SENATE BILL NO. 126

INTRODUCED BY CRISMORE W

BY REQUEST OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY

A BILL FOR AN ACT ENTITLED: "AN ACT ESTABLISHING REQUIREMENTS FOR THE DISPOSAL OF SEPTAGE AND REQUIRING LICENSURE OF THOSE ENGAGED IN THAT BUSINESS; PROVIDING THE DEPARTMENT OF ENVIRONMENTAL QUALITY WITH RULEMAKING AUTHORITY; ESTABLISHING A LICENSE FEE; PROVIDING FOR INJUNCTIVE RELIEF; PROVIDING THE DEPARTMENT WITH THE AUTHORITY TO REVOKE OR DENY A LICENSE; PROVIDING THE DEPARTMENT WITH ADMINISTRATIVE ENFORCEMENT AUTHORITY; AUTHORIZING CRIMINAL FINES AND CIVIL PENALTIES; CREATING A SEPTAGE SPECIAL REVENUE ACCOUNT; TRANSFERRING CERTAIN FUNDS; REPEALING SECTIONS 37-41-101, 37-41-103, 37-41-104, 37-41-105, 37-41-201, 37-41-202, 37-41-205, 37-41-211, AND 37-41-212, MCA; AND PROVIDING EFFECTIVE DATES."

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

NEW SECTION. Section 1. Definitions. As used in [sections 1 through 10], the following definitions apply:

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

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

(3) "Disposal" means the discharge, injection, deposit, dumping, spilling, leaking, or placing of septage into or onto the land or water.

(4) "Domestic sewage" means waste and wastewater from humans or household operations that are discharged to or otherwise enter a treatment works.

(5) "Industrial wastewater" means wastewater generated in a commercial or industrial process.

(6) "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) (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) "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.

NEW SECTION. Section 2. Department rulemaking authority. The department shall adopt rules governing the licensure of a person engaged in the business of cleaning cesspools, septic tanks, and privies or disposing of septage. The rules must provide:

(1) procedures for issuance, denial, renewal, and revocation of licenses;

(2) requirements that provide for the sanitary disposal of septage, including:

(a) application of septage to agricultural land, forest land, and reclamation sites;

(b) standards governing rates of application pursuant to subsection (2)(a);

(c) land application standards and restrictions, including:

(i) pathogen restrictions and treatment requirements;

(ii) vector attraction reduction requirements;

(iii) frequency of monitoring; and

(iv) recordkeeping requirements; and

(3) surface disposal standards, including:

(a) the vector attraction reduction requirements for septage placed on an active sewage sludge unit;

(b) the frequency of monitoring required when septage is placed on an active sewage sludge unit; and

(c) the recordkeeping required when septage is placed on a surface disposal site.

NEW SECTION. Section 3. License required -- exception. (1) Except as provided in subsection (2), a person may not engage in the business of cleaning cesspools, septic tanks, or privies or dispose of septage unless licensed by the department.

(2)	An owner or lessee of property from which septage is removed is not required to obtain a license to dispose of or to contract to dispose of that septage on that property if the disposal does not violate disposal restrictions or rules adopted pursuant to [section 2] or create a nuisance or public health hazard.

NEW SECTION. Section 4. Application for license. An application for a license must be made to the department on forms provided by the department. The application must contain:

(1) the full name and business address of the applicant;

(2) a list of the counties in which business is to be conducted;

(3) certification by a local health officer or the local health officer's designated representative in each county in which the applicant's business is to be conducted that any proposed disposal sites to be used by the applicant meet all applicable state and local requirements; and

(4)	any additional information required by rule.

NEW SECTION. Section 5. License term and fees. (1) A license expires on December 31 of each calendar year. A license is not transferable. If a person ceases to do business, the license terminates and the license must be returned to the department.

(2) The fee for a license is $125, payable to the department at the time of application for the license. A federal agency, city, town, county, or other political subdivision is not required to pay the license fee. A city, town, county, or other political subdivision, including a federal agency if allowed by federal law, shall comply with all other requirements of [sections 1 through 10]. The department shall annually return 20% of the fees to the county where the fees were collected. The state portion of the fee must be deposited in the account provided for in [section 10]. The county portion of the fee must be used to defer the cost of the county to enforce [sections 1 through 10].

(3) In addition to the license fee required under subsection (2), the department shall collect a late fee from any person that has failed to submit a license renewal fee prior to the expiration of that person's current license and that operates a business governed by [sections 1 through 10] in the licensing year. The late fee is $125 and must be deposited in the account provided for in [section 10].

NEW SECTION. Section 6. Injunction. (1) The department may sue to enjoin the operation or maintenance of a septage collection or disposal operation until compliance with [sections 1 through 10], the rules of the department, or an order issued pursuant to [sections 1 through 10] has been demonstrated.

(2) Upon request of the department, the attorney general or the county attorney of the county in which a septage collection or disposal operation is located may petition the district court to enjoin further operation or maintenance of the septage collection or disposal operation.

NEW SECTION. Section 7. 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. 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 [sections 1 through 10] or a rule or order issued pursuant to [sections 1 through 10]. The hearing held before the board on a denial or revocation must be held pursuant to the provisions of the Montana Administrative Procedure Act.

NEW SECTION. Section 8. Administrative enforcement. (1) If the department believes that a violation of [sections 1 through 10], a rule adopted under [sections 1 through 10], or an order issued under [sections 1 through 10] 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 [sections 1 through 10], 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 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 [section 7].

(3) If the alleged violator requests a hearing before the board within 30 days of the date of service, the board shall schedule a hearing. After the hearing is held, the board may:

(a) affirm or modify the department's order issued under subsection (1) if the board finds that a violation has occurred; or

(b) rescind the department's order if the board 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) 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 [section 10].

(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.

NEW SECTION. Section 9. Penalties and fines. (1) A person that disposes of septage in violation of [section 3] or of the standards adopted pursuant to [section 2] is guilty of a misdemeanor and upon conviction shall be fined an amount not to exceed $500.

(2) A person that violates [sections 1 through 10] or a rule or order adopted pursuant to [sections 1 through 10] is subject to a civil penalty of not more than $500. Each day that violation of [sections 1 through 10], a rule of the department, or an order issued pursuant to [sections 1 through 10] occurs constitutes a separate violation. The department or the county attorney of the county in which the violation occurred may file an action to collect the penalty.

(3) Penalties collected by the department under this section must be deposited in the account provided for in [section 10]. Fines and penalties collected by a county must be deposited in the general fund of the county.

NEW SECTION. Section 10. Special revenue account. There is an account in the state special revenue fund. Money in the account must be used to fund administration and enforcement of [sections 1 through 9] and this section.

NEW SECTION. Section 11. Transfer of funds. Money in the account established in 37-41-205 on December 31, 1999, must be transferred to the account established in [section 10].

NEW SECTION. Section 12. Repealer. Sections 37-41-101, 37-41-103, 37-41-104, 37-41-105, 37-41-201, 37-41-202, 37-41-205, 37-41-211, and 37-41-212, MCA, are repealed.

NEW SECTION. Section 13. Codification instruction. [Sections 1 through 10] are intended to be codified as an integral part of Title 75, chapter 10, and the provisions of Title 75, chapter 10, apply to [sections 1 through 10].

NEW SECTION. Section 14. Coordination instruction. (1) If [LC 290] is passed and approved and if [LC 290] grants penalty or injunction authority to the department of environmental quality, then [sections 6 through 9 of this act] are void.

(2) If Constitutional Initiative No. 75, enacting Article VIII, section 17, of the Montana constitution, is declared invalid, then [section 5(2) and (3) of this act] is effective on the date of the determination of invalidity.

(3) If [LC 686] is submitted to a vote and is not approved by the electorate, then [section 5(2) of this act] is void.

(4) If [LC 687] is submitted to a vote and is not approved by the electorate, then [section 5(3) of this act] is void.

NEW SECTION. Section 15. Effective dates. (1) [Sections 1, 2, 4, 5, 7, 10, 11, 13, and 14 and this section] are effective on passage and approval.

(2) [Sections 3, 6, 8, 9, and 12] are effective January 1, 2000.

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