SENATE BILL NO. 314
INTRODUCED BY D. GRIMES, K. OHS
AN ACT GENERALLY REVISING THE LAWS RELATING TO THE ENFORCEMENT OF THE ASBESTOS ABATEMENT LAWS; REVISING THE LAWS RELATING TO DENIAL, SUSPENSION, AND REVOCATION OF ACCREDITATION; AUTHORIZING INSPECTIONS; PROVIDING FOR CLEANUP ORDERS, ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES, AND INJUNCTIONS; AMENDING SECTIONS 75-2-508 AND 75-2-514, MCA; AND CONTINGENTLY REPEALING SECTION 75-2-514, MCA.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. 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 75-2-514 .
(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 2. Section 75-2-514, MCA, is amended to read:
"75-2-514. Criminal and civil Civil penalties -- disposition of civil 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 an adopted rule or order issued pursuant to this part is guilty of a misdemeanor.
(3) If the department determines that a violation of this part or a rule promulgated pursuant to this part has occurred, it
may issue an order compelling the person receiving the order to end the violation immediately.
(4) In addition to or instead of the remedies listed in subsections (1) through (3), an accredited person who purposely or
knowingly violates this part or a rule adopted pursuant to this part that concerns the conduct of an asbestos project may be
assessed a civil penalty by the district court of not more than $1,000 a day for an initial violation and $5,000 a day for each
subsequent violation occurring within a 3-year period from the date of the initial violation.
(5)(1) A district court may assess a civil penalty of not more than $25,000 a day upon a person who engages in an
asbestos project without valid accreditation or a permit that violates any provision of this part, a rule adopted under this
part, or a permit or order issued under this part. In the case of a continuing violation, each day the violation continues
constitutes a separate violation.
(6) Civil penalties collected under this part must be deposited into the account established in 75-2-508.
(2) An action under this section is not a bar to enforcement by injunction or other appropriate civil or administrative remedies."
Section 3. Administrative enforcement. (1) The department may deny, suspend, or revoke the accreditation of a person that:
(a) fraudulently or deceptively obtains or attempts to obtain accreditation;
(b) fails to meet the qualifications for accreditation or fails to comply with the requirements of this part, a rule adopted under this part, or a permit or order issued under this part; or
(c) fails to meet an applicable federal or state standard for asbestos projects.
(2) When the department believes that a violation of this part, a rule adopted under this part, or a permit or order issued under this part has occurred, it may serve written notice of the violation personally or by certified mail on the alleged violator or the violator's agent. The notice must specify the provision of this part or the rule, permit, or order alleged to be violated and the facts alleged to constitute a violation. The notice may include an order to take necessary corrective action within a reasonable period of time stated in the order, or an order to pay an administrative civil penalty, or both. An order becomes final unless, within 30 days after the order is received, the person that has been named requests, in writing, a hearing before the board.
(3) On receipt of a hearing request, the board shall schedule a hearing. The contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to any hearing conducted under this section. If, after a hearing, the board finds that a violation has not occurred or is not occurring, it shall rescind the order.
(4) (a) An action initiated under this section may include an administrative civil penalty of not more than $10,000 for each day of each violation, not to exceed a total of $80,000. Any order issued by the department under this section requiring payment of an administrative civil penalty must specify the basis for the penalty assessment.
(b) A penalty may not be assessed under this section for any day of violation that occurred more than 3 years prior to the department issuing the order requiring payment of the penalty.
(c) In determining the amount of a penalty assessed to a person under this section, the department shall consider:
(i) the seriousness of the violation;
(ii) the duration of the violation;
(iii) any economic benefit derived from the violation;
(iv) the person's good faith efforts to comply with the requirements in question;
(v) the person's compliance history;
(vi) the person's ability to pay a penalty; and
(vii) other matters as justice may require.
(5) In addition to or instead of issuing an order under subsection (2), the department may:
(a) require the alleged violator to appear before the board for a hearing at a time and place specified in the notice of hearing to answer the charges complained of; or
(b) initiate action under 75-2-514.
Section 4. Criminal penalties. (1) A person convicted of purposely or knowingly violating any provision of this part, a rule adopted under this part, or a permit or order issued under this part is guilty of a misdemeanor.
(2) A prosecution under this section is not a bar to enforcement by injunction or other appropriate civil or administrative remedies.
Section 5. Injunctions. The department may institute and maintain in the name of the state, actions for injunctive relief, as provided in Title 27, chapter 19, to:
(1) immediately restrain a person from engaging in an unauthorized activity that is endangering or causing damage to public health or the environment;
(2) enjoin a violation of this part, a rule adopted under this part, an order issued under this part, or a permit issued under this part, without the necessity of prior revocation of the permit; or
(3) require compliance with this part, a rule adopted under this part, or a permit or order issued under this part.
Section 6. Inspections -- sampling. (1) (a) At any reasonable time and upon presentation of credentials, an employee or agent of the department may enter upon and inspect any place at which:
(i) an asbestos project is being conducted;
(ii) asbestos-containing material from an asbestos project is stored; or
(iii) records pertinent to an asbestos project are maintained.
(b) The employee or agent of the department may have access to and may copy any records relating to an asbestos project for the purpose of enforcing the provisions of this part, rules adopted under this part, or a permit or order issued under this part.
(2) During an inspection under this section, the employee or agent of the department may take samples of any suspected asbestos-containing material, including samples from any vehicle in which asbestos-containing waste materials are transported. If the employee or agent of the department takes a sample of any suspected asbestos-containing material, prior to leaving the premises, the employee or agent shall give to the person in charge of the asbestos project a receipt describing the sample taken and, if requested, a portion of each sample equal in volume or weight to the portion retained. If an analysis is made of the samples, a copy of the results of the analysis must be furnished to the person in charge of the asbestos project.
Section 7. Cleanup orders. The department may issue a cleanup order to any person that has deposited asbestos-containing material or that has disturbed asbestos-containing material or that owns any property where the asbestos-containing material is located when the material poses an immediate threat to public health or the environment or is likely to pose a threat to public health or the environment in the immediate future. The order may direct the person to clean up and transport the asbestos-containing material to an authorized disposal facility, to treat the material so as to render it nonhazardous, or to take other necessary actions.
Section 8. Repealer. Section 75-2-514, MCA, is repealed.
Section 9. Codification instruction. [Sections 3 through 7] are intended to be codified as an integral part of Title 75, chapter 2, part 5, and the provisions of Title 75, chapter 2, part 5, apply to [sections 3 through 7].
Section 10. Coordination instruction. (1) If Senate Bill No. 313 and [this act] are both passed and approved and if Senate Bill No. 313 amends Title 75, chapter 2, part 5, then [sections 2, 3, and 5 through 7 of this act] are void.
(2) If [this act] is passed and approved and Senate Bill No. 313 is not passed and approved or if [this act] is passed and approved and Senate Bill No. 313 is passed and approved but does not amend Title 75, chapter 2, part 5, then [section 8] is void.
Section 11. Saving clause. [This act] does not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before [the effective date of this act].
Section 12. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
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Latest Version of SB 314 (SB0314.ENR)
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