Bill Summary – FastDemocracy

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                                                                                                           HB 101.1
                                               HOUSE BILL NO. 101
                                          INTRODUCED BY J. DOOLING
                                            BY REQUEST OF THE ****
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 A BILL FOR AN ACT ENTITLED: “AN ACT REVISING LAWS RELATED TO BROWNFIELDS; CREATING THE
 "MONTANA BROWNFIELDS REVITALIZATION ACT" AND THE "MONTANA BROWNFIELDS REVOLVING
 LOAN FUND ACT "; PROVIDING DEFINITIONS; PROVIDING RULEMAKING AUTHORITY; PROVIDING A
 STATUTORY APPROPRIATION; AMENDING SECTIONS 17-7-502 AND 75-11-309, MCA; AND REPEALING
 SECTIONS 75-11-401, 75-11-402, 75-11-403, 75-11-407, 75-11-408, AND 75-11-409, MCA.”
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 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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         NEW SECTION. Section 1. Short title. [Sections 1 through 7] may be cited as the "Montana
 Brownfields Revitalization Act".
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         NEW SECTION. Section 2. Findings and intent -- purposes. The legislature finds that:
         (1) real properties exist across the state where the stigma of hazardous substance and petroleum
 contamination hinders the development or best use of the property. These hazardous substance- and
 petroleum-contaminated properties may be eligible for brownfields funding.
         (2) the cleanup of hazardous substance and petroleum brownfields sites should be encouraged and
 facilitated to reduce threats to human health and the environment, prepare properties for reuse and
 redevelopment, and return property to local tax rolls;
         (3) the petroleum tank release cleanup fund established in 75-11-313 does not immediately address
 all petroleum tank release sites in Montana in a timely and comprehensive manner; and
         (4) the department should encourage the use of federal brownfields funding obtained by grant
 recipients for assessment and remediation at eligible hazardous substance and petroleum brownfields sites and
 to leverage federal funds and limit costs imposed on Montana citizens.
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           NEW SECTION. Section 3. Definitions. As used in [sections 1 through 7], unless the context clearly
 indicates otherwise, the following definitions apply:
           (1) “Brownfield” means a property, the expansion, redevelopment, or reuse of which may be
 complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.
           (2) "Department" means the department of environmental quality provided for in 2-15-3501.
           (3) "Grant recipient" means a city, town, county, consolidated city-county, tribal government,
 economic development organization, nonprofit organization, or state agency that has received federal
 brownfields funding from the environmental protection agency.
           (4) “Hazardous substance” means a hazardous substance as defined in 75-10-602(4).
           (5) "Person" means an individual, firm, trust, estate, partnership, company, association, joint-stock
 company, syndicate, consortium, commercial entity, corporation, state government agency, or local
 government.
           (6) "Petroleum tank release site" means a site where there has been a release from a petroleum
 storage tank and assessment, remediation, or both are being pursued in accordance with Title 75, chapter 11,
 part 3.
           (7) "Potentially liable person" means a person who:
           (a) for a petroleum brownfields site;
           (i) dispensed or disposed of, or owned the site when others dispensed or disposed of, petroleum or
 petroleum product contamination at the site;
           (ii) exacerbated existing petroleum contamination at the site; or
           (iii) failed to take reasonable steps with regard to petroleum contamination at the site; or
           (b) for a hazardous substance brownfields site;
           (i) owns or operates, or formerly owned or operated, a site at the time of release of hazardous
 substances; or
           (ii) arranged for, or contributed to, the release or treatment of hazardous substances on the site.
           (8) "Reasonable steps" means, as appropriate, stopping continuing releases, preventing threatened
 future releases, or preventing or limiting human, environmental, or natural resource exposure to earlier
 petroleum or petroleum product releases. The term may include limiting access to the property, monitoring
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                                                                                                                 HB 101.1
 known contaminants, and complying with state, local, or both state and local requirements.
         (9) "Relatively low risk" refers to a petroleum tank release site that the department is not actively
 assessing, investigating, or cleaning up using funds from the federal leaking underground storage tank trust
 fund and is not subject to a response under the federal Oil Pollution Act.
         (10) "Responsible party" means:
         (a) a person responsible for conducting the assessment, investigation, and cleanup at a petroleum
 tank release site as determined through:
         (i) a judgment rendered in a court of law or an administrative order;
         (ii) an enforcement action by federal authorities or the department; or
         (iii) a citizen suit, contribution action, or other third-party claim brought against the current owner of a
 petroleum tank release site; or
         (b) a current owner of a petroleum tank release site who:
         (i) dispensed or disposed of petroleum or petroleum product contamination at the site;
         (ii) exacerbated existing petroleum contamination at the site;
         (iii) owned the site when any dispensing or disposal of petroleum by others took place; or
         (iv) failed to take reasonable steps with regard to petroleum contamination at the site.
         (11) "Viable responsible party" means a responsible party determined by the department in
 accordance with [section 4] to have the financial capability to conduct the assessment, investigation, or cleanup
 activities at a petroleum tank release site.
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         NEW SECTION. Section 4. Viability. (1) For the purpose of determining the viability of a responsible
 party, the department shall presume that:
         (a) ongoing businesses or companies and government entities are viable unless there is information
 suggesting that the presumption is not appropriate and the department determines the information is sufficient
 to rebut the presumption in a particular case; and
         (b) individuals and defunct or insolvent companies are not viable unless there is information
 suggesting that the presumption is not appropriate and the department determines the information is sufficient
 to rebut the presumption in a particular case.
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                                                                                                                 HB 101.1
          (2) The department may not determine that a responsible party is viable based solely on the fact that
 the owner or operator of a petroleum tank release site is eligible to be reimbursed by the petroleum tank
 release compensation board established in 2-15-2108 from the petroleum tank release cleanup fund
 established in 75-11-313.
          (3) It is a grant recipient's responsibility to provide the department with sufficient financial information
 about a responsible party identified in a petroleum brownfields site eligibility application to determine whether
 the responsible party is a viable responsible party.
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          NEW SECTION. Section 5. Brownfields site eligibility for petroleum tank release sites --
 determinations -- limitations. (1) Before a grant recipient may expend federal brownfields funds at a
 petroleum tank release site, either the department or the United States environmental protection agency shall
 make a written determination that:
          (a) the petroleum tank release site is of relatively low risk compared to other petroleum-contaminated
 sites;
          (b) there is no viable responsible party for the petroleum tank release site;
          (c)   the petroleum tank release site will not be assessed, investigated, or cleaned up by a potentially
 liable person; and
          (d) the petroleum tank release site is not subject to an order under section 9003(h) of the federal Solid
 Waste Disposal Act, 42 U.S.C. 6991b(h), or Title 75, chapter 11.
          (2) After the department or the United States environmental protection agency determines that a
 petroleum tank release site is eligible for federal brownfields funding, the department shall encourage and may
 not limit the use of a grant recipient's federal petroleum brownfields funding at the site even if the site owner or
 operator, as defined in 75-11-302, is eligible for funding from the petroleum tank release cleanup fund
 established in 75-11-313.
          (3) The department may not limit the use of money from the petroleum tank release cleanup fund
 established in 75-11-313 when used as a commitment to a federal brownfields loan made by a grant recipient
 for remediation at a petroleum tank release site.
          (4) (a) Except as provided in subsection (4)(b), a determination made by the department or the
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 United States environmental protection agency that a petroleum tank release site is eligible for federal
 brownfields funding does not limit or alter the owner's or operator's responsibility to assess or remediate the
 petroleum tank release site in accordance with Title 75, chapter 11.
         (b) If the department determines that a grant recipient has proposed to conduct a timely and
 comprehensive remediation using federal brownfields funding at a petroleum tank release site that has been
 determined by the department or the United States environmental protection agency to be eligible for petroleum
 brownfields funding and the proposed remediation plan is expected to meet or exceed remediation standards
 required by the department and financial commitments required by the petroleum tank release compensation
 board pursuant to Title 75, chapter 11, the department shall approve the comprehensive remediation plan and
 allow for the use of federal brownfields funding at the petroleum tank release site.
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         NEW SECTION. Section 6. Use of brownfields funding acquired by state -- limitations. Prior to
 expending federal funds awarded to the state for the purpose of assessing or cleaning up hazardous substance
 and petroleum tank release sites that are eligible for brownfields funding from the United States environmental
 protection agency under the Brownfields Utilization, Investment, and Local Development Act of 2018, 42 U.S.C.
 9601, et seq., the department shall make a reasonable effort to coordinate with a grant recipient who may
 intend to expend federal brownfields funding to assess or remediate eligible brownfields sites in the grant
 recipient's brownfields target area and to ensure that the grant recipient is not intending to expend brownfields
 funding at the same eligible brownfields sites.
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         NEW SECTION. Section 7. Site access. The department, upon presentation of proper credentials,
 may enter any building, property, premises, place, or facility where brownfield activities are being, or have been
 performed for the purpose of making an inspection to ascertain compliance by any person with the provisions of
 this part, or the rules promulgated pursuant to this part.
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         NEW SECTION. Section 8. Short title. [Sections 8 through 11] may be cited as the "Montana
 Brownfields Revolving Loan Fund Act".
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         NEW SECTION. Section 9. Definitions. As used in [sections 8 through 11], unless the context
 clearly indicates otherwise, the following definitions apply:
         (1) "Administrative costs" means costs incurred by the department in the administration of the
 program, including but not limited to:
         (a) costs of servicing loans and issuing debt;
         (b) program startup costs;
         (c)   financial, management, and legal consulting fees; and
         (d) reimbursement costs for support services from other state agencies.
         (2) "Department" means the department of environmental quality provided for in 2-15-3501.
         (3) "Federal act" means the Brownfields Utilization, Investment, and Local Development Act of 2018,
 42 U.S.C. 9601, et seq.
         (4) "Loan" means a loan of money from the revolving fund.
         (5) "Revolving fund" means the Montana brownfields revolving loan fund established in [section 11].
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         NEW SECTION. Section 10. Rulemaking authority. The department may adopt rules to implement
 the provisions of [sections 8 through 11] and to:
         (1) prescribe the form and content of applications for loans and technical assistance;
         (2) govern the application of the criteria for awarding loans and technical assistance;
         (3) establish additional terms and conditions for the making of loans and the security instruments and
 other necessary agreements;
         (4) establish ceilings on the amount of individual loans to be made if considered appropriate and
 necessary for the successful administration of the program;
         (5) ensure compliance of the program with the provisions of the federal act and rules promulgated
 under the federal act, unless these matters are specifically governed by [sections 8 through 11]; and
         (6) maintain the financial integrity of the program.
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         NEW SECTION. Section 11. Revolving fund -- statutory appropriation. (1) There is established in
 the state treasury a separate account designated as the Montana brownfields revolving loan fund. The corpus
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 of the fund must be available in perpetuity for providing assistance under this part. There is established within
 the revolving fund a federal allocation account, a state allocation account, and an administration account.
          (2) There must be credited to the federal allocation account all amounts received by the state
 pursuant to the federal act for a state revolving fund to provide loans or other assistance, as authorized under
 this part;
          (b) There must be credited to the state allocation account:
          (i) all amounts received by the state from borrowers of the revolving loan fund;
          (ii) money appropriated by the legislature; and
          (iii) other available qualifying funds;
          (3) The department shall fund and disperse loans pursuant to [sections 8 through 11] from the federal
 allocation account, the state allocation account, or both. Amounts received in payment of principal or interest on
 a loan are credited to the revolving fund.
          (4) The department may establish additional accounts and subaccounts within the revolving fund that
 are necessary to account for the program money and to ensure compliance with the federal act and [sections 8
 through 11].
          (5) The department may solicit assistance in the development and operation of the program from
 individuals familiar with financial services and persons knowledgeable in revolving funds.
          (6) The application for revolving loan funds may contain agreements that:
          (a) allow the department access to a site receiving revolving loan funds in the event of an emergency,
 or default of a loan agreement;
          (b) allow the department access to a site receiving revolving loan funds in the event of
 nonperformance under a subgrant;
          (c)   provide the department with any other remedy necessary to ensure compliance with the terms of a
 loan agreement.
          (7) Money in the revolving fund is statutorily appropriated, as provided in 17-7-502, for the purposes
 of providing financial assistance to revolving loan fund borrowers.
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          Section 12. Section 17-7-502, MCA, is amended to read:
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