(1) The Act and this subchapter provide that no person may engage in activities regulated under the Act without first obtaining the appropriate exploration license or operating permit from the department, or filing a valid small miner exclusion to the requirement of obtaining an operating permit. Activities regulated under the Act include:

(a) exploration for, or mining of minerals on or below the surface of the earth;

(b) engaging in ore processing;

(c) reprocessing of mine waste rock or tailings;

(d) constructing or operating a hard rock mill;

(e) using cyanide or other metal leaching solvents or ore-processing reagents; and 

(f) disturbing land in anticipation of any of these activities.

(2) Prior to receipt of an exploration license or operating permit the applicant, other than a public or governmental agency, shall deposit with the department a reclamation performance bond in a form and amount as determined by the department in accordance with 82-4-338 , MCA. The license or permit may be issued following receipt and acceptance of the reclamation performance bond, and, at such time, operations may commence.

(3) Section 82-4-390, MCA, provides that open pit mining for gold or silver using heap leaching or vat leaching with cyanide ore-processing reagents is prohibited, except that a mine in operation on November 3, 1998, may continue operating under its existing operating permit or any amended permit that is necessary for continued operation of a mine.

(4) The mining of certain substances is excluded from the Act and this subchapter. See definition of "mineral" in 82-4-303, MCA.

(5) A small miner who signs an agreement described in 82-4-305, MCA, and does not violate the Act and this subchapter, is excluded from certain requirements of the Act as they relate to mining, except as noted in 82-4-305 , MCA. See definition of "small miner" in 82-4-303, MCA. All exploration operations, regardless of size, must comply with the requirements of 82-4-331 and 82-4-332, MCA, and ARM 17.24.103 through 17.24.108. See definitions of "exploration" in ARM 17.24.102 and "mining" in 82-4-303, MCA.

(6) The Act and this subchapter do not apply to a person engaging in a mining activity described in 82-4-310(1) and (2), MCA. The Act and this subchapter apply to a person who, on land owned or controlled by that person, is allowing other persons to engage in mining activities whose activities cumulatively exceed the activity described in 82-4-310(1), MCA.

(7) Subject to the exclusions set forth in the Act and pursuant to the definitions of "surface mining", "mining", "exploration" and "mineral" in the Act, placer or dredge mining, and rock quarrying are included in the application of the Act.

(8) As used in this subchapter, the term "operator" includes a licensee, a permittee, and a small miner. The Act covers the operator's employees and agents as well as subcontractors and the subcontractor's employees and agents. The operator is liable for violations of the Act by its employees, agents and subcontractors (drilling, construction, maintenance or otherwise) and the subcontractor's employees and agents when they are working on the project for which the permit or license was issued or which is subject to an exclusion.

(9) Common use pits and quarries on federal land which are available to the general public for the exclusive or nonexclusive procurement of rock or stone and which are administered by the responsible federal agency under appropriate regulations are not subject to these rules, pursuant to 82-4-309, MCA.

As used in the Act and this subchapter, the following definitions apply:

(1) "Act" means Title 82, chapter 4, part 3, MCA.

(2) "Alternate reclamation" means the return of lands disturbed by mining or mining-related activities to a postmining land use other than that which existed prior to mining. Alternate reclamation must be stable, must have utility and must comply with Title 75, chapters 2, 5, and 6, MCA.

(3) "Bulkhead" means a door, fence or other construction which allows periodic entry to an adit or shaft, adequately secured and locked so that animals and unauthorized persons are denied entry.

(4) "Beneficial use" means use of water as defined in 85-2-102, MCA.

(5) "Collateral bond" means an indemnity agreement for a fixed amount, payable to the department, executed by the operator and supported by depositing with the department cash, negotiable bonds of the United States (not treasury certificates) , state or municipalities, negotiable certificates of deposit or an irrevocable letter of credit of any bank organized or authorized to transact business in the United States or other surety acceptable to the department.

(6) "Disturbed and unreclaimed" means, as used in the definition of "small miner" in 82-4-303, MCA, land affected by mining activities, including reprocessing of tailing or waste material, that has not been restored to a continuing productive use, with proper grading and revegetative procedures to assure:

(a) slope stability;

(b) minimal erosion;

(c) adequate vegetative ground cover (if in keeping with reclaimed use) ;

(d) that no mine discharge water, ground water or surface water passing through a disturbed area will pollute or contaminate any state waters.

(7) "Exclusion" means a statement filed by a small miner pursuant to 82-4-305 , MCA.

(8) "Exploration" includes pilot ore processing plants or sites and associated facilities constructed for the sole purpose of metallurgical or physical testing of ore materials, not to exceed 10,000 short tons, to aid in determining the development potential of an ore body.

(9) "Permit area" is the disturbed land as defined in 82-4-303, MCA, and a minimal area delineated around a disturbance area for the purposes of providing a buffer adjacent to all disturbances, and for the purposes of controlling public access to areas permitted under 82-4-335, MCA. Monitoring wells are not required to be within a contiguous permit boundary, but must be permitted. Other activities are to be included within the permit boundary as follows:

(a) Access roads must be included within the permit area from the point of departure with a public road to the mine site.

(b) Utilities are required to be permitted only within the permit area.

(c) Work camps are not required to be permitted. (However, they are regulated under Title 75, chapter 5, MCA.)

(10) "Placer or dredge mining" includes, but is not limited to, mining by hydraulic giant, ground sluice, rocker or sluice box methods, the use of a dry land dredge, trommel or washing plant, and bucket type floating dredges, all as referred to in Mining Methods and Equipment Illustrated, Montana Bureau of Mines and Geology, Bulletin 63, 1967.

(11) "Plan of operations" means the plans required under 82-4-335 through 82-4-337, MCA, including the reclamation plan defined in 82-4-303, MCA, plus the approved operating, monitoring and contingency plans required in an application for an operating permit.

(12) "Pollute or contaminate any stream" means, as used in 82-4-305, MCA, to conduct any mining or reprocessing of tailing or waste in a manner that will result in deterioration of water quality as specified by standards listed in ARM Title 17, chapter 30, et seq., pursuant to the Montana Water Quality Act, Title 75, chapter 5, et seq., MCA. Any future revisions of these standards adopted in accordance with the provisions of the Montana Water Quality Act, as amended, apply to this definition.

(13) "Reclamation" means the return of lands disturbed by mining or mining-related activities to an approved postmining land use which has stability and utility comparable to that of the premining landscape except for rock faces and open pits which may not be feasible to reclaim to this standard. Those rock faces and open pits must be reclaimed in accordance with 82-4-336 , MCA. The term "reclamation" does not mean restoring the landscape to its premining condition. Reclamation, where appropriate, may include, but is not limited to:

(a) neutralizing cyanide or other processing chemicals;

(b) closure activities for ore heaps, waste rock dumps, and tailing impoundments;

(c) closure activities for surface openings;

(d) grading, soiling and revegetating disturbed lands;

(e) removal of buildings and other structures that have no utility in regard to the approved postmine land use;

(f) other steps necessary to assure long-term compliance with Title 75, chapters 2 and 5, MCA; and

(g) other steps necessary to protect public health and safety at closure.

(14) "Revision" means a change to an operating permit that is exempt under 82-4-342, MCA, from the requirement to prepare an environmental assessment or environmental impact statement.

(15) "Significantly affect the human environment" means an affect on the human environment that meets the criteria of ARM 17.4.608.

(16) "Surety bond" means a surety agreement for a fixed amount, payable to the department, executed by a corporation licensed to do business as a surety in Montana, and guaranteeing performance of the obligations of the Act, the rules and the appropriate permit, exclusion or license.

(1) To secure an exploration license an applicant shall:

(a) pay a filing fee of $100 to the department;

(b) submit an application for an exploration license to the department upon forms prepared and furnished by it;

(c) submit an exploration plan of operations and a map or sketch in sufficient detail to locate the area to be explored as well as the actual proposed disturbances, and to allow the department to adequately determine whether significant environmental problems would be encountered. The plan of operations must state the type of exploration techniques that would be employed in disturbing the land and include a reclamation plan in sufficient detail to allow the department to determine whether the specific reclamation and performance requirements of ARM 17.24.104 through 17.24.108 would be satisfied;

(d) agree to reclaim any surface area disturbed by the applicant during exploration operations, all as may be reasonably required by the department, unless the applicant shall have applied for and been issued an operating permit for the lands so disturbed;

(e) submit a reclamation performance bond with the department in a form and amount determined adequate by the department in accordance with 82-4-338, MCA; and

(f) not be in default of any other reclamation obligation mandated by the Act or rules implementing the Act.

(2) On approval by the department, the applicant will be issued an exploration license renewable annually by filing an annual report on a form provided by the department and payment of the renewal fee of $25.

(3) An exploration licensee is subject to and must agree to the provisions of ARM 17.24.104 through 17.24.107 for reclamation of surface areas disturbed by exploration operations. Because of the inherent difficulties of promulgating regulations of state-wide applicability, the department will allow variance from the following provisions of this rule, if a written request submitted prior to commencement of the subject disturbance is accompanied by the landowner's or land administrator's written consent to the variance and is sufficient to convince the department that the public interest and the intent of the Act are best served by allowing such variance.

(4) In the absence of emergency or suddenly threatened or existing catastrophe, the licensee may not depart from an approved plan without previously obtaining from the department verbal or written approval of the proposed change.

(1) Insofar as possible, all roads must be located on benches, ridge tops and flatter slopes to minimize disturbance and enhance stability.

(2) Road widths may not exceed a 14 foot single lane standard. Turn-outs may be constructed according to the licensee's needs, but the turn-out area may not exceed 30 feet in total width.

(3) No road may be constructed up a stream channel proper or so close that material will spill into the channel. Minor alterations and relocations of streams may be permitted if the stream will not be blocked and if no damage is done to the stream or adjoining landowners. No alteration that affects more than 100 linear feet of the channel of a flowing stream may be approved by the department without advice from the Department of Fish, Wildlife and Parks. Any stream channel alterations must comply with Title 75, chapter 5, MCA.

(4) Road gradients must be kept low except for short pitches to take advantage of topography. Maximum sustained grades may not exceed 8%. Pitch maximum may not exceed 12% and may not be over 300 feet in length.

(5) Insofar as possible, the licensee must keep road cuts reasonably steep to minimize surface disturbances. Cut slopes may not be steeper than 1:1 in soil, sand, gravel, or colluvium; 1/4:1 in lake silts, or more than 0:1 in rock. Where necessary to prevent significant sloughing or slumping, the top of road cuts must be rounded back to a more gentle slope. In selecting a slope angle, to prevent slope failure the licensee should consider at least the following factors: the nature of the material, compaction, slope height and moisture conditions.

(6) A ditch must be provided on both sides of a throughcut and, with the exception of outsloping roads, on the inside shoulder of a cut-fill section, with ditch relief cross drains (water bars) being spaced according to grade. Water must be intercepted before reaching a switchback or large fill, and be routed and released below the fill or switchback, not over it.

(7) Streams must be crossed at or near right angles unless contouring down to the stream bed will result in less potential stream bank erosion. Structure or ford entrances and exits must be constructed to prevent water from flowing down the roadway.

(8) Culverts must be installed at prominent drainage ways, small creeks and springs. Upon abandonment of the road, culverts must be removed and the drainage way reopened. Such culverts must be sufficient to handle runoff expected from a statistical five-year storm and, where necessary, the area adjoining the culvert must be protected from erosion by adequate, inert rock riprap.

(9) Trees and vegetation may be cleared for only the essential width necessary to maintain soil stability and to serve traffic needs. Trees must be felled prior to road construction. When sideslopes are 15% (8.5º) or less, trees and other vegetative debris from clearing operations must be completely disposed of, stockpiled at specified areas, or used as a sediment filter below the road cut. When sideslopes are steeper than 15% (8.5º) , trees and vegetative debris shall be piled neatly below and parallel to the toe of the fill.

(10) Drainage facilities (such as culverts and water bars) must be installed as road construction progresses.

(11) Adequate diagonal drainage barriers (i.e., water bars, drain dips or similarly effective features) must be placed at the following specified intervals:

	Grade (%)		Maximum Spacing (feet)
	0 - 2		200
	3 - 8		150
	9 - 12		80

(12) Roads must be outsloped whenever possible. If roads are to be used during snow season, insloping with proper drainage consideration is acceptable for vehicle safety reasons.

(13) Snowplowing must be done in such a manner that runoff water will not be trapped between the snow berms and flow down the road.

(14) Materials which slough or slump onto the road bed or into the roadside drainage ditch before the licensee completes the exploration project must be disposed of on the road bed or on the fill material in a manner that will not obstruct any of the drainage facilities previously described.

(15) All fill and cut slopes, with the exception of rock faces, must be seeded or planted or both during the first appropriate season following construction of the road.

(16) The department may waive any of the criteria in this section if the applicant proposes methods or technologies that achieve the same or better environmental protection than that expected under the given criteria.

(1) All suitable practically salvaged soil and soil material must be salvaged prior to any other site disturbance, and either stockpiled or used for immediate reclamation.

(2) Except for samples, drilling mud, water and other fluids as well as waste cuttings from drilling operations must be confined to the drill site by the use of storage tanks or sumps or must be disposed of in accordance with a plan approved by the department.

(3) Drill sites must not be constructed in natural flowing streams.

(4) Areas disturbed by removal of vegetation or grading must be kept to the minimum size necessary to accommodate the exploration operation.

(5) Insofar as possible, trenches, discovery pits and other excavations must be located out of natural flowing streams.

(6) Spoil from pits, trenches, shafts, adits, or other excavations must not be located in drainage ways. The lower edge of the spoil bank must be at least five vertical feet above high flow level. Exceptions may be made when it is not physically practical to place spoil at least five vertical feet above the high flow level.

(7) Oil, grease, hydraulic fluid and other petroleum products must not be released on the exploration site. If a release occurs, the contaminated material must be removed immediately and disposed of at a proper disposal site.

(8) Exploration adits, shafts, and other excavations must be secured from unauthorized entry throughout the life of the operation to ensure public safety.

(9) Pilot ore processing plants or sites, as included in the definition of "exploration" in ARM 17.24.102, and permitted under an exploration license, are subject to all applicable requirements of 82-4-335 through 82-4-337 , MCA.

(10) The department may require interim revegetation for the purposes of erosion control on all exploration disturbance areas.

(1) Except as provided in (3) of this rule, all exploration drill holes must be plugged at the surface five to ten feet with cement.

(2) Except as provided in (3) of this rule, exploration drill holes must be plugged with bentonite or a similar compound from the bottom of the hole to within five to ten feet of the surface, and with cement from the top of the bentonite to the surface if one or more of the following conditions apply:

(a) two aquifers are intercepted;

(b) one aquifer is intercepted and an existing or potential beneficial use (domestic, agricultural or fish/ wildlife water supply) exists;

(c) one or more artesian aquifers are intercepted causing either surface flow or significant water rise in the hole; or

(d) the potential exists for downward water loss from an aquifer (cascade effect) as determined by the department.

(3) Exceptions to (1) and (2) of this rule may be granted by the department if:

(a) shallow placer holes are drilled using a churn or percussion drill or similar equipment in alluvium in which the holes will be obliterated as the drill stem is withdrawn, leaving no evidence of the hole;

(b) the drill hole contained no water, is not geologically likely to contain water or the hole is to be destroyed during mining or mining related disturbances;

(c) the drill hole is developed into a water well, monitoring well, or piezometer with the written agreement of the land owner and to the specifications of the appropriate state agency; or

(d) other site-specific hydrogeological and topographic situations necessitate exceptions.

(4) All drill holes must be plugged prior to removing the drill rig from a hole unless removing the drill rig is necessary to the hole plugging operation or unless otherwise approved by the department.

(5) If the flow of an artesian drill hole is not completely stopped, after exhaustion of all methods, the operator must:

(a) obtain a discharge permit from the Department of Environmental Quality; or

(b) develop a water well in compliance with the requirements of other applicable local, state and federal statutes, including water rights. In addition, the land owner must concur, the amount and use of flow must be compatible with the approved postmining land use, and the water quality must meet standards set under the Title 75, chapter 5, MCA.

(6) In areas and geological formations of known artesian well potential, bonding for drill sites must be adequate to ensure artesian hole plugging.

(1) Upon completion of the drilling operation, drill cuttings or core must be removed from the site, disposed of down the hole, or buried. Drilling mud and other nontoxic lubricants must be removed from the site or allowed to percolate into the ground prior to backfilling the sump.

(2) Unless the hole is completed under ARM 17.24.106(3)(c), collar pipe or casing must be removed or cut off below ground level.

(3) Access roads constructed by the licensee to accommodate the exploration project must be returned to a stable slope that approximates the original contour to the extent possible. Where this is not possible (as determined by the department) , compacted surfaces must be ripped or otherwise loosened, drainage structures must be installed in accordance with ARM 17.24.104(11), and the roads must be closed to access by use of locked gates, kelly humps/dips, or other effective method. Exceptions may be made in accordance with the provisions of ARM 17.24.103(3). This requirement may be waived by the department if the landowner requests in writing that the access road be left in place for an identified, alternative, feasible and practicable purpose.

(4) Drill sites constructed by the licensee must be returned to a stable configuration that approximates the original contour to the extent possible. Where the department determines that this is not possible, compacted surfaces must be ripped or otherwise loosened and appropriate drainage must be provided. This requirement may be waived by the department if the landowner requests in writing that the drill site be left in place for an identified, feasible and practicable purpose.

(5) When such actions will not obscure significant evidence relating to the possible presence of an ore deposit or physically hinder further development of the claim, all trenches, bulk sample or discovery pits, and other excavations must be backfilled with the excavated spoil material. If, following a site investigation and discussions with the licensee, the department confirms the necessity for the excavation to remain open, backfilling requirements may be postponed providing the licensee remains in compliance with 82-4-331, and 82-4-332, MCA, and ARM 17.24.103, 17.24.105, and 17.24.153.

(6) Upon termination of the exploration project, the first 25 feet of all adits must be backfilled with waste rock or riprap which will not contribute to the degradation of any discharge water. Shafts must also be backfilled or otherwise securely sealed upon project termination. If, following a site investigation and discussions with the licensee, the department confirms the necessity for an adit or shaft to remain accessible for possible future exploration or development, the adit or shaft must be secured with a steel bulkhead or other equally effective method to prevent unauthorized entry and ensure public safety.

(7) All refuse, buildings, railroad track, and other facilities associated with the exploration project must be removed and disposed of in proper disposal sites. Exceptions may be made by the department if the licensee desires to mine the area and is in compliance with 82-4-332 (4) , MCA. This requirement may also be waived by the department if the landowner requests in writing that specific facilities be left in place for an identified, alternative, feasible and practicable purpose.

(8) All compacted surfaces associated with exploration adits, shafts, pits and associated facilities shall be ripped or otherwise loosened prior to soil replacement.

(9) Unless other reclamation practices are approved by the department, waste dumps associated with new adits excavated for the purposes of underground exploration must be contoured to allow for soil replacement and successful vegetation establishment. When existing, caved (sloughed) adits are reopened for the purposes of exploration and the caved material can be confined to the existing portal pad or waste dump without requiring expansion, contouring is not required. However, the licensee shall provide for appropriate drainage in the portal area, and the portal pad and waste dump must be stabilized with vegetation or by employing other stabilization methods determined acceptable by the department.

(10) Where feasible, soil and soil materials salvaged during construction must be reapplied over all disturbance areas.

(11) Where feasible, all disturbed areas must be revegetated with a seed mixture that is approved by the department.

(12) Appropriate revegetation must be accomplished as soon after necessary grading as possible; however, revegetation must be performed in the proper season in accordance with accepted agricultural and reforestation practices.

(13) In the event that any of the above revegetation efforts are unsuccessful, the licensee must seek the advice of the department and make a second attempt, incorporating such changes and additional procedures as may be expected to provide satisfactory revegetation.

(2) The licensee shall comply with the following conditions of a reclamation deferral:

(a) a current exploration license shall be maintained;

(b) a current and adequate bond shall be maintained;

(c) the licensee shall be actively pursuing an operating permit or have filed a valid exclusion; and

(d) the licensee shall observe any interim monitoring or reclamation requirements as may be reasonably required by the department.

(3) The department shall cancel the deferral and issue an order to reclaim if the licensee fails to meet any of the conditions outlined in (2) , listed above.

(a) land disturbed by development or mining activities must be reclaimed for one or more specified uses, including, but not limited to: forest, pasture, orchard, cropland, residence, recreation, wilderness, industry, habitat (including food, cover or water) for wildlife or other uses. Proposed reclamation need not reclaim subject disturbed areas to a better condition or different use than that which existed prior to development or mining. The applicant must describe:

(i) current uses(s) of area to be disturbed;

(ii) current and proposed uses of nearby land that by its proximity may influence or guide the choice of a reclaimed use of the disturbed area;

(iii) pertinent climatic, topographical, soil, water and wildlife data that govern choice of proposed use of the reclaimed land.

(b) With the use of cross-sections, topographic maps or detailed prose, the proposed topography of the reclaimed land must be adequately described. As specific situations warrant, proper grading must provide for adequately designed contour trenches, benches and rock-lined channelways on disturbed areas. The applicant must submit evidence to assure the department that upon partial or complete saturation with water, graded fill, tailings or spoil slopes will be stable. The proposed grading methods must be described. Where practicable, soil materials from all disturbed areas must be stockpiled and utilized.

(c) The operator must establish vegetative cover commensurate with the proposed land use specified in the reclamation plan.

(d) Where operations result in a need to prevent acid drainage or sedimentation, on or in adjoining lands or streams, there shall be provisions for the construction of earth dams or other reasonable devices to control water drainage, provided the formation of such impoundments or devices shall not interfere with other landowner's rights or contribute to water pollution (as defined in Title 75, chapter 5, MCA) .

(e) All water, tailings or spoil impounding structures must be equipped with spillways or other devices that will protect against washouts during a 100 year flood.

(f) Upon abandonment, water from the development or mining activities shall be diverted or treated in a manner designed to control siltation, erosion or other water pollution damage to streams and natural water courses.

(g) All operations shall be conducted so as to avoid range and forest fires and spontaneous combustion.

(h) Proper precautions must be taken to assure that exposed cuts and tailings or spoil disposal areas will not be subject to wind erosion to the extent that airborne detritus becomes a public nuisance or detriment to the flora and fauna of the area.

(i) In a reclamation plan, the applicant shall provide the department with sufficiently detailed information regarding method(s) of disposal of mining debris, including mill tailings, and the location and size of such areas.

(j) Requirements regarding reclamation of stream channels and stream banks must be flexible to fit circumstances of each stream site. Many stream relocations, however, will be permanent and thus will represent the reclaimed condition of stream channels and stream banks. Accordingly, reclamation plans must contain the following provisions should stream channels or banks be permanently relocated:

(i) the relocation channel shall be of a length equal to or greater than the original channel, unless the department after consideration of the local circumstance shall grant a variance;

(ii) the relocation channel shall contain meanders, riffles and pools similar to those in the original channel;

(iii) stream banks shall be rounded to prevent slumping and sloughing and shall be revegetated in keeping with accepted agriculture or reforestation practices the first appropriate season following channel relocation;

(iv) rock riprap shall be used wherever appropriate.

(k) Sections 82-4-332 and 82-4-335 , MCA, require that maps of the intended development or mining operation(s) accompany applications for permit. Should a copy of such maps, to scale, contain the following additional information (transparent overlays are acceptable) , a separate map need not accompany the reclamation plan:

(i) outline of the area to be disturbed in the first year of operation;

(ii) outline of areas where soil materials will be replaced;

(iii) outline of intended revegetation areas showing plant or seed densities and species chosen;

(iv) location of such structures, drainage features, etc., as may be necessary to prevent erosion of bare slopes and subsequent siltation or other pollution of natural flowing streams or other natural water bodies.

(l) Reclamation shall be as concurrent with development or mining operations as feasible and must be completed within a specified reasonable length of time. Revegetation must be accomplished in the first appropriate season after necessary grading, in accordance with accepted agricultural or reforestation practices.

(m) All facilities constructed as part of the operating permit must be reclaimed for the approved postmine land use. The reclamation plan must provide for removal of buildings and other structures at closure consistent with the postmine land use.

(n) The plan must provide for postmine environmental monitoring programs and contingency plans for the postreclamation permit area. The monitoring programs and contingency plans must be related in scope and duration to the risk to public safety, water quality and adjacent lands they were designed to address.

(1) Applicant must obtain an operating permit for each mine complex on a form prescribed by the department.

(2) To obtain an operating permit the applicant shall pay a $500 fee.

(3) In addition to the information required by 82-4-335 (4) , MCA, an application for an operating permit must describe the following:

(a) the existing environment;

(b) soil salvage and stockpiling activities and measures to protect soil from erosion and contamination;

(c) provisions for the prevention of wind erosion of all disturbed areas;

(d) the design, construction, and operation of the mine, mill, tailings, and waste rock disposal facilities;

(e) the facilities, buildings, and capacity of mill or processing;

(f) the proposed date for commencement of mining, the minerals to be mined, and a proposed conceptual life of mine operations;

(g) the designs of diversions, impoundments, and sediment control structures to be constructed reflecting their safety, utility, and stability;

(h) the location of access, haul, and other support roads and provisions for their construction and maintenance that control and minimize channeling and other erosion;

(i) the source and volume of incoming ore, tailings, or waste rock;

(j) the equipment and chemicals to be used in the operation by location and task;

(k) the general chemical processes and the purpose, amount, and source of water used in the operation and the disposition of any process waste water or solutions;

(l) the ground and surface water monitoring programs to be implemented and a contingency plan addressing accidental discharges to ground or surface water;

(m) a fire protection plan;

(n) a toxic spill contingency plan with certification that notice of the filing of the plan has been provided to the state fire marshal;

(o) the sewage treatment facilities and solid waste disposal sites;

(p) the power needs and source(s) , including fuel storage sites;

(q) the anticipated employment including direct and onsite contract employees;

(r) the transportation network to be used during the construction and operation phases, including a list of the type and amount of traffic at mine or mill capacity;

(s) the predicted noise levels by activities during construction and operations;

(t) the protective measures for archaeological and historical values in the areas to be mined;

(u) the protective measures designed to avoid foreseeable situations of unnecessary damage to flora and fauna in or adjacent to the area.

(4) The application must include a map or maps to scale of the mine area and area to be disturbed (such map must locate the proposed mine and facilities and must locate and identify streams, and proposed roads, railroads, and utility lines in the immediate area and residences and wells within one mile of the permit area) . All maps provided in the application must have a uniform base, a scale, and a north directional arrow.

(5) The application must include a reclamation plan that meets the requirements of 82-4-336 , MCA, and this subchapter.

(1) The following conditions accompany the issuance of each permit:

(a) The permittee shall conduct all operations as described in:

(i) the plan of operations including the approved operating, reclamation, monitoring, and contingency plans;

(ii) any express conditions which the department places on the permit to ensure compliance with the Act or this subchapter promulgated pursuant thereto;

(iii) written commitments made by the permittee in response to deficiencies identified by the department during the permit application review process;

(iv) mitigation measures mutually developed by the department and permittee pursuant to 75-1-201(4)(b), MCA; and

(v) plans or assumptions used in calculating bond amounts that have been posted by the permittee.

(b) If the department issued the permit because the applicant was maintaining a good faith direct appeal in accordance with 82-4-335, MCA, the permittee will immediately submit proof upon resolution of the appeal that the violation has been or is being corrected to the satisfaction of the regulatory agency or the permittee will cease operations.

(c) Except as provided in ARM 17.24.144(1)(f) and 17.24.146(2), the permittee shall maintain in effect at all times a bond in the amount established by the department. Upon failure of the permittee to maintain such bond coverage because of expiration or cancellation of bond, the permit is suspended and the permittee shall cease mining operations until substitute bond is filed with and approved by the department.

(2) The annual report must include the information outlined under 82-4-339 , MCA. In addition, the annual report must include:

(a) the number of acres of land affected by the operation during the preceding year and cumulatively;

(b) the extent of backfilling and grading performed during the preceding year and cumulatively;

(c) the area of land planted;

(d) the type of planting or seeding;

(e) the mixtures and amounts seeded;

(f) the species, location, and method of planting for site or species specific plantings;

(g) the date of seeding or planting;

(h) cumulative acres reseeded to date;

(i) cumulative acres of completed reclamation and the date each increment was completed; and

(j) maps showing the information required in (2) (a) through (i) .

(3) Each annual report must include an inventory of soils volumes which includes:

(a) cubic yards salvaged in the preceding year and cumulatively;

(b) cubic yards to be salvaged in the coming year;

(c) cumulative volume of soils contained in stockpiles; and

(d) replaced soil depths and volumes.

(4) Each annual report for those operations using cyanide or other metal leaching solvents or reagents or having the potential to generate acid must provide a narrative summary of water balance conditions during the preceding year and identify excess water holding capacity at the time of the annual report.

(5) When incremental bond has been approved, additional bond must be submitted, in the amount required, with the annual report and the status of incremental bonding must be described.

(6) If changes in facilities have occurred in the preceding year, the annual report must, pursuant to 82-4-339 (1) (f) , MCA, update the permit map required under ARM 17.24.115. The updated map must depict all approved surface features, as required by the department, in or associated with the permit area, reproduced at a scale applicable for field use.

(7) If cultural resource mitigations identified in the permit will be ongoing through the life of the operation, the annual report must include an updated cultural resource management table, including a list of sites mitigated and disturbed in the preceding year and sites to be mitigated and disturbed in the coming year.

(8) If comprehensive water monitoring is required by the permit, each annual report must include an evaluation of water monitoring reports submitted during the preceding year. The evaluation must include trend analyses for those key site-specific parameters required by the department in the permit.

(9) If site-specific geologic conditions identified in the permit indicate the need for geologic monitoring, each annual report must include monitoring results and must report materials balances as required in the permit.

(10) If site-specific closure requirements identified in the permit include monitoring for cyanide or other metal leaching solvent or reagent neutralization, acid rock drainage development, or similar occurrences, the annual report must include an evaluation of monitoring and testing data required in the permit for closure under 82-4-335 , MCA.

(11) Each annual report must include the names of key personnel for maintenance and monitoring if the operation is shut down.

(12) Each annual report must include any other relevant information required by the permit.

(13) The department shall, by certified mail, notify a permittee, who fails to file an annual report and fee as required by this rule, that the permit will be suspended if the report and fee are not filed within 30 days of receipt of the notice.

(14) If a permittee fails to file an annual report and fee within 30 days of receipt of a notice, the department shall suspend the permit.

(1) An application for a major amendment must:

(a) contain a summary of changes in disturbances, in resources affected, and in construction, operating, reclamation, monitoring, and contingency plans;

(b) provide dated replacement or supplemental resource data, plans, and maps as outlined in ARM 17.24.115, or cross reference applicable data, plans, or maps in the previously permitted plan of operation, in order to identify the existing environment and resources affected, as well as changes in permit boundaries, in total disturbances, and in construction, operating, reclamation, monitoring, and contingency plans;

(c) identify any additional resource data necessary to the evaluation of the proposed amendment;

(d) provide an updated or comprehensive facilities map; and

(e) clearly indicate on the facilities map all bonding areas subject to pre-July 1, 1974, bonding levels. No action under this subsection affects a bond in effect under pre-July 1, 1974, bonding levels.

(2) For an application for a major amendment, the department shall implement the application, notice and hearing requirements for new permits pursuant to 82-4-337 and 82-4-353, MCA, and prepare necessary environmental analyses pursuant to the Montana Environmental Policy Act.

(3) An application for minor amendment must:

(a) contain a summary of proposed changes in sufficient detail for the department to determine whether further environmental analysis under Title 75, chapter 1, MCA, is required;

(b) contain dated replacement pages and necessary supplemental resource data and plans, and maps in order to identify changes in permit boundaries, total disturbances, and plans;

(c) contain an updated or comprehensive facilities map;

(d) contain a statement of the applicant's rationale for asserting nonsignificance pursuant to 82-4-342(5), MCA;

(e) identify previous environmental analyses relevant to the amendment; and

(f) clearly indicate on the facilities map all bonding areas subject to pre-July 1, 1974, bonding levels. No action under this section affects a bond in effect under pre-July 1, 1974, bonding levels.

(4) For a minor amendment, the department shall not implement the application, notice and hearing requirements for new permits pursuant to 82-4-337 and 82-4-353, MCA. The department shall provide the permittee with a notice of decision on the adequacy of the minor amendment application within 30 days of receipt of the application.

(1) An application for revision must include:

(a) a general summary explaining the revision;

(b) a statement of the applicant's rationale for asserting nonsignificance pursuant to 82-4-342(5), MCA;

(c) identification of previous environmental analyses relevant to the revision;

(d) a reference to prior commitments to topsoil salvage, sediment control, reclamation, and other previously approved plans or standards that are applicable to the revision;

(e) documentation of the adequacy of existing bonding, if appropriate;

(f) updated replacement pages and permit map for the permitted plan of operations;

(g) any necessary construction, operating, reclamation, monitoring, and contingency plans; and

(h) an updated or comprehensive facilities map that clearly indicates all areas subject to pre-July 1, 1974, bonding levels. No action under this subsection affects a bond in effect under pre-July 1, 1974, bonding levels.

(2) The department shall provide the permittee with a notice of adequacy of proposed revisions within 30 days of receipt of the application.

(1) At any time during the life of an operation, the department may review an operating permit.

(2) If the department determines that the modification of the reclamation plan is authorized under 82-4-337(4), MCA, it may require such modification under the procedures of (3) through (6).

(3) The department shall send an explanation of the need for modification and a conceptual plan for modification to the permittee, by certified mail, and provide opportunity for hearing, pursuant to Title 2, chapter 4, part 6, MCA.

(4) The permittee shall respond to the department with a request for hearing or a proposed schedule for modification or revision, not to exceed one year, within 30 days of receipt of a letter from the department.

(5) The department may extend the one-year time frame or the time for hearing request for good cause documented by the permittee in writing.

(6) A modification must be submitted in the form of an amendment or a revision and the department shall process the applicant's submittal in accordance with ARM 17.24.119 or 17.24.120.

(2) The permittee shall:

(a) provide the department with a completed application on a form, provided by the department, which includes:

(i) the name and address of the proposed assignee and the name and address of that person's resident agent, if any; and

(ii) the same information as is required in 82-4-335 (4) , (8) , and (9) , MCA, for applications for new permits.

(3) The assignee shall:

(a) commit in writing to conduct the operations in full compliance with the terms and conditions of the permit; and

(b) provide sufficient bond to guarantee performance of the Act, this subchapter and the permit.

(2) In order to obtain permit consolidation, the permittee must submit an application containing the following information:

(a) an explanation of the purpose of the consolidation and a summary of cumulative disturbances;

(b) a single map showing the entire proposed permitted area;

(c) a table showing the consolidated acreage of permitted areas, total permitted disturbance, and total acreage reclaimed to date;

(d) an updated facilities map showing all facilities modifications that have occurred since the issuance of the individual permits. This map may be combined with the permit area map required under (b) above if there is no loss in legibility;

(e) a consolidated bonding map showing what areas, if any, are subject to pre-July 1, 1974, bonding levels and showing which bonds cover which areas; and

(f) a consolidated operating and reclamation plan and supporting maps, showing, as appropriate, the area to which each plan applies. No action under this subsection affects a bond in effect under pre-July 1, 1974, bonding levels.

(3) Following consolidation, annual reports must be submitted on the renewal date of the oldest of the permits to be consolidated.

(1) The department shall conduct an inspection:

(a) at least once per calendar year for each permitted operation; and

(b) at least three times per year for each active operation that:

(i) uses cyanide or other metal leaching solvents or reagents;

(ii) has expected or ongoing acid rock drainage; or

(iii) exceeds 1000 acres in permit area.

(2) The department shall provide copies of operating permit inspection reports to any appropriate state or federal land managing agency, if requested by the agency.

(3) The department shall provide a copy of each report to the operator.

(1) Any person may request an inspection by the department of any operation by furnishing the department with a signed statement, or an oral report followed by a signed statement, giving the department reason to believe that there exists a violation of the Act, the rules adopted pursuant thereto, the permit, the license, or the exclusion; or that there exists a condition or practice that creates an imminent danger to the public or that is causing or can be reasonably expected to cause a significant, imminent environmental harm to land, air, or water resources. The statement must identify the basis for the allegation or provide corroborating evidence. The statement must be placed in the alleged violator's file and becomes a part of the permanent record. The identity of the person supplying information to the department must remain confidential with the department, if requested by that person.

(2) If the report provides the information required above and the department determines the request to present sufficient evidence to warrant a special inspection, the department shall conduct an inspection to determine whether the condition, practice, or violation exists or existed.

(3) Within 30 days of receipt of the requestor's written statement, the department shall send the requestor and the alleged violator a written response which includes the following:

(a) if an inspection was made, a description of the enforcement action taken, or, if no enforcement action was taken, an explanation of why no enforcement action was taken;

(b) if no inspection was made, an explanation of the reason why.

(2) The department may issue a notice of violation and administrative order for a violation identified in a violation letter. The administrative order may assess a penalty, require corrective action, or both.

(3) The alleged violator may, within 30 days of service of the notice of violation and order, respond in writing and may request an informal conference, a contested case hearing, or both, on the issues of whether the violation occurred, whether the corrective action ordered by the department is reasonable, and whether the penalty assessed is proper.

(4) If a contested case hearing has not been requested within 30 days of the date of service of the order, the notice of violation and order become final. If a contested case hearing has been requested, the board shall hold a hearing, make the findings of fact, issue the decision, and, if a violation is found, order payment of any penalty as provided in 82-4-361 , MCA.

(2) The director may, after opportunity for an informal conference, suspend a permit or license for a violation of the Act, this subchapter, or the license or permit that:

(a) may reasonably be expected to create a danger to the health or safety of persons outside the permit area;

(b) may reasonably be expected to cause significant environmental harm to land, air, or water resources; or

(c) remains unabated subsequent to the deadline contained in a corrective action order.

(a) delivering a copy of the order in person to the violator; or

(b) sending a copy of the order by certified mail to the violator at the address on the violator's application for a license or permit or exclusion.

(2) Service is complete upon tender of the order in person. Service by mail is complete within three business days after the date of mailing and is not incomplete because of refusal to accept.

(2) If a suspension order will not completely abate the imminent danger to the health or safety of persons outside the permit or license area in the most expeditious manner physically possible, the director or the director's authorized representative shall impose affirmative obligations on the person to whom it is issued to abate the condition, practice, or violation. The order must specify the time by which abatement must be accomplished and may require, among other things, the use of existing or additional personnel and equipment.

(3) A notice or order may not be vacated because of inability to comply.

(4) If a permit or license has been suspended or revoked, the operator or licensee may not conduct any operations or prospecting pursuant to the permit or license and shall:

(a) if the permit or license is revoked, complete reclamation within the time specified in the order;

(b) if the permit or license is suspended, abate all conditions, practices, or violations, as specified in the order.

(a) costs estimated by using current machinery production handbooks and publications or other documented costs acceptable to the department;

(b) the additional estimated costs to the department which may arise from additional design work, applicable public contracting requirements or the need to bring personnel and equipment to the operating area after its abandonment by the operator;

(c) an additional amount based on factors of cost changes during the preceding five years for the types of activities associated with the reclamation to be performed; and

(d) the additional estimated cost to the department which may arise from management, operation, and maintenance of the site upon temporary or permanent operator insolvency or abandonment, until full bond liquidation can be effected.

(2) The total bond amount calculated by the department must be in place and accepted by the department prior to issuance of the permit, license, or exclusion unless:

(a) the applicable plan identifies phases or increments of disturbance which may be individually identified and for which individual, incremental bonds may be calculated. The plan must provide for bonding increments to be submitted with the annual report and must expressly state that the operator, licensee or small miner may not proceed to the next phase or increment until the bond is in place and has been approved in writing by the department; or

(b) mining will proceed through a progression of contiguous pits and the plan provides for concurrent backfill. In this case, the bond must include the amount necessary to backfill the largest volume pit.

(3) An incremental bond proposal must not be accepted if the operator has received a bonding noncompliance, notice of violation for exceeding the small miner or other acreage limitations, or a notice of violation for conducting activities outside the bonded operating area. This prohibition does not apply if the violation is vacated or if a court rules that a violation did not occur.

(4) Unless the provisions of the bond provide otherwise, the line items in the bond calculations are estimates only and are not limits on spending of any part of the bond to complete any particular task subsequent to forfeiture of the bond or settlement in the context of bond forfeiture proceedings.

(5) An operator may submit bond higher than the amount required by the department. The extra amount remains unobligated to any disturbance until applied against disturbances which result from additional activities approved under an operating permit, license, or exclusion.

(6) Bond released from completed activities may not be applied to subsequent activities or increments until the department has inspected the site, provided public notice and opportunity for comment on the release, and approved the request for release in compliance with 82-4-338 , MCA.

(2) The department shall conduct an overview of the amount of each bond annually and shall conduct a comprehensive bond review at least every five years. The department may conduct additional comprehensive bond reviews if, after modification of the reclamation or operation plan, and annual overview, or an inspection of the permit area, the department determines that an increase of the bond level may be necessary.

(3) If, at the time of an amendment under ARM 17.24.119, a comprehensive bond review is completed, the next comprehensive bond review must occur not more than five years after the issuance of the amendment.

(4) The department shall notify the operator of any proposed bond adjustment and provide the operator an opportunity for an informal conference on the adjustment.

(5) For bond reduction requests by the operator for release of undisturbed land, the operator shall submit a map of the area in question, revise the appropriate active operation maps and document that the area has not been disturbed as a result of previous operating activities. The department shall then conduct an inspection of the proposed area before responding to the request.

(6) An operator or an interested party may request an adjustment of the required performance bond amount upon submission of evidence to the department demonstrating that the method of operation or other circumstances will change the estimated cost to the department to complete the reclamation, contingency procedures, or monitoring activities and therefore warrant a change in the bond amount.

(7) A bond filed for an operating permit obtained under 82-4-335 , MCA, may not be released or decreased until the public has been provided an opportunity for a hearing and a hearing has been held if requested. The department shall provide reasonable statewide and local notice of the opportunity for hearing including, but not limited to, circulation. The department shall provide a 30-day comment period in the notice. A request for hearing must be submitted to the department in writing within the comment period.

(2) The department may not release an existing performance bond until the operator has submitted and the department has approved an acceptable replacement performance bond. A replacement of performance bond pursuant to this rule does not constitute a release of bond under 82-4-338 , MCA.

(2) Liability under any bond, including separate bond increments and indemnity agreements applicable to a single operation, must extend to the entire bonded area.

(a) The department may not accept a surety bond in excess of 10% of the surety company's capital surplus account as shown on a balance sheet certified by a certified public accountant.

(b) The department may not accept a surety bond from a surety company for any person, on all permits held by that person, in excess of three times the company's maximum single obligation as provided in (a) above.

(c) The department may not accept a surety bond from a surety company for any person, on all permits held by that person, unless that surety is registered with the state auditor and is listed in the United States Department of the Treasury Circular 570 as revised.

(d) A power of attorney must be attached to the surety bond.

(e) The surety bond must provide a mechanism for the surety company to give prompt notice to the department and the operator of:

(i) any action alleging bankruptcy or insolvency of the surety or violation that would result in suspension or revocation of the license of the surety;

(ii) cancellation by the operator; and

(iii) cancellation or pending cancellation by the surety.

(f) Upon incapacity of a surety by reason of bankruptcy, insolvency or suspension or revocation of its license, the operator shall be deemed to be without bond coverage and shall promptly notify the department in the manner described in the bond. The department, upon notification, shall, in writing, notify the operator of a reasonable period, not to exceed 90 days, to replace bond coverage. If an adequate bond is not posted by the end of the period allowed, the operator shall cease mineral extraction, comply with the provisions of 82-4-336 (1) , MCA, and immediately commence reclamation in accordance with the Act, this subchapter and the reclamation plan. Mining operations must not resume until the department has determined that an acceptable bond has been posted.

(g) Whenever operations are abandoned concurrent with cancellation of the bond, the department must reclaim the site and forfeit the bond within two years, consistent with 82-4-341 , MCA, for any reclamation obligation incurred in the reclamation of the site.

(2) The department may accept only automatically renewable certificates of deposit from a United States bank.

(3) The department shall require the operator to deposit sufficient amounts of certificates of deposit, to assure that the department will be able to liquidate those certificates prior to maturity, upon forfeiture, for the amount of the bond required pursuant to ARM 17.24.140 and 17.24.141.

(4) The department shall require that each certificate of deposit be made payable to or assigned to the department, both in writing and in the records of the bank issuing the certificate. The department shall require banks issuing these certificates to waive all rights of setoff or liens against these certificates.

(a) The letter must be issued by a bank organized or authorized to do business in the United States.

(b) The letter must be irrevocable prior to a release by the department pursuant to 82-4-338 , MCA.

(c) The letter must be payable to the department in part or in full upon demand and receipt from the department of a notice that the person has failed to comply with a provision of the Act, the rules adopted thereunder, or the permit, license, or exclusion, the failure of which authorizes forfeiture of the bond under the Act.

(d) The letter of credit must provide that, upon expiration, if the department has not notified the bank in writing that substitute bond has been provided or is not required, the bank will immediately pay the department the full amount of the letter less any previous drafts.

(e) The letter must not be for an amount in excess of 10% of the bank's capital surplus account as shown on a balance sheet certified by a certified public accountant.

(f) The department may not accept a letter of credit from a bank for any person, on all permits, licenses, or exemptions held by that person, in excess of three times the company's maximum single obligation as provided in (e) above.

(2) If the department determines that the bank has become unable to fulfill its obligations under the letter of credit, the department shall, in writing, notify the operator and specify a reasonable period, not to exceed 90 days, to replace bond coverage. If an adequate bond is not posted by the end of the period allowed, the operator shall cease mineral extraction and shall comply with the provisions of 82-4-341 , MCA, and shall immediately begin to conduct reclamation operations in accordance with the Act, this subchapter and reclamation plan. Mining operations must not resume until the department has determined that an acceptable bond has been posted.

(2) Documentation of any of the following situations will be adequate evidence of intent not to abandon operations:

(a) the mine or mill work force is on strike while negotiating a new contract;

(b) the mine or mill is shut down because of some failure of the transportation network in moving ore or processed material;

(c) the mine or mill is shut down because of a natural catastrophe and plans to resume operations are being formulated;

(d) the mine or mill is seasonally shut down due to predictable annual variance in the mined product's market or because of inclement weather or seasonal inaccessibility;

(e) the mine or mill is shut down for maintenance or the construction of new facilities;

(f) the mine or mill is forced to temporarily shut down because of violation of other state or federal laws and efforts are being made to remedy the cause of the violation.

(3) At the discretion of the department, the following evidence and any other relevant evidence may be satisfactory to show intent to resume operations:

(a) exhibition of drill core and accompanying assay reports to show that ore minerals still remain in the mine and that they are present in veins or accumulations of sufficient size, grade and accessibility to warrant continued development. Geological, geochemical or geophysical indications of valuable mineralization sufficient to warrant further development or mining will also be considered by the department;

(b) continued employment of a maintenance crew to dewater the mine or replace timbers, etc.;

(c) data recording present and predicted commodity prices, labor and transportation costs, etc., or any other evidence which may show that mining may soon resume on a profitable basis. Board comment: It is recognized that "abandonment or completion of mining" under the operating permit (see 82-4-336 , MCA) is an action commonly predicated upon complex and changing economic circumstances; that cessation of mining need not mean abandonment or completion; and that short of obtaining an operator's records and examining the mine development drill core, the department may be unable to determine the operator's true intent.

This rule has been repealed.

This rule has been repealed.

(1) The operator shall comply with all federal and state laws, and such rules and regulations as are promulgated by the department under the Act.

(1) Affected parties, who are owners of an interest in real property or individuals who reside within an area subject to property damage or safety hazards related to the use of explosives by an operator may file a signed and dated complaint related to use of explosives associated with hard rock mining or exploration activities as follows:

(a) Complaints must be filed in writing with the department.

(b) Complaints must include the following information:

(i) name, mailing address, street address and phone number of the person or persons filing complaint;

(ii) statement of interest in real property or identification of residence within an area subject to property damage or safety hazards related to use of explosives;

(iii) name of person or company using explosives, if known;

(iv) detailed location of explosives use;

(v) date and time of use;

(vi) if property damage is alleged, type of damage including:

(A) type of structure;

(B) nature of damage;

(C) age of structure;

(D) rationale for correlating damage to use of explosives; and

(vii) if safety hazard is alleged, type of safety hazard.

(c) The department shall respond to all complaints by notifying each person who files a complaint whether the department considers the complaint to be credible. A credible complaint is a complaint addressing all requirements listed in (b) in a manner that is not false or without basis on its face.

(2) The department shall promptly investigate a credible complaint by:

(a) immediately providing the operator with a copy of a credible complaint;

(b) documenting the alleged damage or safety hazard with photographs and engineering reports and interviews as appropriate;

(c) requesting and evaluating all available information from the operation allegedly responsible for the problem;

(d) investigating concurrent activity which may have caused or contributed to the problem identified;

(e) conducting appropriate tests, which may include, but are not limited to:

(i) seismograph and airblast monitoring;

(ii) geologic investigation; and

(iii) evaluation of the structural integrity of the structure; and

(f) making written findings, including, if possible, a determination of whether any of the standards in ARM 17.24.159(2)(f)(i), (2)(k)(i), and (2)(o)(iii) were exceeded.

(3) The department shall mail a copy of its written findings to the complainant and the operator.

(a) identification of persons conducting blasting activities and their level of training and experience;

(b) preblasting survey information, if available;

(c) blasting schedule and records identifying as accurately as possible location of the blasting sites and timing of blasts; and

(d) seismograph measurements, if available.

(2) The operator shall make available for interviewing by the department and its consultants all persons involved in the blasting operations.

(3) (a) After the department conducts its preliminary investigation by reviewing the records supplied by the operator using explosives and performs its own appropriate tests, if needed, the department shall do one or more of the following:

(i) if the department's preliminary investigation has determined that property damage or a safety hazard could not have occurred from blasting activities, the department shall give written notification of its findings to all concerned parties;

(ii) if, after its preliminary investigation, the department cannot determine whether property damage or a safety hazard may have occurred as the result of blasting, or if it appears damage or a safety hazard has occurred as the result of blasting, the department shall perform one or more of the following:

(A) continue to conduct its own tests;

(B) conduct additional investigations, including, but not limited to, geologic structure, frequency, and delay sequencing; or

(C) hire a third party consultant to conduct a survey of the blasting operation and, if necessary, structures.

(b) A survey prepared under (a) (ii) (C) must be conducted by a recognized expert on the forces created by blasting and must document the condition of the structure, any blasting damage, any causes for the damage other than blasting, and whether blasting by the operator exceeded the standards contained in ARM 17.24.159(2) (f) (i) , (2) (k) (i) and (2) (o) (iii) . Assessments of structures such as pipes, cables, transmission lines, and wells and other water systems must be limited to surface condition and readily available data. Special attention must be given to the condition of wells and other water systems used for human, animal, or agricultural purposes and to the quantity and quality of the water.

(c) The recognized expert must submit the expert's qualifications to the department for review. At a minimum, the expert must:

(i) have field experience covering at least five previous blasting-related projects; and

(ii) provide a brief summary of the number and type of preblast and postblast investigations along with any conclusions or recommendations resulting from those investigations.

(d) The department shall require that a written report of the survey be prepared and signed by the person who conducted the survey. If the report finds that the standards were exceeded or that the blasting caused damage or safety hazard, the report must include recommendations of any special conditions or proposed adjustments to the blasting procedure that should be incorporated into the blasting plan to prevent damage or hazard. The department shall provide a copy of the report to the complainant and the operator.

(4) (a) If the third party investigation demonstrates that the operator exceeded the standards contained in ARM 17.24.159(2) (f) (i) , (2) (k) (i) or (2) (o) (iii) , or that the damages or a hazard resulted from blasting by the operator, the operator shall reimburse the department for all reasonable fees and expenses it has paid to the third-party consultant.

(b) The operator may file a response, including proposed mitigation measures, to the written report submitted pursuant to (3) (d) within 15 days from receipt of the report.

(c) The department shall respond to the operator in a timely manner with directives and fees for all reasonable expenses incurred in the third-party investigations.

(1) If the department determines that the preponderance of evidence indicates that property damage or safety hazards are or were caused by blasting associated with exploration or mining activities by an operator, the department shall issue an order. In the event the order is not complied with, the department shall issue an order imposing requirements reasonably necessary to prevent property damage or safety hazards.

(2) The department may require as many of the following requirements as are reasonably necessary for this purpose:

(a) Each operator shall comply with all applicable state and federal laws in the use of explosives.

(b) All blasting operations must be conducted by experienced, trained, and competent persons who understand the hazards involved.

(c) A record of each blast occurring over a period to be determined by the department, including seismograph records, must be prepared and retained for at least three years and must be available for inspection by the department on request. Blasting records must be accurate and completed in a timely fashion. The records must contain the following data:

(i) name of the operator conducting the blast;

(ii) location, date, and time of the blast;

(iii) name, signature, and, if applicable, license number and appropriate certification program name of blaster-in-charge;

(iv) direction and distance, in feet, to the nearest inhabited building or structure either:

(A) not located in the permit area; or

(B) not owned nor leased by the person who conducts the mining activities;

(v) weather conditions, including temperature, wind direction and approximate wind velocity;

(vi) type of material blasted;

(vii) number of holes, burden, and spacing;

(viii) diameter and depth of holes;

(ix) types of explosives used;

(x) total weight of explosives used;

(xi) maximum weight of explosives detonated within any eight-millisecond period;

(xii) maximum number of holes detonated within any eight-millisecond period;

(xiii) initiation system;

(xiv) type and length of stemming;

(xv) mats or other protections used;

(xvi) type of delay detonator and delay periods used;

(xvii) sketch of the delay pattern;

(xviii) number of persons in the blasting crew;

(xix) seismographic and airblast records, where required, including:

(A) the calibration signal of the gain setting or certification of annual calibration;

(B) seismographic reading, including exact location of seismograph and its distance from the blast, airblast reading, dates and times of readings;

(C) name of the person taking the seismograph reading; and

(D) name of the person and firm analyzing the seismographic record.

(d) When blasting is conducted in an area where access is not restricted, warning and all-clear signals of different character that are audible at all points within a range of 1/2 mile from the point of the blast must be given. Each person within the permit area and each person who resides or regularly works within 1/2 mile of the permit area must be notified of the meaning of the signals through appropriate instructions. These instructions must be periodically delivered or otherwise communicated in a manner that can be reasonably expected to inform such persons of the meaning of the signals.

(e) Blasting must not eject flyrock off property controlled by the operator. Access to the blasting area and to areas where blasting effects, such as flyrock, occur, must be controlled by methods such as signs and fencing to prevent the presence of livestock or unauthorized personnel during blasting and until an authorized representative of the operator has reasonably determined:

(i) that no unusual circumstances, such as imminent slides or undetonated charges, exist; and

(ii) that access to and travel in or through the area can be safely resumed.

(f) (i) Airblast must be controlled so that it does not exceed the values specified below at any dwelling, public building, school, church, or commercial, public, or institutional structure, unless the structure is owned by the operator and is not leased to any other person. If a building owned by the operator is leased to another person, the lessee may sign a waiver relieving the operator from meeting the airblast limitations of this section.

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Lower Frequency limit of                                                   Maximum level in

measuring system, Hertz (Hz) (+3dB)                               decibels (dB)

0.1 Hz or lower - flat response .........................................134 peak.

2 Hz or lower - flat response ............................................133 peak.

6 Hz or lower - flat response ............................................129 peak.

C-weighted, slow response .............................................105 peak dBC.

If necessary to prevent damage based upon the consultant's report, the department shall specify lower maximum allowable airblast levels than those above.

___________________________________________________________________

(ii) In all cases, except the C-weighted, slow-response system, the measuring systems used must have a flat frequency response of at least 200 Hz at the upper end. The C-weighted system must be measured with a Type 1 sound level meter that meets the standard American National Standards Institute (ANSI) S 1.4-1971 specifications. These specifications are hereby incorporated by reference. Copies of this publication are on file with the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901.

(iii) The operator may satisfy the provisions of this subsection by meeting any of the four specifications in the chart in (i) .

(iv) The operator shall conduct periodic monitoring to ensure compliance with the airblast standards. The department may require an airblast measurement of any or all blasts, and may specify the location of such measurements, except as noted in (i) .

(g) Whenever the standards contained in (k) (i) and (o) (iii) have been exceeded, or whenever, based upon the consultant's report, it has been determined to be necessary to protect public safety or property, the department may require modification of blasting activities to protect:

(i) public, private or institution building, including any dwelling, school, church, hospital, or nursing facility; and

(ii) facilities including, but not limited to, disposal wells, petroleum or gas storage facilities, municipal water storage facilities, fluid transmission pipelines, gas or oil collection lines, or water and sewage lines or any active or abandoned underground mine.

(h) A blast design, including measures to protect the facilities in (g) must be submitted to the department prior to continued blasting.

(i) Flyrock, including blasted material traveling along the ground, must not be cast from the blasting vicinity more than half the distance to the nearest dwelling or other occupied structure and in no case beyond the line of property owned or leased by the permittee, or beyond the area of regulated access required under (e) .

(j) Blasting must be conducted to prevent injury to persons, damage to public or private property outside the permit area, adverse impacts on any underground mine, and change in the course, channel, or availability of ground or surface waters outside the permit area.

(k) (i) In all blasting operations, except as otherwise authorized in this subsection, the maximum peak particle velocity must not exceed the following limits at the location of any dwelling, public building, school, church, or commercial, public, or institutional structure:

___________________________________________________________________

Distance (D)                                 Maximum allowable                             Scaled-distance

from the                                         peak particle velocity                           factor to be applied

blasting site,                                 (V max) for ground                                without seismic

in feet                                             vibration, in inches/                              monitoring (Ds)

                                                       second

___________________________________________________________________

0 to 300                                                   1.25                                              50

301 to 5,000                                            1.00                                             55

5,001 and beyond                                   0.75                                             65

___________________________________________________________________

(ii) Peak particle velocities must be recorded in three mutually perpendicular directions. The maximum peak particle velocity is the largest of any of the three measurements.

(iii) The department shall reduce the maximum peak velocity allowed if a lower standard is required, based upon the consultant's report, to prevent damage or to protect public safety because of density of population or land use, age or type of structure, geology or hydrology of the area, frequency of blasts, or other factors.

(l) If blasting is conducted in such a manner as to avoid adverse impacts on any underground mine and changes in the course, channel, or availability of ground or surface water outside the permit area, then the maximum peak particle velocity limitation of (k) does not apply at the following locations:

(i) at structures owned by the operator and not leased to another party; and

(ii) at structures owned by the operator and leased to another party, if a written waiver by the lessee is submitted to the department prior to blasting.

(m) An equation for determining the maximum weight of explosives that can be detonated within any eight-millisecond period is in (n) . If the blasting is conducted in accordance with this equation, the peak particle velocity is deemed to be within the limits specified in (k) .

(n) The maximum weight of explosives to be detonated within any eight-millisecond period may be determined by the formula

W=(D/Ds) ² where W=the maximum weight of explosives, in pounds, that can be detonated in any eight-millisecond period; D=the distance, in feet, from the blast to the nearest public building or structure, dwelling, school, church, or commercial or institutional building or structure, except as noted in (l) ; and Ds=the scaled distance factor, using the values identified in (k) .

(o) (i) Whenever a seismograph is used to monitor the velocity of ground motion and the peak particle velocity limits of (k) are not exceeded, the equation in (n) need not be used. If that equation is not used by the operator, a seismograph record must be obtained for each shot.

(ii) The use of a modified equation to determine maximum weight of explosives per delay for blasting operations at a particular site may be approved by the department, on receipt of a petition accompanied by reports including seismograph records of test blasting on the site. The department may not approve the use of a modified equation if the peak particle velocity for the limits specified in (k) are exceeded, meeting a 95% statistical confidence level.

(iii) The operator may use the ground vibration limits in Figure 1 (30 CFR 816.67(d) (4) ) as an alternative to (i) and (ii) , upon approval by the department.

(iv) The department may require a seismograph record of any or all blasts and may specify the location at which the measurements are to be taken.

(1) "Alternate land use" means, with regard to a mill facility, reclamation of a site to an alternative postmining land use where the following conditions are met:

(a) The proposed postmilling land use is compatible with adjacent land use, and applicable landowner authorization.

(b) Retention of the structure is consistent with the proposed postmining land use. This shall be documented through inclusion of a schedule showing how the proposed use will be achieved within a reasonable time after milling and will be sustained.

(c) Plans for alternate land use must be integrated with the requirements of ARM 17.24.169 for the grading and revegetation of the surrounding area.

(d) Plans must document, if appropriate, that financing, attainment, and maintenance of the alternative land use is feasible.

(e) The proposed use will:

(i) not present actual or probable hazard to public health or safety;

(ii) comply with the air and water quality acts; and

(iii) minimize adverse effects on fish, wildlife, and related environmental values.

(2) "Contingency plan" means, with regard to spilled process solution, a plan which includes, but is not limited to, steps for containment, neutralization, and removal, and identification of any associated training needs.

(3) "Description of existing environment" means a description with appropriate maps of the condition of the proposed project area prior to exploration or operation. The description shall provide, but not be limited to, a discussion which characterizes each of the following:

(a) geology;

(b) soils;

(c) vegetation including, but not limited to, canopy cover, diversity, use, and productivity;

(d) wildlife;

(e) hydrology (surface and ground water characteristics, quantity, quality, and use) , including maps which identify springs, seeps, and wells within one mile of the permit boundary and three miles down gradient unless a lesser distance is justified and agreed to by the department;

(f) air quality and climate;

(g) aquatic biology;

(h) land use and ownership;

(i) recreation;

(j) cultural/historic resources identified as a result of inventory and of file searches conducted by the State Historic Preservation Office;

(k) noise;

(l) transportation;

(m) aesthetics.

(4) "Expansion of a mill facility" means disturbance of an area not previously disturbed by the milling operation, and, in the case of a waste dump, tailing impoundment, or similar facility, a change in the design capacity that will result in an increase in land disturbance at an existing mill facility. When disturbance of an area not previously disturbed by the operation occurs at a dump, impoundment or similar facility, the department may regulate the previously disturbed area to the extent necessary to achieve reclamation of the expansion area.

(5) "Facility" means any building, impoundment, embankment, waste or tailings disposal site, or other man-made structure associated with a particular activity. Mill facility means a mill and associated structures, disturbance and development.

(6) "Mill" means any facility for ore, tailings, or waste rock processing and disposal. This term does not include smelting, or refining facilities, sample collection processes, and pilot testing performed pursuant to an exploration license.

(7) "Plan" means that information submitted to the department pertaining to a proposed or ongoing milling related activity which utilized narratives, engineering designs, maps, cross-sections, or other documentation which adequately describes the activity.

(8) "Reclamation" means removal of facilities, unless an alternate land use is approved and the regrading, contouring, and revegetation of disturbed land. For the purpose of ARM 17.24.166 through 17.24.170, reclamation shall be deemed complete when the disturbed land is restored to a comparable utility and stability as that of adjacent areas, except for open pits and rock faces which may not be feasible to reclaim. Reclamation of previously disturbed areas is required only to the extent feasible given the pre-existing condition of the site.

(9) "Reclamation to the extent practicable and feasible" means, with regard to reprocessing of waste rock and tailings:

(a) where waste rock and tailings have previously been reclaimed under the Act and this subchapter, compliance with the standards set for an operating permit;

(b) where waste rock and tailings have not previously been subject to the reclamation requirements of the Act and this subchapter and are to be redisturbed under the proposed permit, the following:

(i) reclamation of any reprocessed waste rock and tails and associated facilities consistent with the standards of this definition;

(ii) salvage and replacement of available soil or suitable materials;

(iii) use of suitable materials at the surface of any reprocessed waste rock to the extent practicable;

(iv) grading of slopes to a stable angle, treating with appropriate soils amendments and vegetating with a perennial seed mix;

(v) amending and seeding the regraded site such that utility is improved over that which existed prior to reprocessing;

(vi) preservation of water quality at least to the level that existed prior to reprocessing.

(2) For mills under permit on June 1, 1990 existing bond must be upgraded at the time of the next permit amendment, unless the department requires earlier upgrading or an operator chooses to update the mill permit information and bond prior to that time. Prior to updating information, the operator shall meet with the department to determine the appropriateness of the requirements in ARM 17.24.168 to the specific situation. Any requirement determined not applicable shall be documented in the permit with the reasons for the determination.

(3) Mills constructed as a part of a new mining operation must be permitted under the mine operating permit using the information required in ARM 17.24.167 through 17.24.170.

(2) Prior to receiving an operating permit, the applicant must:

(a) pay a $500 filing fee to the department unless the mill application is associated with and submitted concurrently with a new operating permit application submitted under 82-4-335 , MCA;

(b) indicate the proposed date for commencement of milling and the minerals to be milled and the conceptual life of the mill;

(c) provide a map or maps to scale of the mill area (such map must locate the proposed mill and must locate and identify streams, and proposed roads, railroads, and utility lines in the immediate area and residences and wells within one mile of the permit area) . All maps provided in the application must have a uniform base, a scale, and a north directional arrow;

(d) file a reclamation bond pursuant to 82-4-338 , MCA;

(e) file a plan of operation including construction, operating, monitoring and contingency plans; and

(f) file a reclamation plan.

(3) The department shall provide public notice of mill applications, consistent with 82-4-353 , MCA.

(a) a description of the existing environment;

(b) a plan of operations that includes:

(i) all of the matters required by 82-4-335 (3) (d) through (k) , MCA, excepting the mine map;

(ii) maps enhancing narratives which use the same base and scale as required by ARM 17.24.167(2) (c) ; where appropriate;

(iii) a description of the design, construction, and operation of the mill, tailings, and waste rock disposal facilities;

(iv) a list of equipment and chemicals to be used in the operation by location and task;

(v) a description of all buildings and identification of mill design capacity;

(vi) a description of topsoil salvage and stockpiling activities;

(vii) a description of the general chemical processes and the purpose and amount and source of water used in the operation and the amount and disposition of any process wastewater or solutions to be disposed;

(viii) a description of the power needs and source(s) , including fuel storage sites;

(ix) sewage treatment and facilities and solid waste disposal sites;

(x) a description of the transportation network to be used or built during the construction and operation phases, and a listing of the type and amount of traffic at mill capacity;

(xi) a description of the fire protection plan and the toxic spill contingency plan and a certification that notice of the filing of the plan has been provided to the state fire marshal;

(xii) plans describing the design and operation of all diversions and impounding structures and sediment control. Descriptions shall be detailed enough to provide an accurate depiction of the safety, utility and stability of such structures;

(xiii) a discussion of predicted noise levels by activities during construction and operational phases;

(xiv) a discussion of the potential and known archaeological and cultural values in the area of potential environmental effect for the project and a discussion of how such values are to be given consideration;

(xv) provisions for the prevention of wind erosion of all disturbed areas;

(xvi) a description of the provisions for protection of off-site flora and fauna;

(xvii) plans for the monitoring of ground water and surface water until continuous compliance with water quality standards is demonstrated, and a contingency plan in case of accidental discharge describing remedial action in cases requiring emergency action;

(xviii) a plan for the protection of topsoil stockpiles from erosion and contamination; and

(xix) a listing of known sources and volumes of incoming ore, tailings, or waste rock.

(c) (i) anticipated employment including both direct and onsite contract employees;

(ii) if the mill is proposed to be operated in conjunction with a mine operated by applicant, personnel requirements by location and task for construction and operation phases. (Operations meeting the definition of "large scale mineral development" in 90-6-302 , MCA, must also comply with the Hard Rock Impact Act, Title 90, chapter 6, part 3, MCA) .

(2) Annual reports must be submitted consistent with 82-4-339 , MCA, and include in addition:

(a) sources and volumes of incoming ore;

(b) volumes of tailings or waste generated;

(c) water monitoring report;

(d) remaining waste and tails capacity.

(3) Plans submitted under ARM 17.24.167, 17.24.168, and 17.24.169, must be consistent with plans filed with other permitting authorities.

(a) all of the requirements of a reclamation plan set forth in 82-4-303 (13) (a) and (d) through (h) , 82-4-336 , MCA, and ARM 17.24.115;

(b) a regarding plan which leaves all disturbed areas in a stable configuration and which conforms with the proposed subsequent use of the land after reclamation. The department may require the use of cross-sections, topographic maps or detailed narrative, or a combination of these, to ensure that the application adequately describes the proposed topography of the reclaimed land. All reclaimed slopes on materials potentially acid or toxic forming shall be graded to assure future erosion of acid and toxic forming materials offsite is prevented using prudent slope angle and length;

(c) a description of the manner in which the soil materials will be redistributed from the stockpiles to the area to be reclaimed (e.g., truck/loader, scrapers) , to provide for adequate revegetation;

(d) a description of the methods by which surface and ground water will be restored or maintained to meet the criteria of Title 75, chapters 5 and 6, MCA, as amended, or rules adopted pursuant to these laws, including methods used to monitor for accidental discharge of objectionable (potential toxic or acid-producing) materials, plans for detoxification or neutralization of such materials, and remedial action plans for control and mitigation of discharges to surface or ground water;

(e) a plan for the reestablishment of vegetation which conforms with the proposed subsequent use of the land after reclamation. Such revegetation plan must consider the following:

(i) The first objective in revegetation is to stabilize the area as quickly as possible after it has been disturbed. Plants that will give a quick, protective cover and those that will enrich the soil must be given priority. Plants reestablished must be in keeping with the intended reclaimed use of the land.

(ii) Appropriate revegetation must be accomplished as soon after necessary grading as possible; however, revegetation must be performed in the proper season in accordance with accepted agricultural and reforestation practices.

(iii) In the event that any of the above revegetation efforts are unsuccessful, the permittee shall seek the advice of the department and make additional attempts, incorporating such changes and additional procedures as may be expected to provide satisfactory revegetation;

(f) a schedule describing the manner and deadlines for the removal of facilities including, but not limited to, the removal of buildings or related structures, or a plan meeting the requirements for alternative land use.

(2) The department may require additional measures necessary to ensure that the disturbed area is reclaimed in accordance with the Act.

(1) Milling operations are presumed completed or ceased and thus are subject to the reclamation time schedule outlined in the approved reclamation plan when the mill has ceased operations for a period of two years or more. A permittee may rebut this assumption by providing evidence satisfactory to the department, consistent with ARM 17.24.150(2) , that the operations have not in fact been abandoned or completed.

(2) Reclamation plans must provide that all discharges from completed operations or operations in a state of temporary cessation will be consistent with provisions of ARM 17.24.151.

(2) A person who institutes a new reprocessing operation after May 31, 1990, who is not a small miner must obtain an operating permit before engaging reprocessing operations or disturbing land in anticipation of these operations.

(3) A person who wishes to continue a reprocessing operation that was conducted at any time during the 12 months immediately preceding the effective date of these rules must, in order to continue those operations no later than December 1, 1990, obtain an operating permit. Operations not conducted within the 12 months immediately preceding the effective date of this rule are considered new operations for the purposes of this rule.

(1) "Commence reclamation within six months" means to commence reclamation within six months or the first seasonal opportunity after mining is not resumed after a seasonal closure;

(2) "Live stream" means a stream with flowing water;

(3) "Pay gravel" means gravels containing sufficient mineralization to be economic;

(4) "Plant" means a support facility, including a wash or processing plant, for a placer or dredge operation;

(5) "Sedimentation" means solid material settled from suspension in a liquid; mineral or organic solid material that is being transported or has been moved from its site of origin by air, water, or ice, and has come to rest on the earth's surface either above or below sea level; or inorganic or organic particles originating from weathering, chemical precipitation or biological activity.

(1) A small miner who operates a placer or dredge mine shall post a $10,000 bond unless the department approves a lower amount based on the criteria outlined in (2) or unless it is documented that a bond for reclamation is posted with another government agency.

(a) Bond must be filed in the form of a surety, payable to the state of Montana or to the state and the appropriate federal agency, a cash deposit, an assignment of certificate of deposit, letter of credit, or other surety acceptable to the department.

(b) The bond must be accompanied by an appropriate map showing the location of the mine, anticipated disturbances, and perennial streams in the vicinity.

(c) A small miner placer or dredge mine operator that posted a bond with the department prior to May 15, 1997, for a mine is not required to post a bond in excess of $5,000 for that mine.

(2) The department shall reduce the required bonding amount if the small miner submits an operating plan documenting that the cost of reclamation to the department would be less than $10,000. The information needed to make such a determination includes the following:

(a) a description of the proposed mining operation and foreseeable expansion;

(b) a description of the mine support facilities;

(c) the type of equipment and capacity of the plant;

(d) an estimate of pit and pond sizes and volumes of all soil, overburden and placer gravel stockpiles;

(e) description of mining sequence and maximum acreage to be disturbed and unreclaimed at any one time at the mine being bonded;

(f) a description of any water diversions required by the operation;

(g) a topographic map locating mine pit, ponds, diversions, roads, process area, and stream drainages and materials storage sites. This map should include a reference to existing locatable monuments or landmarks on the ground;

(h) the depth of soil, overburden and pay zones to be excavated;

(i) the average and maximum rate of pay gravel removal;

(j) the length and width of roads and average size of the plant area;

(k) any proposal to use suitable settling pond sediments as soil amendment if limited soil is available;

(l) a proposed permanent seed mixture and rate of application (lbs/ac) ;

(m) characterization of stream channel and riparian conditions for locations where disturbance is proposed;

(n) identification of the construction method and materials to be used to reclaim soils, overburden, gravel stockpiles, and other disturbances and to reestablish functioning streams and associated floodplains where stream channels have been disturbed;

(o) an erosion control plan which contains the appropriate elements from ARM 17.24.182;

(p) whenever applicable, a description of the status of 404 permits issued pursuant to the federal Clean Water Act and plans of operation required by federal land management agencies; and

(q) status of 310 permit compliance, pursuant to 75-7-101, MCA, et seq., and status of Montana pollution discharge elimination permit compliance pursuant to 75-5-401, MCA, et seq.

(a) Mining equipment should not be operated in a live stream or diversion, or in any manner to cause bank caving or erosion of the bank of any live stream or diversion.

(b) The amount of make-up water should be limited to only the amount required to operate the wash plant with spent water being recirculated back to the wash plant.

(c) Runoff from undisturbed areas should be minimized through use of temporary berms.

(d) Adequate temporary berms and/or natural undisturbed areas of vegetation should be placed or left as a buffer zone around diversion ditches and live streams to prevent water quality degradation and erosion of disturbed areas as a result of runoff from a ten-year, 24-hour precipitation event.

(e) During operations, care should be taken to protect streambanks and streambank vegetation, streambanks, ditches, and diversions should be lined, riprapped, or otherwise stabilized to prevent excess erosion.

(f) Roads should:

(i) be constructed to provide controlled drainage, include culverts, waterbars, and slash filters necessary to facilitate drainage and minimize erosion and be constructed to reduce concentrated flows;

(ii) be located on well-drained soils and located back from stream bottoms in order to provide a buffer zone for preventing road sediments from washing into stream channels;

(iii) be located outside slide-prone areas characterized by seeps, steep slopes, highly weathered bedrock, clay beds, concave slopes, hummocky topography, and rock layers that dip parallel to the slope;

(iv) be constructed to stabilize sloped exposed surfaces by seeding, compacting, riprapping, benching, mulching or other suitable means prior to fall or spring runoff;

(v) not be left in an erosive condition over a winter season; and

(vi) be used only minimally during wet periods and spring breakup when damage to the roads, which would result in increased sedimentation, is likely to occur.

(g) Cut-and-fill slopes should be constructed at a stable angle and stabilized by seeding, mulching, benching or other suitable means during the same season as construction.

(h) Clearing, grubbing or logging debris should not be placed in streams or used for diversions or cause water quality degradation.

(i) Diversions and impoundments should be sized to pass the ten-year, 24-hour precipitation event. Diversions should be constructed with drop structures or energy dissipators whenever necessary to prevent erosion. Diversion ditch berms should be sloped to account for site-specific conditions, including soils, climate, height of structure and existing natural slopes, and should be revegetated, riprapped, or otherwise stabilized to minimize stream sedimentation.

(j) Before winter shutdown, a small miner should take the following precautions:

(i) Diversions should be sized to pass spring runoff (minimum ten-year, 24-hour event) or streams should be returned to original channels.

(ii) Ponds should have adequate freeboard to prevent over-topping during spring runoff from direct precipitation and over-land flow. Whenever ponds are located within a flood plain and diversions are not sized to pass the ten-year, 24-hour precipitation event, ponds should be filled and reclaimed prior to onset of winter.

(iii) Soil, overburden, and tailings stockpiles should not be placed near streams, unless necessary, and, or if so placed, should be bermed at the toe to prevent erosion of sediments into streams.

(iv) Fuel storage tanks should be drained before winter shut down and should be drained and disposed of in a manner which protects adjacent streams.

(k) Dikes should be constructed around fuel storage areas to prevent a spill or discharge of fuel to any waters.

(2) A placer or dredge operator who proposes a "project", as that term is defined in 75-7-103 , MCA, on a perennial stream, must comply with the requirements of the Natural Streambed and Land Preservation Act, as amended, by obtaining a permit required by the appropriate conservation district.

(3) In order for a SMES placer or dredge operator to meet the reclamation requirements for bond release, the following reclamation planning guidelines should be followed:

(a) A reclamation plan, or appropriate waiver, for all roads is necessary.

(b) The postmine land use should be identified and a reclamation timetable should be established.

(c) Soil should be salvaged from all areas to be disturbed and should be stockpiled for use in reclamation.

(d) Site disturbances should be recontoured to a minimum of 3:1 slopes or flatter by backfilling excavated material, unless otherwise approved by the department as achieving comparable stability and utility in the postmining landscape.

(e) Soil and approved soil amendments should be redistributed over all areas disturbed by mining.

(f) The site should be seeded with perennial nonweedy species.

(g) Stream channels should be reconstructed, using coarse placer tails as necessary to dissipate energy. Riprap, temporary synthetic erosion control, or biodegradable revegetation fabrics in combination with permanent vegetation should be used to stabilize streambanks, as necessary. Streams should be reconstructed with grades, pools, and meanders comparable to premine drainage.

(h) Clays and fines available on-site should be used to create a relatively impermeable layer beneath reclaimed channels and floodplains.

(i) The floodplain should be returned to original contour with the gravel, overburden, and soils replaced to resemble their original stratigraphy.

(2) Bond may not be released unless the following reclamation standards for placer and dredging operations are achieved:

(a) Pits must be backfilled with overburden and washed gravels unless otherwise approved by the department as part of an alternate postmining land use that provides comparable stability and utility.

(b) Excess overburden must also have been appropriately placed and graded.

(c) Soils and soil substitutes must have been respread and graded on the backfilled, regraded overburden surface.

(d) Slopes must have been reduced to a grade which achieves comparable utility and stability in the postmining landscape.

(e) Disturbed areas must have been revegetated with appropriate perennial nonweedy species similar to that of adjacent areas.

(f) Roads must have been reclaimed to approximate original contour consistent with the postmining land form and land use in compliance with (1) unless otherwise approved by the department and concurred with by the landowner.

(g) Stream and floodplain disturbances must be reclaimed to their approximate premining condition so that comparable beneficial uses, such as fisheries, comparable flow capacity, and fluvial functions are restored. In most instances, this will require removal of berms.

(h) Noxious weeds must have been controlled, consistent with county weed board requirements.

(1) If a small miner who conducts a placer or dredge operation fails to commence reclamation within six months after cessation of mining or within an extended period allowed by the department for good cause shown pursuant to (4) , or fails to diligently complete reclamation, the department shall notify the small miner by certified mail at the small miner's last reported address that bond will be forfeited and the department will reclaim the site unless the small miner commences reclamation within 30 days and diligently completes reclamation.

(2) The department shall revoke the small miner exclusion statement for any small miner whose bond is forfeited.

(3) Cessation of mining is considered to have occurred:

(a) whenever a small miner notifies the department of intent to cease operations; or

(b) whenever a site has been inactive through one operating season and the operator has failed to seek an extension for good cause shown.

(4) The department may grant an extension only when a site is temporarily stabilized in a manner which assures stability through spring runoff when impact to the environment will be minimized, and when public safety is ensured.

(5) Diligent completion of reclamation will be considered to have occurred whenever:

(a) a site has been graded and seeded in compliance with the requirements of ARM 17.24.183 during the first planting season, after cessation of activity; and

(b) reclamation standards are achieved within two years of completion of reclamation.

(6) An extension of time to reclaim must be renewed annually.

(7) A forfeited bond must be used as follows:

(a) Whenever reclamation can be achieved using the amount of the forfeited bond, excess funds must be returned to the small miner.

(b) Whenever the department documents in a written finding that reclamation cannot be achieved using the amount of the forfeited bond, funds may be deposited in the environmental rehabilitation and response account established by 82-4-311 , MCA, and reclamation must be conducted as priorities and additional funding allow. Forfeited funds deposited in the account may not be used for reclamation of other sites.

(c) Whenever reclamation costs exceed the bonded amount, the department may issue a notice to the placer or dredge operator that the excess costs are due and payable within 30 days, pursuant to 82-4-305 (6) , MCA. The department may bill the operator only for the cost of activities that are reasonably necessary to return the site to comparable stability and utility and to prevent pollution of state waters as defined in Title 75, chapter 5, MCA.

(2) A small miner must obtain an operating permit for cyanide processing facilities and must meet requirements for these facilities imposed by statute and rule unless the facility is grandfathered pursuant to section 4 of Chapter 347, Laws of 1989.

(3) A small miner proposing to use metal leaching solvents or reagents other than cyanide in an ore processing facility must obtain a permit for those facilities pursuant to 82-4-335 (2) , MCA, for operations for which a valid small miner exclusion statement had not been obtained prior to May 1, 1999.

(4) To expedite permitting of cyanide or other metal leaching solvent or reagent facilities, the department shall make available to a small miner who has submitted or may submit an application for a permit to operate a cyanide or other metal leaching solvent or reagent ore processing facility appropriate department staff to determine how baseline, operating and reclamation plan requirements may be met in view of conditions and characteristics of the site at which the facility is proposed. The department shall process these permit applications as expeditiously as possible consistent with statutory deadlines for other permit applications and the department's obligations under the Montana Environmental Policy Act.

(5) An application for a small miner cyanide or other metal leaching solvent or reagent ore processing operating permit must contain:

(a) baseline information meeting the requirements of ARM 17.24.186;

(b) an operating plan meeting the requirements of ARM 17.24.187; and

(c) a reclamation plan meeting the requirements of ARM 17.24.188.

(a) a map showing all wells and springs and surface water that may be impacted by the proposal within one mile of the proposed permit area;

(b) a map showing all known significant cultural resources in the proposed permit area;

(c) analysis of surface and ground water samples for background parameters determined by the department, from selected sites chosen in consultation with department staff;

(d) a map delineating soil units for the proposed permit area based on available information, including that available from the soil conservation district;

(e) a listing of species of game fish within one mile of the proposed permit area;

(f) identification of any hatcheries in the vicinity of the proposed permit area;

(g) baseline precipitation records;

(h) flow data for surface and ground water identified in (a) and (c) above from available sources and water depth for identified wells; and

(i) identification of public water supply systems that withdraw water within five miles downstream from the ore processing facility.

(a) appropriate maps showing the location of the mine and support facilities, cyanide or other metal leaching solvent or reagent-processing facilities, permit boundaries, and perennial streams;

(b) the average and maximum tonnage/day and per year of ore to be processed and the amount of tailings to be generated;

(c) a narrative description of the precious metal recovery process;

(d) number, size and location of any proposed leach pads and ponds, and ore and tailings piles associated with processing;

(e) leach pad, pond, and waste facility designs;

(f) a plan for a leak detection system, including a program and schedule of monitoring for possible leakage which monitors pH, electrical conductivity (EC) , cyanide as weak acid dissociable (WAD) , other metal leaching solvents or reagents as appropriate, and other constituent levels, for those constituents appropriate to the type of processing proposed;

(g) a remedial action plan for controlling and mitigating discharges to surface waters;

(h) a description of the amount of make-up water required to operate the plant for ore processing;

(i) a plan for disposal of debris generated by clearing, grubbing and logging ensuring that the debris does not impact water quality or water flow;

(j) sediment and erosion controls for surface disturbances related to cyanide processing facilities;

(k) a road design and construction plan that provides controlled drainage, including location and number of culverts, waterbars, and slash filters;

(l) design for and map of adequate berms for placement around diversion ditches and live streams to prevent water quality degeneration and erosion of disturbed areas;

(m) a plan for stabilization of disturbed stream banks to assure that they will not be left in an erosive condition;

(n) a plan to salvage and stockpile soil from all areas to be disturbed by cyanide processing facilities, including stockpiles and wastepiles;

(o) design and construction plans for diversions and sediment impoundments to pass the ten-year, 24-hour precipitation event. A diversion must be constructed with drop structures, or energy dissipators if necessary to prevent erosion. Diversion ditch berms must be sloped to account for site-specific conditions, including soils, climate, height of structure, and existing natural slopes and must be revegetated, riprapped, or otherwise stabilized to prevent stream sedimentation;

(p) a plan for disposal of liquid and solid wastes which includes identification and application areas and the necessary discharge permits;

(q) end-of-season procedures for shutdown of the cyanide processing facility;

(r) a plan for prevention of damage to or for documentation of any significant historic, cultural, archeological and paleontologic feature within the permit areas on state and federal lands;

(s) identification and preliminary evaluation of reasonably feasible alternative facility sites;

(t) a commitment to comply with the operational requirements of this rule;

(u) a map of monitoring site locations which also identifies well depth;

(v) well logs for those wells identified in (u) above; and

(w) a commitment to avoid perennial streams wherever possible; and

(x) for facilities that are exposed to precipitation flows and that carry cyanidated or other metal leaching solvent or reagent solution, a plan that provides for adequate passage of a 50-year 24-hour storm even flow; and

(y) a plan for preventing wildlife access to facilities with cyanidated or other metal leaching solvent or reagent solutions.

(a) the postmine land use;

(b) a reclamation timetable;

(c) the proposed method for handling spent ore and disposal of any heavy metal sludge remaining in ponds;

(d) a plan for monitoring water balance for the ore processing facility;

(e) a neutralization plan for tailing and solutions;

(f) a map showing regrading plans for all cyanide or other metal leaching solvent or reagent-processing and related facilities to a stable, minimally erosive slope configuration by backfilling excavated material, consistent with the postmining land use;

(g) a narrative providing for reclamation of all buildings and structures;

(h) a plan for reclaiming all associated roads, or an appropriate waiver from the surface owner;

(i) a revegetation plan including seed mixes, method of seeding and rate of seed application (lbs/ac) ;

(j) a description of any permanent diversion or stream channel reconstruction process, including use of coarse noncyanidated, nonmineralized tails or borrow material to dissipate energy or riprap streams, or use of synthetic erosion control and revegetation fabrics. Streams must be reconstructed with comparable grades, pools, and meanders to premine drainage;

(k) a plan for stream channel reconstruction providing that the channel may not be reconstructed through reclaimed tails; and addressing control of drainage from the tails and the adjacent areas to maximize the long-term stability of the tails; and

(l) monitoring plans for reclaimed sites.

(2) In addition, a processing facility which would constitute a "project", as that term is defined in 75-7-103 , MCA, on a perennial stream, must comply with the requirements of the Natural Streambed and Land Preservation Act, as amended, by obtaining permits required by the appropriate conservation district.

(1) The small miner shall notify the department of completion dates for each of the following phases of construction, and the department shall inspect and file a report on each of these phases:

(a) foundation preparation;

(b) compaction testing;

(c) liner placement;

(d) installation of leakage detection control systems; and

(e) installation of monitoring wells.

(2) In addition to the applicable performance standards of ARM 17.24.188 and 17.24.101, and 82-4-305 , MCA, the following are required prior to bond release:

(a) neutralization of cyanide or other metal leaching solvent or reagent-containing tailing and solutions to those levels considered acceptable under applicable water quality standards;

(b) submittal of construction reports for tailings, ponds, and other appropriate facilities related to cyanide or other metal leaching solvent or reagent processing, on a monthly basis;

(c) submittal of as-built designs for those facilities identified under ARM 17.24.187(1) (e) , (k) , (l) and (o) , within one month of completion of construction activities.

(3) Bonding for cyanide or other metal leaching solvent or reagent-processing facilities must cover the actual cost of reclamation to the department and the additional estimated cost to the department which may arise from management, operation, and maintenance of the site upon temporary or permanent insolvency or abandonment, until full bond liquidation can be effected. Bonds must be reviewed and, if necessary, adjusted at least once every five years, tied to either the rate of inflation based on the consumer price index, a change in activities, or both, as appropriate.

(4) Bond must be filed in the form of a surety, payable to the state of Montana or to the state and the appropriate federal agency, a cash deposit, an assignment of certificate of deposit, letter of credit, or other surety acceptable to the department.

(1) This subchapter applies to opencut operations as provided in the Opencut Mining Act (Title 82, chapter 4, part 4, MCA, hereinafter referred to as "the Act").

(2) An operator conducting opencut operations must comply with the provisions of a contract or permit issued under the Act and this subchapter. Except as provided in (5) and (6), a permit is required before an operator conducts opencut operations.

(3) Contracts and permits in effect before September 27, 2022, need not be amended to comply with rules and rule amendments adopted on September 27, 2022. Applications for permits, permit amendments, and permit assignments that the department determined to be complete prior to September 27, 2022, remain subject to provisions of this subchapter relating to application requirements as they read on the date the department determined the application to be complete.

(4) Except as provided in (5) and ARM 17.24.226, a permit amendment is required before taking an action that expands or changes a permitted opencut operation.

(5) Except as provided in ARM 17.24.226(5), an operator holding a permit issued under the Act may commence a limited opencut operation that meets the criteria in ARM 17.24.226 and 82-4-431, MCA, after the operator has submitted a complete limited opencut operation form to the department.

(6)  As provided by 82-4-431(3), MCA, a landowner may remove up to 10,000 cubic yards of opencut materials on the landowner's real property for personal or agricultural uses without obtaining a permit unless a removal affects surface water, including intermittent or perennial streams, ground water, or water conveyance facilities. Opencut materials must not be transported outside the borders of the property from which they are mined or adjoining property owned by the same individual or entity.

When used in this subchapter, unless a different meaning clearly appears from the context, the following definitions apply:

(1) "Access road" means an existing or proposed non-public road that connects an opencut operation to a public road or highway. The term includes the roadbed, cut and fill slopes, ditches, and other structures and disturbances related to the construction, use, and reclamation of the access road. 

(2) "Bonded area" means a portion of the permit area that is subject to a reclamation bond or other security approved by the department under this subchapter.

(3) "Clean fill" means soil, overburden, fines, dirt, sand, gravel, rocks, and rebar-free concrete that have not been made impure by contact, commingling, or consolidation with organic compounds such as petroleum hydrocarbons, inorganic metals, or contaminants that meet the definition of hazardous waste under ARM Title 17, chapter 53, or regulated PCB (polychlorinated biphenyls). "Rebar-free concrete" means pieces of concrete that may contain rebar, but from which no rebar protrudes beyond the concrete.

(4) "Department" means the Department of Environmental Quality provided for in 2-15-3501, MCA.

(5) "Dryland permit" means a permit required under 82-4-432(1)(c), MCA and subject to 82-4-432(14), MCA.

(6) "Intermittent stream" means a stream or reach of a stream that is below the local water table for at least some part of the year and obtains its flow from both ground water discharge and surface runoff.

(7) "Materials" has the meaning given in 82-4-403, MCA.

(8) "Non-bonded area" means the portion of a permit area that is not covered by a reclamation bond or other security approved by the department under this subchapter.

(9)  "Occupied dwelling unit" has the meaning given in 82-4-403, MCA.

(10) "Opencut operation" has the meaning given in 82-4-403, MCA.

(11) "Overburden" has the meaning given in 82-4-403, MCA.

(12) "Pattern of violations" means three or more violations of the Act or this subchapter that harm or have the potential to harm human health or the environment. A violation does not contribute to a pattern of violations:

(a) until such time as the opportunity for administrative review, judicial review, or appeal have passed for the violation; or

(b) after the violator demonstrates compliance with all the terms of an administrative or judicial order in an action taken by the department under authority of the Act and this subchapter because of the violation.

(13) "Perennial stream" means a stream or part of a stream that flows continuously during all of the calendar year as a result of ground water discharge or surface runoff.

(14) "Permit area" means the areas subject to a permit granted under this subchapter.

(15) "Removal" means excavation of soil, overburden, and material from its natural condition.

(16) "Slope" means the measure of an incline by means of a ratio of horizontal to vertical distance indicated by a pair of numbers separated by a colon, for example, 3:1, which means one foot of rise over three horizontal feet.

(17) "Soil" has the meaning given in 82-4-403, MCA.

(18) "Standard permit" is a permit that is required under 82-4-432(1)(b), MCA and that is subject to 82-4-432(2) through (13), MCA.

(19) "Tilling" means breaking up the substrate or soil before seeding to a depth of at least one foot to improve conditions for plant growth.

(1) An application for a permit by a non-government operator must be accompanied by a bond or other security acceptable to the department under 82-4-433, MCA, and this subchapter. 

(2) The department may adjust the amount of the bond or other security levels:

(a) based on information available to the department; and

(b) yearly when necessary to secure the department's estimate of costs to reclaim the affected land. Should the department determine that additional bond or other security is required, the operator shall submit a bond or security in the increased amount within 30 days of notification by the department.

(3) The operator shall immediately notify the department if the bond or other security is canceled or becomes ineffective. If the bond or other security is canceled or becomes ineffective, the operator shall reinstate or replace the canceled or ineffective bond or security with another bond or security acceptable to the department under 82-4-433, MCA, and this subchapter, within 30 days of notification by the department that the canceled or ineffective bond or other security must be replaced. In the event that the operator fails to reinstate or replace such bond or other security within the time provided in this rule, the department may suspend any permit secured by the canceled or ineffective bond or other security in accordance with 82-4-442, MCA. The operator shall immediately cease opencut operations, except reclamation activities, on lands covered by a suspended permit.

(4) An operator may apply for release of the bond in phases as follows:

(a) upon completion of phase I reclamation, which includes completion of all the requirements in ARM 17.24.219(1), except the requirements of ARM 17.24.219(1)(h)(ii)(K), (L), and (M). Any phase I reclamation bond or security release must leave sufficient bond or security to secure the estimated cost of completion of phase II reclamation;

(b) upon completion of phase II reclamation, which includes completion of all the requirements of ARM 17.24.219(1).

(5) An application for phase I or phase II bond release or release of other security must be submitted on forms provided by the department, and must include:

(a) a site map that shows:

(i) the existing permit area and release request area;

(ii) the landowner material stockpile area and remaining soil stockpile, if applicable;

(iii) roads; and

(iv) other pertinent mapping items as required by ARM 17.24.221(5);

(b) at least four photographs taken from the north, south, west, and east corners of the release request area; and

(c) for applications for release of bond amounts for phase II reclamation, at least three photographs taken at three different locations in the permit area showing typical vegetation within an area approximately five feet wide and including an object to define scale. 

(6) The department may release a portion of the bond or security when the operator demonstrates completion of a reclamation phase, as defined in (4), for a discrete portion of the permit area if:

(a) the remaining reclamation can be accomplished without disturbance of completed reclamation; and

(b) the remaining amount of bond or security is sufficient to cover estimated cost to complete reclamation of the affected land.

(7) Release of a portion of the bond or security after completion of phase I reclamation does not relieve the operator from responsibility for any reclamation or any increased costs of reclamation necessary to comply with the Act, this subchapter, and the permit until phase II bond release.

(8) State and federal agencies and counties, cities, and towns are not required to post a bond or security. These government operators may request release from responsibility for reclamation in the same manner as nongovernmental operators request bond or security release in accordance with this rule, including release of a portion of the permitted area, except that government operators may not request release of responsibility for phase I reclamation.

This rule has been repealed.

This rule has been repealed.

(1) An application for a permit or for an amendment to add acreage, for an asphalt or concrete plant, to change postmining land use, or to extend the reclamation date must demonstrate that the applicant consulted with the landowner about the proposed opencut operations by supplying a form provided by the department. 

(2) The landowner consultation form must require the landowner to:

(a) acknowledge receipt of a copy of the application for a permit or amendment submitted to the department;

(b) affirm ownership of the property that is described in the application;

(c) affirm that the operator consulted with the landowner about the opencut operations described in the application; 

(d) indicate whether access roads, haul roads, or other roads used in opencut operations are on affected land and are subject to the reclamation requirements of this subchapter;

(e) acknowledge the exclusive right of the operator, its agent, or assignee to conduct opencut operations on the property that is identified in the application; and

(f) acknowledge and consent to entry and enforcement of the Act and this subchapter by the department on all landowner property affected by opencut operations.

(3) The landowner consultation form also must require the operator and the landowner to consent to entry at reasonable times by the department and its employees, agents, or contractors to inspect the property and complete reclamation of all affected lands in accordance with the permit and the plan of operation in the event that the operator fails to do so. 

(1) In addition to the requirements imposed by ARM 17.24.203, 17.24.206, and 17.24.218 through 17.24.222, the department may require the following information as part of the plan of operation for a bentonite mining operation:

(a) an analysis of the soil and each major stratum in the overburden that includes determinations of:

(i) saturation percentage;

(ii) pH;

(iii) electrical conductivity;

(iv) sodium adsorption ratio;

(v) texture; and

(vi) additional characteristics the department may require.

(2) A soil analysis required under (1)(a) must describe:

(a) the identifying number and depth of each sample taken;

(b) the methods by which the samples were taken;

(c) the names and addresses of the persons who took the samples;

(d) the analytical methods used; and

(e) the names and addresses of the persons who analyzed the samples.

(3) A soil analysis required by (1)(a) must be accompanied by a map that describes:

(a) the soil types identified;

(b) the location and depth of each sample taken;

(c) thicknesses of soil and overburden to be stripped for each soil type; and

(d) the dominant vegetative species present on each soil type. 

(4) The department may also require that the plan of operation contain a description of the location and method of disposal of bentonite cleanings, stray bentonite seams, and overburden that are unsuitable for plant growth. Such materials must be buried under at least three feet of material suitable for sustaining the postmining vegetation, but if suitable burial material is not available, then the material that is unsuitable for plant growth must be laid and graded to a condition that is as good or better than the pre-mine condition, minimizes adverse impacts to plant growth, and blends into the surrounding area.

(1) In addition to the requirements imposed by ARM 17.24.203, 17.24.206, and 17.24.218 through 17.24.222, the operator must submit, as part of the application for soil mining, soil and overburden characterization and handling sections as specified in ARM 17.24.218(1)(c) and (d).  

(2) The operator must salvage the top 24 inches of soil for reclamation, or if the operator intends to mine any portion of the top 24 inches of soil, the operator must provide testing and analysis demonstrating that a minimum of 24 inches of growth media remains and that it is capable of supporting the proposed postmining land use.  Required analysis of the remaining 24 inches of soil and overburden must include:

(a) pH;

(b) electrical conductivity;

(c) sodium adsorption ratio;

(d) percent sand, silt, clay, and rock; and

(e) additional characteristics the department may require.

(3) A soil analysis required under (2) must describe:

(a) the identifying number and depth of each sample taken;

(b) the methods by which the samples were taken;

(c) the names and addresses of the persons who took the samples;

(d) the analytical methods used; and

(e) the names and addresses of the persons who analyzed the samples.

(4) A soil analysis required by (2) must be accompanied by a map that describes:

(a) the soil types identified in the top 24 inches removed from the site;

(b) the soil types identified in the 24 inches to remain for reclamation;

(c) the location and depth of each sample taken;

(d) thicknesses of soil and overburden to be stripped for each soil type; and

(e) the dominant vegetative species present on each soil type.

(5) A soil analysis required under (2) must include within the application the above sampling information and a detailed summary that demonstrates the remaining soil can meet the proposed postmining land use.

(1) Upon receipt of an application to conduct opencut operations and within the time limits provided in 82-4-432, MCA, the department shall evaluate the application to determine if the requirements of the Act and this subchapter are satisfied.

(2) Except as provided in 75-1-208(4)(b), MCA, within five working days of receipt of an application to conduct opencut operations, the department shall determine and notify the applicant whether the application is complete. A complete application must be submitted on forms provided by the department, or alternative forms approved by the department prior to submission, and must contain the materials and information required by 82-4-432(1) and (2), MCA, and the plan of operation required by ARM 17.24.218 through 17.24.223.

(3) If the department determines that an application is complete, the applicant shall comply with the public notice requirements required by 82-4-432, MCA, and the department shall review the application for acceptability.

(4) A permit application is acceptable if the materials and information provided to the department demonstrate that the proposed opencut operation complies with requirements of 82-4-432(1) and (2), MCA. An application for a standard permit must contain a plan of operation that meets the requirements of this subchapter.

(5) A permit must provide that the operator shall comply with the requirements of the Act and this subchapter. Before determining that an application for a permit or amendment is acceptable, the department may condition a permit as necessary to accomplish the requirements of the Act and this subchapter.

(6) A permit becomes effective when the department notifies the applicant in writing that the information and materials provided to the department meet all the requirements of the Act and this subchapter and that the permit is approved and issued by the department.

(1) An operator may apply for an amendment to its permit by submitting an application on a form provided by the department. Upon receipt of an amendment application and within the time limits provided in 82-4-432, MCA, the department shall evaluate the amendment application to determine if the requirements of the Act and this subchapter will be satisfied. 

(2) An application to amend a permit is acceptable if it meets the requirements of ARM 17.24.212 and includes the following:

(a) a new or additional bond or other security sufficient to cover additional estimated costs of reclamation required by ARM 17.24.203 and 17.24.220;

(b) a new landowner consultation form if required under ARM 17.24.206;

(c) a new zoning compliance form if required under ARM 17.24.223; and

(d) if the application to amend is for a standard permit, a revised plan of operation.

(3) An amendment becomes effective when the department notifies the applicant in writing that the information and materials provided to the department meet all the requirements of the Act and this subchapter and that the amendment is approved and issued by the department. Once approved, an amendment becomes part of the original permit. 

(1) An operator shall submit one annual production report that addresses all opencut operations during the previous calendar year to the department on or before March 1 of each year.

(2) The annual production report must be submitted electronically or on a form provided by the department. The report must list all sites where the operator engaged in permitted, unpermitted, or limited opencut operations and describe the amount of materials removed for each site.

(3) The annual production report must be accompanied by payment of the annual fee, in accordance with 82-4-437, MCA. The federal government, state of Montana, counties, cities, and towns are exempt from annual fees.

(4) The department may require an operator to provide documentation of materials removed for the purpose of verifying the amounts reported under this rule. 

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(1) An application for a standard permit or standard permit amendment requires a plan of operation that complies with 82-4-432, MCA and includes the following:

(a) unless otherwise approved in writing by the department, a markers section that includes a statement that the operator clearly marked on the ground all required boundaries and permitted access roads to be improved or constructed and will maintain the markings as required by this rule. Boundary and road markers must be placed so that no less than two consecutive markers are readily visible in any direction from any point on a line. The following requirements apply to marking boundaries and permitted access roads to be improved or constructed: 

(i) markers must be in place prior to submitting an application for a permit or an amendment;

(ii) markers should be durable stout steel, wood, or similar quality posts and painted or flagged to be readily visible, except that a prominent, permanent feature such as a pole, tree, or large rock, flagged or painted, may serve as a marker;

(iii) road markers may be removed as the road is constructed, but each boundary marker must be maintained in place and readily visible until the adjacent permit area is reclaimed and released;

(iv) the following areas and features must be marked according to this rule:

(A) proposed permit or proposed amended permit boundaries;

(B) non-bonded areas;

(C) proposed permitted access roads to be improved or constructed;

(D) phase 1 release areas previously approved by the department; and

(E) prior to submission of an application for bond release, areas that are the subject of an application for phase I or phase II bond release;

(v) the requirements of (1)(a) do not apply to active hayland, cropland, or existing roads to be permitted;

(b) an access road construction and use section that is consistent with the landowner's acknowledgements contained in the landowner consultation form required by ARM 17.24.206;

(c) a soil and overburden characterization section that includes the average soil and overburden thicknesses in the permit area determined on the basis of no less than three test holes spaced representatively to describe proposed permit areas of less than nine acres and one test hole per each three-acre area for proposed permit areas of nine acres or more, with a maximum of 20 representatively spaced test holes for proposed permit areas that exceed 60 acres, or as otherwise approved by the department in the permit;

(i) for the purposes of this subsection:

(A) test holes must be of sufficient depth to measure the thicknesses of soil and overburden;

(B) representative test holes must be located in both bonded and non-bonded areas;

(C) exposures of the soil and overburden profile, such as a roadcut, may be used in lieu of a test hole; and

(D) clearly labeled photos showing the top three feet of the soil profile with a visible scale must be taken and provided to the department for each test hole;

(d) a soil and overburden handling section that includes a statement that the operator shall:

(i) upon commencing opencut operations, strip and stockpile overlying soil to the depth specified in the permit before excavating overburden and materials;

(ii) before mining, remove and stockpile overburden separately from soil and designate soil and overburden stockpiles with signage that is legible, readily visible, and placed so that equipment operators and inspectors may readily identify the type of stockpile for the life of the stockpile;

(iii) never stockpile overburden or soil on slopes greater than 3:1 or in drainages or in a manner that will cause pollution to state waters;

(iv) remove all soil and overburden from a minimum ten-foot-wide strip along the crest of a highwall;

(v) haul soil and overburden directly to areas prepared for backfill and grading or resoiling or to separate stockpiles;

(vi) never stockpile overburden or conduct any opencut operations on areas where soil has not been stripped to the depth required by the permit; and

(vii) use best management practices to prevent erosion, commingling, contamination, compaction, and unnecessary disturbance of soil and overburden stockpiles including, but not limited to, at the first seasonal opportunity, shape and seed, with approved perennial species, the soil and overburden stockpiles that are capable of sustaining plant growth, and that remain in place for more than two years and maintain the accessibility of all overburden and soil stockpiles in the permit area prior to reclamation in accordance with the plan of operation;

(viii)  where required by 82-4-434, MCA, berms constructed of soil and/or overburden, must be a minimum of 6 feet high, protected from erosion, commingling, contamination, compaction, and unnecessary disturbance.  At the first seasonal opportunity, the operator must shape and seed, with weed-free seed mix, any berm capable of sustaining plant growth;

(e) a construction, mining, processing, and hauling section that includes:

(i) a description of the materials to be sold or used by the operation;

(ii) a construction project plan that describes the locations and construction schedules for all areas to be disturbed and location of all facilities including offices, parking, vehicle staging areas, roads designated by the landowner as affected land, and processing plants;

(iii) a description of the methods and equipment to be used to mine, haul, and process material;

(iv) a description of the anticipated general mining progression, including the location of the first stripping and excavation, the direction of mining progress, and timing for the mobilization and setup of processing facilities such as a screen, crusher, asphalt plant, wash plant, batch plant, pug mill, and other facilities; and

(v) other information necessary to fully describe the nature and progress of opencut operations;

(f) a water resources section that includes:

(i) identification of the sources of the information reported, such as landowners, field observations, and water well logs;

(ii) the estimated seasonal high and seasonal low water table levels in the permit area and the information sources used, such as landowners, field observations, nearby surface water, and water well logs.

(g) a statement by the operator that:

(i) opencut operations may not occur within prohibited areas described in the permit;

(ii) no opencut operations will occur within an easement unless written permission to do so is obtained from the holder of the dominant estate; and

(iii) before commencing opencut operations, the operator, on a form provided by the department, notified the weed board in the county or counties in which the proposed operation is located. A copy of the form that the applicant submitted to the weed board must be attached to the application;

(h) an additional commitments section that includes a statement that the operator will:

(i) inform key personnel and subcontractors involved in opencut operations of the requirements of the plan of operation;

(ii) promptly notify the state historic preservation office archaeological or historical values are found.

(2) An application for a dryland permit or to amend a dryland permit does not require submission of a plan of operation.

(3) Approval of an application does not relieve the operator from the requirements of any applicable federal, state, county, or local statute, regulation, rule, or ordinance, including requirements to obtain any other permit, license, approval, or permission necessary for the actions described in or required by the application and the permit.

(4) Upon issuance of the permit, the operator shall comply with all commitments required by this rule and with the requirements for the conduct of operations contained in this rule.

(1) An application for a dryland permit or to amend a dryland permit does not require a plan of operation.  An application for a standard permit or to amend a standard permit must include a plan of operation that complies with 82-4-434, MCA and the following:

(a) a postmining land uses section that includes a description of the type, location, and size of each postmining land use area in the permit area. Postmining land use types include, but are not limited to, internal roads, material stockpile areas, pond, wetland, riparian area, grassland, rangeland, shrubland, woodland, pasture, hayland, cropland, wildlife habitat, recreation site, and residential, commercial, and industrial building sites;

(b) a surface cleanup section that includes a statement that the operator will:

(i) at the conclusion of opencut operations, except as provided in (1)(b)(ii), use or haul away from the permit area all excavated or processed material for backfill as provided in (1)(c); 

(ii) upon the request by the landowner, on the landowner consultation form, segregate specific types, grades, and quantities of material into stockpiles maintained in one location, along with a separate stockpile of the quantity of soil required to reclaim the area where the material is stockpiled, shaped, and seeded and placed within 100 feet of a material stockpile;

(iii) a stockpile of materials for the landowner as provided by (1)(b)(ii) must be free of excess fines or other waste materials that would render the material unsuitable for commercial use;

(iv) provide a description of the types, grades, and quantities of material proposed to remain stockpiled as provided by (1)(b)(ii) and (iii), and justify the quantities stockpiled for landowner use based on current and expected demand for the materials;

(v) at the conclusion of opencut operations, haul away and properly dispose of all refuse, oiled surfacing, contaminated materials, concrete that is not clean-fill, and unused clean fill from affected lands;

(vi) haul away all asphaltic pavement from the permit area, except on-site-generated asphaltic pavement may be used as mined-area backfill in accordance with (1)(b)(vii) and with the consent of the landowner;

(vii) place on-site-generated asphaltic pavement, coarse clean fill, and other clean fill unsuitable for plant growth under at least three feet of material suitable for sustaining the postmining vegetation;

(viii) place on-site-generated asphaltic pavement in an unsaturated condition at least 25 feet above the seasonal high water table; and

(ix) for the purposes of (1)(b)(ii) and (iii), the operator remains responsible for reclamation of the areas occupied and affected by material and soil stockpiles until the department has approved phase II reclamation for the areas where the stockpiles are located or assignment of the permit to the landowner or another party;

(c) a backfill and grading section that includes a statement that the operator will:

(i) use only overburden and materials from the permit area, or otherwise only clean fill from any source, to reclaim affected land to a stable condition with 5:1 or flatter slopes for hayland and cropland, 4:1 or flatter slopes for sandy surfaces, and 3:1 or flatter slopes for other sites and surfaces appropriate to the designated postmine land use;

(ii) reclaim premine drainage systems to blend into the surrounding topography and drainages;

(iii) drain off-site or concentrate water in low areas identified in the permit;

(iv) backfill and grade to at least three feet above the seasonal high water table level for dryland reclamation and at approved depths below the seasonal low water table level for pond reclamation;

(v) record the average thickness of overburden replaced and never cover soil with overburden;

(vi) if available, up to 24 inches of soil and overburden must be stripped, salvaged, and replaced for reclamation.  If overburden is a mine material or will be used as binder, an appropriate quantity must first be stripped and salvaged to satisfy the soil plus overburden replacement thickness requirement (24 inches cumulative);

(vii) for the purposes of (1)(c)(i) and (ii), the department may consider steeper slopes for certain postmining land uses based on a design or a slope stability analysis prepared by a professional engineer licensed in accordance with Title 37, chapter 67, part 3, MCA, or a geologist with five years of post-graduate academic or professional work experience in the field of soil or rock mechanics;

(viii) if required by the department, conduct postmining monitoring of ground water levels to ensure that appropriate reclaimed surface elevations are established;

(d) a description of the locations and designs for any special reclamation features such as ponds, waterways with defined channels, and building sites. Reclaimed waterways with defined channels must be located in their approximate premine locations and have channel and floodplain dimensions and gradients that approximate premine conditions, unless otherwise approved by the department. Reclaimed waterways with defined channels must connect to undisturbed waterways in a manner that avoids disruption or accelerated erosion of the reclaimed waterway or adjoining areas;

(e) an access road reclamation section describing:

(i) reclamation of access, haulage, or other roads included on affected land with the landowner's consent; and

(ii) for private roads to remain open at the request of the landowner, reclamation of the road to a width appropriate to the landowner's anticipated use or as may otherwise be required by applicable land use regulations;

(f) a section that explains how the operator will reclaim water diversion, retention, discharge, and outflow structures constructed for opencut operations;

(g) an overburden and soil conditioning section that includes a statement that the operator will:

(i) till replaced overburden, graded surfaces, and other compacted surfaces:

(A) to a depth of at least 12 inches, or to another depth required by the department prior to replacing soil, except that:

(I) tillage is not required for relatively non-compactible materials such as sands, materials with a rock fragment content of 35 percent or more by volume, or bedrock; and

(II) tilling deeper than the soil thickness is not required when cobbly material or bedrock underlies the soil;

(B) on the contour and when the overburden and soil are dry enough to shatter; and

(C) in a manner that protects tilled areas from recompaction;

(ii) record the thicknesses of soil replaced on the permit areas as required by the permit;

(iii) till through replaced soil and into the surface of the underlying backfill prior to seeding or planting unless otherwise required by the department; and

(iv) the soil surface must be free of rocks that are not characteristic of the soil prior to disturbance;

(h) a revegetation section that:

(i) describes the types and rates of fertilizer and other soil amendment applications, methods of seedbed preparation, and methods, species, and rates of seeding or planting; and

(ii) includes a statement that the operator will:

(A) establish vegetation to protect the soils from erosion and that is capable of sustaining the designated postmining land uses;

(B) seed all affected land for vegetation species that are consistent with the premining species composition, cover, production, density, and diversity, or otherwise as appropriate for the designated postmining land use;

(C) ensure that areas seeded or planted to perennial species are adequately protected and managed from the time of seeding or planting through two consecutive growing seasons or until the vegetation is established, whichever is longer;

(D) use seed that is as weed free as is reasonably possible;

(E) ensure that seedbed preparation and drill seeding is done on the contour;

(F) apply drill seeding at the rate of no less than ten pounds per acre or at another rate approved by the department;

(G) apply broadcast seeding at a rate that is at least 100 percent higher than drill seeding rates and drag or press the surface to cover the seed unless otherwise required by the department;

(H) provide seeding rates as pounds of pure live seed per acre;

(I) seed during the late fall or early spring seeding seasons;

(J) apply cover crop seeding and mulch as needed to help stabilize an area or establish vegetation;

(K) achieve revegetation of a non-cropland area by establishing vegetation capable of sustaining the designated postmining land use;

(L) achieve revegetation of a cropland area when a crop has been harvested from the entire area and the yield is comparable to those of crops grown on similar sites under similar growing conditions; and

(M) agree that reclamation for cropland areas will be considered complete upon inspection by the department or notification by the landowner to the department in writing that the crop yield on the reclaimed land is acceptable;

(i) a reclamation schedule section that includes:

(i) a statement that the operator will complete phase I and phase II reclamation on an area no longer needed for opencut operations, or on areas that the operator no longer has the right to use for opencut operations, within one year after the cessation of such operations or termination of such right. If it is not practical for the operator to reclaim a certain area until other areas are also available for reclamation, the operator may propose an alternate reclamation schedule for that area; and

(ii) a reasonable estimate of the month and year by which phase II reclamation will be completed considering the estimated demand for material, expected rate of production, accessible material reserves, and the time required to complete revegetation as required by (1)(g) and (h). Final reclamation must be completed by the date given.

(2) Upon issuance of the permit, the operator shall comply with all commitments required by this rule and with the requirements for the conduct of operations contained in this rule.

(1)  For all permits and amendments, a proposed reclamation bond calculation must be submitted on a form provided by the department or in another format approved by the department in writing. The bond amount must be based on a reasonable estimate of the cost for the department to procure the services of a third-party contractor to reclaim, in accordance with this subchapter, the anticipated maximum disturbance during the life of the bonded opencut operation, including equipment mobilization, contractor profit, and overhead costs. The department shall review the proposed bond calculation and make a final determination.

(2) The estimate of the reclamation costs must address the following considerations:

(a) the requirements for reclamation provided in ARM 17.24.219, 17.24.228, and 82-4-434, MCA;

(b) replacement of all soil and overburden as described in ARM 17.24.219 and 17.24.228;

(c) the permit application; and

(d) postmining site conditions and any other site-specific considerations.

(3) An application for a permit under this subchapter is deficient if the proposed amount of the reclamation bond is insufficient to cover the estimated costs of reclamation required by this rule.

(4) Federal agencies, the state of Montana, counties, cities, and towns are not required to post a bond or other security.

(1) For a standard permit or standard permit amendment, a plan of operation must comply with 82-4-434(2), MCA and include: a site map, area map, reclamation map, location map, and other maps necessary to describe the proposed opencut operation. Except as provided in (6), maps submitted to the department in accordance with this subchapter must be legible, on an air-photo base, and in a scale sufficient to clearly describe the subject matter. An application supported by a map submitted in an electronic format that is incompatible with the department's systems, that cannot be reviewed, or that is otherwise illegible is not acceptable. A map submitted in other than electronic format must fill an 8 1/2- by 11- or 11- by 17-inch sheet leaving margins of approximately 1/2 inch. 

(2) The following items must be shown and labeled on each map submitted to the department: operator name; site name; legal description of the proposed permit area; bar scale; date of drafting; and north arrow.

(3) Site maps must show and identify the following existing and proposed features as applicable:

(a) permitted access roads, including the location, width, waterway crossings, and surfacing;

(b) permit boundaries;

(c) bonded area boundary;

(d) non-bonded area boundary;

(e) excess overburden and fines disposal sites;

(f) staging areas;

(g) heavy equipment parking areas;

(h) fuel storage areas;

(i) sight and sound barriers and berms;

(j) soil stockpile areas;

(k) overburden and excess overburden stockpile areas;

(l) material stockpile areas;

(m) processing facilities, including approximate locations of:

(i) crusher;

(ii) asphalt plant;

(iii) wash plants; and

(iv) concrete plant;

(n) detention ponds;

(o) concrete and asphalt recycling stockpile area;

(p) soil and overburden test hole and observation point locations;

(q) water system and structures, including:

(i) supply wells;

(ii) water recycling and settling ponds;

(iii) surface water extraction points;

(iv) discharge points for water used in opencut operations; and 

(v) all surface waters including, but not limited to, ponds, lakes, wetlands, and defined and/or eroded channels of waterways including, but not limited to, rivers, creeks, intermittent or perennial streams, drainages, ditches, water conveyance facilities, and other waterways;

(r) above and below ground utilities and easements within the permit boundary;

(s) roads crossing areas where opencut activities are prohibited by ARM 17.24.218(1)(g);

(t) erosion controls;

(u) historic disturbances within or adjacent to permit area boundary;

(v) the data point and map identification number for each pair of coordinates the operator provided on the boundary coordinate table that is required by (8); and

(w) any other pertinent features that are necessary to ensure compliance with the Act and rules.

(4) Area maps must show and identify the following features within 1,000 feet outside of the permit boundary:

(a) roads leading to the site;

(b) access roads from the public road turnoff to the permit area (if roads go beyond the area map, show the full extent on the location map) including the location, width, waterway crossings, and surfacing;

(c) water wells based on readily available information, and other water conveyance facilities;

(d) natural and man-made drainage features including, but not limited to, intermittent or perennial streams, wetlands, ponds, springs, ditches, and impoundments in and within 500 feet of access roads and show the defined and/or eroded channel of any such feature and any setback areas, along with a description of the use of any man-made feature;

(e) other opencut operations;

(f) significant geographical features;

(g) residences located within 300 feet of the permit boundary; and

(h) any other pertinent features that are necessary to ensure compliance with the Act and this subchapter.

(5) Reclamation maps must show and identify all the following existing and proposed features in accordance with the plan of operation:

(a) all postmining land uses;

(b) mined area backfill sites;

(c) landowner material stockpile areas to remain;

(d) all roads or portions of roads proposed to remain open, at the request of the landowner, at the conclusion of opencut operations, including road locations, intended use, final width, and surfacing;

(e) long and short axis cross-sections of any pond or depression in which water is expected to collect;

(f) arrows depicting the anticipated direction of water flow across the reclaimed site; and

(g) any other pertinent features that are necessary to ensure compliance with the Act and this subchapter.

(6) The location map may be on an aerial or topo base and must show the site's location in relation to the nearest town or city, and be sufficient to allow the public to locate the proposed site.

(7)  For all permits and amendments, complete and accurate maps must be submitted. The department may require that part or all of the area in and within 500 feet of permitted access roads and 1,000 feet of the permit area be surveyed to provide sufficient map detail and accuracy.

(8) Marker, road, and boundary locations that must be marked in the field under ARM 17.24.218(1)(a) and markers, roads, and boundaries located in hayland or cropland must be provided on a boundary coordinate table form or through another method approved by the department.

(1) The department may require that an operator provide additional information that includes, but is not limited to:

(a) vegetation;

(b) soil;

(c) surface water;

(d) ground water; and

(e) water conveyance facilities.

(2) The information provided pursuant to (1)(a) through (e) must be gathered, analyzed, and presented according to current professionally accepted practices. Field data must be accompanied by the names and addresses of the parties that collected and analyzed the data, and by a description of the methodologies used to gather and analyze the data.

(3) All applications for permits and amendments must include a statement signed and dated by the operator certifying that:

(a) the operator has read and understands the application, the information contained in the application, and all documents submitted in support of the application; 

(b) under penalty of 45-7-203, MCA, all the statements, descriptions, information, and documents provided to the department for the application are true and accurate to the best of the operator's knowledge and belief based upon the exercise of due diligence; and

(c) the operator will follow and adhere to the requirements described in the application and the permit and any amendments to the permit.

(1) Permit applications for sand or gravel opencut operations, including amendment applications that add acreage or change the postmining land use or add an asphalt or concrete plant, must include a statement from the appropriate local governing body certifying, on a form provided by the department, that the proposed mine site and plan of operation comply with local zoning regulations.

(1) A person may assume a permit from an operator by submitting an assignment application to the department. Upon receipt of an assignment application, the department shall inspect the permitted site, if necessary, and evaluate the application and existing permit to determine if the requirements of the Act and this subchapter are satisfied.

(2) The department shall approve an application for assignment of a permit that meets the following requirements:

(a) the application includes a completed copy of the application for assignment on a form provided by the department, and, if required by the department, an application to amend the permit;

(b) the application includes an acknowledgment that:

(i) the assignee has reviewed and understands the terms of the permit that is effective at the time of the assignment;

(ii) the assignee agrees to assume all the obligations set forth in the permit, including the plan of operation, the Act, and this subchapter; and

(iii) the assignee assumes responsibility to reclaim the site in accordance with the terms of the permit, the Act, and this subchapter and for any violations or issues of noncompliance in existence at the time of the assignment;

(c) the assignment application, any necessary permit amendment application, and any necessary revisions to the permit satisfy the requirements of the Act and this subchapter; and

(d) the application includes a reclamation bond or other security that meets the requirements of 82-4-433, MCA, this subchapter, and the plan of operation. 

(3) An assignment becomes effective when the department notifies the applicant in writing that the information and materials provided to the department meet all the requirements of the Act and this subchapter and that the assignment

is approved and issued by the department. Upon notification of the department's approval of the assignment, the assignee becomes responsible for all the obligations described in (2)(b).

(1) An operator shall comply with the provisions of its permit, this subchapter, and the Act. 

(2) A permittee may allow another person to mine and process mine materials at the permitted operator's site only if the permittee retains control over that person's activities and ensures that no violations of the Act, this subchapter, or the permit occur. If a violation of the provisions of the Act, this subchapter, or the permit occurs, the permittee is responsible for the violation and the department may require abatement pursuant to (1) or initiate an enforcement action under the Act. 

(1) An operator holding an opencut permit may conduct a limited opencut operation (LOO) that meets the criteria in 82-4-431(2), MCA, without first obtaining an additional permit or an amendment to an existing permit when, prior to commencing the limited opencut operation, the operator completes and submits to the department appropriate site and opencut operation information on a limited opencut operation form provided by the department.

(2) The operator must submit a completed limited opencut operation form and the following information to the department prior to commencing the opencut operation:

(a) the operator's complete name and address;

(b) the location, in a format acceptable to the department, of the limited opencut operation site;

(c) the locational coordinates of the approximate center of the limited opencut operation site;

(d) the location, in a format acceptable to the department, of the operator's nearest limited opencut operation to the proposed limited opencut operation site;

(e) plans to expand or continue the limited opencut operation in accordance with 82-4-431, MCA;

(f) the landowner's name and address; 

(g) driving directions to access the site from the nearest public road;

(h) a description of the pre-mine condition of the limited opencut operation site and the pre-mine condition of any private access roads to the limited opencut operation site;

(i) an aerial or topographic map of the limited opencut operation site; and

(j) certification by the operator that the information provided to the department in the limited opencut operation form is complete and accurate.

(3) The department's receipt of a limited opencut operation form initiates the timeframes set forth in 82-4-431, MCA, for either:

(a) salvaging soil, removing materials, and reclaiming the limited opencut operation site; or

(b) applying for a permit to continue or expand the opencut operation.

(4) A person conducting a limited opencut operation must comply with the requirements of 82-4-431(2), MCA. The amount of materials and overburden removed from the site cannot exceed 10,000 cubic yards and the total area from which the materials and overburden are removed cannot exceed five acres. This limitation does not include the volume of soil and overburden that is stripped and stockpiled on the limited opencut operation site for site reclamation.

(5) An operator may not commence a limited opencut operation within 300 feet of a permitted operation until the operator submits a written statement to the department that:

(a) no part of the proposed limited opencut operation is on land affected by the permitted operation;

(b) both operations can be reclaimed according to their respective requirements under the Act and this subchapter; and

(c) the principal amount of the new reclamation bond or other security, if required, is sufficient to cover the estimated costs of reclamation of the limited opencut operations under the Act and this subchapter.

(1) Dryland opencut mining operations must:  

(a) not affect surface water, including but not limited to, perennial or intermittent streams;

(b) have a permit boundary that is a minimum of 50 feet from the edge of the high water mark of surface water, or as otherwise approved by the department, including but not limited to, perennial or intermittent streams.

(2) Standard opencut mining operations with a permit boundary that is located less than 50 feet from the edge of the high water mark of surface water, including but not limited to perennial or intermittent streams, must follow the Stream/Waterway Worksheet and include specific, detailed design criteria in the application demonstrating:

(a)  a productive postmining land use can be achieved; and

(b) defined channels can be reconnected to undisturbed drainages/waterways in a stable manner to ensure downstream flow is maintained.

(3) Limited opencut operations (LOOs) may not:

(a) affect surface water, including but not limited to, perennial or intermittent streams;

(b) conduct operations within 50 feet of the edge of the high water mark of surface water, including but not limited to, perennial or intermittent streams.

(1) Dryland permits must meet all the application requirements of 82-4-432(14), MCA. 

(2) Before submitting a dryland permit application, an operator must provide public notice. The applicant must:

(a) post notice of the following in at least two prominent locations at the proposed opencut site, including near a public road if possible:

(i) applicant's name, address, and telephone number;

(ii) proposed permitted acreage;

(iii) type of material to be mined; and

(iv) proposed reclamation date;

(b) mail the notice to surface landowners of land located within one-half mile of the boundary of the proposed opencut permit area using the most current known owners of record as shown in the records of the county clerk and recorder for the county where the proposed opencut operation is located.  The mailed notice must include the following:

(i) applicant's name, address, and telephone number;

(ii) location map meeting the requirements of ARM 17.24.221;

(iii) proposed permitted acreage;

(iv) type of material to be mined; and

(v) proposed reclamation date;

(c) publish a notice at least twice, a minimum of a week apart, in a newspaper of general circulation in the locality of the proposed opencut operation.  The published notice must include the following:

(i) applicant's name, address, and telephone number;

(ii)   location map meeting the requirements of ARM 17.24.221;

(iii) proposed permitted acreage;

(iv) type of material to be mined; and

(v) proposed reclamation date.

(3) If available, up to 24 inches of soil and overburden must be stripped, salvaged, and replaced for reclamation.  If overburden is a mine material or will be used as binder, an appropriate quantity must first be stripped and salvaged to satisfy the soil plus overburden replacement thickness requirement (24 inches cumulative).

(4) The operator must complete phase I reclamation and begin phase II reclamation on any area that the operator no longer needs for opencut operations or no longer has the right to use, within one year after the cessation of such operations or termination of such right.  The operator must request release using forms provided by the department.  If it is not practical for the operator to reclaim a certain area until other areas are also available for reclamation, the operator may propose an alternate reclamation schedule.

(5) Boundary markers and road markers must be placed so that no fewer than two consecutive markers are readily visible in any direction from any point on a line. The following requirements apply to marking boundaries and permitted access roads to be improved or constructed:

(a) markers must be in place before submitting an application for a permit or a permit amendment;

(b) markers should be durable, stout posts made of steel, wood, or similar high-quality materials.  A prominent, permanent feature such as a pole, tree, or large rock may also serve as a marker.  Each marker, whether man-made or natural, must be painted or flagged; 

(c) road markers may be removed as the road is constructed, but each boundary marker must be maintained in place and readily visible until the adjacent permit area is reclaimed and released;

(d) the following areas and features must be marked according to this rule:

(i) proposed permit or proposed amended permit boundaries;

(ii) non-bonded areas;

(iii) proposed permitted access roads to be improved or constructed;

(iv) phase I release areas previously approved by the department; and

(v) before submission of an application for bond release, areas that are the subject of an application for phase I or phase II bond release; and

(vi) the requirements of (5) do not apply to active hayland, cropland, or existing roads to be permitted.

(6) Where required by 82-4-434, MCA, berms constructed of soil and/or overburden must be a minimum of 6 feet high, protected from erosion, commingling, contamination, compaction, and unnecessary disturbance.  At the first seasonal opportunity, the operator must shape and seed, with weed-free seed mix, any berm capable of sustaining plant growth.

(7) The only map required for a dryland permit is a location map as described in ARM 17.24.221(2) and (6).

The following definitions apply to all terms used in the Strip and Underground Mine Reclamation Act and subchapters 3 through 13 of this chapter:

(1) "Abandoned" is defined in 82-4-203, MCA.

(2) "Acid drainage" means water with a pH of less than 6.0 and in which total acidity exceeds total alkalinity, and that is discharged from an active, inactive or abandoned strip or underground mining operation or from an area affected by such operations.

(3) "Acid-forming materials" means earth materials that contain sulfide minerals or other materials which, if exposed to air, water, or microbiological or weathering processes, form acids.

(4) "Act" means the Montana Strip and Underground Mine Reclamation Act (Title 82, chapter 4, part 2, MCA).

(5) "Active mining operation" means an operation at which mining and reclamation activities are regularly occurring on an ongoing basis. See also "inactive mining operation."

(6) "Adjacent area" is defined in 82-4-203, MCA, as "the area outside the permit area where a resource or resources, determined in the context in which the term is used, are or could reasonably be expected to be adversely affected by proposed mining operations, including probable impacts from underground workings."

(7) "Administratively complete application" means an application that contains information addressing application requirements in 82-4-222 and 82-4-231, MCA, and subchapters 3 through 13, and all information necessary to initiate processing and public review.

(8) "Agricultural activities or farming" means, with respect to alluvial valley floors, use of any tract of land for the production of plant or domestic animal life where the use is enhanced or facilitated by subirrigation or flood irrigation associated with alluvial valley floors. These uses include, but are not limited to, the pasturing, grazing, or watering of livestock, and the cropping, cultivation, or harvesting of plants whose production is aided by the availability of water from subirrigation or flood irrigation. Those uses do not include agricultural practices which do not benefit from the availability of water from subirrigation or flood irrigation.

(9) "Agricultural use" means the use of any tract of land for the production of plant or domestic animal life. The uses include, but are not limited to, the pasturing, grazing, and watering of livestock, and the cropping, cultivation, and harvesting of plants.

(10) "Alluvial valley floor" is defined in 82-4-203, MCA.

(11) "Alternative postmining land use" is discussed in 82-4-232(7) and (8), MCA.

(12) "Amendment" means any change in the mine or reclamation plan that results in expansion or decrease of the operation's permitted boundaries, excluding incidental boundary changes. See also "major revision," "minor revision," and "incidental boundary change."

(13) "Applicant/violator system" or "AVS" means an automated information system of applicant, permittee, operator, violation, and related data that the Office of Surface Mining maintains to assist in implementing the Surface Mining Control and Reclamation Act of 1977.

(14) "Approximate original contour" is defined in 82-4-203, MCA.

(15) "Aquifer" is defined in 82-4-203, MCA.

(16) "Area of land affected" is defined in 82-4-203, MCA.

(17) "Arid and semiarid area" means, in the context of alluvial valley floors, an area experiencing water deficits, where water use by native vegetation equals or exceeds that supplied by precipitation.

(18) "Auger mining" means a method of mining coal at a cliff or highwall by drilling holes into an exposed coal seam from the highwall and transporting the coal along an auger bit to the surface.

(19) "Bench" is defined in 82-4-203, MCA.

(20) "Best technology currently available" or "BTCA" means equipment, devices, systems, methods, or techniques that will:

(a) prevent, to the extent possible, additional contributions of suspended solids to stream flow or runoff outside the permit area, but in no event will result in contributions of suspended solids in excess of requirements set by applicable state or federal laws; and

(b) minimize, to the extent possible, disturbances and adverse impacts on fish, wildlife and related environmental values, and achieve enhancement of those resources where practicable. The term includes equipment, devices, systems, methods, or techniques that are currently available anywhere as determined by the department, even if they are not in routine use. The term includes, but is not limited to, construction practices, siting requirements, vegetative selection and planting requirements, animal stocking requirements, scheduling of activities and design of sedimentation structures.

(c) within the constraints of the Act and subchapters 3 through 13, the department has the discretion to determine the BTCA on a case-by-case basis.

(21) "Cemetery" means any area of land where human bodies are interred.

(22) "Coal conservation plan" is defined in 82-4-203, MCA.

(23) "Coal preparation" and "coal preparation plant" are defined in 82-4-203, MCA.

(24) "Coal processing waste" means earth materials which are separated and wasted from the product coal during cleaning, concentrating, or other processing or preparation of coal.

(25) "Collateral bond" means an indemnity agreement in a sum certain that is payable to the department, executed by the permittee, and supported by deposit with the department of cash, negotiable bonds of the United States, state or municipalities, negotiable certificates of deposit or an irrevocable letter of credit of any bank organized or authorized to transact business in the U.S.

(26) "Combustible material" means organic material that is capable of burning, either by fire or through oxidation, accompanied by the evolution of heat and a significant temperature rise.

(27) "Community or institutional building" means any structure, other than a public building or a dwelling, which is used primarily for meetings, gatherings or functions of local civic organizations or other community groups; functions as an educational, cultural, historic, religious, scientific, correctional, mental-health or physical health care facility; or is used for public services including, but not limited to, water supply, power generation or sewage treatment.

(28) "Contour strip mining" is defined in 82-4-203, MCA.

(29) "Cover" is the area of ground covered by the aerial (above ground) plant parts. Cover is usually expressed as absolute cover, relative cover, foliar cover, canopy cover, and/or basal cover.

(30) "Cultural resources" means any historic, archaeologic, or other cultural site. Significant sites, at a minimum, include all sites eligible for or listed on the National Register of Historic Places.

(31) "Cumulative hydrologic impacts" means the expected total qualitative and quantitative, direct and indirect effects of mining and reclamation operations on the hydrologic balance.

(32) "Cumulative hydrologic impact area" means the area, including, but not limited to, the permit and mine plan area within which impacts to the hydrologic balance resulting from the proposed operation may interact with the impacts of all previous, existing and anticipated mining on surface and ground water systems. "Anticipated mining" includes, at a minimum, the entire projected lives through bond release of all operations with pending applications and all operations required to meet diligent development requirements for leased federal coal for which there is actual mine-development information available.

(33) "Disturbed area" means an area from which vegetation, soil, spoil, overburden, fill, or mineral is removed or upon which vegetation, soil, overburden, spoil, fill, sediment, water, processing waste, underground development waste, or garbage or other debris is placed by strip or underground mining and reclamation operations. Those areas are classified as disturbed until reclamation is complete and the performance bond or other assurance is released.

(34) "Diversion" means a channel, embankment, or other manmade structure constructed to divert undisturbed runoff around an area of disturbance and back to an undisturbed channel.

(35) "Domestic water supply" means water received from a well or spring and any appurtenant delivery system that provides water for direct human consumption or household use. Wells and springs that serve only agricultural, commercial or industrial enterprises are not included except to the extent the water supply is for direct human consumption or sanitation or domestic use.

(36) "Downslope" means the land surface between the projected outcrop of the lowest coal seam being mined along each highwall and a valley floor.

(37) "Dwelling" means a building inhabited by or useful for habitation by a person or persons.

(38) "Embankment" means an artificial deposit of material that is raised above the natural surface of the land and used to contain, divert, or store water, support roads or railways, or for other similar purposes.

(39) "Ephemeral drainageway" is defined in 82-4-203, MCA, as "a drainageway that flows only in response to precipitation in the immediate watershed or in response to the melting of a cover of snow or ice and is always above the local water table."

(40) "Essential hydrologic functions" means, with respect to an alluvial valley floor, the collecting, storing, regulating, and making the natural flow of surface or ground water, or both, usefully available for agricultural activities by reason of the valley floor's topographic position, the landscape, and the physical properties of its underlying materials. A combination of these functions provides a water supply during extended periods of low precipitation.

(a) The role of the valley floor in collecting water includes accumulating runoff and discharge from aquifers in sufficient amounts to make the water available at the alluvial valley floor greater than the amount available from direct precipitation.

(b) The role of the alluvial valley floor in storing water involves limiting the rate of discharge of surface water, holding moisture in soils, and holding ground water in porous materials.

(c) The role of the alluvial valley floor in regulating the natural flow of surface water results from the valley geomorphic characteristics and physical configuration of the channel flood plain and adjacent low terraces.

(d) The role of the alluvial valley floor in regulating the natural flow of ground water results from the properties of the aquifers which control inflow and outflow.

(e) The role of the alluvial valley floor in making water usefully available for agricultural activities results from the existence of flood plains and terraces where surface and ground water can be provided in sufficient quantities to support the growth of agriculturally useful plants, from the presence of earth materials suitable for growth of agriculturally useful plants, from the temporal and physical distribution of water making it accessible to plants throughout the critical phases of the growth cycle either by flood irrigation or by subirrigation from the natural control of alluvial valley floors in limiting destructive extremes of stream discharge, and from the erosional stability of earth materials suitable for the growth of agriculturally useful plants.

(41) "Excess spoil" means spoil material disposed of in a location other than the mined-out area, provided that spoil material used to achieve the approximate original contour or to blend the mined-out area with the surrounding terrain, in accordance with ARM 17.24.313 and 17.24.501, in non-steep slope areas may not be considered excess spoil. See ARM 17.24.520.

(42) "Farm" is defined in ARM 17.24.325(3).

(43) "Federal coal regulatory authority" means the federal agency responsible for administration of the Surface Mining Control and Reclamation Act of 1977 (PL 95-87).

(44) "Flood irrigation" means, with respect to alluvial valley floors, supplying water to plants by natural overflow or the diversion of flows, so that the irrigated surface is largely covered by a sheet of water.

(45) "Fragile lands" is defined in ARM 17.24.1141(1).

(46) "Fugitive dust" means that particulate matter not emitted from a duct or stack which becomes airborne due to the forces of wind or strip or underground mining operations or both. During such operations it may include emissions from haul roads, wind erosion of exposed surfaces, storage piles and spoil piles, reclamation operations and other activities in which material is either removed, stored, transported, or redistributed.

(47) "Good ecological integrity" means that the complex of community of organisms and its environment functioning as an ecological unit possesses components and processes in good working order. Pastureland and cropland managed in accordance with county or local conservation district or state or federal best management practices (resource management strategies, such as normal husbandry practices, used to manage or protect a resource and promote ecological and economic sustainability) generally reflect good ecological integrity with regard to such land uses.

(48) "Ground water" means subsurface water or underground streams contained in the unsaturated and saturated zones.

(49) "Habit or characteristic pattern" means, with respect to ARM 17.24.634(1)(a), the particular reactions of drainage channels to general laws related to stream work, channel morphology and stability, whether or not the channels have attained the conditions of equilibrium.

(50) "Head-of-hollow fill" means a fill structure consisting of any material, other than non-coal organic material, placed in the uppermost reaches of a hollow or a naturally occurring drainage where side slopes of the existing hollow or drainage measured at the steepest point are greater than 20% or the average slope of the profile of the hollow or drainage from the toe of the fill to the top of the fill is greater than 10%. In head-of-hollow fills, the top surface of the fill, when completed, is at approximately the same elevation as the adjacent ridge line, and no significant area of natural drainage occurs above the fill draining into the fill area. (See ARM 17.24.520(14).)

(51) "Higher or better uses" is defined in 82-4-203, MCA, as "postmining land uses that have a higher economic value or noneconomic benefit to the landowners or the community than the premining land uses."

(52) "Highwall" means the face of exposed overburden and mineral in strip mining operations or for entry to underground mining operations.

(53) "Historic lands" is defined in ARM 17.24.1141(2).

(54) "Historically used for cropland" means:

(a) lands that have been used for cropland for any five years or more out of the 10 years immediately preceding the acquisition, including purchase, lease, or option, of the land for the purpose of conducting or allowing, through resale, lease or option, strip or underground coal mining and reclamation operations;

(b) lands that the department determines, on the basis of additional cropland history of the surrounding lands and the lands under consideration, that the permit area is clearly cropland but falls outside the specific five-years-in-10 criterion, in which case the regulations for prime farmland may be applied to include more years of cropland history only to increase the prime farmland acreage to be preserved; or

(c) lands that would likely have been used for cropland for any five or more years out of the 10 years immediately preceding such acquisition but for the same fact of ownership or control of the land as in (53)(a) unrelated to the productivity of the land.

(55) "Hydrologic balance" is defined in 82-4-203, MCA.

(56) "Hydrologic regime" means the entire state of water movement in a given area.

(57) "Imminent danger to the health and safety of the public" is defined in 82-4-203, MCA.

(58) "Impoundment" means a basin, naturally formed or artificially built, which is dammed or excavated for the retention of water, slurry, sediment, waste or other liquid or semi-liquid material.

(59) "Inactive mining operation" means an operation where:

(a) the permit has been suspended for a period of two or more months,

(b) neither mining nor reclamation activity has ever occurred,

(c) the department has been informed that operations are temporarily suspended pursuant to ARM 17.24.521, or

(d) permanent cessation of operations has occurred pursuant to ARM 17.24.522, but bond has not yet been released.

(60) "Incidental boundary revision" means a change in the permit boundary in which a few acres, generally less than 100, insignificant in impact relative to the entire operation, are added to or subtracted from the permit area for the purposes of associated disturbance, but not for mining. For administrative purposes, an incidental boundary revision is considered a minor revision.

(61) "Intermittent stream" means a stream or reach of a stream that is below the local water table for at least some part of the water year, and obtains its flow from both surface runoff and ground water discharge.

(62) "In situ processing" means activities conducted on the surface or underground in connection with in-place distillation, retorting, leaching, or other chemical or physical processing of coal or uranium. The term includes, but is not limited to, in situ gasification, in situ leaching, slurry mining, solution mining, borehole mining, and fluid recovery mining.

(63) "Irreparable damage to the environment" means any damage to the environment, in violation of the Act or sub-chapters 4 through 12 of this chapter, that cannot be corrected by actions of the applicant.

(64) "Knowingly," for purposes of ARM 17.24.1217, means that an individual knew or had reason to know in authorizing, ordering or carrying out an act or omission on the part of a corporate permittee that such act or omission constituted a violation, failure or refusal.

(65) "Land use" is defined in 82-4-203, MCA, as "specific uses or management-related activities, rather than the vegetative cover of the land. Land uses may be identified in combination when joint or seasonal uses occur and may include land used for support facilities that are an integral part of the land use. Land use categories include cropland, developed water resources, fish and wildlife habitat, forestry, grazing land, industrial or commercial, pastureland, land occasionally cut for hay, recreation, or residential."

(a) "Cropland" means land used for the production of adapted crops for harvest, alone or in a rotation with grasses and legumes, and includes row crops, small grain crops, hay crops, nursery crops, orchard crops, and other similar specialty crops. Land that is used for facilities in support of cropland farming operations and is adjacent to, or an integral part of, these operations is also included in this category.

(b) "Pastureland" is defined in 82-4-203, MCA, as "land used primarily for the long-term production of adapted, domesticated forage plants to be grazed by livestock or occasionally cut and cured for livestock feed."

(c) "Grazing land" is defined in 82-4-203, MCA, as "land used for grasslands and forest lands where the indigenous vegetation is actively managed for livestock grazing or browsing or occasional hay production."

(d) "Forestry" is defined in 82-4-203, MCA, as "land used or managed for the long-term production of wood, wood fiber, or wood-derived products."

(e) "Residential" means use of land for single- and multiple-family housing, mobile home parks, or other residential lodgings. Land that is used for facilities in support of residential operations and that is adjacent to, or an integral part of, these operations is also included. Support facilities include, but are not limited to, vehicle parking and open space that directly relate to the residential use.

(f) "Industrial/commercial" means use of land for:

(i) extraction or transformation of materials for fabrication of products, wholesaling of products or for long-term storage of products. This includes all heavy and light manufacturing facilities, such as lumber and wood processing, chemical manufacturing, petroleum refining, and fabricated metal products manufacture. Land that is used for facilities in support of these operations and is adjacent to, or an integral part of, such operations is also included. Support facilities include, but are not limited to, all rail, road, and other transportation facilities; or

(ii) retail or trade of goods or services, including hotels, motels, stores, restaurants, and other commercial establishments. Land that is used for facilities in support of commercial operations and is adjacent to, or an integral part of, these operations is also included. Support facilities include, but are not limited to, parking, storage or shipping facilities.

(g) "Recreation" is defined in 82-4-203, MCA, as "land used for public or private leisure-time activities, including developed recreation facilities, such as parks, camps, and amusement areas, as well as areas for less intensive uses, such as hiking, canoeing, and other undeveloped recreational uses."

(h) "Fish and wildlife habitat" is defined in 82-4-203, MCA, as "land dedicated wholly or partially to the production, protection, or management of species of fish or wildlife."

(i) "Developed water resources" means use of land for storing water for beneficial uses such as stockponds, irrigation, fire protection, flood control, and water supply.

(66) "Major revision" means any change in the mining or reclamation plan that:

(a) results in a significant change in the postmining drainage plan;

(b) results in a change in the postmining land use;

(c) results in a significant change in the bonding level within the permitted area; or

(d) results in a change that may affect the reclaimability of the area or the hydrologic balance on or off of the permitted area.

(67) "Material damage" means, with respect to subchapter 9 rules on underground mining operations:

(a) any functional impairment of surface lands, features, structures or facilities;

(b) any physical change that has an adverse impact on the capability of the affected land to support any current or reasonably foreseeable uses or causes loss in production or income; or

(c) any change in the condition, appearance or utility of any structure or facility from its pre-subsidence condition.

(68) "Material damage" is defined in 82-4-203, MCA, as "with respect to protection of the hydrologic balance, degradation or reduction by coal mining and reclamation operations of the quality or quantity of water outside of the permit area in a manner or to an extent that land uses or beneficial uses of water are adversely affected, water quality standards are violated, or water rights are impacted. Violation of a water quality standard, whether or not an existing water use is affected, is material damage."

(69) "Materially damage the quantity or quality of water" means, with respect to alluvial valley floors, to degrade or reduce by strip or underground coal mining or reclamation operations, the water quantity or quality supplied to the alluvial valley floor to the extent that resulting changes would significantly decrease the capability of the alluvial valley floor to support agricultural activities. The term "material damage" may be applied to values other than those associated with alluvial valley floors.

(70) "Mine plan area" means the area of land and water within the boundaries of all permit areas during the entire life of the strip or underground mining operation. At a minimum, it includes all areas that are or will be affected during the entire life of those operations. Other terms defined elsewhere in this subchapter which relate closely to mine plan area are:

(a) "permit area", which will always be within or the same as the mine plan area;

(b) "area of land affected", which will always be within or the same as the permit area; and

(c) "adjacent area", which may surround or extend beyond the area of land affected, permit area, or mine plan area. (See also 82-4-203, MCA.)

(71) "Mineral" is defined in 82-4-203, MCA.

(72) "Minor revision" means any change to the mine and reclamation plan not meeting the criteria for amendment or major revision.

(73) "Mulch" means vegetation residues or other suitable materials that aid in soil stabilization and soil moisture conservation, thus providing micro-climatic conditions suitable for plant germination and growth.

(74) "Natural hazard lands" is defined in ARM 17.24.1141(3).

(75) "Non-commercial building" means any building, other than an occupied residential dwelling, that, at the time subsidence occurs, is used on a regular or temporary basis as a public building or community or institutional building as those terms are defined in ARM 17.24.1132(1). Any building used only for commercial agricultural, industrial, retail or other commercial enterprises is excluded.

(76) "Noxious plants" means species that have been included on official state and county lists of noxious plants.

(77) "Occupied residential dwelling and structures related thereto" means, with respect to subchapter 9 requirements for underground mining operations, any building or other structure that, at the time any subsidence occurs, is used either temporarily, occasionally, seasonally, or permanently for human habitation. This term also includes any building, structure or facility installed on, above or below, or a combination thereof, the land surface if that building, structure or facility is adjunct to or used in connection with an occupied residential dwelling. Examples of such structures include, but are not limited to: garages; storage sheds and barns; greenhouses and related buildings; utilities and cables; fences and other enclosures; retaining walls; paved or improved patios, walks and driveways; septic sewage treatment facilities; lot drainage; and lawn and garden irrigation systems. Any structure used only for commercial agricultural, industrial, retail or other commercial purposes is excluded.

(78) "Operation" is defined in 82-4-203, MCA.

(79) "Operator" is defined in 82-4-203, MCA.

(80) "Other treatment facilities" means, with respect to ARM 17.24.639(23), any chemical treatments (such as flocculation or neutralization) or mechanical structures (such as clarifiers or precipitators) that have a point-source discharge and that are utilized to prevent additional contribution of suspended solids to streamflow or runoff outside the permit area and to provide compliance with all applicable state and federal water quality laws and rules.

(81) "Outslope" means the face of the spoil or embankment sloping downward from the highest elevation to the toe.

(82) "Overburden" is defined in 82-4-203, MCA.

(83) "Owned or controlled" and "owns or controls" mean any one or a combination of the following relationships:

(a) being a permittee of a strip or underground coal mining operation;

(b) based on instruments of ownership or voting securities, owning of record in excess of 50 percent of an entity;

(c) having any other relationship which gives one person authority, directly or indirectly, to determine the manner in which an applicant, operator, or other entity conducts strip or underground coal mining operations; or

(d) unless it is demonstrated that the person does not in fact have the authority, directly or indirectly, to determine the manner in which the relevant coal mining operation is conducted:

(i) being an officer or director of an entity;

(ii) being the operator of a coal mining operation;

(iii) having the ability to commit the financial or real property assets or working resources of an entity;

(iv) being a general partner in a partnership;

(v) based on the instruments of ownership or the voting securities of a corporate entity, owning of record ten through 50 percent of the entity; or

(vi) owning or controlling coal to be mined by another person under a lease, sublease, or other contract and having the right to receive such coal after mining or having authority to determine the manner in which that person or another person conducts this coal mining operation.

(84) "Perennial stream" means a stream or reach of a stream that flows continuously during all of the water year as a result of ground water discharge or surface runoff. The term does not include intermittent streams or ephemeral streams.

(85) "Permanent diversion" means a diversion that remains after a strip or underground mining and reclamation operation is completed and that has been approved for retention by the department and other appropriate state and federal agencies.

(86) "Permanent impoundment" means an impoundment that is approved by the department and other appropriate state and federal agencies for retention as part of the postmining land use.

(87) "Permit area" means the area of land and water within the boundaries of the permit which are designated on the permit application maps, as approved by the department. This area includes, at a minimum, all areas which are or will be affected by the strip or underground mining and reclamation operations during the term of the permit.

(88) "Person having an interest which is or may be adversely affected or person with a valid legal interest" includes any person:

(a) who uses any resource of economic, recreational, aesthetic, or environmental value that may be adversely affected by a prospecting or strip or underground mining operation or any related action of the department; or

(b) whose property is or may be adversely affected by a prospecting or strip or underground mining operation or any related action of the department.

(89) "Precipitation event" means a quantity of water resulting from drizzle, rain, snow, sleet, or hail in a limited period of time. It may be expressed in terms of recurrence interval. As used in these rules, "precipitation event" also includes that quantity of water emanating from snow cover as snow-melt in a limited period of time.

(90) "Previously mined area" means land on which coal mining operations were previously conducted, except those lands subject to the standards of the Montana Strip and Underground Mine Reclamation Act or of the Surface Mine Control and Reclamation Act of 1977.

(91) "Prime farmland" is defined in 82-4-203, MCA, as "land that:

(a) meets the criteria for prime farmland prescribed by the United States secretary of agriculture in the Federal Register; and

(b) historically has been used for intensive agricultural purposes."

(92) "Principal shareholder" means any person who is the record or beneficial owner of 10% or more of any class of voting stock.

(93) "Probable hydrologic consequences" means the projected results of proposed strip or underground mining operations that may reasonably be expected to alter, interrupt, or otherwise affect the hydrologic balance. The consequences may include, but are not limited to, effects on stream channel conditions and the aquatic habitat on the permit area and adjacent areas.

(94) "Productivity" means the vegetative yield produced by a unit area for a unit of time.

(95) "Prospecting" is defined in 82-4-203, MCA.

(96) "Public building" is defined in ARM 17.24.1132(1)(c).

(97) "Public office" means a facility under the direction and control of a governmental entity which is open to public access on a regular basis during reasonable business hours.

(98) "Public park" is defined in ARM 17.24.1132(1)(e).

(99) "Railroad loop" means any rail transportation system within the mine permit area, whether it is in the form of a loop or a straight rail line.

(100) "Rangeland" means, with respect to alluvial valley floors, land on which the natural potential (climax) plant cover is principally native grasses, forbs, and shrubs valuable for forage. This land includes natural grasslands and shrublands. Except for brush control, management is primarily achieved by regulating the intensity of grazing and season of use.

(101) "Recharge capacity" means the ability of the soils and other earth materials to allow precipitation and runoff to infiltrate and percolate to the zone of saturation.

(102) "Reclamation" is defined in 82-4-203, MCA.

(103) "Recurrence interval" means the average interval (in years) between events equaling or exceeding a given magnitude. For example, a ten-year, 24-hour precipitation event is a 24-hour precipitation event that is equalled or exceeded on the average once every ten years.

(104) "Reference area" is defined in 82-4-203, MCA, as "a land unit maintained under appropriate management for the purpose of measuring vegetation ground cover, productivity, and plant species diversity that are produced naturally or by crop production methods approved by the department. Reference areas must be representative of geology, soil, slope, and vegetation in the permit area."

(105) "Remining" is defined in 82-4-203, MCA.

(106) "Renewable resource lands" means aquifers and areas for the recharge of aquifers and other underground waters, areas for agricultural or silvicultural production of food and fiber, and grazing lands.

(107) "Replace adversely affected domestic water supply" means, with respect to protected water supplies contaminated, diminished, or interrupted by underground coal mining operations, to provide a water supply on both a temporary and permanent basis equivalent to premining quantity and quality. Replacement includes provision for an equivalent water delivery system and payment of operation and maintenance costs in excess of customary and reasonable delivery costs for premining water supplies.

(a) Upon agreement by the operator and the water supply owner, the obligation to pay such operation and maintenance costs may be satisfied by a one-time payment in an amount which covers the present worth of the increased annual operation and maintenance costs for a period agreed to by the operator and the water supply owner.

(b) If the affected water supply was not needed for the land use in existence at the time of loss, contamination, or diminution, and if the supply is not needed to achieve the postmining land use, replacement requirements may be satisfied by demonstrating that a suitable alternative water source is available and could feasibly be developed. If the latter approach is selected, written concurrence must be obtained from the water supply owner.

(108) "Road" means a surface right-of-way for purposes of travel by land vehicles used in prospecting or strip or underground mining or reclamation operations. A road consists of the entire area within the right-of-way, including the roadbed, shoulders, parking and side area, approaches, structures, ditches, surface, and such contiguous appendages as are necessary for the total structure. The term includes access, haul, and ramp roads constructed, used, reconstructed, improved, or maintained for use in prospecting or strip or underground mining operations, including use by coal-hauling vehicles leading to transfer, processing, or storage areas. Subcategories of roads are as follows:

(a) "Access road" means a road leading from a public roadway to the mine complex.

(b) "Haul road" means a road used for more than six months to transport coal, soil, or spoil.

(c) "Public road" is defined in ARM 17.24.1132(1)(g).

(d) "Ramp road" means a road leading from the pit to the haul road.

(109) "Safety factor" means the ratio of the available shear strength to the developed shear stress or the ratio of the sum of the resisting forces to the sum of the loading or driving forces, as determined by accepted engineering practices.

(110) "Sediment" means undissolved organic or inorganic material greater than 0.45 micrometers in size transported or deposited by water.

(111) "Sedimentation pond" means a sediment control structure, including a barrier, dam, or excavated depression, which slows down runoff water to allow sediment to settle out. The term does not include sedimentation control practices, such as straw dikes, riprap, check dams, mulches, dugouts, in-pit sumps, and other similar measures that reduce overland flow velocity, reduce runoff volume, or trap sediment.

(112) "Significant, imminent environmental harm to land, air or water resources" means:

(a) An "environmental harm" is an adverse impact on land, air, or water resources. These resources include, but are not limited to, plant and animal life.

(b) An environmental harm is "imminent", if a condition, practice, or violation exists that:

(i) is causing such harm; or

(ii) may reasonably be expected to cause such harm at any time before the end of the reasonable abatement time that would be set under 82-4-251, MCA.

(c) An environmental harm is "significant" if that harm is appreciable and not immediately reparable.

(113) "Soil" means "topsoil" as defined as 82-4-203, MCA.

(114) "Soil horizon" means contrasting layers of soil parallel or nearly parallel to the land surface. Soil horizons are differentiated on the basis of field characteristics and laboratory data. The major types of soil horizons are described in issue 1 - revision of chapter 4 (as revised in May 1981) of the 1951 Soil Survey Manual, U.S. Department of Agriculture, Soil Conservation Service, June 9, 1981, Washington, D.C. This manual is available for inspection at the Department of Environmental Quality, 1520 E. 6th Ave., Helena, MT 59601, and at the national, state, and local offices of the U.S. natural resources conservation service.

(115) "Soil survey" means field and related investigation, resulting in a map showing the geographic distribution of different kinds of soils and an accompanying report that describes, classifies, and interprets such soils for use. Soil surveys must meet the standards of the national cooperative soil survey, which is based on procedures and standards in the following U.S. department of agriculture, soil conservation service publications: National Soils Handbook, Soil Taxonomy (Handbook 436), and Soil Survey Manual. These documents are on file and available for inspection at the main office of the Department of Environmental Quality, 1520 E. 6th Ave., Helena, MT 59601, and at the national, state, and local offices of the U.S. natural resources conservation service.

(116) "Spoil" means overburden that has been removed during strip or underground mining operations.

(117) "Stabilize" means to control movement of soil, spoil piles, or areas of disturbed earth by modifying the configuration of the mass, or by otherwise modifying physical, biological, or chemical properties, such as providing a protective surface coating.

(118) "Subirrigation" means, with respect to alluvial valley floors, the supplying of water to plants from a sub-surface zone where water is available and suitable for use by vegetation. Subirrigation may be identified by:

(a) diurnal fluctuation of the water table, due to the differences in nighttime and daytime evapotranspiration rates;

(b) increasing soil moisture from a portion of the root zone down to the saturated zone, due to capillary action;

(c) mottling of the soils in the root zones;

(d) existence of an important part of the root zone within the capillary fringe or water table of an alluvial aquifer; or

(e) an increase in streamflow or a rise in ground water levels, shortly after the first killing frost on the valley floor.

(119) "Subsidence" is defined in 82-4-203, MCA.

(120) "Substantial legal and financial commitments" is defined in ARM 17.24.1141(4).

(121) "Substantially disturb" means, for purposes of prospecting, to significantly impact land or water resources by:

(a) drilling of uranium prospecting holes or blasting. Drilling of coal prospecting holes and installation and use of associated disposal pits or installation of ground water monitoring wells does not constitute substantial disturbance;

(b) removal of vegetation, topsoil, or overburden;

(c) construction of roads or other access routes;

(d) placement of excavated earth or waste material on the natural land surface; or

(e) other similar activities.

(122) "Successor in interest" means any person who succeeds to rights granted under a permit, by transfer, assignment, or sale of those rights.

(123) "Surety bond" means an indemnity agreement in a sum certain payable to the department executed by the permittee which is supported by the performance guarantee of a corporation licensed to do business as a surety in Montana.

(124) "Surface water" means water that is either flowing or standing on the surface of the earth.

(125) "Suspended solids or nonfilterable residue" (expressed as milligrams per liter), means organic or inorganic materials carried or held in suspension in water that are retained by a standard glass fiber filter in the procedure outlined by the environmental protection agency's regulations for waste water and analyses (40 CFR 136).

(126) "Temporary diversion" means a diversion of a stream or overland flow that is used during prospecting or strip or underground mining or reclamation operations and not approved by the department to remain after reclamation as part of the approved postmining land use.

(127) "Temporary impoundment" means an impoundment, including sedimentation pond, used during mining or reclamation operations, but not approved by the department to remain as part of the postmining land use.

(128) "Test pit" means an excavation for prospecting by means other than drilling. Materials obtained from a test pit are used for test purposes and not for direct economic profit.

(129) "Toxic-forming materials" means earth materials or wastes which, if acted upon by air, water, weathering, or microbiological processes, are likely to produce chemical or physical conditions in soils or water that are detrimental to biota or uses of water.

(130) "Toxic mine drainage" means water that is discharged from active or abandoned mines or other areas affected by prospecting or strip or underground mining operations and that contains a substance that through chemical action or physical effects is likely to kill, injure, or impair biota commonly present in the area that might be exposed to it.

(131) "Transfer, assignment, or sale of permit rights" means a change in ownership or other effective control over the right to conduct strip or underground mining operations under a permit issued by the department. See ARM 17.24.418.

(132) "Unconsolidated streamlaid deposits holding streams" means, with respect to alluvial valley floors, all flood plains and terraces located in the lower portions of valleys which contain perennial or other streams with channels.

(133) "Underground development waste" means waste rock mixtures of coal, shale, claystone, siltstone, sandstone, limestone, or related materials that are excavated, moved, and disposed of from underground workings in connection with underground mining activities.

(134) "Undeveloped rangeland" means, for purposes of alluvial valley floors, lands that have not been agronomically altered by farming, seeding, interseeding, or other means, to increase production over the native condition and that are not intensively managed as irrigated or subirrigated pastures.

(135) "Unwarranted failure to comply" is defined in 82-4-203, MCA.

(136) "Upland areas" means, with respect to alluvial valley floors, those geomorphic features located outside the floodplain and terrace complex, such as isolated higher terraces, alluvial fans, pediment surfaces, landslide deposits, and surfaces covered with residuum, mud flows or debris flows, as well as highland areas underlain by bedrock and covered by residual weathered material or material deposited by sheetwash, rillwash, or wind.

(137) "Valley fill" means a fill structure consisting of any material other than non-coal organic material that is placed in a valley where side slopes of the existing valley measured at the steepest point are greater than 20 percent or the average slope of the profile of the valley from the toe of the fill to the top of the fill is greater than 10 percent.

(138) "Valid existing rights" is defined in ARM 17.24.1132(1).

(139) "Violation notice" means any written notification from a governmental entity of a violation of law, whether by letter, memorandum, legal or administrative pleading, or other written communication.

(140) "Violation, failure, or refusal," for purposes of ARM 17.24.1217 means:

(a) a violation of a condition of a permit issued pursuant to 82-4-221 or 82-4-226, MCA; or

(b) a failure or refusal to comply with any order issued under 82-4-251, MCA, or any order incorporated into a final decision issued under Title 82, chapter 4, part 2, MCA, except an order incorporated in a decision issued under 82-4-254(3), MCA.

(141) "Waste" means earth materials that are generated as a result of mineral preparation or, in some cases, mining and are not marketed by the operator. The term includes earth materials resulting from physical or chemical processing, cleaning, or concentrating of the mineral. It also includes "coal processing waste" and "underground development waste" as defined in this rule and materials that contain reject mineral resulting from selective extraction of the mineral. "Waste" does not include "spoil, overburden, or soil" as those terms are defined in this rule.

(142) "Waste disposal structure" means a pile, hill, mound, or other similar surface feature for the disposal of underground development waste or coal processing waste outside the mine workings and the surface excavation area. The term does not include an impoundment or embankment.

(143) "Water table" means the upper surface of a zone of saturation, where the body of ground water is not confined by an overlying impermeable zone.

(144) "Wildlife habitat enhancement feature" is defined in 82-4-203, MCA, as "a component of the reclaimed landscape, established in conjunction with land uses other than fish and wildlife habitat, for the benefit of wildlife species including, but not limited to, tree and shrub plantings, food plots, wetland areas, water sources, rock outcrops, microtopography, or raptor perches."

(145) "Willful violation" means an act or omission that violates the Act, subchapters 3 through 13 of this chapter, or any permit condition and that is committed by a person who intends the result which actually occurs.

(146) "Willfully" for purposes of ARM 17.24.1217, means that an individual acted:

(a) either intentionally, voluntarily, or consciously; and

(b) with intentional disregard or plain indifference to legal requirements in authorizing, ordering, or carrying out a corporate permittee's action or omission that constituted a violation failure, or refusal.

(1) Information set forth in the application must be accurate, current, presented clearly and concisely, submitted in a format acceptable to the department, and supported by appropriate references to technical and other written material available to the department.

(2) All tests, analyses, surveys, and data collection carried out pursuant to these rules must be performed or certified by a qualified person using scientifically valid techniques approved by the department and must be carried out at appropriate times and under appropriate conditions.

(3) All chemical and physical laboratory analyses must be conducted by a laboratory using departmentally approved and standardized procedures. The operator shall make available to the department quality assurance information or duplicate or split samples, as required by the department.

(4) All technical data submitted in the application must be accompanied by:

(a) names and addresses of persons or organizations that collected and analyzed such data;

(b) dates of the collection and analyses; and

(c) descriptions of methodology used to collect and analyze the data.

(5) An application for a mining permit must be made on forms provided by the department.

(6) For applications to mine areas containing federal lands, an appropriate number of copies, as determined in consultation with the department, of all applications, maps, reports or other informational data must be submitted to the department and to the federal coal regulatory authority. For applications to mine areas not containing federal lands, two copies of all applications, maps, reports, and other informational data must be submitted to the department, unless otherwise approved by the department.

(7) All maps depicting detail must be at a scale of 400 feet to the inch, or other scale as approved by the department. Maps depicting general conditions such as property ownership, must be at a scale of 1,000 feet to the inch. Maps depicting the general surface conditions of large areas such as the location of prospecting drill holes must be on a current 7.5 minute U.S. geological survey map or equivalent.

(8) With the information on land uses, soils, geology, vegetation, fish and wildlife, water quantity and quality, air quality, and archeological, cultural and historic features, the applicant shall submit the name, address, and position of officials of each private or academic research organization or governmental agency consulted in obtaining that information.

(9) Whenever used in the application, referenced materials must either be provided to the department by the applicant or be readily available to the department. When provided, relevant portions of referenced published materials must be presented briefly and concisely in the application by photocopying or abstracting and with explicit citations.

(1) Each application must contain, in any format prescribed by the department, the following information:

(a) the name, permanent and temporary post office addresses, telephone numbers, and, as applicable, social security numbers and employer identification numbers of the applicant, applicant's resident agent, and the person who will pay the abandoned mine reclamation fee pursuant to 30 USC 1232;

(b) the location and area of land to be affected by the operation, with a description of access to the area from the nearest public highway;

(c) the names and addresses of legal and equitable owners of record, lessees, and purchasers under contract for deed of the surface of the area of land to be affected by the permit and the owners of record and purchasers under contract for deed of all surface area within one-half mile of any part of the affected area;

(d) the names and addresses of the present owners of record and purchasers under contract for deed of all subsurface minerals in the land to be affected and land contiguous to the land to be affected;

(e) the names and addresses of any persons who are engaged in strip or underground mining on behalf of the applicant and any person who will conduct such operations should the permit be granted;

(f) a statement of whether the applicant is a corporation, partnership, single proprietorship, association or other business entity;

(g) for each person who owns or controls the applicant under the definition of "owned or controlled" and "owns or controls" in ARM 17.24.301, as applicable:

(i) the person's name, address, social security number, and employer identification number;

(ii) the person's ownership or control relationship to the applicant, including percentage of ownership and location in organizational structure;

(iii) the title of the person's position, date position was assumed, and, when submitted under ARM 17.24.413(4), date of departure from the position;

(iv) each additional name and identifying number, including employer identification number, federal or state permit number, and mine safety and health administration number with date of issuance, under which the person owns or controls, or previously owned or controlled, a coal mining and reclamation operation in the United States within the five years preceding the date of the application; and

(v) the application number or other identifier of, and the regulatory authority for, any other pending coal mining operation permit application filed by the person in any state in the United States;

(h) for any surface coal mining operations that the applicant or the applicant's operator owned or controlled within the five-year period preceding the date of the submission of the application, and for any surface coal mining operation the applicant or the applicant's operator owns or controls on that date, the applicant must provide the:

(i) permittee's and operator's name and address;

(ii) permittee's and operator's taxpayer identification numbers;

(iii) federal or state permit number and corresponding Mine Safety and Health Administration number;

(iv) regulatory authority with jurisdiction over the permit; and

(v) permittee's and operator's relationship to the operation, including percentage of ownership and location in the organizational structure;

(i) for any coal mining operation owned or controlled by either the applicant or by any person who owns or controls the applicant, the operation's:

(i) name; address; identifying numbers, including employer identification numbers, federal or state permit number, and mine safety and health administration number; date of issuance of the mine safety and health administration number; and the regulatory authority; and

(ii) ownership or control relationship to the applicant, including percentage of ownership and location in organizational structure;

(j) the name of the proposed mine and the mine safety and health administration identification number for the mine and all sections, if any;

(k) a list of all lands, interests in lands, options, or pending bids on interests held or made by the applicant for lands which are contiguous to the area to be covered by the permit;

(l) a statement of whether the applicant or any person associated with the applicant holds or has held any prospecting or uranium operating permits under the Act and an identification of those permits;

(m) a certified statement of whether the applicant, operator, any subsidiary, affiliate, or persons controlled by or under common control with the applicant or operator, is in compliance with 82-4-251, MCA, and, if known, whether any officer, partner, director, or any individual owning of record or beneficially, alone or with associates, ten percent or more of any class of stock of the applicant is subject to any of the provisions of 82-4-251, MCA, and whether any of the foregoing parties or persons have ever had a strip mining or underground mining license or permit issued by any other state or federal agency revoked or have ever forfeited a strip mining or underground mining bond or a security deposited in lieu of a bond and, if so, a detailed explanation of the facts involved in each case must be attached including:

(i) identification number and date of issuance of the permit and, when applicable, date and amount of bond or similar security;

(ii) identification of the authority that suspended or revoked a permit or forfeited a bond and the stated reasons for that action;

(iii) the current status of the permit, bond, or similar security involved;

(iv) the date, location, and type of any administrative or judicial proceedings initiated concerning the suspension, revocation, or forfeiture; and

(v) the current status of these proceedings;

(n) for any violation of a provision of 30 USC 1201, et seq., or of any law, rule, or regulation of the United States, or of any state law, rule, or regulations enacted pursuant to federal law, rules, or regulations pertaining to air or water environmental protection incurred in connection with any coal mining operation, a list of all violation notices received by the applicant during the three-year period preceding the application date, and a list of all unabated cessation orders and unabated air and water quality violation notices received prior to the date of the application by any coal mining and reclamation operation owned or controlled by either the applicant or by any person who owns or controls the applicant. For each violation notice or cessation order reported, the list must include the following information, as applicable:

(i) any identifying numbers for the operation, including the federal or state permit number and mine safety and health administration number, the dates of issuance of the violation notice and mine safety and health administration number, the name of the person to whom the violation notice was issued, and the name of the issuing regulatory authority, department, or agency;

(ii) a brief description of the violation alleged in the notice;

(iii) the date, location, and type of any administrative or judicial proceeding initiated concerning the violation, including, but not limited to, proceedings initiated by any person identified in this section to obtain administrative or judicial review of the violation;

(iv) the current status of the proceedings and of the violation notice; and

(v) the actions, if any, taken by the person identified in this section to abate the violation;

(o) copies of the documents upon which the applicant bases his or her legal right to enter and begin mining operations in the permit area and whether that right is the subject of pending litigation. The applicant may request confidentiality on any proprietary information within such documents;

(p)(i) whenever the private mineral estate to be strip mined has been severed from the private surface estate, an applicant shall also submit:

(A) a copy of the written consent of the surface owner for the extraction of mineral by strip mining methods;

(B)(I) a copy of the conveyance that expressly grants or reserves the right to extract mineral by those methods; or

(II) if the conveyance does not expressly grant the right to extract the mineral by strip mining methods, documentation that under Montana law the applicant has the legal right to extract the mineral by those methods;

(ii) nothing in this section may be construed to authorize the department to adjudicate property rights disputes;

(q) a statement of available information on whether the proposed permit area is within an area designated unsuitable for coal mining operations or under study for designation in an administrative proceeding and if the applicant claims the exemption based on substantial legal and financial commitments made before January 4, 1977, and information supporting the applicant's claim;

(r) if mining within 300 feet of an occupied dwelling is proposed, the waiver of the owner of the dwelling;

(s) a statement of the anticipated or actual starting and termination date of each phase of mining and the anticipated number of acres of land to be affected for each phase of mining and over the total life of the permit;

(t) either a certificate of liability insurance or evidence that the self-insurance requirements of 82-4-222(5), MCA, are satisfied (see also ARM 17.24.1125);

(u) a list of all other licenses and permits needed by the applicant to conduct the proposed mining. This list must identify each license and permit by:

(i) type of permit or license;

(ii) name and address of issuing authority;

(iii) identification numbers of applications for those permits or licenses or, if issued, the identification numbers of the permits or licenses; and

(iv) if a decision has been made, the date of approval or disapproval by each issuing authority;

(v) the name and address of the public office where the applicant will file a copy of the application for public inspection;

(w) the name, address, and telephone number of the resident agent who will accept service of process on behalf of the applicant;

(x) a copy of the proposed newspaper advertisement of the application and proof of publication of the notice after it is published as required in ARM 17.24.401(3); and

(y) a map of the mine plan area showing the areas upon which strip or underground mining occurred:

(i) prior to August 3, 1977;

(ii) after August 3, 1977, and prior to May 3, 1978;

(iii) after May 3, 1978, and prior to April 1, 1980;

(iv) after April 1, 1980, and before January 13, 1989; and

(v) after January 13, 1989, and before October 22, 2004.

(z) The map of the mine plan area must also designate the areas from which coal removal had not commenced as of October 22, 2004.

(1) The following environmental resources information must also be included as part of an application for a strip or underground mining permit:

(a) the size, sequence, and timing of the subareas of the mine plan area for which it is anticipated that individual permits for mining will be requested over the estimated total life of the proposed mining activities;

(b) a listing, location and description of all archaeological, historical, ethnological and cultural resources and values of the proposed mine plan and adjacent area. Such resources and values must be located and identified on accompanying maps. Sites listed on, eligible for, or potentially eligible for the national register of historic places must be so identified. Published research or other information must be referenced and copies of referenced reports must be made available to the department upon request. The department may require the applicant to identify and evaluate important historic and archeological resources that may be eligible for listing on the national register of historic places through collection of additional information, conduct field investigations, or other appropriate analyses;

(c) a comprehensive listing, location and description of significant or unique scenic and/or geological formations or sites;

(d) a narrative explanation or other data showing whether the permit area possesses special, exceptional, critical, or unique characteristics as defined in 82-4-227, MCA, and whether surrounding land possesses special, exceptional, critical or unique characteristics that would be adversely affected by mining;

(e) all hydrologic and geologic data necessary to evaluate baseline conditions, to evaluate the probable hydrologic consequences and cumulative hydrologic impacts of mining, pursuant to ARM 17.24.314(3) and (5) and 82-4-222, MCA, and to develop a plan to monitor water quality and quantity to address the requirements of ARM 17.24.314;

(f) hydrologic and geologic descriptions pursuant to (1)(e) including:

(i) a narrative and graphic account of ground water hydrology including, but not limited to:

(A) the lithology, thickness, structural controls, hydraulic conductivity, transmissivity, recharge, storage and discharge characteristics, extent of aquifer, production data, water quality analyses and other relevant aquifer characteristics for each aquifer within the mine plan area and adjacent areas;

(B) the results of a minimum of one year of quarterly monitoring of ground water for total dissolved solids, specific conductance corrected to 25^oC, pH, major dissolved cations (Ca, Mg, Na, K), major dissolved anions (SO₄, HCO₃, CO₃, Cl, NO₃), concentrations of dissolved metals as prescribed by the department, and water levels. These data must be generated in accordance with the standards contained in ARM 17.24.645(2), (3), and (6); and

(C) a listing of all known or readily discoverable wells and springs and their uses located within three miles downgradient from the proposed permit area and within one mile in all other directions unless hydrologic conditions justify different distances;

(ii) a narrative and graphic account of surface water hydrology within the mine plan area and adjacent areas including, but not limited to:

(A) the name, location, use, and description of all surface water bodies such as streams, lakes, ponds, springs, and impoundments; and

(B) descriptions of surface drainage systems sufficient to identify, in detail, the seasonal variations in water quantity and quality including, but not limited to:

(I) minimum, maximum, and average discharge conditions which identify critical low flow and peak discharge rates of streams and springs; and

(II) water quality data to identify the characteristics of surface waters discharging into or receiving flows from the proposed mine plan area, including total suspended solids, total dissolved solids, specific conductance corrected to 25^oC, pH, major dissolved cations (Ca, Mg, Na, K), major dissolved anions (SO₄, CO₃, HCO₃, NO₃, Cl), and concentrations of metals as prescribed by the department. Such data must be generated in accordance with the standards contained in ARM 17.24.646(1), (1)(a), (3), (5), and (6);

(iii) a description of alternative water supplies, not to be disturbed by mining, that could be developed to replace water supplies diminished or otherwise adversely impacted in quality or quantity by mining activities so as not to be suitable for the approved postmining land uses; and

(iv) such other information that the department determines is relevant;

(g) a detailed description of all overburden and mineral materials (all materials other than soil) that will be handled during mining or backfilling operations. The description must include:

(i) those materials down to and including the deeper of either the stratum immediately below the lowest seam to be mined or any aquifer below the lowest seam to be mined that may be adversely impacted by mining;

(ii) all physical, chemical, water infiltration, artificial weathering, and plant growth data necessary to identify those materials that are potentially acid, acid-forming, sodic, saline, toxic, toxic-forming, unstable, erodible or otherwise undesirable with respect to use as plant rooting media, landscape stability, aquifer reestablishment, postmining ground and surface water quantity and quality both on and off site, and postmining land use;

(iii) lithologic and geophysical logs showing the lithologic characteristics including physical properties and thickness of each stratum and location of ground water where occurring. The requirement for geophysical logs may be waived if the applicant demonstrates, and the department finds in writing, that other equivalent information is available in an acceptable form and has been provided by the applicant;

(iv) a narrative addressing the suitability or unsuitability of the materials to be handled for reclamation purposes. This narrative must address or reference the data, characteristics of materials, and aspects of reclamation described in (1)(f), (1)(g)(ii) and (iii), and ARM 17.24.322(2)(a)(iii); and

(v) additional studies or information determined by the department to be useful or necessary to evaluate the application. All laboratory work conducted under (g) must be conducted in accordance with ARM 17.24.302(3);

(h) climatological information, including:

(i) the average seasonal precipitation;

(ii) the average direction and velocity of prevailing winds;

(iii) seasonal temperature ranges; and

(iv) such additional data as the department deems necessary to ensure compliance with the requirements of this subchapter;

(i) vegetation surveys as described in 82-4-222(2), MCA, of the Act, which must include:

(i) a vegetation map at a scale of 1" = 400' or as otherwise approved by the department, which delineates community types based on dominant species which by their structure, density, or coverage, have the greatest functional influence on the type. Other methods for delineating community types may be used with prior approval by the department; and

(ii) a narrative describing the community types within the proposed permit area and within any proposed reference areas, and listing associated species and discussing environmental factors controlling or limiting the distribution of species;

(j) a narrative of the results of a wildlife survey. The operator shall contact the department at least three months before planning the wildlife survey to allow the department to consult state and federal agencies with fish and wildlife responsibilities to determine the scope and level of detail of information required in the survey to help design a wildlife protection and enhancement plan. At a minimum, the wildlife survey must include:

(i) a listing of all fish and wildlife species;

(ii) population density estimates of each species insofar as practicable;

(iii) a description of season or seasons of use and habitat use by each species along with a description of habitats of unusually high value for fish and wildlife such as important streams, wetlands, riparian areas, cliffs supporting raptors, areas offering special shelter or protection, migration routes, reproduction and wintering areas, and other habitats identified through agency consultation as requiring special protection under state or federal law;

(iv) a wildlife habitat map for the entire wildlife survey area including habitat types that are discussed in (c), and ARM 17.24.751(2)(f) and (g); and

(v) coverage of the proposed permit area plus an area around it. The extent of the total area to be surveyed must be determined through consultation with the department and must be large enough to include those species whose home ranges extend beyond the permit boundary;

(k) a soil survey according to standards of the national cooperative soil survey and the department describing all soils on the proposed permit area and their suitability for reclamation purposes. The soil survey must include the following information:

(i) description, sampling, and analysis of soils in sufficient detail to identify the soil series, phases, and mapping units present including:

(A) series and phase descriptions;

(B) mapping unit (complex and consociation) descriptions;

(C) descriptions of representative soil pedons; and

(D) results of chemical and physical analyses of soil horizon samples. Each horizon sample must be analyzed in accordance with ARM 17.24.302(3) for pH, particle size distribution (texture), and other parameters that must be determined in consultation with the department;

(ii) a soils map acceptable to the department. The scale must be 1" = 400' unless otherwise altered or approved by the department. Enlarged aerial photographs may be used as a map base. The map or photograph must include:

(A) the soil mapping units, their boundaries, a legend of the soil mapping units and the estimated salvage depths of soils within each mapping unit, consistent with the information submitted under ARM 17.24.313(1)(f);

(B) soil sampling locations; and

(iii) further soil studies or information determined by the department to be useful or necessary to evaluate the application;

(l) the condition, capability, productivity, and history of use of the land and vegetation within the proposed permit area, including:

(i) a map and supporting narrative of the uses of the land existing at the time of the filing of the application. If the premining use of the land was changed within five years before the anticipated date of beginning the proposed operations, the historic use of the land must also be described;

(ii) a narrative of land capability and productivity that analyzes the land-use description under (a) in conjunction with other environmental resources information required under this subsection. The narrative must provide analyses of:

(A) the capability of the land before any mining to support a variety of uses, giving consideration to soil and foundation characteristics, topography, vegetative cover and the hydrology of the proposed permit area;

(B) the productivity of the proposed permit area before mining, expressed as average yield of food, fiber, forage, or wood products from such lands obtained under high levels of management. The productivity must be determined by yield data or estimates for similar sites based on current data from the U.S. department of agriculture, state agricultural universities, or appropriate state natural resources or agricultural agencies;

(C) a statement of whether the proposed permit area has been previously mined, and, if so, the following information, if available:

(I) the type of mining method used;

(II) the coal seams or other mineral strata mined;

(III) the extent of coal or other minerals removed;

(IV) the approximate dates of past mining; and

(V) the uses of the land;

(D) the existing land uses and land use classifications under local law, if any, of the proposed mine plan and adjacent areas.

(a) the owners of record of the surface of the land to be affected by the permit and the owners of record of all surface area within 1/2 mile of any part of the affected area;

(b) the owners of record of all subsurface minerals in the land to be affected;

(c) the boundaries of land within the proposed permit area upon which the applicant has the legal right to enter and begin mining activities;

(d) the boundaries of all areas proposed to be affected over the estimated total life of the proposed mining operations, with a description of size, sequence, and timing of the mining of subareas for which it is anticipated that additional permits will be sought, and any cropline of the mineral to be mined;

(e) the names and locations of roads, buildings, facilities, cemeteries, oil and gas wells, pipelines, utility lines and corridors, and strip or underground mines on the permit area and within 1,000 feet of such area;

(f) the location and boundaries of any proposed reference areas for determining the success of revegetation;

(g) the locations of water supply intakes for current users of surface water flowing into, out of, and within a hydrologic area and those surface waters which will receive discharges from affected areas in the proposed mine plan area;

(h) the boundaries of any public park and locations of any cultural or historical resources listed or eligible for listing in the national register of historic places and known archeological sites within the mine plan or adjacent areas;

(i) any land within the proposed mine plan area and adjacent area that is within the boundaries of any units of the national system of trails or the wild and scenic rivers system, including study rivers designated under section (5) (a) of the Wild and Scenic Rivers Act;

(j) the lands proposed to be affected throughout the operation, including the pre-mine topography, and any change in a facility or feature to be caused by the proposed operations;

(k) the area of land to be affected within the proposed mine plan area, according to the sequence of mining and reclamation;

(l) each area of land for which a performance bond or other equivalent guarantee will be posted;

(m) each mineral storage, cleaning or loading area and each soil, spoil, coal waste, garbage or other debris storage area;

(n) elevations and locations of monitoring stations used to gather data for water quality and quantity, fish and wildlife, and air quality, if required, in preparation of the application;

(o) each water diversion, collection, conveyance, treatment, storage, and discharge facility to be used;

(p) each air pollution collection and control facility;

(q) each source of waste and each waste disposal facility relating to processing or pollution control;

(r) the location of proposed postmine revegetation communities and proposed fish, wildlife, and related environmental enhancement features;

(s) each explosives storage and handling facility;

(t) the location of each sedimentation pond and permanent water impoundment in accordance with ARM 17.24.315 and the location of each fill area for the disposal of excess spoil in accordance with ARM 17.24.308;

(u) the date on which each map was prepared and the north point; a legend indicating the items shown on the map, the scale, and the contour interval; the township, range, and section numbers;

(v) grid coordinates based upon the 1000-meter universal transverse mercator system for maps, as determined by the department, that are necessary to do cumulative hydrologic impact assessments and alluvial valley floor determinations;

(w) the final surface and underground water drainage plan on and away from the area of land affected. This plan must indicate the direction and volume of flow of water, constructed drainways, natural waterways used for drainage, and the streams or tributaries receiving the discharge;

(x) the location of the test boring holes;

(y) the surface location lines of any geologic cross sections that have been submitted; and

(z) the location and extent of subsurface water, if encountered, and the names and location of surface water bodies, including springs, constructed or natural drains, and irrigation ditches, within the proposed mine plan and adjacent areas.

(2) Maps must be prepared in accordance with the following procedures:

(a) Each map containing information pursuant to (1) must be certified as follows. "I, the undersigned, hereby certify that this map is correct and shows to the best of my knowledge and belief all the information required by the mining laws of this state.. The certification must be signed and notarized in affidavit form. If the certification is submitted as a document separate from the map(s) , it must be in affidavit form. The department may reject a map as incomplete if its accuracy is not so attested.

(b) Maps, plans, and cross-sections required under (1) (d), (e), (j), (k), (l), (m), (o), (p), (q) , (s) , (t) , (x) , and (z) must be prepared by, or under the direction of, and certified by a qualified licensed professional engineer, with assistance from experts in related fields, except that:

(i) maps and cross-sections required under (1) (d), (l), (m), (o), (p), (s), (t), (x) and (z) may be prepared by, or under the direction of, and certified by a qualified licensed professional land surveyor with assistance from experts in related fields; and

(ii) maps, plans, and cross-sections for sedimentation ponds and spoil disposal facilities may be prepared only by a qualified licensed professional engineer.

(c) All detail on maps must be clearly legible.

(3) Maps other than those outlined in (1) and (2) necessary to meet the requirements of this rule or other rules adopted pursuant to the Act must also be certified as in (2) (a) .

(2) If the lands in question have not "historically been used for cropland" as that term is defined in ARM 17.24.301, the applicant must submit a request for a negative determination for these lands with documentation supporting this request.

(3) If the lands in question have historically been used for cropland, the applicant shall, in consultation with the Montana state office of the U.S. natural resources conservation service, determine if any soils, characterized and described in accordance with ARM 17.24.304(1) (k) , on these lands meet the criteria of prime farmlands as contained in 7 CFR 657;

(a) Whenever a determination is made that the soil survey of lands within the proposed permit area identifies soils that meet the criteria of prime farmlands, the applicant shall indicate the reasons for this determination and shall include materials in the application showing compliance with ARM 17.24.324.

(b) When the soil survey for lands within the proposed permit area does not identify soils that meet the criteria for designation as prime farmland, the applicant shall submit a request for negative determination for these lands with reasons supporting this conclusion.

(1) Each application must contain a description of the operations proposed to be conducted during the life of the mine including, at a minimum, the following:

(a) a narrative description of the type and method of mining procedures and proposed engineering techniques, anticipated annual and total production of mineral, by tonnage, and the major equipment to be used for all aspects of those operations;

(b) a narrative, with appropriate cross sections, design drawings, and other specifications sufficient to demonstrate compliance with ARM 17.24.609 and applicable rules of subchapter 10, explaining the construction, modification, use, maintenance, and removal of the following facilities (unless retention of such facilities is necessary for postmining land use as specified in ARM 17.24.762):

(i) dams, embankments, and other impoundments;

(ii) overburden and soil handling and storage areas and structures;

(iii) mineral removal, handling, storage, cleaning, and transportation areas and structures;

(iv) spoil, waste, garbage, and other debris removal, handling, storage, transportation, and disposal areas and structures;

(v) other support facilities as designated in ARM 17.24.609;

(vi) water and air pollution control facilities;

(vii) facilities or sites and associated access routes for environmental monitoring and data gathering activities or for the gathering of subsurface data by trenching, drilling, geophysical, or other techniques to determine the natures, depth, and thickness of all known strata, overburden, and coal seams; and

(viii) any additional information the department deems useful;

(c) a description of measures to be employed to ensure that all debris, acid, toxic, acid-forming, and toxic-forming materials, materials constituting a fire hazard, and otherwise undesirable materials are properly disposed of; and

(d) a description of the contingency plans which have been developed to extinguish a fire or sustained combustion of materials constituting a fire hazard;

(e) a description of steps to be taken to comply with the requirements of the Clean Air Act (42 USC 7401, et seq.), the Clean Water Act (33 USC 1251, et seq.), the Resource Conservation and Recovery Act (42 USC 6901, et seq.), and other applicable air and water quality laws and regulations and health and safety standards, or a copy of a valid permit issued under these laws; and

(f) a plan to prevent the establishment of, or to control, noxious weeds on all lands within the proposed permit area until phase IV bond release, in accordance with the Noxious Weed Management Act, 7-22-2102 through 7-22-2153, MCA, as amended.

(a) types and approximate amounts of explosives to be used for each type of blasting operation to be conducted;

(b) description of procedures and plans generally used for:

(i) drilling patterns, including size, number, depths, and spacing of holes;

(ii) charge and packing of holes;

(iii) types of fuses and detonation controls;

(iv) sequence and timing of firing holes;

(v) a description of procedures and plans for recording of (i) through (iv) above and retention of those records;

(c) description of blasting warning and site access control equipment and procedures;

(d) description of types, capabilities, sensitivities, and locations of use of any blast monitoring equipment and procedures proposed to be used;

(e) description of plans for recording and reporting to the department the results of preblasting surveys, if required;

(f) description of unavoidable hazardous conditions for which deviations from the blasting schedule will be needed; and

(g) a general description of structures to be protected and a discussion of design factors to be used to protect the public and to meet the applicable airblast, flyrock, and ground vibration standards in ARM 17.24.624.

(2) For underground mines the department may, on a case-by-case basis, waive any of the requirements in (1) of this rule that do not apply to underground blasting operations.

(1) For all strip mining operations with projected production rates exceeding 1,000,000 tons of mineral per year, the application must contain an air pollution control plan that includes the following:

(a) an air quality monitoring program to provide sufficient data to evaluate the effectiveness of the fugitive dust control practices proposed under (b) to comply with federal and state air quality standards; and

(b) a plan for fugitive dust control practices as required by ARM 17.24.761.

(2) For all other strip mining operations, the application must contain:

(a) the requirements of (1) (a) , if required by the department; and

(b) the plan required by (1) (b) .  

(1) Each application must contain a fish and wildlife plan, consistent with ARM 17.24.751 that provides:

(a) a description of how the plan will minimize disturbances and adverse impacts on fish, wildlife, and related environmental values during mining and reclamation operations, how enhancement of these resources will be achieved, where practicable, and how the plan will comply with the Endangered Species Act of 1973, as amended. The plan must apply, at a minimum, to species and habitats identified in ARM 17.24.304(1) (j) (i) and (iii) , and must cover the permit area and portions of adjacent areas as determined by the department pursuant to ARM 17.24.304(1) (j) (v) ;

(b) a description of the wildlife habitat enhancement features that will be integrated with other land uses, pursuant to 82-4-232(9) , MCA, and ARM 17.24.313;

(c) if the applicant states that it will not be practicable, in accordance with (1) , to achieve a condition that clearly shows a trend toward enhancement of fish and wildlife resources at the time revegetation has been successfully completed, a statement documenting, to the satisfaction of the department, why it is not practicable to achieve such a condition; and

(d) a statement explaining how the applicant will utilize impact control measures, management techniques, and annual monitoring methods to protect or enhance the following, if they are to be affected by the proposed activities:

(i) threatened or endangered species of plants or animals listed by the U.S. secretary of interior under the Endangered Species Act of 1973, as amended (16 USC 1531, et seq.) and their critical habitats;

(ii) species such as eagles, migratory birds, other animals protected by state or federal law, and their habitats, and any other species identified through the consultation process pursuant to ARM 17.24.304(1) (j) ; and

(iii) habitats of unusually high value for fish and wildlife, such as wetlands, riparian areas, cliffs supporting raptors, areas offering special shelter or protection, reproduction and nursery areas, and wintering areas.

(2) Upon request, the department shall provide the fish and wildlife resource information required in ARM 17.24.304(1) (j) , 17.24.312, and 17.24.751, as well as any other rule dealing with fish and wildlife, to the U.S. fish and wildlife service regional or field office for review. This information must be provided within 10 days of receipt of the request.

(1) Each reclamation plan must contain a description of the reclamation operations proposed, including the following information:

(a) the proposed postmining land use pursuant to ARM 17.24.762;

(b) a detailed timetable for the estimated completion of each major step in the reclamation plan;

(c) a detailed estimate of the cost of reclamation of the proposed operations that will be covered by a performance bond with supporting calculations for the estimate;

(d) a plan for backfilling, stabilization, compacting, and grading of the proposed permit area. The plan for backfilling must contain:

(i) a description of the final location of all overburden and parting materials in the fill. Diagrams must be included, as necessary;

(ii) a narrative and cross-sections, or other means as approved by the department, showing the plan of highwall backfilling, reduction, or an alternative thereof, including the limits of buffer zone consistent with the performance standards of ARM 17.24.501 and 17.24.515;

(iii) a narrative description of the derivation of the bulking factor (swell) used by the applicant in calculation of spoil volumes and generation of postmining contour maps. Calculations used in the derivation must be included;

(iv) a map showing the postmining topography that the applicant proposes to meet at the time of final bond release. This map must be prepared to reflect the performance standards; and

(v) a demonstration that the proposed postmining topography can be achieved. This demonstration must include a cross-section or set of cross-sections, or other method as approved by the department, to depict the removal of overburden and mineral and the replacement of the swelled spoil;

(e) a description of postmining drainage basin reclamation that ensures protection of the hydrologic balance, achievement of postmining land use performance standards, and prevention of material damage to the hydrologic balance in adjacent areas, including:

(i) a comparison of premining and postmining drainage basin size, drainage density, and drainage profiles as necessary to identify characteristics not distinguishable on the premining and postmining topographic maps;

(ii) a discussion of how, within drainage basins:

(A) the plan meets each performance standard in ARM 17.24.634;

(B) the requirements of 82-4-231(10)(k), MCA, and ARM 17.24.314 will be met where the postmining topography differs from the premining as allowed by ARM 17.24.301(13)(c);

(f) drainage channel designs appropriate for preventing material damage to the hydrologic balance in the adjacent area and to meet the performance standards of ARM 17.24.634, including:

(i) detailed drainage designs for channels that contain critical hydrologic, ecologic or land use functions not already addressed in this rule such as alluvial valley floors, wetlands, steep erosive upland drainages, drainages named on USGS topographic maps, or intermittent or perennial streams. Detailed drainage designs include fluvial and geomorphic characteristics pertinent to the specific drainages being addressed; and

(ii) for all other channels, typical designs and discussions of general fluvial and geomorphic habit, pattern, and other relevant functional characteristics;

(g) plans for removal, storage, and redistribution of soil, overburden, spoils, and other material in accordance with ARM 17.24.501, 17.24.502, 17.24.503, 17.24.504, 17.24.505, 17.24.507, 17.24.510, 17.24.514, 17.24.515, 17.24.516, 17.24.517, 17.24.518, 17.24.519, 17.24.520, 17.24.521, and 17.24.522, and 17.24.701 through 17.24.703;

(i) These plans must include or reference other narratives in the application documenting how the information on the characteristics of the overburden and coal (ARM 17.24.304(1)(g)) and soils (ARM 17.24.304(1)(k)) was utilized in developing the plans.

(ii) Using the soil survey information (see ARM 17.24.304 (1)(k)), the applicant shall propose estimated salvage depths for each lift of each soil component (series or phase) of each soil mapping unit.

(iii) The application must also include figures with supporting calculations showing:

(A) total acreages and volumes of salvageable soil of each lift from each soil component of each soil mapping unit; and

(B) the anticipated thickness(es) of soil redistribution for each lift, and in total, on the area of land affected after regrading;

(iv) The applicant must submit plans for any necessary monitoring of soils, overburden, spoils, or other materials;

(h) a narrative of the method for revegetation including, but not limited to, a discussion of:

(i) revegetation types, including acreage of each;

(ii) the schedule of revegetation;

(iii) species and amounts per acre of seeds and seedlings to be used, calculated as pure live seed;

(iv) introduced species to be used, if any, and documentation of the desirability and necessity of using the introduced species to achieve the approved postmining land use;

(v) methods to be used in planting and seeding;

(vi) approximate, normal, annual seeding and planting dates;

(vii) the use of nurse or cover crop and mulching techniques;

(viii) soil tillage, amendments or other management techniques to assist in vegetative establishment;

(ix) vegetation monitoring to be implemented to identify conditions during the period of liability;

(x) measures to be used to determine the success of revegetation, including the use of reference areas and/or technical standards in relation to the revegetation types pursuant to ARM 17.24.724 and 17.24.726;

(xi) plans for determining quality, fertility, and thickness of redistributed soil and for determining quality of regraded spoil. The purpose of these plans is to evaluate the results of the handling of soils, overburden, wastes, and other materials and to evaluate reclamation procedures related to revegetation; and

(xii) the types of major equipment to be used in the above operations.

(i) a description, including appropriate cross-sections and maps, of the measures to be used to seal or manage mine openings, and to plug, case, or manage prospecting holes, other bore holes, wells, and other openings within the proposed permit area in accordance with subchapter 9 and ARM 17.24.1005; and

(j) a narrative explaining reclamation of facilities and sites identified under ARM 17.24.308(1)(b).

(1) Each permit application must contain a detailed description, supported by appropriate maps, data, and other graphics, of the measures to be taken during and after the proposed mining activities to minimize disturbance of the hydrologic balance on and off the mine plan area and to prevent material damage to the hydrologic balance outside the permit area in accordance with subchapters 4 through 9. The measures must minimize disturbance of the hydrologic balance sufficiently to sustain the approved postmining land use and the performance standards of subchapters 5 through 12 and must provide protection of:

(a) the quality of surface and ground water systems, within both the proposed mine plan and adjacent areas, from the adverse effects of the proposed strip or underground mine operations;

(b) the rights of present users of surface and ground water; and

(c) the quantity of surface and ground water within both the proposed mine plan area and adjacent areas from adverse effects of the proposed mining activities, or to provide alternative sources of water in accordance with ARM 17.24.304 (1)(e) and (f) and 17.24.648, where the protection of quantity cannot be ensured.

(2) The description must include:

(a) a plan for the control, in accordance with ARM 17.24.631 through 17.24.652, of surface and ground water drainage into, through and out of the proposed mine plan area;

(b) a plan for the treatment, where required, of surface and ground water drainage from the area to be disturbed by the proposed operations, and proposed quantitative limits on pollutants in discharges subject to ARM 17.24.633 or other applicable state or federal laws. The plan must include design specifications, drawings, method of operation and control, and quality of discharge of the treatment facilities;

(c) a plan for the restoration of the approximate recharge capacity of the mine plan area in accordance with ARM 17.24.644; and

(d) plans for monitoring and semi-annual reporting of ground and surface water quality and quantity data collected and analyzed in accordance with ARM 17.24.304(1)(e) and (f), 17.24.645, and 17.24.646.

(3) The application must also include a determination pursuant to (1) and (2) of the probable hydrologic consequences of the proposed mining operation, on the proposed mine plan area and adjacent areas, with respect to the hydrologic balance. This determination must:

(a) be based on appropriate information on environmental resources addressed in ARM 17.24.304 and other relevant information;

(b) list and summarize all probable hydrologic consequences of the proposed mining operation including:

(i) whether adverse impacts may occur to the hydrologic balance;

(ii) whether acid-forming or toxic-forming materials that could result in the contamination of surface or ground water supplies are present;

(iii) whether the proposed operation may proximately result in contamination, diminution or interruption of an underground or surface source of water within the proposed permit or adjacent areas which is used for domestic, agricultural, industrial or other legitimate purpose; and

(iv) what impact the proposed operation will have on:

(A) sediment yields from the disturbed area;

(B) acidity, total suspended and dissolved solids, and other important water quality parameters of local impact;

(C) flooding or streamflow alteration;

(D) ground water and surface water availability; and

(E) other characteristics as required by the department; and

(c) explain to what extent each hydrologic consequence can be mitigated by measures taken pursuant to (1) and (2).

(4) Whenever this determination in (3) indicates that adverse impacts to the hydrologic balance on or off the permit area may occur, the department shall require submission of supplemental information to evaluate such impacts and to evaluate plans for remedial and long-term reclamation activities.

(5) The department shall provide an assessment of the cumulative hydrologic impacts of the proposed operation and all anticipated mining upon surface and ground water systems in the cumulative impact area. The cumulative hydrologic impact assessment must be sufficient to determine, for purposes of a permit decision, whether the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area. The department may allow the applicant to submit data and analyses relevant to the cumulative hydrologic impact assessment with the permit application.

(a) Each general plan must:

(i) be prepared by, or under the direction of, and certified by a qualified licensed professional engineer, experienced in designing impoundments;

(ii) contain a description, map, and cross-section of the structure and its location;

(iii) contain preliminary hydrologic and geologic information required to assess the hydrologic impact of the structure;

(iv) contain a survey describing the potential effect on the structure from subsidence of the subsurface strata resulting from past underground mining operations if underground mining has occurred; and

(v) contain a certification statement which includes a schedule setting forth the dates that any detailed design plans for structures that are not submitted with the general plan will be submitted to the department. The department must have approved, in writing, the detailed design plan for a structure before construction of the structure begins.

(b) Each detailed design plan for a structure that meets or exceeds the size or other criteria of the mine safety and health administration, 30 CFR 77.216(a) , or meets the Class B or C criteria for dams in USDA soil conservation service Technical Release No. 60 (210-VI-TR60, October 1985, as revised through January 1991) , "Earth Dams and Reservoirs", (TR-60) must:

(i) be prepared by, or under the direction of, and certified by a qualified licensed professional engineer with assistance from experts in related fields such as geology, surveying, and landscape architecture. The certifying engineer must have experience designing impoundments;

(ii) include any geotechnical investigation, design, and construction requirements for the structure;

(iii) include a stability analysis of the structure. The stability analysis must contain, but not be limited to, strength parameters, pore pressures, and long-term seepage conditions. It must contain a foundation investigation, as well as any necessary laboratory testing of foundation materials, to determine the design requirements necessary to meet and to show that the design will meet the standards of ARM 17.24.639(8) for foundation stability. The plan must also contain a description of each engineering design assumption and calculation with a discussion of each alternative considered in selecting the specific design parameters and construction methods;

(iv) describe the operation and maintenance requirements for each structure; and

(v) describe the timetable and plans to remove each structure, if appropriate.

(c) Technical Release No. 60 (TR-60) is available for inspection at the Department of Environmental Quality, 1520 East 6th Avenue, Helena, MT 59601.

(d) Each detailed design for a structure that does not meet the size or other criteria of 30 CFR 77.216(a) or the criteria for Class B or C dams in TR-60, must:

(i) be prepared by, or under the direction of, and certified by a qualified licensed professional engineer. The certifying engineer must have experience in designing impoundments;

(ii) include any design and construction requirements for the structure, including any required geotechnical information;

(iii) include appropriate information on the foundation conditions of the structure to determine the design requirements necessary to meet and to show that the design will meet the standards of ARM 17.24.639(8) for foundation stability;

(iv) describe the operation and maintenance requirements for each structure; and

(v) describe the timetable and plans to remove each structure, if appropriate.

(2) Sedimentation ponds, whether temporary or permanent, must be designed in compliance with the requirements of ARM 17.24.639. Impoundments meeting the criteria of 30 CFR 77.216(a) , must comply with the requirements of 30 CFR 77.216-1 and 77.216-2, and must be submitted to the mine safety and health administration.

(3) Permanent impoundments must be designed to comply with ARM 17.24.642, and the requirements of the mine safety and health administration, 30 CFR 77.216-1 and 77.216-2.

(4) Dams and reservoirs impounding 50 acre-feet or more either singly or in series within the same watershed, may require a construction and operating permit as required in the Dam Safety Act. For purposes of the Dam Safety Act, capacity is measured to the crest of the dam. Operators must contact the department of natural resources and conservation to determine what requirements must be met.

(1) For any public parks, historic places, or other significant cultural resources identified in ARM 17.24.304(2) that may be adversely affected by the proposed operations, each plan must describe the measures to be used to minimize or prevent these impacts, the timing and tracking of these measures relative to the disturbance schedule, and how the applicant will obtain approval of the department and other agencies as required in ARM 17.24.1131.

(1) conducting the proposed mining activities within 100 feet of the right-of-way line of any public road, except where mine access or haul roads join that right-of-way; or

(2) relocating or closure of a public road.

(2) Each application must contain the results of a geotechnical investigation of the proposed disposal site, including the following:

(a) the character of bedrock and any adverse geologic conditions in the disposal area;

(b) a survey identifying all springs, seepage and ground water flow observed or anticipated during wet periods in the area of the disposal site;

(c) a survey of the potential effects of subsidence of the subsurface strata due to past and future mining operations;

(d) a technical description of the rock materials to be utilized in the construction of those disposal structures containing rock chimney cores and underlain by a rock drainage blanket; and

(e) a stability analysis including, but not limited to, strength parameters, pore pressures and long-term seepage conditions. These data must be accompanied by a description of all engineering design assumptions and calculations and the alternatives considered in selecting the specific design specifications and methods.

(3) If rock-toe buttresses or key-way cuts are required, the application must include the following:

(a) the number, location, and depth of borings or test pits determined with respect to the size of the spoil disposal structure and subsurface conditions; and

(b) engineering specifications utilized to design the rock-toe buttress or key-way cuts, which must be determined in accordance with (2) (e) .

(a) a map, cross-sections, and specifications for each road including width, gradient, surface, cut, embankment, culvert, bridge, drainage ditch, and drainage structure;

(b) a report of geotechnical analysis, where approval of the department is required for alternative specifications;

(c) a description of measures to be taken to obtain approval of the department for alteration or relocation of a natural drainageway;

(d) a description of measures, other than use of a rock headwall, to be taken to protect the inlet end of a ditch relief culvert for approval by the department under ARM 17.24.605(6) ;

(e) demonstration of compliance with ARM 17.24.601 through 17.24.606;

(f) demonstration of compliance with any design criteria established by the department; and

(g) in accordance with standards of subchapters 5, 6, 7, and 8, a description of measures that will be used to reclaim any roads that will not be reclaimed as part of the reclamation activities of the mine excavations.

(2) Plans for low-water crossings of perennial and intermittent stream channels must be submitted and must demonstrate that protection of such stream channels will be maximized in accordance with ARM 17.24.602, 17.24.631, 17.24.633, 17.24.638, and any other applicable rules.

(3) The plans and drawings for each haul road, access road, conveyor, railroad loop, and low-water crossing of perennial and intermittent streams required under (1) and (2) must be prepared by, or under the direction of, and certified by a qualified licensed professional engineer with experience in the design and construction of such facilities. The certification must state that the designs meet the performance standards of ARM 17.24.601, 17.24.602, 17.24.603, 17.24.605, and current prudent engineering practices.

(4) Ramp roads must be shown and designated on the map(s) required in (1) (a) .

(2) The plan must include:

(a) the results of all test borings, evaluations, observations, and analyses, including the following:

(i) a narrative interpretation of the results of all test borings or core samplings conducted on the area to be mined or otherwise affected, including the nature, depth, and thickness of all known strata, overburden, and all coal seams encountered;

(ii) a narrative identifying the total reserves in the permit area along with a description of the method of calculation;

(iii) geologic cross-sections accurately depicting the known geologic makeup beneath the surface of the area to be mined or otherwise affected. The cross-sections must depict the thickness and geological character of all known strata, beginning with the soil and including the stratum immediately below the lowest of all the potentially economically minable coal seams or the stratum containing any aquifer below this seam that may be adversely impacted by mining, whichever is deeper. (See ARM 17.24.304(5) and (7) ) ;

(iv) a map showing elevations and locations of test borings and coal sampling;

(v) upon request by the department, isopach maps of overburden, interburden, and all coal seams proposed to be mined;

(vi) an analysis and summary of the chemical properties of all coal seams to be disturbed including the content of sulfur (organic and inorganic) , trace mineral elements, sodium (as Na2O) , moisture, and ash as well as the British thermal unit (BTU) content per pound;

(vii) all coal crop lines and the strike and dip of the coal to be mined within the proposed mine plan area;

(viii) location and extent of known workings of active, inactive, or abandoned underground mines, including mine openings to the surface within the proposed mine plan and adjacent areas; and

(ix) location and extent of existing or previously strip mined areas within the proposed mine plan area;

(b) a description of the location, quantity, and quality of all coal to be left unmined, accompanied by a detailed explanation of the reasons why the coal will not be mined. This explanation must include coal that is to be left unmined in order to comply with the Act as well as that coal which is to be left unmined because of the method of operation or because the coal is not minable or marketable; and

(c) where applicable, a range diagram type drawing showing any coal fenders to be left in place, and a detailed narrative description of the changes in the mine plan that would be necessary to recover the same and any potential effects of such changes.

(3) If it is determined by the department, based on the information provided pursuant to the provisions of (1) and (2) that an operator is or will be mining all of the minable and marketable coal, no further information need be submitted. If, however, the department determines that it needs further information to make a determination, it may require the operator to submit the following:

(a) a description of the type of equipment and operations to be used including, but not limited to:

(i) the prime equipment model, year, size and capacity;

(ii) the initial and depreciated cost of the prime equipment, including all earth moving equipment;

(iii) the capability of the equipment to move earth at a fixed rate;

(iv) the plan for the excavation and placement of overburden materials;

(v) the plan for the removal and transportation of coal; and

(vi) the anticipated plan of mining for a two-year period;

(b) a detailed cost and revenue analysis on a per ton basis of coal mining and market conditions including, at a minimum:

(i) the estimated cost of mining;

(ii) the estimated cost of reclamation;

(iii) the estimated cost of transportation per ton;

(iv) the estimated annual taxes;

(v) the estimated market value of coal to be extracted;

(vi) the estimated total gross yield to be received for coal extracted;

(vii) the estimated mining cost of coal to be left unmined; and

(viii) the estimated market value of coal to be left unmined; and

(c) any other relevant information the department may require.

(4) For an operator with a federal resource recovery and protection plan, the department may review all applicable coal recovery information retained by the bureau of land management, in lieu of or in addition to the information requirements under (3) .

(5) Any operator or aggrieved person who believes that the department's decision to either require or not require the submission of the information contained in this rule may petition the board for a public hearing pursuant to the provisions of the Montana Administrative Procedure Act.

This rule has been repealed.

(a) the soil survey requirements listed under ARM 17.24.304(11) , and also including: 

(i) a description of the mapping unit(s) containing each prime farmland soil;

(ii) the depth and thickness of each of the soil horizons that collectively constitute the root zone of the locally adapted crops; and

(iii) the bulk densities of each soil horizon for each prime farmland soil;

(b) the proposed method and type of equipment to be used for removal, storage, and replacement of the soil in accordance with ARM 17.24.811;

(c) the location of areas to be used for the separate stockpiling of the soil and plans for stockpile stabilization;

(d) plans for seeding or cropping the final graded disturbed land and the conservation practices to be used to adequately control erosion and sedimentation and  to restore an adequate soil moisture regime, during the period from completion of regrading until release of the performance bond. Proper adjustments for seasons must be proposed so that final graded land is not exposed to erosion during seasons when vegetation or conservation practices cannot be established due to weather conditions;

(e) plans that demonstrate that the proposed method of reclamation will achieve vegetation to satisfactorily comply with ARM 17.24.815;

(f) available agricultural school studies or other scientific data for areas with comparable soils, climate, and management (including water management) that demonstrate that the proposed method of reclamation will achieve, within a reasonable time, equivalent or higher levels of yield after disturbance as existed before disturbance;

(g) if the use of other soils or materials is proposed, documentation, such as agricultural school studies or other scientific data from comparable areas, demonstrating that the use of these soils or materials, instead of the A, E, B, or C horizons of the prime farmland soils, can achieve soil productive capacities in accordance with 82-4-232 (3) (a) and (b) , MCA. Any proposals to use said substitutes must document compliance with ARM 17.24.703, if applicable;

(h) a description of the reference area(s) of prime farmland that lie outside of the area proposed for disturbance but in the vicinity of the proposed mining operation. If reference areas in the vicinity of the mining operation are not present, the applicant shall describe reference areas more distant from the proposed operation. In all cases, reference areas must be selected and used in accordance with ARM 17.24.815(2) , in determining revegetative success of disturbed and reclaimed prime farmlands;

(i) if reference areas in accordance with (h) are not found at all, a demonstration as to how a target yield will be utilized in determining revegetation success in accordance with ARM 17.24.815(2) ; and

(j) vegetative productivity prior to disturbance in accordance with ARM 17.24.304(12) (b) (ii) .

(2) Before any permit is issued for areas that include prime farmlands, the department shall consult with the Montana state office of the U.S. natural resources conservation service.

(3) A permit for the mining and reclamation of prime farmland may be granted by the department, if it first finds, in writing, upon the basis of a complete application, that:

(a) the permit incorporates as specific conditions the contents of the plan submitted under (1) after consideration of any revisions to that plan suggested by the Montana state office of the U.S. natural resources conservation service pursuant to (2) ;

(b) the applicant has the technological capability to restore the prime farmland, within a reasonable time, to equivalent or higher levels of yield as comparable non-mined prime farmland under equivalent levels of management;

(c) the postmining land use of the affected prime farmland will be cropland, special use pasture, grazing land, or wildlife habitat that is consistent with the restoration of the real or potential productivity of the prime farmland; and

(d) the proposed operations will be conducted in compliance with the applicable requirements of ARM 17.24.811 and 17.24.815 through 17.24.825.

(2) (a) Permit applicants who propose to conduct coal mining and reclamation operations within a valley holding a stream or in a location where the proposed permit area or adjacent area includes any stream in the arid or semi-arid region of Montana, may request the department to make an alluvial valley floor determination with respect to that valley floor, as an initial step in the permit application process.   The applicant shall demonstrate, and the department shall determine, based on available data, or field studies submitted by the applicant, or a combination thereof, the presence or absence of an alluvial valley floor.   Studies must include sufficiently detailed geologic, hydrologic, land use, soils, and vegetation data and data analyses to demonstrate the presence or absence of an alluvial valley floor in the area.   The department may require additional data collection and analyses or other supporting documents, maps, and illustrations in order to make the determination.   Studies performed during the investigation by the applicant or subsequent studies as required of the applicant by the department, must include an appropriate combination, adapted to site-specific conditions, of:

(i) mapping of unconsolidated streamlaid deposits holding streams including, but not limited to, geologic maps of unconsolidated deposits and streamlaid deposits, maps of streams, delineation of surface watersheds and directions of shallow ground water flows through and into the unconsolidated deposits, topography showing local and regional terrace levels, and topography of terraces, flood plains and channels showing surface drainage patterns;

(ii) mapping of all lands included in the area in accordance with (2) of this rule and subject to agricultural activities, showing the area in which different types of agricultural lands, such as flood irrigated lands, croplands and undeveloped rangelands exist and accompanied by measurements of vegetative productivity and type;

(iii) mapping of all lands that are currently or were historically flood irrigated, showing the location of each diversion structure, ditch, dam and related reservoir, irrigated land, and topography of those lands;

(iv) documentation that areas identified in this subsection are, or are not, subirrigated, based on ground water monitoring data, representative water quality, soil moisture measurements, and measurements of rooting depth, soil mottling, and water requirements of vegetation;

(v) documentation, based on representative sampling, that areas identified in (2) of this rule are, or are not, flood irrigable, based on streamflow water quality, water yield, soils measurements, and topographic characteristics;

(vi) analysis of a series of aerial photographs, including color infrared imagery flown at a time of year to show any late summer and fall differences between upland and valley floor vegetative growth and of a scale adequate for reconnaissance identification of areas that may be alluvial valley floors.

(b) Based on the investigations conducted under (a) above, the department shall make a written determination of the extent of any alluvial valley floors within the study area and whether any stream in the study area may be excluded from further consideration as lying within an alluvial valley floor.   The department shall determine that an alluvial valley floor exists if it finds that:

(i) unconsolidated streamlaid deposits holding streams are present; and

(ii) there is sufficient water to support agricultural activities as evidenced by:

(A) the existence of current flood irrigation in the area in question;

(B) the capability of the area to be flood irrigated, based on typical regional agricultural practices, historical flood irrigation, stream-flow, water yield, soils, water quality, and topography; or

(C) subirrigation of the lands in question, derived from the ground water system of the valley floor; and

(iii) the valley does not meet the definition of upland areas in ARM 17.24.301.

(c) If the department determines in writing that an alluvial valley does not exist pursuant to (b) above, no further consideration of this rule is necessary;

(3) (a) (i) Whenever an alluvial valley floor is identified pursuant to (2) (b) of this rule, and the proposed coal mining operation may affect this alluvial valley floor or waters that supply the alluvial valley floor, the applicant may request the department, as a preliminary step in the permit application process, to separately determine the applicability of the statutory exclusions set forth in (ii) below.   The department may make such a determination based on the available data, may require additional data collection and analyses in order to make the determination, or may require the applicant to submit a complete permit application and not make the determination until after the complete application is evaluated.

(ii) An applicant need not submit the information required in (3) (c) (ii) (B) and (C) below, and the department is not required to make the findings of (3) (f) (ii) (A) and (B) below when the department determines that 1 of the following circumstances, heretofore called statutory exclusions, exist:

(A) the premining land type is undeveloped rangeland that is not significant to farming;

(B) any farming on the alluvial valley floor that would be affected by the coal mining operation is of such small acreage as to be of negligible impact on the farm's agricultural production.   Negligible impact of the proposed operation on farming is based on the relative importance of the affected vegetation and water of the developed grazed or hayed alluvial valley floor area to the farm's production over the life of the mine; or

(C) the circumstances set forth in ARM 17.24.802(3) exist.

(iii) For the purposes of this section, a "farm" is 1 or more land units on which agricultural activities are conducted. Agricultural activities or farming are generally considered to occur on a combination of land units with acreage and boundaries in existence prior to August 3, 1977, or, if established after August 3, 1977, with those boundaries based on enhancement of the farm's agricultural productivity and not related to coal mining operations.

(b) If the department determines that the statutory exclusions are not applicable and that any of the required findings of (3) (f) (ii) below cannot be made, the department may, at the request of the applicant:

(i) determine that mining is precluded on the proposed permit area and deny the permit without the applicant filing any additional information required by this section; or

(ii) prohibit coal mining and reclamation operations in all or parts of the area to be affected by mining.

(c) (i) If land within the permit area or adjacent area is identified as an alluvial valley floor and the proposed coal mining and reclamation operation may affect an alluvial valley floor or waters supplied to an alluvial valley floor, the applicant shall submit a complete application for the proposed coal mining and reclamation operation to be used by the department together with other relevant information as a basis for approval or denial of the permit.   If an exclusion in (3) (a) (ii) above applies, then the applicant need not submit the information required in (3) (c) (ii) (B) and (C) below.

(ii) The complete application must include detailed surveys and baseline data required by the department for a determination of:

(A) the characteristics of the alluvial valley floor that are necessary to preserve the essential hydrologic functions throughout the mining and reclamation process;

(B) whether the operation will avoid during mining and reclamation the interruption, discontinuance, or preclusion of farming on the alluvial valley floor;

(C) whether the operation will cause material damage to the quantity or quality of surface or ground waters that supply the alluvial valley floor;

(D) whether the reclamation plan is in compliance with requirements of the Act, this chapter, and regulatory program; and

(E) whether the proposed monitoring system will provide sufficient information to measure compliance with ARM 17.24.801, 17.24.802, and 17.24.804 through 17.24.806, during and after mining and reclamation operations.

(d) Information required under this section must include, but not be limited to:

(i) geologic data, including geologic structure, surficial geologic maps, and geologic cross-sections;

(ii) soils and vegetation data, including a detailed soil survey and chemical and physical analyses of soils, a vegetation map and narrative descriptions of quantitative and qualitative surveyors, and land use data, including an evaluation of crop yields;

(iii) for surveys and data required under this section (3) for areas designated as alluvial valley floors because of their flood irrigation characteristics, at a minimum, surface hydrologic data, including streamflow, runoff, sediment yield, and water quality analyses describing seasonal variations over at least 1 full year, field geomorphic surveys and other geomorphic studies;

(iv) for surveys and data required under this section (3) for areas designated as alluvial valley floors because of their subirrigation characteristics, at a minimum, geohydrologic data including observation well establishment for purposes of water level measurements, ground water contour maps, testing to determine aquifer characteristics that affect waters supplying the alluvial valley floors, well and spring inventories, and water quality analyses describing seasonal variations over at least 1 full year, and physical and chemical analysis of overburden to determine the effect of the proposed mining operations on water quality and quantity;

(v) plans showing how the operation will avoid, during mining and reclamation, interruption, discontinuance or preclusion of farming on the alluvial valley floors unless the premining land type has been undeveloped rangeland which is not significant to farming and will not materially damage the quantity or quality of water in surface and ground water systems that supply alluvial valley floors;

(vi) maps showing farms and ranches that could be affected by the mining and, if any farm or ranch includes an alluvial valley floor, statements of the type and quantity of agricultural activity performed on the alluvial valley floor and its relationship to the farm or ranch's total agricultural activity including an economic analysis; and

(vii) such other data as the department may require.

(e) The surveys required by this section (3) must identify those geologic, hydrologic, and biologic characteristics of the alluvial valley floor necessary to support the essential hydrologic functions of an alluvial valley floor.   Characteristics that support the essential hydrologic functions and that must be evaluated in a complete application include, but are not limited to:

(i) characteristics supporting the function of collecting water which include, but are not limited to:

(A) the amount and rate of runoff and a water balance analysis, with respect to rainfall, evapotranspiration, infiltration and ground water recharge;

(B) the relief, slope, and density of the network of drainage channels;

(C) the infiltration, permeability, porosity and transmissivity of unconsolidated deposits of the valley floor that either constitute the aquifer that is hydraulically connected to the stream or the unsaturated valley fill below the stream and above the alluvial aquifer; and

(D) other factors that affect the interchange of water between surface streams and ground water systems, including the depth to ground water, the direction of ground water flow, the extent to which the stream and associated alluvial ground water aquifers provide recharge to, or are recharged by bedrock aquifers;

(ii) characteristics supporting the function of storing water which include, but are not limited to:

(A) slope, and vegetation of the channel, flood plain, and low terraces that retard the flow of surface waters;

(B) porosity, permeability, waterholding capacity, saturated thickness and volume of aquifers associated with streams, including alluvial aquifers, perched aquifers, and other water bearing zones found beneath the valley floor; and

(C) moisture held in soils or the plant growth medium within the alluvial valley floor, and the physical and chemical properties of the subsoil that provide for sustained vegetation growth or cover during extended periods of low precipitation;

(iii) characteristics supporting the function of regulating the flow of water which include, but are not limited to:

(A) the geometry and physical character of the valley, expressed in terms of the longitudinal profile and slope of the valley and the channel, the sinuosity of the channel, the cross-section, slopes and proportions of the channels, flood plains and low terraces, the nature and stability of the streambanks and the vegetation established in the channels and along the streambanks and flood plains;

(B) the nature of surface flows as shown by the frequency and duration of flows of representative magnitude including low flows and floods; and

(C) the nature of interchange of water between streams, their associated alluvial aquifers and any bedrock aquifers as shown by the rate and amount of water supplied by the stream to associated alluvial and bedrock aquifers (i.e., recharge) and by the rates and amounts of water supplied by aquifers to the stream (i.e., baseflow) ;

(iv) characteristics which make water available and which include, but are not limited to the presence of land forms including flood plains and terraces suitable for agricultural activities.

(f) (i) The findings of (ii) (A) and (B) below are not required with regard to alluvial valley floors which meet any of the exclusions of (3) (a) (ii) of this rule.

(ii) No permit or permit revision application for coal mining and reclamation operations may be approved by the department unless the application demonstrates in compliance with ARM 17.24.801, 17.24.802, and 17.24.804 through 17.24.806, and all other applicable requirements of the Act and rules and the department finds, in writing, on the basis of information set forth in the application, that:

(A) the proposed operations will not interrupt, discontinue, or preclude farming on an alluvial valley floor;

(B) the proposed operations will not materially damage the quantity or quality of water in surface and underground water systems that supply alluvial valley floors.

(1) Any application for a permit for operations using auger mining methods must contain, in the mining and reclamation plan, a description of the augering methods to be used and the measures to be used to comply with ARM 17.24.831 through 17.24.833.

(2) Any application for a permit for operations covered by this rule must contain in the mining and reclamation plan, specific plans, including descriptions, maps, and cross-sections of the construction, operation, maintenance, and removal of the preparation plant, processing plant and associated support facility.   The plan must demonstrate that those operations will be conducted in compliance with all applicable rules.

(1) An applicant for an operating permit, a test pit prospecting permit, a renewal of an operating permit or test pit prospecting permit, a major revision to an operating permit or test pit prospecting permit, or an amendment (other than an incidental boundary revision) to add acreage to an operating permit or a test pit prospecting permit shall file the application with the department's main office in Helena and, if directed by the department, with the federal coal regulatory authority.

(2) The department shall determine whether an application is administratively complete within 90 days of receipt and shall immediately notify the applicant in writing of its determination. If the department determines an application is not administratively complete, the notice must list the specific items not adequately addressed in the application. Any items not listed in the notice are presumed to be addressed. If the department determines that the application is administratively complete, the notice must also advise the applicant whether an environmental impact statement must be prepared.

(3) Upon receipt of notice of the department's determination of administrative completeness, the applicant shall place an advertisement in a newspaper of general circulation in the locality of the proposed activity at least once a week for four consecutive weeks. The advertisement must contain, at a minimum, the following information:

(a) the name and business address of the applicant;

(b) a map or description, which must:

(i) clearly show or describe towns, rivers, streams, or other bodies of water, local landmarks, and any other information, including routes, streets, or roads and accurate distance measurements, necessary to allow local residents to readily identify the proposed permit area;

(ii) for all applications except major revision applications, clearly show or describe the exact location and boundaries of the proposed permit area and state the acreage of that area; and

(iii) if a map is used, indicate the north point;

(c) the location where a copy of the application is available for public inspection under (6);

(d) the name and address of the department and the fact that written comments, objections, or requests for informal conferences on the application may be submitted by any person with an interest that is or may be adversely affected to the department within 30 days following the last advertisement of the application;

(e) if an applicant seeks a permit to conduct mining operations within 100 feet of the outside right-of-way of a public road or to relocate or close a public road, a concise statement describing the public road, the particular operations within the 100 feet or the particular part to be relocated or closed, where any relocation or closure is to occur, and the duration of the operations or relocation;

(f) if an alternative postmining land use plan is submitted, a brief description of the plan; and

(g) if an extension of time to commence mining is sought, the length of extension applied for. (See ARM 17.24.412.)

(4) For filing and public notice procedures for bond release applications, see ARM 17.24.1112.

(5) Immediately upon issuance of a determination of administrative completeness, the department shall:

(a) issue written notification of:

(i) the applicant's proposed activity and a description of the boundaries and location of the proposed activity;

(ii) the application number;

(iii) where a copy of the application may be inspected;

(iv) the applicant's alternative postmining land use plans, if any; and

(v) the fact that comments or objections to the application and requests for informal conference may be submitted and the address to which they may be submitted.

(b) The written notifications must be sent to:

(i) federal, state and local government agencies with jurisdiction over or an interest in the area of the proposed operations including, but not limited to, general governmental entities, fish and wildlife and historic preservation agencies, the U.S. natural resources conservation service state office, the U.S. army corps of engineers, district engineer, and the national park service;

(ii) governmental planning agencies with jurisdiction to act with regard to land use, air, or water quality planning in the area of the proposed operations;

(iii) sewage and water treatment authorities and water companies, either providing sewage or water services to users in the area of the proposed operations or having water sources or collection, treatment, or distribution facilities located in these areas; and

(iv) the federal or state governmental agencies with authority to issue all other permits and licenses needed by the applicant in connection with operations proposed in the application.

(6) Upon receipt of the department's determination of administrative completeness, the applicant shall make a full copy of the complete application available for the public to inspect and copy by filing a copy of the application with the recorder at the courthouse of the county where the mining is proposed to occur, or, if approved by the department, at another equivalent public office. The department may approve filing at an equivalent public office if it determines that that office will be more accessible to local residents than the county courthouse. The applicant shall file any subsequent revision of the application with the clerk and recorder or other approved public office at the same time the revision is submitted to the department.

(1) (a) The governmental entities specified in ARM 17.24.401(5) (b) may file written comments on applications with the department with respect to the effects of the proposed mining operations on the environment within their areas of responsibility. These comments must be submitted to the department within 30 days of receipt of written notice pursuant to ARM 17.24.401(5) .

(b) The department shall immediately transmit a copy of all such comments for filing and public inspection at the public office where the applicant filed a copy of the application under ARM 17.24.401(6) . A copy must also be transmitted to the applicant.

(2) (a) Any person whose interests are or may be adversely affected or an officer or head of any federal, state, or local government agency or authority shall have the right to file written objections to an initial or revised application with the department within 30 days after the last publication of the newspaper notice required in ARM 17.24.401(3) .

(b) The department shall, immediately upon receipt of any written objections:

(i) transmit a copy of them to the applicant; and

(ii) file a copy for public inspection in the Helena and Billings offices of the department.

(1) Any person whose interests are or may be adversely affected by the decision on an application submitted pursuant to ARM 17.24.401(1) or the officer or head of any federal, state or local government agency or authority may, in writing, request that the department hold an informal conference on that application. The request must:

(a) briefly summarize the issues to be raised by the requestor at the conference;

(b) state whether the requestor desires to have the conference conducted in the locality of the proposed activity; and

(c) be filed with the department not later than 30 days after the last publication of the newspaper advertisement placed by the applicant under ARM 17.24.401(3).

(2) Except as provided in (3), if an informal conference is requested in accordance with this rule, the department shall hold an informal conference within 30 days following the receipt of the request. The informal conference shall be conducted according to the following:

(a) If requested under (1)(b) it must be held in the locality of the proposed activity.

(b) The department shall advertise the date, time, and location of the informal conference in a newspaper of general circulation in the locality of the proposed activity at least two consecutive weeks prior to the scheduled conference.

(c) If requested, in writing, by a conference requestor in a reasonable time prior to the conference, the department may arrange with the applicant to grant parties to the conference access to the proposed mining area for the purpose of gathering information relevant to the conference.

(d) The conference must be conducted by a representative of the department, who may accept oral or written statements and any other relevant information from any party to the conference. An electronic or stenographic record must be made of the conference proceeding, unless waived by all the parties. The record must be maintained and shall be accessible to the parties of the conference until final release of the applicant's performance bond.

(3) If all parties requesting the informal conference stipulate before the informal conference to withdraw their request, the informal conference need not be held.

(4) The department shall notify the applicant and all parties to the informal conference of its decisions and the reasons therefor within 60 days of the informal conference.

(2) (a) If the application is not acceptable, the department shall notify the applicant in writing, setting forth the reasons why it is not acceptable.   The department may propose modifications, delete areas, or reject the entire application.   All items not identified as unacceptable are presumed acceptable.

(b) If the applicant revises the application in response to a notice of unacceptability, the department shall review the revised application and notify the applicant within 120 days of date of receipt, except that if the revision constitutes a significant modification, the department shall conduct a new review, including an administrative completeness determination, public notice, and public review.

(3) If the department determines that the application is acceptable, the department shall:

(a) publish notice of its determination once a week for 2 consecutive weeks in a newspaper of general circulation in the locality of the proposed activity.   The notice must state that any person with an interest that is or may be adversely affected may, within 10 days of the second published notice, file written objections or file written objections and request an informal conference within 10 days of the second published notice; and

(b) if a written objection is filed and an informal conference requested, hold an informal conference in the locality of the proposed activity within 20 days of receipt of the request.   The department shall notify the applicant and all parties to the informal conference of the decision and the reasons therefor within 10 days of the informal conference.

(4) The department shall determine the adequacy of the fish and wildlife plan submitted pursuant to ARM 17.24.312 in consultation with state and federal fish and wildlife management and conservation agencies having responsibilities for the management and protection of fish and wildlife or their habitats which may be affected or impacted by the proposed strip or underground mining operations.

(5) The department shall assure that:

(a) cultural resource locations remain confidential;

(b) a determination of effect is completed for all listed or eligible cultural resource sites in accordance with 36 CFR 800;

(c) coordination of the review process for cultural resource compliance is carried out in accordance with the provisions of the Archeological Resources Protection Act of 1979 (16 USC 470aa, et seq.) , where federal or Indian lands are involved; and

(d) the permit review process is coordinated with applicable requirements of the Endangered Species Act of 1973, as amended (16 USC 1531, et seq.) ; the Fish and Wildlife Coordination Act, as amended (16 USC 661, et seq.) ; the Migratory Bird Treaty Act of 1918, as amended (16 USC 703, et seq.) ; the National Historic Preservation Act of 1966, as amended (16 USC 470, et seq.) ; and the Bald Eagle Protection Act, as amended (16 USC 469, et seq.) .

(6) If the department decides to approve the application, it shall require that the applicant file the performance bond or provide other equivalent guarantee before the permit is issued.

(7) (a) If, based on available information concerning federal and state failure-to-abate cessation orders, unabated federal and state imminent harm cessation orders, delinquent civil penalties issued pursuant to 30 USC 1268, bond forfeitures where violations upon which the forfeitures were based have not been corrected, delinquent abandoned mine reclamation fees, and unabated violation of federal and state laws, rules, and regulations pertaining to air or water environmental protection incurred in connection with any strip or underground coal mining operation, the department determines that issuance of the permit is prohibited pursuant to 82-4-227(11) , MCA, the department may issue the permit only upon a showing that the applicant or person who either owns or controls the applicant or is owned or controlled by the applicant has filed and is presently pursuing, in good faith, a direct administrative or judicial appeal to contest the validity of the violation.

(b) If the initial judicial hearing authority either denies a stay applied for in the appeal or affirms the violation, then any strip or underground coal mining operations being conducted under a permit issued according to this section must be terminated within 30 days of the judicial decision, unless the applicant provides within that period, proof that the violation has been or is in the process of being resolved to the satisfaction of the agency having jurisdiction over the violation.

(8) Any permit that is issued on the basis of proof submitted under 82-4-227 (11) , MCA, that a violation is in the process of being corrected, or pending the outcome of an appeal described in (7) , must be conditionally issued.

(2) Whenever the department has determined that it must prepare an environmental impact statement prior to a permit decision, the department shall complete the environmental impact statement in accordance with 82-4-231 , MCA.

(3) Whenever an informal conference has been held, the department shall give its written findings and notice of decision to the applicant and to each party to the conference, approving, modifying or denying the application in whole, or in part, and stating the specific reasons therefor in the decision.

(4) Whenever no informal conference has been held, the department shall give its written findings and notice of decision to the applicant, approving, modifying or denying the application in whole, or in part, and stating the specific reasons in the decision.

(5) Simultaneously with distribution of the written findings and notice of decision under (3) and (4) , the department shall give a copy of its findings and notice of decision to each person or government official who filed a written objection or comment with respect to the application.

(6) The department may not approve an application submitted pursuant to ARM 17.24.401(1) unless the application affirmatively demonstrates and the department's written findings confirm, on the basis of information set forth in the application or information otherwise available that is compiled by the department, that:

(a) the application is complete and accurate, that the applicant has complied with the Act and rules, and that the applicant has demonstrated reclamation can be accomplished;

(b) the permit area is not within an area being considered for or has not been designated as unsuitable for mining;

(c) the hydrologic consequences and cumulative hydrologic impacts will not result in material damage to the hydrologic balance outside the permit area;

(d) the applicant has paid all reclamation fees from previous and existing operations nationwide;

(e) the operation would not affect the continued existence of endangered or threatened species or result in destruction or adverse modifications of their critical habitats;

(f) the applicant has complied with applicable federal and state cultural resource requirements, including ARM 17.24.318, 17.24.1131 and 17.24.1137;

(g) the applicant has applied for any required air quality and water quality permits;

(h) approval of the application is not prohibited pursuant to 82-4-227 (11) , MCA, or that, if the applicant has existing violations, the applicant has filed and is presently pursuing, in good faith, a direct administrative or judicial appeal to contest the validity of the violation;

(i) approval of the application is not prohibited pursuant to 82-4-227 (12) , MCA;

(j) if an alternative postmining land use is proposed, the requirements of ARM 17.24.821 and 17.24.823 have been met;

(k) for mining operations where the private mineral estate to be mined has been severed from the private surface estate, the applicant has submitted the documentation required under ARM 17.24.303;

(l) the applicant proposes to use existing structures in compliance with ARM 17.24.1302; and

(m) if the application is for a remining operation, the permit area is a "previously mined area."

(7) (a) If the department decides to approve the application, it shall:

(i) require the applicant to date, correct, or indicate that no change has occurred in the information submitted pursuant to ARM 17.24.303(1) (a) through (h) and (k) through (m) ;

(ii) reconsider the decision to approve the application based on the compliance review required by ARM 17.24.404 and 82-4-227 (11) , MCA, in light of any new information submitted pursuant to (i) ; and

(iii) if, after reconsideration pursuant to (ii) , the department determines that permit issuance is not prohibited, require that the applicant file the required performance bond or provide other equivalent guarantee.

(b) Upon submission of bond or guarantee, the department shall grant the permit, revision, or amendment.

(1) If the department determines that it has reason to believe it improvidently issued an operating permit, it shall review the circumstances under which the permit was issued, using the criteria in (2) of this rule.   If the department finds that the permit was improvidently issued, it shall comply with (3) of this rule.

(2) The department shall find that an operating permit was improvidently issued whenever:

(a) under the violations review criteria of ARM 17.24.404 at the time the permit was issued:

(i) the department should not have issued the permit because of an unabated violation or a delinquent penalty or fee; or

(ii) the permit was issued on the presumption that a notice of violation was in the process of being corrected to the satisfaction of the agency with jurisdiction over the violation, but a cessation order was subsequently issued;

(b) the violation, penalty or fee:

(i) remains unabated or delinquent; and

(ii) is not the subject of a good faith appeal, or of an abatement plan or a payment schedule with which the permittee or other person responsible is complying to the satisfaction of the responsible agency; and

(c) if the permittee was linked to the violation, penalty or fee through ownership or control, under the violations review criteria of ARM 17.24.404 at the time the permit was issued and the ownership or control link between the permittee and the person responsible for the violation, penalty or fee still exists, or where the link was severed the permittee continues to be responsible for the violation, penalty or fee.

(3) Whenever the department finds under (2) of this rule that because of an unabated violation or delinquent penalty or fee that a permit was improvidently issued, it shall impose 1 or more of the following remedial measures:

(a) implementation, with the cooperation of the permittee or other responsible person, and of the responsible agency, of a plan for abatement of the violation or a schedule for payment of the penalty or fee;

(b) imposition on the permit of a condition requiring that in a reasonable period of time the permittee or other person responsible abate the violation or pay the penalty or fee;

(c) suspension of the permit until the violation is abated or the penalty or fee is paid; or

(d) if action under (b) or (c) above is unsuccessful, revocation of the permit under ARM 17.24.407.

(1) If the department, pursuant to ARM 17.24.406(3) (d) , elects to revoke an improvidently issued permit, it shall serve on the permittee a notice of proposed suspension and revocation.   The notice must include the reasons for the finding under ARM 17.24.406(3) and state that:

(a) after a specified period of time not to exceed 90 days, the permit automatically will become suspended, and not to exceed 90 days thereafter revoked, unless within those periods the permittee submits proof, and the department finds, that:

(i) the finding of the department under ARM 17.24.406(2) was erroneous;

(ii) the permittee or other person responsible has abated the violation on which the finding was based, or paid the penalty or fee, to the satisfaction of the responsible agency;

(iii) the violation, penalty or fee is the subject of a good-faith appeal, or of an abatement plan or payment schedule with which the permittee or other person responsible is complying to the satisfaction of the responsible agency; or

(iv) since the finding was made, the permittee has severed any ownership or control link with the person responsible for, and does not continue to be responsible for, the violation, penalty or fee;

(b) after permit suspension or revocation, the permittee shall cease all coal mining and reclamation operations under the permit, except for violation abatement and for reclamation and other environmental protection measures required by the department; and

(c) the permittee may file an appeal under ARM 17.24.425.

(2) A request pursuant to 82-4-221 (1) , MCA, for extension of time to commence mining is subject to the public notice and participation requirements of ARM 17.24.401 through 17.24.403.

(3) The notice must include the items required in ARM 17.24.401(3) and the following:

(a) the permit number;

(b) the grounds for the extension request.

(a) Except to the extent that the department otherwise directs in the permit that specific actions be taken, the permittee shall conduct all operations as described in the application as approved by the department.

(b) The permittee shall comply with any express conditions which the department places on the permit to ensure compliance with the Act or this rule promulgated pursuant thereto.

(c) The permittee shall pay all reclamation fees for coal produced under the permit.

(d) Within 30 days after a cessation order is issued under 30 CFR 843.11 or 82-4-251 , MCA, for operations conducted under the permit, except where a stay of the cessation order has been granted and remains in effect, the permittee shall either submit to the department the following information, current to the date the cessation order was issued, or notify the department in writing that there has been no change since the immediately preceding submittal of such information:

(i) any new information needed to correct or update the information previously submitted to the department by the permittee under ARM 17.24.303(1) (a) through (h) ; or

(ii) if not previously submitted, the information required from a permit applicant by ARM 17.24.303(1) (a) through (h) .

(e) Except as provided in ARM 17.24.1107, the permittee shall maintain in effect at all times a bond in the amount approved by the department and that, upon failure of the permittee to maintain such bond coverage because of expiration or cancellation of bond, the permit is suspended and the permittee shall cease mining operations until substitute bond is filed with and approved by the department.

(f) a permittee shall immediately notify the department whenever a creditor of the permittee has attached or obtained a judgment against the permittee's equipment or materials in the permit area or on the collateral pledged to the department.

(2) After this review, the department may, by order, require reasonable revision or modification of the permit provisions to ensure compliance with the Act and this sub-chapter.

(3) The department shall send a copy of its decision to the permittee.

(4) Any order of the department requiring revision or modification of permits must be based upon written finding and must be subject to the provisions for administrative review provided in ARM 17.24.425.

(a) for any proposed change(s) in the operation as described in the original permit and subsequent revisions thereof; or

(b) when required under ARM 17.24.414.

(2) The operator may not implement the revision before obtaining the department's approval.

(3) An application for major revision:

(a) must comply with subchapter 3, as appropriate;

(b) is subject to the public notice and participation provisions of ARM 17.24.401 through 17.24.405; and

(c) must include submittal of a new or updated probable hydrologic consequence determination, if determined necessary by the department for adequate permit review.

(4) If impacts change, the department shall update the cumulative hydrologic impact assessment.

(1) Applications for renewals of a permit must be made at least 240, but not more than 300 days prior to the expiration date. Renewal applications must be on a form provided by the department, including, at a minimum, the following:

(a) a statement of the name and address of the permittee, the term of the renewal requested, and the permit number;

(b) a proposed newspaper notice and proof of publication of a department-approved newspaper notice pursuant to (2);

(c) evidence that a liability insurance policy or adequate self-insurance will be provided by the applicant for the proposed period of renewal; and

(d) an update of ownership and control information and violation histories in accordance with ARM 17.24.303.

(2) Applications for renewal are subject to the requirements of public notification and participation contained in ARM 17.24.401 through 17.24.405.

(a) If the operations authorized under the original permit were not subject to the standards contained in 82-4-227(3)(b), MCA, because the permittee complied with the exceptions contained in 82-4-227(4), MCA, the portion of the application for renewal of the permit which addresses any new land areas previously identified in the reclamation plan for the original permit is not subject to the standards contained in 82-4-227(3)(b), MCA.

(b) Before finally acting to grant the permit renewal, the department shall require any additional performance bond needed by the permittee to comply with ARM 17.24.1104(1).

(3) No permit renewal may exceed the period of the original permit.

(4) The department shall, upon the basis of application for renewal and completion of all procedures required under this rule, issue a renewal of a permit, unless it is established and written findings by the department are made that:

(a) the terms and conditions of the existing permit are not being satisfactorily met;

(b) the present strip or underground mining operations are not in compliance with the environmental protection standards of the Act or subchapters 5 through 9.

(c) the requested renewal substantially jeopardizes the operator's continuing responsibility to comply with the Act, the

rules adopted pursuant thereto, and the reclamation plan on existing permit areas;

(d) the operator has not provided evidence that:

(i) any performance bond required to be in effect for the operations will continue in full force and effect for the proposed period of renewal, as well as any additional bond the department might require; and

(ii) adequate liability insurance will be provided;

(e) any additional revised or updated information required by the department that has not been provided by the applicant;

(f) the applicant has not agreed to comply with all applicable laws and rules in effect at the time of renewal;

(g) the renewal is prohibited by the denial provisions of 82-4-227, 82-4-234, and 82-4-251, MCA;

(h) the operation has been in a state of temporary cessation for six or more years; or

(i) the department determines, following an eligibility review and determination as described in ARM 17.24.1265, that the owner or operator is not eligible for a permit.

(5) In determining whether to approve or deny a renewal, the burden must be on the opponents of renewal.

(6) The department shall send copies of its decision to the applicant, to any persons who filed objections or comments to the renewal, and to any persons who were parties to any informal conference held on the permit renewal.

(7) Any person having an interest which is or may be adversely affected by the decision of the department has the right to administrative review pursuant to ARM 17.24.425.

(8) An operating permit need not be renewed for a site at which coal extraction, processing, and handling have been completed. Permit expiration does not relieve the operator of the duty to comply with the Act, this subchapter, and the permit and to retain the bond and liability insurance in full force and effect until final bond release.

(1) No transfer or assignment of any permit may be made without the prior written approval of the department.

(2) The department may not approve any transfer or assignment of any permit unless the potential transferee or assignee:

(a) obtains the performance bond coverage of the original permittee by:

(i) obtaining transfer of the original bond;

(ii) obtaining a written agreement with the original permittee and all subsequent successors in interest (if any) that the bond posted by the original permittee and all successors shall continue in force on all areas affected by the original permittee and all successors, and supplementing such previous bonding with such additional bond as may be required by the department. If such an agreement is reached, the department may authorize for each previous successor and the original permittee the release of any remaining amount of bond in excess of that required by the agreement; or

(iii) providing sufficient bond to cover the original permit in its entirety from inception to completion of reclamation operations; and

(b) provides the department with an application for approval of such proposed transfer, assignment, or sale, including:

(i) the name and address of the existing permittee;

(ii) the name and address of the person proposing to succeed by such transfer, assignment, or sale and the name and address of that person's resident agent and a brief description of the proposed transaction; and

(iii) the same information as is required in ARM 17.24.303 for applications for new permits.

(3)(a) The applicant for transfer, assignment or sale of rights granted by a permit shall advertise the filing of the application in a newspaper of general circulation in the locality of the operations involved, indicating the name and address of the applicant, the original permittee, the number and particular geographic location of the permit, the address of the department, and a statement that written comments may be sent to the department within 15 days of publication of the notice.

(b) Any person may submit written comments on the application for approval to the department within 15 days of the publication of the newspaper notice described above.

(4) The department may, upon the basis of the applicant's compliance with the requirements of (1) through (3), grant written approval for the transfer, sale, or assignment of rights under a permit, if it first finds, in writing, that:

(a) the person seeking approval is qualified under the Act and ARM 17.24.405 to receive a permit and will conduct the operations covered by the permit in accordance with the Act and the rules adopted pursuant thereto;

(b) the applicant has submitted a performance bond at least equivalent to the bond or other guarantee of the original permittee; and

(c) the applicant will continue to conduct the operations involved in full compliance with the terms and conditions of the original permit.

(5)(a) The department shall notify the permittee, successors, commentors, and the federal coal regulatory authority of its findings and publish a summary of the decision in a newspaper of general circulation in the locality of the permit area.

(b) The successor shall immediately provide notice to the department of the consummation of the transfer, assignment, or sale of permit rights. Upon receipt of this notice, the department shall release the original permittee from all obligations not retained under (2).

(6) Any successor in interest seeking to change the boundaries of its operations or any of the terms or conditions of the original permit must:

(a) make application for a permit amendment if the change involves conducting operations outside the original permit area; or

(b) make application for permit revision if the change does not involve conducting operations outside the original permit area.

(1) Within 30 days after the applicant or permittee is notified of the final decision of the department concerning the application submitted pursuant to ARM 17.24.401, or an application for transfer, sale, or assignment of rights, the applicant, permittee, landowner, or any person with an interest which is or may be adversely affected may submit a written request for a hearing on the reasons for the final decision. The request must contain the grounds upon which the requester contends the decision is in error.

(2) The board shall commence the hearing within 30 days of such request. For the purposes of the hearing, the board or its hearing officer may order a site inspection. The hearing is a contested case hearing and no person who presided at an informal conference shall either preside at this hearing or participate in the decision thereon.

(3) The board may, under such conditions as it may prescribe, grant such temporary relief as it deems appropriate, pending final determination of the proceeding, if:

(a) all parties to the proceeding have been notified and given an opportunity to be heard on a request for temporary relief;

(b) the person requesting that relief shows that there is a substantial likelihood that he or she will prevail on the merits of the final determination of the proceeding; and

(c) the relief will not adversely affect the public health or safety, or cause significant, imminent environmental harm to land, air, or water resources; and

(d) the relief sought is not the issuance of a permit where a permit has been denied, in whole or in part, by the department.

(4) A verbatim record of each public hearing shall be made and a transcript made available on the motion of any party or order of the hearing officer.

(5) Ex parte contacts between representatives of the parties before the hearing examiner and the hearing examiner are prohibited.

(6) Within 20 days after the close of the record, the board shall issue and furnish the applicant and each person who participated in the hearing with the written findings of fact, conclusions of law, and order of the department with respect to the appeal.

(7) The burden of proof at such hearing is on the party seeking to reverse the decision of the board.

(a) information required under ARM 17.24.303 for the contractor;

(b) a statement acknowledging that the permittee is not relieved of any compliance responsibilities under the Act; and

(c) a statement identifying a designated agent of the contractor.

(2) The contractor may not conduct any activities on the permit area unless and until the department determines that the information submitted under (1) is acceptable and satisfies the requirements of ARM 17.24.303.

(1) Backfilling and grading of the disturbed area must be completed prior to removal of necessary reclamation equipment from the area of operation.

(2) Overburden and parting materials which are not conducive to revegetation techniques, establishment, and growth must not be left on the top nor within eight feet of the top of regraded spoils nor at the surface of any other affected areas, unless the applicant demonstrates to the department's satisfaction that a lesser depth will provide for reclamation consistent with the Act. The department may require that problem materials be placed at a greater depth.

(3)(a) Backfilled material must be placed to minimize erosion and sedimentation of undisturbed and reclaimed areas both on and offsite, water pollution, adverse effects on ground water, other offsite effects, and to support the approved postmining land use.

(b) Backfilled materials must be selectively placed and compacted wherever necessary to prevent leaching of acid, acid-forming toxic, or toxic-forming materials into surface or subsurface waters and wherever necessary to ensure the stability of the backfilled materials. The method and design specifications for placing and compacting such materials must be approved by the department.

(4) All final grading on the area of land affected must be to the approximate original contour of the land in accordance with 82-4-232(1), MCA.

(a) The operator shall transport, backfill, and compact to ensure compliance with (3)(b) and ARM 17.24.505, and grade all spoil material as necessary to achieve the approximate original contour. Highwalls must be reduced or backfilled in compliance with ARM 17.24.515(1), or reclaimed using approved highwall reduction alternatives in compliance with ARM 17.24.515(2).

(b) Cut-and-fill terraces may be used only in those situations expressly identified in and in compliance with ARM 17.24.502.

(c) The postmining graded slopes must approximate the premining natural slopes in the area.

(d) Depressions must be eliminated, except as provided in ARM 17.24.503(1).

(5) The disturbed area must be blended with surrounding and undisturbed ground to provide a smooth transition in topography.

(6) Backfilling and grading must be kept current with mining operations. To be considered current, backfilling and grading must meet the following requirements, unless otherwise approved by the department upon adequate written justification and documentation provided by the operator:

(a) On lands affected by area strip mining, there must not be more than four consecutive spoil ridges present in any location.

(b) Backfilling and grading must be completed within two years after coal removal from each pit has been concluded. For the purpose of this provision, "each pit" means any continuous dragline pass within a particular permit area.

(c) Backfilling and grading of other excavations must be kept current as departmental directives dictate for each set of field circumstances.

(d) All backfilling and grading must achieve the approved postmining topography.

(7) The operator shall notify the department, in writing, upon detection of grading problems that would result in topography not consistent with the approved postmine topography.

This rule has been repealed.

(1) The width of the individual terrace bench may not exceed 20 feet, unless specifically approved by the department as necessary for stability, erosion control, or roads included in the approved postmining land use plan.

(2) The vertical distance between terraces must be as specified by the department to prevent excessive erosion and to provide long-term stability.

(3) The slope of the terrace outslopes may not exceed 1v:5h (20%) .   Outslopes that exceed 1v:5h may be approved, if they have a minimum safety factor of more than 1.3 for any condition of load likely to be encountered, provide adequate control over erosion, and closely resemble the surface configuration of the land prior to mining.   In no case may highwalls be left as part of terraces.

(4) Culverts and underground rock drains must be used in the terrace only when approved by the department.

(5) Terraces must be installed in such a way so as not to prohibit vehicular access or revegetation procedures.

(6) Additional surface manipulation procedures must be installed as required by the department.

(1) All exposed mineral seams remaining after mining must be covered with a minimum of 4 feet of the best available non-toxic and non-combustible material, unless otherwise approved by the department upon demonstration by the operator that a lesser cover depth will afford the same protection against combustion and other undesirable properties or effects of the mineral seam.

(2) Acid, acid-forming, toxic, toxic-forming, combustible, or other undesirable waste materials or fly ash identified by the department that are exposed, used, or produced during mining or mineral preparation must be covered in accordance with ARM 17.24.501(2) with the best available nontoxic and noncombustible material.   The method and site of final disposal must be approved by the department.   If necessary, these materials must be tested to determine necessary mitigations to neutralize acidity, to nullify toxicity, to prevent water pollution and sustained combustion, or to minimize adverse effects on plant growth and land uses.   If necessary to protect against upward migration of salts or exposure by erosion, to provide an adequate depth for plant growth or to otherwise meet local conditions, the department may specify thicker amounts of cover using non-combustible and non-toxic material or the use of special compaction and isolation techniques to prevent contact of these materials with ground water.   Acid, acid-forming, toxic, toxic-forming or other deleterious materials must not be buried or stored in proximity to a drainage course so as to cause or pose a threat of water pollution.

(3) Wastes must not be used in the construction of embankments for impoundments.

(4) Wastes from a strip mine may not be disposed of in a waste disposal structure that is located on the surface of the ground.

(5) Whenever waste is temporarily impounded:

(a) the impoundment must be designed and certified, constructed, and maintained:

(i) in accordance with ARM 17.24.603, 17.24.639, and 17.24.642, using current prudent-design standards; and

(ii) for structures meeting the criteria of 30 CFR 77.216(a) , to safely discharge the 6-hour, probable maximum precipitation (PMP) or greater event;

(b) the impoundment must be designed, and when operational must be managed, so that at least 90% of the water stored during the design precipitation event can be and is removed within the 10-day period following the event;

(c) spillways and outlet works for coal impounding structures must be designed to provide adequate protection against erosion and corrosion;

(d) inlets must be protected against blockage; and

(e) the impoundment may not include acid, acid-forming, toxic, or toxic-forming waste.

(6) Coal waste impoundments must not be retained as a part of the approved postmining land use.

(7) If any examination or inspection discloses that a potential hazard exists at a waste disposal site, including a temporary waste impoundment, the department must be informed promptly of the finding and of the emergency procedures formulated for public protection and remedial action.   If adequate procedures cannot be formulated or implemented, the department must be notified immediately.   The department shall then notify the appropriate agencies that other emergency procedures are required to protect the public.

(8) Wastes may be disposed of in underground mine workings, but only in accordance with a plan approved by the department and mine safety and health administration under ARM 17.24.901(1) (e) through (g) , and (2) .

(1) Garbage and other debris including, but not limited to, grease, lubricants, paints, flammable liquids, trash, abandoned mining machinery, lumber and other combustibles generated during mining activities must be placed and stored or disposed of in a controlled manner in a designated portion of the permit area.

(a) Placement, storage, and disposal must ensure that leachate and surface runoff do not degrade surface or ground water, that fires are prevented and that the area remains stable and suitable for reclamation and revegetation compatible with the natural surroundings.

(b) All disposal sites must be routinely compacted, and suitable earth materials must be placed over garbage and other debris to a thickness in accordance with ARM 17.24.501(2) .

(2) At no time may any garbage or other debris be deposited at impoundment sites, nor may any excavation for solid garbage or debris disposal be located within 8 feet of any coal outcrop or coal storage area.

(3) Municipal garbage may not be deposited within a permit area unless compliance with this rule and ARM 17.24.510 is demonstrated.

(4) Notwithstanding any provision of this subchapter, any garbage or other debris meeting the definition of "hazardous" as found in section 3001 of PL 94-580, as amended, must be handled in accordance with PL 94-580 and regulations adopted thereunder.

(2) Notwithstanding any provision of this subchapter, any waste materials meeting the definition of "hazardous" as found in section 3001 of PL 94-580, as amended, must be handled in accordance with PL 94-580 and regulations adopted thereunder.

This rule has been repealed.

(2) Highwall reduction alternatives may be permitted only to replace bluff features that existed before mining and where the department determines that:

(a) postmining bluffs are compatible with the proposed postmining land use;

(b) postmining bluffs are stable, achieving a minimum long-term static safety factor of 1.3;

(c) similar geometry and function exists between pre- and postmining bluffs;

(d) the horizontal linear extent of postmining bluffs does not exceed that of the premining condition; and

(e) highwalls will be backfilled to the extent that the uppermost mineable coal seam is buried in accordance with ARM 17.24.505(1) .

(a) A 500-foot barrier pillar of coal must be maintained between the strip and underground mining operations in any one seam. The department, the mine safety and health administration, and the Montana division of worker's compensation of the department of labor and industry, however, may approve a lesser distance after a finding by the department that mining at a lesser distance will result in:

(i) improved coal resources recovery;

(ii) abatement of water pollution; or

(iii) elimination of hazards to the health and safety of the public.

(b) The vertical distance between strip and underground mining operations working separate seams must be sufficient to provide for the health and safety of the workers and to prevent surface water from entering the underground workings.

(2) The operator must also comply with ARM 17.24.632.

(2) Whenever a slide that may have a potential adverse effect on public property, health, safety, or the environment occurs, the person who conducts the strip or underground mining activities shall notify the department by the fastest available means and comply with any remedial measures required by the department.

This rule has been repealed.

(2) Where thick overburden is encountered, and if the operator wishes to dispose of excess spoil outside of the mined area, the operator shall demonstrate that the volume of spoil and available waste materials is more than sufficient to restore the disturbed area to the approximate original contour. In this case, highwall elimination must be achieved by backfilling with spoils and waste materials. Any excess spoil material must be disposed of in accordance with the requirements of this rule as well as all other rules.

(3) Spoil not required to achieve the approximate original contour may be transported to and placed in a controlled (engineered) manner in a disposal area other than the mine workings or excavations. All of the following conditions, in addition to the other requirements of the Act and this subchapter, must be met:

(a) The disposal area must be within the permit area, and it must be approved by the department as suitable for construction of fills and for reclamation and revegetation compatible with the natural surroundings.

(b) The disposal area must be located on the most moderately sloping and naturally stable areas available as approved by the department. Fill materials suitable for disposal must be placed upon or above a natural terrace, bench, or berm if such placement provides additional stability and prevents mass movement.

(c) The fill must be designed using recognized professional standards, certified by a licensed professional engineer, experienced in the design of earth and rock fills, to ensure stability and meet other applicable requirements of this subchapter, and approved by the department.

(d) Leachate and surface runoff from the fill must not degrade surface or ground waters or exceed the effluent limitations of ARM 17.24.633.

(e) The disposal area must not contain springs, natural water courses, or wet weather seeps unless lateral drains are constructed from the wet areas to excess spoil underdrains in such a manner that infiltration of the water into the spoil pile will be prevented.

(f) Underdrains must consist of durable rock or pipe, be designed and constructed using current, prudent engineering practices, and approved by the department. The underdrain system must be designed to carry the anticipated seepage of water due to rainfall away from the excess spoil fill and from seeps and springs in the foundation of the disposal area and must be protected from piping and contamination by an adequate filter. Rock underdrains must be constructed of durable, nonacid-, nontoxic-forming rock (e.g., natural sand and gravel, sandstone, limestone, or other durable rock) that does not slake in water or degrade to soil-like material, and which is free of coal, clay or other nondurable material. Perforated pipe underdrains must be corrosion resistant and must have characteristics consistent with the long-term life of the fill.

(g) All organic material must be removed from the disposal area, and the soil must be removed, segregated, and redistributed or stockpiled according to the provisions of ARM 17.24.701 through 17.24.703, before the excess spoil material is placed in the disposal area. However, if approved by the department, organic material may be used as mulch or may be included in the soil.

(h) Slope protection must be provided to minimize surface erosion at the site. Diversion design must conform with the requirements of ARM 17.24.635 through 17.24.637. All disturbed areas, including diversion ditches that are not riprapped, must be vegetated upon completion of construction.

(i) The spoil must be transported and placed in a controlled manner, in horizontal lifts not exceeding four feet in thickness, concurrently compacted as necessary to ensure mass stability and prevent mass movement, covered, and graded to allow surface and subsurface drainage to be compatible with the natural surroundings and to ensure a long-term static safety factor of 1.5. Horizontal lifts exceeding four feet in thickness may be allowed if the design ensures stability, is certified by a licensed professional engineer, and is approved by the department. The final configuration of the fill must be suitable for postmining land uses except that no depressions or impoundments may be allowed on the completed fill. Terraces must not be constructed unless approved by the department to prevent erosion and ensure stability.

(j) The fill must be inspected for stability at least quarterly by the licensed engineer or other qualified professional specialist under the direction of a licensed engineer. The engineer or specialist must be experienced in the construction of similar earth and water structures. The above-described inspections must be made during critical construction periods to assure removal of all organic material and soil, placement of underdrainage and surface drainage systems, and proper placement and compaction of fill materials, and revegetation. The  permittee shall provide a report by the licensed engineer or other qualified professional specialist within two weeks after each inspection. The report must certify that the fill has been constructed as specified in the design approved by the department. A copy of the report must be retained at the mine site.

(i) "Critical construction periods" include, at a minimum:

(A) foundation preparation, including the removal of all organic material and soil;

(B) placement of underdrains and protective filter systems;

(C) installation of final surface drainage systems; and

(D) the final graded and revegetated fill. Regular inspections by the engineer or specialist must also be conducted during placement and compaction of fill materials.

(ii) The qualified licensed professional engineer shall promptly provide to the department a certified report discussing whether the fill has been constructed and maintained as designed and in accordance with the approved plan and this subchapter. The report must address indications of instability, structural weakness, and other hazardous conditions.

(iii) (A) The certified report on the drainage system and protective filters must include color photographs taken during and after construction, but before underdrains are covered with excess spoil. If the underdrain system is constructed in phases, each phase must be certified separately.

(B) Whenever excess durable rock spoil is placed in single or multiple lifts such that the underdrain system is constructed simultaneously with excess spoil placement by the natural segregation of dumped materials, in accordance with (3) (j) (iv) , color photographs of the underdrain must be taken as the underdrain system is being formed.

(C) The photographs accompanying each certified report must be taken in adequate size and number with enough terrain or other physical features of the site shown to provide a relative scale to the photographs and to specifically and clearly identify the site.

(iv) The department may approve the alternative method of disposal of excess durable rock spoil by gravity placement in single or multiple lifts, whenever the following additional conditions are met:

(A) the excess spoil must consist of at least 80% nontoxic-forming rock that does not slake in water and will not degrade to unconsolidated soil-like material. Whenever used, noncemented clay shale, clay spoil, unconsolidated or other nondurable excess spoil materials must be mixed with excess durable rock spoil in a controlled manner so that no more than 20% of the fill volume, as determined by tests performed by a licensed engineer and approved by the department, is not durable rock;

(B) an earthquake safety factor of at least 1.1 must be used; and

(C) surface water runoff from areas adjacent to and above the fill must not be allowed to flow onto the fill and must be diverted into stabilized diversion channels designed to meet the requirements of ARM 17.24.635 and 17.24.637 and to safely pass the runoff from a 100-year, 24-hour precipitation event.

(k) Coal mine wastes and coal processing wastes may not be disposed of in excess spoil fills and may be disposed of in the mine excavations only upon the prior approval of the department. See ARM 17.24.505 and 17.24.510.

(l) The foundation and abutments of the fill must be stable under all conditions of construction and operation. Sufficient foundation investigation and laboratory testing of foundation materials must include the effect of underground mine workings, if any, upon the stability of the structure.

(m) Excess spoil, coal mine wastes and coal processing wastes may be returned to underground mine workings, but only in accordance with a disposal program approved by the department and the mine safety and health administration upon the basis of a plan submitted under ARM 17.24.901(1) (b) , 17.24.920, 17.24.924(1) , 17.24.930, and 17.24.932(1) .

(n) Excess spoil must not be disposed of in valley fills or head-of-hollow fills.

(o) To achieve approximate original contour, the department may require that a spoil pile, or part thereof, be retained in an unreclaimed condition to be returned to the mine workings at a later date.

(2) Before temporary cessation of mining and reclamation operations extends for a period of 30 days or more, or as soon as it is known that a temporary cessation will extend beyond 30 days, an operator shall submit to the department a notice of intention to temporarily cease mining and reclamation operations. This notice must include a statement of the exact number of acres that will have been affected in the permit area, prior to such temporary cessation; the extent and kind of reclamation of those areas that will have been accomplished; and identification of the backfilling, regrading, revegetation, environmental monitoring, and water treatment activities that will continue during the temporary cessation.

(2) All surface and underground openings, equipment, structures, or other facilities not required for monitoring, unless approved by the department as suitable for the postmining land use or environmental monitoring, must be removed and the affected land reclaimed.

(3) Equipment needed for reclamation may not be removed from the mine until reclamation is complete.

(2) Strip or underground mining operation must be conducted to prevent failure to conserve coal, utilizing the best technology currently available to maintain appropriate environmental protection. The operator shall adhere to the approved coal conservation plan required in ARM 17.24.322.

(2) Signs identifying the mine area must be displayed at all points of access to the permit area from public roads and highways. Signs must show the name, business address and telephone number of the permittee, identification numbers of current mining and reclamation permits and the mine safety and health administration identification number for the site, and, where the operation is conducted for the permittee by a contractor, the name, business address and telephone number of the person who conducts the mining activities. Such signs must not be removed until after release of all bonds.

(3) The perimeter of the permit area must be clearly marked by durable and easily recognized markers or by other means approved by the department. Each marker must be visible from each adjacent marker, or markers must be joined by fencing or other durable means approved by the department. Such markers must be designed so that their visibility will not be reduced in general by operation of equipment, weather effects, and other normally occurring effects. The markers must be in place before the start of any mining activities.

(4) Buffer zones as defined in ARM 17.24.518 may or may not be included within the permit area. If included within the permit area, the boundaries of buffer zones must be marked separately and distinctly from perimeter markers wherever the boundaries of both do not coincide. Wherever the boundaries do coincide, only perimeter markers are necessary as described in (3) .

(5) If blasting is necessary to conduct surface coal mining operations, signs reading "Blasting Area" must be displayed conspicuously along the edge of any blasting area that comes within 50 feet of any road within the permit area, or within 100 feet of any public road right-of-way.   The operator shall also:

(a) conspicuously flag, or post within the blasting area, the immediate vicinity of charged holes; and

(b) place at all entrances to the permit area from public roads or highways conspicuous signs that state "Warning! Explosives in Use", and that clearly explain the blast warning and all clear signals in use and explain the marking of blast areas.

(6) Where soil or other vegetation-supporting material is segregated and stockpiled, the stockpiled materials must be clearly marked.   Markers must remain in place until the material is removed.

(2) Access and haul roads must be graded, constructed, and maintained according to sound engineering and construction practices to incorporate appropriate limits for grade, width, surface material, surface-drainage control, culvert placement, and any other design criteria established by the department.

(3) Cut slopes must not be more than 1v:1.5h in unconsolidated materials or 1v:0.25h in rock.

(4) Temporary erosion-control measures must be utilized as necessary during construction to control sedimentation and minimize erosion until permanent control measures can be established.

(5) All cut and fill slopes must be resoiled and revegetated, or otherwise stabilized, at the first seasonal opportunity.

(6) To the extent possible using the best technology currently available (BTCA) , roads and railroad loops must not cause damage to fish, wildlife, and related environmental values and must not cause additional contributions of suspended solids to streamflow or to runoff outside the permit area or otherwise degrade the quantity or quality of surface or ground water.

(7) Roads and railroad loops must not be built with or surfaced with waste coal, or acid, acid-producing, toxic, or toxic-producing materials. Surface material must be suitable for the anticipated volume, weight, and speed of traffic.

(8) Following construction or reconstruction of each haul road, access road, and railroad loop, the operator shall submit to the department a report, prepared by a qualified licensed professional engineer experienced in the design and construction of roads or railroad loops, as applicable, stating that the road or railroad loop was constructed or reconstructed in accordance with the plan approved pursuant to ARM 17.24.321.

(9) All appropriate methods, as approved by the department must be employed by the operator to prevent loss of road surface material in the form of dust.

(10) Immediately upon abandonment of any road or railroad loop, the area must be reclaimed in accordance with the approved plan. If necessary, embankment and fill materials must be hauled away and disposed of properly. All bridges and culverts must be removed and natural drainage patterns restored. Adequate measures must be taken to prevent erosion.

(11) Upon completion of mining and reclamation activities, each road and railroad loop must be reclaimed unless retention of the road or railroad loop is part of the approved postmining land use pursuant to ARM 17.24.762 and the landowner requests in writing and the department concurs that the road, railroad loop, or specified portion(s) thereof be retained. In such event, necessary maintenance must be assured by the operator or landowner and drainage of the road or railroad loop must be controlled according to the provisions of ARM 17.24.601 through 17.24.610 while the road or railroad loop is under permit.

(2) All roads, insofar as possible, must be located on ridges or on the available flatter and more stable slopes to minimize erosion. Stream fords are prohibited, except for temporary routes across dry, ephemeral streams that are specifically approved by the department. The department may approve crossings that will not adversely affect sedimentation or fish, wildlife, or related values, and that will not be used for hauling. Other stream crossings must be made using bridges, culverts or other structures designed and constructed to meet the requirements of this section. Roads must not be located in stream channels or be constructed or maintained in a manner that increases erosion or causes significant sedimentation or flooding. However, nothing in this section prohibits relocation of stream channels in accordance with ARM 17.24.631 through 17.24.637.

(2) All material used in embankments must be suitable for the intended use. The material must be free of organic matter, coaly or carbonaceous material, wet or frozen materials, and any other material considered unsuitable by the department for use in embankment construction.

(3) Embankment layers must be compacted as necessary to ensure that the embankment is adequate to support the anticipated volume, weight, and speed of vehicles to be used.

(4) Road and railroad loop embankments must have a minimum static safety factor of 1.3 under any condition of loading likely to occur, or such higher factor as the department determines to be reasonably necessary for safety or protection of property.

(5) Any embankment that impounds water as part of the sediment control plan must be designed and constructed in accordance with ARM 17.24.639.

This rule has been repealed.

(2) Drainage ditches must be placed at the toe of all cut slopes formed by the construction of roads. Drainage structures must be constructed to cross a stream channel and must not affect the flow or sediment load of the stream unless otherwise approved by the department in writing for a site-specific situation.

(3) Railroad loops and all roads except ramp roads must be adequately drained using structures such as, but not limited to, ditches, water barriers, cross-drains, ditch-relief drainages, culverts, and bridges.

(4) For railroad loops and for roads that are to be maintained for more than six months and for all roads used to haul coal or spoil (excluding ramp roads) or to be retained for the postmining land use, water-control structures must be designed with a discharge capacity capable of safely passing the peak runoff from a 10-year, 24-hour precipitation event or greater event as specified by the department.

(5) Bridges with a span of 30 feet or less must be designed to safely pass a 25-year, 24-hour precipitation event. All other bridges must be designed to safely pass the 100-year, 24-hour precipitation event or greater event as specified by the department.

(6) Drainage pipes and culverts must be constructed to avoid plugging or collapse and erosion at inlets and outlets. Culverts must be designed, constructed, and maintained to sustain the vertical soil pressure, the passive resistance of the foundation, and the weight of vehicles to be used.

(7) Natural channel drainageways must not be altered or relocated for road or railroad loop construction or reconstruction without the prior approval of the department in accordance with ARM 17.24.635 through 17.24.637. The department may approve alterations and relocations only if:

(a) the natural channel drainage is not blocked;

(b) no significant damage occurs to the hydrologic balance; and

(c) there is not adverse impact on adjoining landowners.

(8) Drainage structures are required for stream channel crossings. Drainage structures must not affect the normal flow or gradient of the stream or adversely affect fish migration and aquatic habitat or related environmental values. Riprap may be used for roads where an ephemeral channel is too shallow for placement of a culvert.

(9) Vegetation must not be cleared for more than the width necessary for road, railroad loop, and associated ditch construction, to serve traffic needs, and for utilities.

This rule has been repealed.

(1) All roads must be routinely maintained by means such as, but not limited to, wetting, scraping or surfacing, and replacement of paving materials, such that the required design standards of the roads are met throughout the life of the operation.

(2) Ditches, culverts, drains, trash racks, debris basins and other structures serving to drain roads and railroad loops must not be restricted or blocked in any manner that impedes drainage or adversely affects the intended purpose of the structure unless the department determines that:

(a) the operator cannot maintain structures indicated in (2) above due to wet field conditions;

(b) obstructions to these structures will not result in environmental damage or imminent harm to the health and safety of the public; and

(c) runoff and sediment are contained in accordance with the approved drainage control plan.

(3) Roads and railroad loops severely damaged by events such as floods, earthquakes, or equipment damage must be reconstructed or reclaimed as soon as practicable after the damage has occurred.

(1) control and minimize diminution or degradation of water quality and quantity;

(2) control and minimize air pollution;

(3) prevent damage to public and private property; and

(4) prevent, to the extent possible using the BTCA:

(a) damage to fish, wildlife, and related environmental values; and

(b) additional contributions of suspended solids to streamflow or runoff outside the permit area. Any such contributions must not be in excess of limitations of state or federal law.

(a) damage to fish, wildlife, and related environmental values; and

(b) additional contributions of suspended solids to streamflow or runoff outside the permit area. Any such contributions must not be in excess of limitations of state or federal law.

(2) All strip or underground mining operations must be conducted in a manner that minimizes damage, destruction, and disruption of services provided by oil, gas and water wells; oil, gas, and coal-slurry pipelines; railroads; electric and telephone lines; and water and sewage lines which pass over, under, or through the permit area, unless otherwise approved by the owner of those facilities and the department.

(3) No support facility may be constructed in a manner or located other than as indicated in the approved permit application or site approved by the department.

(1) Permanent roads approved as a part of the postmining land use must be designed and built to minimize maintenance needs and to provide maximum control of erosion through ditching, seeding, and other appropriate measures approved by the department.

(1) Each operator shall comply with all applicable state and federal laws in the use of explosives.

(2) Blasts that use more than 5 pounds of explosive or blasting agent must be conducted according to the schedule required by ARM 17.24.623.

(3) All blasting operations must be conducted by experienced, trained, and competent persons who understand the hazards involved. Each person responsible for blasting operations must possess a valid certification. See ARM 17.24.1260 through 17.24.1263.

(b) Any survey requested more than 10 days before the planned initiation of blasting must be completed by the operator before the initiation of blasting.

(c) On the request to the department by a resident or owner of a dwelling or structure that is located within 1/2 mile of any part of the permit area, the operator must promptly conduct a preblasting survey of the dwelling or structure and promptly submit a report of the survey to the department and to the person requesting the survey. If a structure is renovated or added to subsequent to a preblasting survey, then upon request to the department a survey of such additions and renovations must be performed in accordance with this section.

(2) The survey must determine the condition of the dwelling or structure and document any preblasting damage and other physical factors that could reasonably be affected by the blasting. Assessments of structures such as pipes, cables, transmission lines, and wells and other water systems must be limited to surface condition and readily available data. Special attention must be given to the preblasting condition of wells and other water systems used for human, animal, or agricultural purposes and to the quantity and quality of the water.

(3) A written report of the survey must be prepared and signed by the person who conducted the survey. The report may include recommendations of any special conditions or proposed adjustments to the blasting procedure that should be incorporated into the blasting plan to prevent damage. Copies of the report must be provided to the person requesting the survey and to the department. If the person requesting the survey disagrees with the results of the survey, he or she may notify, in writing, both the permittee and the department of the specific areas of disagreement.