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 PUBLIC HEARING ON PROPOSED AMENDMENT AND ADOPTION     (OPENCUT MINING)

 

TO: All Concerned Persons

 

            1. On August 8, 2022, at 10:00 a.m., the Department of Environmental Quality (department) will hold an in-person public hearing in Room 111 of the Metcalf Building, at 1520 E. Sixth Avenue, Helena, Montana, to consider the proposed amendment and adoption of the above-stated rules.  Interested parties may also attend the hearing electronically in the following ways:

 

 

            The hearing will begin with a brief introduction by department staff to explain the use of the video conference and telephonic platform. All participants will be muted except when it is their time to speak. If you encounter technical issues, please contact the department, by telephone at (406) 444-1388, or by e-mail, DEQOpenCutRulemaking@mt.gov.

 

            2. The department will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or who need an alternative accessible format of this notice.  Contact the department, at the telephone number or e-mail in the preceding paragraph, no later than 5:00 p.m., on August 1, 2022, to request an accommodation. 

 

            3.  GENERAL STATEMENT OF REASONABLE NECESSITY:  With several exceptions, these proposed rule amendments and new rules implement amendments to the Opencut Mining Act (Opencut Act) enacted by passage of HB 599 (Sections 2 through 9, Ch. 545) and SB 284 (Sec. 2, Ch. 428) in the 2021 Legislative Session, and SB 343 (Sections 3 through 17, Ch. 334) in the 2019 Legislative Session.

 

            4. The rules proposed to be amended are as follows, stricken matter interlined, new matter underlined:

 

            17.24.201 APPLICABILITY (1) remains the same.

            (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 commences conducts the following opencut operations.:

            (a) an opencut operation that results in the removal of more than 10,000 cubic yards of materials and overburden;

            (b) more than one opencut operation where each operation results in the removal of less than 10,000 cubic yards of materials and overburden, but the several operations result in the removal of a total of 10,000 cubic yards or more of materials and overburden; or

            (c) an opencut operation where overburden and materials are removed from a previously mined site and the amount mined, combined with the amount of previously removed materials and overburden, exceeds 10,000 cubic yards.

            (3) Contracts and permits in effect before March 19, 2016 September 27, 2022, need not be amended to comply with rules and rule amendments adopted on March 19, 2016, September 27, 2022. Applications for permits, permit amendments, and permit assignments that the department determined to be complete prior to March 19, 2016 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) remains the same.

            (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 the 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. 

 

AUTH: 82-4-422, MCA

IMP: 82-4-431, MCA

 

 

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

(1) through (4) remain the same.

(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.

            (5) and (6) remain the same but are renumbered (7) and (8).

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

            (7) through (9) remain the same but are renumbered (10) through (12).

 (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.

(10) through (13) remain the same but are renumbered (14) through (17).

(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.

            (14)(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.

 

AUTH: 82-4-422, MCA

IMP: 82-4-403, 82-4-422, 82-4-431, 82-4-432, 82-4-434, MCA

 

            17.24.212 REVIEW OF AN APPLICATION (1) remains the same.

            (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) remains the same.

            (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 and contains a plan of operation that meets the requirements of this subchapter.

            (5) Before determining that an application for a permit is acceptable, the department shall submit a copy of the plan of operation, including site and area maps, to the state historic preservation office for evaluation of possible cultural resources in the proposed permit area. Based on information provided by the state historic preservation office and as required by law, the department may require that the operator sponsor a cultural resources survey by an archaeological professional and provide a plan to protect archeological and historical values on affected lands. Unless prohibited by law, the department shall make available a response received from the state historic preservation office.

            (6)(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. including, but not limited to, requiring surface water and ground water quality and quantity monitoring before, during, and after opencut operations inside and outside the permit area.

(7) remains the same but is renumbered (6).

 

AUTH: 82-4-422, MCA

IMP: 82-4-402, 82-4-422, 82-4-423, 82-4-431, 82-4-432, 82-4-434, MCA

 

 

            17.24.213 AMENDMENT OF PERMITS (1) through (2)(c) remain the same.

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

           (3) For an amendment application solely to extend the reclamation date for a period of no more than five years that is submitted no later than five years after the first approval date of the permit, the applicant shall apply to extend the reclamation date on a form provided by the department and provide an updated landowner consultation form.

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

 

AUTH: 82-4-422, MCA

IMP: 82-4-432, 82-4-433, 82-4-434, 82-4-436, MCA

 

REASON: The proposed amendment to (2)(d) implements Sec. 4, Ch. 545, Laws of 2021,which does not require submission of a plan of operation in an application for a dryland permit.  

The proposed amendment deletes (3) to implement Sec. 3, Ch. 545, Laws of 2021, which provides new provisions governing extension of reclamation dates codified at 82-4-431(6)(b)(v)(A) and (B), MCA. Because the application and granting of extensions of reclamation dates are provided by statute, there is no need to address the application and granting of reclamation dates in the administrative rules implementing the Opencut Act.

 

            17.24.214 ANNUAL PRODUCTION REPORT (1) remains the same.

            (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,. for the sites listed according to (2). The federal government, state of Montana, counties, cities, and towns are exempt from annual fees.

(4) remains the same.

 

AUTH: 82-4-422, MCA

IMP: 82-4-402, 82-4-434, MCA

 

REASON: The proposed amendment to (2) would add allow an operator to submit the annual production report form to the department electronically to facilitate the department's move to electronic permitting. 

The proposed amendment to (3) would implement Sec. 2, Ch. 428, Laws of 2021, which amended 82-4-405, MCA, to exempt counties, cities, and towns from paying the annual fees required under 82-4-437, MCA.

 

            17.24.218 PLAN OF OPERATION (SITE CHARACTERIZATION, SITE PREPARATION, SOIL AND OVERBURDEN HANDLING, MINING, AND PROCESSING PLANS) AND PERFORMANCE STANDARDS (1) An application for a standard permit or standard permit amendment requires a plan of operation that complies with 82-4-432, MCA and The plan of operation must include includes the following:

           (a) through (d)(v) remain the same.

(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) remains the same.

(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) remains the same.

            (f) a section describing the hours of operation of the proposed opencut operation. The department may reasonably limit hours to reduce adverse impacts on residential areas. The department may require an operator to keep and maintain

a complete and accurate record of the hours operated. The operator shall submit the record to the department within two work days after receipt of a request from the department;

            (g) remains the same but is renumbered (f).

            (i) the depths, water levels, and uses of water wells in and within 1,000 feet of the permit area;

            (ii) remains the same but is renumbered (i).

            (iii) copies of all available well logs;

            (iv) (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; and.

            (v) in the event that the proposed opencut operation involves or may result in the diversion, capture, or use of water, acknowledgement that the operator consulted with the regional office of the Department of Natural Resources and Conservation, Water Resources Division, concerning the requirements to obtain water rights and possible adverse impacts to existing water rights;

            (h) a water quality protection and management section that includes:

            (i) a description of the source, quantity, storage, use, and discharge of water to be used for opencut operations;

            (ii) an explanation of measures to prevent pollution of state waters or impairment of a water right including, but not limited to:

            (A) an explanation of water management and erosion control plans for stormwater, ground water, and surface disturbances that discharge off-site or intercept any waterway with a defined channel; and

            (B) an explanation of proposed measures to protect the water rights of other parties or to replace an adversely affected water source that has a beneficial use;

            (iii) a statement that the operator will keep non-mobile equipment above the seasonal high water level of surface water and ground water;

            (i) a spill prevention and management section that includes a statement that the operator will:

            (i) install or construct fuel storage containment structures in accordance with the current codes adopted by the state fire marshal for each single-wall, non-mobile, fuel storage tank placed and used in and within 300 feet of the permit area; and

            (ii) routinely inspect and maintain these tanks to prevent leaks and spills, retrieve and discard spilled fuel and contaminated materials in a lawful manner, and report to the department a fuel spill that reaches state waters, as defined in 75-5-103, MCA, or is greater than 25 gallons;

            (j) remains the same but is renumbered (g).

            (i) opencut operations may not occur within a prohibited area areas described in the permit; for purposes that include, but are not limited to, reclamation of a highwall or protection of an easement, a right of way, a drainage, or a waterway area;

            (ii) and (iii) remain the same.

            (k) an additional impacts section that includes:

            (i) a description of the methods and materials to be used to minimize impacts, as necessary, on the residential areas and structures identified under ARM 17.24.221(4)(h);

            (ii) repair or replacement of man-made structures affected by opencut operations within the permit area; and

            (iii) identification of other opencut operation impacts not addressed in other sections of the plan of operation;

            (l) and (l)(i) remain the same but are renumbered (h) and (h)(i).

            (ii) take proper precautions to prevent wildfires;

            (iii) provide appropriate protection for cultural resources that could be affected by opencut operations; and

            (iv)(ii) promptly notify the state historic preservation office should if such resources archaeological or historical values are be found.

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

            (2) and (3) remain the same but are renumbered (3) and (4).

 

AUTH: 82-4-422, MCA

IMP: 82-4-402, 82-4-422, 82-4-423, 82-4-431, 82-4-432, 82-4-434, MCA

 

 

            17.24.219 PLAN OF OPERATION, RECLAMATION PLAN, AND PERFORMANCE STANDARDS (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 plan of operation must include the following: site reclamation plan commitments and information:

            (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, water source pond, wetland, fish pond, riparian area, grassland, rangeland, shrubland, woodland, pasture, hayland, cropland, wildlife habitat, recreation site, and residential, commercial, and industrial building sites;

            (b) through (c)(v) remain the same.

            (vi) replace all soil, and overburden if sufficient soil is unavailable, to a minimum depth of 24 inches or to another depth approved in writing by the department and record the average thicknesses of soil replaced; 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) through (2) remain the same.

 

AUTH: 82-4-422, MCA

IMP: 82-4-402, 82-4-422, 82-4-423, 82-4-431, 82-4-432, 82-4-434, MCA

 

 

            17.24.220 PLAN OF OPERATION--RECLAMATION BOND CALCULATION        

           (1) For all permits and amendments, a A proposed reclamation bond calculation must be submitted as part of the plan of operation 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 and the plan of operation, 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 [New Rule III], ARM 17.24.219, and 82-4-434, mca;

            (b) replacement of all soil (and overburden if sufficient soil is unavailable) to a minimum depth of 24 inches or to another depth approved in writing by the department; as described in [New Rule III] and ARM 17.24.219;

            (c) the plan of operation and the permit application; and

            (d) through (4) remain the same.

 

AUTH: 82-4-422, MCA

IMP: 82-4-405, 82-4-431, 82-4-432, 82-4-433, 82-4-434, MCA

 

            17.24.221 PLAN OF OPERATION--MAPS (1) For a standard permit or standard permit amendment, a plan of operation must comply with 82-4-434(2), MCA and include: An application must 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) remains the same.

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

            (a) through (e) remain the same.

            (f) sedimentation ponds and other water quality control structures;

            (g) through (q) remain the same but are renumbered (f) through (p).

            (r) existing and proposed monitoring well locations;

            (s) through (s)(iv) remain the same but are renumbered (q) through (q)(iv).

            (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;

            (t)(r)  above and below ground utilities and easements within the permit boundary;

            (u)(s)  roads crossing areas where opencut activities are prohibited by ARM 17.24.218(1)(g)(j) at a 90-degree angle or as close to a 90-degree angle as site conditions allow;

            (v) through (y) remain the same but are renumbered (t) through (w).

            (4) through (4)(b) remain the same.

            (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, ephemeral, intermittent, and 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) remains the same.

            (f) above and below ground utilities;

            (g) remains the same but is renumbered (f).

            (h)(g)  residential areas and structures that could be impacted by opencut operations, such as inhabitable dwellings and commercial and industrial facilities residences located within 300 feet of the permit boundary; and

            (i) remains the same but is renumbered (h).

            (5) remains the same.

            (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, or major intersection and be sufficient to allow the public to locate the proposed site.

            (7) For all permits and amendments, complete 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) remains the same.

 

AUTH: 82-4-422, MCA

IMP: 82-4-402, 82-4-422, 82-4-423, 82-4-431, 82-4-434, MCA

 

            17.24.222 PLAN OF OPERATION--ADDITIONAL INFORMATION AND CERTIFICATION (1) The department may require that an operator provide additional information for the plan of operation that includes, but is not limited to:

            (a) through (d) remain the same.

            (e) fish and wildlife surveys and assessments water conveyance facilities.

            (2) remains the same.

            (3) The plan of operation All applications for permits and amendments must include a statement signed and dated by the operator certifying that:

            (a) and (b) remain the same.

(c) the operator will follow and adhere to the plan of operation and all other requirements of the operator described in the application and the permit and as any amendments to the permit. may be amended by the department in accordance with the Act and this subchapter. 

 

AUTH: 82-4-422, MCA

IMP: 82-4-402, 82-4-422, 82-4-423, 82-4-431, 82-4-432, 82-4-434, 82-4-436, MCA

 

 

            17.24.226 ADMINISTRATIVE REQUIREMENTS FOR LIMITED OPENCUT OPERATIONS (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) through (2)(d) remain the same.

            (e) plans to expand or continue the limited opencut operation in accordance with 82-4-431(4), MCA;

            (f) through (3) remain the same.

            (4) A person conducting a limited opencut operation, authorized under must comply with the requirements of 82-4-431(2), MCA. ,may not remove more than The amount of materials and overburden removed from the site cannot exceed 10,000 cubic yards of materials and overburden 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) remains the same.

 

AUTH: 82-4-422, MCA

IMP: 82-4-431, MCA

 

 

5. The proposed new rules are as follows:

 

NEW RULE I ADDITIONAL REQUIREMENTS FOR SOIL MINES  (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.

 

AUTH: 82-4-422, MCA

IMP: 82-4-432, 82-4-434, MCA

 

 

NEW RULE II  SURFACE WATER SETBACK REQUIREMENTS (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.

 

AUTH: 82-4-422, MCA

IMP: 82-4-431, 82-4-432, MCA

 

REASON: Proposed New Rule II implements Sections 3 and 4, Ch. 545, Laws of 2021. Reasonable necessity exists to adopt this rule because limited opencut operations (LOOs) and dryland operations cannot affect surface water. The 50-foot setback for LOOs and dryland operations is a reasonable, "bright-line" rule which will make it easier for operators to avoid affecting surface water. The proposed "bright-line" rule will also make it faster and simpler for the department to process LOO forms and dryland permit applications, and to determine and enforce violations. Additionally, the rule requires standard permit operations with boundaries located less than 50 feet from a high water mark to complete the Stream/Waterway worksheet to show that a productive postmining land use can be achieved as required by 82-4-434(2)(a), MCA.

 

NEW RULE III REQUIREMENTS FOR DRYLAND PERMIT APPLICATIONS AND RECLAMATION (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).

 

AUTH: 82-4-422, MCA

IMP: 82-4-432, MCA

 

REASON: Proposed New Rule III implements Sec. 3, Ch. 545, Laws of 2021, by setting forth the permitting and reclamation requirements for dryland permits.

The proposed rule's notice requirements are necessary to inform the public and specific landowners located within one-half mile of the proposed permit boundary of the proposed dryland opencut operation.

The proposed rule also requires the salvage and replacement of an adequate quantity of soil to support vegetative regrowth as required by 82-4-434(2)(b) and (g), MCA.

The proposed rule specifies the timeline for completing phase I reclamation and beginning phase II reclamation to ensure that concurrent reclamation is being performed as required by 82-4-434(2)(i), MCA.

In addition, the proposed rule requires the placement and maintenance of boundary markers so that the area disturbed by the permittee does not exceed the area permitted to be disturbed.

Finally, the proposed rule specifies dimensions and maintenance of berms required under 82-4-434(2)(k), MCA.

 

6. Concerned persons may submit their comments either orally or in writing at the hearing. Written comments may also be submitted to the Department of Environmental Quality, at 1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana 59620-0901; faxed to (406) 444-4386; or emailed to DEQOpenCutRulemaking@mt.gov, no later than 5:00 p.m., August 8, 2022. Mailed comments must be postmarked on or before that date.

 

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

 

8. Lee McKenna, attorney for the department, has been designated to preside over and conduct this hearing.

 

9. 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 must make a written request with their name, e-mail, and mailing address and specifying the program(s) of interest. Notices will be sent by e-mail unless otherwise requested. Written requests for notices of rulemaking actions may be submitted to the department by regular mail, e-mail, or in person at any rules hearing held by the department.

 

10. The bill sponsor contact requirements of 2-4-302, MCA, apply. The bill sponsor was notified by letter dated April 29, 2022, and sent by regular mail.

 

11. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment and adoption of the above-referenced rules will significantly and directly beneficially impact small businesses because HB 599 streamlined opencut permitting processes, and the new rules and proposed amendments to existing rules implement those changes.

 

 

/s/ Edward Hayes                                       /s/ Christopher Dorrington

EDWARD HAYES                                      CHRISTOPHER DORRINGTON

Rule Reviewer                                            Director

                                                                   Department of Environmental Quality

           

Certified to the Secretary of State June 28, 2022.