(1)  "Affected person" means any person that is required to comply with a SMP or other requirements of Title 80, chapter 15, MCA, that is or potentially may be adversely affected by the impairment or degradation of ground water; or for which an agricultural chemical has been detected in their well.

(2)  "Confidential business information" herein referred to as "CBI" is data or information submitted or provided under authority of Title 80, chapter 15, MCA in any form to the department, by the environmental protection agency (EPA)  , agricultural chemical registrants, licensed or permitted pesticide dealers, retailers and applicators, fertilizer manufacturers or distributors or any person. CBI agricultural chemical data or information may include; confidential statements of the complete agricultural chemical formula, agricultural chemical registration data or information and information concerning the sales, production or use of pesticides or fertilizers.

(3)  "Degradation" means the presence of an agricultural chemical in ground water at a concentration that meets or exceeds the standard as defined in 80-15-102(2)  , MCA.

(4)  "Environment" includes water, air, land, plants, and humans and other animals living therein and the interrelationships which exist among these.

(5)  "General agricultural chemical ground water management plan" means a written state-wide plan, herein referred to as "GMP", which describes the general environmental conditions of the state, ground water resources, common agricultural chemical uses and their properties, agriculture cropping and livestock practices, regions vulnerable or potentially vulnerable to ground water impairment or degradation by agricultural chemicals, best management plans and practices, educational programs and other general program elements set forth in Title 80, chapter 15, MCA.

(6)  "Good faith effort" means a substantiated or measurable attempt to comply with the provisions of Title 80, chapter 15, MCA and the rules adopted thereunder or any specific agricultural chemical ground water management plan.

(7)  "Impairment" means the presence of an agricultural chemical in ground water or increase in its concentration in ground water for which its present and future beneficial use may be affected and which is contrary to 80-15-103, MCA.

(8)  "Official test result" means a test result which is obtained following the department approved quality assurance

(9)  "Significant harm" means: having a measurable or verified observation of adverse effects on public health, the environment, agricultural crops or livestock; the verified presence of an agricultural chemical which meets or exceeds the standard and the definitions set forth in ARM 4.10.1501 (7)  , (21)  , (67)  , (71)  , (98)  and (100)  .

(10)  "Significant probability" means the likelihood based on the most recent valid scientific or technical information and/or documented evidence, that an agricultural chemical could enter ground water.

(11)  "Specific agricultural chemical ground water management plan", herein referred to as "SMP", means rules adopted for the purpose of preventing or reducing the potential or incidence of ground water impairment or degradation from an agricultural chemical or chemicals within a specific management zone which may include the provisions of 80-15-214(2)  , MCA.

(12)  "Specific management zone", herein referred to as a "SMZ" means an area, region or localized site, the boundaries of which are defined by the department based on the best available hydrogeologic data in a SMP.

(13)  "Unofficial test result" means a test result which does not meet department approved quality assurance and quality control (QA/QC)  field and laboratory procedures.

(14)  "Vulnerable" or "Vulnerability" means the factors that determine the potential for or actual impairment or degradation of an aquifer or ground water. These factors include, but are not limited to; depth to a confined or unconfined aquifer, soil type, clay and organic matter content, texture, structure, porosity, moisture, local climatic conditions and irrigation practices, ground water recharge rates, well construction, and other factors that determine the fate and transportation of agricultural chemicals in ground water.

(a) aquifer and ground water information with special emphasis on regions in the state that may be vulnerable to impairment or degradation from agricultural chemicals;

(b) special state or federal agency programs and requirements;

(c) special factors such as irrigation practices, and meteorological or geological characteristics;

(d) agricultural chemical application techniques, chemical characteristics, benefits and risks in terms of ground water impairment or degradation;

(e) the leaching potential of chemical residues in soils whether from a point or nonpoint source;

(f) proper and modified uses of agricultural chemicals to prevent their introduction into ground water;

(g) the utilization of alternative agricultural practices, and integrated pest management systems; and

(h) soil fertility practices.

(2) A list of all data and information obtained during the development of the GMP will be available from the department.

(a) prepare an outline of the GMP for use at public meetings;

(b) sponsor interagency and public meetings;

(c) consult with local, state and federal agencies, universities, agricultural chemical user groups and the public, to identify the provisions, best management plans and practices, information and data needed, the agricultural chemicals of concern and plans for development of the GMP.

(2) Upon completion of the activities listed in (1) the department will prepare a draft GMP. The department will solicit through meetings and correspondence additional agency and public comment on the draft GMP. Copies of the GMP will be available for public review and comment at the department's Helena office. Additional copies will be made available for agency and public review and comment dependent upon available resources. The department will consider public comments, revise the draft if necessary, and submit the draft or revised draft GMP to the department of health and environmental sciences (DHES) for that department's review and comments in accordance with ARM 4.11.402.

(3) The department will prepare a final GMP upon completion of the DHES 30 day review and comment period. If no substantive modifications are made, the plan will be finalized and implemented by the department. If substantive modifications are made the department will provide for additional public comment.

(4) The department, in cooperation with the MSUES as set forth in ARM 4.11.204 and with other agencies, user groups and the public, will disseminate the GMP information to chemical user groups and the public.

(5) Copies of the GMP will be made available to the public upon request. The department may charge for the printing and mailing cost of the document.

(a) the extent and nature of the problem;

(b) the type of agricultural chemical(s) involved;

(c) soil and water analytical results;

(d) geological and aquifer characteristics when known;

(e) land use patterns;

(f) soil type and related characteristics;

(g) meteorological conditions;

(h) depth to ground water;

(i) current and potential beneficial uses of the

groundwater;

(j) physiography;

(k) jurisdictional and ownership boundaries; and

(l) other elements deemed necessary by the department.

(2) Information and data contained in the SMP will be obtained from a variety of sources. The department will attempt to acquire the most recent and accurate information available. If appropriate data is not available the department will proceed with the SMP utilizing the expertise of knowledgeable persons. The department and associated persons may conduct studies to obtain data and information that are lacking. Once these data or information are obtained the SMP will be evaluated to determine if revisions are necessary. A list of all data and information obtained during the development of the SMP will be available from the department.

(a) prepare an outline for the SMP for use at public meetings, which will include a description of the facts and circumstances that led the department to identify the need for a SMP;

(b) sponsor interagency and public meetings;

(c) consult with local, state and federal agencies, universities, and agricultural chemical user groups and the public, to identify the provisions, best management plans and practices, information and data needed, other agricultural chemicals of concern and plans for development of the SMP;

(d) consult with the MSUES to identify the benefits of appropriate use of the agricultural chemicals within the proposed SMZ of the SMP.

(2) Upon completion of these activities the department will prepare draft SMP rules. The department will submit the draft SMP to the DHES for that department's review and comment in accordance with ARM 4.11.402.

(3) Once the department has reviewed and incorporated appropriate DHES comments on the draft SMP, draft rules will be noticed into the Montana Administrative Register. Public comment and hearing provisions of Title 2, chapter 4, MCA will be followed by the department.

(a) properties and volumes of the agricultural chemical(s) being used in a SMZ or region of the state that could cause ground water impairment or degradation;

(b) the concentration(s) or migration of agricultural chemicals detected in ground water;

(c) the number of persons and/or water wells that are or reasonably could be affected in a SMZ or region of the state;

(d) the problem cannot be completely corrected through an enforcement option other than a SMP;

(e) vulnerability of the ground water to impairment or degradation;

(f) other documented factors deemed appropriate by the department.

(2) Changes in format, grammar, DHES standards ( 80-15-102 (20) , MCA) or classification of ground water and updated monitoring results, are excluded from the management plan review process.

(3) Within the 30-day review and comment period the DHES may request meetings with the department to discuss provisions of the plans and resolve questions and issues.

(4) The department will consider DHES comments or suggested modifications and incorporate those found appropriate in the final draft of the GMP, future modifications to the final GMP, draft rules for any SMP and future proposed rules for a SMP.

(5) The department will prepare a final GMP in accordance with ARM 4.11.203.

(6) The department will prepare the proposed SMP rules upon completion of the DHES 30-day review and comment period. The department will publish the proposed rules in the Montana Administrative Register.

(2) Monitoring shall be used to determine:

(a) the occurrence, extent and probability of agricultural chemical impairment or degradation of ground water in Montana;

(b) the need for intensified monitoring in a particular location;

(c) the need for preparation of specific ground water management plans as provided in 80-15-212 , MCA;

(d) compliance with the requirements of Title 80, chapter 15, MCA and rules adopted thereunder; and

(e) whether the provisions of a SMP are reducing the occurrence or concentration of agricultural chemicals in the environment.

(a) local cropping practices;

(b) agricultural chemical use patterns;

(c) soil characteristics;

(d) depth to water table;

(e) ground water usage:

(i) public or private drinking water supply;

(ii) non-potable use;

(f) existing water quality;

(g) previous detections of agricultural chemical residues in ground water;

(h) the potential for adverse impact of impaired or degraded ground water on human health or the environment:

(i) number of wells per unit area;

(ii) volume of ground water used for human consumption per unit area.

(i) impairment or degradation of irrigation water;

(j) agricultural chemical user activities which may lead to ground water impairment or degradation;

(k) suspected misuse of chemicals, violation of Title 80, chapter 15, MCA, or violation of a SMP.

(2) The department will consider seasonal changes in ground water recharge and flux and irrigation scheduling when determining appropriate times to sample water.

(3) The department will re-evaluate site prioritization based on new or updated information.

(2) A test result submitted to the department or the DHES must be accompanied by QA/QC field and laboratory procedures if it is to be considered as an official test result.

(1) The department will review and evaluate all official ground water test results. Official ground water test results will be classified as either:

(a) negative detection;

(b) positive detection below the adopted standard;

(c) positive detection which meets or exceeds the adopted standard;

(d) positive detection for which there is no standard.

(2) Negative detections will be entered into the departments ground water data base and reported to the affected person.

(3) Positive detections lower than 50% of the standard will be entered into the departments database, reported to the affected person, and will be noted as a well to be resampled to observe changes in agricultural chemical concentrations in the aquifer. The department will prepare a SMP under 80-15-212 (1) (b) or (c) , MCA, if additional monitoring demonstrates a scientifically-validated increase in agricultural chemical residues in ground water or if an agricultural chemical has migrated from the point of detection.

(4) Positive detections that meet or exceed 50% of the standards will be reported to the affected persons and resampled to confirm the results.

(5) If positive detections are confirmed, the following steps will be taken:

(a) enter in ground water database;

(b) intensify monitoring in the immediate vicinity, to identify the source(s) of impairment or degradation and to determine the extent of impairment or degradation;

(c) conduct investigation into the possible cause of impairment or degradation;

(d) prepare a specific management plan as provided in 80-15-212 , MCA; and

(e) initiate any necessary enforcement monitoring.

(6) An unofficial test result may be used to:

(a) initiate monitoring in a particular area;

(b) notify local and state agricultural, environmental and health officials.

(a)  when misuse of an agricultural chemical is suspected;

(b)  if an inspection reveals that an agricultural chemical may impair or degrade ground water; and

(c)  if monitoring reveals the presence of an agricultural chemical in ground water.

(a)  compliance dates;

(b)  compliance with special agricultural chemical use and record keeping requirements;

(c)  removal or treatment orders for soil or water clean-up;

(d)  provisions of compliance orders, emergency orders, enforcement actions and SMPIs; and

(e)  other requirements of Title 80, chapter 15, MCA.

(2)  Based upon the evaluations, the department may develop new or revised orders or SMPs, or take additional enforcement actions to ensure compliance. New or revised SMPs will be developed following procedures in ARM 4.11.304. The department in cooperation with MSUES may also revise the agricultural chemical ground water educational programs.

evaluate the GMP and established SMPs according to procedures in ARM 4.11.205 and 4.11.306.

(a)  characteristics of the chemical that influences entry into ground water such as water solubility, half-life, absorption and adsorption;

(b)  depth to and direction of flow, volume and rate of ground water;

(c)  distance to existing wells or other conduits to ground water;

(d)  soil characteristics including depth, texture, organic matter and permeability;

(e)  amount of chemical used, spilled, dumped or otherwise available to enter ground water;

(f)  land features that could influence chemical movement such as surface water drainage;

(g)  precipitation;

(h)  cropping history and irrigation; and

(i)  other factors deemed appropriate by the department.

(a)  the name of the person or persons to whom the order will be served;

(b)  the authority of the department for issuing the order;

(c)  a description of the actions that constitute the alleged violation or that may constitute significant probability and the provisions of the act or rule that establish the violation;

(d)  the corrective actions required by the department;

(e)  criteria for determining the duration of any required monitoring;

(f)  the time frame within which corrective actions are to be initiated, conducted and completed; and

(g)  appeal rights under Title 2, chapter 4, MCA.

(2)  In determining the time for compliance the department will consider the gravity of the violation using criteria set forth in ARM 4.11.915.

(a)  monitoring to determine residue levels, trends and movement of agricultural chemicals in ground water, soils or other materials;

(b)  characterization of ground water features such as direction of flow, depth and rate of flow;

(c)  inventory of wells, surface water features, springs, groundwater recharge areas, and other ground water resources in the area or in a SMZ that may be affected;

(d)  monitoring the direction, depth and rate of movement of any impaired or degraded ground water;

(e)  removal and disposal, relocation or treatment of soil or other materials;

(f)  provision for alternate water supplies for drinking and suitable water for irrigation and other beneficial uses;

(g)  provision for removal or reduction of agricultural chemicals from impaired or degraded ground water using appropriate clean-up technology;

(h)  procedural or operational changes that prevent, reduce or minimize the probability of ground water impairment or degradation from agricultural chemicals; and

(i)  other provisions deemed appropriate to protect ground water.

(2)  The department may require that persons who are served with a compliance or emergency order submit a written plan that describes the procedures for conducting corrective actions. Examples of procedures that may be required include quality assurance procedures, analytical methods, detection limits, sampling and monitoring methods, clean-up and the other provisions of this rule.

(a)  Required ground water monitoring shall continue until residues in ground water are within levels established in the compliance or emergency order by the department in consultation with the DHES.

(b)  The department when determining duration of monitoring, shall consider the following factors: classification of the ground water, present and future beneficial uses, the standard, the laboratory detection level and whether or not the impaired or degraded ground water is affecting other persons or aquifers.

(c)  The department may require that ground water monitoring continue for one or more annual hydrologic cycles after analytical results fall within the accepted level.

(2)  The department may require that persons who are served with a compliance or emergency order submit a written plan that describes the procedures for conducting corrective actions. Examples of procedures that may be required include quality assurance procedures, analytical methods, detection limits, sampling and monitoring methods, clean-up and the other provisions of this rule.

(1)  Each violation of Title 80, chapter 15, MCA, or rules adopted thereunder is considered a separate offense. As stated in 80-15-412, MCA each offense is subject to a separate penalty not to exceed $1,000, with the exception of farm applicators possessing a pesticide permit or using a fertilizer whose penalty cannot exceed $500 for the first offense.

(2)  The penalty matrices set forth in this rule establish the initial penalty value for each offense. The significance of the violation, the degree of care exercised and whether significant harm resulted to health, environment, agricultural crops or livestock may decrease or increase a penalty within the limits listed below. A person may present information on their ability to stay in business, as set forth in ARM 4.11.912, petitioning for a reduction in the proposed civil penalty. The department shall have the option to select the most appropriate penalty and penalty value for each and every violation of the act.

         

AGRICULTURE PENALTY MATRIX
Type of Violation	1ST Offense	2ND Offense	3RD and Subsequent Offense
(a)  Violate any lawful      provision of a SMP:	100-1000	500-1000	750-1000
(b)  Violate any provision      of a lawful order:	100-1000	500-1000	750-1000
(c)  Violate any provision      of Title 80, chapter      15, MCA;	100-1000	500-1000	750-1000

(2)  A violation may be considered more grave when:

(a)  a restricted use pesticide defined by ARM 4.10.1501(90)  is involved versus a general use pesticide as defined by ARM 4.10.1501(50)  ;

(b)  a pesticide is involved that is more toxic than other available, effective registered pesticides;

(c)  agricultural chemical levels in ground water meet or exceed the standard, pursuant to 80-15-201, MCA;

(d)  the extent, and severity of the violation results in harm to health, environment, or agriculture crops, or livestock;

(e)  use is inconsistent with label directions and precautions or department rules;

(f)  the person's history of compliance illustrates continued noncompliance or disregard for compliance;

(g)  the violation results in impairment or degradation of ground or surface water;

(h)  a person uses an agricultural chemical which is not registered or labeled, or has been cancelled, suspended or banned by EPA or the department by statute, rule or order;

(i)  a person does not possess the proper pesticide license credential or permit to use or purchase a pesticide, or is not supervised as required by Title 80, chapter 8 or Title 80, chapter 15, MCA and rules adopted thereunder;

(j)  records are not maintained or are improperly maintained;

(k)  the person has knowledge of Title 80, chapter 15, MCA, and rules adopted thereunder or specific management plans which were violated.

(a)  Negligence means a failure to exercise reasonable care;

(b)  Reasonable care means that degree of care demonstrated with a knowledge of the nature and probable consequences of the act or omission that a prudent person would ordinarily exercise acting in their own concern;

(c)  Gross negligence means knowing, intentional or reckless conduct.

(2)  The department in its investigation and inspection of an alleged violation will attempt to determine and verify the degree of care exercised by a person. If a violation is substantiated the department will consider the degree of care exercised by a person in determining any administrative civil penalty.

(3)  The charged persons may present evidence of the degree of care exercised, which will be considered by the department for the purpose of determining and mitigating the amount of penalty.

(2)  For verification of significant harm the department will consider documented physical evidence and expert opinion from knowledgeable persons. Examples of such persons include pesticide specialists, physicians, toxicologists, biologists, water quality personnel, extension agents, university personnel, product technical representatives, and consultants and other personnel with documented qualifications.

(3)  The following are criteria that the department will consider in determining significant harm including but not limited to:

(a)  exposure to humans resulting in acute illness, chronic illness or death;

(b)  exposure to livestock or other domestic animals resulting in illness, death, or residues in the livestock or by-products that exceed tolerances or prevent marketing or consumption;

(c)  exposure to crops, ornamental plants or other plants being grown or cultivated that results in damage, destruction, reduction in yield or residues that exceed tolerances or prevent marketing or consumption;

(d)  impairment or degradation of ground water that results in adverse effects to any existing or future beneficial use; and

(e)  exposure and adverse impact on plants other than crops, animals other than livestock, soil, water or any other components of the environment.

(2) Pesticide registrants in submitting data or information required by the department under the act, must:

(a) clearly mark any portions thereof which in the registrants opinion are trade secrets or commercial or financial production, sales or use information, and

(b) submit such marked material separately from other material required to be submitted under this act. All submitted document packages containing CBI shall be accompanied by a cover letter describing CBI sections within the document package. Individual pages containing CBI within the submitted document packages shall be clearly marked as confidential.

(3) CBI shall be hand delivered or sent to the department via U.S. postal service, registered mail, return receipt requested or equivalent courier. The wording "Confidential Business Information - Pesticides" shall appear on the outer surface of the mailing container. CBI mailed to the department pursuant to data requirements under Title 80, chapter 15 or

chapter 8, MCA shall be addressed as follows:

Montana Department of Agriculture

Environmental Management Division

Capitol Station

Helena, Mt. 59620

Attention: Division Administrator

(4) CBI received by the department shall be immediately secured in accordance with the procedures of the CBI rules. The director or the director's designee shall be responsible for initiating and maintaining security procedures.

CONFIDENTIAL DATA

NOT A PUBLIC RECORD

(2) All such CBI documents shall be assigned a document tracking number. The director shall designate the personnel responsible for recording the date of receipt, document tracking numbers and subsequent actions on a written tracking sheet which shall be affixed to the CBI document. Reproductions of CBI shall be performed only by authorized professional or clerical personnel as designated by the director. The tracking sheet shall bear the initials of the employee performing the reproductions, and the number of reproductions made. Reproductions or other physical forms of CBI shall be secured and tracked as described for the original CBI. The tracking sheet shall bear the initials and title of any employee authorized by the department or cooperative agency receiving the CBI, the date of receipt and subsequent date of return.

(2) A copy of the log shall be attached to the tracking sheet of each CBI document discussed or distributed at the meeting. CBI shall be deleted from any minutes or transcripts of meetings which are made public. Recordings, minutes or transcripts containing CBI shall be stored and tracked as described for the original CBI. It is unlawful for any person present at a meeting in which CBI is discussed to use confidential data for his own advantage or to reveal the data to the general public.

(2) Persons or agencies, who with intent to defraud, uses or reveals CBI, shall have their access to CBI immediately revoked. Violators, pursuant to 80-15-414 (4) , MCA are subject to a misdemeanor and upon conviction may be fined not more than $5,000 or imprisoned for not more than 1 year, or both.

This rule has been repealed.

This rule has been repealed.