been run; and

     (ii) for an oil or gas well facility producing gas, the date when the oil or gas well facility is capable of producing gas through wellhead equipment from the ultimate producing interval after casing has been run.

     (c)  An owner or operator who complies with subsection (2)(b) may construct, install, or use equipment necessary to complete or operate an oil or gas well facility without a permit until the department's decision on the application is final. If the owner or operator does not comply with subsection (2)(b), the owner or operator may not operate the oil or gas well facility and is liable for a violation of this section for every day of construction, installation, or operation of the facility.

     (d)  The board department shall adopt rules establishing air emission control requirements applicable to an oil or gas well facility during the time from the initial well completion date until the department's decision on the application is final.

     (e)  The provisions of subsections (2)(b) and (2)(c) do not apply to an oil or gas well facility subject to the federal air permitting provisions of 42 U.S.C. 7475 or 7503.

     (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 department's authority to adopt regulations providing for a single air quality permit system.

     (5)  Department approval of an application to transfer a portable emission source from one location to another is exempt from the provisions of 75-1-201(1).

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

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

     (8)  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 (7) 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.

     (9)  (a) Except as provided in 75-1-205(4) and 75-1-208(4)(b), 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:

     (i)  within 180 days after the department's receipt of a filed application, as provided in subsection (8), if the department prepares the environmental impact statement;

     (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, within 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, is not subject to the provisions of 75-2-215, and is not subject to the federal air quality permitting provisions of 42 U.S.C. 7475, 7503, or 7661a, the department shall notify the applicant in writing within 60 days after its receipt of a filed application, as provided in subsection (8), of its approval or denial of the application, except as provided in subsection (14).

     (c)  If an application does not require the preparation of an environmental impact statement and is subject to the federal air permitting provisions of 42 U.S.C. 7475, 7503, or 7661a, the department shall notify the applicant, in writing, within 75 days after its receipt of a filed application, as provided in subsection (8), of its approval or denial of the application.

     (d)  Except as provided in subsection (9)(e), if an application does not require the preparation of an environmental impact statement and is subject to the provisions of 75-2-215, the department shall notify the applicant of its approval or denial of the application, in writing, within 75 days after its receipt of a filed application, as provided in subsection (8).

     (e)  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 prepare a single environmental review document pursuant to Title 75, chapter 1, for the permit required under this section and the license or permit required under 75-10-221 or 75-10-406 and act on the applications within the time period provided for in 75-2-215(3)(e).

     (f)  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 upon the 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.

     (g)  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.

     (10) Except as provided in 75-2-213, when the department approves or denies the application for a permit under this section, a person who is directly and adversely affected by the department's decision may request a hearing before the board department. The request for hearing must be filed within 15 days after the department renders its decision. An affidavit setting forth the grounds for the request must be filed within 30 days after the department renders its decision. The contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to a hearing before the board department under this subsection.

     (11) Except as provided in 75-2-213:

     (a)  the department's decision on the application is not final until 15 days have elapsed from the date of the decision;

     (b)  the filing of a request for hearing does not stay the department's decision. However, the board department may order a stay upon receipt of a petition and a finding, after notice and opportunity for hearing, that:

     (i)  the person requesting the stay is entitled to the relief demanded in the request for a hearing; or

     (ii) continuation of the permit during the appeal would produce great or irreparable injury to the person requesting the stay.

     (c)  upon granting a stay, the board department may require a written undertaking to be given by the party requesting the stay for the payment of costs and damages incurred by the permit applicant and its employees if the board department determines that the permit was properly issued. When requiring an undertaking, the board department shall use the same procedures and limitations as are provided in 27-19-306(2) through (4) for undertakings on injunctions.

     (12) The board department shall provide, by rule, a period of 30 days in which the public may submit comments on draft air quality permits for applications that:

     (a)  are subject to the federal air quality permitting provisions of 42 U.S.C. 7475, 7503, or 7661a;

     (b)  are subject to the requirements of 75-2-215; or

     (c)  require the preparation of an environmental impact statement.

     (13) The board department shall provide, by rule, a period of 15 days in which the public may submit comments on draft air quality permits not subject to subsection (12).

     (14) The board department shall provide, by rule, the basis upon which the department may extend by 15 days:

     (a)  the period as provided in subsection (13) in which the public may submit comments on draft air quality permits not subject to subsection (12); and

     (b)  the period for notifying an applicant of its final decision on approval or denial of an application, as provided in subsection (9)(b).

     (15) (a) The board department may adopt rules for issuance, modification, suspension, revocation, renewal, or creation of:

     (i)  general permits covering multiple similar sources; or

     (ii) other permits covering multiple similar sources.

     (b)  Rules adopted pursuant to subsection (15)(a) may provide for construction and operation under the permit upon authorization by the department or upon notice to the department."

 

     Section 23.  Section 75-2-212, MCA, is amended to read:

     "75-2-212.  Variances -- renewals -- filing fees. (1) A person who owns or is in control of a plant, building, structure, process, or equipment may apply to the board department for an exemption or partial exemption from rules governing the quality, nature, duration, or extent of emissions of air pollutants. The application must be accompanied by information and data that the board department may require. The board department may grant an exemption or partial exemption if it finds that:

     (a)  the emissions occurring or proposed to occur do not constitute a danger to public health or safety; and

     (b)  compliance with the rules from which an exemption is sought would produce hardship without equal or greater benefits to the public.

     (2)  An exemption or partial exemption may not be granted pursuant to this section except after public hearing on due notice and until the board department has considered the relative interests of the applicant, other owners or property likely to be affected by the emissions, and the general public.

     (3)  The exemption or partial exemption may be renewed if a complaint is not made to the board department because of it or if, after the complaint has been made and duly considered at a public hearing held by the board department on due notice, the board department finds that renewal is justified. A renewal may not be granted except on application. An application must be made at least 60 days before the expiration of the exemption or partial exemption. Immediately before application for renewal, the applicant shall give public notice of the application in accordance with rules of the board department. A renewal pursuant to this subsection must be on the same grounds and subject to the same limitations and requirements as provided in subsection (1).

     (4)  An exemption, partial exemption, or renewal is not a right of the applicant or holder but may be granted at the discretion of the board department. However, a person adversely affected by an exemption, partial exemption, or renewal granted by the board department may obtain judicial review as provided by 75-2-411.

     (5)  This section and an exemption, partial exemption, or renewal granted pursuant to this section may not be construed to prevent or limit the application of the emergency provisions and procedures of 75-2-402 to a person or the person's property.

     (6)  A person who owns or is in control of a plant, building, structure, process, or equipment, which are called facilities, who applies to the board department for an exemption or partial exemption or a renewal of an exemption or partial exemption from a rule governing the quality, nature, duration, or extent of emissions of air pollutants shall submit with the application for variance a sum of not less than $500 or 2% of the cost of the equipment to bring the facility into compliance with the rule for which a variance is sought, whichever is greater, but not to exceed $80,000. The department shall prepare a statement of actual costs, and funds in excess of this must be returned to the applicant. The person requesting the variance shall describe the facility in sufficient detail, with accompanying estimates of cost and verifying materials, to permit the department to determine with reasonable accuracy the sum of the fee. For a renewal of an exemption or partial exemption, if a public hearing, environmental impact statement, or appreciable investigation by the department is not necessary, the minimum filing fee applies or the fee may be waived by the department. The filing fee must be deposited in the state special revenue fund provided for in 17-2-102. It is the intent of the legislature that the revenue derived from the filing fees must be used by the department to:

     (a)  compile the information required for rendering a decision on the request;

     (b)  compile the information necessary for any environmental impact statements;

     (c)  offset the costs of a public hearing, printing, or mailing; and

     (d)  carry out its other responsibilities under this chapter."

 

     Section 24.  Section 75-2-213, MCA, is amended to read:

     "75-2-213.  Energy development project -- hearing and procedures. (1) (a) When the department approves or denies the application for a permit under 75-2-211 for an energy development project, the applicant or a person who has provided the department with formal comments and who is directly and adversely affected by the department's decision may request a hearing before the board department. If the department provided an opportunity for public comment on the application, the request for a hearing must be limited to those issues raised in comments made to the department during the comment period unless the issues are related to a material change in federal or state law made during the comment period, to a judicial decision issued after the comment period, or to a material change to the draft permit, which was submitted for public comment, made by the department in the final permit decision and upon which the public did not have a meaningful opportunity to comment. The request for hearing must be filed within 30 days after the department renders its decision. An affidavit setting forth the grounds for the request must be filed with the request for a hearing.

     (b)  (i) If a hearing is requested by a person other than the applicant for or permittee of an energy development project, the applicant or permittee may, by filing a written election with the board department within 15 days of receipt of the request for hearing, elect to have the matter proceed to hearing before the board department or to have the matter submitted directly to the district court for judicial review of the agency decision. The party who requests the hearing may elect to have the matter submitted either to the board department for a hearing or to the district court for judicial review by submitting a written election to the board department with the request for hearing. If there are conflicting elections between the parties, the matter must proceed to district court.

     (ii) If the applicant or permittee is not the person who requested the hearing and has elected to have the matter submitted to the district court, the person who submitted the request for a hearing shall file a petition for review of the permit decision within 15 days of receipt of notice from the permittee. If the person who requested the hearing has elected to have the matter proceed to district court, that person shall file a petition in district court within 15 days of filing the request.

     (iii) The petition must be limited to matters raised in the request for hearing and must be filed in the county in which the facility is located.

     (iv) If a party does not elect to submit the matter directly to district court, the matter must proceed through the contested case process before the board department pursuant to the Montana Administrative Procedure Act.

     (v)  The board department or the district court shall apply the laws and rules in place when the department issued its decision, and the board department or the district court may not consider any issue that was not presented to the department for the department's consideration during the formal comment period unless the issue is related to a material change in federal or state law made during the comment period, to a judicial decision issued after the comment period, or to a material change to the draft permit, which was submitted for public comment, made by the department in the final permit decision and upon which the public did not have a meaningful opportunity to comment.

     (c)  (i) Except as provided in subsection (1)(c)(ii), if the person requesting the hearing is not the applicant or permittee of an energy development project, the board department or the district court shall require a written undertaking to be given by the party requesting the hearing for the payment of costs and damages incurred by the permit applicant and its employees if the request for a hearing or judicial review was for an improper purpose designed to harass, cause unnecessary delay, or improperly interfere with the issuance of the permit without a reasonable basis in law or fact.

     (ii) The board department or the district court may not require a written undertaking if the party requesting the hearing is an indigent person.

     (d)  If grounds for requesting the hearing are based on alleged error in applying best available control technology requirements, the board department or the district court shall give deference to the best available control technology determination made by the department. The board department or the district court may not reject the best available control technology determination unless the determination was incorrect as a matter of law or the factual basis for the determination was clearly erroneous.

     (2)  The board department shall issue a final decision within 4 months from the close of the hearing on the merits or, if no hearing is held, within 3 months from the date that briefing by the parties is complete unless the applicant or permittee and the party other than the applicant or permittee agree in writing to an extension of time. The board department shall require the parties to prepare the case for hearing without unreasonable delay.

     (3)  (a) Any requirement in a permit to commence construction, installation, or alteration within a certain time period is tolled during a contested case or judicial review proceeding, but not by more than 12 months, unless the applicant or permittee in its discretion waives the tolling in writing.

     (b)  If there are multiple appeals of one permit, tolling under this subsection (3) may not exceed a total of 12 months for all appeals.

     (c)  The applicant may not engage in construction during the period that the time period is tolled under subsection (3)(a).

     (4)  The department shall, for good cause shown, waive for up to 1 year any requirement that construction of an energy development project must proceed with due diligence. During the period that a waiver is in effect, an air quality permit does not expire because construction of an energy development project failed to proceed with due diligence."

 

     Section 25.  Section 75-2-215, MCA, is amended to read:

     "75-2-215.  Solid or hazardous waste incineration -- additional permit requirements. (1) Until the department has issued an air quality permit pursuant to 75-2-211 that includes the conditions required by this section, a person may not construct, install, alter, or use a solid or hazardous waste incinerator or a boiler or industrial furnace subject to the provisions of 75-10-406, except as provided in subsection (2).

     (2)  An existing or permitted solid or hazardous waste incinerator or a boiler or industrial furnace subject to the provisions of 75-10-406 is subject to the provisions of subsection (1) only if it incinerates or uses as fuel or would incinerate or use as fuel solid or hazardous waste in an amount, form, kind, or content that changes the nature, character, or composition of its emissions from its design or permitted operation.

     (3)  The department may not issue a permit to a facility described in subsection (1) until:

     (a)  the owner or operator has provided to the department's satisfaction:

     (i)  a characterization of emissions and ambient concentrations of air pollutants, including hazardous air pollutants, from any existing emission source at the facility; and

     (ii) an estimate of emissions and ambient concentrations of air pollutants, including hazardous air pollutants, from the incineration of solid or hazardous waste or the use of hazardous waste as fuel for a boiler or industrial furnace, as proposed in the permit application or modification;

     (b)  if a license is required pursuant to 75-10-221 or a permit is required pursuant to 75-10-406, the applicant has published, in the county where the project is proposed, at least three notices, in accordance with the procedures identified in 7-1-4127, describing the proposed project;

     (c)  if a license is required pursuant to 75-10-221 or a permit is required pursuant to 75-10-406, the department has conducted a public hearing on an environmental review prepared pursuant to Title 75, chapter 1, and, as appropriate, provided additional opportunities for the public to review and comment on the permit application or modification;

     (d)  the department has reached a determination that the projected emissions and ambient concentrations will constitute a negligible risk to the public health, safety, and welfare and to the environment; and

     (e)  the department has issued a license pursuant to 75-10-221 or a permit pursuant to 75-10-406, if a license or permit is required. The decision to issue, deny, or alter a permit pursuant to 75-2-211 and this section must be made within 30 days from when the department issues a license pursuant to 75-10-221 or a permit pursuant to 75-10-406 or within 90 days after the receipt of a complete application for a permit or a permit alteration under 75-2-211 and this section, whichever is later.

     (4)  The department shall require the application of air pollution control equipment, engineering, or other operating procedures as necessary to provide reductions of air pollutants, including hazardous air pollutants, equivalent to or more stringent than those achieved through the best available control technology.

     (5)  The board department may by rule provide for general air quality permits under the provisions of 75-2-211 and this section. The rules must cover numerous similar classes or categories of incinerators and boilers or industrial furnaces.

     (6)  This section does not relieve an owner or operator of a solid or hazardous waste incinerator or a boiler or industrial furnace that is not included under subsection (1) from the obligation to obtain any permit otherwise required under this chapter or rules implementing this chapter."

 

     Section 26.  Section 75-2-217, MCA, is amended to read:

     "75-2-217.  Operating permit program -- exemptions -- general requirements -- duration. (1) The board department shall provide by rule for the issuance, expiration, modification, amendment, suspension, revocation, and renewal of operating permits as part of an operating permit program to be administered by the department under this chapter. The board department shall promulgate rules that are consistent with the operating permit framework and guidelines outlined in Subchapter V of the federal Clean Air Act and implementing regulations.

     (2)  This section applies to all sources of air pollutants that are subject to the provisions of Subchapter V of the federal Clean Air Act, 42 U.S.C. 7661, et seq.

     (3)  A person may not violate any requirement of an operating permit issued under 75-2-218 and this section or operate any source required to have a permit under this section without having complied with the requirements of the operating permit program administered by the department pursuant to 75-2-218, 75-2-219, and this section.

     (4)  The board department may by rule provide for the exemption of one or more source categories, in whole or in part, from all or part of the requirements of this section if the board department determines that compliance with the requirements of this section is impracticable, infeasible, or unnecessarily burdensome for the sources. The board department may premise this determination upon a similar determination by the appropriate federal agency acting pursuant to the federal Clean Air Act, 42 U.S.C. 7401, et seq.

     (5)  The board department may by rule provide for general operating permits covering numerous similar sources.

     (6)  An operating permit issued by the department under 75-2-218 and this section is effective for a period not to exceed 5 years and may be renewed.

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

     (a)  adequate procedures that are streamlined and reasonable for:

     (i)  expeditiously determining when applications are complete;

     (ii) processing applications; and

     (iii) expeditiously reviewing permit actions, including application renewals or revisions;

     (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, compliance certification, and reporting;

     (f)  deadlines for submitting permit applications and compliance plans that are not later than 12 months after the source becomes subject to the operating permit requirement;

     (g)  deadlines for submitting permit renewal applications that are not later than 6 months before expiration of the existing operating permit;

     (h)  requirements for compliance plans that must be submitted with permit and renewal applications, including schedules of compliance and progress reports;

     (i)  requirements and procedures for periodic certification of source compliance with permit requirements, including the prompt reporting of any deviations from permit requirements;

     (j)  requirements for submission of any plans, specifications, or other information that the department considers necessary under this section;

     (k)  conditions and procedures for the transfer of operating permits;

     (l)  requirements and procedures for suspension, modification, amendment, and revocation of permits by the department for cause, including the modification or amendment of permits before renewal or termination to incorporate applicable limitations or requirements effective after permit issuance;

     (m)  requirements and procedures for incorporating into permits and permit renewals all applicable emission limitations and other requirements, including enforceable measures necessary to ensure compliance with those limitations and requirements;

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

     (o)  procedures for tracking activities conducted under general permits;

     (p)  requirements and procedures for issuing a single operating 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;

     (q)  requirements and procedures for allowing changes within a permitted facility without requiring a permit amendment if the changes are not prohibited under this chapter and do not exceed the emissions allowable under the permit; and

     (r)  other requirements necessary for the department to obtain the authorization to administer an operating permit program under the provisions of Subchapter V of the federal Clean Air Act."

 

     Section 27.  Section 75-2-218, MCA, is amended to read:

     "75-2-218.  Permits for operation -- application completeness -- action by department -- application shield -- review by board department. (1) An application for an operating permit or renewal is not considered filed until the department has determined that it is complete. An application is complete if all fees required under 75-2-220 and all information and completed application forms required under 75-2-217 have been submitted. A complete application must contain all of the information required for the department to begin processing the application. If the department fails to notify the applicant in writing within 60 days after submittal 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 on the date of the department's receipt of the application. The department may request additional information after a completeness determination has been made. The board department shall adopt rules that contain criteria for use in determining both when an application is complete and when additional information is required after a completeness determination has been made.

     (2)  Except as provided in 75-1-208(4)(b) and subsection (3) of this section, the department shall, consistent with the procedures established under 75-2-217, approve or disapprove a complete application for an operating permit or renewal and shall issue or deny the permit or renewal within 18 months after the date of filing. Failure of 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.

     (3)  The board department may by rule provide for a transition schedule for both the submittal to the department of initial applications for operating permits by existing sources and action by the department on these initial permit applications. The board department may require that one-third of all operating permit applications required for existing sources be submitted within the first calendar year after the adoption of rules implementing an operating permit program under 75-2-217.

     (4)  If an applicant submits a timely and complete application for an operating permit, the applicant's failure to hold a valid operating permit is not a violation of 75-2-217. If an applicant submits a timely and complete application for an operating permit renewal, the expiration of the applicant's existing operating permit is not a violation of 75-2-217. The applicant shall continue to be subject to the terms and conditions of the expired operating permit until the operating permit is renewed and is subject to the application of 75-2-217. The applicant is not entitled to the protection of this subsection if the delay in final action by the department on the application results from the applicant's failure to submit in a timely manner information requested by the department to process the application.

     (5)  Except as provided in subsection (8), if the department approves or denies an application for an operating permit or the renewal, modification, or amendment of a permit under 75-2-217 and this section, any person that participated in the public comment process required under 75-2-217(7) may request a hearing before the board department. The request for a hearing must be filed within 30 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 department under this subsection.

     (6)  (a) Except as provided in subsection (8), the department's decision on any application is not final until 30 days have elapsed from the date of the decision.

     (b)  Except as provided in subsection (8), the filing of a request for hearing does not stay the department's decision. However, the board department may order a stay upon receipt of a petition and a finding, after notice and opportunity for an informal hearing, that:

     (i)  the person requesting the hearing is entitled to the relief demanded in the request for a hearing; or

     (ii) continuation of the permit during the appeal would produce great or irreparable injury to the person requesting the hearing.

     (c)  Upon granting a stay, the board department may require a written undertaking to be given by the party requesting the stay for the payment of costs and damages incurred by the permit applicant and its employees if the board department determines that the permit was properly issued. When requiring an undertaking, the board department shall use the same procedures and limitations as are provided in 27-19-306(2) through (4) for undertakings on injunctions.

     (7)  The requirements of subsections (5) and (6) also apply to any action initiated by the department to suspend, revoke, modify, or amend an operating permit issued under this section.

     (8)  The denial by the department of an application under 75-2-217 and this section is not subject to review by the board department or judicial review if the basis for denial is the written objection of the appropriate federal agency acting pursuant to the federal Clean Air Act, 42 U.S.C. 7401, et seq.

     (9)  Compliance with an operating permit granted or renewed under 75-2-217 and this section is considered to be compliance with the requirements of this chapter only if the permit expressly includes those requirements or an express determination that those requirements are not applicable. This subsection does not apply to general permits provided for under 75-2-217."

 

     Section 28.  Section 75-2-219, MCA, is amended to read:

     "75-2-219.  Permits for operation -- limitations. Sections 75-2-217 and 75-2-218 may not be construed to:

     (1)  affect the department's issuance of a permit for the construction, installation, alteration, or use of a source of air pollutants pursuant to 75-2-211 or 75-2-215;

     (2)  restrict the board's department's authority to adopt regulations providing for a single air quality permit system; or

     (3)  affect permits, allowances, phase II compliance schedules, or other acid rain provisions under Subchapter IV of the federal Clean Air Act, 42 U.S.C. 7651, et seq."

 

     Section 29.  Section 75-2-220, MCA, is amended to read:

     "75-2-220.  Fees -- special assessments -- late payment assessments -- credit. (1) A person required to obtain a permit or to register a facility pursuant to this chapter shall submit to the department fees set by the board pursuant to 75-2-111 75-2-112 that are sufficient to cover the reasonable costs, direct and indirect, of developing and administering the permitting or registration requirements in this chapter, including:

     (a)  reviewing and acting upon a permit application or a registration or modifying, amending, or updating a permit or registration;

     (b)  implementing and enforcing the terms and conditions of a permit issued pursuant to this chapter or an administrative rule or other regulatory requirement adopted pursuant to this chapter. This does not include any court costs or other costs associated with an enforcement action. If the permit is not issued, the department shall return this portion of the fee to the applicant.

     (c)  emissions and ambient monitoring;

     (d)  preparing generally applicable rules or guidance;

     (e)  modeling, analysis, and demonstrations;

     (f)  preparing inventories and tracking emissions;

     (g)  providing support to sources under the small business stationary source technical and environmental compliance assistance program; and

     (h)  all other costs required to be recovered pursuant to Subchapter V of the federal Clean Air Act, 42 U.S.C. 7661, et seq.

     (2)  For a permit or registration fee based on emissions, the fee must be based on emissions of air pollutants regulated under this chapter, including but not limited to volatile organic compounds, each air pollutant regulated under section 7411 or 7412 of the federal Clean Air Act, 42 U.S.C. 7401, et seq., and each air pollutant subject to a national primary ambient air quality standard.

     (3)  The board department shall by rule provide for the annual review of all fees assessed for persons holding an operating permit issued under 75-2-217 and 75-2-218 to ensure the collection of revenue sufficient to cover the costs of administering the operating permit requirements of this chapter, as required by Subchapter V of the federal Clean Air Act.

     (4)  In addition to the fees required under subsection (1), the board department may order the assessment of additional fees required to fund specific activities of the department that are directed at a particular geographic area if the legislature authorizes the activities and appropriates funds for the activities, including emissions or ambient monitoring, modeling analysis or demonstrations, and emissions inventories or tracking. Additional assessments may be levied only on those sources that are within or are believed by the department to be impacting the geographic area. Before the board department may require the fees, it shall first determine, after opportunity for hearing, that the activities to be funded are necessary for the administration or implementation of this chapter, that the amount of the requested fees is appropriate, that the assessments apportion the required funding in an equitable manner, and that the department has obtained the necessary appropriation. The contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to a hearing before the board department under this subsection.

     (5)  (a) If the permitholder or registrant fails to pay in a timely manner a fee required under subsection (1), in addition to the fee, the department may:

     (i)  impose a penalty not to exceed 50% of the fee, plus interest on the required fee computed as provided in 15-1-216; or

     (ii) revoke the permit or registration consistent with those procedures established under this chapter for permit revocation.

     (b)  Within 1 year of revocation, the department may reissue the revoked permit or registration after the permitholder or registrant has paid all outstanding fees required under subsections (1) and (4), including all penalties and interest provided for under this subsection (5). In reissuing the revoked permit, the department may modify the terms and conditions of the permit as necessary to account for changes in air quality occurring since revocation.

     (c)  The board department shall by rule provide for the implementation of this subsection (5), including criteria for imposition of the sanctions described in this subsection (5).

     (6)  The board department may by rule allow the reduction of a fee required under this section for an operating permit or permit renewal to account for the financial resources of a category of small business stationary sources.

     (7)  As a condition of the continuing validity of a permit issued by the department under this chapter prior to October 1, 1993, the board department may by rule require the permitholder to pay the fees under subsections (1) and (4).

     (8)  For an existing source of air pollutants that is subject to Subchapter V of the federal Clean Air Act and that is not required to hold an air quality permit from the department as of October 1, 1993, the board department may, as a condition of continued operation, require by rule that the owner or operator of the source pay the fees under subsections (1) and (4).

     (9)  (a) The department shall give written notice of the fee to be assessed and the basis for the department's fee assessment under this section to the owner or operator of the air pollutant source. The owner or operator may appeal the department's fee assessment to the board within 20 days after receipt of the written notice.

     (b)  An appeal must be based upon the allegation that the fee assessment is erroneous or excessive. An appeal may not be based on the amount of the fee contained in the schedule adopted by the board department.

     (c)  If any part of the fee assessment is not appealed, it must be paid to the department upon receipt of the notice required in subsection (9)(a).

     (d)  The contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to a hearing before the board department under this subsection (9).

     (10) The total of the fees charged to an applicant under subsections (1) and (4) of this section must be reduced by the amount of any credit accruing to the applicant under 75-2-225. The department may not increase fee assessments beyond legislative appropriation levels to adjust for any credit claimed under 75-2-225. The credit applied under 75-2-225 may not limit the department's ability to collect fees sufficient to cover the reasonable costs, both direct and indirect, of developing and administering the permitting and registration requirements of this chapter."

 

     Section 30.  Section 75-2-221, MCA, is amended to read:

     "75-2-221.  Deposit of air quality permitting and registration fees. (1) All money collected by the department pursuant to 75-2-111 75-2-112 and 75-2-220 must be deposited in an account in the state special revenue fund to be appropriated by the legislature to the department for the development and administration of the permitting and registration requirements of this chapter.

     (2)  Upon request, the expenditure by the department of funds in this account may be audited by a qualified auditor at the end of each fiscal year. The cost of the audit must be paid by the person requesting the audit."

 

     Section 31.  Section 75-2-231, MCA, is amended to read:

     "75-2-231.  Medical waste and hazardous waste incineration -- additional permit requirements. (1) Because of the potential emission of chlorinated dioxins, furans, heavy metals, and carcinogens as a result of the incineration of medical waste and hazardous waste and the potential health risk these chemicals pose, the board department shall adopt rules establishing additional permit requirements for commercial medical waste and commercial hazardous waste incinerators. For the purposes of this section, the term "commercial medical waste incinerator" does not include hospital or medical facility incinerators that primarily incinerate medical waste generated onsite. The board department shall adopt rules that:

     (a)  regulate the type and amount of plastic and other materials in the medical waste stream and hazardous waste stream that may be a source of chlorine, in order to minimize the potential emission of chlorinated dioxins, furans, and carcinogens;

     (b)  require commercial medical waste and commercial hazardous waste incinerators to achieve the lowest achievable emission rate to prevent the public health risk from air emissions or ambient concentrations from exceeding the negligible risk standard required by 75-2-215 and any applicable federal allowable intake standards, as determined pursuant to subsection (3), for dioxins, furans, heavy metals, and other hazardous air pollutants;

     (c)  implement the requirements of subsection (2), including establishing procedures and standards for the collection of high-quality scientific information and for the submission of the information by the applicant;

     (d)  establish procedures for the monitoring, testing, and inspection of:

     (i)  the medical waste stream and hazardous waste stream, including heavy metals and possible precursors to the formation of chlorinated dioxins, furans, and carcinogens;

     (ii) combustion, including destruction and removal efficiencies; and

     (iii) emissions, including continuous emission monitoring and air pollution control devices; and

     (e)  are necessary to implement the provisions of this section and to coordinate the requirements under this section with the requirements contained in 75-2-211 and 75-2-215.

     (2)  A person who applies for an air quality permit or alteration pursuant to 75-2-211 and 75-2-215 for a commercial medical waste incinerator or commercial hazardous waste incinerator shall provide, to the satisfaction of the department, the following information:

     (a)  a dispersion model of emissions, using approved methods, and those studies that are necessary to identify the potential community exposure;

     (b)  an analysis of the potential pathways for human exposure to air contaminants, particularly chlorinated dioxins, furans, heavy metals, and other carcinogens, including the potential for inhalation, ingestion, and physical contact by the affected communities; and

     (c)  a quantitative analysis of the estimated total possible human exposure to chlorinated dioxins, furans, heavy metals, and carcinogens for the affected communities.

     (3)  The department may not issue or alter an air quality permit pursuant to this chapter until the department has determined, based upon an analysis of the information provided by the applicant pursuant to subsection (2) and other necessary and relevant data, that the public health risk from air emissions or ambient concentrations of chlorinated dioxins, furans, heavy metals, and other hazardous air pollutants will not exceed the negligible risk standard required by 75-2-215 and any applicable federal standards for allowable intake, as determined by the department after a review of established and relevant federal standards and guidelines.

     (4)  This section may not be construed in any way to:

     (a)  require the board department to promulgate standards for the allowable intake of any substances for which the federal government has not established standards;

     (b)  allow the board department to promulgate standards for the allowable intake of any substances for which the federal government has established standards that are more stringent than the federal standards; or

     (c)  limit or otherwise impair the duty of the department under 75-2-215 to determine that emissions and ambient concentrations will constitute a negligible risk as required by 75-2-215(3)(d), including emissions and ambient concentrations of dioxins, furans, heavy metals, and carcinogens, before issuing an air quality permit pursuant to 75-2-211 and 75-2-215."

 

     Section 32.  Section 75-2-234, MCA, is amended to read:

     "75-2-234.  Registration. The board department may adopt rules for the registration of certain classes of sources of air contaminants in lieu of a permit application required under 75-2-211(2)."

 

     Section 33.  Section 75-2-301, MCA, is amended to read:

     "75-2-301.  Local air pollution control programs -- consistency with state and federal regulations -- procedure for public notice and comment required. (1) After public hearing, a municipality or county may establish and administer a local air pollution control program if the program is consistent with this chapter and is approved by the board department.

     (2)  If a local air pollution control program established by a county encompasses all or part of a municipality, the county and each municipality shall approve the program in accordance with subsection (1).

     (3)  (a) Except as provided in subsection (5), the board department by order may approve a local air pollution control program that:

     (i)  subject to subsection (4), provides by rule, ordinance, or local law for requirements compatible with, more stringent than, or more extensive than those imposed by 75-2-203, 75-2-204, 75-2-211, 75-2-212, 75-2-215, 75-2-217 through 75-2-219, and 75-2-402 and rules adopted under these sections;

     (ii) provides for the enforcement of requirements established under subsection (3)(a)(i) by appropriate administrative and judicial processes; and

     (iii) provides for administrative organization, staff, financial resources, and other resources necessary to effectively and efficiently carry out the program. As part of meeting these requirements, a local air pollution control program may administer the permit or registration fee provisions of 75-2-220. The permit or registration fees collected by a local air pollution control program must be deposited in a county special revenue fund to be used by the local air pollution control program for administration of local air pollution control program permitting or registration activities.

     (b)  Board Department approval of a rule, ordinance, or local law that is more stringent than the comparable state law is subject to the provisions of subsection (4).

     (4)  (a) A local air pollution control program may, subject to approval by the board department, adopt a rule, ordinance, or local law to implement this chapter that is more stringent than comparable state or federal regulations or guidelines only if:

     (i)  a public hearing is held;

     (ii) public comment is allowed; and

     (iii) the board department or the local air pollution control program makes a written finding after the public hearing and comment period that is based on evidence in the record that the proposed local standard or requirement:

     (A)  protects public health or the environment of the area;

     (B)  can mitigate harm to the public health or the environment; and

     (C)  is achievable with current technology.

     (b)  The written finding required under subsection (4)(a)(iii) must reference information and peer-reviewed scientific studies contained in the record that form the basis for the board's department's or the local air pollution control program's conclusion. The written finding must also include information from the hearing record regarding costs to the regulated community that are directly attributable to the proposed local standard or requirement.

     (c)  (i) A person or entity affected by a rule, ordinance, or local law approved or adopted after January 1, 1996, and before May 1, 2001, that the person or entity believes is more stringent than comparable state or federal regulations or guidelines may petition the board department or the local air pollution control program to review the rule, ordinance, or local law.

     (ii) If the board department or local air pollution control program determines that the rule, ordinance, or local law is more stringent than state or federal regulations or guidelines, the board department or local air pollution control program shall either revise the rule, ordinance, or local law to conform to the state or federal regulations or guidelines or follow the process provided in subsections (4)(a) and (4)(b) within a reasonable period of time, not to exceed 6 months after receiving the petition.

     (5)  Except for those emergency powers provided for in 75-2-402, the board department may not delegate to a local air pollution control program the authority to control any air pollutant source that:

     (a)  requires the preparation of an environmental impact statement in accordance with Title 75, chapter 1, part 2;

     (b)  is subject to regulation under the Montana Major Facility Siting Act, as provided in Title 75, chapter 20; or

     (c)  has the potential to emit 250 tons a year or more of any pollutant subject to regulation under this chapter, including fugitive emissions, unless the authority to control the source was delegated to a local air pollution control program prior to January 1, 1991.

     (6)  If the board department finds that the location, character, or extent of particular concentrations of population, air pollutant sources, or geographic, topographic, or meteorological considerations or any combination of these makes impracticable the maintenance of appropriate levels of air quality without an areawide air pollution control program, the board department may determine the boundaries within which the program is necessary and require it as the only acceptable alternative to direct state administration.

     (7)  If the board department has reason to believe that any part of an air pollution control program in force under this section is either inadequate to prevent and control air pollution in the jurisdiction to which the program relates or is being administered in a manner inconsistent with this chapter, the board department shall, on notice, conduct a hearing on the matter.

     (8)  If, after the hearing, the board department determines that any part of the program is inadequate to prevent and control air pollution in the jurisdiction to which it relates or that it is not accomplishing the purposes of this chapter, it shall require that necessary corrective measures be taken within a reasonable time, not to exceed 60 days.

     (9)  If the jurisdiction fails to take these measures within the time required, the department shall administer within that jurisdiction all of the provisions of this chapter, including the terms contained in any applicable board department order, that are necessary to correct the deficiencies found by the board department. The department's control program supersedes all municipal or county air pollution laws, rules, ordinances, and requirements in the affected jurisdiction. The cost of the department's action is a charge on the jurisdiction.

     (10) If the board department finds that the control of a particular air pollutant source because of its complexity or magnitude is beyond the reasonable capability of the local jurisdiction or may be more efficiently and economically performed at the state level, it may direct the department to assume and retain control over that air pollutant source. A charge may not be assessed against the jurisdiction. Findings made under this subsection may be either on the basis of the nature of the sources involved or on the basis of their relationship to the size of the communities in which they are located.

     (11) A jurisdiction in which the department administers all or part of its air pollution control program under subsection (9) may, with the approval of the board, establish or resume an air pollution control program that meets the requirements of subsection (3).

     (12) A municipality or county may administer all or part of its air pollution control program in cooperation with one or more municipalities or counties of this state or of other states.

     (13) Local air pollution control programs established under this section shall provide procedures for public notice, public hearing, public comment, and appeal for any proposed new or revised rules, ordinances, or local laws adopted pursuant to this section. The procedures must comply with the following requirements:

     (a)  The local air pollution control program shall create and maintain a list of interested persons who wish to be informed of actions related to rules, ordinances, or local laws adopted by the local air pollution control program.

     (b)  At least 30 days prior to the adoption, revision, or repeal of a rule, ordinance, or law, the local air pollution control program shall give written notice of its intended action.

     (c)  The notice required under subsection (13)(b) must include:

     (i)  a statement of the terms or substance of the intended action or a description of the subjects and issues affected by the intended action;

     (ii) an explanation of the procedure for a person to be included on the list of interested persons established pursuant to subsection (13)(a);

     (iii) an explanation of the procedures and deadlines for presentation of oral or written comments related to the intended action;

     (iv) an explanation of the process for requesting a public hearing as provided in subsection (13)(f); and

     (v)  the rationale for the intended action. The rationale must:

     (A)  include an explanation of why the intended action is reasonably necessary to implement the goals and purposes of the local air pollution control program;

     (B)  specifically address those intended actions for which there are no similar state or federal regulations or guidelines; and

     (C)  be written in plain, easily understood language.

     (d)  For the purposes of subsection (13)(c)(v), a statement of authority to adopt a rule, ordinance, or local law does not, standing alone, constitute a showing of reasonable necessity for the intended action.

     (e)  The local air pollution control program shall mail a copy of the proposed rule, ordinance, or local law to all interested persons on the list established pursuant to subsection (13)(a) who have made timely requests to be included on the list.

     (f)  If at least 10 of the persons who will be directly affected by the proposed rule, ordinance, or local law request a public hearing, the local air pollution control program shall hold a hearing to hear comments from the public on the intended action.

     (g)  The local air pollution control program shall prepare a written response to all comments submitted in writing or presented at the public hearing for consideration prior to adoption, revision, or repeal of the proposed rule, ordinance, or local law.

     (h)  A person who submits a written comment on a proposed action or who attends a public hearing in regard to a proposed action must be informed of the final action."

 

     Section 34.  Section 75-2-302, MCA, is amended to read:

     "75-2-302.  State and federal aid. (1) Any local air pollution control program meeting the requirements of this chapter and rules made pursuant thereto shall be to this chapter is eligible for state aid in an amount up to 30% of the locally funded annual operating cost thereof of the program.

     (2)  Federal aid granted to the state for developing or maintaining a local air pollution control program that is subsequently granted to a local program is not considered state aid.

     (3)  Subdivisions of the state may make application for, receive, administer, and expend any federal aid for the control of air pollution or the development and administration of programs related to air pollution control, provided the program is currently approved by the board department under 75-2-301."

 

     Section 35.  Section 75-2-401, MCA, is amended to read:

     "75-2-401.  Enforcement -- notice -- order for corrective action -- administrative penalty. (1) When the department believes that a violation of this chapter, a rule adopted under this chapter, or a condition or limitation imposed by a permit issued pursuant to this chapter has occurred, it may cause written notice to be served personally or by certified mail on the alleged violator or the violator's agent. The notice must specify the provision of this chapter, the rule, or the permit condition or limitation alleged to be violated and the facts alleged to constitute a violation. The notice may include an order to take necessary corrective action within a reasonable period of time stated in the order or an order to pay an administrative penalty, or both. The order becomes final unless, within 30 days after the notice is received, the person named requests in writing a hearing before the board department. On receipt of the request, the board department shall schedule a hearing.

     (2)  If, after a hearing held under subsection (1), the board department finds that violations have occurred, it shall issue an appropriate order for the prevention, abatement, or control of the emissions involved or for the taking of other corrective action or assess an administrative penalty, or both. As appropriate, an order issued as part of a notice or after a hearing may prescribe the date by which the violation must cease; time limits for particular action in preventing, abating, or controlling the emissions; or the date by which the administrative penalty must be paid. If, after a hearing on an order contained in a notice, the board department finds that a violation has not occurred or is not occurring, it shall rescind the order.

     (3)  (a) An action initiated under this section may include an administrative civil penalty of not more than $10,000 for each day of each violation, not to exceed a total of $80,000. If an order issued by the board department under this section requires the payment of an administrative civil penalty, the board department shall state findings and conclusions describing the basis for its penalty assessment.

     (b)  Administrative penalties collected under this section must be deposited in the alternative energy revolving loan account established in 75-25-101.

     (c)  Penalties imposed by an administrative order under this section may not be assessed for any day of violation that occurred more than 2 years prior to the issuance of the initial notice and order by the department under subsection (1).

     (d)  In determining the amount of penalty to be assessed for an alleged violation under this section, the department or board, as appropriate, shall consider the penalty factors in 75-1-1001.

     (e)  The department may bring a judicial action to enforce a final administrative order issued pursuant to this section. The action must be filed in the district court of the county in which the violation occurred or, if mutually agreed on by the parties in the action, in the district court of the first judicial district, Lewis and Clark County.

     (4)  The contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to a hearing conducted under this section.

     (5)  Instead of issuing the order provided for in subsection (1), the department may either:

     (a)  require that the alleged violators appear before the board department for a hearing at a time and place specified in the notice and answer the charges complained of; or

     (b)  initiate action under 75-2-412 or 75-2-413.

     (6)  This chapter does not prevent the board or department from making efforts to obtain voluntary compliance through warning, conference, or any other appropriate means.

     (7)  In connection with a hearing held under this section, the board department may and on application by a party shall compel the attendance of witnesses and the production of evidence on behalf of the parties."

 

     Section 36.  Section 75-2-402, MCA, is amended to read:

     "75-2-402.  Emergency procedure. (1) Any other law to the contrary notwithstanding, if the department finds that a generalized condition of air pollution exists and that it creates an emergency requiring immediate action to protect human health or safety, the department shall order persons causing or contributing to the air pollution to immediately reduce or discontinue the emission of air contaminants. Upon issuance of this order, the department shall fix a place and time within 24 hours for a hearing to be held before the board department. Within 24 hours after the start of the hearing and without adjournment, the board department shall confirm, modify, or set aside the order of the department.

     (2)  Except as provided in subsection (1), if the department finds that emissions from the operation of one or more air contaminant sources are causing imminent danger to human health or safety, it may order the person responsible for the operation in question to reduce or discontinue emissions immediately, without regard for 75-2-401. In this event, the requirements for hearing and confirmation, modification, or setting aside of orders as provided in subsection (1) apply.

     (3)  This section does not limit any power that the governor or any other officer may have to declare an emergency and act on the basis of this declaration, whether the power is conferred by statute or the constitution or is inherent to the office."

 

     Section 37.  Section 75-2-411, MCA, is amended to read:

     "75-2-411.  Judicial review. (1) A person aggrieved by an order of the board department or local control authority may apply for rehearing upon one or more of the following grounds and upon no other grounds:

     (a)  the board department or local control authority acted without or in excess of its powers;

     (b)  the order was procured by fraud;

     (c)  the order is contrary to the evidence;

     (d)  the applicant has discovered new evidence, material to the applicant, that the applicant could not with reasonable diligence have discovered and produced at the hearing; or

     (e)  competent evidence was excluded to the prejudice of the applicant.

     (2)  The petition must be in a form and filed at a time that the board department prescribes.

     (3)  (a) Within 30 days after the application for rehearing is denied or, if the application is granted, within 30 days after the decision on the rehearing, an aggrieved party may appeal to the district court of the judicial district of the state that is the situs of property affected by the order.

     (b)  The appeal must be taken by serving a written notice of appeal upon the presiding officer of the board the department. Service must be made by the delivery of a copy of the notice to the presiding officer and by filing the original with the clerk of the court to which the appeal is taken. Immediately after service upon the board, the board department shall certify to the district court the entire record and proceedings, including all testimony and evidence taken by the board department. Immediately upon receiving the certified record, the district court shall fix a day for filing of briefs and hearing arguments on the cause and shall cause a notice of the dates to be served upon the board department and the appellant.

     (c)  The court shall hear and decide the cause upon the record of the board department. The court shall determine whether or not the board department regularly pursued its authority, whether or not the findings of the board department were supported by substantial competent evidence, and whether or not the board department made errors of law prejudicial to the appellant.

     (4)  Either the board department or the person aggrieved may appeal from the decision of the district court to the supreme court. The proceedings before the supreme court must be limited to a review of the record of the hearing before the board department and of the district court's review of that record."

 

     Section 38.  Section 75-2-421, MCA, is amended to read:

     "75-2-421.  Persons subject to noncompliance penalties -- exemptions. (1) Except as provided in subsection (2), the department may assess and collect a noncompliance penalty from any person who owns or operates:

     (a)  a stationary source (other than a primary nonferrous smelter that has received a nonferrous smelter order under 42 U.S.C. 7419) that is not in compliance with any emission limitation specified in an order of the board department, emission standard, or compliance schedule under the state implementation plan approved by the federal environmental protection agency;

     (b)  a stationary source that is not in compliance with an emission limitation, emission standard, standard of performance, or other requirement under this chapter or 42 U.S.C. 7411, 7412, 7477, or 7603;

     (c)  a stationary source that is not in compliance with any other requirement under this chapter or any requirement of Subchapter V of the federal Clean Air Act, 42 U.S.C. 7661, et seq.; or

     (d)  any source referred to in subsections (1)(a), (1)(b), or (1)(c) that has been granted an exemption, extension, or suspension under subsection (2) or that is covered by a compliance order, or a primary nonferrous smelter that has received a primary nonferrous smelter order under 42 U.S.C. 7419, if that source is not in compliance with any interim emission control requirement or schedule of compliance under the extension, order, or suspension.

     (2)  Notwithstanding the requirements of subsection (1), the department may, after notice and opportunity for a public hearing, exempt any source from the requirements of 75-2-421 through 75-2-429 with respect to a particular instance of noncompliance that:

     (a)  the department finds is de minimis in nature and in duration;

     (b)  is caused by conditions beyond the reasonable control of the source and is of no demonstrable advantage to the source; or

     (c)  is exempt under 42 U.S.C. 7420(a)(2)(B) of the federal Clean Air Act.

     (3)  Any person who is jointly or severally adversely affected by the department's decision may request, within 15 days after the department renders its decision, upon affidavit setting forth the grounds for it, a hearing before the board department. A hearing must be held under the provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6."

 

     Section 39.  Section 75-2-422, MCA, is amended to read:

     "75-2-422.  Amount of noncompliance penalty -- late charge. (1) The amount of the penalty which shall be assessed and collected with respect to any source under 75-2-421 through 75-2-429 shall be equal to:

     (a)  the amount determined in accordance with the rules adopted by the board department, which shall be no less than the economic value which a delay in compliance after July 1, 1979, may have for the owner of such source, including the quarterly equivalent of the capital costs of compliance and debt service over a normal amortization period not to exceed 10 years, operation and maintenance costs foregone as a result of noncompliance, and any additional economic value which such a delay may have for the owner or operator of such source; minus

     (b)  the amount of any expenditure made by the owner or operator of that source during any such quarter for the purpose of bringing that source into and maintaining compliance with such requirement, to the extent that such expenditures have not been taken into account in the calculation of the penalty under subsection (1)(a).

     (2)  To the extent that any expenditure under subsection (1)(b) made during any quarter is not subtracted for such quarter from the costs under subsection (1)(a), such expenditure may be subtracted for any subsequent quarter from such costs. In no event may the amount paid be less than the quarterly payment minus the amount attributed to actual cost of construction.

     (3)  If the owner or operator of any stationary source to whom notice is issued under 75-2-425 does not submit a timely petition under 75-2-425(2)(b) or submits a petition which is denied and if the owner or operator fails to submit a calculation of the penalty assessment, a schedule for payment, and the information necessary for independent verification thereof, the department may enter into a contract with any person who has no financial interest in the matter to assist in determining the amount of the penalty assessment or payment schedule with respect to such source. The cost of carrying out such contract may be added to the penalty to be assessed against the owner or operator of such source.

     (4)  Any person who fails to pay the amount of any penalty with respect to any source under 75-2-421 through 75-2-429 on a timely basis shall be required to pay in addition a quarterly nonpayment penalty for each quarter during which such failure to pay persists. Such nonpayment penalty shall be equal to 20% of the aggregate amount of such person's penalties and nonpayment penalties with respect to such source which are unpaid as of the beginning of such quarter."

 

     Section 40.  Section 75-2-425, MCA, is amended to read:

     "75-2-425.  Notice of noncompliance -- challenge. (1) The department shall give a brief but reasonably specific notice of noncompliance to each person who owns or operates a source subject to 75-2-421(1) which is not in compliance as provided in that subsection, within 30 days after the department has discovered the noncompliance.

     (2)  Each person to whom notice has been given pursuant to subsection (1) shall:

     (a)  calculate the amount of penalty owed (determined in accordance with 75-2-422(1)) and the schedule of payments (determined in accordance with 75-2-423) for each source and, within 45 days after issuance of the notice of noncompliance, submit that calculation and proposed schedule, together with the information necessary for an independent verification thereof, to the department; or

     (b)  submit to the board department a petition within 45 days after the issuance of such notice, challenging such notice of noncompliance or alleging entitlement to an exemption under 75-2-421(2) with respect to a particular source.

     (3)  Each person to whom notice of noncompliance is given shall pay the department the amount determined under 75-2-422 as the appropriate penalty unless there has been a final determination granting a petition filed pursuant to subsection (2)(b)."

 

     Section 41.  Section 75-2-426, MCA, is amended to read:

     "75-2-426.  Hearing on challenge. (1) The board department shall provide a hearing on the record and make a decision (including findings of fact and conclusions of law) not later than 90 days after the receipt of any petition under 75-2-425(2)(b) with respect to such source.

     (2)  If the petition is denied, the petitioner shall submit the material required by 75-2-425(2)(a) to the department within 45 days of the date of decision."

 

     Section 42.  Section 75-2-428, MCA, is amended to read:

     "75-2-428.  Effect of new standards on noncompliance penalty. In the case of any emission limitation, emission standard, or other requirement approved or adopted by the board department under this chapter after July 1, 1979, and approved by the federal environmental protection agency as an amendment to the state implementation plan, which is more stringent than the emission limitation or requirement for the source in effect prior to such approval or promulgation, if any, or where there was no emission limitation, emission standard, or other requirement approved or adopted before July 1, 1979, the date for imposition of the noncompliance penalty under 75-2-421 through 75-2-429 shall be the date on which the source is required to be in full compliance with such emission limitation, emission standard, or other requirement or 3 years after the approval or promulgation of such emission limitation or requirement, whichever is sooner."

 

     Section 43.  Section 75-2-515, MCA, is amended to read:

     "75-2-515.  Administrative enforcement. (1) The department may deny, suspend, or revoke the accreditation of a person that:

     (a)  fraudulently or deceptively obtains or attempts to obtain accreditation;

     (b)  fails to meet the qualifications for accreditation or fails to comply with the requirements of this part, a rule adopted under this part, or a permit or order issued under this part; or

     (c)  fails to meet an applicable federal or state standard for asbestos projects.

     (2)  When the department believes that a violation of this part, a rule adopted under this part, or a permit or order issued under this part has occurred, it may serve written notice of the violation personally or by certified mail on the alleged violator or the violator's agent. The notice must specify the provision of this part or the rule, permit, or order alleged to be violated and the facts alleged to constitute a violation. The notice may include an order to take necessary corrective action within a reasonable period of time stated in the order, an order to pay an administrative civil penalty, or both. An order becomes final unless, within 30 days after the order is received, the person that has been named requests, in writing, a hearing before the board department.

     (3)  On receipt of a hearing request, the board department shall schedule a hearing. The contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to any hearing conducted under this section. If, after a hearing, the board department finds that a violation has not occurred or is not occurring, it shall rescind the order.

     (4)  (a) An action initiated under this section may include an administrative civil penalty of not more than $10,000 for each day of each violation, not to exceed a total of $80,000. Any order issued by the department under this section requiring payment of an administrative civil penalty must specify the basis for the penalty assessment.

     (b)  A penalty may not be assessed under this section for any day of violation that occurred more than 3 years prior to the department issuing the order requiring payment of the penalty.

     (c)  In determining the amount of a penalty assessed to a person under this section, the department shall consider the penalty factors in 75-1-1001.

     (5)  In addition to or instead of issuing an order under subsection (2), the department may:

     (a)  require the alleged violator to appear before the board department for a hearing at a time and place specified in the notice of hearing to answer the charges complained of; or

     (b)  initiate action under 75-2-514."

 

     Section 44.  Section 75-5-103, MCA, is amended to read:

     "75-5-103.  (Temporary) Definitions. Unless the context requires otherwise, in this chapter, the following definitions apply:

     (1)  "Associated supporting infrastructure" means:

     (a)  electric transmission and distribution facilities;

     (b)  pipeline facilities;

     (c)  aboveground ponds and reservoirs and underground storage reservoirs;

     (d)  rail transportation;

     (e)  aqueducts and diversion dams;

     (f)  devices or equipment associated with the delivery of an energy form or product produced at an energy development project; or

     (g)  other supporting infrastructure, as defined by board rule, that is necessary for an energy development project.

     (2)  (a) "Base numeric nutrient standards" means numeric water quality criteria for nutrients in surface water that are adopted to protect the designated uses of a surface water body.

     (b)  The term does not include numeric water quality standards for nitrate, nitrate plus nitrite, or nitrite that are adopted to protect human health.

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

     (4)(3)  "Contamination" means impairment of the quality of state waters by sewage, industrial wastes, or other wastes, creating a hazard to human health.

     (5)(4)  "Council" means the water pollution control advisory council provided for in 2-15-2107.

     (6)(5)  (a) "Currently available data" means data that is readily available to the department at the time a decision is made, including information supporting its previous lists of water bodies that are threatened or impaired.

     (b)  The term does not mean new data to be obtained as a result of department efforts.

     (7)(6)  "Degradation" means a change in water quality that lowers the quality of high-quality waters for a parameter. The term does not include those changes in water quality determined to be nonsignificant pursuant to 75-5-301(5)(c).

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

     (9)(8)  "Disposal system" means a system for disposing of sewage, industrial, or other wastes and includes sewage systems and treatment works.

     (10)(9) "Effluent standard" means a restriction or prohibition on quantities, rates, and concentrations of chemical, physical, biological, and other constituents that are discharged into state waters.

     (11)(10) (a) "Energy development project" means each plant, unit, or other development and associated developments, including any associated supporting infrastructure, designed for or capable of:

     (i)  generating electricity;

     (ii) producing gas derived from coal;

     (iii) producing liquid hydrocarbon products;

     (iv) refining crude oil or natural gas;

     (v)  producing alcohol to be blended for ethanol-blended gasoline and that are eligible for a tax incentive pursuant to Title 15, chapter 70, part 5;

     (vi) producing biodiesel and that are eligible for a tax incentive for the production of biodiesel pursuant to 15-32-701; or

     (vii) transmitting electricity through an electric transmission line with a design capacity of equal to or greater than 50 kilovolts.

     (b)  The term does not include a nuclear facility as defined in 75-20-1202.

     (12)(11) "Existing uses" means those uses actually attained in state waters on or after July 1, 1971, whether or not those uses are included in the water quality standards.

     (13)(12) "High-quality waters" means all state waters, except:

     (a)  ground water classified as of January 1, 1995, within the "III" or "IV" classifications established by the board's department's classification rules; and

     (b)  surface waters that:

     (i)  are not capable of supporting any one of the designated uses for their classification; or

     (ii) have zero flow or surface expression for more than 270 days during most years.

     (14)(13) "Impaired water body" means a water body or stream segment for which sufficient credible data shows that the water body or stream segment is failing to achieve compliance with applicable water quality standards.

     (15)(14) "Industrial waste" means a waste substance from the process of business or industry or from the development of any natural resource, together with any sewage that may be present.

     (16)(15) "Interested person" means a person who has a real property interest, a water right, or an economic interest that is or may be directly and adversely affected by the department's preliminary decision regarding degradation of state waters, pursuant to 75-5-303. The term includes a person who has requested authorization to degrade high-quality waters.

     (17)(16) "Load allocation" means the portion of a receiving water's loading capacity that is allocated to one of its existing or future nonpoint sources or to natural background sources.

     (18)(17) "Loading capacity" means the mass of a pollutant that a water body can assimilate without a violation of water quality standards. For pollutants that cannot be measured in terms of mass, it means the maximum change that can occur from the best practicable condition in a surface water without causing a violation of the surface water quality standards.

     (19)(18) "Local department of health" means the staff, including health officers, employed by a county, city, city-county, or district board of health.

     (20)(19) "Metal parameters" includes but is not limited to aluminum, antimony, arsenic, beryllium, barium, cadmium, chromium, copper, fluoride, iron, lead, manganese, mercury, nickel, selenium, silver, thallium, and zinc.

     (21)(20) "Mixing zone" means an area established in a permit or final decision on nondegradation issued by the department where water quality standards may be exceeded, subject to conditions that are imposed by the department and that are consistent with the rules adopted by the board department.

     (22)(21) "Nutrient standards variance" means numeric water quality criteria for nutrients based on a determination that base numeric nutrient standards cannot be achieved because of economic impacts or because of the limits of technology. The term includes individual, general, and alternative nutrient standards variances in accordance with 75-5-313.

     (23)(22) "Nutrient work group" means an advisory work group, convened by the department, representing publicly owned and privately owned point sources of pollution, nonpoint sources of pollution, and other interested parties that will advise the department on the base numeric nutrient standards, the development of nutrient standards variances, and the implementation of those standards and variances together with associated economic impacts.

     (24)(23) "Other wastes" means garbage, municipal refuse, decayed wood, sawdust, shavings, bark, lime, sand, ashes, offal, night soil, oil, grease, tar, heat, chemicals, dead animals, sediment, wrecked or discarded equipment, radioactive materials, solid waste, and all other substances that may pollute state waters.

     (25)(24) "Outstanding resource waters" means:

     (a)  state surface waters located wholly within the boundaries of areas designated as national parks or national wilderness areas as of October 1, 1995; or

     (b)  other surface waters or ground waters classified by the board department under the provisions of 75-5-316 and approved by the legislature.

     (26)(25) "Owner or operator" means a person who owns, leases, operates, controls, or supervises a point source.

     (27)(26) "Parameter" means a physical, biological, or chemical property of state water when a value of that property affects the quality of the state water.

     (28)(27) "Person" means the state, a political subdivision of the state, institution, firm, corporation, partnership, individual, or other entity and includes persons resident in Canada.

     (29)(28) "Point source" means a discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, or vessel or other floating craft, from which pollutants are or may be discharged.

     (30)(29) (a) "Pollution" means:

     (i)  contamination or other alteration of the physical, chemical, or biological properties of state waters that exceeds that permitted by Montana water quality standards, including but not limited to standards relating to change in temperature, taste, color, turbidity, or odor; or

     (ii) the discharge, seepage, drainage, infiltration, or flow of liquid, gaseous, solid, radioactive, or other substance into state water that will or is likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, or welfare, to livestock, or to wild animals, birds, fish, or other wildlife.

     (b)  The term does not include:

     (i)  a discharge, seepage, drainage, infiltration, or flow that is authorized under the pollution discharge permit rules adopted by the board under this chapter;

     (ii) activities conducted under this chapter that comply with the conditions imposed by the department in short-term authorizations pursuant to 75-5-308;

     (iii) contamination of ground water within the boundaries of an underground mine using in situ coal gasification and operating in accordance with a permit issued under 82-4-221.

     (c)  Contamination referred to in subsection (30)(b)(iii) (29)(b)(iii) does not require a mixing zone.

     (31)(30) "Sewage" means water-carried waste products from residences, public buildings, institutions, or other buildings, including discharge from human beings or animals, together with ground water infiltration and surface water present.

     (32)(31) "Sewage system" means a device for collecting or conducting sewage, industrial wastes, or other wastes to an ultimate disposal point.

     (33)(32) "Standard of performance" means a standard adopted by the board department for the control of the discharge of pollutants that reflects the greatest degree of effluent reduction achievable through application of the best available demonstrated control technology, processes, operating methods, or other alternatives, including, when practicable, a standard permitting no discharge of pollutants.

     (34)(33) (a) "State waters" means a body of water, irrigation system, or drainage system, either surface or underground.

     (b)  The term does not apply to:

     (i)  ponds or lagoons used solely for treating, transporting, or impounding pollutants; or

     (ii) irrigation waters or land application disposal waters when the waters are used up within the irrigation or land application disposal system and the waters are not returned to state waters.

     (35)(34) "Sufficient credible data" means chemical, physical, or biological monitoring data, alone or in combination with narrative information, that supports a finding as to whether a water body is achieving compliance with applicable water quality standards.

     (36)(35) "Threatened water body" means a water body or stream segment for which sufficient credible data and calculated increases in loads show that the water body or stream segment is fully supporting its designated uses but threatened for a particular designated use because of:

     (a)  proposed sources that are not subject to pollution prevention or control actions required by a discharge permit, the nondegradation provisions, or reasonable land, soil, and water conservation practices; or

     (b)  documented adverse pollution trends.

     (37)(36) "Total maximum daily load" or "TMDL" means the sum of the individual waste load allocations for point sources and load allocations for both nonpoint sources and natural background sources established at a level necessary to achieve compliance with applicable surface water quality standards.

     (38)(37) "Treatment works" means works, including sewage lagoons, installed for treating or holding sewage, industrial wastes, or other wastes.

     (39)(38) "Waste load allocation" means the portion of a receiving water's loading capacity that is allocated to one of its existing or future point sources.

     (40)(39) "Water quality protection practices" means those activities, prohibitions, maintenance procedures, or other management practices applied to point and nonpoint sources designed to protect, maintain, and improve the quality of state waters. Water quality protection practices include but are not limited to treatment requirements, standards of performance, effluent standards, and operating procedures and practices to control site runoff, spillage or leaks, sludge or water disposal, or drainage from material storage.

     (41)(40) "Water well" means an excavation that is drilled, cored, bored, washed, driven, dug, jetted, or otherwise constructed and intended for the location, diversion, artificial recharge, or acquisition of ground water.

     (42)(41) "Watershed advisory group" means a group of individuals who wish to participate in an advisory capacity in revising and reprioritizing the list of water bodies developed under 75-5-702 and in the development of TMDLs under 75-5-703, including those groups or individuals requested by the department to participate in an advisory capacity as provided in 75-5-704.

     75-5-103.  (Effective on occurrence of contingency) Definitions. Unless the context requires otherwise, in this chapter, the following definitions apply:

     (1)  "Associated supporting infrastructure" means:

     (a)  electric transmission and distribution facilities;

     (b)  pipeline facilities;

     (c)  aboveground ponds and reservoirs and underground storage reservoirs;

     (d)  rail transportation;

     (e)  aqueducts and diversion dams;

     (f)  devices or equipment associated with the delivery of an energy form or product produced at an energy development project; or

     (g)  other supporting infrastructure, as defined by board rule, that is necessary for an energy development project.

     (2)  (a) "Base numeric nutrient standards" means numeric water quality criteria for nutrients in surface water that are adopted to protect the designated uses of a surface water body.

     (b)  The term does not include numeric water quality standards for nitrate, nitrate plus nitrite, or nitrite that are adopted to protect human health.

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

     (4)(3)  "Contamination" means impairment of the quality of state waters by sewage, industrial wastes, or other wastes, creating a hazard to human health.

     (5)(4)  "Council" means the water pollution control advisory council provided for in 2-15-2107.

     (6)(5)  (a) "Currently available data" means data that is readily available to the department at the time a decision is made, including information supporting its previous lists of water bodies that are threatened or impaired.

     (b)  The term does not mean new data to be obtained as a result of department efforts.

     (7)(6)  "Degradation" means a change in water quality that lowers the quality of high-quality waters for a parameter. The term does not include those changes in water quality determined to be nonsignificant pursuant to 75-5-301(5)(c).

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

     (9)(8)  "Disposal system" means a system for disposing of sewage, industrial, or other wastes and includes sewage systems and treatment works.

     (10)(9) "Effluent standard" means a restriction or prohibition on quantities, rates, and concentrations of chemical, physical, biological, and other constituents that are discharged into state waters.

     (11)(10) (a) "Energy development project" means each plant, unit, or other development and associated developments, including any associated supporting infrastructure, designed for or capable of:

     (i)  generating electricity;

     (ii) producing gas derived from coal;

     (iii) producing liquid hydrocarbon products;

     (iv) refining crude oil or natural gas;

     (v)  producing alcohol to be blended for ethanol-blended gasoline and that are eligible for a tax incentive pursuant to Title 15, chapter 70, part 5;

     (vi) producing biodiesel and that are eligible for a tax incentive for the production of biodiesel pursuant to 15-32-701; or

     (vii) transmitting electricity through an electric transmission line with a design capacity of equal to or greater than 50 kilovolts.

     (b)  The term does not include a nuclear facility as defined in 75-20-1202.

     (12)(11) "Existing uses" means those uses actually attained in state waters on or after July 1, 1971, whether or not those uses are included in the water quality standards.

     (13)(12) "High-quality waters" means all state waters, except:

     (a)  ground water classified as of January 1, 1995, within the "III" or "IV" classifications established by the board's department's classification rules; and

     (b)  surface waters that:

     (i)  are not capable of supporting any one of the designated uses for their classification; or

     (ii) have zero flow or surface expression for more than 270 days during most years.

     (14)(13) "Impaired water body" means a water body or stream segment for which sufficient credible data shows that the water body or stream segment is failing to achieve compliance with applicable water quality standards.

     (15)(14) "Industrial waste" means a waste substance from the process of business or industry or from the development of any natural resource, together with any sewage that may be present.

     (16)(15) "Interested person" means a person who has a real property interest, a water right, or an economic interest that is or may be directly and adversely affected by the department's preliminary decision regarding degradation of state waters, pursuant to 75-5-303. The term includes a person who has requested authorization to degrade high-quality waters.

     (17)(16) "Load allocation" means the portion of a receiving water's loading capacity that is allocated to one of its existing or future nonpoint sources or to natural background sources.

     (18)(17) "Loading capacity" means the mass of a pollutant that a water body can assimilate without a violation of water quality standards. For pollutants that cannot be measured in terms of mass, it means the maximum change that can occur from the best practicable condition in a surface water without causing a violation of the surface water quality standards.

     (19)(18) "Local department of health" means the staff, including health officers, employed by a county, city, city-county, or district board of health.

     (20)(19) "Metal parameters" includes but is not limited to aluminum, antimony, arsenic, beryllium, barium, cadmium, chromium, copper, fluoride, iron, lead, manganese, mercury, nickel, selenium, silver, thallium, and zinc.

     (21)(20) "Mixing zone" means an area established in a permit or final decision on nondegradation issued by the department where water quality standards may be exceeded, subject to conditions that are imposed by the department and that are consistent with the rules adopted by the board department.

     (22)(21) "Nutrient standards variance" means numeric water quality criteria for nutrients based on a determination that base numeric nutrient standards cannot be achieved because of economic impacts or because of the limits of technology. The term includes individual, general, and alternative nutrient standards variances in accordance with 75-5-313.

     (23)(22) "Nutrient work group" means an advisory work group, convened by the department, representing publicly owned and privately owned point sources of pollution, nonpoint sources of pollution, and other interested parties that will advise the department on the base numeric nutrient standards, the development of nutrient standards variances, and the implementation of those standards and variances together with associated economic impacts.

     (24)(23) "Other wastes" means garbage, municipal refuse, decayed wood, sawdust, shavings, bark, lime, sand, ashes, offal, night soil, oil, grease, tar, heat, chemicals, dead animals, sediment, wrecked or discarded equipment, radioactive materials, solid waste, and all other substances that may pollute state waters.

     (25)(24) "Outstanding resource waters" means:

     (a)  state surface waters located wholly within the boundaries of areas designated as national parks or national wilderness areas as of October 1, 1995; or

     (b)  other surface waters or ground waters classified by the board department under the provisions of 75-5-316 and approved by the legislature.

     (26)(25) "Owner or operator" means a person who owns, leases, operates, controls, or supervises a point source.

     (27)(26) "Parameter" means a physical, biological, or chemical property of state water when a value of that property affects the quality of the state water.

     (28)(27) "Person" means the state, a political subdivision of the state, institution, firm, corporation, partnership, individual, or other entity and includes persons resident in Canada.

     (29)(28) "Point source" means a discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, or vessel or other floating craft, from which pollutants are or may be discharged.

     (30)(29) (a) "Pollution" means:

     (i)  contamination or other alteration of the physical, chemical, or biological properties of state waters that exceeds that permitted by Montana water quality standards, including but not limited to standards relating to change in temperature, taste, color, turbidity, or odor; or

     (ii) the discharge, seepage, drainage, infiltration, or flow of liquid, gaseous, solid, radioactive, or other substance into state water that will or is likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, or welfare, to livestock, or to wild animals, birds, fish, or other wildlife.

     (b)  The term does not include:

     (i)  a discharge, seepage, drainage, infiltration, or flow that is authorized under the pollution discharge permit rules adopted by the board under this chapter;

     (ii) activities conducted under this chapter that comply with the conditions imposed by the department in short-term authorizations pursuant to 75-5-308;

     (iii) contamination of ground water within the boundaries of a geologic storage reservoir, as defined in 82-11-101, by a carbon dioxide injection well in accordance with a permit issued pursuant to Title 82, chapter 11, part 1;

     (iv) contamination of ground water within the boundaries of an underground mine using in situ coal gasification and operating in accordance with a permit issued under 82-4-221;.

     (c)  Contamination referred to in subsections (30)(b)(iii) and (30)(b)(iv) (29)(b)(iii) and (29)(b)(iv) does not require a mixing zone.

     (31)(30) "Sewage" means water-carried waste products from residences, public buildings, institutions, or other buildings, including discharge from human beings or animals, together with ground water infiltration and surface water present.

     (32)(31) "Sewage system" means a device for collecting or conducting sewage, industrial wastes, or other wastes to an ultimate disposal point.

     (33)(32) "Standard of performance" means a standard adopted by the board department for the control of the discharge of pollutants that reflects the greatest degree of effluent reduction achievable through application of the best available demonstrated control technology, processes, operating methods, or other alternatives, including, when practicable, a standard permitting no discharge of pollutants.

     (34)(33) (a) "State waters" means a body of water, irrigation system, or drainage system, either surface or underground.

     (b)  The term does not apply to:

     (i)  ponds or lagoons used solely for treating, transporting, or impounding pollutants; or

     (ii) irrigation waters or land application disposal waters when the waters are used up within the irrigation or land application disposal system and the waters are not returned to state waters.

     (35)(34) "Sufficient credible data" means chemical, physical, or biological monitoring data, alone or in combination with narrative information, that supports a finding as to whether a water body is achieving compliance with applicable water quality standards.

     (36)(35) "Threatened water body" means a water body or stream segment for which sufficient credible data and calculated increases in loads show that the water body or stream segment is fully supporting its designated uses but threatened for a particular designated use because of:

     (a)  proposed sources that are not subject to pollution prevention or control actions required by a discharge permit, the nondegradation provisions, or reasonable land, soil, and water conservation practices; or

     (b)  documented adverse pollution trends.

     (37)(36) "Total maximum daily load" or "TMDL" means the sum of the individual waste load allocations for point sources and load allocations for both nonpoint sources and natural background sources established at a level necessary to achieve compliance with applicable surface water quality standards.

     (38)(37) "Treatment works" means works, including sewage lagoons, installed for treating or holding sewage, industrial wastes, or other wastes.

     (39)(38) "Waste load allocation" means the portion of a receiving water's loading capacity that is allocated to one of its existing or future point sources.

     (40)(39) "Water quality protection practices" means those activities, prohibitions, maintenance procedures, or other management practices applied to point and nonpoint sources designed to protect, maintain, and improve the quality of state waters. Water quality protection practices include but are not limited to treatment requirements, standards of performance, effluent standards, and operating procedures and practices to control site runoff, spillage or leaks, sludge or water disposal, or drainage from material storage.

     (41)(40) "Water well" means an excavation that is drilled, cored, bored, washed, driven, dug, jetted, or otherwise constructed and intended for the location, diversion, artificial recharge, or acquisition of ground water.

     (42)(41) "Watershed advisory group" means a group of individuals who wish to participate in an advisory capacity in revising and reprioritizing the list of water bodies developed under 75-5-702 and in the development of TMDLs under 75-5-703, including those groups or individuals requested by the department to participate in an advisory capacity as provided in 75-5-704."

 

     Section 45.  Section 75-5-105, MCA, is amended to read:

     "75-5-105.  Confidentiality of records. Except as provided in 80-15-108, any information concerning sources of pollution that is furnished to the board or department or that is obtained by either of them is a matter of public record and open to public use. However, any information unique to the owner or operator of a source of pollution that would, if disclosed, reveal methods or processes entitled to protection as trade secrets must be maintained as confidential if so determined by a court of competent jurisdiction. The owner or operator shall file a declaratory judgment action to establish the existence of a trade secret if the owner or operator wishes the information to remain confidential. The department must be served in the action and may intervene as a party. Any information not intended to be public when submitted to the board or department must be submitted in writing and clearly marked as confidential. Except as provided in 75-5-314, the data describing physical and chemical characteristics of a waste discharged to state waters may not be considered confidential. The board department may use any information in compiling or publishing analyses or summaries relating to water pollution if the analyses or summaries do not identify any owner or operator of a source of pollution or reveal any information that is otherwise made confidential by this section."

 

     Section 46.  Section 75-5-106, MCA, is amended to read:

     "75-5-106.  Interagency cooperation -- enforcement authorization. (1) The council, board, and the department may require the use of records of all state agencies and may seek the assistance of the agencies. When the department's review of a permit application submitted under another chapter or title is required or requested, the department shall coordinate the review under this chapter with the review conducted by the agency or unit under the other chapter, following the time schedule for that review. State, county, and municipal officers and employees, including sanitarians and other employees of local departments of health, shall cooperate with the council, board, and the department in furthering the purposes of this chapter, so far as is practicable and consistent with their other duties.

     (2)  The department may authorize a local water quality district established according to the provisions of Title 7, chapter 13, part 45, to enforce the provisions of this chapter and rules adopted under this chapter on a case-by-case basis. If a local water quality district requests the authorization, the local water quality district shall present appropriate documentation to the department that a person is violating permit requirements established by the department or may be causing pollution, as defined in 75-5-103, of state waters or placing or causing to be placed wastes in a location where they are likely to cause pollution of state waters. The board department may adopt rules regarding the granting of enforcement authority to local water quality districts."

 

     Section 47.  Section 75-5-201, MCA, is amended to read:

     "75-5-201.  Board rules Rules authorized. (1) (a) The board department shall, subject to the provisions of 75-5-203, adopt rules for the administration of this chapter.

     (b)  The board department shall adopt rules that describe the location and the times of the year when suction dredging is permissible. These rules may be adopted only after consultation with the local conservation districts in the areas subject to the rule.

     (2)  The board's rules may include a fee schedule or system for assessment of administrative penalties as provided under 75-5-611."

 

     Section 48.  Section 75-5-202, MCA, is amended to read:

     "75-5-202.  Board hearings Hearings. The board department shall hold hearings necessary for the proper administration of this chapter or, in the case of permit issuance hearings, delegate this function to the department."

 

     Section 49.  Section 75-5-203, MCA, is amended to read:

     "75-5-203.  State regulations no more stringent than federal regulations or guidelines. (1) Except as provided in subsections (2) through (5) or unless required by state law, the board department may not adopt a rule to implement 75-5-301, 75-5-302, 75-5-303, or 75-5-310 that is more stringent than the comparable federal regulations or guidelines that address the same circumstances. The board department may incorporate by reference comparable federal regulations or guidelines.

     (2)  The board department may adopt a rule to implement this chapter that is more stringent than comparable federal regulations or guidelines only if the board 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 pertinent, ascertainable, and peer-reviewed scientific studies contained in the record that forms the basis for the board's 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 board that that the person believes to be more stringent than comparable federal regulations or guidelines may petition the board department to review the rule. If the board department determines that the rule is more stringent than comparable federal regulations or guidelines, the board 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 8 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 board department may charge a petition filing fee in an amount not to exceed $250.

     (b)  A person may also petition the board department for a rule review under subsection (4)(a) if the board department adopts a rule 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 board rule.

     (5)  This section does not apply to a rule adopted under the emergency rulemaking provisions of 2-4-303(1)."

 

     Section 50.  Section 75-5-222, MCA, is amended to read:

     "75-5-222.  State regulation for natural conditions. (1) The department may not apply a standard to a water body for water quality that is more stringent than the nonanthropogenic condition of the water body. For the parameters for which the applicable standards are more stringent than the nonanthropogenic condition, the standard is the nonanthropogenic condition of the parameter in the water body. The department shall implement the standard in a manner that provides for the water quality standards for downstream waters to be attained and maintained.

     (2)  (a) For water bodies where the standard is more stringent than the condition of the water body but subsection (1) is not applicable, the board department shall adopt rules consistent with comparable federal rules and guidelines providing criteria and procedures for the department to issue variances from standards if:

     (i)  the condition cannot reasonably be expected to be remediated during the permit term for which the application for variance has been received; and

     (ii) the discharge to which the variance applies would not materially contribute to the condition.

     (b)  A variance issued pursuant to subsection (2)(a) must be reviewed every 5 years and may be modified or terminated as a result of the review."

 

     Section 51.  Section 75-5-301, MCA, is amended to read:

     "75-5-301.  Classification and standards for state waters. Consistent with the provisions of 80-15-201 and this chapter, the board department shall:

     (1)  establish the classification of all state waters in accordance with their present and future most beneficial uses, creating an appropriate classification for streams that, due to sporadic flow, do not support an aquatic ecosystem that includes salmonid or nonsalmonid fish;

     (2)  formulate and adopt standards of water quality, giving consideration to the economics of waste treatment and prevention. When rules are adopted regarding temporary standards, they must conform with the requirements of 75-5-312. Standards adopted by the board department must meet the following requirements:

     (a)  for carcinogens, the water quality standard for protection of human health must be the value associated with an excess lifetime cancer risk level, assuming continuous lifetime exposure, not to exceed 1 x 10-3 in the case of arsenic and 1 x 10-5 for other carcinogens. However, if a standard established at a risk level of 1 x 10-3 for arsenic or 1 x 10-5 for other carcinogens violates the maximum contaminant level obtained from 40 CFR, part 141, then the maximum contaminant level must be adopted as the standard for that carcinogen.

     (b)  standards for the protection of aquatic life do not apply to ground water.

     (3)  review, from time to time at intervals of not more than 3 years and, to the extent permitted by this chapter, revise established classifications of waters and adopted standards of water quality;

     (4)  adopt rules governing the granting of mixing zones, requiring that mixing zones granted by the department be specifically identified and requiring that mixing zones have:

     (a)  the smallest practicable size;

     (b)  a minimum practicable effect on water uses; and

     (c)  definable boundaries;

     (5)  adopt rules implementing the nondegradation policy established in 75-5-303, including but not limited to rules that:

     (a)  provide a procedure for department review and authorization of degradation;

     (b)  establish criteria for the following:

     (i)  determining important economic or social development; and

     (ii) weighing the social and economic importance to the public of allowing the proposed project against the cost to society associated with a loss of water quality;

     (c)  establish criteria for determining whether a proposed activity or class of activities, in addition to those activities identified in 75-5-317, will result in nonsignificant changes in water quality for any parameter in order that those activities are not required to undergo review under 75-5-303(3). These criteria must be established in a manner that generally:

     (i)  equates significance with the potential for harm to human health, a beneficial use, or the environment;

     (ii) considers both the quantity and the strength of the pollutant;

     (iii) considers the length of time the degradation will occur;

     (iv) considers the character of the pollutant so that greater significance is associated with carcinogens and toxins that bioaccumulate or biomagnify and lesser significance is associated with substances that are less harmful or less persistent.

     (d)  provide that changes of nitrate as nitrogen in ground water are nonsignificant if the discharge will not cause degradation of surface water and the predicted concentration of nitrate as nitrogen at the boundary of the ground water mixing zone does not exceed:

     (i)  7.5 milligrams per liter from sources other than sewage;

     (ii) 5.0 milligrams per liter from sewage discharged from a system that does not use level two treatment in an area where the ground water nitrate as nitrogen is 5.0 milligrams per liter or less;

     (iii) 7.5 milligrams per liter from sewage discharged from a system using level two treatment, which must be defined in the rules; or

     (iv) 7.5 milligrams per liter from sewage discharged from a system in areas where the ground water nitrate as nitrogen level exceeds 5.0 milligrams per liter primarily from sources other than human waste.

     (6)  to the extent practicable, ensure that the rules adopted under subsection (5) establish objective and quantifiable criteria for various parameters. These criteria must, to the extent practicable, constitute guidelines for granting or denying applications for authorization to degrade high-quality waters under the policy established in 75-5-303(2) and (3).

     (7)  adopt rules to implement this section."

 

     Section 52.  Section 75-5-302, MCA, is amended to read:

     "75-5-302.  Revising classifications in accordance with existing, present, and future most beneficial uses of water bodies. When the board or department is presented with facts indicating that a body of water is not properly classified in accordance with its existing, present, and future most beneficial uses, the department shall, within 90 days, evaluate the facts and advise the board whether the water body is not properly classified. If the board department determines that the water body is not properly classified, the board department shall initiate rulemaking to properly classify the water body in accordance with its existing, present, and future most beneficial uses. Board action Action pursuant to this section is subject to 75-5-307."

 

     Section 53.  Section 75-5-303, MCA, is amended to read:

     "75-5-303.  Nondegradation policy. (1) Existing uses of state waters and the level of water quality necessary to protect those uses must be maintained and protected.

     (2)  Unless authorized by the department under subsection (3) or exempted from review under 75-5-317, the quality of high-quality waters must be maintained.

     (3)  The department may not authorize degradation of high-quality waters unless it has been affirmatively demonstrated by a preponderance of evidence to the department that:

     (a)  degradation is necessary because there are no economically, environmentally, and technologically feasible modifications to the proposed project that would result in no degradation;

     (b)  the proposed project will result in important economic or social development and that the benefit of the development exceeds the costs to society of allowing degradation of high-quality waters;

     (c)  existing and anticipated use of state waters will be fully protected; and

     (d)  the least degrading water quality protection practices determined by the department to be economically, environmentally, and technologically feasible will be fully implemented by the applicant prior to and during the proposed activity.

     (4)  The department shall issue a preliminary decision either denying or authorizing degradation and shall provide public notice and a 30-day comment period prior to issuing a final decision. The department's preliminary and final decisions must include:

     (a)  a statement of the basis for the decision; and

     (b)  a detailed description of all conditions applied to any authorization to degrade state waters, including, when applicable, monitoring requirements, required water protection practices, reporting requirements, effluent limits, designation of the mixing zones, the limits of degradation authorized, and methods of determining compliance with the authorization for degradation.

     (5)  An interested person wishing to challenge a final department decision may request a hearing before the board department within 30 days of the final department decision. The contested case procedures of Title 2, chapter 4, part 6, apply to a hearing under this section.

     (6)  Periodically, but not more often than every 5 years, the department may review authorizations to degrade state waters. Following the review, the department may, after timely notice and opportunity for hearing, modify the authorization if the department determines that an economically, environmentally, and technologically feasible modification to the development exists. The decision by the department to modify an authorization may be appealed to the board department.

     (7)  The board department may not issue an authorization to degrade state waters that are classified as outstanding resource waters.

     (8)  The board department shall adopt rules to implement this section."

 

     Section 54.  Section 75-5-304, MCA, is amended to read:

     "75-5-304.  Adoption of standards -- pretreatment, effluent, performance. (1) The board department shall:

     (a)  adopt pretreatment standards for wastewater discharged into a municipal disposal system;

     (b)  adopt effluent standards as defined in 75-5-103;

     (c)  adopt toxic effluent standards and prohibitions;

     (d)  establish standards of performance for new point source discharges; and

     (e)  adopt rules necessary to ensure the primacy of the department to regulate cooling water intake structures under 33 U.S.C. 1326(b).

     (2)  In taking action under subsection (1), the board department shall ensure that the standards are cost-effective and economically, environmentally, and technologically feasible."

 

     Section 55.  Section 75-5-305, MCA, is amended to read:

     "75-5-305.  Adoption of requirements for treatment of wastes -- variance procedure -- appeals. (1) The board department may establish minimum requirements for the treatment of wastes. For cases in which the federal government has adopted technology-based treatment requirements for a particular industry or activity in 40 CFR, chapter I, subchapter N, the board department shall adopt those requirements by reference. To the extent that the federal government has not adopted minimum treatment requirements for a particular industry or activity, the board department may do so, through rulemaking, for parameters likely to affect beneficial uses, ensuring that the requirements are cost-effective and economically, environmentally, and technologically feasible. Except for the technology-based treatment requirements set forth in 40 CFR, chapter I, subchapter N, minimum treatment may not be required to address the discharge of a parameter when the discharge is considered nonsignificant under rules adopted pursuant to 75-5-301.

     (2)  (a) The board department shall establish minimum requirements for the control and disposal of sewage from private and public buildings, including standards and procedures for variances from the requirements.

     (b)  For gray water reuse systems, the board department shall establish rules that:

     (i)  allow the diversion of gray water from wastewater treatment systems and limit the amount of gray water flow allowed by permit;

     (ii) address the uses of gray water, including when and how gray water may be applied to land; and

     (iii) include any other provisions that the board department considers necessary to ensure that gray water reuse systems comply with laws and regulations and protect public health and the environment.

     (3)  An applicant for a variance from minimum requirements adopted by a local board of health pursuant to 50-2-116 may appeal the local board of health's final decision to the department by submitting a written request for a hearing within 30 days after the decision. The written request must describe the activity for which the variance is requested, include copies of all documents submitted to the local board of health in support of the variance, and specify the reasons for the appeal of the local board of health's final decision.

     (4)  The department shall conduct a hearing on the request pursuant to Title 2, chapter 4, part 6. Within 30 days after the hearing, the department shall grant, conditionally grant, or deny the variance. The department shall base its decision on the board's standards for a variance.

     (5)  A decision of the department pursuant to subsection (4) is appealable to district court under the provisions of Title 2, chapter 4, part 7."

 

     Section 56.  Section 75-5-307, MCA, is amended to read:

     "75-5-307.  Hearings required for classification, formulation of standards, and rulemaking. (1) Before streams are classified or standards established or modified or rules made, revoked, or modified, the board department shall hold a public hearing. Notice of the hearing specifying the waters concerned and the classification, standards, or modification of them and any rules proposed to be made, revoked, or modified shall must be published at least once a week for 3 consecutive weeks in a daily newspaper of general circulation in the area affected. Notice shall must also be mailed directly to persons the board department believes may be affected by the proposed action. The council shall must be given not less than 30 days prior to first publication to comment on the proposed action.

     (2)  At a hearing held under this section, the board department shall give all interested persons reasonable opportunity to submit data, views, or arguments, orally or in writing. The board department may make rules for the orderly conduct of the hearing but need not require compliance with the rules of evidence or procedure applicable to hearings held under 75-5-611."

 

     Section 57.  Section 75-5-308, MCA, is amended to read:

     "75-5-308.  Short-term water authorizations -- water quality standards. (1) Because these activities promote the public interest, the department may, if necessary, authorize short-term exemptions from the water quality standards for the following activities:

     (a)  emergency remediation activities that have been approved, authorized, or required by the department; and

     (b)  application of a pesticide that is registered by the United States environmental protection agency pursuant to 7 U.S.C. 136(a) when it is used to control nuisance aquatic organisms or to eliminate undesirable and nonnative aquatic species.

     (2)  An authorization must include conditions that minimize, to the extent practicable, the magnitude of any change in the concentration of the parameters affected by the activity and the length of time during which any change may occur. The authorization must also include conditions that prevent significant risk to public health and that ensure that existing and designated uses of state water are protected and maintained upon completion of the activity. Authorizations issued under this section may include conditions that require water quality or quantity monitoring and reporting. In the performance of its responsibilities under this section, the department may negotiate operating agreements with other departments of state government that are intended to minimize duplication in review of activities eligible for authorizations under this section.

     (3)  An authorization to use a pesticide does not relieve a person from the duty to comply with Title 80, chapters 8 and 15. The department may not authorize an exemption from water quality standards for an activity that requires a discharge permit under rules adopted by the board pursuant to 75-5-401."

 

     Section 58.  Section 75-5-310, MCA, is amended to read:

     "75-5-310.  Site-specific standards of water quality for aquatic life. (1) Notwithstanding any other provisions of this chapter and except as provided in subsection (2), the board department, upon application by a permit applicant, permittee, or person potentially liable under any state or federal environmental remediation statute, shall adopt site-specific standards of water quality for aquatic life, both acute and chronic, as the standards of water quality required under 75-5-301(2) and (3). The site-specific standards of water quality must be developed in accordance with the procedures set forth in draft or final federal regulations, guidelines, or criteria.

     (2)  If the department, based upon its review of an application submitted under subsection (1) and sound scientific, technical, and available site-specific evidence, determines that the development of site-specific criteria in accordance with draft or final federal regulations, guidelines, or criteria would not be protective of beneficial uses, the department, within 90 days of the submission of an application under subsection (1), shall notify the applicant in writing of its determination and of all additional procedures that the applicant is required to comply with in the development of site-specific standards of water quality under this section. If there is a dispute between the department and the applicant as to the additional procedures, the board department shall, on the request of the department or the applicant, hear and determine the dispute. The board's department's decision must be based on sound scientific, technical, and available site-specific evidence."

 

     Section 59.  Section 75-5-311, MCA, is amended to read:

     "75-5-311.  Local water quality districts -- board department approval -- local water quality programs. (1) A county that establishes a local water quality district according to the procedures specified in Title 7, chapter 13, part 45, shall, in consultation with the department, undertake planning and information-gathering activities necessary to develop a proposed local water quality program.

     (2)  A county may implement a local water quality program in a local water quality district if the program is approved by the board department after a hearing conducted under 75-5-202.

     (3)  In approving a local water quality program, the board department shall determine that the program is consistent with the purposes and requirements of Title 75, chapter 5, and that the program will be effective in protecting, preserving, and improving the quality of surface water and ground water, considering the administrative organization, staff, and financial and other resources available to implement the program.

     (4)  Subject to the board's department approval, the commissioners and the governing bodies of cities and towns that participate in a local water quality district may adopt local ordinances to regulate the following specific facilities and sources of pollution:

     (a)  onsite wastewater disposal facilities;

     (b)  storm water runoff from paved surfaces;

     (c)  service connections between buildings and publicly owned sewer mains;

     (d)  facilities that use or store halogenated and nonhalogenated solvents, including hazardous substances that are referenced in 40 CFR 261.31, United States environmental protection agency hazardous waste numbers F001 through F005, as amended; and

     (e)  internal combustion engine lubricants.

     (5)  (a) For the facilities and sources of pollution included in subsection (4) and consistent with the provisions of subsection (6), the local ordinances may:

     (i)  be compatible with or more stringent or more extensive than the requirements imposed by 75-5-304, 75-5-305, and 75-5-401 through 75-5-404 and rules adopted under those sections to protect water quality, establish waste discharge permit requirements, and establish best management practices for substances that have the potential to pollute state waters;

     (ii) provide for administrative procedures, administrative orders and actions, and civil enforcement actions that are consistent with 75-5-601 through 75-5-604, 75-5-611 through 75-5-616, 75-5-621, and 75-5-622 and rules adopted under those sections; and

     (iii) provide for civil penalties not to exceed $1,000 per violation, provided that each day of violation of a local ordinance constitutes a separate violation, and criminal penalties not to exceed $500 per day of violation or imprisonment for not more than 30 days, or both.

     (b)  Board Department approval of an ordinance or local law that is more stringent than the comparable state law is subject to the provisions of 75-5-203.

     (6)  The local ordinances authorized by this section may not:

     (a)  duplicate the department's requirements and procedures relating to permitting of waste discharge sources and enforcement of water quality standards;

     (b)  regulate any facility or source of pollution to the extent that the facility or source is:

     (i)  required to obtain a permit or other approval from the department or federal government or is the subject of an administrative order, a consent decree, or an enforcement action pursuant to Title 75, chapter 5, part 4; Title 75, chapter 6; Title 75, chapter 10; the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. 9601 through 9675, as amended; or federal environmental, safety, or health statutes and regulations;

     (ii) exempted from obtaining a permit or other approval from the department because the facility or source is required to obtain a permit or other approval from another state agency or is the subject of an enforcement action by another state agency; or

     (iii) subject to the provisions of Title 80, chapter 8 or chapter 15.

     (7)  If the boundaries of a district are changed after the board department has approved the local water quality program for the district, the board of directors of the local water quality district shall submit a program amendment to the board department and obtain the board's department approval of the program amendment before implementing the local water quality program in areas that have been added to the district.

     (8)  The department shall monitor the implementation of local water quality programs to ensure that the programs are adequate to protect, preserve, and improve the quality of the surface water and ground water and are being administered in a manner consistent with the purposes and requirements of Title 75, chapter 5. If the department finds that a local water quality program is not adequate to protect, preserve, and improve the quality of the surface water and ground water or is not being administered in a manner consistent with the purposes and requirements of Title 75, chapter 5, the department shall prepare a report to the board.

     (9)  If the board department determines that a local water quality program is inadequate to protect, preserve, and improve the quality of the surface water and ground water in the local water quality district or that the program is being administered in a manner inconsistent with Title 75, chapter 5, the board department shall give notice and conduct a hearing on the matter.

     (10) If after the hearing the board department determines that the program is inadequate to protect, preserve, and improve the quality of the surface water and ground water in the local water quality district or that it is not being administered in a manner consistent with the purposes of Title 75, chapter 5, the board department shall require that necessary corrective measures be taken within a reasonable time, not to exceed 60 days.

     (11) If an ordinance adopted under this section conflicts with a requirement imposed by the department's water quality program, the department's requirement supersedes the local ordinance.

     (12) If the board department finds that, because of the complexity or magnitude of a particular water pollution source, the control of the source is beyond the reasonable capability of a local water quality district or may be more efficiently and economically performed at the state level, the board may direct the department to may assume and retain control over the source. A charge may not be assessed against the local water quality district for that source. Findings made under this subsection may be based on the nature of the source involved or on the source's relationship to the size of the community in which it is located."

 

     Section 60.  Section 75-5-312, MCA, is amended to read:

     "75-5-312.  Temporary water quality standards. (1) The board department may on its own accord, upon recommendation of the department or upon a petition for rulemaking, as provided in 2-4-315, by a person, including a permit applicant or permittee, temporarily modify a water quality standard for a specific water body or segment on a parameter-by-parameter basis in those instances in which substantive information indicates that the water body or segment is not supporting its designated uses. When the board department adopts temporary standards, the goal is to improve water quality to the point at which all the beneficial uses designated for that water body or segment are supported.

     (2)  As a condition for establishing temporary water quality standards for a particular water body or segment, the department or the petitioner, as applicable, shall prepare a support document and a preliminary implementation plan for use by the board department in determining whether to adopt the proposed temporary water quality standards. A person shall submit a support document and a preliminary implementation plan to the department for its review at least 60 days prior to filing a petition with the board requesting the adoption of temporary water quality standards.

     (3)  The support document prepared by the department or the petitioner, as applicable, must describe:

     (a)  the chemical, biological, and physical condition of the water body or segment;

     (b)  the specific water quality limiting factors affecting the water body or segment;

     (c)  the existing water quality standards that are not being achieved;

     (d)  the temporary modifications to the existing water quality standards being requested;

     (e)  existing beneficial uses; and

     (f)  the designated uses considered attainable in the absence of the water quality limiting factors.

     (4)  The preliminary implementation plan prepared by the department or the petitioner, as applicable, must contain:

     (a)  a description of the proposed actions that will eliminate the water quality limiting factors identified in subsection (3)(b) to the extent considered achievable; and

     (b)  a schedule for implementing the proposed actions that ensures that the existing water quality standards for the parameter or parameters at issue are met as soon as reasonably practicable.

     (5)  Within 30 days after the board's adoption of temporary water quality standards, the department or the petitioner, as applicable, shall:

     (a)  modify the preliminary implementation plan and schedule to reflect the requirements and timeframe adopted by the board for the temporary standards; and

     (b)  develop a detailed work plan describing the implementation activities that will be conducted during the first field season of the temporary standards. The work plan must be approved by the director of the department.

     (6)  By March 1 of each year that the temporary water quality standards are in effect, the department or the petitioner, as applicable, shall submit a detailed work plan describing the implementation activities that will be conducted during that season. The annual work plans must be approved by the director of the department. The department shall maintain copies of the implementation plan, schedule, and annual work plans and any modifications to those plans and schedule.

     (7)  Upon the board's adoption of a temporary water quality standard, the department shall ensure that reasonable conditions and limitations designed to achieve compliance with the implementation plan are established in appropriate discharge permits.

     (8)  (a) A temporary modification of a water quality standard may not result in adverse impacts to existing beneficial uses or be established for a total period longer than 20 years.

     (b)  During the period of the temporary modification, the board department may not allow a discharge that will cause overall water quality to become worse than the overall quality of the water body or segment prior to the discharge.

     (9)  If a state water is designated as having temporary standards, the department shall report to the board at least every 3 years or upon request of the board regarding whether adequate efforts have been made to implement the plans submitted as the basis for the temporary standards.

     (10) The board department shall review the temporary standards and implementation plan at least every 3 years at a public hearing for which notice and an opportunity for comment have been provided. During this review, the board department shall consider the progress made in restoring water quality to a level that achieves the goal of the temporary water quality standards. The board department may terminate or modify the temporary standards based on information submitted at the time of review.

     (11) The board department shall terminate a temporary standard for a parameter if:

     (a)  values for the modified parameter or parameters improve to conditions that support all designated uses for that classification;

     (b)  the state water for which the temporary standard is adopted is reclassified as provided for in 75-5-302; or

     (c)  the plan submitted in support of the temporary water quality standard is not being implemented according to the plan's schedule or modifications to that plan or schedule made by the board or department.

     (12) The board or the department may modify the implementation plan if there is convincing evidence that the plan needs modification.

     (13) If a temporary standard for a parameter in a particular state water is terminated because the plan submitted in support of the temporary water quality standard is not being implemented according to the plan's schedule or modifications to that schedule made by the board or department, a person may request a new temporary standard by submitting both a petition for rulemaking and an implementation plan that meet the requirements of subsection (4). However, the board department may not adopt another temporary standard for the parameter in the state water that would cumulatively be in effect for a total period longer than 20 years for the parameter in the state water."

 

     Section 61.  Section 75-5-313, MCA, is amended to read:

     "75-5-313.  Nutrient standards variances -- individual, general, and alternative. (1) The department shall, on a case-by-case basis, approve the use of an individual nutrient standards variance in a discharge permit based upon adequate justification pursuant to subsection (2) that attainment of the base numeric nutrient standards is precluded due to economic impacts, limits of technology, or both.

     (2)  (a) The department, in consultation with the nutrient work group, shall develop guidelines for individual nutrient standards variances to ensure that the economic impacts from base numeric nutrient standards on public and private systems are equally and adequately addressed. In developing those guidelines, the department and the nutrient work group shall consider economic impacts appropriate for application within Montana, acknowledging that advanced treatment technologies for removing nutrients will result in significant and widespread economic impacts.

     (b)  The department shall consult with the nutrient work group prior to recommending base numeric nutrient standards to the board and shall continue to consult with the nutrient work group in implementing individual nutrient standards variances.

     (3)  The department shall review each application for an individual nutrient standards variance on a case-by-case basis to determine if there are reasonable alternatives, such as trading, permit compliance schedules, or the alternatives provided in subsections (5), (10), and (11), that preclude the need for the individual nutrient standards variance.

     (4)  Individual nutrient standards variances approved by the department become effective and may be incorporated into a permit only after a public hearing and adoption by the department under the rulemaking procedures of Title 2, chapter 4, part 3.

     (5)  (a) Because the treatment of wastewater to base numeric nutrient standards would result in substantial and widespread economic impacts on a statewide basis, a permittee who meets the requirements established in subsection (5)(b) may, subject to subsection (6), apply for a general nutrient standards variance.

     (b)  The department shall approve the use of a general nutrient standards variance for permittees with wastewater treatment facilities that discharge to surface water:

     (i)  in an amount greater than or equal to 1 million gallons per day of effluent if the permittee treats the discharge to, at a minimum, 1 milligram total phosphorus per liter and 10 milligrams total nitrogen per liter, calculated as a monthly average during the period in which the base numeric nutrient standards apply;

     (ii) in an amount less than 1 million gallons per day of effluent if the permittee treats the discharge to, at a minimum, 2 milligrams total phosphorus per liter and 15 milligrams total nitrogen per liter, calculated as a monthly average during the period in which the base numeric nutrient standards apply; or

     (iii) from lagoons that were not designed to actively remove nutrients if the permittee maintains the performance of the lagoon at a level equal to the performance of the lagoon on October 1, 2011.

     (6)  (a) The monthly average concentrations for total nitrogen and total phosphorus in subsection (5)(b) are the highest concentrations allowed in each category and remain in effect until May 31, 2016.

     (b)  Categories and concentrations in subsection (5)(b) must be adopted by rule by May 31, 2016.

     (7)  (a) Immediately after May 31, 2016, and every 3 years thereafter, the department, in consultation with the nutrient work group, shall revisit and update the concentration levels provided in subsection (5)(b).

     (b)  If more cost-effective and efficient treatment technologies are available, the concentration levels provided in subsection (5)(b) must be updated pursuant to subsection (7)(c) to reflect those changes.

     (c)  The updates become effective and may be incorporated into a permit only after a public hearing and adoption by the department under the rulemaking procedures of Title 2, chapter 4, part 3.

     (8)  An individual, general, or alternative nutrient standards variance may be established for a period not to exceed 20 years and must be reviewed by the department every 3 years from the date of adoption to ensure that the justification for its adoption remains valid.

     (9)  (a) Permittees receiving an individual, general, or alternative nutrient standards variance shall evaluate current facility operations to optimize nutrient reduction with existing infrastructure and shall analyze cost-effective methods of reducing nutrient loading, including but not limited to nutrient trading without substantial investment in new infrastructure.

     (b)  The department may request that a permittee provide the results of an optimization study and nutrient reduction analysis to the department within 2 years of receiving an individual, general, or alternative nutrient variance.

     (10) (a) A permittee may request that the department provide an alternative nutrient standards variance if the permittee demonstrates that achieving nutrient concentrations established for an individual or general nutrient standards variance would result in an insignificant reduction of instream nutrient loading.

     (b)  A permittee receiving an alternative nutrient standards variance shall comply with the requirements of subsections (8) and (9) and shall demonstrate that the permittee's contribution to nutrient concentrations in the watershed continues to remain insignificant.

     (11) The department shall encourage the use of alternative effluent management methods to reduce instream nutrient loading, including reuse, recharge, land application, and trading.

     (12) On or before July 1 of each year, the department, in consultation with the nutrient work group, shall report to the water policy committee established in 5-5-231 by providing a summary of the status of the base numeric nutrient standards, the nutrient standards variances, and the implementation of those standards and variances, including estimated economic impacts.

     (13) On or before September 1 of each year preceding the convening of a regular session of the legislature, the department, in consultation with the nutrient work group, shall summarize the two most recent reports provided under subsection (12) and submit to the water policy committee established in 5-5-231 this final summary in accordance with 5-11-210."

 

     Section 62.  Section 75-5-314, MCA, is amended to read:

     "75-5-314.  Confidentiality of base numeric standards and nutrient standards variances. (1) Except as provided in 80-15-108 and subsection (2) of this section, information concerning base numeric nutrient standards or nutrient standards variances that is furnished to the board or department or that is obtained by either of them the department is a matter of public record and open to public use.

     (2)  Information unique to the owner or operator of a source of a discharge related to base numeric nutrient standards or nutrient standards variances that would, if disclosed, reveal methods or processes entitled to protection as trade secrets as defined in 30-14-402 must be maintained as confidential if so determined by a court of competent jurisdiction.

     (3)  (a) The owner or operator shall file a declaratory judgment action to establish the existence of a trade secret if the owner or operator wishes the information to remain confidential.

     (b)  The department must be served in the action and may intervene as a party.

     (c)  Information not intended to be public when submitted to the board or department must be submitted in writing and clearly marked as confidential."

 

     Section 63.  Section 75-5-315, MCA, is amended to read:

     "75-5-315.  Outstanding resource waters -- statement of purpose. (1) The legislature, understanding the requirements of applicable federal law and the uniqueness of Montana's water resource, recognizes that certain state waters are of such environmental, ecological, or economic value that the state should, upon a showing of necessity, prohibit, to the greatest extent practicable, changes to the existing water quality of those waters. Outstanding resource waters must be afforded the greatest protection feasible under state law, after thorough examination.

     (2)  The purpose of 75-5-316 and this section is to provide this protection, when necessary, and to provide guidance to the board department in establishing rules to accomplish that level of protection."

 

     Section 64.  Section 75-5-316, MCA, is amended to read:

     "75-5-316.  Outstanding resource water classification -- rules -- criteria -- limitations -- procedure -- definition. (1) As provided under the provisions of 75-5-301 and this section, the board department may adopt rules regarding the classification of waters as outstanding resource waters.

     (2)  The department may not:

     (a)  grant an authorization to degrade under 75-5-303 in outstanding resource waters; or

     (b)  allow a new or increased point source discharge that would result in a permanent change in the water quality of an outstanding resource water.

     (3)  (a) A person may petition the board department for rulemaking to classify state waters as outstanding resource waters. The board department shall initially review a petition against the criteria identified in subsection (3)(c) to determine whether the petition contains sufficient credible information for the board the department to accept the petition.

     (b)  The board department may reject a petition without further review if it determines that the petition does not contain the sufficient credible information required by subsection (3)(a). If the board department rejects a petition under this subsection (3)(b), it shall specify in writing the reasons for the rejection and the petition's deficiencies.

     (c)  The board department may not adopt a rule classifying state waters as outstanding resource waters until it accepts a petition and makes a written finding containing the provisions enumerated in subsection (3)(d) that, based on a preponderance of the evidence:

     (i)  the waters identified in the petition constitute an outstanding resource based on the criteria provided in subsection (4);

     (ii) the increased protection under the classification is necessary to protect the outstanding resource identified under subsection (3)(a) because of a finding that the outstanding resource is at risk of having one or more of the criteria provided in subsection (4) compromised as a result of pollution; and

     (iii) classification as an outstanding resource water is necessary because of a finding that there is no other effective process available that will achieve the necessary protection.

     (d)  The written finding provided for in subsection (3)(c) must:

     (i)  identify the criteria provided in subsection (4) that the board believes serve serves as justification for the determination that the water is an outstanding resource;

     (ii) specifically identify the criteria that are at risk and explain why those criteria are at risk; and

     (iii) specifically explain why other available processes, including the requirements of 75-5-303, will not achieve the necessary protection.

     (4)  The board department shall consider the following criteria in determining whether certain state waters are outstanding resource waters. However, the board department may determine that compliance with one or more of these criteria is insufficient to warrant classification of the water as an outstanding resource water. The board department shall consider:

     (a)  whether the waters have been designated as wild and scenic;

     (b)  the presence of endangered or threatened species in the waters;

     (c)  the presence of an outstanding recreational fishery in the waters;

     (d)  whether the waters provide the only source of suitable water for a municipality or industry;

     (e)  whether the waters provide the only source of suitable water for domestic water supply; and

     (f)  other factors that indicate outstanding environmental or economic values not specifically mentioned in this subsection (4).

     (5)  Before accepting a petition, the board department shall:

     (a)  publish a notice and brief description of the petition in a daily newspaper of general circulation in the area affected and make copies of the proposal available to the public. The cost of publication must be paid by the petitioner.

     (b)  provide for a 30-day written public comment period regarding whether the petition contains sufficient credible information, as provided in subsection (3)(b), prior to the hearing required in subsection (5)(c);

     (c)  hold a public hearing regarding the petition and its contents and allow further written and oral testimony at the hearing;

     (d)  issue a proposed decision, including:

     (i)  the written finding provided for in subsection (3)(c); and

     (ii) the board's department's acceptance or rejection of the petition;

     (e)  provide for a 30-day public comment period regarding the board's department's proposed decision; and

     (f)  issue a final decision on acceptance or rejection of the petition, which must include a response to comments that were received by the board department, and make copies of this decision available to the public.

     (6)  (a) After acceptance of a petition, the board department shall direct the department to prepare an environmental impact statement, as provided under Title 75, chapter 1, part 2, and this section.

     (b)  (i) The petitioner is responsible for all of the costs associated with gathering and compiling data and information, and completing the environmental impact statement.

     (ii) Before the department may initiate work on the environmental impact statement, the petitioner shall pay the estimated cost of completing the environmental impact statement, as determined by the department.

     (iii) Upon completion of the environmental impact statement, the petitioner shall pay the department any costs that exceeded the estimated cost. If the cost of the environmental impact statement was less than the estimated cost paid by the petitioner, the department shall reimburse the difference to the petitioner.

     (iv) The board department may not grant or deny a petition until full payment for the environmental impact statement has been received by the department.

     (7)  The board department shall consult with other relevant state agencies and county governments when reviewing outstanding resource water classification petitions.

     (8)  (a) After completion of an environmental impact statement and consultation with state agencies and local governments, the board department may deny an accepted outstanding resource water classification petition if it finds that:

     (i)  the requirements of subsection (3)(c) have not been met; or

     (ii) based on information available to the board department from the environmental impact statement or otherwise, approving the outstanding resource waters classification petition would cause significant adverse environmental, social, or economic impacts.

     (b)  If the board department denies the petition, it shall identify its reasons for petition denial.

     (c)  If the board department grants the petition, the board department shall initiate rulemaking to classify the waters as outstanding resource waters.

     (9)  A rule classifying state waters as outstanding resource waters under this section may be adopted but is not effective until approved by the legislature.

     (10) The board department may not postpone or deny an application for an authorization to degrade state waters under 75-5-303 based on pending:

     (a)  board department action on an outstanding resource water classification petition regarding those waters; or

     (b)  legislative approval of board department action designating those waters as outstanding resource waters.

     (11) As used in this section, "petitioner" means an individual, corporation, partnership, firm, association, or other private or public entity that petitions the board department to adopt rules to classify waters as outstanding resource waters."

 

     Section 65.  Section 75-5-318, MCA, is amended to read:

     "75-5-318.  Short-term water quality standards for turbidity. (1) Upon authorization by the department or the department of fish, wildlife, and parks pursuant to subsection (4), the short-term water quality standards for total suspended sediment and turbidity resulting from stream-related construction activities or stream enhancement projects are the narrative standards for total suspended sediment adopted by the board department under 75-5-301. If a short-term narrative standard is authorized under this section, the numeric standard for turbidity adopted by the board department under 75-5-301 does not apply to the affected water body during the term of the narrative standard.

     (2)  The department shall review each application for short-term standards on a case-by-case basis to determine whether there are reasonable alternatives that preclude the need for a narrative standard. If the department determines that the numeric standard for turbidity adopted by the board under 75-5-301 cannot be achieved during the term of the activity and that there are no reasonable alternatives to achieve the numeric standard, the department may authorize the use of a narrative standard for a specified term.

     (3)  Each authorization issued by the department must include conditions that minimize, to the extent practicable, the magnitude of any change in water quality and the length of time during which any change may occur. The authorization must also include site-specific conditions that ensure that the activity is not harmful, detrimental, or injurious to public health and the uses of state waters and that ensure that existing and designated beneficial uses of state water are protected and maintained upon completion of the activity. The department may not authorize short-term narrative standards for activities requiring a discharge permit under rules adopted by the board pursuant to 75-5-401. Authorizations issued under this section may include conditions that require water quality or quantity monitoring and reporting.

     (4)  In the performance of its responsibilities under this section, the department may negotiate operating agreements with other departments of state government that are intended to minimize duplication in review of activities eligible for authorizations under this section. The department of fish, wildlife, and parks may, in accordance with subsections (1), (2), and (3), authorize short-term water quality standards for total suspended sediment and turbidity for any stream construction project that it reviews under Title 75, chapter 7, part 1, or Title 87, chapter 5, part 5."

 

     Section 66.  Section 75-5-401, MCA, is amended to read:

     "75-5-401.  (Temporary) Board rules Rules for permits -- ground water exclusions. (1) Except as provided in subsection (5), the board department shall adopt rules:

     (a)  governing application for permits to discharge sewage, industrial wastes, or other wastes into state waters, including rules requiring the filing of plans and specifications relating to the construction, modification, or operation of disposal systems;

     (b)  governing the issuance, denial, modification, or revocation of permits. The board department may not require a permit for a water conveyance structure or for a natural spring if the water discharged to state waters does not contain industrial waste, sewage, or other wastes. Discharge to surface water of ground water that is not altered from its ambient quality does not constitute a discharge requiring a permit under this part if:

     (i)  the discharge does not contain industrial waste, sewage, or other wastes;

     (ii) the water discharged does not cause the receiving waters to exceed applicable standards for any parameters; and

     (iii) to the extent that the receiving waters in their ambient state exceed standards for any parameters, the discharge does not increase the concentration of the parameters.

     (c)  governing authorization to discharge under a general permit for storm water associated with construction activity. These rules must allow an owner or operator to notify the department of the intent to be covered under the general permit. This notice of intent must include a signed pollution prevention plan that requires the applicant to implement best management practices in accordance with the general permit. The rules must authorize the owner or operator to discharge under the general permit on receipt of the notice and plan by the department.

     (2)  The rules must allow the issuance or continuance of a permit only if the department finds that operation consistent with the limitations of the permit will not result in pollution of any state waters, except that the rules may allow the issuance of a temporary permit under which pollution may result if the department ensures that the permit contains a compliance schedule designed to meet all applicable effluent standards and water quality standards in the shortest reasonable period of time.

     (3)  The rules must provide that the department may revoke a permit if the department finds that the holder of the permit has violated its terms, unless the department also finds that the violation was accidental and unforeseeable and that the holder of the permit corrected the condition resulting in the violation as soon as was reasonably possible.

     (4)  The board department may adopt rules governing reclamation of sites disturbed by construction, modification, or operation of permitted activities for which a bond is voluntarily filed by a permittee pursuant to 75-5-405, including rules for the establishment of criteria and procedures governing release of the bond or other surety and release of portions of a bond or other surety.

     (5)  Discharges of sewage, industrial wastes, or other wastes into state ground waters from the following activities or operations are not subject to the ground water permit requirements adopted under subsections (1) through (4):

     (a)  discharges or activities at wells injecting fluids associated with oil and gas exploration and production regulated under the federal underground injection control program;

     (b)  disposal by solid waste management systems licensed pursuant to 75-10-221;

     (c)  individuals disposing of their own normal household wastes on their own property;

     (d)  hazardous waste management facilities permitted pursuant to 75-10-406;

     (e)  water injection wells, reserve pits, and produced water pits used in oil and gas field operations and approved pursuant to Title 82, chapter 11;

     (f)  agricultural irrigation facilities;

     (g)  storm water disposal or storm water detention facilities;

     (h)  subsurface disposal systems for sanitary wastes serving individual residences;

     (i)  in situ mining of uranium facilities controlled under Title 82, chapter 4, part 2;

     (j)  mining operations subject to operating permits or exploration licenses in compliance with The Strip and Underground Mine Reclamation Act, Title 82, chapter 4, part 2, or the metal mine reclamation laws, Title 82, chapter 4, part 3; or

     (k)  projects reviewed under the provisions of the Montana Major Facility Siting Act, Title 75, chapter 20.

     (6)  Notwithstanding the provisions of 75-5-301(4), mixing zones for activities excluded from permit requirements under subsection (5) of this section must be established by the permitting agency for those activities in accordance with 75-5-301(4)(a) through (4)(c).

     (7)  Notwithstanding the exclusions set forth in subsection (5), any excluded source that the department determines may be causing or is likely to cause violations of ground water quality standards may be required to submit monitoring information pursuant to 75-5-602.

     (8)  The board department may adopt rules identifying other activities or operations from which a discharge of sewage, industrial wastes, or other wastes into state ground waters is not subject to the ground water permit requirements adopted under subsections (1) through (4).

     (9)  The board department may adopt rules authorizing general permits for categories of point source discharges. The rules may authorize discharge upon issuance of an individual authorization by the department or upon receipt of a notice of intent to be covered under the general permit.

     75-5-401.  (Effective on occurrence of contingency) Board rules Rules for permits -- ground water exclusions. (1) Except as provided in subsection (5), the board department shall adopt rules:

     (a)  governing application for permits to discharge sewage, industrial wastes, or other wastes into state waters, including rules requiring the filing of plans and specifications relating to the construction, modification, or operation of disposal systems;

     (b)  governing the issuance, denial, modification, or revocation of permits. The board department may not require a permit for a water conveyance structure or for a natural spring if the water discharged to state waters does not contain industrial waste, sewage, or other wastes. Discharge to surface water of ground water that is not altered from its ambient quality does not constitute a discharge requiring a permit under this part if:

     (i)  the discharge does not contain industrial waste, sewage, or other wastes;

     (ii) the water discharged does not cause the receiving waters to exceed applicable standards for any parameters; and

     (iii) to the extent that the receiving waters in their ambient state exceed standards for any parameters, the discharge does not increase the concentration of the parameters.

     (c)  governing authorization to discharge under a general permit for storm water associated with construction activity. These rules must allow an owner or operator to notify the department of the intent to be covered under the general permit. This notice of intent must include a signed pollution prevention plan that requires the applicant to implement best management practices in accordance with the general permit. The rules must authorize the owner or operator to discharge under the general permit on receipt of the notice and plan by the department.

     (2)  The rules must allow the issuance or continuance of a permit only if the department finds that operation consistent with the limitations of the permit will not result in pollution of any state waters, except that the rules may allow the issuance of a temporary permit under which pollution may result if the department ensures that the permit contains a compliance schedule designed to meet all applicable effluent standards and water quality standards in the shortest reasonable period of time.

     (3)  The rules must provide that the department may revoke a permit if the department finds that the holder of the permit has violated its terms, unless the department also finds that the violation was accidental and unforeseeable and that the holder of the permit corrected the condition resulting in the violation as soon as was reasonably possible.

     (4)  The board department may adopt rules governing reclamation of sites disturbed by construction, modification, or operation of permitted activities for which a bond is voluntarily filed by a permittee pursuant to 75-5-405, including rules for the establishment of criteria and procedures governing release of the bond or other surety and release of portions of a bond or other surety.

     (5)  Discharges of sewage, industrial wastes, or other wastes into state ground waters from the following activities or operations are not subject to the ground water permit requirements adopted under subsections (1) through (4):

     (a)  discharges or activities at wells injecting fluids associated with oil and gas exploration and production regulated under the federal underground injection control program;

     (b)  disposal by solid waste management systems licensed pursuant to 75-10-221;

     (c)  individuals disposing of their own normal household wastes on their own property;

     (d)  hazardous waste management facilities permitted pursuant to 75-10-406;

     (e)  water injection wells, reserve pits, and produced water pits used in oil and gas field operations and approved pursuant to Title 82, chapter 11;

     (f)  agricultural irrigation facilities;

     (g)  storm water disposal or storm water detention facilities;

     (h)  subsurface disposal systems for sanitary wastes serving individual residences;

     (i)  in situ mining of uranium facilities controlled under Title 82, chapter 4, part 2;

     (j)  mining operations subject to operating permits or exploration licenses in compliance with The Strip and Underground Mine Reclamation Act, Title 82, chapter 4, part 2, or the metal mine reclamation laws, Title 82, chapter 4, part 3;

     (k)  projects reviewed under the provisions of the Montana Major Facility Siting Act, Title 75, chapter 20; or

     (l)  a carbon dioxide injection well for which a permit has been issued pursuant to Title 82, chapter 11, part 1.

     (6)  Notwithstanding the provisions of 75-5-301(4), mixing zones for activities excluded from permit requirements under subsection (5) of this section must be established by the permitting agency for those activities in accordance with 75-5-301(4)(a) through (4)(c).

     (7)  Notwithstanding the exclusions set forth in subsection (5), any excluded source that the department determines may be causing or is likely to cause violations of ground water quality standards may be required to submit monitoring information pursuant to 75-5-602.

     (8)  The board department may adopt rules identifying other activities or operations from which a discharge of sewage, industrial wastes, or other wastes into state ground waters is not subject to the ground water permit requirements adopted under subsections (1) through (4).

     (9)  The board department may adopt rules authorizing general permits for categories of point source discharges. The rules may authorize discharge upon issuance of an individual authorization by the department or upon receipt of a notice of intent to be covered under the general permit."

 

     Section 67.  Section 75-5-402, MCA, is amended to read:

     "75-5-402.  Duties of department. The department shall:

     (1)  issue, suspend, revoke, modify, or deny permits to discharge sewage, industrial wastes, or other wastes into state waters, consistently with rules made by the board department;

     (2)  examine plans and other information needed to determine whether a permit should be issued or suggest changes in plans as a condition to the issuance of a permit;

     (3)  clearly specify in any permit any limitations imposed as to the volume, strength, and other significant characteristics of the waste to be discharged; and

     (4)  establish as conditions to the issuance of permits for which a performance bond or other surety is filed under 75-5-405 certain reclamation requirements sufficient to prevent pollution of state waters during and after operation of the project or activity for which a permit is issued."

 

     Section 68.  Section 75-5-403, MCA, is amended to read:

     "75-5-403.  Denial or modification of permit -- time for review of permit application. (1) The department shall review for completeness all applications for new permits within 60 days of the receipt of the initial application and within 30 days of receipt of responses to notices of deficiencies. The initial completeness notice must note all major deficiency issues, based on the information submitted. The department and the applicant may extend these timeframes, by mutual agreement, by not more than 75 days. An application is considered complete unless the applicant is notified of a deficiency within the appropriate review period.

     (2)  If the department denies an application for a permit or modifies a permit, the department shall give written notice of its action to the applicant or holder and the applicant or holder may request a hearing before the board department, in the manner stated in 75-5-611, for the purpose of petitioning the board department to reverse or modify the action of the department. The hearing must be held within 30 days after receipt of written request. After the hearing, the board department shall affirm, modify, or reverse the action of the department. If the holder does not request a hearing before the board, modification of a permit is effective 30 days after receipt of notice by the holder unless the department specifies a later date. If the holder does request a hearing before the board, an order modifying the permit is not effective until 20 days after receipt of notice of the action of the board department."

 

     Section 69.  Section 75-5-404, MCA, is amended to read:

     "75-5-404.  Suspension or revocation of permit -- procedure. If the department suspends or revokes a permit because it has reason to believe that the holder has violated this chapter, the department may specify that the suspension or revocation is effective immediately if the department finds that the violation is likely to continue and will cause pollution, the harmful effects of which will not be remedied immediately on the cessation of the violation. Upon petition by the holder of the permit, the board department shall grant the holder a hearing, to be conducted in the manner specified in 75-5-611, and shall issue an order affirming, modifying, or reversing the action of the department. The order of the board shall must be effective immediately unless the board department directs otherwise."

 

     Section 70.  Section 75-5-502, MCA, is amended to read:

     "75-5-502.  Board Department authorized to accept loans and grants. The board department may accept loans and grants from the federal government and other sources to carry out the provisions of this chapter."

 

     Section 71.  Section 75-5-514, MCA, is amended to read:

     "75-5-514.  When board department to establish rates and collect charges. (1) In the event a municipality or other entity operating sewage systems fails, neglects, or refuses when required by the department to adopt the system of charges and rates authorized by 75-5-511, the board department may adopt a system of charges and rates as provided for in 75-5-511(1) and collect, administer, and apply such revenues for the purposes of 75-5-512.

     (2)  In lieu of proceeding in the manner set forth in subsection (1) of this section, the department may institute proceedings at law or in equity to enforce compliance with or restrain violations of 75-5-511 through 75-5-513."

 

     Section 72.  Section 75-5-515, MCA, is amended to read:

     "75-5-515.  Determination of costs payable by users. In determining the amount of treatment works costs to be paid by recipients of treatment works services, the municipality or other entity operating sewage systems or, if applicable, the board department shall consider the strength, volume, types, and delivery flow rate characteristics of the waste; the nature, location, and type of treatment works; the receiving waters; and such other factors as deemed necessary."

 

     Section 73.  Section 75-5-516, MCA, is amended to read:

     "75-5-516.  Fees authorized for recovery -- process -- rulemaking. (1) Except as provided in subsection (12), the board department shall by rule prescribe fees to be assessed by the department that are sufficient to cover the board's and department's documented costs, both direct and indirect, of:

     (a)  reviewing and acting upon an application for a permit, permit modification, permit renewal, certificate, license, or other authorization required by rule under 75-5-201 or 75-5-401;

     (b)  reviewing and acting upon a petition for a degradation allowance under 75-5-303;

     (c)  reviewing and acting upon an application for a permit, certificate, license, or other authorization for which an exclusion is provided by rule from the permitting requirements established under 75-5-401;

     (d)  enforcing the terms and conditions of a permit or authorization identified in subsections (1)(a) through (1)(c). If the permit or authorization is not issued, the department shall return this portion of any application fee to the applicant.

     (e)  conducting compliance inspections and monitoring effluent and ambient water quality; and

     (f)  preparing water quality rules or guidance documents.

     (2)  Except as provided in subsection (12), the rules promulgated by the board under this section must include:

     (a)  a fee on all applications for permits or authorizations, as identified in subsections (1)(a) through (1)(c), that recovers to the extent permitted by this subsection (2) the department's cost of reviewing and acting upon the applications. This fee may not be more than $5,000 per discharge point for an application addressed under subsection (1), except that an application with multiple discharge points may be assessed a lower fee for those points according to board rule.

     (b)  an annual fee to be assessed according to the volume and concentration of waste discharged into state waters. The annual fee may not be more than $3,000 per million gallons discharged per day on an annual average for any activity under permit or authorization, as described in subsection (1), except that:

     (i)  a permit or authorization with multiple discharge points may be assessed a lower fee for those points according to board rule; and

     (ii) a facility that consistently discharges effluent at less than or equal to one-half of its effluent limitations and that is in compliance with other permit requirements, using the previous calendar year's discharge data, is entitled to a 25% reduction in its annual permit fee. Proportionate reductions of up to 25% of the permit fee may be given to facilities that consistently discharge effluent at levels between 50% and 100% of their effluent limitations. However, a new permittee is not eligible for a fee reduction in its first year of operation, and a permittee with a violation of any effluent limit during the previous calendar year is not eligible for a fee reduction for the following year.

     (3)  To the extent permitted under subsection (2)(b), the annual fee must be sufficient to pay the department's estimated cost of conducting all tasks described under subsection (1) after subtracting:

     (a)  the fees collected under subsection (2)(a);

     (b)  state general fund appropriations for functions administered under this chapter; and

     (c)  federal grants for functions administered under this chapter.

     (4)  For purposes of subsection (3), the department's estimated cost of conducting the tasks described under subsection (1) is the amount authorized by the legislature for the department's water quality discharge permit programs.

     (5)  If the applicant or holder fails to pay a fee assessed under this section or rules adopted under this section within 90 days after the date established by rule for fee payment, the department may:

     (a)  impose an additional assessment consisting of not more than 20% of the fee plus interest on the required fee computed as provided in 15-1-216; or

     (b)  suspend the permit or exclusion. The department may lift the suspension at any time up to 1 year after the suspension occurs if the holder has paid all outstanding fees, including all penalties, assessments, and interest imposed under subsection (5)(a).

     (6)  Fees collected pursuant to this section must be deposited in an account in the special revenue fund type pursuant to 75-5-517.

     (7)  The department shall give written notice to each person assessed a fee under this section of the amount of fee that is assessed and the basis for the department's calculation of the fee. This notice must be issued at least 30 days prior to the due date for payment of the assessment.

     (8)  A holder of or an applicant for a permit, certificate, or license may appeal the department's fee assessment to the board department within 20 days after receiving written notice of the department's fee determination under subsection (7). The appeal to the board must include a written statement detailing the reasons that the permitholder or applicant considers the department's fee assessment to be erroneous or excessive.

     (9)  If part of the department's fee assessment is not in dispute in an appeal filed under subsection (8), the undisputed portion of the fee must be paid to the department upon written request of the department.

     (10) The contested case provisions of the Montana Administrative Procedure Act, provided for in Title 2, chapter 4, part 6, apply to a hearing before the board under this section.

     (11) A municipality may raise rates to cover costs associated with the fees prescribed in this section for a public sewer system without the hearing required in 69-7-111.

     (12) (a) The application fee assessed pursuant to this section for a suction dredge, as described in 82-4-310(2), may not be more than:

     (i)  $25 if it is owned and operated by a resident of this state; or

     (ii) $100 if it is owned and operated by a nonresident of this state.

     (b)  The annual fee assessed pursuant to this section for a suction dredge, as described in 82-4-310(2), may not be more than:

     (i)  $25 if it is owned and operated by a resident of this state; or

     (ii) $100 if it is owned and operated by a nonresident of this state."

 

     Section 74.  Section 75-5-611, MCA, is amended to read:

     "75-5-611.  Violation of chapter -- administrative actions and penalties -- notice and hearing. (1) When the department has reason to believe that a violation of this chapter, a rule adopted under this chapter, or a condition of a permit or authorization required by a rule adopted under this chapter has occurred, it may have a written notice letter served personally or by certified mail on the alleged violator or the violator's agent. The notice letter must state:

     (a)  the provision of statute, rule, permit, or approval alleged to be violated;

     (b)  the facts alleged to constitute the violation;

     (c)  the specific nature of corrective action that the department requires;

     (d)  as applicable, the amount of the administrative penalty that will be assessed by order under subsection (2) if the corrective action is not taken within the time provided under subsection (1)(e); and

     (e)  as applicable, the time within which the corrective action is to be taken or the administrative penalty will be assessed. For the purposes of this chapter, service by certified mail is complete on the date of receipt. Except as provided in subsection (2)(a)(ii), an administrative penalty may not be assessed until the provisions of subsection (1) have been complied with.

     (2)  (a) The department may issue an administrative notice and order in lieu of the notice letter provided under subsection (1) if the department's action:

     (i)  does not involve assessment of an administrative penalty; or

     (ii) seeks an administrative penalty only for an activity that it believes and alleges has violated or is violating 75-5-605.

     (b)  A notice and order issued under this section must meet all of the requirements specified in subsection (1).

     (3)  In a notice and order given under subsection (1), the department may require the alleged violator to appear before the board for a public hearing and to answer the charges. The hearing must be held no sooner than 15 days after service of the notice and order, except that the board department may set an earlier date for hearing if it is requested to do so by the alleged violator. The board department may set a later date for hearing at the request of the alleged violator if the alleged violator shows good cause for delay.

     (4)  If the department does not require an alleged violator to appear before the board for a public hearing, the alleged violator may request the board department to conduct the hearing. The request must be in writing and must be filed with the department no later than 30 days after service of a notice and order under subsection (2). If a request is filed, a hearing must be held within a reasonable time. If a hearing is not requested within 30 days after service upon the alleged violator, the opportunity for a contested case appeal to the board department under Title 2, chapter 4, part 6, is waived.

     (5)  If a contested case hearing is held under this section, it must be public and must be held in the county in which the violation is alleged to have occurred or in Lewis and Clark County.

     (6)  (a) After a hearing, the board department shall make findings and conclusions that explain its decision.

     (b)  If the board department determines that a violation has occurred, it shall also issue an appropriate order for the prevention, abatement, or control of pollution, the assessment of administrative penalties, or both.

     (c)  If the order requires abatement or control of pollution, the board department shall state the date or dates by which a violation must cease and may prescribe timetables for necessary action in preventing, abating, or controlling the pollution.

     (d)  If the order requires payment of an administrative penalty, the board department shall explain how it determined the amount of the administrative penalty.

     (e)  If the board department determines that a violation has not occurred, it shall declare the department's notice void.

     (7)  The alleged violator may petition the board department for a rehearing on the basis of new evidence, which petition the board department may grant for good cause shown.

     (8)  Instead of issuing an order, the board department may direct the department to initiate appropriate action for recovery of a penalty under 75-5-631, 75-5-632, 75-5-633, or 75-5-635.

     (9)  (a) Except as provided in subsection (9)(d), an action initiated under this section may include an administrative penalty of not more than $10,000 for each day of each violation; however, the maximum penalty may not exceed $100,000 for any related series of violations.

     (b)  Administrative penalties collected under this section must be deposited in the general fund.

     (c)  In determining the amount of penalty to be assessed to a person, the department and board shall consider the penalty factors in 75-1-1001, rules promulgated under 75-5-201, and subsection (9)(d).

     (d)  A person who commits a violation that adversely affects the department's administration of this chapter, a rule adopted pursuant to this chapter, or a condition of a permit or authorization issued under this chapter but does not harm or have the potential to harm human health, the environment, or the department's ability to protect human health or the environment may not be assessed a penalty of more than $500 for each day of the violation, not to exceed $5,000 for all days of the same violation.

     (e)  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 75.  Section 75-5-614, MCA, is amended to read:

     "75-5-614.  Injunctions authorized. (1) Except as provided in 81-9-240, the department is authorized to commence a civil action seeking appropriate relief, including a permanent or temporary injunction, for a violation that would be subject to a compliance order under 75-5-613. An action under this subsection may be commenced in the district court of the county where a violation occurs or is threatened, and the court has jurisdiction to restrain the violation and to require compliance.

     (2)  Except as provided in 81-9-240, the department may bring an action for an injunction against the continuation of an alleged violation of the terms or conditions of a permit issued by the department or any rule or effluent standard promulgated under this chapter or against a person who fails to comply with an emergency order issued by the department under 75-5-621 or a final order of the board department. The court to which the department applies for an injunction may issue a temporary injunction if it finds that there is reasonable cause to believe that the allegations of the department are true, and it may issue a temporary restraining order pending action on the temporary injunction."

 

     Section 76.  Section 75-5-621, MCA, is amended to read:

     "75-5-621.  Emergencies. (1) Notwithstanding other provisions of this chapter, if the department finds that a person is committing or is about to commit an act in violation of this chapter or an order or rule issued under this chapter that, if it occurs or continues, will cause substantial pollution the harmful effects of which will not be remedied immediately after the commission or cessation of the act, the department may order the person to stop, avoid, or moderate the act so that the substantial injury will not occur. The order is effective immediately upon receipt by the person to whom it is directed, unless the department provides otherwise.

     (2)  Notice of the order must conform to the requirements of 75-5-611(1) so far as practicable. The notice must indicate that the order is an emergency order.

     (3)  Upon issuing an order, the department shall fix a place and time for a hearing before the board, not later than 5 days after issuing the order unless the person to whom the order is directed requests a later time. The department may deny a request for a later time if it finds that the person to whom the order is directed is not complying with the order. The hearing must be conducted in the manner specified in 75-5-611. As soon as practicable after the hearing, the board department shall affirm, modify, or set aside the order of the department. The order of the board must be accompanied by the information required in 75-5-611(6). An action for review of the order of the board may be initiated in the manner specified in 75-5-641. Except as provided in 81-9-240, the initiation of an action or taking of an appeal may not stay the effectiveness of the order unless the court finds that the board department did not have reasonable cause to issue an order under this section."

 

     Section 77.  Section 75-5-641, MCA, is amended to read:

     "75-5-641.  Appeals from board department orders -- review by district court. (1) An appeal of an order of the board department must be in the district court of the county in which the alleged source of pollution is located.

     (2)  A person interested in the order may intervene, in the manner provided by the rules of civil procedure, if the person shows good cause. An intervenor is a party for the purposes of this chapter.

     (3)  The attorney general shall represent the board department if requested, or the department may appoint special counsel for the proceedings, subject to the approval of the attorney general.

     (4)  Except as provided in 81-9-240, the initiation of an action for review or the taking of an appeal does not stay the effectiveness of an order of the board unless the court finds that there is probable cause to believe:

     (a)  that refusal to grant a stay will cause serious harm to the affected party; and

     (b)  that a violation found by the board department will not continue or, if it does continue, the harmful effects on state waters will be remedied immediately on the cessation of the violation.

     (5)  If a court does not stay the effectiveness of an order of the board, it may enforce compliance with that order by issuing a temporary restraining order or an injunction at the request of the board department."

 

     Section 78.  Section 75-5-702, MCA, is amended to read:

     "75-5-702.  Monitoring -- water quality assessment listing -- costs payable by department -- statewide advisory group. (1) The department shall monitor state waters to assess the quality of those waters and to identify surface water bodies or segments of surface water bodies that are threatened or impaired. The department shall use the monitoring results to revise the list of water bodies that are identified as threatened or impaired and to establish a priority ranking for TMDL development for those waters in accordance with subsections (4) and (7).

     (2)  In revising the list prepared pursuant to this section, the department shall use all currently available data, including information or data obtained from federal, state, and local agencies, private entities, or individuals with an interest in water quality protection. Except as provided in subsection (6), the department may modify the list only if there is sufficient credible data to support the modification. Prior to publishing a final list, the department shall provide public notice and allow 60 days for public comment on the draft list. The department shall make available for public review, upon request, documentation used in the determination to list or delist a particular water body, including, at a minimum, a description of the information, data, and methodology used. The department may charge a reasonable fee for the documentation, commensurate with the cost of providing the documentation to the requestor.

     (3)  A person may request that the department add or remove a water body or reprioritize a water body on a draft or published list by providing the data or information necessary to support the request. The department shall review the data within 60 days from its submittal. If the department determines that there is sufficient credible data to grant the request, the department shall provide public notice of its intended action and allow 60 days for public comment prior to taking action on the request. A person aggrieved by the department's decision to grant or deny the request may appeal the department's decision to the board department.

     (4)  The department shall, in consultation with local conservation districts and watershed advisory groups pursuant to 75-5-704, review and revise the list and priority rankings of water bodies identified as threatened or impaired. The department shall review and revise the list at intervals not to exceed 5 years. The department shall make available for public review the data and information used in making any changes in its list of threatened or impaired water bodies that is developed and maintained pursuant to this section.

     (5)  By October 1, 1999, and in consultation with the statewide TMDL advisory group established pursuant to subsection (10), the department shall develop and maintain a data management system that can be used to assess the validity and reliability of the data used in the listing and priority ranking process. The department shall make available to the public, upon request, data from its data management system. The department may charge a reasonable fee for the data, commensurate with its cost of providing the data to the requestor.

     (6)  By October 1, 1999, and in consultation with the statewide TMDL advisory group, the department shall use the data management system developed and maintained pursuant to subsection (5) to revise the list and to remove any water body that lacks sufficient credible data to support its listing. If the department removes a water body because there is a lack of sufficient credible data to support its listing, the department shall monitor and assess that water body during the next field season or as soon as possible thereafter to determine whether it is a threatened water body or an impaired water body.

     (7)  Except as provided in subsection (9), in prioritizing water bodies for TMDL development, the department shall, in consultation with the statewide TMDL advisory group, take into consideration the following:

     (a)  the beneficial uses established for a water body;

     (b)  the extent that natural factors over which humans have no control are contributing to any impairment;

     (c)  the impacts to human health and aquatic life;

     (d)  the degree of public interest and support;

     (e)  the character of the pollutant and the severity and magnitude of water quality standard noncompliance;

     (f)  whether the water body is an important high-quality resource in an early stage of degradation;

     (g)  the size of the water body not achieving standards;

     (h)  immediate programmatic needs, such as waste load allocations for new permits or permit renewals and load allocations for new nonpoint sources;

     (i)  court orders and decisions relating to water quality;

     (j)  state policies and priorities, including the protection and restoration of native fish when appropriate;

     (k)  the availability of technology and resources to correct the problems;

     (l)  whether actions or voluntary programs that are likely to correct the impairment of a particular water body are currently in place; and

     (m)  the recreational, economic, and aesthetic importance of a particular water body.

     (8)  Except as provided in subsection (9), the department shall, in consultation with the statewide TMDL advisory group, develop a method of rating water bodies according to the criteria and considerations described in subsection (7) in order to rank the listed water bodies as high priority, moderate priority, or low priority for TMDL development. The department may not rank a water body as a high priority under this section without first validating the data necessary to support the ranking.

     (9)  (a) When the department receives an application for a new individual permit to discharge into a surface water body or a segment of a surface water body pursuant to 75-5-401, the surface water body or segment of a surface water body has been listed pursuant to subsection (2) of this section, the discharge would contain a pollutant for which the water body or segment is threatened or impaired, and a TMDL has not been developed for that water body or segment, the department shall:

     (i)  within 30 days of the department's receipt of the application, initiate the development of a TMDL on the water body or segment; and

     (ii) except as provided in subsection (9)(b), within 180 days of the department's receipt of the application, complete development of the TMDL pursuant to 75-5-703.

     (b)  If the department is not able to complete development of the TMDL in accordance with subsection (9)(a)(ii), the department shall, within 30 days of the department's receipt of the application, specify in writing to the applicant why the department is not able to complete development of a TMDL in accordance with subsection (9)(a)(ii). The department and the applicant shall make reasonable efforts to mutually agree in writing to a timeframe in which the department shall complete development of the TMDL. If the department specifies a lack of resources as a reason why the department cannot complete development of the TMDL in accordance with subsection (9)(a)(ii), the department shall clearly explain in its written specification what resources are not available, why those resources are not available, and when those resources will be available.

     (c)  If the department and the applicant cannot mutually agree to a timeframe in accordance with subsection (9)(b), the department shall, within 60 days of the department's receipt of the application, specify in writing to the applicant the timeframe in which the TMDL will be completed by the department and the reasons why that timeframe is appropriate. If the department specifies a lack of resources as a reason why the department's timeframe is appropriate, the department may request the applicant provide funding for the development of the TMDL in order to accelerate the completion of the TMDL.

     (d)  The applicant may, within 15 days of the department's written specification provided in accordance with subsection (9)(c), request in writing a hearing before the board department for the purpose of petitioning the board department to reverse or modify the department's decision. 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. If the parties to the contested case waive a formal proceeding pursuant to 2-4-603, the informal proceeding must be conducted within 30 days after the board's receipt of the written request. After the hearing and in a reasonable time, the board department shall affirm, modify, or reverse the action of the department, and the board department shall make findings and conclusions that explain its decision. Pending the board's decision, the department shall develop the TMDL in accordance with the timeframe specified in subsection (9)(a)(ii).

     (e)  The department may not declare an application incomplete or deficient because a TMDL has not been prepared.

     (f)  If on April 27, 2015, an application for a new individual permit to discharge into a surface water body or a segment of a surface water body pursuant to 75-5-401 is pending, the surface water body or segment of a surface water body has been listed pursuant to subsection (2) of this section, the discharge would contain a pollutant for which the water body or segment is threatened or impaired, and a TMDL has not been developed for the water body or segment, the department shall, except as provided in subsection (9)(g), complete a TMDL for the water body or segment within 180 days of April 27, 2015.

     (g)  If the department is not able to complete development of the TMDL within 180 days of April 27, 2015, pursuant to subsection (9)(f), then the timeframes established in accordance with subsections (9)(b), (9)(c), and (9)(d) apply to the application, but the timeframes are measured from April 27, 2015, not from the date the department receives an application.

     (10) (a) The department shall establish a statewide TMDL advisory group to serve in the consultation capacity set forth in 75-5-703, 75-5-704, and this section. Fourteen members, and any replacement members that may be necessary, must be appointed by the director, based upon one nomination from each of the following interests:

     (i)  livestock-oriented agriculture;

     (ii) farming-oriented agriculture;

     (iii) conservation or environmental interests;

     (iv) water-based recreationists;

     (v)  the forestry industry;

     (vi) municipalities;

     (vii) point source dischargers;

     (viii) mining;

     (ix) federal land management agencies;

     (x)  state trust land management agencies;

     (xi) supervisors of soil and water conservation districts for counties east of the continental divide;

     (xii) supervisors of soil and water conservation districts for counties west of the continental divide;

     (xiii) the hydroelectric industry; and

     (xiv) fishing-related businesses.

     (b)  If the director receives more than one nomination from a particular interest, the director shall notify the respective nominators and request that they agree on one nominee.

     (11) The department shall provide public notice of meetings of the statewide TMDL advisory group and shall solicit, document, and consider public comments provided during the deliberations of the advisory group."

 

     Section 79.  Section 75-5-802, MCA, is amended to read:

     "75-5-802.  Permitting -- concentrated animal feeding operation. (1) For the purpose of permitting concentrated animal feeding operations, the board department shall adopt, by reference, the federal regulations and definitions contained in 40 CFR, parts 122.23 and 412.

     (2)  Subject to the provisions of subsection (3), concentrated animal feeding operations that meet the requirements of 40 CFR, part 412, must be authorized by the department under a general permit.

     (3)  If, upon review of an application for a general permit authorization for a concentrated animal feeding operation production area, the department discovers site-specific information that indicates that a general permit authorization is not sufficiently protective of water quality, the department shall require an individual permit."

 

     Section 80.  Section 75-6-102, MCA, is amended to read:

     "75-6-102.  Definitions. As used in this part, unless the context clearly indicates otherwise, the following definitions apply:

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

     (2)(1)  "Certified source water protection area" means an area certified by the department that identifies the surface and subsurface area surrounding a source of water for a public water supply system through which contaminants may move toward and reach the source of supply.

     (3)(2)  "Community water system" means a public water supply system that serves at least 15 service connections used by year-round residents or that regularly serves at least 25 year-round residents.

     (4)(3)  "Contamination" means impairment of the quality of state waters by sewage, industrial waste, or other waste creating a hazard to human health.

     (5)(4)  "Cross-connection" means a connection between a public water supply system and another water supply system, either public or private, or a wastewater or sewerline or other potential source of contamination so that a flow of water into or contamination of the public water supply system from the other source of water or contamination is possible.

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

     (7)(6)  "Drainage" means rainfall, surface, and subsoil water.

     (8)(7)  "Industrial waste" means any waste substance from the processes of business or industry or from the development of a natural resource, together with any sewage that may be present.

     (9)(8)  "Maximum contaminant level" means the maximum permissible level of a contaminant in water that is delivered to a user of a public water supply system.

     (10)(9) "Other waste" means garbage, municipal refuse, decayed wood, sawdust, shavings, bark, lime, sand, ashes, offal, night soil, oil, grease, tar, heat, chemicals, dead animals, sediment, wrecked or discarded equipment, radioactive materials, solid waste, and all other substances that may pollute state waters.

     (11)(10) "Person" means an individual, firm, partnership, company, association, corporation, city, town, local government entity, federal agency, or any other governmental or private entity, whether organized for profit or not.

     (12)(11) (a) "Pollution" means contamination or other alteration of the physical, chemical, or biological properties of state waters that exceeds that which is permitted by Montana water quality standards, including but not limited to standards relating to change in temperature, taste, color, turbidity, or odor or the discharge or introduction of a liquid, gaseous, solid, radioactive, or other substance into state water that will or is likely to create a nuisance or render the waters harmful, detrimental, or injurious to public health, recreation, safety, or welfare, to livestock, or to wild animals, birds, fish, or other wildlife.

     (b)  A discharge that is authorized under the pollution discharge permit rules of the board department is not pollution under this chapter.

     (13)(12) "Public sewage system" means a system of collection, transportation, treatment, or disposal of sewage that serves 15 or more families or 25 or more persons daily for any 60 or more days in a calendar year.

     (14)(13) "Public water supply system" means a system for the provision of water for human consumption from a community well, water hauler for cisterns, water bottling plant, water dispenser, or other water supply that has at least 15 service connections or that regularly serves at least 25 persons daily for any 60 or more days in a calendar year.

     (15)(14) "Reclaimed wastewater" means wastewater that is treated by a public sewage system for reuse for private, public, or commercial purposes.

     (16)(15) "Safe Drinking Water Act" means 42 U.S.C. 300f and regulations set forth in 40 CFR, parts 141 and 142.

     (17)(16) "Sewage" means water-carried waste products from residences, public buildings, institutions, or other buildings, including discharge from human beings, together with ground water infiltration and surface water present.

     (18)(17) "Source water protection program" means a program administered by the department to certify source water protection delineation and assessment reports and source water protection plans and to review source water protection ordinances.

     (19)(18) "State waters" means a body of water, irrigation system, or drainage system, either surface or underground.

     (20)(19) "Transient noncommunity water system" means a public water supply system that is not a community water system and that does not regularly serve at least 25 of the same persons for at least 6 months a year."

 

     Section 81.  Section 75-6-104, MCA, is amended to read:

     "75-6-104.  Duties of department. (1) The department has general supervision over all state waters that are directly or indirectly being used by a person for a public water supply system or domestic purposes or as a source of ice.

     (2)  The department shall, subject to the provisions of 75-6-116 and as provided in 75-6-131, adopt rules and standards concerning:

     (a)  maximum contaminant levels for waters that are or will be used for a public water supply system;

     (b)  fees, as described in 75-6-108, for services rendered by the department;

     (c)  monitoring, recordkeeping, and reporting by persons who own or operate public water supply systems;

     (d)  requiring public notice to all users of a public water supply system when a person has been granted a variance or exemption or is in violation of this part or a rule or order issued pursuant to this part;

     (e)  the siting, construction, operation, and modification of a public water supply system or public sewage system, including requirements to remedy:

     (i)  defects in the design, operation, or maintenance of a public water supply system or public sewage system in order to prevent or correct introduction of contamination into water used for a public water supply system, for domestic purposes, or as a source of ice;

     (ii) fecal contamination in water used by a public water supply system; or

     (iii) failure or malfunction of the sources, treatment, storage, or distribution portion of a public water supply system in order to prevent or correct introduction of contamination into water used for a public water supply system, for domestic purposes, or as a source of ice;

     (f)  the review of the technical, managerial, and financial capacity of a proposed public water supply system or public sewage system, as necessary to ensure the capability of the system to meet the requirements of this part;

     (g)  the collection and analysis of samples of water used for drinking or domestic purposes;

     (h)  the issuance of variances and exemptions as authorized by the federal Safe Drinking Water Act and this part;

     (i)  administrative enforcement procedures and administrative penalties authorized under this part;

     (j)  standards and requirements for the review and approval of programs that may be voluntarily submitted by suppliers of public water supply systems to prevent water supply contamination from a cross-connection, including provisions to exempt cross-connections from the standards and requirements if all connected systems are department-approved public water supply systems;

     (k)  (i) allowable uses of reclaimed wastewater and classification of those uses;

     (ii) treatment, monitoring, recordkeeping, and reporting standards and requirements tailored to each classification that must be met by the public sewage system to protect the uses of the reclaimed wastewater and any receiving water;

     (iii) prohibition of reclaimed wastewater uses that are not allowable under subsection (2)(k)(i) or for which the reclaimed wastewater has not been treated in compliance with rules adopted under subsection (2)(k)(ii); and

     (iv) a requirement that an applicant who proposes to use reclaimed wastewater pursuant to this subsection (2)(k) has obtained any necessary authorizations required under Title 85 from the department of natural resources and conservation; and

     (l)  any other requirement necessary for the protection of public health as described in this part.

     (3)  Department rules must provide for the following:

     (a)  except as provided in 75-6-131, a water supply or water distribution facility reviewed and approved by the department is not subject to changes in department design and construction criteria for a period of 36 months after written approval of the facility is issued by the department;

     (b)  except for facilities subject to permit requirements under Title 75, chapter 5, part 4, and except as provided under rules adopted pursuant to 75-6-131, a system of water supply, drainage, wastewater, or sewage reviewed and approved under this section is not subject to changes in department design or construction criteria for a period of 36 months after written approval is issued by the department;

     (c)  plans and specifications for a portion of a facility or system subject to a 36-month limit on criteria changes pursuant to subsections (3)(a) and (3)(b), but not constructed within the 36-month timeframe, must be resubmitted for department review and approval before construction of that portion of the facility;

     (d)  the provisions of this subsection (3) may not limit an applicant's ability to alter a proposed project that is otherwise in conformance with applicable laws, rules, standards, and criteria.

     (4)  The department may issue orders necessary to fully implement the provisions of this part.

     (5) The department shall:

     (1)(a)  upon its own initiative or complaint to the department, to the mayor or health officer of a municipality, or to the managing board or officer of a public institution, make an investigation of alleged pollution of a water supply system and, if required, prohibit the continuance of the pollution by ordering removal of the cause of pollution;

     (2)(b)  have waters examined to determine their quality and the possibility that they may endanger public health;

     (3)(c)  consult and advise authorities of cities and towns and persons having or about to construct systems for water supply, drainage, wastewater, and sewage as to the most appropriate source of water supply and the best method of ensuring its quality;

     (4)(d)  advise persons as to the best method of treating and disposing of their drainage, sewage, or wastewater with reference to the existing and future needs of other persons and to prevent pollution;

     (5)(e)  consult with persons engaged in or intending to engage in manufacturing or other business whose drainage or sewage may tend to pollute waters as to the best method of preventing pollution;

     (6)(f)  collect fees, as described in 75-6-108, for services and deposit the fees collected in the public drinking water special revenue fund established in 75-6-115;

     (7)(g)  establish and maintain experiment stations and conduct experiments to study the best methods of treating water, drainage, wastewater, and sewage to prevent pollution, including investigation of methods used in other states;

     (8)(h)  enter on premises at reasonable times to determine sources of pollution or danger to water supply systems and whether rules and standards of the board department are being obeyed;

     (9)(i)  enforce and administer the provisions of this part;

     (10)(j) establish a plan for the provision of safe drinking water under emergency circumstances;

     (11)(k) maintain an inventory of public water supply systems and establish a program for conducting sanitary surveys; and

     (12)(l) enter into agreements with local boards of health whenever appropriate for the performance of surveys and inspections under the provisions of this part."

 

     Section 82.  Section 75-6-105, MCA, is amended to read:

     "75-6-105.  Records required for wells drilled to supply water to public. Every person drilling a water well to furnish water for public consumption shall keep a complete record of the depth, thickness, and character of different strata and other information prescribed by the board department. Data shall must be furnished to the department on forms prescribed by it. These data are available to the public at all reasonable times."

 

     Section 83.  Section 75-6-106, MCA, is amended to read:

     "75-6-106.  Laboratory license required. A laboratory analysis of water taken from a public water supply system or any report of an analysis required by this part or a rule adopted under this part may not be accepted by the department or board unless the analysis or report is made by the department of public health and human services' laboratory or by a laboratory licensed by the department of public health and human services for water analysis purposes."

 

     Section 84.  Section 75-6-107, MCA, is amended to read:

     "75-6-107.  Variances and exemptions. (1) Except as provided in subsection (3), the department may grant a variance or exemption from the requirements of this part or the rules adopted under this part pursuant to the terms and conditions of the variance and exemption rules adopted by the board department.

     (2)  Except as provided in subsection (3), a variance or exemption granted pursuant to this section must be accompanied by a compliance plan specifying a time schedule for compliance.

     (3)  The department may grant for a period of up to 5 years a variance or exemption for a public water system to use bottled water to achieve compliance with a maximum contaminant level for nitrate. The variance or exemption must include the requirement that the owner of the public water system warn the public that the tap water is not potable and could pose a health risk if consumed by:

     (a)  posting signs at locations required by the variance or exemption for the period granted by the variance or exemption; and

     (b)  delivering annual notices as required by the variance or exemption to users of the public water system.

     (4)  A person aggrieved by a decision of the department to grant, deny, revoke, or modify a variance or exemption may appeal the department's decision to the board department as provided in the Montana Administrative Procedure Act."

 

     Section 85.  Section 75-6-108, MCA, is amended to read:

     "75-6-108.  Board Department to prescribe fees -- opportunity for appeal. (1) The board department shall by rule prescribe fees to be assessed annually by the department on owners of public water supply systems to recover department costs in providing services under this part. The annual fee for a public water supply system is no more than $2.25 for each service connection to the public water supply system for the biennium beginning July 1, 1991, and ending June 30, 1993, and thereafter is no more than $2 for each service connection to the public water supply system, although the minimum fee for any system is $100, except that the fee for a transient noncommunity water system is $50.

     (2)  Public water supply systems in a municipality may raise the rates to recover costs associated with the fees prescribed in this section without the public hearing required in 69-7-111.

     (3)  The board department shall by rule prescribe fees to be assessed by the department on persons who submit plans and specifications for construction, alteration, or extension of a public water supply system or public sewage system. The fees must be commensurate with the cost to the department of reviewing the plans and specifications.

     (4)  Fees collected pursuant to this section must be deposited in the public drinking water special revenue fund established in 75-6-115.

     (5)  (a) The department shall notify the owner of a public water supply system in writing of the amount of the fee to be assessed and the basis for the assessment. The owner may appeal the fee assessment in writing to the board within 20 days after receipt of the written notice.

     (b)  An appeal must be based on the allegation that the fee is erroneous or excessive. An appeal may not be based only on the fee schedule adopted by the board department.

     (c)  If any part of the fee assessment is not appealed, it must be paid to the department upon receipt of the notice provided for in subsection (5)(a)."

 

     Section 86.  Section 75-6-109, MCA, is amended to read:

     "75-6-109.  Administrative enforcement. (1) If the department believes that a violation of this part, a rule adopted under this part, or a condition of approval issued under this part has occurred, it may serve written notice of the violation, by certified mail, on the alleged violator or the violator's agent. The notice must specify the provision of this part, the rule, or the condition of approval alleged to have been violated and the facts alleged to constitute a violation. The notice must include an order to take necessary corrective action within a reasonable period of time. The time period must be stated in the order. Service by mail is complete on the date of filing.

     (2)  If the alleged violator does not request a hearing before the board within 30 days of the date of service, the order becomes final. Failure to comply with a final order may subject the violator to an action commenced pursuant to 75-6-104, 75-6-113, or 75-6-114.

     (3)  If the alleged violator requests a hearing before the board within 30 days of the date of service, the board department shall schedule a hearing. After the hearing is held, the board department may:

     (a)  affirm or modify the department's order issued under subsection (1) if the board department finds that a violation has occurred; or

     (b)  rescind the department's order if the board department finds that a violation has not occurred.

     (4)  An order issued by the department or the board may set a date by which the violation must cease and set a time limit for action to correct a violation.

     (5)  As an alternative to issuing an order pursuant to subsection (1), the department may:

     (a)  require the alleged violator to appear before the board for a hearing, at a time and place specified in the notice, to answer the charges complained of; or

     (b)  initiate an action under 75-6-111(2), 75-6-113, or 75-6-114.

     (6)  (a) An action initiated under this part may include an administrative penalty not to exceed:

     (i)  $1,000 for each day of a violation pertaining to a public water system, other than a water hauler or a water bottling plant, that serves a population of more than 10,000; and

     (ii) $500 for each day of violation for other violations.

     (b)  Administrative penalties collected under this section must be deposited in the state general fund.

     (7)  In determining the amount of penalty to be assessed to a person, the department or the board, as appropriate, shall consider the penalty factors in 75-1-1001 and the rules promulgated under 75-6-103(2)(i) 75-6-104(2)(i).

     (8)  The contested case provisions of the Montana Administrative Procedure Act, provided for in Title 2, chapter 4, part 6, apply to a hearing under 75-6-108 or this section."

 

     Section 87.  Section 75-6-112, MCA, is amended to read:

     "75-6-112.  Prohibited acts. A person may not:

     (1)  commence or continue construction, alteration, extension, or operation of a system of water supply or water distribution that is intended to be used as a public water supply system or a system that is intended to be used as a public sewage system before the person submits to the department necessary maps, plans, and specifications for its review and the department approves those maps, plans, and specifications;

     (2)  operate or maintain a public water supply system that exceeds a maximum contaminant level established by the board department unless the person has been granted or has an application pending for a variance or exemption pursuant to this part;

     (3)  violate any provision of this part or a rule adopted under this part; or

     (4)  violate any condition or requirement of an approval issued pursuant to this part."

 

     Section 88.  Section 75-6-113, MCA, is amended to read:

     "75-6-113.  Penalty. Any person violating this part or any rule or order of the board or department issued under the provisions of this part shall be guilty of a misdemeanor and upon conviction shall be fined not less than $50 or more than $500. Each day upon which a violation of this part occurs shall be considered a separate offense."

 

     Section 89.  Section 75-6-116, MCA, is amended to read:

     "75-6-116.  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 board 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 board department may incorporate by reference comparable federal regulations or guidelines.

     (2)  The board department may adopt a rule to implement this chapter that is more stringent than comparable federal regulations or guidelines only if the board 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 board'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 board 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 board department to review the rule. If the board department determines that the rule is more stringent than comparable federal regulations or guidelines, the board 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 board department may charge a petition filing fee in an amount not to exceed $250.

     (b)  A person may also petition the board department for a rule review under subsection (4)(a) if the board 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 board rule.

     (5)  This section does not apply to a rule adopted under the emergency rulemaking provisions of 2-4-303(1)."

 

     Section 90.  Section 75-6-121, MCA, is amended to read:

     "75-6-121.  Delegation of review of small public water and sewer construction. (1) If a local government requests a delegation and the appropriate division of the local government has established satisfactory review programs, the department may delegate to the division of local government review of:

     (a)  small public water and sewer systems; and

     (b)  extensions or alterations of existing public water and sewer systems that involve 50 or fewer connections.

     (2)  The board department may adopt rules regarding the delegation of review authority to divisions of local government."

 

     Section 91.  Section 75-6-131, MCA, is amended to read:

     "75-6-131.  Rules for regional public water supply systems. The board department shall adopt rules for approval of regional public water supply systems established by a regional water authority pursuant to Title 75, chapter 6, part 3. The rules must:

     (1)  include procedures for the construction of regional public water supply systems, including regulatory provisions for a series of project segments over the construction period of the project as contained in the final engineering report, as may be amended and approved by the United States bureau of reclamation, that addresses the:

     (a)  approval of design and construction standards that may not be subject to change for 72 months;

     (b)  issuance of deviations from design and construction standards to remain in effect for 72 months; and

     (c)  approval of an individual regional water supply system's standard construction contract documents and provisions for amendments to those documents to remain in effect for the construction period of the project;

     (2)  implement plan and specification review periods or deviation request approval periods for storage, pumping, and distribution portions of a regional public water supply system of not more than 40 calendar days for the initial review by the department and not more than 20 working days for any subsequent reviews;

     (3)  avoid duplicate processes and regulations by coordinating and incorporating the review and approval process applicable to a regional public water supply system by the United States bureau of reclamation."

 

     Section 92.  Section 75-10-103, MCA, is amended to read:

     "75-10-103.  Definitions. Unless the context clearly requires otherwise, in this part, the following definitions apply:

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

     (2)(1)  "Container site" means a solid waste management facility that:

     (a)  is generally open to the public for the collection of solid waste that is generated by more than one household or firm and that is collected in a refuse container with a total capacity of not more than 50 cubic yards; or

     (b)  receives waste from waste collection vehicles and:

     (i)  receives no more than 3,000 tons of waste each year;

     (ii) has control measures in place, including onsite staffing, to adequately contain solid wastes and blowing litter on the site and to minimize spills and leakage of liquid wastes; and

     (iii) is a site at which a local government unit requires commercial waste haulers to deposit wastes at the site only during hours that the site is staffed.

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

     (4)(3)  "Local government" means a county, incorporated city or town, or solid waste management district organized under the laws of this state.

     (5)(4)  "Person" means any individual, firm, partnership, company, association, corporation, city, town, or local governmental entity or any other state, federal, or private entity, whether organized for profit or not.

     (6)(5)  "Resource recovery facility" means any facility at which solid waste is processed for the purpose of extracting, converting to energy, or otherwise separating and preparing solid waste for reuse.

     (7)(6)  (a) "Solid waste" means all putrescible and nonputrescible wastes, including but not limited to garbage, rubbish, refuse, ashes, sludge from sewage treatment plants, water supply treatment plants, or air pollution control facilities; construction and demolition wastes; dead animals, including offal; discarded home and industrial appliances; and wood products or wood byproducts and inert materials.

     (b)  Solid waste does not mean municipal sewage, industrial wastewater effluents, mining wastes regulated under the mining and reclamation laws administered by the department, slash and forest debris regulated under laws administered by the department of natural resources and conservation, or marketable byproducts.

     (8)(7)  "Solid waste management system" means any system that controls the storage, treatment, recycling, recovery, or disposal of solid waste. For the purposes of this definition, a container site is not a component of a solid waste management system.

     (9)(8)  "State solid waste management and resource recovery plan" means the statewide plan formulated by the department as authorized by this part."

 

     Section 93.  Section 75-10-104, MCA, is amended to read:

     "75-10-104.  Duties of department. The department shall:

     (1)  prepare, adopt, and implement a state solid waste management and resource recovery plan as required by 75-10-111 and 75-10-807;

     (2)  prepare adopt rules necessary for the implementation of this part for submission to the board, including but not limited to rules:

     (a)  governing the submission of plans for a solid waste management system;

     (b) (i) establishing, for the purpose of determining the tonnage or volume-based solid waste management fee that a facility is subject to under 75-10-115(1)(c), methods for determining or estimating the amount of solid waste incinerated or disposed of at a facility; and

     (ii) governing the application fee, flat annual license renewal fee, and tonnage or volume-based renewal fee for solid waste management systems;

     (c)  establishing the license application fee that a facility is subject to under 75-10-115(1)(a);

     (d)  establishing the flat annual license renewal fee that a facility is subject to under 75-10-115(1)(b);

     (e)  establishing the tonnage or volume-based annual renewal fee that a facility is subject to under 75-10-115(1)(c); and

     (f)  providing procedures for the quarterly collection of the solid waste management fee provided for in 75-10-204(6);

     (3)  provide technical assistance to persons within the state for planning, designing, constructing, financing, and operating:

     (a)  a solid waste management system in order to ensure that the system conforms to the state plan;

     (b)  integrated waste management programs; and

     (c)  collection, disposal, reduction, and educational programs for household hazardous waste and small quantities of hazardous waste that are exempt from regulation under Title 75, chapter 10, part 4;

     (4)  enforce and administer the provisions of this part;

     (5)  approve plans for a proposed solid waste management system submitted by a local government; and

     (6)  serve as a clearinghouse for information on waste reduction and reuse, recycling technology and markets, composting, and household hazardous waste disposal, including chemical compatibility."

 

     Section 94.  Section 75-10-112, MCA, is amended to read:

     "75-10-112.  Powers and duties of local government. A local government may:

     (1)  plan, develop, and implement a solid waste management system consistent with the state's solid waste management and resource recovery plan and propose modifications to the state's solid waste management and resource recovery plan;

     (2)  upon adoption of the state plan by the board, pass an ordinance or resolution to exempt the local jurisdiction from complying with the state plan and subsequent rules implementing the state plan. The ordinance or resolution must include a means to provide solid waste disposal to the citizens of the jurisdiction as required in part 2 of this chapter.

     (3)  employ appropriate personnel to carry out the provisions of this part;

     (4)  purchase, rent, or execute leasing agreements for equipment and material necessary for the implementation of a solid waste management system;

     (5)  cooperate with and enter into agreements with any persons in order to implement an effective solid waste management system;

     (6)  receive gifts, grants, or donations or acquire by gift, deed, or purchase land necessary for the implementation of any provision of this part;

     (7)  enforce the rules of the department or a local board of health pertaining to solid waste management through the appropriate county attorney;

     (8)  apply for and utilize state, federal, or other available money for developing or operating a solid waste management system;

     (9)  borrow from any lending agency funds available for assistance in planning a solid waste management system;

     (10) subject to 15-10-420, finance a solid waste management system through the assessment of a tax as authorized by state law;

     (11) sell on an installment sales contract or lease to a person all or a portion of a solid waste management system that the local government plans, designs, or constructs for the consideration and upon the terms established by the local governments and consistent with the loan requirements set forth in this part and rules adopted to implement this part;

     (12) procure insurance against any loss in connection with property, assets, or activities;

     (13) mortgage or otherwise encumber all or a portion of a solid waste management system when the local government finds that the action is necessary to implement the purposes of this part, as long as the action is consistent with the loan requirements set forth in this part and rules adopted to implement this part;

     (14) hold or dispose of real property and, subject to agreements with lessors and lessees, develop or alter the property by making improvements or betterments for the purpose of enhancing the value and usefulness of the property;

     (15) finance, design, construct, own, and operate a solid waste management system or contract for any or all of the powers authorized under this part;

     (16) control the disposition of solid waste generated within the jurisdiction of the local government, except that, in the absence of an imminent threat to public health, safety, or the environment, a local government may not adopt a flow control or similar ordinance to require use of a specific transfer station or landfill for disposal of solid waste;

     (17) enter into long-term contracts with local governments and private entities for:

     (a)  financing, designing, constructing, and operating a solid waste management system;

     (b)  marketing all raw or processed material recovered from solid waste;

     (c)  marketing energy products or byproducts resulting from processing or utilization of solid waste;

     (18) finance an areawide solid waste management system through the use of any of the sources of revenue available to the implementation entity for public works projects, by the use of revenue bonds issued by the city or county, or by fees levied by a solid waste management district, whichever is appropriate;

     (19) enter into interlocal agreements in order to achieve and implement the powers enumerated in this part;

     (20) regulate the siting and operation of container sites."

 

     Section 95.  Section 75-10-115, MCA, is amended to read:

     "75-10-115.  Solid waste management fee. (1) The department may prepare adopt rules for adoption by the board, pursuant to 75-10-104 and 75-10-106, that set fees for the management and regulation of solid waste at facilities subject to regulation pursuant to part 2 of this chapter. Upon adoption by the board, the department may collect the fees. These fees may include:

     (a)  a license application fee that reflects the cost of reviewing a new solid waste management system or a substantial change to an existing facility from the time an application is made until the license is issued or denied;

     (b)  a flat annual license renewal fee that reflects a minimal base fee related to the fixed costs of an annual inspection and license renewal. The initial annual fee year for a new facility commences on the date that the facility initially receives waste. The fee must be based upon the categorization of solid waste management systems into separate classes identified by the following criteria:

     (i)  the quantity of solid waste received by the solid waste management system;

     (ii) the nature of the solid waste received; and

     (iii) the nature of the waste management occurring within the solid waste management system.

     (c)  a tonnage or volume-based fee on solid waste disposal.

     (2)  All fees collected must be deposited in the solid waste management account provided for in 75-10-117."

 

     Section 96.  Section 75-10-203, MCA, is amended to read:

     "75-10-203.  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)(1)  "Department" means the department of environmental quality provided for in 2-15-3501.

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

     (4)(3)  "Household hazardous waste" means products commonly used in the home that due to corrosivity, ignitability, reactivity, toxicity, or other chemical or physical properties are dangerous to human health or the environment. Household hazardous waste includes but is not limited to cleaning, home maintenance, automobile, personal care, and yard maintenance products.

     (5)(4)  "Household waste" means any solid waste derived from households, including single and multiple residences, hotels, and motels, crew quarters, and campgrounds and other public recreation and public land management facilities.

     (6)(5)  (a) "Municipal solid waste landfill" means any publicly or privately owned landfill or landfill unit that receives household waste or other types of waste, including commercial waste, nonhazardous sludge, and industrial solid waste.

     (b)  The term does not include land application units, surface impoundments, injection wells, or waste piles.

     (7)(6)  "Person" means an individual, firm, partnership, company, association, corporation, city, town, local governmental entity, or any other governmental or private entity, whether organized for profit or not.

     (8)(7)  "Resource recovery" means the recovery of material or energy from solid waste.

     (9)(8)  "Resource recovery facility" means a facility at which solid waste is processed for the purpose of extracting, converting to energy, or otherwise separating and preparing solid waste for reuse.

     (10)(9) "Resource recovery system" means a solid waste management system that provides for the collection, separation, recycling, or recovery of solid wastes, including disposal of nonrecoverable waste residues.

     (11)(10) (a) "Solid waste" means all putrescible and nonputrescible wastes, including but not limited to garbage; rubbish; refuse; ashes; sludge from sewage treatment plants, water supply treatment plants, or air pollution control facilities; construction and demolition wastes; dead animals, including offal; discarded home and industrial appliances; and wood products or wood byproducts and inert materials.

     (b)  Solid waste does not mean municipal sewage, industrial wastewater effluents, mining wastes regulated under the mining and reclamation laws administered by the department of environmental quality, slash and forest debris regulated under laws administered by the department of natural resources and conservation, or marketable byproducts.

     (12)(11) "Solid waste management system" means a system that controls the storage, treatment, recycling, recovery, or disposal of solid waste. For the purposes of this definition, a container site, as defined in 75-10-103, is not a component of a solid waste management system.

     (13)(12) "Storage" means the actual or intended containment of wastes, either on a temporary basis or for a period of years.

     (14)(13) "Transport" means the movement of wastes from the point of generation to any intermediate points and finally to the point of ultimate storage or disposal.

     (15)(14) "Treatment" means a method, technique, or process, including neutralization, designed to change the physical, chemical, or biological character or composition of any solid waste so as to neutralize the waste or so as to render it safer for transport, amenable for recovery, amenable for storage, or reduced in volume.

     (16)(15) "Waste tire" means a tire that is no longer suitable for its original intended purpose because of wear, damage, or defect."

 

     Section 97.  Section 75-10-206, MCA, is amended to read:

     "75-10-206.  Variance. (1) A person may apply to the board department for a variance from rules adopted by the department pursuant to 75-10-204, except for rules adopted pursuant to 75-10-204(6). The board department may grant a variance if it finds that:

     (a)  failure to comply with the rules does not result in a danger to public health or safety; or

     (b)  compliance with the rules from which a variance is sought would produce hardship without producing benefits to the health and safety of the public that outweigh the hardship.

     (2)  A variance may not be granted pursuant to this section except after a hearing pursuant to the Montana Administrative Procedure Act and consideration by the board department of the relative interests of the applicant and owners of the property likely to be affected by the waste disposal system under consideration.

     (3)  This section may not be construed as relieving the board department from the obligation to comply with the Resource Conservation and Recovery Act of 1976, as amended, or as allowing the board department to grant a variance less restrictive than that act."

 

     Section 98.  Section 75-10-221, MCA, is amended to read:

     "75-10-221.  License required -- application. (1) Except as provided in 75-10-214, a person may not dispose of solid waste or operate a solid waste management system without a license from the department.

     (2)  The department shall provide application forms for a license as provided in this part.

     (3)  The application must contain the name and business address of the applicant, the location of the proposed solid waste management system, a plan of operation and maintenance, and other information that the department may by rule require.

     (4)  The license provided for in this section is for a period not to exceed 12 months unless renewed by the department.

     (5)  The department may require submission of a new application if the department determines that the plan of operation, the management of the solid waste system, or the geological or ground water conditions have changed since the license was initially approved.

     (6)  In preparing rules for board adoption that establish fees for licenses and the review of applications pursuant to 75-10-104(2), the department shall consider the tonnage or volume of waste to be managed and the size of the proposed solid waste management system. The fees adopted by the board must encourage reduction in the tonnage or volume of waste to be managed and cover the costs to the department of initially reviewing and annually licensing the solid waste management system."

 

     Section 99.  Section 75-10-223, MCA, is amended to read:

     "75-10-223.  Refusal by local health officer -- appeal to board department. (1) The local health officer may refuse to validate a license issued under this part only upon a finding that the requirements of this part and the rules implementing this part cannot be satisfied. If the local health officer refuses to validate the license, the local health officer shall notify the applicant, the department, and any other interested person in writing.

     (2)  The applicant or any person aggrieved by the decision of the local health officer not to validate a license may appeal the decision to the board department within 30 days after receiving written notice of the local health officer's decision.

     (3)  The hearing before the board department must be held pursuant to the contested case provisions of the Montana Administrative Procedure Act."

 

     Section 100.  Section 75-10-224, MCA, is amended to read:

     "75-10-224.  Revocation or denial of license by department. The department may deny or revoke a license to operate a solid waste management system after giving the applicant and the local health officer written notice and an opportunity for a hearing before the board department. The decision to deny or revoke a license may be made only after a finding that a solid waste management system cannot be operated or is not being operated in compliance with this part or a rule or order issued pursuant to this part. The hearing held before the board on a denial or revocation shall must be held pursuant to the provisions of the Montana Administrative Procedure Act."

 

     Section 101.  Section 75-10-227, MCA, is amended to read:

     "75-10-227.  Administrative enforcement. (1) When the department believes that a violation of part 1 or this part, a violation of a rule adopted under part 1 or this part, a violation of an order issued under this part, or a violation of a permit provision has occurred, it may serve written notice of the violation on the alleged violator or the violator's agent. The notice must specify the provision of law, rule, or permit alleged to be violated and the facts alleged to constitute a violation and may include an order to take necessary corrective action within a reasonable period of time stated in the order, an order assessing an administrative penalty pursuant to 75-10-228, or both. The order becomes final unless, within 30 days after the notice is served, the person named requests in writing a hearing before the board department. On receipt of the request, the board department shall schedule a hearing. Service by mail is complete on the date of mailing.

     (2)  If, after a hearing held under subsection (1), the board department finds that a violation has occurred, it shall either affirm or modify the department's order. An order issued by the department or by the board may prescribe the date by which the violation must cease and may prescribe time limits for particular action. If, after a hearing, the board department finds that a violation has not occurred, it shall rescind the department's order.

     (3)  Instead of issuing an order pursuant to subsection (1), the department may either:

     (a)  require the alleged violator to appear before the board department for a hearing at a time and place specified in the notice and answer the charges; or

     (b)  initiate action under part 1 or this part.

     (4)  This section does not prevent the board or department from making efforts to obtain voluntary compliance through warning, conference, or any other appropriate means.

     (5)  The contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to a hearing held under this section."

 

     Section 102.  Section 75-10-403, MCA, is amended to read:

     "75-10-403.  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)(1)  "Department" means the department of environmental quality provided for in 2-15-3501.

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

     (4)(3)  "Environmental protection law" means a law contained in or an administrative rule adopted pursuant to Title 75, chapter 2, 5, 10, or 11.

     (5)(4)  "Facility" or "hazardous waste management facility" means all contiguous land and structures, other appurtenances, and improvements on the land used for treating, storing, or disposing of hazardous waste. A facility may consist of several treatment, storage, or disposal operational units.

     (6)(5)  "Generation" means the act or process of producing waste material.

     (7)(6)  "Generator" means any person, by site, whose act or process produces hazardous waste or whose act first causes a hazardous waste to become subject to regulation under this part.

     (8)(7)  (a) "Hazardous waste" means a waste or combination of wastes that, because of its quantity, concentration, or physical, chemical, or infectious characteristics, may:

     (i)  cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness; or

     (ii) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of or otherwise managed.

     (b)  Hazardous wastes do not include those substances governed by Title 82, chapter 4, part 2.

     (9)(8)  "Hazardous waste management" means the management of the collection, source separation, storage, transportation, processing, treatment, recovery, and disposal of hazardous wastes.

     (10)(9) "Hazardous waste transfer facility" means any land, structure, or improvement, including loading docks, parking areas, holding sites, and other similar areas, used for the transfer and temporary storage of hazardous wastes and where shipments of hazardous waste are temporarily held for a period of 10 days or less during the normal course of transportation up to but not including the point of ultimate treatment, storage, or disposal.

     (11)(10) "Manifest" means the shipping document that is originated and signed by the generator and that is used to identify the hazardous waste and its quantity, origin, and destination during its transportation.

     (12)(11) "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.

     (13)(12) "Remediation waste" means, for the purposes of fee assessment only, all hazardous waste, debris, and media, including ground water, surface water, soils, and sediments, that are managed for implementing cleanup.

     (14)(13) "Storage" means the actual or intended containment of hazardous wastes, either on a temporary basis or for a period of years.

     (15)(14) "Transportation" means the movement of hazardous wastes from the point of generation to any intermediate points and finally to the point of ultimate storage or disposal.

     (16)(15) "Transporter" means a person engaged in the offsite transportation of hazardous waste by air, rail, highway, or water.

     (17)(16) "Treatment" means a method, technique, or process, including neutralization, designed to change the physical, chemical, or biological character or composition of any hazardous waste so as to neutralize the waste or so as to render it nonhazardous, safer for transportation, amenable for recovery, amenable for storage, or reduced in volume.

     (18)(17) "Used oil" means any oil that has been refined from crude oil or any synthetic oil, either of which has been used and as a result of that use is contaminated by physical or chemical impurities."

 

     Section 103.  Section 75-10-406, MCA, is amended to read:

     "75-10-406.  Permits. (1) A person may not construct or operate a hazardous waste management facility without first obtaining a permit from the department for the facility, except that the department may, by rule, prescribe conditions under which specified hazardous wastes or specified quantities of hazardous waste may be disposed of at solid waste disposal sites licensed by the department pursuant to Title 75, chapter 10, part 2.

     (2)  Any person who wishes to construct or operate a hazardous waste management facility shall apply to the department for a permit on forms provided by the department. An application must contain, at a minimum, the name and business address of the applicant, the location of the proposed facility, a plan of operation and maintenance, and a description of pertinent site characteristics.

     (3)  A permit may be issued for a period specified by the department and is subject to renewal by the department upon a showing that the facility has been operated in accordance with the terms of the permit and the rules applicable to the facility and in compliance with the provisions of this part and any applicable order of the board or department.

     (4)  Any permit issued is subject to revocation by the department for failure of the permittee to comply with the terms and conditions of the permit, the department rules, an order of the board or the department, or the provisions of this part. Any person who is denied a permit by the department or who has a permit revoked or modified shall must be afforded an opportunity for a hearing before the board department upon written application made within 30 days after service of notice of denial, revocation, or modification by mail. Service by mail is complete upon mailing.

     (5)  Notwithstanding any other provisions of this part, the department may, in the event of an imminent and substantial danger to public health or the environment, issue a temporary emergency permit to any person for treatment, storage, or disposal of hazardous waste or to any facility to handle hazardous waste not covered by the existing facility permit. Emergency permits may be oral or written, may not exceed 90 days in duration, and may be terminated by the department at any time prior to 90 days.

     (6)  The department may, as it considers appropriate, grant permits by rule to classes or categories of hazardous waste management facilities where the facility owner or operator is already licensed or permitted by the department pursuant to other state environmental statutes or where an interim period exists until final administrative disposition of a permit application is made.

     (7)  In permits issued under this section, the department shall require corrective action for all releases of hazardous waste or constituents at a treatment, storage, or disposal facility, including corrective action for releases that extend beyond the facility boundaries if necessary to protect public health or the environment. A permit must contain a schedule of compliance for corrective action and requirements for assurance of financial responsibility for completion of the corrective action.

     (8)  Each permit issued by the department to a person owning or operating a facility must contain the terms and conditions the department considers necessary to protect human health and the environment."

 

     Section 104.  Section 75-10-408, MCA, is amended to read:

     "75-10-408.  Variances -- renewals. (1) A person who is a generator or transporter of hazardous wastes or who owns or operates a hazardous waste management facility may apply to the board department for a variance or partial variance from the application of or compliance with any requirement of this part or any rule adopted under this part. The board department may grant a variance or partial variance if it finds that:

     (a)  the applicant's actions or proposed actions regarding generation, transportation, treatment, storage, or disposal of hazardous wastes do not constitute a danger to public health or safety or cause substantially adverse environmental effects; and

     (b)  the application of or compliance with the requirement or rule would produce unreasonable hardship without equal or greater benefits to the public.

     (2)  No variance or partial variance may be granted except after public hearing on due notice and until the board department has considered the relative interests of the applicant, other persons specifically affected, and the general public.

     (3)  No variance or partial variance may be granted for a period to exceed 1 year, but the variance or partial variance may be renewed for like periods if no complaint is made to the board department because of it or if, after the complaint has been made and duly considered at a public hearing held by the board department on due notice, the board department finds that renewal is justified. No renewal may be granted except on application therefor for renewal. An application for renewal shall must be made in the manner and upon such notice as specified in rules promulgated under this part. A renewal pursuant to this subsection shall must be on the same grounds and subject to the same limitations and requirements as provided in subsection (1).

     (4)  A variance, partial variance, or renewal thereof is not a right of the applicant or holder thereof of the variance, partial variance, or renewal but shall must be granted at the discretion of the board department. However, a person adversely affected by a variance, partial variance, or renewal granted by the board department may obtain judicial review thereof as provided by the judicial review of contested case provisions of the Montana Administrative Procedure Act.

     (5)  Nothing in this section and no variance, partial variance, or renewal granted pursuant to this section may be construed to prevent or limit the application of the emergency provisions and procedures of 75-10-415.

     (6)  Under no conditions may a variance be granted by the board department that would result in a less stringent requirement or degree of control than would be imposed by the applicable federal regulations adopted under the federal Resource Conservation and Recovery Act."

 

     Section 105.  Section 75-10-409, MCA, is amended to read:

     "75-10-409.  Compliance monitoring and reporting. (1) The department may, as a condition of a permit, require the owner or operator of a facility to install equipment, collect and analyze samples, and maintain records in order to monitor and demonstrate compliance with this part, rules adopted under this part, any order of the board or department, and permit conditions.

     (2)  The department may require the owner or operator of a facility to submit reports on the compliance monitoring activities, including notice to the department of any noncompliance with permit conditions, rules adopted under this part, the provisions of this part, or any orders of the department or board."

 

     Section 106.  Section 75-10-413, MCA, is amended to read:

     "75-10-413.  Administrative enforcement. (1) When the department believes that a violation of this part, a rule adopted under this part, or a permit provision has occurred, it may serve written notice of the violation personally or by certified mail on the alleged violator or the violator's agent. The notice must specify the provision of this part, the rule, or the permit provision alleged to be violated and the facts alleged to constitute a violation and may include an order to take necessary corrective action within a reasonable period of time stated in the order. The order becomes final unless, within 30 days after the notice is served, the person named requests, in writing, a hearing before the board department. On receipt of the request, the board department shall schedule a hearing. Service by mail is complete on the date of mailing.

     (2)  If, after a hearing held under subsection (1), the board department finds that a violation has occurred, it shall either affirm or modify the department's order. An order issued by the department or by the board may prescribe the date by which the violation must cease and may prescribe time limits for particular action. If, after hearing, the board department finds that a violation has not occurred, it shall rescind the department's order.

     (3)  In addition to or instead of issuing an order pursuant to subsection (1), the department may:

     (a)  require the alleged violator to appear before the board or department, by subpoena or subpoena duces tecum, for a hearing at a time and place specified in the notice to answer the charges complained of or to provide information regarding the alleged violation or its actual or potential impact on public health and welfare or the environment; or

     (b)  initiate action under 75-10-414, 75-10-417, or 75-10-418.

     (4)  In the case of disobedience of any subpoena issued and served under this section or of the refusal of any witness to testify as to any material matter with regard to which the witness may be interrogated in a hearing or investigation before the board or the department, the board or department may apply to any district court in the state for an order to compel compliance with the subpoena or the giving of testimony. The court shall hear the matter as expeditiously as possible. If the disobedience or refusal is found to be unjustified, the court shall enter an order requiring compliance. Disobedience of the order is punishable by contempt of court in the same manner and by the same procedures as is provided for like conduct committed in the course of civil actions in district court.

     (5)  This section does not prevent the board or department from making efforts to obtain voluntary compliance through warning, conference, or any other appropriate means."

 

     Section 107.  Section 75-10-414, MCA, is amended to read:

     "75-10-414.  Injunctions. The department may institute and maintain in the name of the state actions for injunctive relief as provided in Title 27, chapter 19, to:

     (1)  immediately restrain any person from engaging in any unauthorized activity which is endangering or causing damage to public health or the environment;

     (2)  enjoin a violation of this part, a rule adopted under this part, an order of the department or the board, or a permit provision without the necessity of prior revocation of the permit; or

     (3)  require compliance with this part, a rule adopted under this part, an order of the department or the board, or a permit provision."

 

     Section 108.  Section 75-10-417, MCA, is amended to read:

     "75-10-417.  Civil penalties. (1) A person who violates any provision of this part, a rule adopted under this part, an order of the department or the board, or a permit is subject to a civil penalty not to exceed $10,000 for each violation. Each day of violation constitutes a separate violation. Penalties assessed under this section must be determined in accordance with the penalty factors in 75-1-1001.

     (2)  The department may institute and maintain in the name of the state any enforcement proceedings under this section. Upon request of the department, the attorney general or the county attorney of the county of violation shall petition the district court to impose, assess, and recover the civil penalty. An action to recover penalties must be brought in the district court of the county in which the violation occurred or, if mutually agreed on by the parties in the action, in the district court of the first judicial district, Lewis and Clark County.

     (3)  Action under this section does not bar:

     (a)  enforcement of this part, rules adopted under this part, orders of the department or the board, or permits by injunction or other appropriate remedy; or

     (b)  action under 75-10-418.

     (4)  Money collected under this section must be deposited in the state general fund."

 

     Section 109.  Section 75-10-418, MCA, is amended to read:

     "75-10-418.  Criminal penalties. (1) A person is guilty of an offense under this section if the person knowingly:

     (a)  transports any hazardous waste to an unpermitted facility;

     (b)  treats, stores, or disposes of hazardous waste subject to regulation under this part or the rules adopted under this part without a permit or contrary to a material permit condition;

     (c)  omits material information or makes any false statement or representation in any application, label, manifest, record, report, permit, or other document filed, maintained, or used for compliance with provisions of this part or rules adopted under this part pertaining to the handling of hazardous waste;

     (d)  generates, stores, treats, transports, disposes of, or otherwise handles any used oil or hazardous waste regulated under this part or rules adopted under this part and knowingly destroys, alters, conceals, or fails to file any record, application, manifest, report, or other document required to be maintained or filed in compliance with the provisions of this part, an order issued under this part, or rules adopted under this part; or

     (e)  transports or causes to be transported without a manifest any hazardous waste required to be accompanied by a manifest.

     (2)  A person who is guilty of an offense under subsection (1) is subject to a fine of not more than $25,000 per violation or imprisonment for a period not to exceed 3 years, or both. Each day of violation constitutes a separate violation.

     (3)  A person who knowingly violates any requirement of this part or any rule or material permit condition issued pursuant to this part (except those violations specified in subsection (1)) regarding any hazardous waste that is subject to regulation is guilty of an offense and subject to a fine of up to $5,000 per violation or subject to imprisonment not to exceed 6 months, or both. Each day of violation constitutes a separate violation.

     (4)  Upon a second conviction for a violation of this section, the maximum penalties specified in this section must be doubled.

     (5)  Action under this section does not bar enforcement of this part, rules made under this part, orders of the department or the board, or permits by injunction or other appropriate remedy.

     (6)  Money collected under this section, except money collected in a justice's court, must be deposited in the state general fund."

 

     Section 110.  Section 75-10-424, MCA, is amended to read:

     "75-10-424.  Administrative penalty. (1) The department may assess a person who violates a provision of this part or a rule adopted under this part an administrative penalty, not to exceed $10,000 for each violation. Each day of violation constitutes a separate violation, but the maximum penalty may not exceed $100,000 for any related series of violations. Assessment of an administrative penalty under this section must be made in conjunction with an order or administrative action authorized by this chapter.

     (2)  An administrative penalty may not be assessed under this section unless the alleged violator is given notice and opportunity for a hearing before the board department pursuant to Title 2, chapter 4, part 6.

     (3)  In determining the appropriate amount of an administrative penalty, the department shall consider the penalty factors in 75-1-1001.

     (4)  If the department is unable to collect the administrative penalty or if a person fails to pay all or any portion of the administrative penalty as determined by the department, the department may file an action to recover the amount not paid. The action must be brought in the district court of the county in which the violation occurred or, if mutually agreed on by the parties in the action, in the district court of the first judicial district, Lewis and Clark County.

     (5)  Action under this section does not bar action under 75-10-413 through 75-10-418 or any other appropriate remedy.

     (6)  Administrative penalties collected under this section must be deposited in the state general fund."

 

     Section 111.  Section 75-10-501, MCA, is amended to read:

     "75-10-501.  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)(1)  "Component part" means any identifiable part of a discarded, ruined, wrecked, or dismantled motor vehicle, including but not limited to fenders, doors, hoods, engine blocks, motor parts, transmissions, frames, axles, wheels, tires, and passenger compartment fixtures.

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

     (4)(3)  (a) "Junk vehicle" means a motor vehicle, including component parts:

     (i)  that is discarded, ruined, wrecked, or dismantled;

     (ii) that, except as provided in subsection (4)(b) (3)(b), is not lawfully and validly licensed; and

     (iii) that remains inoperative or incapable of being driven.

     (b)  If a vehicle is permanently registered under 61-3-562 and meets the criteria for a junk vehicle under subsection (4)(a) (3)(a), the vehicle is a junk vehicle.

     (5)(4)  "Motor vehicle graveyard" means a collection point established by a county for junk motor vehicles prior to their disposal.

     (6)(5)  (a) "Motor vehicle wrecking facility" means:

     (i)  a facility buying, selling, or dealing in four or more vehicles a year, of a type required to be licensed, for the purpose of wrecking, dismantling, disassembling, or substantially changing the form of the motor vehicle; or

     (ii) a facility that buys or sells component parts, in whole or in part, and deals in secondhand motor vehicle parts. A facility that buys or sells component parts of a motor vehicle, in whole or in part, is a motor vehicle wrecking facility whether or not the buying or selling price is based upon weight or any other type of classification.

     (b)  The term does not include a garage where wrecked or disabled motor vehicles are temporarily stored for a reasonable period of time for inspection, repairs, or subsequent removal to a junkyard.

     (7)(6)  "Person" means any individual, firm, partnership, company, association, corporation, city, town, local governmental entity, or other governmental or private entity, whether organized for profit or not.

     (8)(7)  "Public view" means any point 6 feet above the surface of the center of a public road from which junk vehicles can be seen.

     (9)(8)  "Shielding" means the construction or use of fencing or constructed or natural barriers to conceal junk vehicles from public view."

 

     Section 112.  Section 75-10-515, MCA, is amended to read:

     "75-10-515.  Appeals. A decision by the department to issue, deny, or revoke a motor vehicle wrecking facility or graveyard license may be appealed to the board department within 30 days after receipt of official notice of the department's decision."

 

     Section 113.  Section 75-10-540, MCA, is amended to read:

     "75-10-540.  Administrative enforcement. (1) When the department determines that a violation of this part, a violation of a rule adopted or an order issued under this part, or a violation of a license provision has occurred, it may serve written notice of the violation on the alleged violator or the violator's agent. The notice must specify the law, rule, or license provision alleged to be violated and the facts alleged to constitute a violation and may include an order to take necessary corrective action within a reasonable period of time, an order assessing an administrative penalty pursuant to 75-10-542, or both. The order becomes final 30 days after the notice is served unless the person named requests, in writing, a hearing before the board department. On receipt of the request for a hearing, the board department shall schedule a hearing. Service by mail is complete on the date of mailing.

     (2)  If, after a hearing held under subsection (1), the board department finds that a violation has occurred, it shall either affirm or change the department's order. An order may prescribe the date by which the violation must cease and may prescribe time limits for particular action. If, after a hearing, the board department finds that a violation has not occurred, it shall rescind the department's order.

     (3)  The department shall make efforts to obtain voluntary compliance through warning, conference, or any other appropriate means before issuing an order pursuant to subsection (1).

     (4)  The contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to a hearing held under this section."

 

     Section 114.  Section 75-10-714, MCA, is amended to read:

     "75-10-714.  Administrative penalties. (1) In lieu of proceeding under 75-10-711(5), the department may assess penalties of not more than $1,000 a day for each violation against a person liable under 75-10-715(1) for a release or threat of release who has failed or refused to comply with an order issued by the department pursuant to 75-10-711(4) or against a person who has failed or refused to comply with an order issued by the department pursuant to 75-10-707(5).

     (2)  In determining the amount of any penalty assessed pursuant to this section, the department shall take into account the nature, circumstances, extent, and gravity of the noncompliance and, with respect to the person liable under 75-10-715(1):

     (a)  the person's ability to pay;

     (b)  any prior history of violations;

     (c)  the degree of culpability;

     (d)  the economic benefit or savings, if any, resulting from the noncompliance; and

     (e)  any other matters that justice may require.

     (3)  An administrative penalty may not be collected pursuant to this section unless the person charged with the noncompliance is given notice and opportunity for a hearing with respect to the noncompliance. The hearing is before the board of environmental review department. A hearing may be requested by submitting a written request stating the reason for the request within 30 days after receipt of the notice of penalty assessment.

     (4)  The contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to a hearing held under this section.

     (5)  Administrative penalties collected under this section must be deposited in the environmental quality protection fund established in 75-10-704."

 

     Section 115.  Section 75-10-727, MCA, is amended to read:

     "75-10-727.  Institutional controls. (1) An owner of real property may, with department approval, restrict the use of the owner's real property to mitigate the risk posed to the public health, safety, and welfare and the environment by imposing on the real property, without conveying the property or creating a dominant and servient estate, an appropriate institutional control.

     (2)  An institutional control restricting present and future real property rights is placed on a property by filing a written instrument evidencing the restrictions to be placed on the use of the property with the county clerk in the county in which the property is located.

     (3)  An institutional control that restricts real property runs with the land and is binding on all successors in interest to real property until the institutional control is removed.

     (4)  An institutional control must be removed if there is not an unacceptable risk posed to public health, safety, and welfare and the environment. An owner may request department approval to remove all or a portion of the institutional controls from the real property. The department shall review the request and provide the owner with its decision to approve or deny the request within 120 days from the department's receipt of the request. If the department denies the request, it shall provide the owner with a written explanation of the denial. A department decision to deny the request may be appealed to the board of environmental review department and conducted as a contested case proceeding pursuant to Title 2, chapter 4.

     (5)  If the department or the board approves an owner's request to remove all or a portion of the institutional controls, the owner shall file the approval with the county clerk in the county in which the real property is located."

 

     Section 116.  Section 75-10-732, MCA, is amended to read:

     "75-10-732.  Eligibility. (1) A facility where there has been a release or threatened release of a hazardous or deleterious substance that may present an imminent and substantial endangerment to the public health, safety, or welfare or the environment may be eligible for voluntary cleanup procedures under this part, except for facilities that meet one of the following criteria at the time of application for a voluntary cleanup plan:

     (a)  a facility that is listed or proposed for listing on the national priorities list pursuant to 42 U.S.C. 9601, et seq.;

     (b)  a facility for which an order has been issued or consent decree has been entered into pursuant to this part;

     (c)  a facility that is the subject of an agency order or an action filed in district court by any state agency that addresses the release or threatened release of a hazardous or deleterious substance; or

     (d)  a facility where the release or threatened release of a hazardous or deleterious substance is regulated by the Montana Hazardous Waste Act and regulations under that act; or

     (e)  a facility that is the subject of pending action under this part because the facility has been issued a notice commencing a specified period of negotiations on an administrative order on consent.

     (2)  Notwithstanding the provisions of subsections (1)(b) through (1)(e), the department may agree to accept and may approve an application for a voluntary cleanup plan for a facility.

     (3)  The department may determine that a facility that is potentially eligible for voluntary cleanup exhibits complexities regarding protection of public health, safety, and welfare and the environment and that the complexities should be addressed under an administrative order or consent decree pursuant to this part. This determination may be made only after consultation with any person desiring to conduct a voluntary cleanup at the facility.

     (4)  If an applicant who submits an application for a voluntary cleanup plan disagrees with the department's decision to reject the filing of the application under subsection (1) or (3) or disagrees with the department's decision to disapprove the voluntary cleanup plan submitted pursuant to 75-10-736, the applicant may, within 30 days of receipt of the department's written decision pursuant to 75-10-736, submit a written request for a hearing before the board of environmental review department. In reviewing a department decision to reject an application under subsection (1) or (3) or to disapprove a voluntary cleanup plan submitted pursuant to 75-10-736, the board department shall apply the standards of review specified in 2-4-704. The hearing must be held within 2 months at the regular meeting of the board or at the time mutually agreed to by the board, the department, and the applicant. The hearing and any appeals must be conducted in accordance with the contested case proceedings pursuant to Title 2, chapter 4, parts 6 and 7. A hearing before the board department may not be requested regarding a decision of the department made pursuant to subsection (2)."

 

     Section 117.  Section 75-10-736, MCA, is amended to read:

     "75-10-736.  Approval of voluntary cleanup plan -- time limits -- content of notice -- expiration of approval. (1) The department shall review for completeness, including adequacy and accuracy, in accordance with the requirements of 75-10-734, the environmental assessment component of a voluntary cleanup plan and shall provide a written completeness notice to the applicant within 30 days of receipt. The completeness notice must note all deficiencies identified in the information submitted.

     (2)  Once the department determines that the environmental assessment component of a voluntary cleanup plan is complete, the applicant may submit the remediation proposal component. The department shall review the remediation proposal for completeness, including adequacy and accuracy, in accordance with the requirements of 75-10-734, and shall provide a written completeness notice to the applicant within 30 days of receipt. The completeness notice must note all deficiencies identified in the information submitted.

     (3)  Once the department determines that the application for a voluntary cleanup plan is complete pursuant to subsections (1) and (2), the department shall provide formal written notification of approval or disapproval within 60 days unless the applicant and the department agree to an extension of the review to a date certain. The review must be limited to a review of the materials submitted by the applicant, public comments, and documents or information readily available to the department. The department shall communicate with the applicant during the review period to ensure that the applicant has the opportunity to address the public comments.

     (4)  (a) If the department receives five applications for review of either component of a voluntary cleanup plan in a calendar month, including applications deferred from prior months, the department may notify any additional applicants in that month that their plans must be reviewed in the order received. The 60-day period for department completeness review of deferred applications must begin on the first day of the subsequent month that each plan is eligible for review.

     (b)  The department shall discontinue accepting either component of voluntary cleanup applications when 15 applications are pending and are being reviewed by the department. The department shall establish a waiting list for applications and shall consider the applications in order of submittal.

     (c)  If the department has received multiple applications for a voluntary cleanup at the same facility, the department shall notify all of the applicants and offer them the opportunity to submit a joint application.

     (5)  Consistent with the provisions of 75-10-707, the department may access the facility during review of either component of the application and implementation of the voluntary cleanup plan to confirm information provided by the applicant and verify that the cleanup is being conducted consistent with the approved plan.

     (6)  The department shall approve a voluntary cleanup plan if the department concludes that the plan meets the requirements specified in 75-10-734 and will attain a degree of cleanup and control of hazardous or deleterious substances that complies with the requirements of 75-10-721. Except for the period necessary for the operation and maintenance of the approved remediation proposal, the department may not approve a voluntary remediation proposal that would take longer than 60 months after department approval to complete.

     (7)  If a voluntary cleanup plan is not approved by the department, the department shall promptly provide the applicant with a written statement of the reasons for denial. The denial may be appealed to the board of environmental review department in accordance with the provisions of 75-10-732(4).

     (8)  The approval of a voluntary cleanup plan by the department applies only to conditions at the facility that are known to the department at the time of department approval. If a voluntary remediation proposal is not initiated within 12 months and, except for the period necessary for the operation and maintenance of the approved remediation proposal, is not completed within 60 months after approval by the department, the department's approval lapses. However, the department may grant an extension of the time limit for completion of the voluntary cleanup plan.

     (9)  If conditions are discovered during implementation of a voluntary cleanup plan that were not identified in the environmental assessment component pursuant to subsection (1), affect the risk to public health, safety, or welfare or the environment, and change the scope of the approved plan, the applicant shall notify the department within 10 days of discovery. The department may require the applicant to submit an amendment to the approved plan to address the conditions or may determine that a voluntary cleanup plan is no longer appropriate pursuant to 75-10-732(3).

     (10) Departmental approval is void if the applicant or the applicant's agents:

     (a)  fail to materially comply with the voluntary cleanup plan;

     (b)  submit materially misleading information in the application or during implementation of the voluntary cleanup plan; or

     (c)  fail to report any newly discovered information to the department during the application process or implementation of the voluntary cleanup plan regarding releases or threatened releases of hazardous or deleterious substances within 10 days of discovery of that information.

     (11) Within 60 days after completion of the approved remediation proposal described in the voluntary cleanup plan approved by the department, the applicant shall provide to the department a certification from a qualified environmental professional that the plan has been fully implemented, including all documentation necessary to demonstrate the successful implementation of the plan, such as confirmation sampling, if necessary.

     (12) Except as provided in 75-10-738(2)(b), the department may not require financial assurance under this part for voluntary cleanup plans approved under this section.

     (13) If a person who would otherwise not be a liable person under 75-10-715(1) elects to undertake an approved voluntary cleanup plan, the person may not become a liable person under 75-10-715(1) by undertaking a voluntary cleanup if the person materially complies with the voluntary cleanup plan approved by the department pursuant to this section.

     (14) Immunity from liability under this section does not apply to a release that is caused by conduct that is negligent or grossly negligent or that constitutes intentional misconduct."

 

     Section 118.  Section 75-10-1201, MCA, is amended to read:

     "75-10-1201.  Definitions. As used in this part, the following definitions apply:

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

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

     (3)(2)  "Disposal" means the discharge, injection, deposit, dumping, spilling, leaking, or placing of septage into or onto the land or water.

     (4)(3)  "Domestic sewage" means waste and wastewater from humans or household operations that are discharged to or otherwise enter a treatment works.

     (5)(4)  "Industrial wastewater" means wastewater generated in a commercial or industrial process.

     (6)(5)  "Person" means an individual, firm, partnership, association, corporation, city, town, local government entity, or other government or private entity, whether organized for profit or not.

     (7)(6)  (a) "Septage" means liquid or solid material removed from a septic tank, cesspool, portable toilet, or similar treatment works that receives only domestic sewage.

     (b)  Septage does not include material removed from a septic tank, cesspool, or similar treatment works that receives industrial wastewater and does not include grease removed from a grease trap at a restaurant.

     (8)(7)  "Treatment works" means a publicly owned or privately owned device or system used to treat, including to recycle and to reclaim, either domestic sewage or a combination of domestic sewage and industrial waste of a liquid nature."

 

     Section 119.  Section 75-10-1221, MCA, is amended to read:

     "75-10-1221.  Department revocation or denial of license. The department may deny or revoke a license after giving the applicant written notice and an opportunity for a hearing before the board department. The decision to deny or revoke a license may be made only after a finding that a business or disposal site cannot be operated or is not being operated in compliance with this part or a rule or order issued pursuant to this part. The hearing held before the board department on a denial or revocation must be held pursuant to the provisions of the Montana Administrative Procedure Act."

 

     Section 120.  Section 75-10-1222, MCA, is amended to read:

     "75-10-1222.  Administrative enforcement. (1) If the department believes that a violation of this part, a rule adopted under this part, or an order issued under this part has occurred, it may serve written notice of the violation, by certified mail, on the alleged violator or the violator's agent. The notice must specify the provision of this part, the rule, or the condition of approval alleged to have been violated and the facts alleged to constitute a violation. The notice must include an order to take necessary corrective action within a reasonable period of time. The time period must be stated in the order. Service is complete on the date of mailing.

     (2)  If the alleged violator does not request a hearing before the board department within 30 days of the date of service, the order is final. Failure to comply with a final order may subject the violator to an action commenced pursuant to 75-10-1221.

     (3)  If the alleged violator requests a hearing before the board department within 30 days of the date of service, the board department shall schedule a hearing. After the hearing is held, the board department may:

     (a)  affirm or modify the department's order issued under subsection (1) if the board department finds that a violation has occurred; or

     (b)  rescind the department's order if the board department finds that a violation has not occurred.

     (4)  An order issued by the department or the board may set a date by which the violation must cease and set a time limit for the violator to correct the violation.

     (5)  (a) An action initiated by the department under this section may include an administrative penalty not to exceed $500 for each day of violation. Administrative penalties collected under this section must be deposited in the account provided for in 75-10-1203.

     (b)  Penalties assessed under this section must be determined in accordance with the penalty factors in 75-1-1001.

     (6)  The contested case provisions of the Montana Administrative Procedure Act, provided for in Title 2, chapter 4, part 6, apply to a hearing under this section."

 

     Section 121.  Section 75-11-203, MCA, is amended to read:

     "75-11-203.  Definitions. As used in this part, unless the context requires otherwise, the following definitions apply:

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

     (2)(1)  "Closure" or "to close" means the process of properly removing or filling in place an underground storage tank that is no longer in service.

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

     (4)(3)  "Inspection" means activities to inspect all or part of an underground storage tank system, including records relating to installation, operation, maintenance, and closure to determine compliance with applicable laws and rules relating to operation and maintenance.

     (5)(4)  "Inspector" means an individual who performs inspections of underground storage tank systems.

     (6)(5)  (a) "Installation" or "to install" means the placement of an underground storage tank system, including excavation, tank placement, backfilling, and piping of underground portions of the underground storage tank system that store or convey regulated substances. Installation includes repair or modification of an underground storage tank system through such means as tank relining or the repair or replacement of valves, fillpipes, piping, vents, or in-tank liquid-level monitoring systems. Installation also means installation, repair, or modification of a leak detection device that is external to and not attached to the underground storage tank system and the installation, repair, or modification of a cathodic protection system.

     (b)  The terms do not include the process of conducting a precision (tightness) test to establish the integrity of the underground storage tank system.

     (7)(6)  "Installer" means an individual who installs or closes underground storage tank systems.

     (8)(7)  "License" means a license issued by the department under 75-11-204 or 75-11-210 to conduct the inspection, installation, or closure of underground storage tank systems.

     (9)(8)  "Licensed inspector" means an individual who holds a valid underground storage tank system inspector license.

     (10)(9) "Licensed installer" means an individual who holds a valid underground storage tank system installer license.

     (11)(10) "Operator" means a person in control of or having responsibility for the operation, maintenance, or management of an underground storage tank system.

     (12)(11) "Owner" means a person who owns an underground storage tank system used for the storage, use, or dispensing of regulated substances.

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

     (14)(13) "Regulated substance" means a regulated substance as defined in 75-11-503.

     (15)(14) "Underground storage tank" or "underground storage tank system" means an underground storage tank, as defined in 75-11-503, and, for purposes of this part, includes ancillary equipment designed to prevent, detect, or contain a release from an underground storage tank system."

 

     Section 122.  Section 75-11-211, MCA, is amended to read:

     "75-11-211.  Denial, modification, suspension, or revocation of installer or inspector license -- grounds. (1) The department may deny, modify, condition, suspend, or revoke a license if the installer or inspector:

     (a)  fails to achieve a passing grade on a written examination;

     (b)  fails to pay the license fee imposed under this part;

     (c)  commits fraud or deceit with respect to the license or permit application or an inspection report submitted to the department;

     (d)  has had suspended or revoked:

     (i)  a license issued under this part; or

     (ii) a similar license in another state or territory; or

     (e)  violates any state or federal law, rule, permit, or order relating to the installation or closure of an underground storage tank system.

     (2)  If the department modifies, conditions, suspends, or revokes a license, it shall inform the applicant or license holder in writing of the reason for the action. The applicant or license holder may request a hearing before the board department. If the board department grants a hearing, the hearing must be held in accordance with the provisions of the Montana Administrative Procedure Act."

 

     Section 123.  Section 75-11-218, MCA, is amended to read:

     "75-11-218.  Administrative enforcement. (1) When the department believes that a person has violated this part, a rule adopted under this part, or a permit provision, it may serve written notice of the violation on the person or the person's agent. The notice must specify the alleged violation and the facts that constitute the alleged violation. The notice may include an order to provide information pertaining to the installation, closure, or inspection, an order to take necessary corrective action within a reasonable time as stated in the order, or an order assessing an administrative penalty pursuant to 75-11-223. A notice and order must be signed by the director of the department or the director's designee and must be served personally or by certified mail upon the person or the person's agent. The order becomes final unless, within 30 days after the notice is served, the person requests in writing a hearing before the board department. On receipt of the request, the board department shall schedule a hearing. Service by mail is complete on the date of mailing.

     (2)  If, pursuant to a hearing held under subsection (1), the board department finds that a violation has occurred, it shall either affirm or modify the department's order. An order issued by the department or the board may prescribe the date by which the violation must cease and may prescribe time limits for particular action. If, after a hearing, the board department finds that a violation has not occurred, it shall rescind the department's order.

     (3)  In addition to or instead of issuing an order pursuant to subsection (1), the department may either:

     (a)  require the alleged violator to appear before the board department for a hearing at a time and place specified in the notice and answer the charges described in the notice of violation; or

     (b)  initiate action under 75-11-219, 75-11-223, or 75-11-224.

     (4)  This section does not prevent the board or department from attempting to obtain voluntary compliance through issuance of a warning, a conference, or any other appropriate administrative or judicial means.

     (5)  The contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to a hearing held under this section."

 

     Section 124.  Section 75-11-219, MCA, is amended to read:

     "75-11-219.  Injunctions. The department may institute and maintain in the name of the state actions for injunctive relief as provided in Title 27, chapter 19, to:

     (1)  immediately restrain any person from engaging in unauthorized activity that is endangering public health or causing damage to the environment;

     (2)  enjoin a violation of this part, a rule adopted under this part, or an order of the department or the board; or

     (3)  require compliance with this part, a rule adopted under this part, or an order of the department or the board."

 

     Section 125.  Section 75-11-223, MCA, is amended to read:

     "75-11-223.  Civil and administrative penalties. (1) (a) A person who violates a provision of this part, a rule adopted under this part, or an order of the department or the board is subject to an administrative penalty not to exceed $500 for each violation or a civil penalty not to exceed $10,000 for each violation. If an installer or an inspector who is an employee is in violation, the employer of that installer or that inspector is the entity that is subject to the provisions of this section unless the violation is the result of a grossly negligent or willful act. Each day of violation of this part, a rule adopted under this part, or an order constitutes a separate violation.

     (b)  Penalties assessed under this subsection (1) must be determined in accordance with the penalty factors in 75-1-1001.

     (2)  The department may institute and maintain in the name of the state any enforcement proceedings under this section. The enforcement or collection action must be brought in the district court of the county in which the violation occurred or, if mutually agreed upon by the parties, in the district court of the first judicial district, Lewis and Clark County. Upon request of the department, the attorney general or the county attorney of the county where the violation occurred shall petition the district court to impose, assess, and recover the civil penalty.

     (3)  Action under this section does not bar:

     (a)  enforcement of this part, rules adopted under this part, orders of the department or the board, or terms of a license or permit by injunction or other appropriate remedy; or

     (b)  action under 75-11-224."

 

     Section 126.  Section 75-11-224, MCA, is amended to read:

     "75-11-224.  Criminal penalties. (1) Any owner or operator who knowingly installs or closes an underground storage tank system without a permit and either an inspection or the use of the services of a licensed installer as required in 75-11-209; any installer who knowingly installs or closes an underground storage tank system without being licensed; or any person who knowingly makes any false statements or representations in any application, permit, report, licensing form, or other document filed or maintained as required by this part or required by rules adopted under this part is subject to a fine not to exceed $10,000 for each violation or imprisonment not to exceed 6 months, or both. Each day of violation constitutes a separate violation.

     (2)  A person convicted of a second or subsequent criminal violation is subject to a fine not to exceed $20,000 for each violation or imprisonment not to exceed 1 year, or both. Each day of violation constitutes a separate violation.

     (3)  Action under this section does not bar enforcement of this part, rules adopted under this part, orders of the department or the board, or terms of a license or permit by injunction or other appropriate remedy."

 

     Section 127.  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)(1)  "Department" means the department of environmental quality provided for in 2-15-3501.

     (3)(2)  "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)(3)  "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)(4)  "Petroleum mixing zone" means an area where water quality standards for petroleum and petroleum constituents may be exceeded subject to the conditions of 75-11-508 and consistent with rules adopted under 75-11-318, 75-11-319, and 75-11-505.

     (6)(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.

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

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

     (a)  means, except as provided in subsections (8)(b)(i) through (8)(b)(xii) subsection (7)(b):

     (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;

     (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 (8)(b)(v)(A) or (8)(b)(v)(B) (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 (8)(b)(i) through (8)(b)(ix) (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:

     (A)  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; or

     (B)  a facilitywide corrective action order under 75-10-425 or the federal Resource Conservation and Recovery Act of 1976, 42 U.S.C. 6901 through 6987, as amended."

 

     Section 128.  Section 75-11-505, MCA, is amended to read:

     "75-11-505.  Administrative rules -- underground storage tanks -- petroleum mixing zones. (1) The department may adopt, amend, or repeal rules for the prevention and correction of leakage from underground storage tanks, including:

     (a)  reporting by owners and operators;

     (b)  financial responsibility;

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

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

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

     (f)  development of a schedule of annual fees, 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.

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

     (h)  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.

     (2)  In accordance with 75-11-508, the department:

     (a)  shall adopt rules governing the inclusion of a petroleum mixing zone, as defined in 75-11-503, in a corrective action plan; and

     (b)  may incorporate by reference rules adopted by the board of environmental review pursuant to 75-5-301 and 75-5-303 related to mixing zones for ground water."

 

     Section 129.  Section 75-11-508, MCA, is amended to read:

     "75-11-508.  Corrective action -- petroleum mixing zones. (1) A corrective action plan prepared pursuant to 75-11-309 may include the use of a petroleum mixing zone, as defined in 75-11-503, in conjunction with the final remediation and resolution of a petroleum release.

     (2)  If a petroleum mixing zone is included in a corrective action plan, it may be established only when:

     (a)  all source material has been removed to the maximum extent practicable;

     (b)  the extent of petroleum contamination has been defined;

     (c)  natural breakdown or attenuation is occurring within the plume; and

     (d)  no further corrective action is reasonably required at the site.

     (3)  The boundary of a petroleum mixing zone established in accordance with this section must be contained within the boundary of the property on which the petroleum release originated unless a recorded easement, a restrictive covenant, or another institutional control approved by the department on an adjoining property allows the petroleum mixing zone to extend onto the adjoining property.

     (4)  Monitoring of a petroleum mixing zone may not be required unless there is a unique, overriding, site-specific, impact-related reason to require monitoring.

     (5)  At the downgradient boundary of a petroleum mixing zone, the concentration of any petroleum constituent, including benzene, may not exceed a water quality standard adopted by the board pursuant to 75-5-301.

     (6)  If a petroleum mixing zone is established and maintained:

     (a)  the petroleum release is considered to be resolved;

     (b)  no further corrective action for the petroleum release is required; and

     (c)  the department shall issue a no-further-action letter to the owner or operator stating that a petroleum mixing zone has been established for the release and describing any conditions required to maintain the petroleum mixing zone.

     (7)  A corrective action plan approved by the department pursuant to 75-11-309 may be amended to include a petroleum mixing zone in accordance with this section, including a corrective action plan approved prior to April 15, 2011."

 

     Section 130.  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.

     (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.

     (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.

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

     (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.

     (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. Prior to issuing or renewing a permit, the department shall determine, on the basis of the inspection report and other relevant information, whether the operation and maintenance of the tank were in compliance with this part and rules adopted pursuant to this part on the date of inspection.

     (9)  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 department. The hearing request must be in writing and must be filed with the board department 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 131.  Section 75-11-512, MCA, is amended to read:

     "75-11-512.  Administrative enforcement. (1) When the department believes that a violation of this part or a rule adopted under this part has occurred, it may serve written notice of the violation personally or by certified mail on the alleged violator or the violator's agent. The notice must specify the provision of this part or the rule alleged to be violated and the facts alleged to constitute a violation and may include an order to take necessary corrective action within a reasonable period of time stated in the order. The order becomes final unless, within 30 days after the notice is served, the person named requests, in writing, a hearing before the board department. On receipt of the request, the board department shall schedule a hearing. Service by mail is complete on the date of receipt.

     (2)  If, after a hearing held under subsection (1), the board department finds that a violation has occurred, it shall either affirm or modify the department's order. An order issued by the department or by the board may prescribe the date by which the violation must cease and may prescribe time limits for particular action. If, after hearing, the board department finds that a violation has not occurred, it shall rescind the department's order.

     (3)  In addition to or instead of issuing an order pursuant to subsection (1), the department may:

     (a)  require the alleged violator to appear before the board or department, by subpoena or subpoena duces tecum, for a hearing at a time and place specified in the notice to answer the charges complained of or to provide information regarding the alleged violation or its actual or potential impact on the public health and welfare or the environment;

     (b)  initiate action under 75-11-513, 75-11-514, or 75-11-516; or

     (c)  assess administrative penalties and issue corrective action orders under 75-11-525.

     (4)  In the case of disobedience of any subpoena issued and served under this section or of the refusal of any witness to testify as to any material matter with regard to which the witness may be interrogated in a hearing or investigation before the board or the department, the board or department may apply to any district court in the state for an order to compel compliance with the subpoena or the giving of testimony. The court shall hear the matter as expeditiously as possible. If the disobedience or refusal is found to be unjustified, the court shall enter an order requiring compliance. Disobedience of the order is punishable by contempt of court in the same manner and by the same procedures as is provided for like conduct committed in the course of civil actions in district court.

     (5)  If a person fails to comply with an order issued pursuant to subsection (1) or (3) within the time allowed in the order, the department may enter the property on which the underground storage tank that is in violation is located and temporarily close the tank. If the department finds that permanent closure is necessary to prevent substantial environmental harm or because the owner or operator is unlikely to comply with the order, it may permanently close the tank.

     (6)  This section does not prevent the board or department from making efforts to obtain voluntary compliance through warning, conference, or any other appropriate means."

 

     Section 132.  Section 75-11-513, MCA, is amended to read:

     "75-11-513.  Injunctions. The department may institute and maintain, in the name of the state, actions for injunctive relief as provided in Title 27, chapter 19, to:

     (1)  immediately restrain any person from engaging in any unauthorized activity that is endangering or causing damage to the public health or to the environment;

     (2)  enjoin a violation of this part, a rule adopted under this part, or an order of the department or the board; or

     (3)  require compliance with this part, a rule adopted under this part, or an order of the department or the board."

 

     Section 133.  Section 75-11-516, MCA, is amended to read:

     "75-11-516.  Civil penalties. (1) (a) A person who violates any provision of this part, a rule adopted under this part, or an order of the department or the board is subject to a civil penalty not to exceed $10,000 for each violation. Each day of violation constitutes a separate violation.

     (b)  Penalties assessed under this subsection (1) must be determined in accordance with the penalty factors in 75-1-1001.

     (2)  The department may institute and maintain in the name of the state any enforcement proceedings under this section. Upon request of the department, the attorney general or the county attorney of the county of violation shall petition the district court to impose, assess, and recover the civil penalty. Penalties are also recoverable in an action brought by the department. The action must be brought in the district court of the county in which the violation occurred or, if mutually agreed on by the parties in the action, in the district court of the first judicial district, Lewis and Clark County.

     (3)  Action under this section does not bar enforcement of this part, rules adopted under this part, or orders of the department or the board.

     (4)  Money collected under this section must be deposited in the state general fund."

 

     Section 134.  Section 75-11-525, MCA, is amended to read:

     "75-11-525.  Administrative penalties for violations -- appeals -- venue. (1) (a) A person who violates any of the provisions of this part or any rules promulgated under the authority of this part may be assessed and ordered by the department to pay an administrative penalty not to exceed $500 for each violation. This limitation on administrative penalties applies only to penalties assessed under this section. Each occurrence of the violation and each day that it remains uncorrected constitutes a separate violation. The department may suspend a portion of the administrative penalty assessed under this section if the condition that caused the assessment of the penalty is corrected within a specified time. Assessment of an administrative penalty under this section may be made in conjunction with any order or other administrative action authorized by this chapter.

     (b)  Penalties assessed under this subsection (1) must be determined in accordance with the penalty factors in 75-1-1001.

     (2)  When the department assesses an administrative penalty under this section, it must have written notice served personally or by certified mail on the alleged violator or the violator's agent. For purposes of this chapter, service by mail is complete on the day of receipt. The notice must state:

     (a)  the provision alleged to be violated;

     (b)  the facts alleged to constitute the violation;

     (c)  the amount of the administrative penalty assessed under this section;

     (d)  the amount, if any, of the penalty to be suspended upon correction of the condition that caused the assessment of the penalty;

     (e)  the nature of any corrective action that the department requires, whether or not a portion of the penalty is to be suspended;

     (f)  as applicable, the time within which the corrective action is to be taken and the time within which the administrative penalty is to be paid; and

     (g)  the right to appeal or to a hearing to mitigate the penalty assessed.

     (3)  A person assessed a penalty under this section may request a hearing before the board department to either contest the alleged violation or request mitigation of the penalty. 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. If a hearing is held under this section, it must be held in Lewis and Clark County or the county in which the alleged violation occurred.

     (4)  If the department is unable to collect an administrative penalty assessed under this section or if a person fails to pay all or any portion of an administrative penalty assessed under this section, the department may take action in district court to recover the penalty amount and any additional amounts assessed or sought under this chapter. The action must be brought in the district court of the county in which the violation occurred or, if mutually agreed on by the parties in the action, in the district court of the first judicial district, Lewis and Clark County.

     (5)  Action under this section does not bar action under this chapter or any other remedy available to the department for violations of underground storage tank laws or rules promulgated under those laws.

     (6)  Administrative penalties collected under this section must be deposited in the state general fund."

 

     Section 135.  Section 75-20-104, MCA, is amended to read:

     "75-20-104.  Definitions. In this chapter, unless the context requires otherwise, the following definitions apply:

     (1)  "Addition thereto" means the installation of new machinery and equipment that would significantly change the conditions under which the facility is operated.

     (2)  "Application" means an application for a certificate submitted in accordance with this chapter and the rules adopted under this chapter.

     (3)  (a) "Associated facilities" includes but is not limited to transportation links of any kind, aqueducts, diversion dams, pipelines, storage ponds, reservoirs, and any other device or equipment associated with the delivery of the energy form or product produced by a facility.

     (b)  The term does not include a transmission substation, a switchyard, voltage support, or other control equipment or a facility or a natural gas or crude oil gathering line 25 inches or less in inside diameter.

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

     (5)(4)  "Certificate" means the certificate of compliance issued by the department under this chapter that is required for the construction or operation of a facility.

     (6)(5)  "Commence to construct" means:

     (a)  any clearing of land, excavation, construction, or other action that would affect the environment of the site or route of a facility but does not mean changes needed for temporary use of sites or routes for nonutility purposes or uses in securing geological data, including necessary borings to ascertain foundation conditions;

     (b)  the fracturing of underground formations by any means if the activity is related to the possible future development of a gasification facility or a facility employing geothermal resources but does not include the gathering of geological data by boring of test holes or other underground exploration, investigation, or experimentation;

     (c)  the commencement of eminent domain proceedings under Title 70, chapter 30, for land or rights-of-way upon or over which a facility may be constructed;

     (d)  the relocation or upgrading of an existing facility defined by subsection (8)(a) or (8)(b) (7)(a) or (7)(b), including upgrading to a design capacity covered by subsection (8)(a) (7)(a), except that the term does not include normal maintenance or repair of an existing facility.

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

     (8)(7)  "Facility" means, subject to 75-20-1202:

     (a)  each electric transmission line and associated facilities of a design capacity of more than 69 kilovolts, except that the term:

     (i)  does not include an electric transmission line and associated facilities of a design capacity of 230 kilovolts or less and 10 miles or less in length;

     (ii) does not include an electric transmission line with a design capacity of more than 69 kilovolts for which the person planning to construct the line has obtained right-of-way agreements or options for a right-of-way from more than 75% of the owners who collectively own more than 75% of the property along the centerline;

     (iii) does not include electric transmission lines that are collectively less than 150 miles in length and are required under state or federal regulations and laws, with respect to reliability of service, for an electrical generation facility, as defined in 15-24-3001(4), or a wind generation facility, biomass generation facility, or energy storage facility, as defined in 15-6-157, to interconnect to a regional transmission grid or secure firm transmission service to use the grid for which the person planning to construct the line or lines has obtained right-of-way agreements or options for a right-of-way from more than 75% of the owners who collectively own more than 75% of the property along the centerline or centerlines;

     (iv) does not include an upgrade to an existing transmission line of a design capacity of 50 kilovolts or more to increase that line's capacity, including construction outside the existing easement or right-of-way. Except for a newly acquired easement or right-of-way necessary to comply with electromagnetic field standards, a newly acquired easement or right-of-way outside the existing easement or right-of-way as described in this subsection (8)(a)(iv) (7)(a)(iv) may not exceed a total of 10 miles in length or be more than 10% of the existing transmission right-of-way, whichever is greater, and the purpose of the easement must be to avoid sensitive areas or inhabited areas or conform to state or federal safety, reliability, and operational standards designed to safeguard the transmission network and protect electrical workers and the public.

     (v)  does not include a transmission substation, a switchyard, voltage support, or other control equipment;

     (vi) does not include an energy storage facility, as defined in 15-6-157;

     (b)  (i) each pipeline, whether partially or wholly within the state, greater than 25 inches in inside diameter and 50 miles in length, and associated facilities, except that the term does not include:

     (A)  a pipeline within the boundaries of the state that is used exclusively for the irrigation of agricultural crops or for drinking water; or

     (B)  a pipeline greater than 25 inches in inside diameter and 50 miles in length for which the person planning to construct the pipeline has obtained right-of-way agreements or options for a right-of-way from more than 75% of the owners who collectively own more than 75% of the property along the centerline;

     (ii) each pipeline, whether partially or wholly within the state, greater than 17 inches in inside diameter and 30 miles in length, and associated facilities used to transport coal suspended in water;

     (c)  any use of geothermal resources, including the use of underground space in existence or to be created, for the creation, use, or conversion of energy, designed for or capable of producing geothermally derived power equivalent to 50 megawatts or more or any addition thereto, except pollution control facilities approved by the department and added to an existing plant, except that the term does not include a compressed air energy storage facility, as defined in 15-6-157; or

     (d)  for the purposes of 75-20-204 only, a plant, unit, or other facility capable of generating 50 megawatts of hydroelectric power or more or any addition thereto.

     (9)(8)  "Person" means any individual, group, firm, partnership, corporation, limited liability company, cooperative, association, government subdivision, government agency, local government, or other organization or entity.

     (10)(9) "Sensitive areas" means government-designated areas that have been recognized for their importance to Montana's wildlife, wilderness, culture, and historic heritage, including but not limited to national wildlife refuges, state wildlife management areas, federal areas of critical environmental concern, state parks and historic sites, designated wilderness areas, wilderness study areas, designated wild and scenic rivers, or national parks, monuments, or historic sites.

     (11)(10) "Transmission substation" means any structure, device, or equipment assemblage, commonly located and designed for voltage regulation, circuit protection, or switching necessary for the construction or operation of a proposed transmission line.

     (12)(11) "Transmission reliability agencies" means the federal energy regulatory commission, the western electricity coordinating council, the national electric reliability council, and the midwest reliability organization.

     (13)(12) "Upgrade" means to increase the electrical carrying capacity of a transmission line by actions including but not limited to:

     (a)  installing larger conductors;

     (b)  replacing insulators;

     (c)  replacing pole or tower structures;

     (d)  changing structure spacing, design, or guying; or

     (e)  installing additional circuits.

     (14)(13) "Utility" means any person engaged in any aspect of the production, storage, sale, delivery, or furnishing of heat, electricity, gas, hydrocarbon products, or energy in any form for ultimate public use."

 

     Section 136.  Section 75-20-105, MCA, is amended to read:

     "75-20-105.  Adoption of rules. The board department may adopt rules implementing the provisions of this chapter."

 

     Section 137.  Section 75-20-201, MCA, is amended to read:

     "75-20-201.  Certificate required -- operation in conformance -- certificate for nuclear facility -- applicability to federal facilities. (1) Except for a facility under diligent onsite physical construction or in operation on January 1, 1973, a person may not commence to construct a facility in the state without first applying for and obtaining a certificate of compliance issued with respect to the facility by the department.

     (2)  A facility with respect to which a certificate is issued may not be constructed, operated, or maintained except in conformity with the certificate and any terms, conditions, and modifications contained within the certification.

     (3)  A certificate may only be issued pursuant to this chapter.

     (4)  If the department decides to issue a certificate for a nuclear facility, it shall report the recommendation to the applicant and may not issue the certificate until the recommendation is approved by a majority of the voters in a statewide election called by initiative or referendum according to the laws of this state.

     (5)  A person that proposes to construct an energy-related project that is not defined as a facility pursuant to 75-20-104(8) 75-20-104(7) may petition the department to review the energy-related project under the provisions of this chapter. The construction or installation of an energy storage facility, as defined in 15-6-157, is not considered an energy-related project under the provisions of this chapter. A certificate for the construction or installation of an energy storage facility is not required under this chapter.

     (6)  This chapter applies, to the fullest extent allowed by federal law, to all federal facilities and to all facilities over which an agency of the federal government has jurisdiction.

     (7)  All judicial challenges of certificates for projects with a project cost, as determined by the court, of more than $1 million must have precedence over any civil cause of a different nature pending in that court. If the court determines that the challenge was without merit or was for an improper purpose, such as to harass, to cause unnecessary delay, or to impose needless or increased cost in litigation, the court may award attorney fees and costs incurred in defending the action."

 

     Section 138.  Section 75-20-207, MCA, is amended to read:

     "75-20-207.  Notice requirement for certain electric transmission lines. Whenever a person plans to construct an electric transmission line or associated facilities under the provisions of 75-20-104(8)(a)(ii) 75-20-104(7)(a)(ii), it must provide public notice to persons residing in the area in which any portion of the electric transmission facility may be located and to the department. This notice must be made no less than 60 days prior to the commencement of acquisition of right-of-way by publication of a summary describing the transmission facility and the proposed location of the facility in those newspapers that will substantially inform those persons of the construction and by mailing a summary to the department. The notice must inform the property owners of their rights under this chapter concerning the location of the facility and that more information concerning their rights may be obtained from the department."

 

     Section 139.  Section 75-20-208, MCA, is amended to read:

     "75-20-208.  Certain electric transmission lines -- verification of requirements. (1) Prior to constructing a transmission line under 75-20-104(8)(a)(ii) 75-20-104(7)(a)(ii), the person planning to construct the line shall provide to the department within 36 months of the date of the public notice provided under 75-20-207, unless extended by the department for good cause:

     (a)  copies of the right-of-way agreements or options for a right-of-way containing sufficient information to establish landowner consent to construct the line; and

     (b)  sufficient information for the department to verify that the requirements of 75-20-104(8)(a)(ii) 75-20-104(7)(a)(ii) are satisfied.

     (2)  The provisions of 75-20-104(8)(a)(ii) 75-20-104(7)(a)(ii) do not apply to any facility for which public notice under 75-20-207 has been given but for which the requirements of subsection (1) of this section have not been complied with."

 

     Section 140.  Section 75-20-211, MCA, is amended to read:

     "75-20-211.  Application -- filing and contents -- proof of service and notice. (1) (a) An applicant shall file with the department an application for a certificate under this chapter and for the permits required under the laws administered by the department in the form that is required under applicable rules, containing the following information:

     (i)  a description of the proposed location and of the facility to be built;

     (ii) a summary of any preexisting studies that have been made of the impact of the facility;

     (iii) for facilities defined in 75-20-104(8)(a) and (8)(b) 75-20-104(7)(a) and (7)(b), a statement explaining the need for the facility, a description of reasonable alternate locations for the facility, a general description of the comparative merits and detriments of each location submitted, and a statement of the reasons why the proposed location is best suited for the facility;

     (iv) (A) for facilities as defined in 75-20-104(8)(a) and (8)(b) 75-20-104(7)(a) and (7)(b), baseline data for the primary and reasonable alternate locations; or

     (B)  for facilities as defined in 75-20-104(8)(c) 75-20-104(7)(c), baseline data for the proposed location and, at the applicant's option, any alternative locations acceptable to the applicant for siting the facility;

     (v)  at the applicant's option, an environmental study plan to satisfy the requirements of this chapter; and

     (vi) other information that the applicant considers relevant or that the department by order or rule may require.

     (b)  If a copy or copies of the studies referred to in subsection (1)(a)(ii) are filed with the department, the copy or copies must be available for public inspection.

     (2)  An application may consist of an application for two or more facilities in combination that are physically and directly attached to each other and are operationally a single operating entity.

     (3)  The copy of the application must be accompanied by a notice specifying the date on or about which the application is to be filed.

     (4)  An application must also be accompanied by proof that public notice of the application was given to persons residing in the county in which any portion of the proposed facility is proposed or is alternatively proposed to be located, by publication of a summary of the application in those newspapers that will substantially inform those persons of the application."

 

     Section 141.  Section 75-20-215, MCA, is amended to read:

     "75-20-215.  Filing fee -- accountability -- refund -- use. (1) (a) A filing fee must be deposited in the state special revenue fund for the use of the department in administering Title 75, chapter 1, and this chapter. The applicant shall pay to the department a filing fee as provided in this section based upon the department's estimated costs of processing the application under this chapter. The fee may not exceed the following scale based upon the estimated cost of the facility:

     (i)  6% of any estimated cost up to $1 million; plus

     (ii) 1% of any estimated cost over $1 million and up to $5 million; plus

     (iii) 0.8% of any estimated cost over $5 million and up to $10 million; plus

     (iv) 0.5% of any estimated cost over $10 million and up to $20 million; plus

     (v)  0.25% of any estimated cost over $20 million and up to $100 million; plus

     (vi) 0.125% of any estimated cost over $100 million and up to $500 million; plus

     (vii) 0.05% of any estimated cost over $500 million and up to $1 billion; plus

     (viii) 0.025% of any estimated cost over $1 billion.

     (b)  The department may allow in its discretion a credit against the fee payable under this section for the development of information or providing of services required under this chapter or required for preparation of an environmental impact statement or assessment under the Montana or national environmental policy acts. The applicant may submit the information to the department, together with an accounting of the expenses incurred in preparing the information. The department shall evaluate the applicability, validity, and usefulness of the data and determine the amount that may be credited against the filing fee payable under this section. Upon 30 days' notice to the applicant, this credit may at any time be reduced if the department determines that it is necessary to carry out its responsibilities under this chapter.

     (2)  (a) The department may contract with an applicant for the development of information, provision of services, and payment of fees required under this chapter. The contract may continue an agreement entered into pursuant to 75-20-106. Payments made to the department under a contract must be credited against the fee payable pursuant to this section. Notwithstanding the provisions of this section, the revenue derived from the filing fee must be sufficient to enable the department, the board, and the agencies listed in 75-20-216(6) to carry out their responsibilities under this chapter. The department may amend a contract to require additional payments for necessary expenses up to the limits set forth in subsection (1)(a) upon 30 days' notice to the applicant. The department and applicant may enter into a contract that exceeds the scale provided in subsection (1)(a).

     (b)  If a contract is not entered into, the applicant shall pay the filing fee in installments in accordance with a schedule of installments developed by the department, provided that an installment may not exceed 20% of the total filing fee provided for in subsection (1).

     (3)  The estimated cost of upgrading an existing transmission substation may not be included in the estimated cost of a proposed facility for the purpose of calculating a filing fee.

     (4)  If an application consists of a combination of two or more facilities, the filing fee must be based on the total estimated cost of the combined facilities.

     (5)  The applicant is entitled to an accounting of money expended and to a refund with interest at the rate of 6% a year of that portion of the filing fee not expended by the department in carrying out its responsibilities under this chapter. A refund must be made after all administrative and judicial remedies have been exhausted by all parties to the certification proceedings.

     (6)  The revenue derived from filing fees must be used by the department in compiling the information required for rendering a decision on a certificate and for carrying out its and the board's other responsibilities under this chapter."

 

     Section 142.  Section 75-20-216, MCA, is amended to read:

     "75-20-216.  Study, evaluation, and report on proposed facility -- assistance by other agencies. (1) After receipt of an application, the department shall within 30 days notify the applicant in writing that:

     (a)  the application is in compliance and is accepted as complete; or

     (b)  the application is not in compliance and shall list the deficiencies. Upon correction of these deficiencies and resubmission by the applicant, the department shall within 15 days notify the applicant in writing that the application is in compliance and is accepted as complete.

     (2)  Upon receipt of an application complying with 75-20-211 through 75-20-213, 75-20-215, and this section, the department shall commence an evaluation of the proposed facility and its effects, considering all applicable criteria listed in 75-20-301, and shall issue a decision, opinion, order, certification, or permit as provided in subsection (3). The department shall use, to the extent that it considers applicable, valid and useful existing studies and reports submitted by the applicant or compiled by a state or federal agency.

     (3)  Except as provided in 75-1-205(4), 75-1-208(4)(b), and 75-20-231, the department shall issue, within 9 months following the date of acceptance of an application, any decision, opinion, order, certification, or permit required under the laws, other than those contained in this chapter, administered by the department. A decision, opinion, order, certification, or permit, with or without conditions, must be made under those laws. Nevertheless, the department retains authority to make the determination required under 75-20-301(1)(c) or (3). The decision, opinion, order, certification, or permit must be used in the final site selection process. Prior to the issuance of a preliminary decision by the board department and pursuant to rules adopted by the department, the department shall provide an opportunity for public review and comment.

     (4)  Except as provided in 75-1-205(4), 75-1-208(4)(b), and 75-20-231, within 9 months following acceptance of an application for a facility, the department shall issue a report that must contain the department's studies, evaluations, recommendations, customer fiscal impact analysis, if required pursuant to 69-2-216, and other pertinent documents resulting from its study and evaluation. An environmental impact statement or analysis prepared pursuant to the Montana Environmental Policy Act may be included in the department findings if compelling evidence indicates that adverse environmental impacts are likely to result due to the construction and operation of a proposed facility. If the application is for a combination of two or more facilities, the department shall issue its report within the greater of the lengths of time provided for in this subsection for either of the facilities.

     (5)  For projects subject to joint review by the department and a federal land management agency, the department's certification decision may be timed to correspond to the record of decision issued by the participating federal agency.

     (6)  The departments of transportation; fish, wildlife, and parks; natural resources and conservation; revenue; and public service regulation and the consumer counsel shall report to the department information relating to the impact of the proposed site on each department's area of expertise. The report may include opinions as to the advisability of granting, denying, or modifying the certificate. The department shall allocate funds obtained from filing fees to the departments making reports and to the office of consumer counsel to reimburse them for the costs of compiling information and issuing the required report."

 

     Section 143.  Section 75-20-219, MCA, is amended to read:

     "75-20-219.  Amendments to certificate. (1) Within 30 days after notice of an amendment to a certificate is given as set forth in 75-20-213(1), including notice to all active parties to the original proceeding, the department shall determine whether the proposed change in the facility would result in a material increase in any environmental impact of the facility or a substantial change in the location of all or a portion of the facility as set forth in the certificate. If the department determines that the proposed change would result in a material increase in any environmental impact of the facility or a substantial change in the location of all or a portion of the facility, the department shall grant, deny, or modify the amendment with conditions as it considers appropriate.

     (2)  In those cases in which the department determines that the proposed change in the facility would not result in a material increase in any environmental impact or would not be a substantial change in the location of all or a portion of the facility, the department shall automatically grant the amendment either as applied for or upon terms or conditions that the department considers appropriate.

     (3)  If a hearing is requested under 75-20-223(2), the party requesting the hearing has the burden of showing by clear and convincing evidence that the department's determination is not reasonable.

     (4)  If an amendment is required to a certificate that would affect, amend, alter, or modify a decision, opinion, order, certification, or air or water quality permit issued by the department or board, the amendment must be processed under the applicable statutes administered by the department or board."

 

     Section 144.  Section 75-20-223, MCA, is amended to read:

     "75-20-223.  Board review Review of department decisions. (1) (a) A person aggrieved by the final decision of the department on an application for a certificate or the issuance of an air or water quality decision, opinion, order, certification, or permit under this chapter may within 30 days appeal the decision to the board department. Except as provided in this section, the contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to a hearing before the board department.

     (b)  If the department provided an opportunity for public comment on the application, the request for a hearing must be limited to those issues the party has raised in comments made to the department during the comment period unless the issues are related to a material change in law made during the comment period, to a judicial decision issued after the comment period, or to a material change to the draft permit, which was submitted for public comment, made by the department in the final permit decision and upon which the public did not have a meaningful opportunity to comment. The request for hearing must be filed within 30 days after the department renders its decision. An affidavit setting forth the grounds for the request must be filed with the request for a hearing.

     (c)  If a hearing is requested by a person other than the applicant or permittee, the applicant or permittee may, by filing a written election with the board department within 15 days of receipt of the request for hearing, elect to have the matter proceed to hearing before the board department or to have the matter submitted directly to the district court for judicial review of the agency decision. The party who requests the hearing may elect to have the matter submitted either to the board department for a hearing or to the district court for judicial review by submitting a written election to the board department with the request for hearing. If there are conflicting elections between the parties, the matter must proceed to district court. If the applicant or permittee is not the person who requested the hearing and has elected to have the matter submitted to the district court, the person who submitted the request for a hearing shall file a petition for review of the permit decision within 15 days of receipt of notice from the permittee. If the person who requested the hearing has elected to have the matter proceed to district court, that person shall file a petition in district court within 15 days of filing the request. The petition must be limited to matters raised in the request for hearing and must be filed in the county in which the facility is located. If the applicant or permittee fails to make an election, the matter must proceed through the contested case process before the board department pursuant to the Montana Administrative Procedure Act. The board department or the district court shall apply the laws and rules in place when the department issued its decision, and the board department or the district court may not consider any issue from a party that was not presented to the department for the department's consideration during the formal comment period unless the issue is related to a material change in law made during the comment period, to a judicial decision issued after the comment period, or to a material change to the draft permit, which was submitted for public comment, made by the department in the final permit decision and upon which the public did not have a meaningful opportunity to comment.

     (2)  A person aggrieved by the final decision of the department on an application for amendment of a certificate may within 15 days appeal the decision to the board department as provided in subsections (1)(b) and (1)(c).

     (3)  A person aggrieved by the department's decision not to include an environmental impact statement or analysis in the department's findings pursuant to 75-20-216 may within 30 days appeal the decision as provided in subsections (1)(b) and (1)(c).

     (4)  The board department shall issue a final decision within 4 months from the close of the hearing on the merits or, if no hearing is held, within 3 months from the date that briefing by the parties is complete unless the applicant and the party other than the applicant agree in writing to an extension of time.

     (5)  A customer fiscal impact analysis required by 69-2-216 may not be used as the basis of an appeal of a final decision by the department."

 

     Section 145.  Section 75-20-301, MCA, is amended to read:

     "75-20-301.  Decision of department -- findings necessary for certification. (1) Within 30 days after issuance of the report pursuant to 75-20-216 for facilities defined in 75-20-104(8)(a) and (8)(b) 75-20-104(7)(a) and (7)(b), the department shall approve a facility as proposed or as modified or an alternative to a proposed facility if the department finds and determines:

     (a)  the basis of the need for the facility;

     (b)  the nature of the probable environmental impact;

     (c)  that the facility minimizes adverse environmental impact, considering the state of available technology and the nature and economics of the various alternatives;

     (d)  in the case of an electric, gas, or liquid transmission line or aqueduct:

     (i)  what part, if any, of the line or aqueduct will be located underground;

     (ii) that the facility is consistent with regional plans for expansion of the appropriate grid of the utility systems serving the state and interconnected utility systems; and

     (iii) that the facility will serve the interests of utility system economy and reliability;

     (e)  that the location of the facility as proposed conforms to applicable state and local laws and regulations, except that the department may refuse to apply any local law or regulation if it finds that, as applied to the proposed facility, the law or regulation is unreasonably restrictive in view of the existing technology, of factors of cost or economics, or of the needs of consumers, whether located inside or outside the directly affected government subdivisions;

     (f)  that the facility will serve the public interest, convenience, and necessity;

     (g)  that the department or board has issued any necessary air or water quality decision, opinion, order, certification, or permit as required by 75-20-216(3); and

     (h)  that the use of public lands or federally designated energy corridors for location of a facility defined in 75-20-104(8)(a) or (8)(b) 75-20-104(7)(a) or (7)(b) was evaluated and public lands or federally designated energy corridors for that facility were selected whenever their use was compatible with:

     (i)  the requirements of subsections (1)(a) through (1)(g); and

     (ii) transmission line reliability criteria established by transmission reliability agencies for a facility defined in 75-20-104(8)(a) 75-20-104(7)(a).

     (2)  In determining that the facility will serve the public interest, convenience, and necessity under subsection (1)(f), the department shall consider:

     (a)  the items listed in subsections (1)(a) and (1)(b);

     (b)  the benefits to the applicant and the state resulting from the proposed facility;

     (c)  the effects of the economic activity resulting from the proposed facility;

     (d)  the effects of the proposed facility on the public health, welfare, and safety;

     (e)  any other factors that it considers relevant.

     (3)  Within 30 days after issuance of the report pursuant to 75-20-216 for a facility defined in 75-20-104(8)(c) 75-20-104(7)(c), the department shall approve a facility as proposed or as modified or an alternative to a proposed facility if the department finds and determines:

     (a)  that the facility or alternative incorporates all reasonable, cost-effective mitigation of significant environmental impacts; and

     (b)  that unmitigated impacts, including those that cannot be reasonably quantified or valued in monetary terms, will not result in:

     (i)  a violation of a law or standard that protects the environment; or

     (ii) a violation of a law or standard that protects the public health and safety.

     (4)  For facilities defined in 75-20-104, if the department cannot make the findings required in this section, it shall deny the certificate."

 

     Section 146.  Section 75-20-303, MCA, is amended to read:

     "75-20-303.  Opinion issued with decision -- contents. (1) In rendering a decision on an application for a certificate, the department shall issue an opinion stating its reasons for the action taken.

     (2)  If the department has found that any regional or local law or regulation that would be otherwise applicable is unreasonably restrictive, it shall state in its opinion the reasons that it is unreasonably restrictive.

     (3)  A certificate issued by the department must include the following:

     (a)  an environmental evaluation statement related to the facility being certified. The statement must include but is not limited to analysis of the following information:

     (i)  the environmental impact of the proposed facility; and

     (ii) any adverse environmental effects that cannot be avoided by issuance of the certificate;

     (b)  a plan for monitoring environmental effects of the proposed facility;

     (c)  a plan for monitoring the certified facility site between the time of certification and completion of construction;

     (d)  a time limit as provided in subsection (4);

     (e)  a statement confirming that notice was provided pursuant to subsection (5); and

     (f)  a statement signed by the applicant showing agreement to comply with the requirements of this chapter and the conditions of the certificate.

     (4)  (a) The department shall issue as part of the certificate the following time limits:

     (i)  For a facility as defined in 75-20-104(8)(a) 75-20-104(7)(a) that is more than 30 miles in length and for a facility defined in 75-20-104(8)(b) 75-20-104(7)(b), construction must be completed within 10 years.

     (ii) For a facility as defined in 75-20-104(8)(a) 75-20-104(7)(a) that is 30 miles or less in length, construction must be completed within 5 years.

     (iii) For a facility as defined in 75-20-104(8)(c) 75-20-104(7)(c), construction must begin within 6 years and continue with due diligence in accordance with preliminary construction plans established in the certificate.

     (b)  Unless extended, a certificate lapses and is void if the facility is not constructed or if construction of the facility is not commenced within the time limits provided in this section.

     (c)  The time limit may be extended for a reasonable period upon a showing by the applicant to the department that a good faith effort is being undertaken to complete construction under subsections (4)(a)(i) and (4)(a)(ii). Under this subsection, a good faith effort includes the process of acquiring any necessary state or federal permit or certificate for the facility and the process of judicial review of a permit or certificate.

     (d)  Construction may begin immediately upon issuance of a certificate unless the department finds that there is substantial and convincing evidence that a delay in the commencement of construction is necessary and should be established for a particular facility.

     (5)  (a) For a facility defined in 75-20-104(8)(a) and (8)(b) 75-20-104(7)(a) and (7)(b), the environmental review conducted pursuant to Title 75, chapter 1, parts 1 through 3, prepared by the department must designate a 1-mile-wide facility siting corridor along the facility route.

     (b)  The department shall provide written notice of the availability of the draft environmental review to each owner of property within the 1-mile-wide facility siting corridor identified in the environmental review as the department's preferred alternative facility siting corridor. No more than 60 days prior to the availability of the draft environmental review, the names and addresses of the property owners must be obtained from the property tax rolls of the county where the property is located. Except as provided in subsection (5)(c), the notice must:

     (i)  be delivered personally or by first-class mail. If delivered personally, the property owner shall sign a receipt verifying that the property owner received the statement.

     (ii) inform the property owner that the property owner's property is located within the department's preferred alternative 1-mile-wide facility siting corridor;

     (iii) inform the property owner about how a copy of the environmental review may be obtained; and

     (iv) inform the property owner of the property owner's rights under this chapter concerning the location of the facility and that more information concerning those rights may be obtained from the department.

     (c)  If there is more than one name listed on the property tax rolls for a single property, the notice must be mailed to the first listed property owner at the address on the property tax rolls.

     (d)  By mailing the notice as provided in subsection (5)(c), the notice requirements in subsection (5)(b) are satisfied.

     (e)  The department shall site a corridor of at least 500 feet in width for the facility within the 1-mile-wide corridor in accordance with 75-20-301. If the department determines that it will select a facility siting corridor that is completely or partially different from the preferred alternative facility siting corridor described in the draft environmental review, it shall, before issuing the certificate, provide notice of its intended facility siting corridor and an opportunity to comment to property owners within the 1-mile-wide facility siting corridor that deviates from the preferred alternative. Property owners must be determined and notice must be given in the same manner as provided in subsection (5)(b).

     (f)  If the certificate holder complies with subsection (6), a certificate holder may modify the siting of the facility within the 1-mile-wide corridor without complying with the provisions of 75-20-219 if the alternate siting is done in a manner that minimizes the impact on residential areas, crop land, and sensitive sites.

     (6)  (a) A certificate holder may submit an adjustment of the location of a facility outside the corridor designated pursuant to subsection (5) to the department. The adjustment must be accompanied by the written agreement of the affected property owner and all contiguous property owners that would be affected. The submission must include a map showing the approved facility location and the proposed adjustment.

     (b)  The certificate holder may construct the facility as described in the submission unless the department notifies the certificate holder within 15 days of the submission that the department has determined that:

     (i)  the adjustment would change the basis of any finding required under 75-20-301 to the extent that the department would have selected a different location for the facility; or

     (ii) the adjustment would materially increase unmitigated adverse impacts.

     (c)  Siting of a facility within the corridor designated pursuant to subsection (5) or an adjustment pursuant to subsection (6)(a) is not subject to:

     (i)  Title 75, chapter 1, part 2;

     (ii) a certificate amendment under 75-20-219; or

     (iii) a board review under 75-20-223."

 

     Section 147.  Section 75-20-304, MCA, is amended to read:

     "75-20-304.  Waiver of provisions of certification proceedings. (1) The department may waive compliance with any of the provisions of 75-20-216 and this part if the applicant makes a clear and convincing showing to the department at a public hearing that an immediate, urgent need for a facility exists and that the applicant did not have knowledge that the need for the facility existed sufficiently in advance to fully comply with the provisions of 75-20-216 and this part.

     (2)  The department may waive compliance with any of the provisions of this chapter upon receipt of notice by a person subject to this chapter that a facility or associated facility has been damaged or destroyed as a result of fire, flood, or other natural disaster or as the result of insurrection, war, or other civil disorder and there exists an immediate need for construction of a new facility or associated facility or the relocation of a previously existing facility or associated facility in order to promote the public welfare.

     (3)  The department shall waive compliance with the requirements of 75-20-301(1)(c), (2)(b), and (2)(c) and the requirements of 75-20-211(1)(a)(iii) and (1)(a)(iv) and 75-20-216(3) relating to consideration of alternative sites if the applicant makes a clear and convincing showing to the department at a public hearing that:

     (a)  a proposed facility will be constructed in a county where a single employer within the county has permanently curtailed or ceased operations, causing a loss of 250 or more permanent jobs within 2 years at the employer's operations within the preceding 10-year period;

     (b)  the county and municipal governing bodies in whose jurisdiction the facility is proposed to be located support by resolution the waiver;

     (c)  the proposed facility will be constructed within a 15-mile radius of the operations that have ceased or been curtailed; and

     (d)  the proposed facility will have a beneficial effect on the economy of the county in which the facility is proposed to be located.

     (4)  The waiver provided for in subsection (3) applies only to permanent job losses by a single employer. The waiver provided for in subsection (3) does not apply to jobs of a temporary or seasonal nature, including but not limited to construction jobs or job losses during labor disputes.

     (5)  The waiver provided for in subsection (3) does not apply to consideration of alternatives or minimum adverse environmental impact for a facility defined in 75-20-104(8)(a) or (8)(b) 75-20-104(7)(a) or (7)(b) or for an associated facility defined in 75-20-104(3).

     (6)  The applicant shall pay all expenses required to process and conduct a hearing on a waiver request under subsection (3). However, any payments made under this subsection must be credited toward the fee paid under 75-20-215 to the extent that the data or evidence presented at the hearing or the decision of the department under subsection (3) can be used in making a certification decision under this chapter.

     (7)  The department may grant only one waiver under subsections (3) and (4) for each permanent loss of jobs as defined in subsection (3)(a)."

 

     Section 148.  Section 75-20-401, MCA, is amended to read:

     "75-20-401.  Additional requirements by other governmental agencies not permitted after issuance of certificate -- exceptions -- venue for challenging certificate issuance. (1) Notwithstanding any other law, a state or regional agency or municipality or other local government may not require any approval, consent, permit, certificate, or other condition for the construction, operation, or maintenance of a facility authorized by a certificate issued pursuant to this chapter, except that the department and board retain retains the authority that they have or may be granted to determine compliance of the proposed facility with state and federal standards and implementation plans for air and water quality and to enforce those standards.

     (2)  This chapter does not prevent the application of state laws for the protection of employees engaged in the construction, operation, or maintenance of a facility.

     (3)  A judicial challenge to a certificate issued pursuant to this chapter by a party other than the certificate holder or applicant must include the party to whom the certificate was issued as provided in this chapter unless otherwise agreed to by the certificate holder or applicant. All judicial challenges of certificates for projects with a project cost, as determined by the court, of more than $1 million must have precedence over any civil cause of a different nature pending in that court. If the court determines that the challenge was without merit or was for an improper purpose, such as to harass, to cause unnecessary delay, or to impose needless or increased cost in litigation, the court may award attorney fees and costs incurred in defending the action.

     (4)  An action to challenge the issuance of a certificate pursuant to this chapter must be brought in the county in which the activity authorized by the certificate will occur. If an activity will occur in more than one county, the action may be brought in any of the counties in which the activity will occur."

 

     Section 149.  Section 75-20-406, MCA, is amended to read:

     "75-20-406.  Judicial review of board department decisions. (1) A person aggrieved by the final decision of the board department on an application for a certificate may obtain judicial review of that decision by the filing of a petition in a state district court of competent jurisdiction. A challenge to the issuance of a certificate must be brought in the county in which the activity authorized by the certificate will occur. If an activity will occur in more than one county, the action may be brought in any of the counties in which the activity will occur.

     (2)  The judicial review procedure is the procedure for contested cases under the Montana Administrative Procedure Act.

     (3)  A judicial challenge to a certificate issued pursuant to this chapter by a party other than the certificate holder or applicant must include the party to whom the certificate was issued as provided in this chapter unless otherwise agreed to by the certificate holder or applicant. All judicial challenges of certificates for projects with a project cost, as determined by the court, of more than $1 million must have precedence over any civil cause of a different nature pending in that court. If the court determines that the challenge was without merit or was for an improper purpose, such as to harass, to cause unnecessary delay, or to impose needless or increased cost in litigation, the court may award attorney fees and costs incurred in defending the action."

 

     Section 150.  Section 75-20-407, MCA, is amended to read:

     "75-20-407.  Jurisdiction of courts restricted. Except as expressly set forth in 75-20-401, 75-20-406, and 75-20-408, no court of this state has jurisdiction to hear or determine any issue, case, or controversy concerning any matter which was or could have been determined in a proceeding before the board department under this chapter or to stop or delay the construction, operation, or maintenance of a facility, except to enforce compliance with this chapter or the provisions of a certificate issued hereunder pursuant to 75-20-404 and 75-20-405 or 75-20-408."

 

     Section 151.  Section 75-20-410, MCA, is amended to read:

     "75-20-410.  Order not stayed by appeal -- stay or suspension by court -- limitations. Notwithstanding any contrary provision in the law, the pendency of an appeal from a board department order does not automatically stay or suspend the operation of the order. During the pendency of the appeal, the court may upon motion by one of the parties stay or suspend, in whole or in part, the operation of the board's department's orders on terms the court considers just. The court's action must be in accordance with the practice of courts exercising equity jurisdiction, subject to the following limitations:

     (1)  No stay may be granted without notice to the parties and an opportunity to be heard by the court.

     (2)  No board department order may be stayed or suspended without finding that irreparable damage would otherwise result to the party seeking the stay or suspension, and any other stay or suspension of a board department order must specify the nature of the damage."

 

     Section 152.  Section 75-20-411, MCA, is amended to read:

     "75-20-411.  Surety bond -- other security. If an order of the board department is stayed or suspended, the court may require a bond with good and sufficient surety conditioned that the party petitioning for review answer for all damages caused by the delay in enforcing the order of the board department except that the cost of the bond is not chargeable to the applicant as part of the fee. If the party petitioning for review prevails upon final resolution of an appeal, the party does not forfeit bond nor is the party responsible for damages caused by delay."

 

     Section 153.  Section 75-20-1001, MCA, is amended to read:

     "75-20-1001.  Geothermal exploration -- notification of department. The board department shall adopt rules requiring every person who proposes to gather geological data by boring of test holes or other underground exploration, investigation, or experimentation related to the possible future development of a facility employing geothermal resources to comply with the following requirements:

     (1)  notify the department of the proposed action;

     (2)  submit to the department a description of the area involved;

     (3)  submit to the department a statement of the proposed activities to be conducted and the methods to be utilized;

     (4)  submit to the department geological data reports at such times as may be required by the rules; and

     (5)  submit such other information as the board department may require in the rules."

 

     Section 154.  Section 75-20-1202, MCA, is amended to read:

     "75-20-1202.  Definitions. As used in 75-20-201, 75-20-203, and this part, the following definitions apply:

     (1)  "Facility", as defined in 75-20-104(8) 75-20-104(7), is further defined to include any nuclear facility as defined in subsection (2)(a).

     (2)  (a) "Nuclear facility" means each plant, unit, or other facility designed for or capable of:

     (i)  generating 50 megawatts of electricity or more by means of nuclear fission;

     (ii) converting, enriching, fabricating, or reprocessing uranium minerals or nuclear fuels; or

     (iii) storing or disposing of radioactive wastes or materials from a nuclear facility.

     (b)  Nuclear facility does not include any small-scale facility used solely for educational, research, or medical purposes not connected with the commercial generation of energy."

 

     Section 155.  Section 75-20-1203, MCA, is amended to read:

     "75-20-1203.  Additional requirements for issuance of a certificate for the siting of a nuclear facility. (1) The board department may not issue a certificate to construct a nuclear facility unless it finds that:

     (a)  no legal limits exist regarding the rights of a person or group of persons to bring suit for and recover full and just compensation from the designers, manufacturers, distributors, owners, and/or or operators of a nuclear facility for damages resulting from the existence or operation of the facility;, and further, that no legal limits exist regarding the total compensation which that may be required from the designers, manufacturers, distributors, owners, and/or or operators of a nuclear facility for damages resulting from the existence or operation of such a facility;

     (b)  the effectiveness of all safety systems, including but not limited to the emergency core cooling systems, of such the nuclear facility has been demonstrated, to the satisfaction of the board department, by the comprehensive laboratory testing of substantially similar physical systems in actual operation;

     (c)  the radioactive materials from such the nuclear facilities can be contained with no reasonable chance, as determined by the board department, of intentional or unintentional escape or diversion of such radioactive materials into the natural environment in such a manner as to cause substantial or long-term harm or hazard to present or future generations due to imperfect storage technologies, earthquakes or other acts of God, theft, sabotage, acts of war or other social instabilities, or whatever other causes the board department may deem consider to be reasonably possible, at any time during which such the materials remain a radiological hazard; and

     (d)  the owner of such the nuclear facility has posted with the board department a bond totaling not less than 30% of the total capital cost of the facility, as estimated by the board department, to pay for the decommissioning of the facility and the decontamination of any area contaminated with radioactive materials due to the existence or operation of the facility in the event the owner fails to pay the full costs of such the decommissioning and decontamination. Excess bond, if any, shall must be refunded to the owner upon demonstration, to the satisfaction of the board department, that the site and environs of the facility pose no radiological danger to present or future generations and that whatever other conditions the board department may deem consider reasonable have been met.

     (2)  Nothing in this section shall may be construed as relieving the owner of a nuclear facility from full financial responsibility for the decommissioning of such the facility and decontamination of any area contaminated with radioactive materials as a result of the existence or operation of such the facility at any time during which such the materials remain a radiological hazard."

 

     Section 156.  Section 75-20-1205, MCA, is amended to read:

     "75-20-1205.  Emergency approval authority invalid for nuclear facilities. Notwithstanding the provisions of 75-20-304(2) and (3), the board department may not waive compliance with any of the provisions of 75-20-201 and 75-20-203 or this part relating to certification of a nuclear facility."

 

     Section 157.  Section 76-3-622, MCA, is amended to read:

     "76-3-622.  Water and sanitation information to accompany preliminary plat. (1) Except as provided in subsection (2), the subdivider shall submit to the governing body or to the agent or agency designated by the governing body the information listed in this section for proposed subdivisions that will include new water supply or wastewater facilities. The information must include:

     (a)  a vicinity map or plan that shows:

     (i)  the location, within 100 feet outside of the exterior property line of the subdivision and on the proposed lots, of:

     (A)  flood plains;

     (B)  surface water features;

     (C)  springs;

     (D)  irrigation ditches;

     (E)  existing, previously approved, and, for parcels less than 20 acres, proposed water wells and wastewater treatment systems;

     (F)  for parcels less than 20 acres, mixing zones identified as provided in subsection (1)(g); and

     (G)  the representative drainfield site used for the soil profile description as required under subsection (1)(d); and

     (ii) the location, within 500 feet outside of the exterior property line of the subdivision, of public water and sewer facilities;

     (b)  a description of the proposed subdivision's water supply systems, storm water systems, solid waste disposal systems, and wastewater treatment systems, including:

     (i)  whether the water supply and wastewater treatment systems are individual, shared, multiple user, or public as those systems are defined in rules published by the department of environmental quality; and

     (ii) if the water supply and wastewater treatment systems are shared, multiple user, or public, a statement of whether the systems will be public utilities as defined in 69-3-101 and subject to the jurisdiction of the public service commission or exempt from public service commission jurisdiction and, if exempt, an explanation for the exemption;

     (c)  a drawing of the conceptual lot layout at a scale no smaller than 1 inch equal to 200 feet that shows all information required for a lot layout document in rules adopted by the department of environmental quality pursuant to 76-4-104;

     (d)  evidence of suitability for new onsite wastewater treatment systems that, at a minimum, includes:

     (i)  a soil profile description from a representative drainfield site identified on the vicinity map, as provided in subsection (1)(a)(i)(G), that complies with standards published by the department of environmental quality;

     (ii) demonstration that the soil profile contains a minimum of 4 feet of vertical separation distance between the bottom of the permeable surface of the proposed wastewater treatment system and a limiting layer; and

     (iii) in cases in which the soil profile or other information indicates that ground water is within 7 feet of the natural ground surface, evidence that the ground water will not exceed the minimum vertical separation distance provided in subsection (1)(d)(ii);

     (e)  for new water supply systems, unless cisterns are proposed, evidence of adequate water availability:

     (i)  obtained from well logs or testing of onsite or nearby wells;

     (ii) obtained from information contained in published hydrogeological reports; or

     (iii) as otherwise specified by rules adopted by the department of environmental quality pursuant to 76-4-104;

     (f)  evidence of sufficient water quality in accordance with rules adopted by the department of environmental quality pursuant to 76-4-104;

     (g)  a preliminary analysis of potential impacts to ground water quality from new wastewater treatment systems, using as guidance rules adopted by the board of environmental review pursuant to 75-5-301 and 75-5-303 related to standard mixing zones for ground water, source specific mixing zones, and nonsignificant changes in water quality. The preliminary analysis may be based on currently available information and must consider the effects of overlapping mixing zones from proposed and existing wastewater treatment systems within and directly adjacent to the subdivision. Instead of performing the preliminary analysis required under this subsection (1)(g), the subdivider may perform a complete nondegradation analysis in the same manner as is required for an application that is reviewed under Title 76, chapter 4.

     (2)  A subdivider whose land division is excluded from review under 76-4-125(2) is not required to submit the information required in this section.

     (3)  A governing body may not, through adoption of regulations, require water and sanitation information in addition to the information required under this section unless the governing body complies with the procedures provided in 76-3-511."

 

     Section 158.  Section 76-4-102, MCA, is amended to read:

     "76-4-102.  Definitions. As used in this part, unless the context clearly indicates otherwise, the following definitions apply:

     (1)  "Adequate municipal facilities" means municipally, publicly, or privately owned facilities that supply water, treat sewage, or dispose of solid waste for all or most properties within the boundaries of a municipality and that are operating in compliance with Title 75, chapters 5 and 6.

     (2)  "Board" means the board of environmental review.

     (3)(2)  "Department" means the department of environmental quality.

     (4)(3)  "Extension of a public sewage system" means a sewerline that connects two or more sewer service lines to a sewer main.

     (5)(4)  "Extension of a public water supply system" means a waterline that connects two or more water service lines to a water main.

     (6)(5)  "Facilities" means public or private facilities for the supply of water or disposal of sewage or solid waste and any pipes, conduits, or other stationary method by which water, sewage, or solid wastes might be transported or distributed.

     (7)(6)  "Mixing zone" has the meaning provided in 75-5-103.

     (8)(7)  "Public sewage system" or "public sewage disposal system" means a public sewage system as defined in 75-6-102.

     (9)(8)  "Public water supply system" has the meaning provided in 75-6-102.

     (10)(9) "Registered professional engineer" means a person licensed to practice as a professional engineer under Title 37, chapter 67.

     (11)(10) "Registered sanitarian" means a person licensed to practice as a sanitarian under Title 37, chapter 40.

     (12)(11) "Reviewing authority" means the department or a local department or board of health certified to conduct a review under 76-4-104.

     (13)(12) "Sanitary restriction" means a prohibition against the erection of any dwelling, shelter, or building requiring facilities for the supply of water or the disposition of sewage or solid waste or the construction of water supply or sewage or solid waste disposal facilities until the department has approved plans for those facilities.

     (14)(13) "Sewer service line" means a sewerline that connects a single building or living unit to a public sewage system or to an extension of a public sewage system.

     (15)(14) "Solid waste" has the meaning provided in 75-10-103.

     (16)(15) "Subdivision" means a division of land or land so divided that creates one or more parcels containing less than 20 acres, exclusive of public roadways, in order that the title to or possession of the parcels may be sold, rented, leased, or otherwise conveyed and includes any resubdivision and any condominium or area, regardless of size, that provides permanent multiple space for recreational camping vehicles or mobile homes.

     (17)(16) "Water service line" means a waterline that connects a single building or living unit to a public water supply system or to an extension of a public water supply system.

     (18)(17) "Well isolation zone" means the area within a 100-foot radius of a water well."

 

     Section 159.  Section 76-4-108, MCA, is amended to read:

     "76-4-108.  Enforcement. (1) If the reviewing authority has reason to believe that a violation of this part or a rule adopted or an order issued under this part has occurred, the reviewing authority may have written notice and an order served personally or by certified mail on the alleged violator or the alleged violator's agent. The notice must state the provision alleged to be violated, the facts alleged to constitute the violation, the corrective action required by the reviewing authority, and the time within which the action is to be taken. A notice and order issued by the department under this section may also assess an administrative penalty as provided in 76-4-109. The alleged violator may, no later than 30 days after service of a notice and order under this section, request a hearing before the local reviewing authority if it issued the notice of violation or the board department if the department issued the notice of violation. A request for a hearing must be filed in writing with the appropriate entity and must state the reason for the request. If a request is filed, a hearing must be held within a reasonable time.

     (2)  In addition to or instead of issuing an order, the reviewing authority may initiate any other appropriate action to compel compliance with this part.

     (3)  The provisions of this part may be enforced by a reviewing authority other than the department or board only for those divisions described in 76-4-104(3). If a local reviewing authority fails to adequately enforce the provisions of this part, the department or the board may compel compliance with this part under the provisions of this section.

     (4)  When a local reviewing authority exercises the authority delegated to it by this section, the local reviewing authority is legally responsible for its actions under this part.

     (5)  If the department or a local reviewing authority determines that a violation of this part, a rule adopted under this part, or an order issued under this part has occurred, the department or the local reviewing authority may revoke its certificate of approval for the subdivision and reimpose sanitary restrictions following written notice to the alleged violator. Upon revocation of a certificate, the person aggrieved by revocation may request a hearing. A hearing request must be filed in writing within 30 days after receipt of the notice of revocation and must state the reason for the request. The hearing is before the board department if the department revoked the certificate or before the local reviewing authority if the local reviewing authority revoked the certificate.

     (6)  The contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to a hearing held under this section."

 

     Section 160.  Section 76-4-126, MCA, is amended to read:

     "76-4-126.  Right to hearing. (1) Upon a denial of approval of subdivision plans and specifications relating to environmental health facilities, the person who is aggrieved by the denial may request a hearing before the board department. A hearing request must be filed, in writing, within 30 days after receipt of the notice of denial and must state the reason for the request. The contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to a hearing held under this section.

     (2)  If the grounds for a denial of approval under this part include noncompliance with local laws or regulations other than those adopting, pursuant to 50-2-116, state minimum standards for the control and disposal of sewage, the board department shall upon receipt of a hearing request refer the local compliance issues to the appropriate local authority. After opportunity for a hearing, the local authority shall issue a determination regarding the local compliance issues, and the board department shall incorporate the determination of the local authority in the board's department's final decision."

 

     Section 161.  Section 76-4-1001, MCA, is amended to read:

     "76-4-1001.  Penalty factors. (1) In determining the amount of an administrative or civil penalty to which subsection (4) applies, the department of environmental quality or the district court, as appropriate, shall take into account the following factors:

     (a)  the nature, extent, and gravity of the violation;

     (b)  the circumstances of the violation;

     (c)  the violator's prior history of any violation, which:

     (i)  must be a violation of a requirement under the authority of the same chapter and part as the violation for which the penalty is being assessed;

     (ii) must be documented in an administrative order or a judicial order or judgment issued within 3 years prior to the date of the occurrence of the violation for which the penalty is being assessed; and

     (iii) may not, at the time that the penalty is being assessed, be undergoing or subject to administrative appeal or judicial review;

     (d)  the economic benefit or savings resulting from the violator's action;

     (e)  the violator's good faith and cooperation;

     (f)  the amounts voluntarily expended by the violator, beyond what is required by law or order, to address or mitigate the violation or impacts of the violation; and

     (g)  other matters that justice may require.

     (2)  After the amount of a penalty is determined under subsection (1), the department of environmental quality or the district court, as appropriate, may consider the violator's financial ability to pay the penalty and may institute a payment schedule or suspend all or a portion of the penalty.

     (3)  The department of environmental quality may accept a supplemental environmental project as mitigation for a portion of the penalty. For purposes of this section, a "supplemental environmental project" is an environmentally beneficial project that a violator agrees to undertake in settlement of an enforcement action but which the violator is not otherwise legally required to perform.

     (4)  This section applies to penalties assessed by the department of environmental quality or the district court under Title 75, chapters 2, 5, 6, 11, and 20; Title 75, chapter 10, parts 2, 4, 5, and 12; and Title 76, chapter 4.

     (5)  The board of environmental review and the department of environmental quality may, for the statutes listed in subsection (4) for which each has rulemaking authority, adopt rules to implement this section."

 

     Section 162.  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)(4)  "Confirmatory procedure" means a process for verifying the detection of agricultural chemicals in water, soil, and other related media.

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

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

     (8)(7)  "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)(8)  "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)(9) "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)(10) "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)(11) "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)(12) "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)(13) "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)(14) "Person" means any individual, group, firm, cooperative, corporation, association, partnership, political subdivision, state or federal government agency, or other organization or entity.

     (16)(15) "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)(16) "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)(17) "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)(18) "Registrant" means a person as defined in 80-8-102 and 80-10-101.

     (20)(19) "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 department of environmental quality as required by 80-15-201.

     (21)(20) "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 163.  Section 80-15-105, MCA, is amended to read:

     "80-15-105.  Rulemaking. (1) The board department of environmental quality, 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 has 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)  procedures for ground water monitoring as authorized by 80-15-202 and 80-15-203;

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

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

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

 

     Section 164.  Section 80-15-110, MCA, is amended to read:

     "80-15-110.  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 board department of environmental quality 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 board department of environmental quality may incorporate by reference comparable federal regulations or guidelines.

     (2)  The board department of environmental quality may adopt a rule to implement this chapter that is more stringent than comparable federal regulations or guidelines only if the board department of environmental quality 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 board's department of environmental quality'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 board department of environmental quality 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 board department of environmental quality to review the rule. If the board department of environmental quality determines that the rule is more stringent than comparable federal regulations or guidelines, the board department of environmental quality 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 board department of environmental quality may charge a petition filing fee in an amount not to exceed $250.

     (b)  A person may also petition the board department of environmental quality for a rule review under subsection (4)(a) if the board department of environmental quality 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 board rule.

     (5)  This section does not apply to a rule adopted under the emergency rulemaking provisions of 2-4-303(1)."

 

     Section 165.  Section 80-15-201, MCA, is amended to read:

     "80-15-201.  Ground water standards. (1) The board department of environmental quality shall adopt standards and, as applicable, interim numerical standards for agricultural chemicals in ground water. The standards must be the same as any promulgated or nonpromulgated federal standard established by EPA, although the board department of environmental quality 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 department of environmental quality must adopt the most recently established nonpromulgated federal standard.

     (2)  The board department of environmental quality 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 department of environmental quality 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 department of environmental quality shall adopt an interim numerical standard, provided that the board department of environmental quality 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 department of environmental quality 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 department of environmental quality 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 department of environmental quality 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 department of environmental quality's responsibility to adopt rules and standards under Title 75, chapter 6."

 

     Section 166.  Section 82-4-102, MCA, is amended to read:

     "82-4-102.  Intent -- findings -- policy and purpose. (1) The legislature, mindful of its constitutional obligations under Article II, section 3, and Article IX of the Montana constitution, has enacted The Strip and Underground Mine Siting Act. It is the legislature's intent that the requirements of this part provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.

     (2)  It is the policy of this state to provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.

     (3)  It is the purpose of this part:

     (a)  to vest in the department the authority to adopt rules and to review new strip-mine and new underground-mine site locations and reclamation plans and either approve or disapprove those locations and plans and to exercise general administration and enforcement of this part;

     (b)  to vest in the board the authority to adopt rules;

     (c)(b)  to satisfy the requirement of Article IX, section 2, of the constitution of this state that all lands disturbed by the taking of natural resources be reclaimed; and

     (d)(c)  to ensure that adequate information is available on areas proposed for strip mining or underground mining so that mining and reclamation plans may be properly formulated to accommodate areas that are suitable for strip mining or underground mining.

     (4)  This part is an exercise of the general police power to provide for the health and welfare of the people."

 

     Section 167.  Section 82-4-103, MCA, is amended to read:

     "82-4-103.  Definitions. When used in this part, unless a different meaning clearly appears from the context, the following definitions apply:

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

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

     (3)(2)  "Mineral" means mineral as defined in 82-4-203.

     (4)(3)  "New mine" means a strip- or underground-mining operation proposed for an area of land that the department determines, because of distance from an existing strip-mine or underground-mine operation or their respective facilities or because of important differences in topography, soils, wildlife, geologic structure, aquifers, or vegetation from an existing strip-mine or underground-mine operation, does not constitute an expansion of an existing operation.

     (5)(4)  "Operation" means all of the premises, facilities, railroad loops, roads, power lines, and equipment used in the process of producing and removing mineral from a designated strip-mine or underground-mine area.

     (6)(5)  "Operator" means a person who intends to operate a new strip mine or new underground mine involving the removal of more than 10,000 cubic yards of mineral or overburden.

     (7)(6)  "Person" means a person, partnership, corporation, association, or other legal entity or any political subdivision or agency of the state.

     (8)(7)  "Preparatory work" means all onsite disturbances, excluding prospecting, associated with the initiation of a new strip mine or underground mine, including but not limited to the construction of railroad spurs or loops, buildings to house mining operations, roads, storage and train load-out facilities, transmission lines, erection of draglines and loading shovels, and other associated facilities.

     (9)(8)  "Strip mining" means any part of the process followed in the production of mineral by the opencut method, including mining by the auger method or any similar method that penetrates a mineral deposit and removes mineral directly through a series of openings made by a machine that enters the deposit from a surface excavation or any other method or process in which the strata or overburden is removed or displaced in order to recover the mineral.

     (10)(9) "Underground mining" means any part of the process that is followed in the production of a mineral and that uses vertical or horizontal shafts, slopes, drifts, or incline planes connected with excavations penetrating the mineral stratum or strata."

 

     Section 168.  Section 82-4-112, MCA, is amended to read:

     "82-4-112.  Administration. (1) The department shall:

     (a) adopt, after an opportunity for a hearing, general rules pertaining to new strip mines and to new underground mines and preparatory work to accomplish the purposes of this part, rules regarding filing of reports, issuance of permits and other matters of procedure and administration;

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

     (b)(c)  issue orders requiring operators to adopt remedial measures necessary to comply with this part and rules adopted under this part;

     (c)(d)  order the suspension of any permit for failure to comply with this part, any rule adopted under this part, or a permit issued pursuant to this part;

     (d)(e)  issue an order revoking a permit when the requirements set forth by a notice of violation, order of suspension, or order requiring remedial measures have not been complied with according to the terms in the notice or order;

     (e)(f)  order the halting of any operation that is started without first having obtained a permit as required by this part;

     (f)(g)  conduct investigations and inspections necessary to ensure compliance with this part; and

     (g)(h)  encourage and conduct investigations, research, experiments, and demonstrations and collect and disseminate information relating to new strip mines, new underground mines, and reclamation of lands and waters affected by preparatory work.

     (2)  The board department shall conduct hearings under this part."

 

     Section 169.  Section 82-4-123, MCA, is amended to read:

     "82-4-123.  Permit fee and surety bond. A fee of $50 shall be paid before the mine-site location permit required in this part may be issued. The operator shall also file with the department a bond payable to the state of Montana with surety satisfactory to the department in the penal sum to be determined by the department of not less than $200 or more than $10,000 for each acre or fraction thereof of the area of land to be disturbed by preparatory work, with a minimum bond of $5,000, conditioned upon the faithful performance of the requirements set forth in this part and of the rules of the board department. In determining the amount of the bond within the above limits, the department shall take into consideration the character and nature of the surface and subsurface disturbances, the future suitable use of the land involved, and the cost of removing or burying facilities, subsidence stabilization, water controls, backfilling, grading, topsoiling, and reclamation to be required. Notwithstanding the above limits, the bond may not be less than the total estimated cost to the state of completing the work described in the reclamation plan."

 

     Section 170.  Section 82-4-129, MCA, is amended to read:

     "82-4-129.  Noncompliance -- suspension of permits. (1) If any of the requirements of this part or rules or orders of the department have not been complied with within the time limits set by the department or by this part, the department shall serve a notice of noncompliance on the operator or, when necessary, the director of the department shall order the suspension of a permit. The notice or order must be handed to the operator in person or served by certified mail addressed to the permanent address shown on the application for a permit. The notice of noncompliance or order of suspension must specify in what respects the operator has failed to comply with this part or the rules or orders of the department and the board. If the operator has not complied with the requirement set forth in the notice of noncompliance or order of suspension within time limits set in the notice or order, the permit may be revoked by order of the board department and the performance bond forfeited to the department.

     (2)  Any additional strip-mining or underground-mining or mine-site location permits held by an operator whose mine-site location permit has been revoked must be suspended, and the operator is not eligible to receive another permit or to have the suspended permits reinstated until the operator has complied with all the requirements of this part with respect to previous permits issued to the operator. An operator who has forfeited a bond is not eligible to receive another permit unless the land for which the bond was forfeited has been reclaimed without cost to the state or the operator has paid into the reclamation account a sum together with the value of the bond the department finds adequate to reclaim the lands. The department may not issue any additional permits to an operator who has repeatedly been in noncompliance or violation of this part."

 

     Section 171.  Section 82-4-130, MCA, is amended to read:

     "82-4-130.  Procedure for hearings. (1) A person aggrieved by a final decision of the department under this part may request a hearing before the board department by submitting a written request stating the reason for the request within 30 days after the department's decision.

     (2)  The contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to a hearing held under this part."

 

     Section 172.  Section 82-4-203, MCA, is amended to read:

     "82-4-203.  (Temporary) Definitions. Unless the context requires otherwise, in this part, the following definitions apply:

     (1)  "Abandoned" means an operation in which a mineral is not being produced and that the department determines will not continue or resume operation.

     (2)  "Adjacent area" means the area outside the permit area where a resource or resources, determined in the context in which the term is used, are or could reasonably be expected to be adversely affected by proposed mining operations, including probable impacts from underground workings.

     (3)  (a) "Alluvial valley floor" means the unconsolidated stream-laid deposits holding streams where water availability is sufficient for subirrigation or flood irrigation agricultural activities.

     (b)  The term does not include upland areas that are generally overlain by a thin veneer of colluvial deposits composed chiefly of debris from sheet erosion and deposits by unconcentrated runoff or slope wash, together with talus, other mass movement accumulation, and windblown deposits.

     (4)  "Approximate original contour" means that surface configuration achieved by backfilling and grading of the mined area so that the reclaimed area, including any terracing or access roads, closely resembles the general surface configuration of the land prior to mining and blends into and complements the drainage pattern of the surrounding terrain, with all highwalls, spoil piles, and coal refuse piles eliminated, so that:

     (a)  the reclaimed terrain closely resembles the general surface configuration if it is comparable to the premine terrain. For example, if the area was basically level or gently rolling before mining, it should retain these features after mining, recognizing that rolls and dips need not be restored to their original locations and that level areas may be increased.

     (b)  the reclaimed area blends with and complements the drainage pattern of the surrounding area so that water intercepted within or from the surrounding terrain flows through and from the reclaimed area in an unobstructed and controlled manner;

     (c)  postmining drainage basins may differ in size, location, configuration, orientation, and density of ephemeral drainageways compared to the premining topography if they are hydrologically stable, soil erosion is controlled to the extent appropriate for the postmining land use, and the hydrologic balance is protected; and

     (d)  the reclaimed surface configuration is appropriate for the postmining land use.

     (5)  "Aquifer" means any geologic formation or natural zone beneath the earth's surface that contains or stores water and transmits it from one point to another in quantities that permit or have the potential to permit economic development as a water source.

     (6)  (a) "Area of land affected" means the area of land from which overburden is to be or has been removed and upon which the overburden is to be or has been deposited.

     (b)  The term includes:

     (i)  all land overlying any tunnels, shafts, or other excavations used to extract the mineral;

     (ii) lands affected by the construction of new railroad loops and roads or the improvement or use of existing railroad loops and roads to gain access and to haul the mineral;

     (iii) processing facilities at or near the mine site or other mine-associated facilities, waste deposition areas, treatment ponds, and any other surface or subsurface disturbance associated with strip mining or underground mining; and

     (iv) all activities necessary and incident to the reclamation of the mining operations.

     (7)  "Bench" means the ledge, shelf, table, or terrace formed in the contour method of strip mining.

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

     (9)(8)  "Coal conservation plan" means the planned course of conduct of a strip- or underground-mining operation and includes plans for the removal and use of minable and marketable coal located within the area planned to be mined.

     (10)(9) (a) "Coal preparation" means the chemical or physical processing of coal and its cleaning, concentrating, or other processing or preparation.

     (b)  The term does not mean the conversion of coal to another energy form or to a gaseous or liquid hydrocarbon, except for incidental amounts that do not leave the plant, nor does the term mean processing for other than commercial purposes.

     (11)(10) "Coal preparation plant" means a commercial facility where coal is subject to coal preparation. The term includes commercial facilities associated with coal preparation activities but is not limited to loading buildings, water treatment facilities, water storage facilities, settling basins and impoundments, and coal processing and other waste disposal areas.

     (12)(11) "Contour strip mining" means that strip-mining method commonly carried out in areas of rough and hilly topography in which the coal or mineral seam outcrops along the side of the slope and entrance are made to the seam by excavating a bench or table cut at and along the site of the seam outcropping, with the excavated overburden commonly being cast down the slope below the mineral seam and the operating bench.

     (13)(12) "Cropland" means land used for the production of adapted crops for harvest, alone or in rotation with grasses and legumes, that include row crops, small grain crops, hay crops, nursery crops, orchard crops, and other similar crops.

     (14)(13) "Degree" means a measurement from the horizontal. In each case, the measurement is subject to a tolerance of 5% error.

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

     (16)(15) "Developed water resources" means land used for storing water for beneficial uses, such as stockponds, irrigation, fire protection, flood control, and water supply.

     (17)(16) "Ephemeral drainageway" means a drainageway that flows only in response to precipitation in the immediate watershed or in response to the melting of snow or ice and is always above the local water table.

     (18)(17) "Failure to conserve coal" means the nonremoval or nonuse of minable and marketable coal by an operation. However, the nonremoval or nonuse of minable and marketable coal that occurs because of compliance with reclamation standards established by the department is not considered failure to conserve coal.

     (19)(18) "Fill bench" means that portion of a bench or table that is formed by depositing overburden beyond or downslope from the cut section as formed in the contour method of strip mining.

     (20)(19) "Fish and wildlife habitat" means land dedicated wholly or partially to the production, protection, or management of species of fish or wildlife.

     (21)(20) "Forestry" means land used or managed for the long-term production of wood, wood fiber, or wood-derived products.

     (22)(21) "Grazing land" means land used for grasslands and forest lands where the indigenous vegetation is actively managed for livestock grazing or browsing or occasional hay production.

     (23)(22) "Higher or better uses" means postmining land uses that have a higher economic value or noneconomic benefit to the landowner or the community than the premining land uses.

     (24)(23) "Hydrologic balance" means the relationship between the quality and quantity of water inflow to, water outflow from, and water storage in a hydrologic unit, such as a drainage basin, aquifer, soil zone, lake, or reservoir, and encompasses the dynamic relationships among precipitation, runoff, evaporation, and changes in ground water and surface water storage.

     (25)(24) "Imminent danger to the health and safety of the public" means the existence of any condition or practice or any violation of a permit or other requirement of this part in a strip- or underground-coal-mining and reclamation operation that could reasonably be expected to cause substantial physical harm to persons outside the permit area before the condition, practice, or violation can be abated. A reasonable expectation of death or serious injury before abatement exists if a rational person, subjected to the same conditions or practices giving rise to the peril, would not willingly be exposed to the danger during the time necessary for abatement.

     (26)(25) "Industrial or commercial" means land used for:

     (a)  extraction or transformation of materials for fabrication of products, wholesaling of products, or long-term storage of products. This includes all heavy and light manufacturing facilities.

     (b)  retail or trade of goods or services, including hotels, motels, stores, restaurants, and other commercial establishments.

     (27)(26) (a) "In situ coal gasification" means a method of in-place coal mining where limited quantities of overburden are disturbed to install a conduit or well and coal is mined by injecting or recovering a liquid, solid, sludge, or gas that causes the leaching, dissolution, gasification, liquefaction, or extraction of the coal.

     (b)  In situ coal gasification does not include the storage of carbon dioxide in a geologic storage reservoir, the primary or enhanced recovery of naturally occurring oil and gas, or any related process regulated by the board of oil and gas conservation pursuant to Title 82, chapter 11.

     (28)(27) "Intermittent stream" means a stream or reach of a stream that is below the water table for at least some part of the year and that obtains its flow from both ground water discharge and surface runoff.

     (29)(28) "Land use" means specific uses or management-related activities, rather than the vegetative cover of the land. Land uses may be identified in combination when joint or seasonal uses occur and may include land used for support facilities that are an integral part of the land use. Land use categories include cropland, developed water resources, fish and wildlife habitat, forestry, grazing land, industrial or commercial, pastureland, land occasionally cut for hay, recreation, or residential.

     (30)(29) "Marketable coal" means a minable coal that is economically feasible to mine and is fit for sale in the usual course of trade.

     (31)(30) "Material damage" means, with respect to protection of the hydrologic balance, degradation or reduction by coal mining and reclamation operations of the quality or quantity of water outside of the permit area in a manner or to an extent that land uses or beneficial uses of water are adversely affected, water quality standards are violated, or water rights are impacted. Violation of a water quality standard, whether or not an existing water use is affected, is material damage.

     (32)(31) "Method of operation" means the method or manner by which the cut, open pit, shaft, or excavation is made, the overburden is placed or handled, water is controlled, and other acts are performed by the operator in the process of uncovering and removing the minerals that affect the reclamation of the area of land affected.

     (33)(32) "Minable coal" means that coal that can be removed through strip- or underground-mining methods adaptable to the location that coal is being mined or is planned to be mined.

     (34)(33) "Mineral" means coal and uranium.

     (35)(34) "Operation" means:

     (a)  all of the premises, facilities, railroad loops, roads, and equipment used in the process of producing and removing mineral from and reclaiming a designated strip-mine or underground-mine area, including coal preparation plants; and

     (b)  all activities, including excavation incident to operations, or prospecting for the purpose of determining the location, quality, or quantity of a natural mineral deposit.

     (36)(35) "Operator" means a person engaged in:

     (a)  strip mining or underground mining who removes or intends to remove more than 10,000 cubic yards of mineral or overburden;

     (b)  coal mining who removes or intends to remove more than 250 tons of coal from the earth by mining within 12 consecutive calendar months in any one location;

     (c)  operating a coal preparation plant; or

     (d)  uranium mining using in situ methods.

     (37)(36) "Overburden" means:

     (a)  all of the earth and other materials that lie above a natural mineral deposit; and

     (b)  the earth and other material after removal from their natural state in the process of mining.

     (38)(37) "Pastureland" means land used primarily for the long-term production of adapted, domesticated forage plants to be grazed by livestock or occasionally cut and cured for livestock feed.

     (39)(38) "Perennial stream" means a stream or part of a stream that flows continuously during all of the calendar year as a result of ground water discharge or surface runoff.

     (40)(39) "Person" means a person, partnership, corporation, association, or other legal entity or any political subdivision or agency of the state or federal government.

     (41)(40) "Prime farmland" means land that:

     (a)  meets the criteria for prime farmland prescribed by the United States secretary of agriculture in the Federal Register; and

     (b)  historically has been used for intensive agricultural purposes.

     (42)(41) "Prospecting" means:

     (a)  the gathering of surface or subsurface geologic, physical, or chemical data by mapping, trenching, or geophysical or other techniques necessary to determine:

     (i)  the quality and quantity of overburden in an area; or

     (ii) the location, quantity, or quality of a mineral deposit; or

     (b)  the gathering of environmental data to establish the conditions of an area before beginning strip- or underground-coal-mining and reclamation operations under this part.

     (43)(42) "Reclamation" means backfilling, subsidence stabilization, water control, grading, highwall reduction, topsoiling, planting, revegetation, and other work conducted on lands affected by strip mining or underground mining under a plan approved by the department to make those lands capable of supporting the uses that those lands were capable of supporting prior to any mining or to higher or better uses.

     (44)(43) "Recovery fluid" means any material that flows or moves, whether in semisolid, liquid, sludge, gas, or some other form or state, used to dissolve, leach, gasify, or extract coal.

     (45)(44) "Recreation" means land used for public or private leisure-time activities, including developed recreation facilities, such as parks, camps, and amusement areas, as well as areas for less intensive uses, such as hiking, canoeing, and other undeveloped recreational uses.

     (46)(45) "Reference area" means a land unit maintained under appropriate management for the purpose of measuring vegetation ground cover, productivity, and plant species diversity that are produced naturally or by crop production methods approved by the department. Reference areas must be representative of geology, soil, slope, and vegetation in the permit area.

     (47)(46) "Remining" means conducting surface coal mining and reclamation operations that affect previously mined areas (for example, the recovery of additional mineral from existing gob or tailings piles).

     (48)(47) "Residential" means land used for single- and multiple-family housing, mobile home parks, or other residential lodgings.

     (49)(48) "Restore" or "restoration" means reestablishment after mining and reclamation of the land use that existed prior to mining or to higher or better uses.

     (50)(49) (a) "Strip mining" means any part of the process followed in the production of mineral by the opencut method, including mining by the auger method or any similar method that penetrates a mineral deposit and removes mineral directly through a series of openings made by a machine that enters the deposit from a surface excavation or any other mining method or process in which the strata or overburden is removed or displaced in order to recover the mineral.

     (b)  For the purposes of this part only, strip mining also includes remining and coal preparation.

     (c)  The terms "remining" and "coal preparation" are not included in the definition of "strip mining" for purposes of Title 15, chapter 35, part 1.

     (51)(50) "Subsidence" means a vertically downward movement of overburden materials resulting from the actual mining of an underlying mineral deposit or associated underground excavations.

     (52)(51) "Surface owner" means:

     (a)  a person who holds legal or equitable title to the land surface;

     (b)  a person who personally conducts farming or ranching operations upon a farm or ranch unit to be directly affected by strip-mining operations or who receives directly a significant portion of income from farming or ranching operations;

     (c)  the state of Montana when the state owns the surface; or

     (d)  the appropriate federal land management agency when the United States government owns the surface.

     (53)(52) "Topsoil" means the unconsolidated mineral matter that is naturally present on the surface of the earth, that has been subjected to and influenced by genetic and environmental factors of parent material, climate, macroorganisms and microorganisms, and topography, all acting over a period of time, and that is necessary for the growth and regeneration of vegetation on the surface of the earth.

     (54)(53) "Underground mining" means any part of the process that is followed in the production of a mineral and that uses vertical or horizontal shafts, slopes, drifts, or incline planes connected with excavations penetrating the mineral stratum or strata. The term includes mining by in situ methods.

     (55)(54) "Unwarranted failure to comply" means:

     (a)  the failure of a permittee to prevent the occurrence of any violation of a permit or any requirement of this part because of indifference, lack of diligence, or lack of reasonable care; or

     (b)  the failure to abate any violation of a permit or of this part because of indifference, lack of diligence, or lack of reasonable care.

     (56)(55) "Waiver" means a document that demonstrates the clear intention to release rights in the surface estate for the purpose of permitting the extraction of subsurface minerals by strip-mining methods.

     (57)(56) "Wildlife habitat enhancement feature" means a component of the reclaimed landscape, established in conjunction with land uses other than fish and wildlife habitat, for the benefit of wildlife species, including but not limited to tree and shrub plantings, food plots, wetland areas, water sources, rock outcrops, microtopography, or raptor perches.

     (58)(57) "Written consent" means a statement that is executed by the owner of the surface estate and that is written on a form approved by the department to demonstrate that the owner consents to entry of an operator for the purpose of conducting strip-mining operations and that the consent is given only to strip-mining and reclamation operations that fully comply with the terms and requirements of this part.

     82-4-203.  (Effective on occurrency of contingency) Definitions. Unless the context requires otherwise, in this part, the following definitions apply:

     (1)  "Abandoned" means an operation in which a mineral is not being produced and that the department determines will not continue or resume operation.

     (2)  "Adjacent area" means the area outside the permit area where a resource or resources, determined in the context in which the term is used, are or could reasonably be expected to be adversely affected by proposed mining operations, including probable impacts from underground workings.

     (3)  (a) "Alluvial valley floor" means the unconsolidated stream-laid deposits holding streams where water availability is sufficient for subirrigation or flood irrigation agricultural activities.

     (b)  The term does not include upland areas that are generally overlain by a thin veneer of colluvial deposits composed chiefly of debris from sheet erosion and deposits by unconcentrated runoff or slope wash, together with talus, other mass movement accumulation, and windblown deposits.

     (4)  "Approximate original contour" means that surface configuration achieved by backfilling and grading of the mined area so that the reclaimed area, including any terracing or access roads, closely resembles the general surface configuration of the land prior to mining and blends into and complements the drainage pattern of the surrounding terrain, with all highwalls, spoil piles, and coal refuse piles eliminated, so that:

     (a)  the reclaimed terrain closely resembles the general surface configuration if it is comparable to the premine terrain. For example, if the area was basically level or gently rolling before mining, it should retain these features after mining, recognizing that rolls and dips need not be restored to their original locations and that level areas may be increased.

     (b)  the reclaimed area blends with and complements the drainage pattern of the surrounding area so that water intercepted within or from the surrounding terrain flows through and from the reclaimed area in an unobstructed and controlled manner;

     (c)  postmining drainage basins may differ in size, location, configuration, orientation, and density of ephemeral drainageways compared to the premining topography if they are hydrologically stable, soil erosion is controlled to the extent appropriate for the postmining land use, and the hydrologic balance is protected; and

     (d)  the reclaimed surface configuration is appropriate for the postmining land use.

     (5)  "Aquifer" means any geologic formation or natural zone beneath the earth's surface that contains or stores water and transmits it from one point to another in quantities that permit or have the potential to permit economic development as a water source.

     (6)  (a) "Area of land affected" means the area of land from which overburden is to be or has been removed and upon which the overburden is to be or has been deposited.

     (b)  The term includes:

     (i)  all land overlying any tunnels, shafts, or other excavations used to extract the mineral;

     (ii) lands affected by the construction of new railroad loops and roads or the improvement or use of existing railroad loops and roads to gain access and to haul the mineral;

     (iii) processing facilities at or near the mine site or other mine-associated facilities, waste deposition areas, treatment ponds, and any other surface or subsurface disturbance associated with strip mining or underground mining; and

     (iv) all activities necessary and incident to the reclamation of the mining operations.

     (7)  "Bench" means the ledge, shelf, table, or terrace formed in the contour method of strip mining.

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

     (9)(8)  "Coal beneficiation plant" means a commercial facility where coal is subject to coal preparation that is not operated, owned, or controlled by the mine operator of the mine providing the coal.

     (10)(9) "Coal conservation plan" means the planned course of conduct of a strip-mining or underground-mining operation and includes plans for the removal and use of minable and marketable coal located within the area planned to be mined.

     (11)(10) (a) "Coal preparation" means the chemical or physical processing of coal and its cleaning, concentrating, or other processing or preparation.

     (b)  The term does not mean the conversion of coal to another energy form or to a gaseous or liquid hydrocarbon, except for incidental amounts that do not leave the plant, nor does the term mean processing for other than commercial purposes.

     (12)(11) (a) "Coal preparation plant" means a commercial facility where coal is subject to coal preparation in connection with a strip mine or underground coal mine. The term includes commercial facilities associated with coal preparation activities but is not limited to loading buildings, water treatment facilities, water storage facilities, settling basins and impoundments, and coal processing and other waste disposal areas.

     (b)  The term does not mean:

     (i)  a facility where coal is prepared and converted into another energy form or to a gaseous or liquid hydrocarbon; or

     (ii) a coal beneficiation plant.

     (13)(12) "Contour strip mining" means that strip-mining method commonly carried out in areas of rough and hilly topography in which the coal or mineral seam outcrops along the side of the slope and entrance are made to the seam by excavating a bench or table cut at and along the site of the seam outcropping, with the excavated overburden commonly being cast down the slope below the mineral seam and the operating bench.

     (14)(13) "Cropland" means land used for the production of adapted crops for harvest, alone or in rotation with grasses and legumes, that include row crops, small grain crops, hay crops, nursery crops, orchard crops, and other similar crops.

     (15)(14) "Degree" means a measurement from the horizontal. In each case, the measurement is subject to a tolerance of 5% error.

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

     (17)(16) "Developed water resources" means land used for storing water for beneficial uses, such as stockponds, irrigation, fire protection, flood control, and water supply.

     (18)(17) "Ephemeral drainageway" means a drainageway that flows only in response to precipitation in the immediate watershed or in response to the melting of snow or ice and is always above the local water table.

     (19)(18) "Failure to conserve coal" means the nonremoval or nonuse of minable and marketable coal by an operation. However, the nonremoval or nonuse of minable and marketable coal that occurs because of compliance with reclamation standards established by the department is not considered failure to conserve coal.

     (20)(19) "Fill bench" means that portion of a bench or table that is formed by depositing overburden beyond or downslope from the cut section as formed in the contour method of strip mining.

     (21)(20) "Fish and wildlife habitat" means land dedicated wholly or partially to the production, protection, or management of species of fish or wildlife.

     (22)(21) "Forestry" means land used or managed for the long-term production of wood, wood fiber, or wood-derived products.

     (23)(22) "Grazing land" means land used for grasslands and forest lands where the indigenous vegetation is actively managed for livestock grazing or browsing or occasional hay production.

     (24)(23) "Higher or better uses" means postmining land uses that have a higher economic value or noneconomic benefit to the landowner or the community than the premining land uses.

     (25)(24) "Hydrologic balance" means the relationship between the quality and quantity of water inflow to, water outflow from, and water storage in a hydrologic unit, such as a drainage basin, aquifer, soil zone, lake, or reservoir, and encompasses the dynamic relationships among precipitation, runoff, evaporation, and changes in ground water and surface water storage.

     (26)(25) "Imminent danger to the health and safety of the public" means the existence of any condition or practice or any violation of a permit or other requirement of this part in a strip-mining or underground-coal-mining and reclamation operation that could reasonably be expected to cause substantial physical harm to persons outside the permit area before the condition, practice, or violation can be abated. A reasonable expectation of death or serious injury before abatement exists if a rational person, subjected to the same conditions or practices giving rise to the peril, would not willingly be exposed to the danger during the time necessary for abatement.

     (27)(26) (a) "In situ coal gasification" means a method of in-place coal mining where limited quantities of overburden are disturbed to install a conduit or well and coal is mined by injecting or recovering a liquid, solid, sludge, or gas that causes the leaching, dissolution, gasification, liquefaction, or extraction of the coal.

     (b)  In situ coal gasification does not include the storage of carbon dioxide in a geologic storage reservoir, the primary or enhanced recovery of naturally occurring oil and gas, or any related process regulated by the board of oil and gas conservation pursuant to Title 82, chapter 11.

     (28)(27) "Industrial or commercial" means land used for:

     (a)  extraction or transformation of materials for fabrication of products, wholesaling of products, or long-term storage of products. This includes all heavy and light manufacturing facilities.

     (b)  retail or trade of goods or services, including hotels, motels, stores, restaurants, and other commercial establishments.

     (29)(28) "Intermittent stream" means a stream or reach of a stream that is below the water table for at least some part of the year and that obtains its flow from both ground water discharge and surface runoff.

     (30)(29) "Land use" means specific uses or management-related activities, rather than the vegetative cover of the land. Land uses may be identified in combination when joint or seasonal uses occur and may include land used for support facilities that are an integral part of the land use. Land use categories include cropland, developed water resources, fish and wildlife habitat, forestry, grazing land, industrial or commercial, pastureland, land occasionally cut for hay, recreation, or residential.

     (31)(30) "Marketable coal" means a minable coal that is economically feasible to mine and is fit for sale in the usual course of trade.

     (32)(31) "Material damage" means, with respect to protection of the hydrologic balance, degradation or reduction by coal mining and reclamation operations of the quality or quantity of water outside of the permit area in a manner or to an extent that land uses or beneficial uses of water are adversely affected, water quality standards are violated, or water rights are impacted. Violation of a water quality standard, whether or not an existing water use is affected, is material damage.

     (33)(32) "Method of operation" means the method or manner by which the cut, open pit, shaft, or excavation is made, the overburden is placed or handled, water is controlled, and other acts are performed by the operator in the process of uncovering and removing the minerals that affect the reclamation of the area of land affected.

     (34)(33) "Minable coal" means that coal that can be removed through strip-mining or underground-mining methods adaptable to the location that coal is being mined or is planned to be mined.

     (35)(34) "Mineral" means coal and uranium.

     (36)(35) (a) "Operation" means:

     (i)  all of the premises, facilities, railroad loops, roads, and equipment used in the process of producing and removing mineral from and reclaiming a designated strip-mine or underground-mine area, except as provided in subsection (36)(b)(ii) (35)(b)(ii), including coal preparation plants; and

     (ii) all activities, including excavation incident to operations, or prospecting for the purpose of determining the location, quality, or quantity of a natural mineral deposit.

     (b)  The term does not mean:

     (i)  the surface premises, facilities, railroad loops, roads, and equipment used in the conversion of coal to another energy form or to a gaseous or liquid hydrocarbon;

     (ii) a commercial facility or surface premises where coal that is converted into another energy form or a gaseous or liquid hydrocarbon is prepared; or

     (iii) a coal beneficiation plant.

     (37)(36) (a) "Operator" means a person engaged in:

     (i)  strip mining or underground mining who removes or intends to remove more than 10,000 cubic yards of mineral or overburden;

     (ii) coal mining who removes or intends to remove more than 250 tons of coal from the earth by mining within 12 consecutive calendar months in any one location;

     (iii) operating a coal preparation plant; or

     (iv) uranium mining using in situ methods.

     (b)  The term does not mean a person operating a coal beneficiation plant.

     (38)(37) "Overburden" means:

     (a)  all of the earth and other materials that lie above a natural mineral deposit; and

     (b)  the earth and other material after removal from their natural state in the process of mining.

     (39)(38) "Pastureland" means land used primarily for the long-term production of adapted, domesticated forage plants to be grazed by livestock or occasionally cut and cured for livestock feed.

     (40)(39) "Perennial stream" means a stream or part of a stream that flows continuously during all of the calendar year as a result of ground water discharge or surface runoff.

     (41)(40) "Person" means a person, partnership, corporation, association, or other legal entity or any political subdivision or agency of the state or federal government.

     (42)(41) "Prime farmland" means land that:

     (a)  meets the criteria for prime farmland prescribed by the United States secretary of agriculture in the Federal Register; and

     (b)  historically has been used for intensive agricultural purposes.

     (43)(42) "Prospecting" means:

     (a)  the gathering of surface or subsurface geologic, physical, or chemical data by mapping, trenching, or geophysical or other techniques necessary to determine:

     (i)  the quality and quantity of overburden in an area; or

     (ii) the location, quantity, or quality of a mineral deposit; or

     (b)  the gathering of environmental data to establish the conditions of an area before beginning strip-mining or underground-coal-mining and reclamation operations under this part.

     (44)(43) "Reclamation" means backfilling, subsidence stabilization, water control, grading, highwall reduction, topsoiling, planting, revegetation, and other work conducted on lands affected by strip mining or underground mining under a plan approved by the department to make those lands capable of supporting the uses that those lands were capable of supporting prior to any mining or to higher or better uses.

     (45)(44) "Recovery fluid" means any material that flows or moves, whether in semisolid, liquid, sludge, gas, or some other form or state, used to dissolve, leach, gasify, or extract coal.

     (46)(45) "Recreation" means land used for public or private leisure-time activities, including developed recreation facilities, such as parks, camps, and amusement areas, as well as areas for less intensive uses, such as hiking, canoeing, and other undeveloped recreational uses.

     (47)(46) "Reference area" means a land unit maintained under appropriate management for the purpose of measuring vegetation ground cover, productivity, and plant species diversity that are produced naturally or by crop production methods approved by the department. Reference areas must be representative of geology, soil, slope, and vegetation in the permit area.

     (48)(47) "Remining" means conducting surface coal mining and reclamation operations that affect previously mined areas (for example, the recovery of additional mineral from existing gob or tailings piles).

     (49)(48) "Residential" means land used for single-family and multiple-family housing, mobile home parks, or other residential lodgings.

     (50)(49) "Restore" or "restoration" means reestablishment after mining and reclamation of the land use that existed prior to mining or to higher or better uses.

     (51)(50) (a) "Strip mining" means any part of the process followed in the production of mineral by the opencut method, including mining by the auger method or any similar method that penetrates a mineral deposit and removes mineral directly through a series of openings made by a machine that enters the deposit from a surface excavation or any other mining method or process in which the strata or overburden is removed or displaced in order to recover the mineral.

     (b)  For the purposes of this part only, strip mining also includes:

     (i)  remining; and

     (ii) coal preparation operated in connection with a strip mine.

     (c)  The terms "remining" and "coal preparation" are not included in the definition of "strip mining" for purposes of Title 15, chapter 35, part 1.

     (52)(51) "Subsidence" means a vertically downward movement of overburden materials resulting from the actual mining of an underlying mineral deposit or associated underground excavations.

     (53)(52) "Surface owner" means:

     (a)  a person who holds legal or equitable title to the land surface;

     (b)  a person who personally conducts farming or ranching operations upon a farm or ranch unit to be directly affected by strip-mining operations or who receives directly a significant portion of income from farming or ranching operations;

     (c)  the state of Montana when the state owns the surface; or

     (d)  the appropriate federal land management agency when the United States government owns the surface.

     (54)(53) "Topsoil" means the unconsolidated mineral matter that is naturally present on the surface of the earth, that has been subjected to and influenced by genetic and environmental factors of parent material, climate, macroorganisms and microorganisms, and topography, all acting over a period of time, and that is necessary for the growth and regeneration of vegetation on the surface of the earth.

     (55)(54) (a) "Underground mining" means any part of the process that is followed in the production of a mineral and that uses vertical or horizontal shafts, slopes, drifts, or incline planes connected with excavations penetrating the mineral stratum or strata.

     (b)  The term includes:

     (i)  mining by in situ methods; and

     (ii) coal preparation operated in connection with an underground mine.

     (56)(55) "Unwarranted failure to comply" means:

     (a)  the failure of a permittee to prevent the occurrence of any violation of a permit or any requirement of this part because of indifference, lack of diligence, or lack of reasonable care; or

     (b)  the failure to abate any violation of a permit or of this part because of indifference, lack of diligence, or lack of reasonable care.

     (57)(56) "Waiver" means a document that demonstrates the clear intention to release rights in the surface estate for the purpose of permitting the extraction of subsurface minerals by strip-mining methods.

     (58)(57) "Wildlife habitat enhancement feature" means a component of the reclaimed landscape, established in conjunction with land uses other than fish and wildlife habitat, for the benefit of wildlife species, including but not limited to tree and shrub plantings, food plots, wetland areas, water sources, rock outcrops, microtopography, or raptor perches.

     (59)(58) "Written consent" means a statement that is executed by the owner of the surface estate and that is written on a form approved by the department to demonstrate that the owner consents to entry of an operator for the purpose of conducting strip-mining operations and that the consent is given only to strip-mining and reclamation operations that fully comply with the terms and requirements of this part."

 

     Section 173.  Section 82-4-205, MCA, is amended to read:

     "82-4-205.  Administration by department and board. (1) The department shall adopt, after an opportunity for a hearing, general rules pertaining to strip mining and to underground mining to accomplish the purposes of this part. The department may adopt rules with respect to filing of reports, issuance of permits, monitoring, and other matters of procedure and administration.

     (1)(2) The department:

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

     (b)  shall review for approval or disapproval all plans and specifications submitted by an 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;

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

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

     (e)  shall issue an order revoking a permit when the requirements set forth by a notice of violation, order of suspension, or order requiring remedial measures have not been complied with according to the terms in the notice or order;

     (f)  shall order the halting of any operation that is started without first having obtained 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;

     (g)  shall conduct public hearings required under this part or rules adopted by the board pursuant to this part;

     (h)  shall conduct investigations and inspections necessary to ensure compliance with this part;

     (i) shall conduct contested case hearings under this part; and

     (i)(j)  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.

     (2)  The board shall conduct contested case hearings under this part."

 

     Section 174.  Section 82-4-206, MCA, is amended to read:

     "82-4-206.  Procedure for contested case hearings. (1) An applicant, permittee, or person with an interest that is or may be adversely affected may request a hearing before the board department on any of the following decisions of the department by submitting a written request stating the reason for the request within 30 days after the department's decision:

     (a)  approval or denial of an application for a permit pursuant to 82-4-231;

     (b)  approval or denial of an application for a prospecting permit pursuant to 82-4-226;

     (c)  approval or denial of an application to increase or reduce a permit area pursuant to 82-4-225;

     (d)  approval or denial of an application to renew or revise a permit pursuant to 82-4-221; or

     (e)  approval or denial of an application to transfer a permit pursuant to 82-4-238 or 82-4-250.

     (2)  The contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to a hearing before the board department under subsection (1)."

 

     Section 175.  Section 82-4-207, MCA, is amended to read:

     "82-4-207.  Rulemaking -- in situ coal gasification. (1) Within 1 year of October 1, 2011, and in accordance with subsection (3), the board department shall adopt rules necessary to regulate underground mining using in situ coal gasification.

     (2)  Unless required by this part, the board department may not adopt a rule to regulate in situ coal gasification that is more stringent than the comparable federal regulations or guidelines that address the same circumstances.

     (3)  The board department shall solicit, document, consider, and address comments from the board of oil and gas conservation provided for in 2-15-3303 in developing rules pursuant to subsection (1)."

 

     Section 176.