AN ACT AMENDING THE MONTANA UNDERGROUND STORAGE TANK INSTALLER LICENSING AND PERMITTING LAW TO INCLUDE TANK INSPECTORS AND AUTHORIZING LICENSURE OF TANK INSPECTORS; AMENDING THE MONTANA UNDERGROUND STORAGE TANK LAW TO REQUIRE UNDERGROUND STORAGE TANK INSPECTIONS; AUTHORIZING THE DEPARTMENT OF ENVIRONMENTAL QUALITY TO CLOSE CERTAIN UNDERGROUND STORAGE TANKS; CREATING A LIEN IN FAVOR OF THE STATE FOR COSTS INCURRED IN CLOSING A TANK; INCREASING THE FEE FOR CERTAIN UNDERGROUND STORAGE TANKS; AMENDING SECTIONS 75-11-201, 75-11-202, 75-11-203, 75-11-204, 75-11-211, 75-11-212, 75-11-218, 75-11-223, 75-11-504, 75-11-505, AND 75-11-512, MCA; AND PROVIDING EFFECTIVE DATES.

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

Section 1. Section 75-11-201, MCA, is amended to read:

"75-11-201. Short title. This part may be cited as the "Montana Underground Storage Tank Installer and Inspector Licensing and Permitting Act"."

Section 2. Section 75-11-202, MCA, is amended to read:

"75-11-202. Findings and purpose. (1) Leaking underground storage tank systems have been identified as a significant source of underground contamination and as a potential hazard for fire and explosion. Government and industry studies show that a major cause of leaking underground storage tanks is improper installation or closure. Proper installation, closure, and inspection require specialized knowledge, training, and experience.

(2) To protect the health of Montana citizens and the quality of state waters and other natural resources, it is the intent of the legislature to require permits for the installation or closure of underground storage tank systems; to limit the conduct of these activities to persons with demonstrated competence, training, and experience; and to provide for permitting, licensing, and inspection activities."

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

(4) "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) "Inspector" means an individual who performs inspections of underground storage tank systems.

(6) (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) "Installer" means an individual who installs or closes underground storage tank systems.

(8) "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) "Licensed inspector" means an individual who holds a valid underground storage tank system inspector license.

(10) "Licensed installer" means an individual who holds a valid underground storage tank system installer license.

(11) "Operator" means a person in control of or having responsibility for the operation, maintenance, or management of an underground storage tank system.

(12) "Owner" means a person who owns an underground storage tank system used for the storage, use, or dispensing of regulated substances.

(13) "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) "Regulated substance" means a regulated substance as defined in 75-11-503.

(15) "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 4. Section 75-11-204, MCA, is amended to read:

"75-11-204. Rulemaking authority. (1) The department may adopt rules governing the installation and closure of underground storage tank systems and rules providing for the inspection of underground storage tank systems. Rules may include but are not limited to the following:

(a) the requirements for issuance, denial, renewal, modification, suspension, and revocation of permits for the installation and closure of underground storage tank systems;

(b) the requirements for issuance, denial, renewal, modification, suspension, and revocation of licenses for underground storage tank system installers and inspectors. The license for inspectors must be separate from the license for installers.

(c) the requirements for examination and training of underground storage tank system installers and inspectors;

(d) the requirements for qualifications of inspectors, use of inspectors, and methods for conducting an inspection. The department shall adopt separate qualifications for installers and inspectors.

(e) a schedule of fees for obtaining licenses and license renewals by underground storage tank system installers and inspectors;

(f) a schedule of fees for the review of applications for underground storage tank system permits;

(g) a schedule of fees for inspection of installations or closures; and

(h) the mechanism for remittance of inspection or permitting fees to local governments.

(2) Licensed inspectors employed by a local government unit designated pursuant to 75-11-213 or 75-11-505 and associated rules are exempt from the licensing fees described in this section."

Section 5. 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. If the board grants a hearing, the hearing must be held in accordance with the provisions of the Montana Administrative Procedure Act."

Section 6. Section 75-11-212, MCA, is amended to read:

"75-11-212. Permits -- application procedure -- issuance. (1) Before the installation or closure of an underground storage tank system, the owner or operator or the owner's or operator's designated licensed underground storage tank installer or remover shall file a permit application with the department on forms provided by the department. The time between the filing of a permit application with the department and the installation or closure may be provided by department rule. The department may provide by rule for emergency permits to apply to emergency conditions pertaining to the installation or closure of underground storage tanks.

(2) The permit application must, at a minimum, require the owner or operator to provide information concerning:

(a) the date of the underground storage tank system installation or closure;

(b) the location of the underground storage tank system installation or closure;

(c) the type of construction of the underground storage tank system;

(d) the contents of the underground storage tank system being closed or the anticipated contents of the tank being installed; and

(e) the name of the licensed installer who will be installing or closing the underground storage tank system or, if the owner or operator is not going to have the underground storage tank system installed or closed by a licensed installer, the estimated date for inspection by the department.

(3) After receipt of a completed application that meets the requirements of this section and any rules adopted under 75-11-204, the department shall issue the permit."

Section 7. 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, or an order to take necessary corrective action within a reasonable time as stated in the order. Every notice and order must be signed by the director of the department or the director's deputy 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. On receipt of the request, the board 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 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 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 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."

Section 8. Section 75-11-223, MCA, is amended to read:

"75-11-223. Civil penalties. (1) Any 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 per 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.

(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 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 9. Licensing of inspectors -- interim licenses -- regular licenses. (1) The department shall grant an inspector license if the inspector demonstrates competency and experience in the inspection of underground storage tank systems, passes a written examination conducted by the department or by an agency or person authorized by the department to give the examination, and pays the license fee.

(2) The department or an agency or person authorized by the department to give the examination shall conduct written examinations for the purpose of qualifying individuals to receive an underground storage tank system inspector license. The department shall provide public notice of the date, time, and location of the examination.

(3) An underground storage tank system inspector license is valid for a period not to exceed 3 years and is subject to periodic renewal as prescribed by department rule.

(4) As a condition of renewal, the department may require that an inspector demonstrate continuing competency in the regulatory requirements applicable to operation and maintenance of underground storage tank systems.

(5) An inspector need not be a Montana resident to qualify for a license.

Section 10. Section 75-11-504, MCA, is amended to read:

"75-11-504. Powers of department. (1) The department may:

(a) administer and enforce the provisions of this part, rules implementing this part, and orders and permits issued pursuant to this part;

(b) accept and administer grants from the federal government and from other sources, public and private;

(c) abate public nuisances that affect the public health and welfare or the environment and that arise from or in connection with the past or present handling or disposal of any regulated substance; and

(d) enter property and permanently close an underground storage tank that:

(i) was in use after November 22, 1989;

(ii) was not permanently closed before December 23, 1998, in accordance with closure requirements established by this part; and

(iii) was neither:

(A) initially installed in accordance with design requirements established pursuant to this part; nor

(B) upgraded in accordance with rules adopted pursuant to this part.

(2) The department shall integrate all provisions of this part with other laws administered by the department to avoid unnecessary duplication."

Section 11. Lien. (1) The costs incurred by the department to close an underground storage tank pursuant to 75-11-504 or 75-11-512 constitute a lien in favor of the state upon all property and rights to the property that belong to the owner or operator.

(2) The lien imposed by this section arises at the time that notice incorporating a description of the property on which the underground storage tank was permanently closed and an identification of the amount of costs is filed with the clerk and recorder of the county in which the real property is located. A copy of the notice must be served by certified mail upon the property owner.

(3) The costs constituting the lien may be recovered in an action in the district court for the district in which the property is located. This section does not affect the right of the state to bring an action against a person to recover all costs for which that person is liable under this part or any other provision of state or federal law.

(4) The lien must continue until the liability for the costs incurred as a result of the permanent closure of the underground storage tank by the state is satisfied.

(5) Payment of any liens under this section must be deposited in the account from which the costs incurred by the state originated.

Section 12. Inspections -- permits. (1) The owner or operator of an 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) after the installation or modification of the tank:

(i) the installer who installed or modified the tank;

(ii) an employee of the installer who installed or modified the tank;

(iii) an employee of the person whose employee installed or modified the tank; or

(iv) if the person that installed or modified the tank through an installer employee is a corporation or other artificial person, a person that owns or is owned by that artificial person.

(2) The department shall by rule provide requirements for the scope and timing of inspections.

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

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

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

(6) A person may not place a regulated substance in an underground storage tank unless the owner or operator has been issued a valid permit from the department for the tank. Permits must be issued for a term of 3 years. The department may not issue or renew a permit unless the owner or operator has filed with the department an inspection report by a licensed inspector who certifies that the operation and maintenance of the tank was in compliance with this part and rules adopted pursuant to this part on the date of inspection.

Section 13. Section 75-11-505, MCA, is amended to read:

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

(1) reporting by owners and operators;

(2) financial responsibility;

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

(4) procedures and standards for the issuance and enforcement of permits authorizing the operation of underground storage tanks;

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

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

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

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

Section 14. 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. On receipt of the request, the board 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 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 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 15. Codification instruction. (1) [Section 9] is intended to be codified as an integral part of Title 75, chapter 11, part 2, and the provisions of Title 75, chapter 11, part 2, apply to [section 9].

(2) [Sections 11 and 12] are intended to be codified as an integral part of Title 75, chapter 11, part 5, and the provisions of Title 75, chapter 11, part 5, apply to [sections 11 and 12].

Section 16. Effective dates. (1) [Sections 1 through 11 and 13 through 15 and this section] are effective on passage and approval.

(2) [Section 12] is effective January 1, 2000.

- END -

I hereby certify that the within bill,

HB 0158, originated in the House.

Chief Clerk of the House

Speaker of the House

Signed this	day

of	, .

President of the Senate

Signed this	day

of	, .

HOUSE BILL NO. 158

INTRODUCED BY K. OHS

BY REQUEST OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY

AN ACT AMENDING THE MONTANA UNDERGROUND STORAGE TANK INSTALLER LICENSING AND PERMITTING LAW TO INCLUDE TANK INSPECTORS AND AUTHORIZING LICENSURE OF TANK INSPECTORS; AMENDING THE MONTANA UNDERGROUND STORAGE TANK LAW TO REQUIRE UNDERGROUND STORAGE TANK INSPECTIONS; AUTHORIZING THE DEPARTMENT OF ENVIRONMENTAL QUALITY TO CLOSE CERTAIN UNDERGROUND STORAGE TANKS; CREATING A LIEN IN FAVOR OF THE STATE FOR COSTS INCURRED IN CLOSING A TANK; INCREASING THE FEE FOR CERTAIN UNDERGROUND STORAGE TANKS; AMENDING SECTIONS 75-11-201, 75-11-202, 75-11-203, 75-11-204, 75-11-211, 75-11-212, 75-11-218, 75-11-223, 75-11-504, 75-11-505, AND 75-11-512, MCA; AND PROVIDING EFFECTIVE DATES.