Senate Bill No. 356

Introduced By _______________________________________________________________________________

A Bill for an Act entitled: "An Act expanding the class of persons who may appeal to the board a final department decision regarding nondegradation of water quality; removing the directive that certain changes in nitrate concentrations be found nonsignificant; converting from discretionary to mandatory the periodic review of authorizations to degrade and allowing subsequent revocation of authorization; changing the terminology regarding the relationship between placement of wastes and their likelihood to cause pollution of state waters; and amending sections 75-5-103, 75-5-301, 75-5-303, and 75-5-605, MCA."

Be it enacted by the Legislature of the State of Montana:

Section 1.  Section 75-5-103, MCA, is amended to read:

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

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

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

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

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

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

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

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

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

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

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

(b)  surface waters that:

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

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

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

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

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

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

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

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

(16) "Outstanding resource waters" means:

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

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

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

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

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

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

(21) (a) "Pollution" means:

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

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

(b)  A discharge, seepage, drainage, infiltration, or flow that is authorized under the pollution discharge permit rules of the board is not pollution under this chapter. Activities conducted under the conditions imposed by the department in short-term authorizations pursuant to 75-5-308 are not considered pollution under this chapter.

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

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

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

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

(b)  The term does not apply to:

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

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

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

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

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

Section 2.  Section 75-5-301, MCA, is amended to read:

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

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

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

(b)  Standards adopted by the board must meet the following requirements:

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

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

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

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

(a)  the smallest practicable size;

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

(c)  definable boundaries;

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

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

(b)  establish criteria for the following:

(i)  determining important economic or social development; and

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

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

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

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

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

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

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

(i)  7.5 milligrams per liter for nitrate [as nitrogen] sources other than domestic sewage;

(ii) 5.0 milligrams per liter for domestic sewage effluent discharged from a conventional septic system;

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

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

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

(7)  adopt rules to implement this section."

Section 3.  Section 75-5-303, MCA, is amended to read:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 4.  Section 75-5-605, MCA, is amended to read:

"75-5-605.   Prohibited activity. (1) It is unlawful to:

(a)  cause pollution as defined in 75-5-103 of any state waters or to place or cause to be placed any wastes where they will in a location where they are likely to cause pollution of any state waters. Any placement of materials that is authorized by a permit issued by any state or federal agency is not a placement of wastes within the prohibition of this subsection if the agency's permitting authority includes provisions for review of the placement of materials to ensure that it will not cause pollution of state waters.

(b)  violate any provision set forth in a permit or stipulation, including but not limited to limitations and conditions contained in the permit;

(c)  site and construct a sewage lagoon less than 500 feet from an existing water well;

(d)  cause degradation of state waters without authorization pursuant to 75-5-303;

(e)  violate any order issued pursuant to this chapter; or

(f)  violate any provision of this chapter.

(2)  Except for the permit exclusions identified in 75-5-401(5), it is unlawful to carry on any of the following activities without a current permit from the department:

(a)  construct, modify, or operate a disposal system that discharges into any state waters;

(b)  construct or use any outlet for the discharge of sewage, industrial wastes, or other wastes into any state waters; or

(c)  discharge sewage, industrial wastes, or other wastes into any state waters."