Montana Regulatory Program

<RULE> DEPARTMENT OF THE INTERIOR <SUBAGY>Office of Surface Mining Reclamation and Enforcement</SUBAGY> <CFR>30 CFR Part 926</CFR> <DEPDOC>[SATS No. MT-042-FOR; Docket No. OSM-2023-0007; S1D1S SS08011000 SX064A000 231S180110; S2D2S SS08011000 SX064A000 23XS501520]</DEPDOC> <SUBJECT>Montana Regulatory Program</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of Surface Mining Reclamation and Enforcement, Interior. <HD SOURCE="HED">ACTION:</HD> Final rule; approving, in part. <SUM> <HD SOURCE="HED">SUMMARY:</HD> We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving, in part, and denying, in part, an amendment to the Montana regulatory program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). Montana submitted this proposed amendment to OSMRE on its own initiative in response to a State law passed by the Montana Legislature (House Bill (HB) 576). The proposed amendment generally concerns proposed changes to the definition of material damage and changes to permit requirements related to hydrologic information. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> The effective date is February 14, 2025. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Jeffrey Fleischman, Field Office Director, Office of Surface Mining Reclamation and Enforcement, 100 East B Street, Casper, Wyoming 82602, Telephone: (307) 261-6550, Email: <E T="03">jfleischman@osmre.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <EXTRACT> <FP SOURCE="FP-2">I. Background on the Montana Program</FP> <FP SOURCE="FP-2">II. Submission of the Amendment</FP> <FP SOURCE="FP-2">III. OSMRE's Findings</FP> <FP SOURCE="FP1-2"> A. <E T="03">Montana Code Annotated (MCA) 82-4-203(32)(a)</E> </FP> <FP SOURCE="FP1-2"> B. <E T="03">MCA 82-4-203(32)(b)</E> </FP> <FP SOURCE="FP1-2"> C. <E T="03">MCA 82-4-203(32)(c)</E> </FP> <FP SOURCE="FP1-2"> D. <E T="03">MCA 82-4-222(1)(m)</E> </FP> <FP SOURCE="FP1-2"> E. <E T="03">Sections 4, 5, 6, and 7 of House Bill 576</E> </FP> <FP SOURCE="FP-2">IV. Summary and Disposition of Comments</FP> <FP SOURCE="FP-2">V. OSMRE's Decision</FP> <FP SOURCE="FP-2">VI. Procedural Determinations</FP> </EXTRACT> <HD SOURCE="HD1">I. Background on the Montana Program</HD> Section 503(a) of SMCRA permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with SMCRA and consistent with the Federal implementing regulations. <E T="03">See</E> 30 U.S.C. 1253(a)(1) and (7); 30 CFR 730.5 and 732.15(a). On the basis of these criteria, the Secretary of the Interior conditionally approved the Montana program on April 1, 1980. You can find background information on the Montana program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Montana program in the April 1, 1980, <E T="04">Federal Register</E> (45 FR 21560). You can also find later actions concerning the Montana program and program amendments at 30 CFR 926.15. <HD SOURCE="HD1">II. Submission of the Amendment</HD> By letter dated June 1, 2023 (Administrative Record No. MT-042-01), Montana sent us an amendment to its program under SMCRA (30 U.S.C. 1201 <E T="03">et seq.</E> ). We found Montana's proposed amendment to be administratively complete on June 5, 2023. Montana submitted the proposed amendment to us, on its own volition, after the Montana legislature passed HB 576 during the 2023 legislative session. HB 576 amends the Montana Strip and Underground Mine Reclamation Act (MSUMRA) as well as sections 82-4-203 and 82-4-222 of the Montana Code Annotated (MCA). Among other things, HB 576 also directed the Montana Department of Environmental Quality (MDEQ) to amend the Administrative Rules of Montana (ARM) to “remove the two subsections defining `material damage' and the subsection defining `material damage to the quantity or quality of water'.” Specifically, Montana proposes several changes to MCA sec. 82-4-203(32), which defines and describes “material damage” for both underground and surface coal mining operations (referred to herein as “coal mining and reclamation operations”). As currently approved by OSMRE, this section dictates how “material damage” applies to the protection of the hydrologic balance. Montana now proposes to create three subsections under section 82-4-203(32) to define how “material damage” is defined with respect to: (a) protection of the hydrologic balance; (b) an alluvial valley floor; and (c) subsidence caused by an underground coal mining operation. Proposed section 82-4-203(32)(a) would create two requirements for an action or inaction to be considered “material damage” to the hydrologic balance. The first requirement is that the coal mining operation would cause significant, lasting, or permanent adverse changes to water quality or quantity that affect the beneficial uses of, or rights to, the water outside the permit area. This requirement incorporates the current language of section 82-4-203(32) but modifies it to replace the phrase “degradation or reduction” with “significant long term or permanent adverse change.” The second requirement for an action or inaction to be considered “material damage” to the hydrologic balance is that a coal mining or reclamation operation would cause a lasting or permanent exceedance of a water quality standard (WQS) outside a permit area. There is an exception to this second requirement for water bodies for which the WQSs are stricter than the baseline conditions as determined by MDEQ's assessment of the cumulative hydrologic impact findings conducted pursuant to section 82-4-222. For those water bodies, this second requirement is met if the coal mining and reclamation operation causes an adverse effect to land use, beneficial uses of water, or water rights. Proposed section 82-4-203(32)(b) would apply when determining if an alluvial valley floor is “materially damaged.” Montana proposes to modify the definition of “material damage” by adding language that accounts for the degradation or a reduction of water quality or quantity supplied to an alluvial valley floor by a coal mining and reclamation operation, but only if those actions or inactions significantly decrease the alluvial valley floor's ability to support agricultural activities. Proposed section 82-4-203(32)(c) would apply when determining if subsidence caused by underground coal mining operation is “material damage.” Subsidence caused by underground coal mines would constitute “material damage” when there are (1) significant impairments to surface lands, features, and structures; (2) physical changes that have significant adverse effects on a lands current and reasonably foreseeable uses, production, or income; or (3) when there is any significant change to a structure's pre-subsidence condition, appearance, or utility. Next, Montana proposes to amend its coal mine operation permit requirements related to hydrologic information by removing two sentences from section 82-4-222(1)(m). The first sentence Montana proposes to remove states that the applicant's determination of the probable hydrologic consequences of a coal mining and reclamation operation is not required until the necessary hydrologic information is made available from an appropriate Federal or State agency. The second sentence that Montana proposes to remove prohibits the MDEQ from approving a coal mining permit application until the necessary hydrologic information is incorporated into the application. Lastly, HB 576 adds four contingencies to the proposed amendments of sections 82-4-203(32) and 82-4-222(1)(m) that are not codified into the MCA but apply to the sections amended by the legislation. Section 4 of HB 576 states that if any or all parts of HB 576 is found invalid, any parts found valid will remain in effect. Section 5 of HB 576 states that if the Secretary of the Interior disapproves any provision of the HB 576, then that portion is void. Section 6 of HB 576 states that HB 576 is effective upon passage and approval. Last, Section 7 of HB 576 states that HB 576 applies retroactively to actions for judicial review or other actions challenging permits, amendments, license, arbitration, action, certificate, or inspection that are pending on or after the effective date. We announced receipt of the proposed amendment in the August 7, 2023, <E T="04">Federal Register</E> (88 FR 52084). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. After a request from several public interest groups, we announced a 60-day extension of the comment period until November 6, 2024, in the September 20, 2023, <E T="04">Federal Register</E> (88 FR 64853). We also held a Public Hearing on November 1, 2023, in Billings, MT, where we received testimony from 23 individuals. (Administrative Record No. MT-042-23). We also received 232 written comments on the proposed rule. On March 28, 2024, OSMRE sent a letter to MDEQ detailing concerns that OSMRE had with the proposed amendment (Administrative Record No. MT-042-34). The letter offered two options for MDEQ: suspend the amendment to allow MDEQ to make necessary changes or proceed to the Final Rule stage with no changes. MDEQ responded on April 26, 2024, that, because the proposed amendments were the result of legislative action, MDEQ is unable to submit further modifications to address OSMRE's concerns. While OSMRE's letter only solicited a response from MDEQ, several individuals and organizations sent OSMRE responses to the letter as well. Due to the increa ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 110k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━