SENATE BILL NO. 313

INTRODUCED BY K. MESAROS

A BILL FOR AN ACT ENTITLED: "AN ACT ADOPTING THE UNIFORM ENVIRONMENTAL ENFORCEMENT ACT AND THE UNIFORM HARD-ROCK AND OPENCUT MINING ENFORCEMENT ACT; GENERALLY REVISING THE ENFORCEMENT PROVISIONS IN THE REGULATORY STATUTES ADMINISTERED BY THE DEPARTMENT OF ENVIRONMENTAL QUALITY; AMENDING SECTIONS 75-2-111, 75-2-212, 75-2-402, 75-2-411, 75-2-503, 75-2-508, 75-2-514, 75-5-201, 75-5-307, 75-5-311, 75-5-401, 75-5-403, 75-5-636, 75-6-103, 75-6-111, 75-10-104, 75-10-106, 75-10-118, 75-10-204, 75-10-206, 75-10-212, 75-10-231, 75-10-232, 75-10-233, 75-10-405, 75-10-408, 75-10-541, 75-10-542, 75-10-907, 75-10-943, 75-11-204, 75-11-505, 75-20-204, 75-20-407, 75-20-408, 76-4-102, 76-4-109, 82-4-305, 82-4-311, 82-4-321, 82-4-331, 82-4-335, 82-4-360, 82-4-422, AND 82-4-424, MCA; REPEALING SECTIONS 75-2-401, 75-2-403, 75-2-413, 75-2-421, 75-2-422, 75-2-423, 75-2-424, 75-2-425, 75-2-426, 75-2-427, 75-2-428, 75-2-429, 75-5-602, 75-5-603, 75-5-604, 75-5-611, 75-5-612, 75-5-613, 75-5-614, 75-5-615, 75-5-616, 75-5-617, 75-5-621, 75-5-622, 75-5-631, 75-5-635, 75-5-641, 75-6-109, 75-6-110, 75-6-114, 75-10-227, 75-10-228, 75-10-413, 75-10-414, 75-10-415, 75-10-416, 75-10-417, 75-10-424, 75-10-540, 75-10-944, 75-11-218, 75-11-219, 75-11-220, 75-11-223, 75-11-512, 75-11-513, 75-11-515, 75-11-516, 75-11-518, 76-4-108, 76-4-110, 82-4-361, AND 82-4-441, MCA; PROVIDING A DELAYED EFFECTIVE DATE AND AN APPLICABILITY DATE."

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

NEW SECTION. Section 1. Short title. [Sections 1 through 13] may be cited as "The Uniform Environmental Enforcement Act".

NEW SECTION. Section 2. Definitions. Unless the regulatory act applicable to a violation, or the context, requires otherwise, the following definitions apply to [sections 1 through 13]:

(1) "Activity" means:

(a) any act, conduct, or failure to act that is subject to regulation or permitting under a regulatory act;

(b) any act or conduct in which monitoring takes place or samples are gathered, processed, or stored for the purposes of implementing or complying with a regulatory act or any rule, order, or permit made or issued under a regulatory act; or

(c) the construction or use of any facility as defined in 75-10-403 or 75-20-104.

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

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

(4) "Permit" means any permit, license, approval, or other authorization, including an accreditation granted pursuant to Title 75, chapter 2, part 5, granted by the department or the board that is required by a regulatory act in order to engage in an activity.

(5) "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. For the purpose of [sections 10 and 11] the term also includes a responsible corporate officer.

(6) "Record" means any document, data, or other recorded information that is kept by a person for purposes of compliance with a regulatory act or any rule, requirement, order, or permit made or issued under a regulatory act or [sections 1 through 13].

(7) "Regulatory act" means:

(a) Title 75, chapter 2, parts 1 through 4;

(b) Title 75, chapter 2, part 5;

(c) Title 75, chapter 5, parts 1 through 6;

(d) Title 75, chapter 6, part 1;

(e) Title 75, chapter 10, part 2;

(f) Title 75, chapter 10, part 4;

(g) Title 75, chapter 10, part 5;

(h) Title 75, chapter 10, part 9;

(i) Title 75, chapter 11, part 2;

(j) Title 75, chapter 11, part 5;

(k) Title 75, chapter 20, parts 1 though 4; or

[(l) [Senate Bill No. 126]].

(8) "Source" means a conveyance, release, discharge, or migration of any effluent, pollutant, or other substance as referred to in a regulatory act and the construction or installation of any thing or device that will constitute a source upon completion or activation.

(9) "Violation" means a breach of a condition, limitation, standard, or other requirement established pursuant to [sections 1 through 13], except [section 5(1)], or a regulatory act or any rule, order, or permit made or issued under [sections 1 through 13] or a regulatory act.

NEW SECTION. Section 3. Informal procedures. [Sections 1 through 13] do not prevent the department from making efforts to obtain compliance with a regulatory act through warning, conference, or any other appropriate means. Whenever appropriate, the department may engage in informal meetings, discussions, mediation, or other voluntary methods to obtain compliance or to resolve a violation.

NEW SECTION. Section 4. Inspection. (1) The department or an authorized representative, for the purpose of ascertaining the state of compliance with a regulatory act, the rules adopted pursuant to a regulatory act, or any permit or order issued pursuant to a regulatory act or [sections 1 through 13] may enter and inspect, at any reasonable time, any property or premises on or at which there exists any activity, source, or record regulated under a regulatory act.

(2) The authorized representative shall present appropriate credentials when the authorized representative requests entry for purposes of inspection under this section.

(3) The department or an authorized representative may sample or monitor, at reasonable times, substances or parameters for the purpose of ensuring compliance with the provisions of a regulatory act or a rule adopted pursuant to a regulatory act, a permit issued pursuant to a regulatory act, or an order issued under [sections 1 through 13] or a regulatory act.

(4) The owner or operator of the source, activity, or record shall inform the inspector of all applicable workplace safety rules or requirements at the time of the inspection.

NEW SECTION. Section 5. Power to require information and monitoring. (1) To carry out the objectives of a regulatory act and to monitor and demonstrate compliance with that act, with the rules or permit conditions adopted under the regulatory act, or with an order of the board or department issued pursuant to [sections 1 through 13] or a regulatory act, the department may require a person that the department reasonably believes may have committed or may be committing a violation to:

(a) establish and maintain records;

(b) make reports, including giving notice to the department of any noncompliance with permit conditions, rules adopted under the regulatory act, or any orders of the department or board adopted under [sections 1 through 13] or a regulatory act;

(c) install, use, and maintain monitoring equipment or methods, including biological monitoring techniques;

(d) sample pollutants or effluents using specified monitoring methods at designated locations and intervals; and

(e) provide other information that may be reasonably required by the department to monitor compliance with [sections 1 through 13] or a regulatory act.

(2) If the department determines that the source or activity may present a hazard to public health or to the environment, it may issue an order requiring the owner or operator of the source or activity to provide information, conduct monitoring pursuant to subsection (1), or both, to ascertain the nature and extent of the hazard.

NEW SECTION. Section 6. Search warrants. (1) The department or an authorized representative may apply to a judge authorized to issue a search warrant for a warrant to enter property or premises, and to inspect the property or premises, examine documents, and seize evidence if:

(a) the department has authority to enter and inspect under [section 4]; and

(b) (i) the person in control of the property or premises obstructs, hampers, or interferes with an inspection;

(ii) the department made reasonable efforts to obtain consent to entry and has been unable to obtain consent; or

(iii) the department demonstrates a reasonable possibility that entry or inspection would be refused and that concealment or destruction of evidence could occur.

(2) The application for a search warrant must be made under oath and must:

(a) state facts sufficient to show that reasonable grounds exist for administrative search and inspection of the property or premises to be searched;

(b) particularly describe the property or premises to be searched;

(c) particularly describe the things to be seized; and

(d) state facts demonstrating that one of the circumstances in subsection (1)(b) exists.

(3) A search warrant under this section may be issued by a city or municipal court judge or justice of the peace within the judge's geographical jurisdiction or any district court judge within this state.

NEW SECTION. Section 7. Notice of violation. (1)	Whenever the department has reason to believe that a person has committed a violation, it may serve notice of the violation personally or by certified mail on the alleged violator or the violator's agent. Service by mail is complete on the date of mailing. The notice must be in writing and must be signed by an authorized representative of the department. The notice must:

(a) state with reasonable specificity the provision of the regulatory act, rule, order, permit provision, or other requirement alleged to have been violated;

(b) describe the facts alleged to constitute a violation; and

(c) if the notice contains an order pursuant to [section 8, 9, or 10], notify the recipient of the opportunity for an administrative hearing or judicial review.

(2) In addition to issuing a notice pursuant to subsection (1), the department may make an order pursuant to [section 8, 9, or 10].

(3) The department may vacate a notice of violation or an order if it determines that a violation did not occur. The department may modify an order if it determines that modification is necessary to protect public health, safety, or welfare or the environment. The department may terminate an order if it determines that the order has been complied with or that the order is no longer necessary.

(4) Action under this section does not bar enforcement of a regulatory act by judicial means.

NEW SECTION. Section 8. Emergency order. (1) The department may issue an emergency order whenever it finds that:

(a) a person is engaging in or is reasonably expected to engage in an activity that constitutes a violation; and

(b) (i) if the activity occurs or continues, the activity will create an imminent danger to the health, safety, or welfare of the public or will cause or can reasonably be expected to cause significant and imminent environmental harm to land, air, or water resources; and

(ii) issuance of an order under [section 9] would not provide a reasonable and timely remedy.

(2) An emergency order must require the person to stop, avoid, or moderate the activity as soon as possible. If the department finds that ordering the person to stop, avoid, or moderate the activity will not sufficiently prevent the violation and avoid the danger or harm, the department may impose affirmative obligations requiring any steps that the department considers necessary.

(3) Except as provided in this section, the order must conform to the requirements and procedures of [section 7].

(4) An emergency order may continue only for as long as necessary and must expire upon the completion of any process undertaken pursuant to [section 9 or 12] to abate substantially the same violation, or within 90 days of issuance, whichever occurs first.

(5) The department may amend an emergency order or issue additional emergency orders if necessary.

(6) Upon issuing an emergency order, the department shall fix a place and time for an expeditious hearing before the department. The order is not stayed pending the hearing. The hearing is not subject to the contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6. At the hearing, the department shall make its information and personnel available for examination, consultation, and questioning by the alleged violator and shall allow the alleged violator to submit evidence and argument. As soon as practicable after the hearing, the department shall affirm, modify, or set aside the order.

(7) An appeal of an order issued under this section may be taken to the district court of the county in which the alleged violation occurred or is occurring or to the district court of the first judicial district, Lewis and Clark County. The appeal may be taken before or after the hearing provided in subsection (6).

NEW SECTION. Section 9. Compliance order. (1) A person committing a violation may be served with a compliance order issued by the department ordering cessation of the violation, source, or activity or of a portion of the source or activity. If the department finds that ordering cessation of the violation, source, or activity or portion of the source or activity will not completely abate the violation, the department may in addition impose affirmative obligations requiring cleanup and any other steps that the department considers necessary to abate the violation.

(2) An order issued under this section must conform to the requirements and procedures of [section 7] and must set forth with reasonable specificity the remedial action required, the period of time established for completion of the action, and a reasonable description of the portion of the source or activity to which the notice or order applies. In establishing a time for completion, the department shall take into account the seriousness of the violation and other applicable legal requirements.

(3) An appeal of an order issued under this section may be taken by any aggrieved party to the district court of the county in which the alleged violation occurred or is occurring or to the district court of the first judicial district, Lewis and Clark County. The department or the court may, for good cause, stay the department's order pending the court's review. The court shall conduct a de novo review. The burden of proof is on the person on whom the order was served. The court may:

(a) rescind the order if it finds that the violation did not occur or that the order will not abate the violation;

(b) modify the order if the court finds that the violation can be abated by other means; or

(c) terminate the order if the court finds that the violation has been abated.

NEW SECTION. Section 10. Administrative penalty order. (1) A notice issued to a person under [section 7] may include an order to pay a civil penalty as follows:

(a) for violations under Title 75, chapter 2, parts 1 through 4, up to $10,000 a day, not to exceed $80,000;

[(b) for violations under Title 75, chapter 2, part 5, up to $10,000 a day, not to exceed $80,000;]

(c) for violations under Title 75, chapter 5, parts 1 through 6, up to $10,000 a day, not to exceed $100,000 for any related series of violations;

(d) for violations under Title 75, chapter 6, part 1:

(i) up to $1,000 a day for a violation pertaining to a public water supply system, other than a water hauler on a water bottling plant, that serves a population of more than 10,000; and

(ii) up to $500 for each day of violation for other violations;

(e) for violations under Title 75, chapter 10, part 4, up to $10,000 a day, not to exceed $100,000 for any related series of violations;

(f) for violations under Title 75, chapter 11, part 5, up to $500 a day; and

[(g) for violations under [Senate Bill No. 126], up to $500 a day].

(2) Each day of each violation constitutes a separate violation.

(3) Except as provided in subsection (4), a penalty may not be assessed for any day of violation that occurred more than 3 years prior to the issuance of an initial notice by the department under [section 7].

(4) A penalty may be assessed for days of violation that occurred more than 3 years prior to the issuance of an initial notice by the department under [section 7] if before, during, or after the violation, the violator took or failed to take action with the intent to prevent the department from discovering the violation.

(5) The amount of penalty to be assessed for a violation may not be more than the maximum penalty contained in subsection (1) and must be derived considering:

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

(b) the duration of the violation as established by any credible evidence, including evidence other than the applicable test method;

(c) the economic benefit of noncompliance;

(d) the violator's compliance history under the regulatory act violated and the violator's good faith efforts to comply;

(e) the violator's ability to pay; and

(f) other matters that justice may require.

(6) (a) Except as provided in subsection (6)(b), civil penalties collected pursuant to this section must be deposited in the state general fund.

(b) Civil penalties collected pursuant to the following subsections must be deposited as follows:

[(i) penalties collected under subsection (1)(b) must be deposited in the account established in 75-2-508;]

(ii) penalties collected under subsection (1)(e) must be deposited in the account established in 75-10-117; and

[(iii) penalties collected under subsection (1)(g) must be deposited in the account established in [Senate Bill No. 126]].

(7) Action under this section does not bar enforcement of a regulatory act by injunction or other appropriate remedy.

(8) A person that has been issued an order pursuant to this section or a modification of that order may within 30 days after service of the order or modification object to the order and request a hearing before the board. The objection must list the specific grounds upon which the person contends that the order should be rescinded or that the penalty should be reduced. The proceedings must be limited to those grounds unless the board, for good cause shown, allows the person to expand the scope of the proceeding. The filing of an objection stays the order. The contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to a hearing conducted under this section.

(9) If the person on whom an order to pay a civil penalty has been served does not file a timely objection and request for hearing pursuant to subsection (8), the department may file an abstract of the order in the office of the clerk of the district court of any county. Upon the request of the department, the order must be docketed in the judgment docket of the district court. A properly filed and docketed order has all the force, effect, and attributes of a docketed order or decree of the district court, including but not limited to lien effect and enforceability by supplemental proceedings.

NEW SECTION. Section 11. Judicial assessment of penalty. (1) The department may seek and a district court may impose civil penalties for violations as follows:

(a) for violations of Title 75, chapter 2, parts 1 through 4, up to $10,000 a day. If the department has notified a person operating a commercial hazardous waste incinerator of a violation and if the department makes a prima facie showing that the conduct or events giving rise to the violations are likely to have continued or recurred past the date of notice, the days of violation are presumed to include the date of the notice and every day after the notice until the person establishes that continuous compliance has been achieved. This presumption may be overcome to the extent that the person operating a commercial hazardous waste incinerator can prove by a preponderance of the evidence that there were intervening days when a violation did not occur, that the violation was not continuing in nature, or that the telemetering device was compromised or otherwise tampered with.

(b) for violations of Title 75, chapter 2, part 5, up to $25,000 a day;

(c) for violations under Title 75, chapter 5, parts 1 through 6, up to $25,000 a day;

(d) for violations under Title 75, chapter 6, part 1, up to $10,000 a day;

(e) for violations under Title 75, chapter 10, part 2, up to $1,000 a day, except that the penalty for violations of 75-10-212 is $5,000 for each violation;

(f) for violations under Title 75, chapter 10, part 4, up to $10,000 a day;

(g) for violations under Title 75, chapter 10, part 5, up to $50 a day;

(h) for violations under Title 75, chapter 10, part 9, up to $25,000 a day;

(i) for violations under Title 75, chapter 11, part 2, up to $10,000 a day. If an installer who is an employee is in violation, the employer of that installer is liable for this penalty unless the violation is the result of a grossly negligent or willful act.

(j) for violations under Title 75, chapter 11, part 5, up to $10,000 a day;

[(k) for violations under [Senate Bill No. 126], up to $500 a day; and]

(l) for violations under Title 75, chapter 20, parts 1 through 4, up to $10,000 a day.

(2) Each day of each violation constitutes a separate violation.

(3) Except as provided in (4), a penalty may not be assessed for any day of violation that occurred more than 3 years prior to the filing of the complaint.

(4) A penalty may be assessed for days of violation that occurred more than 3 years prior to filing of a complaint if before, during, or after the violation, the violator has taken or failed to take an action with intent to prevent the department from discovering the violation.

(5) The amount of penalty to be assessed for a violation may not be more than the maximum penalty contained in subsection (1) and must be derived considering:

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

(b) the duration of the violation as established by any credible evidence, including evidence other than the applicable test method;

(c) the economic benefit of noncompliance;

(d) the violator's compliance history under the regulatory act violated and the violator's good faith efforts to comply;

(e) the violator's ability to pay; and

(f) other matters that justice may require.

(6) An action for civil penalty must be brought in the county in which the alleged violation occurs or is likely to occur or in the first judicial district, Lewis and Clark County.

(7) (a) Except as provided in subsection (7)(b), civil penalties collected pursuant to this section must be deposited in the state general fund.

(b) Civil penalties collected pursuant to the following subsections must be deposited as follows:

(i) penalties collected under subsection (1)(b) must be deposited in the account established in 75-2-508;

(ii) penalties collected under subsection (1)(e) and (1)(h) must be deposited in the account established in 75-10-117;

[(iii) penalties collected under subsection(1)(k) must be deposited in the account established in [Senate Bill No. 126]; and]

(iv) penalties collected under subsection (1)(l) must be deposited in the account established in 75-20-112.

(8) Action under this section does not bar enforcement of a regulatory act by injunction or other appropriate remedy.

NEW SECTION. Section 12. Injunction. (1) The department may commence a civil action seeking injunctive relief to:

(a) enjoin a violation that could be subject to an order under [section 8 or 9];

(b) enjoin the violation of a term or condition of a permit issued by the department under a regulatory act;

(c) enjoin a violation of a rule promulgated under a regulatory act;

(d) compel compliance with an order or requirement issued by the department pursuant to [section 5, 8, or 9] or a regulatory act; or

(e) compel compliance with or a search warrant issued pursuant to [section 6].

(2) The district court has jurisdiction to enjoin the violation, to require compliance, and to order affirmative action that may be reasonably necessary to immediately stop the violation. It may issue a temporary restraining order pending action on a request for injunction.

(3) An action for injunction must be brought in the county in which the alleged violation occurs or is likely to occur or in the first judicial district, Lewis and Clark County.

NEW SECTION. Section 13. Costs and expenses -- recovery by department. In a civil action initiated by the department under [section 11 or 12], the department may ask for and the court is authorized to assess a violator for the costs and expenses of the investigation or monitoring survey that led to the establishment of the violation and any cost or expense incurred by the state in removing, correcting, or terminating any of the adverse effects of the violation.

Section 14. Section 75-2-111, MCA, is amended to read:

"75-2-111. Powers of board. The board shall, subject to the provisions of 75-2-207:

(1) adopt, amend, and repeal rules for the administration, implementation, and enforcement of [sections 1 through 13] and this chapter ;

(2) hold hearings relating to any aspect of or matter in the administration of this chapter at a place designated by the board. The board may compel the attendance of witnesses and the production of evidence at hearings. The board 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.

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

(4) by rule require access to records relating to emissions; and

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

."

Section 15. 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 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 any information and data that the board may require. The board 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 exemption is sought would produce hardship without equal or greater benefits to the public.

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

(3) An exemption or a partial exemption may be renewed if a complaint is not made to the board because of the renewal or if, after the complaint has been made and considered at a public hearing held by the board on due notice, the board finds that renewal is justified. A renewal may not be granted except on an application for renewal of an exemption or a partial exemption. 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. 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 of an exemption or partial exemption is not a right of the applicant or holder of an exemption or partial exemption but may be granted at the discretion of the board. However, a person adversely affected by an exemption, partial exemption, or renewal granted by the board may obtain judicial review of the board's action as provided by Title 2, chapter 4, part 7.

(5) This section and any exemption, partial exemption, or renewal of an exemption or partial exemption 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 that person's property.

(6) A person who owns or is in control of a plant, building, structure, process, or equipment ( facility) who applies to the board 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 that amount 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 must apply 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 16. Section 75-2-402, MCA, is amended to read:

"75-2-402. Emergency procedure. (1) Notwithstanding any other law , 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. Within 24 hours after the commencement of the hearing and without adjournment, the board shall affirm, modify, or set aside the order of the department.

(2) In the absence of a generalized condition such as that referred to 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 [sections 1 through 13]. In this event, the requirements for hearing and affirmance, 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 constitutional provisions or is inherent in the office.

(4) Section 75-2-205 may not be construed to require a hearing before the issuance of an emergency order pursuant to this section."

Section 17. Section 75-2-411, MCA, is amended to read:

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

(a) the 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 the form and filed in the time prescribed by the local control authority .

(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, a party aggrieved by that decision on the rehearing 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 on the presiding officer of the local control authority, and the 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 local control authority, the local control authority shall certify to the district court the entire record and proceedings, including all testimony and evidence taken by the local control authority. 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 order to be served upon the local control authority and the appellant.

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

(4) Either the local control authority 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 local control authority and of the district court's review of that record."

Section 18. Section 75-2-503, MCA, is amended to read:

"75-2-503. Rulemaking authority -- issuance of permits. (1) The department shall, subject to the provisions of 75-2-207, adopt rules establishing standards and procedures for accreditation of asbestos-related occupations and control of the work performed by persons in asbestos-related occupations. The rules must be consistent with federal law and must include but are not limited to:

(a) standards for training course review and approval;

(b) standards for accreditation of applicants for asbestos-related occupations;

(c) examination requirements for accreditation of applicants for asbestos-related occupations;

(d) requirements for renewal of accreditation, including periodic refresher courses;

(e) revocation of accreditation;

(f) inspection requirements for asbestos projects and asbestos-related occupations credentials;

(g) criteria to determine whether and what type of control measures are necessary for an asbestos project and whether a project is completed in a manner sufficient to protect public health, including criteria setting allowable limits on indoor airborne asbestos. A determination of whether asbestos abatement of a structure is necessary may not be based solely upon the results of airborne asbestos testing.

(h) requirements for issuance of asbestos project permits and conditions that permitholders are required to meet;

(i) standards for seeking injunctions, criminal and civil penalties, or emergency actions pursuant to [sections 1 through 13] and this part;

(j) advance notification procedures and issuance of permits for asbestos projects; and

(k) fees, which must be commensurate with costs, for:

(i) review and approval of training courses;

(ii) application for and renewal of accreditation by a person seeking to pursue an asbestos-related occupation;

(iii) issuance of asbestos project permits; and

(iv) requested inspections of asbestos projects.

(2) For asbestos projects having a cost of $3,000 or less, the department shall issue asbestos project permits within 7 calendar days following the receipt of a properly completed permit application and the appropriate fee."

Section 19. Section 75-2-508, MCA, is amended to read:

"75-2-508. Asbestos control account. (1) There is an asbestos control account in the state special revenue fund. There must be deposited in the account all money received from:

(a) fees collected under this part; and

(b) civil penalties collected pursuant to [section 10 or 11].

(2) Funds in the account are allocated to the department for the purpose of funding the costs of implementing and operating the asbestos control program established under this part."

Section 20. Section 75-2-514, MCA, is amended to read:

"75-2-514. Suspension, denial, or revocation of accreditation -- criminal penalties. (1) The department may suspend, deny, or revoke the accreditation of or reprimand a person who:

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

(b) fails to meet the qualifications for accreditation or comply with the requirements of this part or any rule adopted by the department; or

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

(2) Notwithstanding the provisions of any other law, a person who purposely or knowingly violates any provision of this part or a rule or order adopted pursuant to this part is guilty of a misdemeanor.

"

Section 21. Section 75-5-201, MCA, is amended to read:

"75-5-201. Board rules authorized -- fees set. (1) The board shall, subject to the provisions of 75-5-203, adopt rules for the administration of [sections 1 through 13 and this chapter.

(2) The board's rules may include a fee schedule or system for assessment of administrative penalties as provided under [section 10]."

Section 22. 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 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 must be published at least once a week for 3 consecutive weeks in a daily newspaper of general circulation in the area affected. Notice must also be mailed directly to persons the board believes may be affected by the proposed action. The council 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 shall give all interested persons reasonable opportunity to submit data, views, or arguments, orally or in writing. The board 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 the Montana Administrative Procedure Act, Title 2, chapter 4, part 6."

Section 23. Section 75-5-311, MCA, is amended to read:

"75-5-311. Local water quality districts -- board 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 after a hearing conducted under 75-5-202.

(3) In approving a local water quality program, the board 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 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 waste water 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 and [sections 1 through 13]; and

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

(b) Board 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 15.

(7) If the boundaries of a district are changed after the board 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 and obtain the board's 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 report to the board.

(9) If the board 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 shall give notice and conduct a hearing on the matter.

(10) If after the hearing the board 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 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 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 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 24. Section 75-5-401, MCA, is amended to read:

"75-5-401. Board rules for permits -- ground water exclusions. (1) Except as provided in subsection (5), the board shall adopt rules:

(a) governing application for permits to discharge sewage, industrial wastes, or other wastes into state surface waters and ground 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 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 and is not degradation 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.

(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 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 [section 5].

(8) The board 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)."

Section 25. 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 for the purpose of petitioning the board 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 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."

Section 26. Section 75-5-636, MCA, is amended to read:

"75-5-636. Investigation of complaints by other parties. A person, association, corporation, or agency of the state or federal government may notify the department of an alleged violation of this chapter. Based upon information submitted by the person, association, corporation, or agency, the department shall conduct an investigation to determine the validity of the complaint. If a violation is established by the department's investigation, the department shall initiate an appropriate enforcement response . If the investigation proves the protest to have been without reasonable cause, the department may seek recovery of investigative costs from the person who made the notification."

Section 27. Section 75-6-103, MCA, is amended to read:

"75-6-103. Duties of board. (1) The board 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 board shall, subject to the provisions of 75-6-116, 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;

(f) the review of financial viability 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 [sections 1 through 13] and 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; and

(k) any other requirement necessary for the protection of public health as described in this part.

(3) The board may issue orders necessary to fully implement the provisions of this part."

Section 28. Section 75-6-111, MCA, is amended to read:

"75-6-111. Appeal from rule, standard, or order . A person aggrieved by a rule, standard, or order adopted or issued pursuant to this part may appeal to the district court, except as otherwise provided in [sections 1 through 13]. While the appeal is pending, the rule, standard, or order is in force.

"

Section 29. Section 75-10-104, MCA, is amended to read:

"75-10-104. Duties of department. The department shall:

(1) prepare a state solid waste management and resource recovery plan as required by 75-10-807 for submission to the board;

(2) prepare rules necessary for the implementation of [sections 1 through 13] and 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) governing procedures to be followed in applying for and making loans;

(c) governing agreements between a local government and the department for grants or loans under this part;

(d) establishing, for the purpose of determining the solid waste management fee to which a facility is subject under 75-10-118, methods for determining or estimating the amount of solid waste incinerated or disposed of at a facility;

(e) providing procedures for the quarterly collection of the solid waste management fee provided for in 75-10-118; and

(f) providing guidelines for integrated waste management;

(3) provide financial assistance to local governments for front-end planning activities for a proposed solid waste management system that is compatible with the state plan whenever financial assistance is available;

(4) 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 conditionally exempt small quantities of hazardous waste as defined in ARM 16.44.402;

(5) provide front-end organizational loans for the implementation of an approved solid waste management system whenever funds for loans are available;

(6) enforce and administer the provisions of [sections 1 through 13] and this part;

(7) administer loans made by the state under the provisions of this part;

(8) approve plans for a proposed solid waste management system submitted by a local government; and

(9) 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 30. Section 75-10-106, MCA, is amended to read:

"75-10-106. Duties of board. (1) The board shall:

(a) adopt a state solid waste management and resource recovery plan after complying with the procedures outlined in 75-10-111; and

(b) adopt rules necessary for the implementation of this part, including but not limited to rules governing the following:

(i) submission of plans for a solid waste management system;

(ii) the procedures to be followed in applying for and making loans and grants;

(iii) the requirements for eligibility for grants; and

(iv) the agreements between the local government and the department for grants and loans under this part.

(2) The board may adopt rules for the enforcement of this part and the administration of [sections 1 through 13]."

Section 31. Section 75-10-118, MCA, is amended to read:

"75-10-118. Solid waste management fee -- out-of-state waste. (1) Notwithstanding the fee established pursuant to 75-10-204 and except as provided in subsection (2) of this section, a person who owns an incinerator that burns solid waste or a solid waste disposal facility that is licensed pursuant to 75-10-221 and to rules adopted under 75-10-221 shall pay to the department a quarterly fee of $5 for each ton of solid waste generated outside Montana and incinerated or disposed of at the facility.

(2) A person who owns a solid waste disposal facility that is licensed pursuant to 75-10-221 and to rules adopted under 75-10-221 that receives less than 25,000 tons of solid waste annually shall pay the department a quarterly fee, determined by the department pursuant to 75-10-204, for each ton of solid waste generated outside Montana.

(3) All fees must be deposited in the solid waste management account provided for in 75-10-117."

Section 32. Section 75-10-204, MCA, is amended to read:

"75-10-204. Powers and duties of department. (1) The department shall, subject to the provisions of 75-10-107, adopt rules governing solid waste management systems that must include but are not limited to:

(a) requirements for the plan of operation and maintenance that must be submitted with an application under this part;

(b) the classification of disposal sites according to the physical capabilities of the site to contain the type of solid waste to be disposed of;

(c) the procedures to be followed in the disposal, treatment, or transport of solid wastes;

(d) the suitability of the site from a public health standpoint when hydrology, geology, and climatology are considered;

(e) requirements relating to ground water monitoring, including but not limited to:

(i) information that owners and operators of municipal solid waste landfills and other disposal sites specified in 75-10-207 are required to submit to the department to enable the department to prepare the priority compliance list authorized by 75-10-207(3);

(ii) the content of plans for the design, construction, operation, and maintenance of monitoring wells and monitoring systems; and

(iii) recordkeeping and reporting;

(f) fees related to the review of solid waste management system license applications;

(g) the renewal of solid waste management system licenses and related fees;

(h) a quarterly fee based on the justifiable direct and indirect costs to the state of administering Title 75, chapter 10, parts 1 and 2, for solid waste generated outside Montana and disposed of or incinerated within Montana;

(i) requirements to maintain financial assurance payable to the state of Montana with a surety satisfactory to the department in an amount sufficient to provide for waste tire treatment, removal, transportation, disposal, fire suppression, or other measures necessary to protect the environment and the health, safety, and welfare of the public; and

(j) any other factors relating to the sanitary disposal or management of solid wastes.

(2) The department may adopt rules for the enforcement of this part and the administration of [sections 1 through 13]."

Section 33. Section 75-10-206, MCA, is amended to read:

"75-10-206. Variance. (1) Any person may apply to the board for a variance from rules adopted by the department pursuant to 75-10-204, except for rules adopted pursuant to 75-10-204(1)(h). The board 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 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 from the obligation to comply with the Resource Conservation and Recovery Act of 1976, as amended, or as allowing the board to grant a variance less restrictive than that act."

Section 34. Section 75-10-212, MCA, is amended to read:

"75-10-212. Disposal in unauthorized area prohibited -- exception. (1) A person may not dispose of solid waste except as permitted under this part.

(2) It is unlawful to dump or leave any garbage, dead animal, or other debris or refuse:

(a) in or upon any highway, road, street, or alley of this state;

(b) in or upon any public property, highway, street, or alley under the control of the state of Montana or any political subdivision of the state of Montana or any officer or agent or department of the state of Montana;

(c) within 200 yards of a public highway, road, street, or alley or public property;

(d) on privately owned property where hunting, fishing, or other recreation is permitted, provided this subsection may not apply to the owner, the owner's agents, or those disposing of debris or refuse with the owner's consent.

(3) Any person in violation of this section is absolutely liable, as provided in 45-2-104 ."

Section 35. Section 75-10-231, MCA, is amended to read:

"75-10-231. Actions. Upon request of the department, the appropriate county attorney may initiate and maintain in district court an action to enjoin the operation of a solid waste management system that is in violation of this part or a rule adopted by the department or order issued as provided in this part."

Section 36. Section 75-10-232, MCA, is amended to read:

"75-10-232. Penalty for violations. (1) A person violating this part or regulations prescribed by the department under this part, except 75-10-212(2), is guilty of a misdemeanor and upon conviction shall be fined not less than $50 or more than $500.

(2) Each day upon which a violation occurs is a separate violation.

(3) Fines collected under this section must be deposited in the solid waste management account provided for in 75-10-117."

Section 37. Section 75-10-233, MCA, is amended to read:

"75-10-233. Dumping penalty -- enforcement. (1) A person found guilty of a violation of 75-10-212 shall be fined an amount not exceeding $100 or be imprisoned in the county jail for a period not exceeding 30 days or be punished by both fine and imprisonment, in the discretion of the court.

(2)

The provisions of 75-10-212 must be enforced by all highway patrol officers, sheriffs, police officers, and all other enforcement agencies and officers of the state of Montana. In addition, game wardens have the right to enforce the provisions of 75-10-212 on public property and on private property where public recreation is permitted.

(3) Fines collected under this section must be deposited in the solid waste management account provided for in 75-10-117."

Section 38. Section 75-10-405, MCA, is amended to read:

"75-10-405. Administrative rules. (1) The department may, subject to the provisions of 75-10-107, adopt, amend, or repeal rules governing hazardous waste and used oil, including but not limited to the following:

(a) identification and classification of those hazardous wastes subject to regulation and those that are not;

(b) requirements for the proper treatment, storage, transportation, and disposal of hazardous waste;

(c) requirements for siting, design, operation, maintenance, monitoring, inspection, closure, postclosure, and reclamation of hazardous waste management facilities;

(d) requirements for the issuance, denial, reissuance, modification, and revocation of permits for hazardous waste management facilities;

(e) requirements for corrective action within and outside facility boundaries and for financial assurance of that corrective action;

(f) requirements for manifests and the manifest system for tracking hazardous waste and for reporting and recordkeeping by generators, transporters, and owners and operators of hazardous waste management facilities;

(g) requirements for training of facility personnel, for financial assurance of facility owners and operators, and for liability of guarantors providing financial assurance;

(h) requirements for registration of generators and transporters;

(i) establishing a schedule of fees and procedures for the collection of fees for:

(i) the filing and review of hazardous waste management facility permits as provided in 75-10-432;

(ii) hazardous waste management as provided in 75-10-433;

(iii) the reissuance and modification of hazardous waste management facility permits; and

(iv) the registration of hazardous waste generators;

(j) a schedule of fees to defray a portion of the costs of establishing, operating, and maintaining any state hazardous waste management facility authorized by 75-10-412;

(k) requirements for availability to the public of information obtained by the department regarding facilities and sites used for the treatment, storage, and disposal of hazardous wastes;

(l) procedures for the enforcement of this part and the administration of [sections 1 through 13];

(m) identification and classification of used oil that is subject to regulation and used oil that is not subject to regulation;

(n) requirements for the proper management of used oil; and

(o) other rules that are necessary to obtain and maintain authorization under the federal program.

(2) Notwithstanding the provisions of 75-10-107, the department may not adopt rules under this part that are more restrictive than those promulgated by the federal government under the Resource Conservation and Recovery Act of 1976, as amended, except that the department:

(a) may require the registration of transporters not otherwise required to register with the state of Montana pursuant to the federal Resource Conservation and Recovery Act of 1976, as amended;

(b) may require hazardous waste generators and hazardous waste management facilities to report on an annual rather than on a biennial basis;

(c) may adopt regulatory requirements for hazardous waste transfer facilities;

(d) shall require the owner or manager of any proposed commercial facility for the storage, collection, or transfer of hazardous waste to conduct a public hearing, as provided for in 75-10-441; and

(e) may adopt rules and performance standards for industrial furnaces and boilers that burn hazardous wastes. The rules and performance standards:

(i) may be adopted if there are no federal regulations; or

(ii) may be more restrictive than federal regulations."

Section 39. 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 waste or who owns or operates a hazardous waste management facility may apply to the board 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 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 waste 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) A variance or partial variance may not be granted except after public hearing on due notice and until the board has considered the relative interests of the applicant, other persons specifically affected, and the general public.

(3) A variance or partial variance may not be granted for a period to exceed 1 year, but the variance or partial variance may be renewed for like periods if a complaint is not made to the board because of the variance or if, after the complaint has been made and considered at a public hearing held by the board on due notice, the board finds that renewal is justified. A renewal may not be granted except on application for renewal. An application for renewal must be made in the manner and upon notice as specified in rules adopted under this part. 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) A variance, partial variance, or renewal of a variance or partial variance is not a right of the applicant or holder of the variance or partial variance but must be granted at the discretion of the board. However, a person adversely affected by a variance, partial variance, or renewal granted by the board may obtain judicial review of the board's action as provided by the judicial review of contested case provisions of the Montana Administrative Procedure Act.

(5) This section and any variance, partial variance, or renewal granted pursuant to this section may not be construed to prevent or limit the application of the emergency provisions and procedures of [section 8].

(6) A variance may not be granted by the board if the variance 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 40. Section 75-10-541, MCA, is amended to read:

"75-10-541. Injunction -- action to collect civil penalty -- authority of department of justice. (1)

Upon request of the department, the attorney general or the county attorney of the county in which a motor vehicle wrecking facility or graveyard is located may petition the district court to enjoin further operation or maintenance of a motor vehicle wrecking facility or graveyard or to impose, assess, and recover a civil penalty, as appropriate.

(2) The department of justice, through the attorney general or the county attorney of the county in which a facility is located, may sue in district court to collect a civil penalty of not more than $50 for a violation of this part, a rule adopted pursuant to this part, or an order issued under this part if the violation is discovered during a department of justice inspection."

Section 41. Section 75-10-542, MCA, is amended to read:

"75-10-542. Criminal penalties. A person who willfully violates this part, except 75-10-520, is guilty of a misdemeanor and upon conviction shall be fined not to exceed $250, imprisoned in the county jail for a term not to exceed 30 days, or both.

"

Section 42. Section 75-10-907, MCA, is amended to read:

"75-10-907. Adoption of rules by department. The department may adopt rules:

(1) implementing the licensing provisions of 75-10-901 through 75-10-945, including rules regarding the contents of the application, monitoring, and other components of the license and licensing process that the department considers necessary; and

(2) providing for the enforcement of this part and the administration of [sections 1 through 13]."

Section 43. Section 75-10-943, MCA, is amended to read:

"75-10-943. Penalties for violation -- civil action by attorney general. (1) A person who knowingly commences to construct or operate a megalandfill without obtaining a certificate required under 75-10-916 and a license required under 75-10-933, who constructs, operates, or maintains a facility other than in compliance with the certificate or violates any other provision of 75-10-901 through 75-10-945 or any rule or order adopted under 75-10-901 through 75-10-945, or who knowingly submits false information in any report, long-range plan, or application required by 75-10-901 through 75-10-945

may be fined not more than $25,000 for each violation or be imprisoned for not more than 1 year, or both. Each day of a continuing violation constitutes a separate offense.

(2) All fines collected must be deposited in the solid waste management account for the use of the department in administering 75-10-901 through 75-10-945."

Section 44. Section 75-11-204, MCA, is amended to read:

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

(1) the requirements for issuance, denial, renewal, modification, suspension, and revocation of permits for the installation and closure of underground storage tank systems pursuant to this part and for enforcement of this part pursuant to [sections 1 through 13];

(2) the requirements for issuance, denial, renewal, modification, suspension, and revocation of licenses for underground storage tank system installers;

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

(4) the requirements for qualifications of inspectors, use of inspectors, and methods for conducting an inspection;

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

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

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

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

Section 45. 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) standards for design, construction, installation, and closure;

(5) development of a schedule of fees, not to exceed $50 for a tank over 1,100 gallons and not to exceed $20 for a tank 1,100 gallons or less, per tank, for tank notification and permits to defray state and local costs of implementing an underground storage tank program;

(6) procedures for enforcement of this part pursuant to [sections 1 through 13]; and

(7) 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 46. Section 75-20-204, MCA, is amended to read:

"75-20-204. Facilities subject to federal energy regulatory commission jurisdiction. (1) For a facility that is subject to the jurisdiction of the federal energy regulatory commission, the department shall file a state recommendation with the commission.

(2) A person making application to the federal energy regulatory commission shall file with the department notice of and a copy of the federal application regarding any facility subject to subsection (1). The state recommendation must be based on its study of the federal application and other material gained through intervention in the federal proceeding.

(3) A person subject to the provisions of subsection (2) shall pay a fee to the department at the time that an application is filed with the federal energy regulatory commission. The fee must be used by the department to carry out its responsibilities to develop a state recommendation and participate as a party in any necessary federal proceeding to assert the state recommendation. The fee may not exceed one-half the amount that could be assessed under 75-20-215. A fee prescribed by 75-20-215 may not be assessed against a person paying a fee under this section.

(4) A person who fails to file a timely notice of and a copy of the federal application with the department, preventing the department from timely compliance with this section and with the rules, statutes, or procedures governing the proceedings before the federal energy regulatory commission, is subject to the provisions of 75-20-408 and [sections 11 and 12]."

Section 47. 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, 75-20-408, and [sections 12 and 13], a court of this state does not have jurisdiction to hear or determine any issue, case, or controversy concerning any matter that was or could have been determined in a proceeding before the board 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 under this part pursuant to 75-20-404 and 75-20-405 ."

Section 48. Section 75-20-408, MCA, is amended to read:

"75-20-408. Penalties for violation of chapter -- civil action by attorney general. (1) A person who knowingly and willfully commences to construct or operate a facility without first obtaining a certificate required under 75-20-201 or a waiver of that certificate under 75-20-304(2), who without having first obtained a certificate, constructs, operates, or maintains a facility other than in compliance with the certificate or violates any other provision of this chapter or any rule or order adopted under this chapter, who knowingly and willfully submits false information in any report, 10-year plan, or application required by this chapter or rule or order adopted under this chapter, or who causes any of those acts to occur

may be fined not more than $10,000 for each violation or be imprisoned for not more than 1 year, or both. Each day of a continuing violation constitutes a separate offense.

(2) All fines collected must be deposited in the state special revenue fund for the use of the department in administering this chapter."

Section 49. 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 words or phrases have the following meanings:

(1) "Board" means the board of environmental review.

(2) "Department" means the department of environmental quality.

(3) "Extension of public sewage disposal system" means a sewer line that connects two or more sewer service lines to a sewer main.

(4) "Extension of public water supply system" means a water line that connects two or more water service lines to a water main.

(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.

(6) "Public water supply system" or "public sewage disposal system" means, respectively, a water supply or sewage disposal system that serves 10 or more families or 25 or more persons for at least 60 days out of the calendar year.

(7) "Registered professional engineer" means a person licensed to practice as a professional engineer under Title 37, chapter 67.

(8) "Registered sanitarian" means a person licensed to practice as a sanitarian under Title 37, chapter 40.

(9) "Reviewing authority" means the department or a local department or board of health certified to conduct a review under 76-4-104.

(10) "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.

(11) "Sewer service line" means a sewer line that connects a single building or living unit to a public sewer system or extension of a system.

(12) "Solid wastes" means all putrescible and nonputrescible solid wastes (except body wastes), including garbage, rubbish, street cleanings, dead animals, yard clippings, and solid market and solid industrial wastes.

(13) "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.

(14) "Violation" means a breach of a condition, limitation, standard, or other requirement established pursuant to this part or any rule, order, or term or condition of approval made or issued under this part.

(15) "Water service line" means a water line that connects a single building or living unit to a public water system or extension of a system."

NEW SECTION. Section 50. Informal procedures. [Sections 51 through 56] do not prevent the department from making efforts to obtain compliance with this part through warning, conference, or any other appropriate means. Whenever appropriate, the department may engage in informal meetings, discussions, mediation, or other voluntary methods to obtain compliance or to resolve a violation.

NEW SECTION. Section 51. Search warrants. (1) The department or an authorized representative may apply to a judge authorized to issue a search warrant for a warrant to enter property or premises and to inspect the property or premises, examine documents, and seize evidence if:

(a) the department has authority to enter and inspect under 76-4-107; and

(b) (i) the person in control of the property or premises obstructs, hampers, or interferes with an inspection;

(ii) the department made reasonable efforts to obtain consent to entry and has been unable to obtain consent; or

(iii) the department demonstrates a reasonable possibility that entry or inspection would be refused and that concealment or destruction of evidence could occur.

(2) The application for a search warrant must be made under oath and must:

(a) state facts sufficient to show that reasonable grounds exist for administrative search and inspection of the property or premises to be searched;

(b) particularly describe the property or premises to be searched;

(c) particularly describe the things to be seized; and

(d) state facts demonstrating that one of the circumstances in subsection (1)(b) exists.

(3) A search warrant under this section may be issued by a city or municipal court judge or justice of the peace within the judge's geographical jurisdiction or any district court judge within this state.

NEW SECTION. Section 52. Notice of violation. (1)	Whenever the department has reason to believe that a person has committed a violation, it may serve notice of the violation personally or by certified mail on the alleged violator or the violator's agent. Service by mail is complete on the date of mailing. The notice must be in writing and be signed by an authorized representative of the department. The notice must:

(a) state with reasonable specificity the provision of this part or the rule, order, or approval provision alleged to have been violated;

(b) describe the facts alleged to constitute a violation; and

(c) if the notice contains an order pursuant to [section 53 or 54], notify the recipient of the opportunity for an administrative hearing or judicial review.

(2) In addition to issuing a notice pursuant to subsection (1), the department may make an order pursuant to [section 53 or 54].

(3) The department may vacate a notice of violation or an order if it determines that a violation did not occur. The department may modify an order if it determines that modification is necessary to protect public health, safety, or welfare or the environment. The department may terminate an order if it determines that the order has been complied with or that the order is no longer necessary.

(4) Action under this section does not bar enforcement of this part by judicial means.

NEW SECTION. Section 53. Emergency order. (1) The department may issue an emergency order whenever it finds that:

(a) a person is engaging in or is reasonably expected to engage in an activity that constitutes a violation; and

(b) (i) if the activity occurs or continues, the activity will create an imminent danger to the health, safety, or welfare of the public or will cause or can reasonably be expected to cause significant and imminent environmental harm to land, air, or water resources; and

(ii) issuance of an order under [section 54] would not provide a reasonable and timely remedy.

(2) An emergency order must require the person to stop, avoid, or moderate the activity as soon as possible. If the department finds that ordering the person to stop, avoid, or moderate the activity will not sufficiently prevent the violation and avoid the danger or harm, the department may impose affirmative obligations requiring any steps that the department considers necessary.

(3) Except as provided in this section, the order must conform to the requirements and procedures of [section 52].

(4) An emergency order may continue only for as long as necessary to carry out the provisions of this section and must expire upon the completion of any process undertaken pursuant to [section 54 or 55] to abate substantially the same violation, or within 90 days of issuance, whichever occurs first.

(5) The department may amend an emergency order or issue additional emergency orders if necessary.

(6) Upon issuing an emergency order, the department shall fix a place and time for an expeditious hearing before the department. The order is not stayed pending the hearing. The hearing is not subject to the contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6. At the hearing, the department shall make its information and personnel available for examination, consultation, and questioning by the alleged violator and shall allow the alleged violator to submit evidence and argument. As soon as practicable after the hearing, the department shall affirm, modify, or set aside the order.

(7) An appeal of an order issued under this section may be taken to the district court of the county in which the alleged violation occurred or is occurring or to the district court of the first judicial district, Lewis and Clark County. The appeal may be taken before or after the hearing provided in subsection (6).

NEW SECTION. Section 54. Compliance order. (1) A person committing a violation may be served with a compliance order issued by the department ordering cessation of the violation, source, or activity or of a portion of the source or activity. If the department finds that ordering cessation of the violation, source, or activity or portion of the source or activity will not completely abate the violation, the department may in addition impose affirmative obligations requiring cleanup and any other steps that the department considers necessary to abate the violation.

(2) An order issued under this section must conform to the requirements and procedures of [section 52] and must set forth with reasonable specificity the remedial action required, the period of time established for completion of the action, and a reasonable description of the portion of the source or activity to which the notice or order applies. In establishing a time for completion, the department shall take into account the seriousness of the violation, and other applicable legal requirements.

(3) An appeal of an order issued under this section may be taken by any aggrieved party to the district court of the county in which the alleged violation occurred or is occurring or to the district court of the first judicial district, Lewis and Clark County. The court may, for good cause, stay the department's order pending the court's review. The court shall conduct a de novo review. The burden of proof is on the person on whom the order was served. The court may:

(a) rescind the order if it finds that the violation did not occur or that the order will not abate the violation;

(b) modify the order if the court finds that the violation can be abated by other means; or

(c) terminate the order if the court finds that the violation has been abated.

NEW SECTION. Section 55. Injunction. (1) The department may commence a civil action seeking injunctive relief to:

(a) enjoin a violation that could be subject to an order under [section 53 or 54];

(b) enjoin the violation of a term or condition of an approval issued by the department;

(c) enjoin a violation of any rule promulgated under this part;

(d) compel compliance with an order or requirement issued by the department pursuant to [section 53], [section 54], or 76-4-107; or

(e) compel compliance with a search warrant issued pursuant to [section 51].

(2) The district court has jurisdiction to enjoin the violation, to require compliance, and to order affirmative action that may be reasonably necessary to immediately stop the violation. It may issue a temporary restraining order pending action on a request for injunction.

NEW SECTION. Section 56. Costs and expenses -- recovery by reviewing authority. In a civil action initiated by the department under 76-4-109, the department may ask for and the court is authorized to assess a violator for the costs and expenses of the investigation or monitoring survey that led to the establishment of the violation and any cost or expense incurred by the state in removing, correcting, or terminating any of the adverse effects of the violation.

Section 57. Section 76-4-109, MCA, is amended to read:

"76-4-109. Penalties. (1) A person violating any provision of this part, except 76-4-122(1), or any rule or order issued under this part is guilty of an offense and subject to a fine of not to exceed $1,000.

(2) In addition to the fine specified in subsection (1), a person who violates any provision of this part or any rule or order issued under this part is subject to a civil penalty not to exceed $1,000. Each day of violation constitutes a separate violation. The amount of civil penalty to be assessed for a particular violation must be determined considering;

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

(b) the duration of the violation as established by any credible evidence, including evidence other than the applicable test method;

(c) the economic benefit of noncompliance;

(d) the alleged violator's compliance history under this part and the violator's good faith efforts to comply;

(e) the alleged violator's ability to pay; and

(f) other matters that justice may require.

(3) Except as provided in subsection (4), a penalty may not be assessed for any day of violation that occurred more than 3 years prior to the issuance of an initial notice by the department under [section 52].

(4) A penalty may be assessed for days of violation that occurred more than 3 years prior to the issuance of an initial notice by the department under [section 52] if before, after, or during the violation, the violator took or failed to take action with intent to prevent the department from discovering the violation.

(5) Penalties imposed under subsection (1) or (2) do not bar enforcement of this part or rules or orders issued under it by injunction or other appropriate remedy.

(6) The purpose of this section is to provide additional and cumulative remedies."

NEW SECTION. Section 58. Short title. [Sections 58 through 69] may be cited as "The Uniform Hard-Rock and Opencut Mining Enforcement Act".

NEW SECTION. Section 59. Definitions. Unless the regulatory act applicable to a violation, or the context, requires otherwise, the following definitions apply to [sections 58 through 69]:

(1) "Activity" means:

(a) any act or conduct that is subject to regulation or permitting under a regulatory act;

(b) any act, conduct, or failure to act in which monitoring takes place or samples are gathered, processed, or stored for the purposes of implementing or complying with a regulatory act or any rule, order, or permit made or issued under a regulatory act.

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

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

(4) "Permit" means any permit, license, approval, or other authorization granted by the department or the board that is required by a regulatory act in order to engage in an activity.

(5) "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.

(6) "Record" means any document, data, or other recorded information that is kept by a person for purposes of compliance with a regulatory act or any rule, requirement, order, or permit made or issued under a regulatory act or [sections 58 through 69].

(7) "Regulatory act" means:

(a) Title 82, chapter 4, part 3; or

(b) Title 82, chapter 4, part 4.

(8) "Source" means a conveyance, release, or discharge of any effluent, pollutant, or other substance as referred to in a regulatory act and the construction or installation of any thing or device that will constitute a source upon completion or activation.

(9) "Violation" means a breach of a condition, limitation, standard, or other requirement established pursuant to a regulatory act or [sections 58 through 69], except [section 62(1)], or any rule, order, or permit made or issued under a regulatory act or [sections 58 through 69].

NEW SECTION. Section 60. Informal procedures. [Sections 58 through 69] do not prevent the department from making efforts to obtain compliance with a regulatory act through warning, conference, or any other appropriate means. Whenever appropriate, the department may engage in informal meetings, discussions, mediation, or other voluntary methods to obtain compliance or to resolve a violation.

NEW SECTION. Section 61. Inspection. (1) The department or an authorized representative, for the purpose of ascertaining the state of compliance with a regulatory act, the rules adopted pursuant to a regulatory act, [sections 58 through 69], or any permit or order issued pursuant to a regulatory act or [sections 58 through 69] may enter and inspect, at any reasonable time, any property or premises on or at which there exists any activity, source, or record regulated under a regulatory act.

(2) The authorized representative of the department shall present appropriate credentials when the authorized representative requests entry for purposes of inspection under this section.

(3) The department or an authorized representative may observe, sample, or monitor, at reasonable times, substances or parameters for the purpose of ensuring compliance with the provisions of a regulatory act or a rule adopted pursuant to a regulatory act, a permit issued pursuant to a regulatory act, or an order issued under [sections 58 through 69] or a regulatory act.

(4) The owner or operator of the source, activity, or record shall inform the inspector of all applicable workplace safety rules or requirements at the time of the inspection.

NEW SECTION. Section 62. Power to require information and monitoring. (1) To carry out the objectives of a regulatory act and to monitor and demonstrate compliance with that act, with the rules or permit conditions adopted under the regulatory act, or with an order of the board or department issued pursuant to [sections 58 through 69] or a regulatory act, the department may require a person that the department reasonably believes may have committed or is committing a violation to:

(a) establish and maintain records;

(b) make reports, including giving notice to the department of any noncompliance with permit conditions, rules adopted under the regulatory act, or any orders of the department or board adopted under [sections 58 through 69] or a regulatory act;

(c) install, use, and maintain monitoring equipment or methods, including biological monitoring techniques;

(d) sample pollutants or effluents using specified monitoring methods at designated locations and intervals; and

(e) provide other information that may be reasonably required by the department monitor compliance with a regulatory act or [sections 58 through 69].

(2) If the department determines that a source or activity may present a hazard to public health or to the environment, it may issue an order requiring the owner or operator of the source or activity to provide information, conduct monitoring pursuant to subsection (1), or both, to ascertain the nature and extent of the hazard.

NEW SECTION. Section 63. Search warrants. (1) The department or an authorized representative may apply to a judge authorized to issue a search warrant for a warrant to enter property or premises and to inspect the property or premises, examine documents, and seize evidence if:

(a) the department has authority to enter and inspect under [section 61]; and

(b) (i) the person in control of the property or premises obstructs, hampers, or interferes with an inspection;

(ii) the department made reasonable efforts to obtain consent to entry and has been unable to obtain consent; or

(iii) the department demonstrates a reasonable possibility that entry or inspection would be refused and that concealment or destruction of evidence could occur.

(2) The application for a search warrant must be made under oath and must:

(a) state facts sufficient to show that reasonable grounds exist for administrative search and inspection of the property or premises to be searched;

(b) particularly describe the property or premises to be searched;

(c) particularly describe the things to be seized; and

(d) state facts demonstrating that one of the circumstances in subsection (1)(b) exists.

(3) A search warrant under this section may be issued by a city or municipal court judge or justice of the peace within the judge's geographical jurisdiction or any district court judge within this state.

NEW SECTION. Section 64. Notice of violation. (1) Whenever the department has reason to believe that a person has committed a violation, it may serve notice of the violation personally or by certified mail on the alleged violator or the violator's agent. Service by mail is complete on the date of mailing. The notice must be in writing and must be signed by an authorized representative of the department. The notice must:

(a) state with reasonable specificity the provision of the regulatory act, rule, order, permit provision, or other requirement alleged to have been violated;

(b) describe the facts alleged to constitute a violation; and

(c) if the notice contains an order pursuant to [section 65, 66, or 67], notify the recipient of the opportunity for hearing.

(2) In addition to issuing a notice pursuant to subsection (1), the department may make an order pursuant to [section 65, 66, or 67].

(3) The department may vacate a notice of violation or an order if it determines that a violation did not occur. The department may modify an order if it determines that modification is necessary to protect public health, safety, or welfare or the environment. The department may terminate an order if it determines that the order has been complied with or that the order is no longer necessary.

(4) Action under this section does not bar enforcement of a regulatory act by judicial means.

NEW SECTION. Section 65. Emergency order. (1) The department may issue an emergency order whenever it finds that:

(a) a person is engaging in or is reasonably expected to engage in an activity that constitutes a violation; and

(b) (i) if the activity occurs or continues, the activity will create an imminent danger to the health, safety, or welfare of the public or will cause or can reasonably be expected to cause significant and imminent environmental harm to land, air, or water resources; and

(ii) issuance of an order under [section 66] would not provide a reasonable and timely remedy.

(2) An emergency order must require the person to stop, avoid, or moderate the activity as soon as possible. If the department finds that ordering the person to stop, avoid, or moderate the activity will not sufficiently prevent the violation and avoid the danger or harm, the department may impose affirmative obligations requiring any steps that the department considers necessary.

(3) Except as provided in this section, the order must conform to the requirements and procedures of [section 64].

(4) An emergency order may continue only for as long as necessary and must expire upon the completion of any process undertaken pursuant to [section 66 or 68] to abate substantially the same violation, or within 90 days of issuance, whichever occurs first.

(5) The department may amend an emergency order or issue additional emergency orders if necessary.

(6) Upon issuing an emergency order, the department shall fix a place and time for an expeditious hearing before the department. The order is not stayed pending the hearing. The hearing is not subject to the contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6. At the hearing, the department shall make its information and personnel available for examination, consultation, and questioning by the alleged violator and shall allow the alleged violator to submit evidence and argument. As soon as practicable after the hearing, the department shall affirm, modify, or set aside the order.

(7) An appeal of an order issued under this section may be taken to the district court of the county in which the alleged violation occurred or is occurring or to the district court of the first judicial district, Lewis and Clark County. The appeal may be taken before or after the hearing provided in subsection (6).

NEW SECTION. Section 66. Compliance order. (1) A person committing a violation may be served with a compliance order issued by the department ordering cessation of the violation, source, or activity or of a portion of the source or activity. If the department finds that ordering cessation of the violation, source, or activity or portion of the source or activity will not completely abate the violation, the department may in addition impose affirmative obligations requiring cleanup and any other steps that the department considers necessary to abate the violation.

(2) An order issued under this section must conform to the requirements and procedures of [section 64] and must set forth with reasonable specificity the remedial action required, the period of time established for completion of the action, and a reasonable description of the portion of the source or activity to which the notice or order applies. In establishing a time for completion, the department shall take into account the seriousness of the violation and other applicable legal requirements.

(3) An appeal of an order issued under this section may be taken by any aggrieved party to the district court of the county in which the alleged violation occurred or is occurring or to the district court of the first judicial district, Lewis and Clark County. The court may, for good cause, stay the department's order pending the court's review. The court shall conduct a de novo review. The burden of proof is on the person on whom the order was served. The court may:

(a) rescind the order if it finds that the violation did not occur or that the order will not abate the violation;

(b) modify the order if the court finds that the violation can be abated by other means; or

(c) terminate the order if the court finds that the violation has been abated.

NEW SECTION. Section 67. Administrative penalty order. (1) A notice issued to a person under [section 64] may include an order to pay a civil penalty as follows:

(a) for violations under Title 82, chapter 4, part 3, up to $5,000 a day for a violation that creates an imminent danger to the public health or safety or that causes significant environmental harm and up to $1,000 a day for other violations;

(b) for violations under Title 82, chapter 4, part 4, up to $1,000 a day.

(2) Each day of each violation constitutes a separate violation.

(3) Except as provided in subsection (4), a penalty may not be assessed for any day of violation that occurred more than 3 years prior to the issuance of an initial notice by the department under [section 64].

(4) A penalty may be assessed for days of violation that occurred more than 3 years prior to the issuance of an initial notice by the department under [section 64] if before, during, or after the violation, the violator took or failed to take action with the intent to prevent the department from discovering the violation.

(5) The amount of penalty to be assessed for a violation may not be more than the maximum penalty contained in subsection (1) and must be derived considering:

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

(b) the duration of the violation as established by any credible evidence, including evidence other than the applicable test method;

(c) the economic benefit of noncompliance;

(d) the violator's compliance history under the regulatory act violated and the violator's good faith efforts to comply;

(e) the violator's ability to pay; and

(f) other matters that justice may require.

(6) Penalties collected for violation of Title 82, chapter 4, part 3, must be deposited in the account established in 82-4-311. Penalties collected for violation of Title 82, chapter 4, part 4, must be deposited in the account established in 82-4-424.

(7) Action under this section does not bar enforcement of a regulatory act by injunction or other appropriate remedy.

(8) A person who has been issued an order pursuant to this section or a modification of that order may within 30 days after service of the order or modification object to the order and request a hearing before the board. The objection must list the specific grounds upon which the person contends that the order should be rescinded or that the penalty should be reduced. The proceedings must be limited to those grounds unless the board, for good cause shown, allows the person to expand the scope of the proceeding. The filing of an objection stays the order. The contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to a hearing conducted under this section.

(9) If the person on whom an order to pay a civil penalty has been served does not file a timely objection and request for hearing pursuant to [section 69], the department may file an abstract of the order in the office of the clerk of the district court of any county. Upon the request of the department, the order must be docketed in the judgment docket of the district court. A properly filed and docketed order has all the force, effect, and attributes of a docketed order or decree of the district court, including but not limited to lien effect and enforceability by supplemental proceedings.

NEW SECTION. Section 68. Injunction. (1) The department may commence a civil action seeking injunctive relief to:

(a) enjoin a violation that would be subject to an order under [section 65 or 66];

(b) enjoin the violation of a term or condition of a permit issued by the department under a regulatory act;

(c) enjoin a violation of a rule promulgated under a regulatory act;

(d) compel compliance with an order or requirement issued by the department pursuant to [section 62, 65, or 66] or a regulatory act; or

(e) compel compliance with a search warrant issued pursuant to [section 63].

(2) The district court has jurisdiction to enjoin the violation, to require compliance, and to order affirmative action that may be reasonably necessary to immediately stop the violation. It may issue a temporary restraining order pending action on a request for injunction.

(3) An action for injunction must be brought in the county in which the alleged violation occurs or is likely to occur or in the first judicial district, Lewis and Clark County.

NEW SECTION. Section 69. Costs and expenses -- recovery by department. In a civil action initiated by the department under [section 68], the department may ask for and the court is authorized to assess a violator for the costs and expenses of the investigation or monitoring survey that led to the establishment of the violation and any cost or expense incurred by the state in removing, correcting, or terminating any of the adverse effects of the violation.

Section 70. Section 82-4-305, MCA, is amended to read:

"82-4-305. Exemption -- small miners -- written agreement. (1) Except as provided in subsections (3) through (9), the provisions of this part do not apply to a small miner if the small miner annually agrees in writing:

(a) that the small miner will not pollute or contaminate any stream;

(b) that the small miner will provide protection for human and animal life through the installation of bulkheads installed over safety collars and the installation of doors on tunnel portals;

(c) that the small miner will provide a map locating the miner's mining operations. The map must be of a size and scale determined by the department.

(d) if the small miner's operations are placer or dredge mining, that the small miner shall salvage and protect all soil materials for use in reclamation of that site and shall reclaim all land disturbed by the operations to comparable utility and stability as that of adjacent areas.

(2) For small-miner exemptions obtained after September 30, 1985, a small miner may not obtain or continue an exemption under subsection (1) unless the small miner annually certifies in writing:

(a) if the small miner is an individual, that:

(i) none of the business associations or partnerships of which the small miner is a member or partner have a small-miner exemption; and

(ii) none of the corporations of which the small miner is an officer, director, or owner of record of 25% or more of any class of voting stock have a small-miner exemption; or

(b) if the small miner is a partnership or business association, that:

(i) none of the associates or partners holds a small-miner exemption; and

(ii) none of the associates or partners is an officer, director, or owner of 25% or more of any class of voting stock of a corporation that has a small-miner exemption; or

(c) if the small miner is a corporation, that no officer, director, or owner of record of 25% or more of any class of voting stock of the corporation:

(i) holds a small-miner exemption;

(ii) is a member or partner in a business association or partnership that holds a small-miner exemption;

(iii) is an officer, director, or owner of record of 25% or more of any class of voting stock of another corporation that holds a small-miner exemption.

(3) A small miner whose operations are placer or dredge mining shall post a performance bond equal to the state's documented cost estimate of reclaiming the disturbed land, although the bond may not exceed $10,000 for each operation. If the small miner has posted a bond for reclamation with another government agency, the small miner is exempt from the requirement of this subsection.

(4) If a small miner who conducts a placer or dredge mining operation fails to reclaim the operation, the small miner is liable to the department for all its reasonable costs of reclamation, including a reasonable charge for services performed by state personnel and for state materials and equipment used. If the small miner posts a surety bond, the surety is liable to the state to the extent of the bond amount and the small miner is liable for the remainder of the reasonable costs to the state of reclaiming the operation.

(5) If a small miner who conducts a placer or dredge mining operation fails to commence reclamation of the operation within 6 months after cessation of mining or within an extended period allowed by the department for good cause shown or if the small miner fails to diligently complete reclamation, the department shall notify the small miner by certified mail that it intends to reclaim the operation unless the small miner commences reclamation within 30 days and diligently completes the reclamation. The notice must be mailed to the address stated on the small miner exclusion statement or, if the small miner has notified the department of a different address by letter or in the annual certification form, to the most recent address given to the department. If the small miner fails to commence reclamation within 30 days or to diligently complete reclamation, the department may revoke the small miner exclusion statement, forfeit any bond that has been posted with the department, and enter and reclaim the operation. If the small miner has not posted a bond with the department or if the reasonable costs of reclamation exceed the amount of the bond, the department may also collect additional reclamation costs, as set forth in subsection (6), before or after it incurs those costs.

(6) To collect additional reclamation costs, the department shall notify the small miner by certified mail, at the address determined under subsection (5), of the additional reasonable reclamation costs and request payment within 30 days. If the small miner does not pay the additional reclamation costs within 30 days, the department may bring an action in district court for payment of the estimated future costs and, if the department has performed any reclamation, of its reasonable actual costs. The court shall order payment of costs that it determines to be reasonable and shall retain jurisdiction until reclamation of the operation is completed. Upon completion of reclamation, the court shall order payment of any additional costs that it considers reasonable or the refund of any portion of any payment for estimated costs that exceeds the actual reasonable costs incurred by the department.

(7) A small miner who intends to use a cyanide ore-processing reagent shall obtain an operating permit for that part of the small miner's operation in which the cyanide ore-processing reagent will be used or disposed of. The acreage disturbed by the cyanide ore-processing operation and covered by the operating permit is excluded from the 5-acre limit specified in 82-4-303(15)(a)(i) and (15)(a)(ii).

(8) The exemption provided in this section does not apply to a person:

(a) whose failure to comply with the provisions of this part, the rules adopted under this part, or a permit or license issued under this part has resulted in the forfeiture of a bond, unless that person meets the conditions described under 82-4-360;

(b) who has not paid a penalty that has been assessed pursuant to [section 67] and for which appeal has been waived, forfeited, or determined against the violator;

(c) who has failed to post a reclamation bond required by this section, unless the department has certified that the area for which the bond should have been posted has been reclaimed by that person or reclaimed by the department and the person has reimbursed the department for the cost of the reclamation; or

(d) who has failed to comply with an abatement order issued pursuant to [section 65 or 66], unless the department has completed the abatement and the person has reimbursed the department for the cost of abatement.

(9) The exemption provided in this section does not apply to an area:

(a) under permit pursuant to 82-4-335;

(b) that has been permitted pursuant to 82-4-335 and reclaimed by the permittee, the department, or any other state or federal agency; or

(c) that has been reclaimed by or has been subject to remediation of contamination or pollution by a public agency, under supervision of a public agency, or using public funds."

Section 71. Section 82-4-311, MCA, is amended to read:

"82-4-311. Hard-rock mining and reclamation account. All fees, fines, penalties, and other uncleared money that has been or will be paid to the department under the provisions of [section 67] or this part must be placed in the state special revenue fund in the state treasury and credited to a special account that is designated as the hard-rock mining and reclamation account. This account is available to the department by appropriation and may be expended for the research, reclamation, and revegetation of land and the rehabilitation of water affected by any mining operations. Any unencumbered and any unexpended balance of this account remaining at the end of a fiscal year does not lapse but must be carried forward for the purposes of this section until expended or until appropriated by subsequent legislative action."

Section 72. Section 82-4-321, MCA, is amended to read:

"82-4-321. Administration. The department is charged with the responsibility of administering [sections 58 through 69] and this part. In order to implement their terms and provisions, the board shall from time to time promulgate rules that the board considers necessary. The department shall employ experienced, qualified persons in the field of mined-land reclamation who, for the purpose of this part, are referred to as supervisors."

Section 73. Section 82-4-331, MCA, is amended to read:

"82-4-331. Exploration license required -- employees included -- limitation. (1) A person may not engage in exploration in the state without first obtaining an exploration license from the department. A license must be issued for a period of 1 year from the date of issue and is renewable from year to year on application. An application for renewal must be filed within 30 days preceding the expiration of the current license and be accompanied by payment of a fee as required for a new license. A license may not be renewed if the applicant for renewal is in violation of any provision of this part. A license is subject to suspension and revocation as provided by this part.

(2) Employees of persons holding a valid license under this part are included in and covered by the license.

(3) A person may not be issued an exploration license if:

(a) that person's failure to comply with the provisions of this part, the rules adopted under this part, or a permit or license issued under this part has resulted in the forfeiture of a bond, unless that person meets the conditions described in 82-4-360;

(b) that person has not paid a penalty that has been assessed pursuant to [section 67] and for which appeal has been waived, forfeited, or determined against the violator;

(c) that person has failed to post a reclamation bond required by 82-4-305, unless the department has certified that the area for which the bond should have been posted has been reclaimed by that person or reclaimed by the department and the person has reimbursed the department for the cost of the reclamation;

(d) that person has failed to comply with an order issued pursuant to [section 65 or 66], unless the department has completed the abatement and the person has reimbursed the department for the cost of abatement."

Section 74. Section 82-4-335, MCA, is amended to read:

"82-4-335. Operating permit -- limitation -- fees. (1) A person may not engage in mining, ore processing, or reprocessing of tailings or waste material, construct or operate a hard-rock mill, use cyanide ore-processing reagents, or disturb land in anticipation of those activities in the state without first obtaining an operating permit from the department. A separate operating permit is required for each complex.

(2) A small miner who intends to use a cyanide ore-processing reagent shall obtain an operating permit for that part of the small miner's operation where the cyanide ore-processing reagent will be used or disposed of.

(3) Prior to receiving an operating permit from the department, a person shall pay the basic permit fee of $25. The department may require a person who is applying for a permit pursuant to subsection (1) to pay an additional fee not to exceed the actual amount of contractor and employee expenses beyond the normal operating expenses of the department whenever those expenses are reasonably necessary to provide for timely and adequate review of the application, including any environmental review conducted under Title 75, chapter 1, parts 1 and 2. The board may further define these expenses by rule. Whenever the department determines that an additional fee is necessary and the additional fee will exceed $5,000, the department shall notify the applicant that a fee must be paid and submit to the applicant an itemized estimate of the proposed expenses. The department shall provide the applicant an opportunity to review the department's estimated expenses. The applicant may indicate which proposed expenses the applicant considers duplicative or excessive, if any.

(4) The person shall submit an application on a form provided by the department, which must contain the following information and any other pertinent data required by rule:

(a) the name and address of the operator and, if a corporation or other business entity, the name and address of its officers, directors, owners of 10% or more of any class of voting stock, partners, and the like and its resident agent for service of process, if required by law;

(b) minerals expected to be mined;

(c) a proposed reclamation plan;

(d) the expected starting date of operations;

(e) a map showing the specific area to be mined and the boundaries of the land that will be disturbed, topographic detail, the location and names of all streams, roads, railroads, and utility lines on or immediately adjacent to the area, and the location of proposed access roads to be built;

(f) the names and addresses of the owners of record and any purchasers under contracts for deed of the surface of the land within the permit area and the owners of record and any purchasers under contracts for deed of all surface area within one-half mile of any part of the permit area, provided that the department is not required to verify this information;

(g) the names and addresses of the present owners of record and any purchasers under contracts for deed of all minerals in the land within the permit area, provided that the department is not required to verify this information;

(h) the source of the applicant's legal right to mine the mineral on the land affected by the permit, provided that the department is not required to verify this information;

(i) types of access roads to be built and manner of reclamation of road sites on abandonment;

(j) a plan which will provide, within limits of normal operating procedures of the industry, for completion of the operation;

(k) ground water and surface water hydrologic data gathered from a sufficient number of sources and length of time to characterize the hydrologic regime;

(l) a plan detailing the design, operation, and monitoring of impounding structures, including but not limited to tailings impoundments and water reservoirs, sufficient to ensure that the structures are safe and stable;

(m) a plan identifying methods to be used to monitor for the accidental discharge of objectionable materials and remedial action plans to be used to control and mitigate discharges to surface or ground water; and

(n) an evaluation of the expected life of any tailings impoundment or waste area and the potential for expansion of the tailings impoundment or waste site.

(5) Except as provided in subsection (7), the permit provided for in subsection (1) for a large-scale mineral development as defined in 90-6-302 must be conditioned to provide that activities under the permit may not commence until the impact plan is approved under 90-6-307 and until the permittee has provided a written guarantee to the department and to the hard-rock mining impact board of compliance within the time schedule with the commitment made in the approved impact plan, as provided in 90-6-307. If the permittee does not comply with that commitment within the time scheduled, the department, upon receipt of written notice from the hard-rock mining impact board, shall suspend the permit until it receives written notice from the hard-rock mining impact board that the permittee is in compliance.

(6) When the department determines that a permittee has become or will become a large-scale mineral developer pursuant to 82-4-339 and 90-6-302 and provides notice as required under 82-4-339, within 6 months of receiving the notice, the permittee shall provide the department with proof that the permittee has obtained a waiver of the impact plan requirement from the hard-rock mining impact board or that the permittee has filed an impact plan with the hard-rock mining impact board and the appropriate county or counties. If the permittee does not file the required proof or if the hard-rock mining impact board certifies to the department that the permittee has failed to comply with the hard-rock mining impact review and implementation requirements in Title 90, chapter 6, parts 3 and 4, the department shall suspend the permit until the permittee files the required proof or until the hard-rock mining impact board certifies that the permittee has complied with the hard-rock mining impact review and implementation requirements.

(7) Compliance with 90-6-307 is not required for exploration and bulk sampling for metallurgical testing when the aggregate samples are less than 10,000 tons.

(8) A person may not be issued an operating permit if:

(a) that person's failure to comply with the provisions of this part, the rules adopted under this part, or a permit or license issued under this part has resulted in the forfeiture of a bond, unless that person meets the conditions described in 82-4-360;

(b) that person has not paid a penalty that has been assessed pursuant to [section 67] and for which appeal has been waived, forfeited, or determined against the violator;

(c) that person has failed to post a reclamation bond required by 82-4-305, unless the department has certified that the area for which the bond should have been posted has been reclaimed by that person or reclaimed by the department and the person has reimbursed the department for the cost of the reclamation;

(d) that person has failed to comply with an order issued pursuant to [section 65 or 66], unless the department has completed the abatement and the person has reimbursed the department for the cost of abatement.

(9) A person may not be issued a permit under this part unless, at the time of submission of a bond, the person provides the current information required in subsection (4)(a) and:

(a) (i) certifies that the person is not currently in violation in this state of any law, rule, or regulation of this state or of the United States pertaining to air quality, water quality, or mined land reclamation; or

(ii) presents a certification by the administering agency that the violation is in the process of being corrected to the agency's satisfaction or is the subject of a bona fide administrative or judicial appeal; and

(b) if the person is a partnership, corporation, or other business association, provides the certification required by subsection (9)(a)(i) or (9)(a)(ii), as applicable, for any partners, officers, directors, owners of 10% or more of any class of voting stock, and business association members."

Section 75. Section 82-4-360, MCA, is amended to read:

"82-4-360. Activity prohibited if bond forfeited -- exception. (1) Except as provided in subsection (2), a person may not conduct mining or exploration activities in this state if that person or any firm or business association of which that person was a principal or controlling member had a bond forfeited under this part.

(2) A person described in subsection (1) may apply for an operations permit or an exploration license or may conclude a written agreement under 82-4-305 if that person first pays to the department:

(a) the full amount of the necessary expenses incurred by the department under 82-4-341(6) for reclamation of the area for which the bond was forfeited;

(b) the full amount of any penalties assessed under [section 67] for violations of this part, rules adopted pursuant to this part, conditions of permits issued pursuant to this part, or orders issued pursuant to this part or issued pursuant to [sections 58 through 69] to enforce this part; and

(c) interest on these amounts and penalties incurred at the rate of 6% per year."

Section 76. Section 82-4-422, MCA, is amended to read:

"82-4-422. Powers, duties, and functions. (1) The department has the following powers, duties, and functions to:

(a) enter into contracts where it is found on the basis of the information set forth in the application and an evaluation of the operation by the department that the requirements of the part or rules will be observed and that the operation and the reclamation of the affected area can be carried out consistently with the purpose of the part;

(b) conduct hearings and, for the purposes of conducting such hearings, administer oaths and affirmations, subpoena witnesses, compel attendance of witnesses, hear evidence, and require the production of any books, papers, correspondence, memoranda, agreements, documents, or other records relevant or material to the inquiry;

(c) reclaim any affected land with respect to which a bond has been forfeited; and

(d) make investigations or inspections that are considered necessary to ensure compliance with any provision of this part.

(2) The board shall adopt rules:

(a) that pertain to opencut mining in order to accomplish the purposes of [sections 58 through 69] and this part; and

(b) establishing uniform procedures for filing of necessary records, for the issuance of contracts, and for any other matters of administration not specifically enumerated in this part."

Section 77. Section 82-4-424, MCA, is amended to read:

"82-4-424. Receipt and expenditure of funds. (1) The department may receive any federal funds, state funds, or any other funds for the reclamation of land affected by opencut mining. The department may cause the reclamation work to be done by its employees, by employees of other governmental agencies, by soil conservation districts, or through contracts with qualified persons.

(2) Any funds of any public works programs available to the department must be expended and used to reclaim and rehabilitate any lands that have been subject to opencut mining and that have not been reclaimed and rehabilitated in accordance with the standards of this part.

(3) There is an opencut mining and reclamation account within the state special revenue fund established in 17-2-102. There must be deposited in the account all fees, fines, penalties, and other money that have been or will be paid under the provisions of [section 67] and this part. The money in the account is available to the department through appropriation and must be spent by the department for the reclamation and revegetation of land, research pertaining to the reclamation and revegetation of land, and the rehabilitation of water affected by opencut mining operations and for administration of this part. Any unspent or unencumbered money in the account at the end of a fiscal year must remain in the account until spent or appropriated by the legislature."

NEW SECTION. Section 78. Repealer. Sections 75-2-401, 75-2-403, 75-2-413, 75-2-421, 75-2-422, 75-2-423, 75-2-424, 75-2-425, 75-2-426, 75-2-427, 75-2-428, 75-2-429, 75-5-602, 75-5-603, 75-5-604, 75-5-611, 75-5-612, 75-5-613, 75-5-614, 75-5-615, 75-5-616, 75-5-617, 75-5-621, 75-5-622, 75-5-631, 75-5-635, 75-5-641, 75-6-109, 75-6-110, 75-6-114, 75-10-227, 75-10-228, 75-10-413, 75-10-414, 75-10-415, 75-10-416, 75-10-417, 75-10-424, 75-10-540, 75-10-944, 75-11-218, 75-11-219, 75-11-220, 75-11-223, 75-11-512, 75-11-513, 75-11-515, 75-11-516, 75-11-518, 76-4-108, 76-4-110, 82-4-361, and 82-4-441, MCA, are repealed.

NEW SECTION. Section 79. Codification instruction. (1) [Sections 1 through 13] are intended to be codified as an integral part of Title 75, and the provisions of Title 75, apply to [sections 1 through 13].

(2) [Sections 50 through 56] are intended to be codified as an integral part of Title 76, chapter 4, part 1, and the provisions of Title 76, chapter 4, part 1, apply to [sections 50 through 56].

(3) [Sections 58 through 69] are intended to be codified as an integral part of Title 82, and the provisions of Title 82 apply to [sections 58 through 69].

NEW SECTION. Section 80. Coordination instruction. (1) If Senate Bill No. 126 is not passed and approved, then the bracketed language in [section 2(7)(l)], [section 10(1)(g)], [section 10(6)(b)(iii)], [section 11(1)(k)], and [section 11(7)(b)(iii)] is void.

(2) If _Bill No._ [LC 990] is not passed and approved, then the bracketed language in [section 10(1)(b)] and [section 10(6)(b)(i)] is void.

NEW SECTION. Section 81. Saving clause. [This act] does not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before [the effective date of this act].

NEW SECTION. Section 82. Effective date. [This act] is effective January 1, 2000.

NEW SECTION. Section 83. Applicability. [This act] applies to enforcement actions for which a notice of violation is issued after [the effective date of this act].

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