Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY

OF THE STATE OF MONTANA

In the matter of the amendment of ARM 17.24.201, 17.24.202, 17.24.212, 17.24.213, 17.24.214, 17.24.218, 17.24.219, 17.24.220, 17.24.221, 17.24.222, and 17.24.226 and the adoption of New Rule I, New Rule II, and New Rule III pertaining to the opencut mining program

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NOTICE OF AMENDMENT AND ADOPTION

(OPENCUT MINING)

TO: All Concerned Persons

1. On July 8, 2022, the Department of Environmental Quality (department) published MAR Notice No. 17-425, pertaining to the proposed amendment and adoption of the above-stated rules at page 1152 of the 2022 Montana Administrative Register, Issue No. 13.

2. The department has amended ARM 17.24.201, 17.24.202, 17.24.212, 17.24.213, 17.24.214, 17.24.218, 17.24.219, 17.24.220, 17.24.221, 17.24.222, and 17.24.226 as proposed.

3. The department has adopted NEW RULE I (17.24.208), NEW RULE II (17.24.227), and NEW RULE III (17.24.228) as proposed.

4. The department has thoroughly considered the comments made. A summary of the comments and the department's responses are as follows:

COMMENT NO. 1: The commenter asked why the definition of "intermittent stream" in ARM 17.24.202(6) is different from the definition found in the Water Use Act.

RESPONSE: The proposed rule amendment defines "intermittent stream" as 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." Section 85-2-355(2), MCA defines the term to mean "a perennial flowing stream that has a channel and that annually carries water but is dry for part of the year in most years." The definition in the proposed rule amendment is more precise by excluding channels that carry only surface runoff.

The definition of "intermittent stream" in the proposed rule amendment is consistent with the definition of "intermittent stream" used by other programs within the Mining Bureau of the department, with a slight adjustment to wording for clarity.

COMMENT NO. 2: The department received 34 comments asking the department to amend the proposed rules to include better protections for water, property rights, and public participation.

RESPONSE: The department is enacting administrative rules implementing House Bill No. 599 and Senate Bill No. 284 enacted by the 2021 Montana Legislature. The legislation revised Montana's Opencut Mining Act. The new rules are consistent with SB 284 and HB 599.

COMMENT NO. 3: The department received 34 comments wanting to make sure that the department is protecting water quality and quantity, limiting dust pollution, and controlling runoff from the mine site to neighboring properties, ponds, and streams.

RESPONSE: The department is enacting administrative rules implementing House Bill No. 599 and Senate Bill No. 284 enacted by the 2021 Montana Legislature. The legislation revised Montana's Open Mining Act. The proposed rules are consistent with SB 284 and HB 599.

COMMENT NO. 4: The department received 48 comments stressing that the department must guarantee the sharing of public information, notifications, and meaningful participation for all proposed gravel operations.

RESPONSE: Section 82-4-432, MCA, was amended in 2021 by HB 599 and governs public notice and participation requirements associated with applications for opencut permits. The department has not proposed rule amendments or new rules for public notice or public participation for standard permits. The proposed amendment to ARM 17.24.228 implements the public notice and public participation requirements for dryland permits created by HB 599. The proposed update is consistent with the Opencut Mining Act.

COMMENT NO. 5: The department received 35 comments stating that the department must require reclamation deadlines for all sites, and that the department should enforce those deadlines by shutting down operations that have not been reclaimed by the reclamation deadline stated in the permit.

RESPONSE: Under 82-4-431(6) and (7), MCA, operators applying for standard permits and dryland permits are required to include a reclamation date with their applications. The proposed amendment to ARM 17.24.213 deletes language that is duplicative to the provisions of 82-4-431(6) and (7), MCA.

COMMENT NO. 6: The department received 47 comments asking the department to accept and incorporate public comment before determining whether the mine site will occur in an ephemeral, intermittent, or perennial stream, or in areas where the operation may intercept surface or groundwater.

RESPONSE: The department accepts and considers public comments throughout its review of an opencut permit application.

COMMENT NO. 7: The department received 48 comments regarding the department's obligation to comply with the Montana Environmental Policy Act (MEPA), to provide the public with the opportunity to comment and review the proposed application, and to allow for the public to participate in the process. If the department does not allow for the participation, this is going against MEPA, which is unlawful.

RESPONSE: As is required by MEPA, the department identifies and discloses environmental impacts that may result from issuance of an opencut permit in an environmental review document.

COMMENT NO. 8: The department received 47 comments from commenters stating that that the Montana Constitution guarantees the public the right to be notified about industrial operations such as opencut mines, and to participate in those permitting processes in a meaningful way to ensure a clean and healthful environment.

RESPONSE: Section 82-4-432, MCA, of the Opencut Mining Act implements the public's right to participate under the Montana Constitution. The proposed rule amendments implement 82-4-432, MCA.

COMMENT NO. 9: The commenter was concerned that the rules would gut water resource protections and restrict the ability of nearby landowners to be informed and participate during the permitting process.

RESPONSE: Please see responses to Comment Nos. 2, 4, 12, and 23.

COMMENT NO. 10: The commenter stated that they were not notified about the public hearing on the proposed rulemaking, which they alleged was a violation of their constitutional rights.

RESPONSE: The department provided notice of the proposed rulemaking, including notice of the public hearing, consistent with the requirements of the rulemaking provisions of the Montana Administrative Procedure Act.

COMMENT NO. 11: The department received 10 comments regarding a permit application for an operation that would be located near Arlee, MT. Commenters voiced concerns with increased truck traffic, risks to the aquifer and reduced water quality and quantity, increased noise pollution, not enough oversight or enforcement of state laws and regulations, increased air pollution and aggravation of breathing issues for seniors and health-compromised individuals, and a decrease in property values and reduced tax income for the county or the state.

RESPONSE: Addressing the environmental review of a specific permit application is outside of the scope of the current rulemaking.

COMMENT NO. 12: The department received 24 comments stating that all permit applicants should be required to provide information on water resources on, under, or near the site including, but not limited to, ephemeral, intermittent, and perennial streams. Additionally, a map of the proposed operation depicting its boundaries should be submitted with the application. The boundaries should not be closer than 150 feet from surface water.

RESPONSE: The Opencut Mining Act does not require the specified information about water resources to be included in an application for an opencut permit. In response to the comment that the department should require a 150-foot setback from surface water, the department determined that a 50-foot setback is a sufficient buffer between the high-water mark of surface water and the permit boundary of opencut operations. A 50-foot buffer provides adequate protection for surface water while allowing the opencut operation to mine according to its permit.

COMMENT NO. 13: The commenter stated that the new rules guarantee no protections and should be amended so that they do.

RESPONSE: Please see responses to Comment Nos. 2 and 4.

COMMENT NO. 14: The commenter stated that the new rules make it easier for mines to be permitted, by removing requirements in ARM 17.24.218, referring to the requirement for operators to submit well logs, water levels and depths, and New Rule III with public notice requirements

RESPONSE: Please see responses to Comment Nos. 2, 12, and 23.

COMMENT NO. 15: The commenter was opposed to the ways that environmental protections have been lifted in the requirements of the application process (ARM 17.24.218), particularly where water is concerned.

RESPONSE: Please see responses to Comment Nos. 2, 12, and 23.

COMMENT NO. 16: The commenter was concerned with the proposed amendment to ARM 17.24.218 that deletes requirements relating to the plan of operation. The commenter was also concerned that the proposed amendment to ARM 17.24.202 requires only those property owners within one-half mile of the proposed permit boundary to be contacted. This is ineffective to provide for the Constitutional rights protected under the Freedom of Information Act of all residents impacted by the operations of a gravel pit and asphalt plant

RESPONSE: The proposed amendment to ARM 17.24.218, deleting requirements related to a plan of operations, reflects the amendments to the Opencut Mining Act enacted by HB 599. HB 599 also amended the public participation provisions of 82-4-432, MCA. Only landowners with occupied dwelling units within one-half mile of the proposed border of the opencut operation are required to be notified. The proposed amendment to ARM 17.24.202 contains the definition of "occupied dwelling unit" stated in HB 599 in regard to standard permits. New Rule III (ARM 17.24.228) implements HB 599 for dryland permits.

COMMENT NO. 17: The commenter wanted clarification of ARM 17.24.219(1)(c)(vi). The commenter appreciated the addition of "if available" being added to the rule language. However, the commenter was unclear on whether the operator is required to salvage up to 24 inches of topsoil and overburden regardless of specific site conditions, or if the 24 inches of material would be salvaged only if it is available.

RESPONSE: Under the proposed amendment to ARM 17.24.219(1)(c)(vi), an operator is required to salvage 24 inches of topsoil and overburden, if that quantity is available, before beginning opencut operations. If, before beginning opencut operations, the operator determines that 24 inches of topsoil and overburden are not available, the operator is required to salvage all available topsoil and overburden.

COMMENT NO. 18: In reference to the statement of reasonable necessity for the proposed deletion of ARM 17.24.215(5), the commenter asked the department to provide a statutory citation requiring archeological and historical values on affected lands to be given "legally required" protection.

RESPONSE: HB 599 enacted 82-4-434(2)(f), MCA, to require a plan of operation for a standard permit provide legally required protection to historical and archaeological values on land affected by an operation. HB 599 also shifted the responsibility to comply with Montana State Historic Preservation Office requirements from the department to the operator. These statutory changes are reflected in the proposed amendment to ARM 17.24.215(5).

If the proposed opencut operation is to be located on federal land, the operator must comply with Section 106 of the National Historic Preservation Act. If the proposed operation is to be located on state land, the Montana State Antiquities Act (22-3-421 through 22-3-442, MCA), the Montana Environmental Policy Act (Title 75, Ch. 1, part 2, MCA), the Unmarked Burial Act (22-3-801 through 22-3-811, MCA), and the Montana Repatriation Act (22-3-901 through 22-3-921, MCA) require state agencies to consult with the Montana State Historic Preservation Office concerning the identification and preservation of heritage properties before state action is taken. If the proposed opencut operation is to be located on private land, only the Unmarked Burial Act applies to protect human skeletal remains. The department completes an environmental review under the Montana Environmental Policy Act to identify potential impacts to the physical environment, including potential impacts to historical and archaeological value.

COMMENT NO. 19: The commenter asked for clarification on the proposed amendment to ARM 17.24.218(1)(d)(viii), in regard to berm length and location.

RESPONSE: The proposed berm length and location are required to be shown on the site map provided by the operator to the department during the application review process. The function of the berm is to shield residences located within 300 feet of the boundary of an opencut mining operation from viewing the operation. The berm location and length should be that which is required to conceal the opencut operation from view of the residents.

Under HB 599, the placement of berms is not required for dryland opencut operations.

COMMENT NO. 20: The commenter had questions regarding New Rule I (ARM 17.24.208(2)) and New Rule I (ARM 17.24.208(4)(b)) when comparing the language to ARM 17.24.219(1)(c)(vi). The commenter questioned whether the words "if applicable" were erroneously omitted. Additionally, the commenter suggested that at many bentonite mines, bentonite is exposed at the surface. In these instances, there may not be any suitable material, or often not 24 inches of available soil and overburden, to salvage for reclamation.

RESPONSE: New Rule I (ARM 17.24.208) only applies to permit applications to mine soil. Because the nature of soil mining assumes that the amount of soil at the site exceeds a depth of 24 inches, the "if available language" has been omitted from the proposed rule.

ARM 17.24.219(1)(c)(vi) states the soil salvage requirements for standard permits other than soil mines. Under 82-4-432(14)(i), MCA, an operator is required to salvage all soil from an area to be mined under a dryland permit.

ARM 17.24.207 sets forth additional requirements for bentonite mines, including submission of a soil analysis and a map identifying the soil types, location and depth of each sample, thickness of soil and overburden to be stripped for each soil type, and the dominant vegetative species present on each soil type. The operator of a bentonite mine is not required to reclaim the site to a better condition than what existed prior to mining. Thus, if there was no soil or overburden at the site prior to mining, none would be required to be available for reclamation.

COMMENT NO. 21: The department received four comments stating that the department must hold permit applicants responsible for notifying surrounding neighbors, including clearly posted signs and a map of the boundaries and dimensions of the operation.

RESPONSE: HB 599 changed the threshold requirements for a public meeting. Please see Response to Comment No. 16. Under HB 599, the permit applicant is responsible for providing the required public notice.

COMMENT NO. 22: The department received two comments asking that the requirements for all application materials be included in the rules instead of referencing the forms available on the department's website.

RESPONSE: The application forms developed by the department incorporate the requirements of the Opencut Mining Act and its associated administrative rules.

COMMENT NO. 23: The department received two comments stating that the department must seek feedback from affected neighbors pertaining to water resources.

RESPONSE: Montana's Opencut Mining laws do not regulate groundwater quality or quantity. However, other programs at DEQ regulate potential impacts to water quality, and the Department of Natural Resources and Conservation (DNRC) generally regulates water quantity. Additional information concerning water resources and Opencut Mining permitting is available on the DEQ website at: https://deq.mt.gov/mining/assistance.

COMMENT NO. 24: The commenter stated that the department did not respond to their request for a public hearing on a specific permit application and their name was not included in the list of people who had submitted requests for a public meeting.

RESPONSE: Please see the responses to Comment Nos. 6, 8, 16, and 21.

COMMENT NO. 25: The department received three comments stating that HB 599 and the proposed rules strip out important provisions for public participation and protecting and regulating environmental impacts.

RESPONSE: Please see the responses to Comment Nos. 6, 8, 16, and 21.

COMMENT NO. 26: The commenter stated that the public should be able to view a completed permit without deficiencies before being asked to request a public meeting.

RESPONSE: Under 82-4-432(10)(b), MCA, the department is required to review a deficiency response and notify the applicant as to the application is acceptable within 10 working days of receipt of an applicant's response. Under 82-4-432(10)(c), MCA, if the application is acceptable, the department issues a permit to the operator.

COMMENT NO. 27: The commenter requested that DEQ suspend processing permits for standard gravel operations and suspend the rule amendments and new rules.

RESPONSE: The department does not have the authority to suspend the processing of applications for standard gravel operations.

COMMENT NO. 28: The department received five comments stating that the department should respond to each commenter during the public comment process, and that the new rules remove the possibility for conversation between the State and landowners.

RESPONSE: Please see the responses to Comment Nos. 6, 8, 16, and 21.

COMMENT NO. 29: The commenter stated that the regulation of environmental impacts has been moved to other regulatory groups, but that public participation in those processes is unclear.

RESPONSE: Additional information concerning opencut mining permitting, water protection, air quality, additional regulatory requirements at potential sites, and the public participation process is available on the DEQ website at: https://deq.mt.gov/mining/assistance.

COMMENT NO. 30: The commenter stated that HB 599 seeks to unconstitutionally circumvent public involvement, causes agricultural land without inhabited dwellings to be vulnerable, and is a dangerous oversimplification of a complex process.

RESPONSE: The department is proposing administrative rules implementing House Bill No. 599 and Senate Bill No. 284 enacted by the 2021 Montana Legislature. The legislation revised Montana's Opencut Mining Act. The proposed rules are consistent with SB 284 and HB 599.

COMMENT NO. 31: The commenter stated that the proposed rules are inadequate and need significant revisions to meet legislative intent, to pass constitutional muster, and to protect natural resources and neighboring property rights. The department should pause after being criticized by the sponsor of HB 599 for misinterpreting the rule. The department ignored and opposed suggestions during rulemaking from anyone who was not a developer and department staff. The department needs to fix the rules to ensure that people are not unfairly treated, natural resources are protected, and homes are not devalued. The rules make a mockery of Montanans' constitutional rights to participate, to a clean and healthful environment, and for all lands to be reclaimed.

In developing the proposed rule amendments and new rules, the department held three group meetings with stakeholders representing various interests, including operators, non-governmental entities, and representatives from environmental associations. During the meetings with these work groups, the department encouraged all participants to provide feedback and to discuss potential issues with the department's proposed rulemaking. The department considered each opinion presented and did not ignore any participant.

COMMENT NO. 32: The department's rules should require an applicant to submit permit applications for all DEQ permits for the same mine at the same time (including the open cut permit, air permit, and water permits).

RESPONSE: The Opencut Mining Act does not require an application for an opencut permit to be submitted at the same time as other authorizations that may be needed for the proposed operation.

COMMENT NO. 33: The department should conduct a robust Montana Environmental Policy Act (MEPA) analysis on each project in its entirety including all necessary permits and allow for public comment on the overarching analysis. DEQ should not piecemeal the MEPA analysis by having each program issue a cursory checklist EA while the impacts of the entire project are not adequately considered. MEPA should be conducted on the entire proposed operation.

RESPONSE: The department is required to conduct a MEPA analysis for each state action and to meet the underlying statutory deadlines for each state action. Please see the response to Comment No. 32.

COMMENT NO. 34: An applicant should be prohibited from receiving a general water or air permit if there is no other opportunity for site-specific public comments on water or air related issues.

RESPONSE: Please see the responses to Comment Nos. 29 and 32.

COMMENT NO. 35: The department received two comments stating that the department's review of all permit amendment applications, including changes to post-mining land uses, must require public notice and comment periods.

RESPONSE: Please see the responses to Comment Nos. 6, 8, 16, and 21.

COMMENT NO. 36: When DEQ posts a rule on its website for public review, it should only post the actual rule at issue and not all of the unrelated rules that were published on the same day. It is unreasonable to require people to dig through a long document full of completely unrelated issues to find out about the matter that is referenced on the agency website.

RESPONSE: The department will consider the comment when posting future rulemakings to the department's website.

COMMENT NO. 37: The commenter stated that they have appealed a department permitting decision to the Board of Environmental Review and have been in the appeals process for two years and eight months.

RESPONSE: Addressing specific permitting actions and appeals to the Board of Environmental Review is outside of the scope of the current rulemaking.

COMMENT NO. 38: The commenter stated that HB 599 would result in a number of lawsuits and a lot of expense for the State to defend it.

RESPONSE: Addressing the merits of HB 599 is outside of the scope of the current rulemaking.

COMMENT NO. 39: The commenter stated that they would like to be able to see all relevant permits related to an opencut application in one place on the department's website.

RESPONSE: See the responses to Comment Nos. 29 and 32.

/s/ Edward Hayes /s/ Christopher Dorrington

EDWARD HAYES CHRISTOPHER DORRINGTON

Rule Reviewer Director

Department of Environmental Quality

Certified to the Secretary of State September 27, 2022.