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Montana Administrative Register Notice 17-423 No. 13   07/08/2022    
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BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 17.24.101, 17.24.102, 17.24.103, 17.24.105, 17.24.106, 17.24.107, 17.24.117, 17.24.119, 17.24.120, 17.24.121, 17.24.128, 17.24.153, 17.24.157, and 17.24.181 pertaining to the application and administration of hard rock small mining exclusion statements, exploration licenses, and operating permits

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NOTICE OF PROPOSED AMENDMENT

 

NO PUBLIC HEARING CONTEMPLATED

 

TO: All Concerned Persons

 

1. On September 23, 2022, the Department of Environmental Quality proposes to amend the above-stated rules.

 

2. The Department of Environmental Quality will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Environmental Quality no later than 5:00 p.m. on August 1, 2022, to advise us of the nature of the accommodation that you need. Please contact the Department of Environmental Quality at P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-1388; fax (406) 444-4386; or e-mail DEQHardRockRule2022@mt.gov.

 

3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

17.24.101 GENERAL PROVISIONS (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)  engage engaging in ore processing,;

(c) reprocessing of mine waste rock or tailings,;

(d) construct constructing or operate operating a hard rock mill,;

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

(f) disturb disturbing land in anticipation of any of these activities without first obtaining the appropriate license or permit from the department.

(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. 

(2) remains the same but is renumbered (3).

(3)(4) The mining of certain substances is excluded from the Act and this subchapter.  See definition of "mineral" in ARM 17.24.102 82-4-303, MCA. 

(4)(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 ARM17.24.102 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 ARM17.24.103through 17.24.107 17.24.108.  See definitions of "exploration" in ARM 17.24.102 and "mining" in ARM 17.24.102 82-4-303, MCA. 

(5) through (8) remain the same but are renumbered (6) through (9).

 

AUTH:  82-4-321, MCA

IMP:  82-4-30582-4-30982-4-32082-4-33182-4-33282-4-335, 82-4-36182-4-362, MCA

 

REASONThe proposed amendment to (1) changes the format used to describe the activities regulated under the Act for clarity. The general provision regarding bonding is set forth in (2) because it is a requirement that is independent to the description of the activities regulated under the Act set forth in (1). The proposed amendment to (4) corrects the reference to the definition of "mineral," which is defined in 82-4-303, MCA, rather than in ARM 17.24.102.

 

The proposed amendment to (5) corrects the reference to the definition of "small miner," which is defined in 82-4-303 MCA, rather than in ARM 17.24.102. The proposed amendment also changes the reference of ARM 17.24.107 to ARM 17.24.108 in order to be inclusive of all administrative rules pertaining to exploration operations. Finally, the proposed amendment corrects the reference to the definition of "mining," which is defined in 82-4-303, MCA, rather than in ARM 17.24.102.

 

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

(1) through (4) remain the same.

(5) "Collateral bond" means an indemnity agreement for a fixed amount, payable to the department, executed by the operator and supported by the deposit depositing with the department of 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 surface" means, as used in the definition of "small miner" and ARM 17.24.101(4) 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) through (15) remain the same.

(16) "Small miner" is defined in 82-4-303, MCA.

(17) remains the same but is renumbered (16).

 

AUTH: 82-4-321, MCA

IMP: 82-4-303, 82-4-305, 82-4-309, 82-4-310, 82-4-331, MCA

 

REASON: The proposed amendment to (6) deletes the unnecessary reference to ARM 17.24.101(4). Giving definition to "disturbed and unreclaimed" as found in the definition of "small miner" in 82-4-303, MCA will carry forward in ARM 17.24.101(4) and all other statutory and administrative rule provisions in which the term "small miner" is found. The proposed amendment also deletes the unnecessary reference to the statutory definition of "small miner."

 

17.24.103  EXPLORATION LICENSE--APPLICATION AND CONDITIONS 

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

(a) remains the same.

(b) submit an application for an exploration license, complete with a notarized signature, in duplicate 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 17.24.107 17.24.108 would be satisfied;

(d) through (4) remain the same.

 

AUTH: 82-4-321, MCA

IMP: 82-4-332, MCA

 

REASON: The proposed amendment to (1)(b) removes the requirement that an application for an exploration license be notarized and submitted in duplicate because DEQ is moving toward electronic submission of permit or license applications. The proposed amendment to (1)(c) corrects the reference of ARM 17.24.107 to ARM 17.24.108 to make the reference inclusive of all administrative rules pertaining to reclamation of exploration disturbances.

 

17.24.105  CONDUCT OF EXPLORATION OPERATIONS (1) through (6) remain the same.

(7) If an artesian aquifer is intercepted during a drilling operation, the drill hole must be plugged at depth (top to bottom) prior to removal of the drill rig.

(8) and (9) remain the same but are renumbered (7) and (8).

(10)(9) Pilot ore processing plants or sites, as defined 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.

(11) remains the same but is renumbered (10).

 

AUTH: 82-4-321, MCA

IMP: 82-4-332, MCA

 

REASON: The proposed amendment deletes existing (7) regarding the plugging of drill holes that intercept an artesian aquifer because that subject is addressed in ARM 17.24.106. The proposed amendment also corrects the erroneous representation that "pilot ore processing plants or sites" is defined in ARM 17.24.102.

 

17.24.106  EXPLORATION DRILL HOLE PLUGGING (1) and (2) remain the same.

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

            (a) remains the same.

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

            (c) and (d) remain the same.

            (4) All flowing or artesian 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) through (6) remain the same.

           

AUTH: 82-4-321, MCA

IMP: 82-4-302, 82-4-332, 82-4-355, MCA

 

REASON:    The proposed amendment to (3)(b) changing the conjunctive "and" to "or" gives the department additional latitude to exempt drill holes from being plugged; the three circumstances set forth in (3)(b) each provide an independent basis for not requiring the drill hole to be plugged. The proposed amendment to (4) allows the department the discretion to consider other circumstances in which removal of a drill rig prior to plugging the drill hole is warranted. The proposed amendment also sets forth the requirements that an operator must follow if the flow from an artesian drill hole is not completely stopped in its own section for clarity.

 

17.24.107  RECLAMATION REQUIREMENTS—EXPLORATION (1) and (2) remain the same.

(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(2) 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) remains the same.

(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, 17.24.151, and 17.24.153.

(6) through (13) remain the same.

 

AUTH: 82-4-321, MCA

IMP: 82-4-332, MCA

 

REASON: The proposed amendment corrects the reference of ARM 17.24.103(2) to ARM 17.24.103(3). The proposed amendment deletes the reference to ARM 17.24.151 because that administrative rule has been repealed.

 

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

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

(i) through (iii) remain the same.

(iv) mitigation measures mutually developed by the department and permittee pursuant to 75-1-201(5)(b),MCA; 75-1-201(4)(b), MCA;

(v) through (c) remain the same.

 

AUTH: 82-4-321, MCA

IMP: 82-4-335, 82-4-336, 82-4-351, MCA

 

REASON: The proposed amendment corrects the statutory reference. The statutory provision that used to be set forth in 75-1-201(5)(b) is now set forth in 75-1-201(4)(b).

 

17.24.119  PERMIT AMENDMENTS (1) through (3)(c) remain the same.

            (d) contain a statement of the applicant's rationale for asserting nonsignificance pursuant to 82-4-337(7), MCA; 82-4-342(5), MCA;

            (e) through (4) remain the same.

 

AUTH: 82-4-321, 82-4-337, 82-4-342, MCA

IMP: 82-4-337, 82-4-342, MCA

 

REASON:  The proposed amendment corrects the statutory reference. The statutory provision that used to be set forth in 82-4-337(7), MCA is now set forth in 82-4-342(5), MCA.

 

17.24.120  PERMIT REVISIONS  (1) and (1)(a) remain the same.

(b) a statement of the applicant's rationale for asserting nonsignificance pursuant to 82-4-337(7), MCA; 82-4-342(5), MCA;

(c) through (2) remain the same.

 

AUTH: 82-4-321, MCA

IMP: 82-4-337, 82-4-342, MCA

 

REASON:  The proposed amendment corrects the statutory reference. The statutory provision that used to be set forth in 82-4-337(7), MCA is now set forth in 82-4-342(5), MCA.

 

17.24.121 PERMIT REVIEWS (1) remains the same.

(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) through (6) remain the same.

 

AUTH: 82-4-321, MCA

IMP: 82-4-337, MCA

 

REASON: The proposed amendment to (2) provides clarity by directing the reader to the specific statutory provision being implemented by the administrative rule.

 

17.24.128  INSPECTIONS:  FREQUENCY, METHOD, AND REPORTING

(1) through (1)(b)(i) remain the same.

(ii) has a permit requirement to monitor for potential expected or ongoing acid rock drainage; or

(iii) through (3) remain the same.

 

AUTH: 82-4-321, MCA

IMP: 82-4-337, 82-4-339, MCA

 

REASON: The proposed amendment deletes the requirement that the department inspect an operation three times a year based solely on a provision of the operation's permit requiring monitoring for potential rock drainage. Three annual inspections are not needed for such operations when acid rock drainage is not expected. Three annual inspections are warranted for operations where the generation of acid rock drainage is expected or is occurring.

 

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

 

AUTH: 82-4-321, MCA

IMP: 82-4-336, MCA

 

REASON: The proposed amendment implements enactment of SB 233 in the 2021 Legislative Session allocating rulemaking authority to the department rather than to the Board of Environmental Review.

 

17.24.157  BLASTING OPERATIONS:  COMPLAINT PROCEDURE 

(1) through (2)(e) remain the same.

(f)  making written findings, including, if possible, a determination of whether any of the standards in ARM 17.24.159(6)(a), (11)(a), or (15)(c), (2)(f)(i), (2)(k)(i), and (2)(o)(iii) were exceeded.

(3) remains the same.

 

AUTH: 82-4-321, MCA

IMP: 82-4-356, MCA

 

REASON:  The proposed amendment corrects the administrative rule references containing standards applicable to blasting.

 

17.24.181  SMALL MINER PLACER AND DREDGE BONDING (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 below outlined in (2) or unless it is documented that a bond for reclamation is posted with another government agency.

            (a) through (2)(f) remain the same.

            (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, be one inch to 100 feet unless a different scale is approved by the department, and be based on fixed reference points so that all mapped information is interchangeable;

            (h) through (o) remain the same.

 (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) remains the same.

 

AUTH: 82-4-321, MCA

IMP: 82-4-305(1), MCA

 

REASON: The proposed amendment to (1) includes a specific reference to (2) for clarity. The proposed amendment to (2)(g) deletes map scale requirements that are not necessary given the prevalence of digital maps and aerial imagery.

 

4. Concerned persons may submit their data, views, or arguments concerning the proposed actions in writing to: the Department of Environmental Quality at P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-1388; fax (406) 444-4386; or e-mail DEQHardRockRule2022@mt.gov, and must be received no later than 5:00 p.m., August 8, 2022.

 

5. If persons who are directly affected by the proposed actions wish to express their data, views, or arguments orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments to the Department at the above address no later than 5:00 p.m., August 8, 2022.

 

6. If the agency receives requests for a public hearing on the proposed action from either 10 percent or 25, whichever is less, of the persons directly affected by the proposed action; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date. Notice of the hearing will be published in the Montana Administrative Register. Ten percent of those directly affected has been determined to be 40 persons based on approximately 400 interested parties of individuals and companies.

 

7. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person above or may be made by completing a request form at any rules hearing held by the department.

 

8. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sosmt.gov/ARM/Register

 

9. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

10. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rules will not significantly and directly impact small businesses.

 

 

 

/s/ Angela Colamaria                        BY: /s/  Christopher Dorrington            

ANGELA COLAMARIA                               CHRISTOPHER DORRINGTON

Rule Reviewer                                              Director

                                                                        Department of Environmental Quality

           

Certified to the Secretary of State June 28, 2022.

 

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