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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT, ADOPTION, AND REPEAL
(STRIP AND UNDERGROUND MINE RECLAMATION ACT)
1.  On January 18, 2012, at 1:30 p.m., the Board of Environmental Review will hold a public hearing in Room 111, Metcalf Building, 1520 East Sixth Avenue, Helena, Montana, to consider the proposed amendment, adoption, and repeal of the above-stated rules.
2.  The board will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice.  If you require an accommodation, contact Elois Johnson, Paralegal, no later than 5:00 p.m., January 9, 2012, to advise us of the nature of the accommodation that you need.  Please contact Elois Johnson at Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-2630; fax (406) 444-4386; or e-mail ejohnson@mt.gov.
3.  The rules proposed to be amended provide as follows, stricken matter interlined, new matter underlined:
(1) through (12) remain the same.
(13) (14)  "Approximate original contour" is defined in 82-4-203, MCA., as "that surface configuration achieved by backfilling and grading of the mined area so that the reclaimed area, including any terracing or access roads, closely resembles the general surface configuration of the land prior to mining and blends into and complements the drainage pattern of the surrounding terrain, with all highwalls, spoil piles, and coal refuse piles eliminated, so that:
(a)  the reclaimed terrain closely resembles the general surface configuration if it is comparable to the premine terrain.  For example, if the area was basically level or gently rolling before mining, it should retain these features after mining, recognizing that rolls and dips need not be restored to their original locations and that level areas may be increased;
(b)  the reclaimed area blends with and complements the drainage pattern of the surrounding area so that water intercepted within or from the surrounding terrain flows through and from the reclaimed area in an unobstructed and controlled manner;
(c)  postmining drainage basins may differ in size, location, configuration, orientation, and density of ephemeral drainageways compared to the premining topography if they are hydrologically stable, soil erosion is controlled to the extent appropriate for the postmining land use, and the hydrologic balance is protected as necessary to support postmining land uses within the area affected and the adjacent area; and
(d)  the reclaimed surface configuration is appropriate for the postmining land use."
(14) through (53)(c) remain the same, but are renumbered (15) through (54)(c).
(54) (55)  "Hydrologic balance" is defined in 82-4-203, MCA., as "the relationship between the quality and quantity of water inflow to, outflow from, and storage in a hydrologic unit such as a drainage basin, aquifer, soil zone, lake, or reservoir, and encompasses the dynamic relationships among precipitation, runoff, evaporation, and changes in ground and surface water storage as they relate to uses of land and water within the area affected by mining and the adjacent area."
(55) through (106)(b) remain the same, but are renumbered (56) through (107)(b).
(107) (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) and (b) remain the same.
(c)  "Public road" is defined in ARM 17.24.1132(1)(f)(g).
(108) through (119) remain the same, but are renumbered (109) through (120).
(120) (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) through (e) remain the same.
(130) (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 17.24.412 and 17.24.413 17.24.418.
(131) through (145)(b) remain the same, but are renumbered (132) through (146)(b).
The proposed amendments to ARM 17.24.301(13) and (54) delete direct quotes from 82-4-233, MCA.  Section 2-4-305(2), MCA, provides that rules may not unnecessarily repeat statutory language.  The board has determined it is not necessary to repeat statutory language in the rule when a reference to the statute will suffice.  This amendment would also avoid the necessity of amending the rule in the future, should the Legislature amend 82-4-233, MCA, again.
The proposed amendments to (107)(c) and (130) are necessary to correct internal reference cites.  The amendment to (107) (proposed (108)) is necessary to conform to proper drafting practice.  Because of the Secretary of State's style rules for the Administrative Rules of Montana, the three subsections in (107) cannot be consecutively earmarked as (a), (b), and (c), as would be required by the Legislative Services Division if (107) were being adopted into the Montana Code Annotated.  To ensure that citations to (107) will include (a), (b) and (c), the introductory sentence is being added.
Senate Bill 286 (Chapter 407, Laws of 2011), passed by the 2011 Legislature, amended 82-4-226, MCA, and modified certain coal prospecting procedures.  The bill provided for a streamlined permitting process for coal exploration using drilling that does not substantially disturb the land surface.  The process is codified in 82-4-226(8), MCA.  The change to the definition of "substantially disturb" would bring this definition into conformance with the Legislature's use of the term in Senate Bill 286.
17.24.302  FORMAT, DATA COLLECTION, AND SUPPLEMENTAL INFORMATION  (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) through (9) remain the same.
REASON:  The proposed amendment to ARM 17.24.302 allows the department to have authority over the format in which the required information for an application is submitted.  This proposed amendment remedies time-consuming efforts by the department caused by submission of data to the department in improper formats.  For example, large database information that requires statistical analyses, by the department should not be submitted in a paper format.  Additionally, information that is submitted in an electronic format must be in a format that is usable with the department's current software technology.  This amendment would provide the department with the authority to require a specific format, thus allowing for more efficient use of department resources.
17.24.303  LEGAL, FINANCIAL, COMPLIANCE, AND RELATED INFORMATION  (1) through (1)(g)(v) remain the same.
(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;
(h) through (k) remain the same, but are renumbered (i) through (l).
(l) (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, 10% 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 or and, when applicable, date and amount of bond or similar security;
The amendment to (1)(m)(i) is proposed because the department only needs bond information for bonds that have been forfeited.
17.24.304  BASELINE INFORMATION:  ENVIRONMENTAL RESOURCES
(1)  The following environmental resources information must also be included as part of an application for a strip or underground mining permit:
(a) through (f)(iv) remain the same.
(g)(i)  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:
(A) through (C) remain the same, but are renumbered (i) through (iii).
(D) (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 (6) (1)(f), and (7)(a)(ii) and (iii) (1)(g)(ii) and (iii), and ARM 17.24.322(2)(a)(iii); and
(E) (v)  additional studies or information determined by the department to be useful or necessary to evaluate the application;.
(ii)  aAll laboratory work in this regard conducted under (g) must be conducted in accordance with ARM 17.24.302(3);
(h) through (i)(ii) remain the same.
(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:
(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) through (h) and (g); and
(k) through (l)(ii)(D) remain the same.
REASON:  The proposed amendment to ARM 17.24.304(1)(g) is necessary to comply with formatting requirements of the Secretary of State's office, which prohibits use of double earmarking practice, e.g. "(g)(i)."
The other proposed amendments to ARM 17.24.304 are necessary to correct internal reference cites.
17.24.308  OPERATIONS PLAN  (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:
(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) through (vi) remain the same.
(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
REASON:   Currently, ARM 17.24.308(1)(b)(vii) requires a description for facilities associated with environmental monitoring and data gathering activities for the gathering of subsurface data.  The word "or" was inadvertently left out of this rule in a previous rulemaking.  As written, the language is nonsensical because environmental data and coal data are not the same things.  Adding the word "or" as proposed, will require a description to be included for all facilities associated with environmental monitoring, data gathering, or gathering of subsurface data.
17.24.313  RECLAMATION PLAN  (1)  Each reclamation plan must contain a description of the reclamation operations proposed, including the following information:
(a) through (g)(iv) remain the same.
(h)  a narrative of the method for revegetation including, but not limited to, a discussion of:
(i) through (ix) remain the same.
(j)  a narrative explaining reclamation of facilities and sites identified under ARM 17.24.308(2)(1)(b).
REASON:  The proposed amendment to ARM 17.24.313(1)(h)(x) provides internal references to the reference area requirements and technical standards referenced in the rule.  This amendment is necessary to direct the reader's attention to those requirements and standards.
The proposed amendment to ARM 17.24.313(1)(j) is necessary to correct an erroneous internal reference cite.
17.24.314  PLAN FOR PROTECTION OF THE HYDROLOGIC BALANCE
(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) and (b) remain the same.
(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(5)(1)(e) and (6)(f), and 17.24.648, where the protection of quantity cannot be ensured.
(2)  The description must include:
(a) through (c) remain the same.
(d)  plans for monitoring and semiannual reporting of ground and surface water quality and quantity data collected and analyzed in accordance with ARM 17.24.304(5)(1)(e) and (6)(f), 17.24.645, and 17.24.646.
(3) through (5) remain the same.
AUTH:  82-4-204, 82-4-205, MCA
REASON:  The proposed amendments to ARM 17.24.314 are necessary to correct erroneous internal reference cites.
17.24.401  FILING OF APPLICATION AND NOTICE  (1) and (2) remain the same.
(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) remains the same.
(b)  a map or description, which must:
(i) remains the same.
(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)  state the names of the US geological survey 7.5- or 15-minute quadrangle maps that contain the area shown or described, if available; and
(iv) remains the same, but is renumbered (iii).
(c) through (6) remain the same.
IMP:  82-4-222, 82-4-226, 82-4-231(4), 82-4-232, 82-4-233, MCA
REASON:  The proposed amendments to ARM 17.24.401(3)(b)(ii), (iii), and (iv) are necessary to remove an antiquated requirement in (iii).  It is antiquated because the maps have been superseded by electronic mapping.
17.24.403  INFORMAL CONFERENCE  (1) through (1)(c) remain the same.
(2)  Except as provided in (3) of this rule, 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) and (b) remain the same.
(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 mine plan proposed mining area for the purpose of gathering information relevant to the conference.
(d) through (4) remain the same.
AUTH:  82-4-204, 82-4-205, MCA
IMP:  82-4-226, 82-4-231, MCA
REASON:  The proposed amendment to (2)(c) reconciles the rule language to the statutory language in 82-4-231(6), MCA.
17.24.416  PERMIT RENEWAL  (1) through (3) remain the same.
(4)(a)  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:
(i) through (iv) remain the same, but are renumbered (a) through (d).
(A) and (B) remain the same, but are renumbered (i) and (ii).
(v) (e)  any additional revised or updated information required by the department that has not been provided by the applicant;
(vi) remains the same, but is renumbered (f).
(vii) (g)  the renewal is prohibited by the denial provisions of 82-4-227, 82-4-234, and 82-4-251, MCA; or
(viii) (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 [NEW RULE II], that the owner or operator is not eligible for a permit.
(b) through (d) remain the same, but are renumbered (5) through (7).
(5) remains the same, but is renumbered (8).
IMP:  82-4-221, 82-4-226, MCA
REASON:  The proposed amendment to ARM 17.24.416(4)(a) is necessary to comply with the Secretary of State's prohibition on double earmarking and the proposed amendment to (4)(a)(v) is necessary to correct a grammatical error.
The proposed addition of (4)(i) conforms the rule to the requirements of proposed New Rule II.  See the first paragraph of the reason given for the proposed amendment to ARM 17.24.303.
17.24.418  TRANSFER OF PERMITS  (1) remains the same.
(2)  The department may not approve any transfer or assignment of any permit unless the potential transferee or assignee:
(a) through (a)(iii) remain the same.
(b)  provides the department with an application for approval of such proposed transfer, assignment, or sale, including:
(i) and (ii) remain the same.
(iii)  the same information as is required in subchapter 3 ARM 17.24.303 for applications for new permits.
(3)(a) through (6)(b) remain the same.
AUTH:  82-4-204, 82-4-205, MCA
REASON:  The proposed amendment to ARM 17.24.418 is necessary to make an internal reference cite more specific.
17.24.425  ADMINISTRATIVE REVIEW  (1) remains the same.
(2)  The department board shall commence the hearing within 30 days of such request.  For the purposes of the hearing, the department 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 department 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) through (5) remain the same.
(6)  Within 20 days after the close of the record, the department 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 department board.
AUTH:  82-4-204, 82-4-205, MCA
IMP:  82-4-206, 82-4-221, 82-4-226, 82-4-231, 82-4-232, MCA
REASON:  The proposed amendments to ARM 17.24.425 reflect the enactment of HB 370 (Chapter 127, Laws of 2005) by the 2005 Legislature transferring the responsibility for holding a hearing from the Department of Environmental Quality to the Board of Environmental Review.  See 82-4-231(9), MCA.
17.24.501  GENERAL BACKFILLING AND GRADING REQUIREMENTS
(1) through (3)(b) remain the same.
(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) through (7) remain the same.
AUTH:  82-4-204, 82-4-231, MCA
IMP:  82-4-231, 82-4-232, MCA
REASON:  The proposed amendment to ARM 17.24.501 is necessary to provide clarification that an alternative to reducing or backfilling is allowed.  The methods for highwall reclamation may include reducing, backfilling, or reclaiming to a replacement bluff feature pursuant to ARM 17.24.515(2).  As currently worded, the rule conflicts with ARM 17.24.515(2).
17.24.623  BLASTING SCHEDULE  (1) through (5)(f) remain the same.
(6)  Before blasting in areas or at times not in a previous schedule, the operator shall prepare and distribute a revised blasting schedule according to the procedures of (1) and (2).  Whenever a schedule has previously been provided to the owner or residents under (1) (2) with information on requesting a preblasting survey, the notice of change need not include information regarding preblast surveys.
(7) remains the same.
REASON:  The proposed amendments to ARM 17.24.623 are necessary to ensure that the modifications of the blasting schedule are not only prepared but are also distributed appropriately according to (2) and to correct an internal citation error.  Distribution is necessary to protect public safety.
17.24.639  SEDIMENTATION PONDS AND OTHER TREATMENT FACILITIES  (1) through (19) remain the same.
(20)  If a sedimentation pond meets any of the criteria of 30 CFR 77.216(a), the following additional requirements must be met:
(a)  an appropriate combination of principal and emergency spillways that will discharge safely the runoff resulting from a 100-year, 24 six-hour precipitation event, or a larger event specified by the department, assuming the impoundment is at full pool for spillway design, must be provided;
(b) through (28)(b) remain the same.
REASON:  The proposed amendment to ARM 17.24.639 requires sedimentation ponds that meet any of the criteria of 30 CFR 77.216(a) to be designed to have an appropriate combination of principal and emergency spillways that will discharge safely the runoff resulting from a 100-year, six-hour storm.  This amendment requires the specified sedimentation ponds to safely pass a generally smaller peakflow than the existing rule requiring the safe passage of a 100-year, 24-hour storm.  This amendment will align the spillway design to the same requirements as the stream channel reclamation found in ARM 17.24.634.  A 100-year, six-hour event still represents a large and rare runoff event, would comply with 30 CFR 816.49(a)(9)(ii)(B), and would provide adequate protection for the facility.
17.24.642  PERMANENT IMPOUNDMENTS AND FLOOD CONTROL IMPOUNDMENTS  (1)  Permanent impoundments are prohibited unless constructed in accordance with ARM 17.24.504 and 17.24.639, and have open-channel spillways that will safely discharge runoff resulting from a 100-year, 24 six-hour precipitation event, assuming the impoundment is at full pool for spillway design or larger event specified by the department.  The department may approve a permanent impoundment upon the basis of a demonstration that:
(a) through (7) remain the same.
REASON:  The proposed amendment to ARM 17.24.642 requires permanent impoundments to be designed to have open channel spillways that will discharge safely the runoff resulting from a 100-year, six-hour storm.  This amendment requires permanent impoundments to safely pass a generally smaller peakflow than the existing rule requiring the safe passage of a 100-year, 24-hour storm.  A 100-year, six-hour event, however, still represents a large and rare runoff event and would make the rule consistent with federal regulations.  See 30 CFR 816.49(a)(9)(ii)(B) pertaining to impoundments of this class.  The current 100-year, 24-hour design results in inconsistencies between geomorphic stream channel reclamation designs (ARM 17.24.634) and spillway engineering designs.  The proposed amendment will alleviate this inconsistency and provide for an uninterrupted peakflow stream channel design.
17.24.645  GROUND WATER MONITORING  (1)  Ground water levels, subsurface flow and storage characteristics, and the quality of ground water must be monitored based on information gathered pursuant to ARM 17.24.304 and the monitoring program submitted pursuant to ARM 17.24.314 and in a manner approved by the department to determine the effects of strip or underground mining operations on the recharge capacity of reclaimed lands and on the quantity and quality of water in ground water systems in the permit and adjacent areas.  When operations may affect the ground water system, ground water levels and ground water quality must be periodically monitored using wells that can adequately reflect changes in ground water quantity and quality resulting from such operations.  The information must be submitted to the department in a format approved by the department.
(2) through (8) remain the same.
IMP:  82-4-231, 82-4-232, MCA
REASON:  This amendment will allow the department to require the permittee to submit the ground water hydrology data in a format that will ensure the long-term usability of the data, increase review efficiency, and provide consistency for data comparison.
17.24.646  SURFACE WATER MONITORING  (1) through (1)(b) remain the same.
(2)  The operator shall submit semiannual reports including analytical results from each sample taken during the semester to the department.  Sampling results must be submitted in a format approved by the department.  In addition, all monitoring data must be maintained on a current basis for review at the minesite.  Any sample results that indicate a permit violation must be reported immediately to the department.  However, whenever the discharge for which water monitoring reports are required is also subject to regulation by a MPDES permit and that permit requires filing of the water monitoring reports within 90 days or less of sample collection, the operator shall submit to the department on the time schedule required by the MPDES permit or within 90 days following sample collection, whichever is earlier, a copy of the completed reporting form filed to meet MPDES permit requirements.
(3) through (7) remain the same.
IMP:  82-4-231, 82-4-232, MCA
REASON:  This amendment will allow the department to require the permittee to submit the surface water hydrology data in a format that will ensure the long-term usability of the data, increase review efficiency, and provide consistency for data comparison.
17.24.702  REDISTRIBUTION AND STOCKPILING OF SOIL  (1) through (3)(b) remain the same.
(4)  Prior to redistribution of soil or soil substitutes, regraded areas must be:
(a)  sampled and analyzed to determine the physicochemical nature of the surficial spoil material in accordance with ARM 17.24.313(1)(g)(h)(xi);
(b) through (7) remain the same.
REASON:  The proposed amendment to ARM 17.24.702 is necessary to correct an internal reference cite.
17.24.711  ESTABLISHMENT OF VEGETATION  (1)  Vegetation must be reestablished in accordance with 82-4-233(1), (2), (3), and (5), MCA, as follows:.  For purposes of that statute, "other constructed features" means discrete man-made features less than two acres in size that are incorporated into reclaimed areas, that have been constructed to an approved design, and that do not require revegetation to achieve the approved postmining land use or postmining slope stability.
(a)  Sections 82-4-233(1), (2), and (3), MCA, state:  "(1) The operator shall establish on regraded areas and on all other disturbed areas, except water areas, surface areas of roads, and other constructed features approved as part of the postmining land use, a vegetative cover that is in accordance with the approved permit and reclamation plan and that is:
"(a)  diverse, effective, and permanent;
"(b)  composed of species native to the area or of introduced species when desirable and necessary to achieve the postmining land use and when approved by the department;
"(c)  at least equal in extent of cover to the natural vegetation of the area; and
"(d)  capable of stabilizing the soil surface in order to control erosion to the extent appropriate for the approved postmining land use.
"(2)  The reestablished plant species must:
"(a)  be compatible with the approved postmining land use;
"(b)  have the same seasonal growth characteristics as the original vegetation;
"(c)  be capable of self-regeneration and plant succession;
"(d)  be compatible with the plant and animal species of the area; and
"(e)  meet the requirements of applicable seed, poisonous and noxious plant, and introduced species laws or regulations.
"(3)  Reestablished vegetation must be appropriate to the postmining land use so that when the postmining land use is:
"(a)  cropland, the requirements of subsections (1)(a), (1)(c), (2)(b), and (2)(c) are not applicable;
"(b)  pastureland or grazing land, reestablished vegetation must have use for grazing by domestic livestock at least comparable to premining conditions or enhanced when practicable;
"(c)  fish and wildlife habitat, forestry, or recreation, trees and shrubs must be planted to achieve appropriate stocking rates."
(b)  Section 82-4-233(5), MCA, states: "For land that was mined, disturbed, or redisturbed after May 2, 1978, and that was seeded prior to January 1, 1984, using a seed mix that was approved by the department and on which the reclaimed vegetation otherwise meets the requirements of subsections (1) and (2) and applicable state and federal seed and vegetation laws and rules, introduced species are considered desirable and necessary to achieve the postmining land use and may compose a major or dominant component of the reclaimed vegetation."
(2) through (3)(b) remain the same.
IMP:  82-4-233, 82-4-235, MCA
REASON:  The proposed amendment to ARM 17.24.711 would delete a direct quotation of 82-4-233, MCA, which is no longer accurate, and would substitute a reference to that statute.  The proposed amendment brings the rule into compliance with 2-4-305(2), MCA, which provides that rules may not unnecessarily repeat statutory language and would avoid the necessity of amending the rule in the future, should the Legislature amend 82-4-233, MCA, again.  The board also proposes to amend (1) by adding a definition of "other constructed features" to address a concern raised by the Office of Surface Mining that all of reclamation could be considered "constructed" and so the exemption of establishing vegetation could broadly be applied to the whole affected area (see Volume 72 Federal Register 57826, October 10, 2007).  To ensure that the entire reclaimed area cannot be considered to be a constructed feature, the board's proposed definition provides a limit on the size of the other constructed feature.  Furthermore, the proposed definition requires that the constructed feature would not interfere with the achievement of the postmining land use or slope stability.  This would ensure that the exemption from revegetation in 82-4-233, MCA, does not impair reclamation.  Finally, the proposed definition requires the other constructed feature to be constructed to an approved design.  By requiring an approved design, the department would have the opportunity to review the proposed feature to ensure the reclamation will not negatively affect the post mine land use or slope stability while not limiting the permit holder to specific reclamation features.
17.24.718  SOIL AMENDMENTS, MANAGEMENT TECHNIQUES, AND LAND USE PRACTICES  (1) remains the same.
(2)  An operator may use only normal husbandry practices to ensure the establishment of vegetation consistent with the approved reclamation plan.  An operator may use husbandry practices, approved by the department, for management of vegetation consistent with the approved reclamation plan without affecting the minimum responsibility period.  If husbandry practices other than those specified for the approved land use are employed, the minimum responsibility period will start after the last such unapproved practice is used.
(3) remains the same.
IMP:  82-4-233, 82-4-235, MCA
REASON:  The proposed amendment to ARM 17.24.718 addresses a concern raised by the Office of Surface Mining in Volume 72 Federal Register No. 195, 57830 (2007).  Currently ARM 17.24.718(2) requires that operators use normal husbandry practices as management techniques.  The Office of Surface Mining is concerned that the current language could be construed to include any normal husbandry practice.  The proposed amendment addresses this concern by requiring the operator to use only approved normal husbandry practices.
17.24.723  MONITORING  (1)  The operator shall conduct periodic vegetation, soils, and wildlife monitoring under plans submitted pursuant to ARM 17.24.312(1)(d) and 17.24.313(1)(f)(iv) and (1)(g)(ix)(g) and (h) and the approved postmining land use as approved by the department.
(2) through (4) remain the same
AUTH:  82-4-204, 82-4-205, MCA
IMP:  82-4-233, 82-4-235, MCA
REASON:  The proposed amendment to ARM 17.24.723 is necessary to correct an erroneous internal reference cite.
17.24.725  PERIOD OF RESPONSIBILITY  (1)  Except as provided in 82-4-235(3)(4), MCA, et seq., the minimum period of responsibility for reestablishing vegetation begins after the last seeding, planting, fertilizing, irrigating, or other activity related to phase III reclamation as determined by the department unless it can be demonstrated that such work is a normal husbandry practice that can be expected to continue as part of the postmining land use or if discontinuance of the practices after the liability period expires will not reduce the probability of permanent revegetation success.
(2)  Except as provided in 82-4-235(3), MCA, an Aapplication for phase III bond release may not be submitted prior to the end of the tenth growing season.
IMP:  82-4-233, 82-4-235, MCA
REASON:  The proposed amendment to ARM 17.24.725(1) corrects an erroneous reference cite resulting from the enactment of HB 278 by the 2009 Legislature (Chapter 72, Laws of 2009) adding 82-4-235(3), MCA, and renumbering the formerly described 82-4-235(3) to (4).
The proposed amendment to (2) adds the reference citation for the statute that provides the exception to when a bond release application may be submitted.  This amendment is necessary to reflect the enactment of HB 278, in which exceptions to the ten-year responsibility period were adopted.
17.24.726  VEGETATION MEASUREMENTS  (1)  Standard, and consistent, and statistically valid field and laboratory methods must be used to obtain and evaluate vegetation data consistent with 82-4-233 and 82-4-235, MCA, and to compare revegetated area data with reference area data and/or with technical standards.  Specific field and laboratory methods used and schedules of assessments must be detailed in a plan of study and be approved by the department for inclusion in the permit.  Sample adequacy must be demonstrated.  In addition to these and other requirements described in this rule, the department shall supply guidelines regarding acceptable representative field and laboratory methods.
(2) remains the same.
(3)  The revegetated aAreas to be developed for grazing land, pastureland, or cropland must meet or exceed the applicable performance standards in (1) and (2) for at least two of the last four years in any two years after year six of the phase III bond period of responsibility.  Pursuant to ARM 17.24.1113, the department shall evaluate the vegetation at the time of the bond release inspection for phase III to confirm the findings of the quantitative data.
(4)  Areas to be developed for fish and wildlife habitat, forestry, or recreation must meet or exceed the performance standards in (1) and (2), excluding production, and a minimum tree and shrub density following the requirements of (1).  Tree and shrub density must be sampled during the last growing season of the phase III bond period of responsibility.  Sampling must demonstrate the following conditions:
(a)  all trees and shrubs must be healthy and have been in place for not less than two growing seasons;
(b)  at least 80 percent of the trees and shrubs used to determine success shall have been in place for at least the last six years of the phase III bond period of responsibility; and
(c)  volunteer and sucker trees and shrubs of the approved species may be included in the accounting for success.
(5)  For areas to be developed for residential or industrial/commercial post-mine land use, the vegetative ground cover shall not be less than that required to control erosion within two years after regrading is completed.
(4) remains the same, but is renumbered (6).
IMP:  82-4-233, 82-4-235, MCA
REASON:  The proposed amendment to ARM 17.24.726(1) addresses a concern raised by the Office of Surface Mining in Volume 72 Federal Register 57830, October 10, 2007.  Currently, (1) requires the permittee to submit a plan of study regarding vegetation measurements to be approved by the department.  The Office of Surface Mining is concerned that the current language is less stringent than the federal regulations which require that each permit application contain measures proposed to be used to determine success of revegetation.  See 30 CFR 780.18(b)(5).  The proposed amendment addresses the concern of the Office of Surface Mining by requiring the methods and schedules of vegetation measurements to be included in the permit.
The proposed amendments to (3) are necessary to conform Montana's administrative rules with the corresponding federal requirements located at 30 CFR 816.116(c)(3).  Currently, the rule reads that the vegetation standards must be met in any two of the last four years.  The proposed amendment (any two years after year six) has the same meaning if the responsibility period is exactly ten years.  The need for this rule amendment is evident when the operator chooses or the vegetation requires a period longer than ten years.  As the rule currently exists, Montana's language has a different meaning than the CFR because vegetation data collected may "expire" if a longer responsibility period is taken.  This would require additional expense in sampling that is unnecessary.
The proposed addition of (4) is necessary to conform Montana's rule with the corresponding federal requirements located at 30 CFR 816.116(b).  Currently, the rule requires all revegetated areas to meet or exceed standards for production, cover, and density.  However, the statute that the rule implements, 82-4-235(1)(c), MCA, does not require land reclaimed to fish and wildlife habitat, forestry, and recreation land uses to meet a production standard.  The addition of (4) is proposed to further define what conditions must be present for acceptable sampling time frames for tree and shrub density and what constitutes a tree or shrub.  These provisions are required by 30 CFR 816.116(b)(3).
The proposed addition of (5) is necessary to conform Montana's rule with the corresponding federal requirements located at 30 CFR 816.116(b)(4).  The proposed language acknowledges that a vegetative standard for cover, production, and density are not appropriate for a land use of residential or industrial/commercial.  Rather, the appropriate measurement is to require vegetative ground cover sufficient to control erosion.
17.24.901  GENERAL APPLICATION AND REVIEW REQUIREMENTS
(1) through (1)(h)(iv) remain the same.
(2)  The requirements of (1)(f)(g) and (g)(h) also apply to pneumatic backfilling operations, except where the operations are exempted by the department from requirements specifying hydrologic monitoring.
REASON:  The proposed amendments to ARM 17.24.901 are necessary to correct erroneous internal reference citations.
17.24.924  DISPOSAL OF UNDERGROUND DEVELOPMENT WASTE:  GENERAL REQUIREMENTS  (1) through (15) remain the same.
(16)  Surface water runoff from the area above a structure must be diverted away from the structure and into stabilized diversion channels designed to pass safely the runoff from a 100-year, 24 six-hour precipitation event or larger event specified by the department.  Surface runoff from the structure surface must be diverted to stabilized channels off the fill that will safely pass the runoff from a 100-year, 24 six-hour precipitation event.  Diversion design must comply with the requirements of ARM 17.24.637.
(17) through (20) remain the same.
AUTH:  82-4-204, 82-4-231, MCA
IMP:  82-4-227, 82-4-231, 82-4-232, 82-4-233, MCA
REASON:  The proposed amendments to ARM 17.24.924 are necessary to eliminate a difference in the design criteria located in ARM 17.24.634, which is referenced in ARM 17.24.637, that requires the surface water drainage to be constructed to safely pass a 100-year, six-hour storm.  These amendments require the surface water drainage to safely pass a generally smaller peakflow than the existing rule requiring the safe passage of a 100-year, 24-hour storm.  A 100-year, six-hour event, however, still represents a large and rare runoff event.  This amendment would make the rule consistent with federal regulations (30 CFR 817.83(a)(2)) and would provide adequate protection for the facility.
17.24.926  DISPOSAL OF UNDERGROUND DEVELOPMENT WASTE: HEAD-OF-HOLLOW FILL  (1) remains the same.
(2)  The drainage control system for the head-of-hollow fill must be capable of passing safely the runoff from a 100-year, 24 six-hour precipitation event, or larger event specified by the department.
AUTH:  82-4-204, 82-4-205, 82-4-231(10)(h), MCA
IMP:  82-4-227, 82-4-231, 82-4-232, 82-4-233, MCA
REASON:  The proposed amendment to ARM 17.24.926 requires drainage control systems to be designed to safely pass the runoff resulting from a 100-year six-hour storm.  This amendment requires the drainage control system to safely pass a generally smaller peakflow than the existing rule requiring the safe passage of a 100-year, 24-hour storm.  A 100-year, six-hour event, however, still represents a large and rare runoff event.  This amendment would make the rule consistent with federal regulations pertaining to head-of-hollow drainage systems (30 CFR 817.72(a)(2)) and would provide adequate protection for the facility.
17.24.927  DISPOSAL OF UNDERGROUND DEVELOPMENT WASTE:  DURABLE ROCK FILLS  (1) through (3)(c) remain the same.
(4)  Surface water runoff from the areas adjacent to and above the fill must not be allowed to flow into the fill and must be diverted into stabilized channels that are designed to pass safely the runoff from a 100-year, 24 six-hour precipitation event.  Diversion design must comply with the requirements of ARM 17.24.637.
(5) remains the same.
(6)  Surface runoff from the outslope of the fill must be diverted off the fill to properly designed channels that will pass safely a 100-year, 24 six-hour precipitation event.  Diversion design must comply with the requirements of ARM 17.24.637.
(7) through (7)(c) remain the same.
AUTH:  82-4-204, 82-4-231, MCA
IMP:  82-4-227, 82-4-231, 82-4-232, 82-4-233, MCA
REASON:  The proposed amendments to ARM 17.24.927 are necessary to eliminate an inconsistency in the design criteria located in ARM 17.24.634, which is referenced in ARM 17.24.637, that requires the surface water drainage to be constructed to safely pass a 100-year, six-hour storm.  This amendment requires the surface water drainage to safely pass a generally smaller peakflow than the existing rule requiring the safe passage of a 100-year, 24-hour storm.  A 100-year, six-hour event, however, still represents a large and rare runoff event.  This amendment would make the rule consistent with federal regulations pertaining to disposal of excess spoil (30 CFR 817.73(f)) and would provide adequate protection for the facility.
17.24.1001  PERMIT REQUIREMENT  (1)  A person who intends to prospect for coal or uranium on land not included in a valid strip or underground mining permit must obtain a prospecting permit from the department if the prospecting will be:
(a) remains the same.
(b)  conducted to determine the location, quality, or quantity of mineral using drilling operations; or
(b) remains the same, but is renumbered (c).
(2)  An application for a prospecting permit must be made on forms provided by the department and, except for an application for a coal drilling operation that is subject to the application and review requirements of 82-4-226(8), must be accompanied by the following information:
(a) through (g) remain the same.
(h)  a prospecting map that meets the following requirements:
(i) and (ii) remain the same.
(iii)  each map must contain:
(A) through (E) remain the same.
(F)  the location of habitat of species described in (d)(e); and
(G) through (o) remain the same.
(p)  the proposed post-disturbance land use; and
(q)  the proposed public notice of the prospecting activities and proof of publication, in accordance with ARM 17.24.303(23)(1)(x).  The procedures of ARM 17.24.401(3) and (5), 17.24.402, and 17.24.403 must be followed in the processing of a prospecting permit application.
(3) through (6)(d) remain the same.
(7)  Prospecting-related activities or facilities that are conducted or created in accordance with this rule and ARM 17.24.1002 through 17.24.1014 and 17.24.1016 through 17.24.1018 [NEW RULE V] must be transferred to a valid strip or underground mining permit whenever such activities or facilities become part of mine operations in conjunction with ARM 17.24.308(2)(1)(b) or 17.24.609.
REASON:  The proposed amendments to ARM 17.24.1001 are necessary to correct erroneous internal reference cites and to correct a typographical error in (2)(p) by adding a hyphen to the word "post-disturbance."
Senate Bill 286, passed by the 2011 Legislature, amended 82-4-226, MCA, and modified certain coal prospecting procedures.  The bill provided for a streamlined permitting process for coal exploration using drilling that does not substantially disturb the land surface.  The process is codified in 82-4-226(8), MCA.  The addition of (1)(b), the new language in (2), and the amendment to (7) would bring these provisions into conformance with 82-4-226, MCA, as amended by Senate Bill 286.
17.24.1002  INFORMATION AND MONTHLY REPORTS  (1) through (2)(m) remain the same.
(3)  Annual reports must be filed in accordance with 82-4-226(7)(6) and 82-4-237, MCA, and must include the information required under (2) for all activities conducted during the report year.
REASON:  The proposed amendment to ARM 17.24.1002(3) is necessitated by the changes to 82-4-226, MCA, made by HB 370 (Chapter 127, Laws of 2005) during the 2005 legislative session and to conform the citation to the current statute.
17.24.1003  RENEWAL AND TRANSFER OF PERMITS  (1)  An application for renewal of a prospecting permit must be submitted by the permittee on forms provided by the department.  The application must be submitted at least 120 15 but not more than 150 days prior to the anniversary date of the permit and must include:
(a) through (4) remain the same.
AUTH:  82-4-204, 82-4-205, MCA
REASON:  Currently, an application to renew a prospecting permit must be submitted at least 120 days prior to the renewal date.  The board believes that 15 days is sufficient time for review of the renewal application and will result in quicker department action on the application.
17.24.1005  DRILL HOLES  (1) through (1)(b) remain the same.
(2)  The prospector shall use appropriate techniques to:
(a) through (c) remain the same.
(d)  reclaim all surface impacts and prevent subsidence settling that may result from prospecting-related activities.
(3) through (4) remain the same.
AUTH:  82-4-204, 82-4-205, MCA
REASON:  The proposed amendment to ARM 17.24.1005 is necessary to correct the improper use of the word "subsidence."  Subsidence is defined in 82-4-204(49), MCA, as "... a vertically downward movement of overburden materials resulting from the actual mining of an underlying mineral deposit or associated underground excavations."  The proposed amendment will replace the word "subsidence" with the word "settling," which is an appropriate word to be associated with prospecting-related activities.
17.24.1016  BOND REQUIREMENTS FOR DRILLING OPERATIONS
(1) and (2) remain the same.
(3)  Each drill site is considered to be 0.1.0 acre unless otherwise approved by the department.
(4) remains the same.
AUTH:  82-4-204, 82-4-205, MCA
IMP:  82-4-223, 82-4-226, MCA
REASON:  The proposed amendment to ARM 17.24.1016 would increase the area associated with each drill site to 1.0 acre.  This disturbance area would then be bonded at $200 per acre.  The current area of 0.1 acre allows for set up of the drill rig and minimal disturbance around it.  Increasing the size of the drill site will better allow for use of mud pits when needed, storage of drilling materials, and better blending of reclamation with adjacent native areas.
17.24.1018  NOTICE OF INTENT TO PROSPECT  (1)  This rule applies to a prospecting operation that is outside an area designated unsuitable for coal mining pursuant to 82-4-227 or 82-4-228, MCA, and that is:
(a) remains the same.
(b)  conducted for the purpose of determining the location, quality, or quantity of a natural mineral deposit but does not substantially disturb, as defined in ARM 17.24.301, the natural land surface to determine drill hole locations and access routes prior to submittal of an application to prospect to determine the location, quality, and quantity of a mineral reserve.
(2)  A person who conducts a prospecting operation as described in (1) must, before conducting the prospecting operations, file with the department a notice of intent to prospect that meets the requirements of (3) or and (4).  A notice of intent to prospect is effective for one year after it is filed.  If prospecting activities described in a notice are not conducted within the year, they may be incorporated by reference in a subsequent notice of intent to prospect.
(3) remains the same.
(4)  The notice must document that the owners of the land affected have been notified and understand that the department shall make investigations and inspections necessary to ensure compliance with the Act, applicable rules, and permit notice of intent conditions.  The notice must also include the current mailing address and phone number of each affected landowner.
(5)  A notice of intent for prospecting activities that will not substantially disturb, as defined in ARM 17.24.301, the natural land surface must contain the following:
(a)  information required in ARM 17.24.1001(2)(a) through (i), and (2)(l) through (n) a map of sufficient size and scale to adequately show all areas to be prospected.  Standard United States geological survey topographic quadrangle maps, or other similar map showing the same level of detail, must be used as base maps.  The following must be clearly identified on the map;:
(i)  topography (minimum of ten-foot contours), locations of streams, lakes, stockwater ponds, wells, and springs that are known or readily discoverable proximate to the prospecting operations;
(iii)  roads and access routes;
(iv)  locations of proposed installations of monitoring facilities; and
(v)  location of occupied dwellings and pipelines; and
(b) remains the same.
(6)  A notice of intent to prospect for prospecting operations that will substantially disturb, as defined in ARM 17.24.301, the natural land surface, must contain the following to the extent that it is applicable to the proposed prospecting operation:
(a) through (c) remain the same.
(7)  Within 30 days of receipt of a notice of intent to prospect pursuant to (3) or (4), the department shall notify the person who filed the notice whether the notice meets the requirements of (3) or (4) this rule.
(8)  Each person who conducts prospecting which substantially disturbs the natural land surface under a notice of intent shall, while in the prospecting area, have available to the department for review upon request a copy of the notice of intent to prospect.
(9)  All provisions of this subchapter, except ARM 17.24.1001(1), (2)(j), (k), and (q), (3), (4), and (5), 17.24.1003, 17.24.1014, 17.24.1016, and 17.24.1017, and [NEW RULE V] apply to a prospecting operation for which a permit is not required pursuant to ARM 17.24.1001 notice of intent to prospect.
REASON:  The amendment to (1)(b) and the first amendment to (2) are proposed to bring the rule into conformance with 82-4-226, MCA, as amended by SB 286 (Chapter 407, Laws of 2011), which does not allow prospecting to determine the location, quality, or quantity of a mineral deposit to be conducted under a notice of intent.  The replacement of "or" with "and" in (2) is made because both (3) and (4) apply to each notice of intent.  The amendments to (5)(a) eliminate information requirements that are not necessary for operations that do not create a substantial disturbance.  The amendment to (6) is proposed because not all of the requirements referenced in (6)(a) through (c) apply to every prospecting operation.  The amendments to (8) are necessary because, when a department employee on an inspection trip observes a prospecting operation, the employee must have access to the notice of intent to ensure that the operation has a notice of intent and that the operation is in compliance with it.  The amendment to (9) is made because the information requirements for notices of intent are specified in (5) and (6) of the rule.
17.24.1111  BONDING:  BOND RELEASE APPLICATION CONTENTS
(1) and (2) remain the same.
(3)  The application must include the permit number and date approved or renewed, a proposed public notice of the precise location of the land affected, the location and acreage for which bond release is sought, the amount of bond release sought, a description of the completed reclamation, including the dates of performance and how the results of the reclamation satisfy the requirements of the approved reclamation plan, and copies of letters sent to adjoining property owners, surface owners, local government bodies, planning agencies, and sewage and water treatment facilities or water companies in the locality of the permit area, notifying them of the permittee's intention to seek release of performance bond(s).  These letters must be sent before the permittee files the application for release.
(4) remains the same.
(5)  Within 30 days after filing the application for release, the permittee shall submit proof of publication of the advertisement required by ARM 17.24.1112.  Such proof of publication is considered part of the bond release application. The department shall determine whether an application is administratively complete within 60 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.
(6)  Within 45 days of the department's determination of administrative completeness, the applicant shall submit proof of publication of the advertisement required by ARM 17.24.1112.
(6) remains the same, but is renumbered (7).
AUTH:  82-4-204, 82-4-205, MCA
IMP:  82-4-223, 82-4-232, 82-4-235, MCA
REASON:  The proposed amendment to ARM 17.24.1111(3) is necessary to bring the rule into compliance with 82-4-232(6), MCA, as amended by HB 370 during the 2005 legislative session.  (See Chapter 127, Laws of 2005.)  The proposed language provides clear direction to the bond release application requirements found at 82-4-232(6), MCA.
The proposed amendment to (5) also is necessary to reflect changes in 82-4-232, MCA.  The proposed amendment deletes the current requirement to submit proof of publication of the public notice for bond release within 30 days of submission of the application, and replaces it with a requirement in (6) that proof of publication be submitted to the department within 45 days after the application is determined to be administratively complete.  This time frame will allow the company to run the public notice for four consecutive weeks after the date set by 82-4-232(6)(c), MCA, to begin publication and still have two weeks to submit the affidavit of publication.  Section 82-4-232(6)(c), MCA, allows the department a maximum of 60 days to review a bond release application.  The proposed language in (6) reflects that amendment and includes a starting time for when the 60 days begins.
17.24.1112  BONDING:  ADVERTISEMENT OF RELEASE APPLICATIONS AND RECEIPT OF OBJECTIONS  (1)  At the time of filing an application for bond release Upon receipt of notice of the department's determination of administrative completeness, the permittee applicant shall advertise the filing approved public notice of the application in a newspaper of general circulation in the locality of the permit area.  The advertisement must:
(a) through (2)(b)(ii) remain the same.
AUTH:  82-4-204, 82-4-205, MCA
IMP:  82-4-223, 82-4-232, 82-4-235, MCA
REASON:  The proposed amendment to ARM 17.24.1212 reflects changes in 82-4-232(6)(c) as amended by HB 370 during the 2005 Legislative session.  (See Chapter 127, Laws of 2005.)  The current language in (1) requires that the applicant advertise the public notice for the bond release at the time of the application.  However, 82-4-232, MCA, was amended during that session to require the department to review a proposed public notice for form and content prior to advertisement, thus the proposed public notice is not available for circulation in the newspaper until the department approves it.  The proposed amendment is requested to reconcile the timing of the advertisement with the timing required in 82-4-323(6)(c), MCA.
17.24.1113  BONDING:  INSPECTION OF SITE AND PUBLIC HEARING OR INFORMAL CONFERENCE  (1)  Within 30 days, weather permitting, of receiving a complete bond release request determining that a bond release application is administratively complete pursuant to 82-4-232(6)(a)(h), MCA, the department shall, weather permitting, inspect and evaluate the reclamation work.  The surface owner, agent, or lessee shall be given notice of such inspection and may participate with the department in making the bond release inspection.  Upon request of any person described in ARM 17.24.1112(2), the department may arrange with the permittee to allow that person access to the permit area for the purpose of gathering information relevant to the proceeding.
(2)  The department shall schedule hold a public hearing if written objections are filed and a public hearing is requested within 30 days of the last publication of notice of application.  The public hearing must be held in the locality of the permit area for which bond release is sought or in Helena, at the option of the objector.
(a)  Notice of a public hearing must be published in the Montana Administrative Register at least two weeks before the date of hearing and in a newspaper of general circulation in the locality of the hearing at least two weeks for two consecutive weeks before the date of the hearing.
(b)  The public hearing must be held within 30 days from the date of the notice hearing request.
(c) through (e) remain the same.
AUTH:  82-4-204, 82-4-205, MCA
IMP:  82-4-223, 82-4-232, 82-4-235, MCA
REASON:  The proposed amendment to ARM 17.24.1113(1) reflects changes in 82-4-232, MCA.  In 2005, the Legislature amended what is now 82-4-232(6)(h), MCA, by changing the beginning of the 30-day period for the department to complete the bond release inspection from the date the application is received to the date the department determines the application is administratively complete, weather permitting.  (See Chapter 127, Laws of 2005.)  The proposed language reflects those changes to the statute.
The proposed amendments to (2) also reflect amendments to 82-4-232, MCA, by the 2005 Legislature in the same bill.  The first proposed change in (2) clarifies, but does not change the meaning of, the rule.  The second change in (2) allows the hearing to be held in Helena at the option of the objector, and brings the rule into compliance with 82-4-232(6)(d).
The proposed amendment to (2)(a) is necessary to provide clarification for the duration of the public notice of the hearing.  The current language requires the notice to be published at least two weeks before the hearing, but it does not require two consecutive weeks as specified in 82-4-232(6)(d), MCA.  The proposed language adds the "consecutive" clarification.
The proposed amendment to (2)(b) is necessary to correct the beginning point of the 30-day period during which the public hearing must be held.  The current language begins the 30-day period from the date of the notice.  ARM 17.24.1113 refers to two separate notices, which adds a level of confusion.  Additionally, 82-4-232(6)(d), MCA, states that the public hearing must be held within 30 days of the request for hearing.
17.24.1114  BONDING:  DEPARTMENTAL REVIEW AND DECISION ON BOND RELEASE APPLICATION  (1) through (1)(c) remain the same.
(2)  If no informal conference or public hearing has been held under ARM 17.24.1113, the department shall notify the permittee, the surety, or other persons with an interest in the bond collateral who have requested notification of actions pursuant to the bond at the time the collateral was offered, and persons who filed objections of its decision to release or not to release all or part of the performance bond or deposit.  This decision must be submitted, in writing, within 60 days of filing of the bond release application from the date of the inspection.
(3) and (4) remain the same.
(5)  The department may not release the bond until it has given the town or city municipality or county in which the permit area is located, at least 30 days notice of the release by certified mail.  If the permit area is not located in a town or city, notice must be sent to the county in which the permit area is located.
AUTH:  82-4-204, 82-4-205, MCA
IMP:  82-4-223, 82-4-232, 82-4-235, MCA
REASON:  The proposed amendment to ARM 17.24.1214(2) would bring (2) into compliance with 82-4-232(6), MCA, as amended by the 2005 Legislature.  The 2005 Legislature changed the deadline for the department's decision from 60 days after the request for bond release was filed to 60 days after the date of the inspection.  (See Chapter 127, Laws of 2005.)
The proposed amendment to (5) would bring (5) into compliance with 82-4-232(6), MCA, as well.  The 2005 Legislature in that same bill amended 82-4-232(6)(m), MCA, by adding the phrase "or county" to the required parties to be notified by the department of the bond release application.  The proposed amendment removes the phrase "town or city" and replaces it with the phrase "municipality or county" in order to be consistent with the corresponding statute.  Additionally, the last sentence in (5) is proposed to be deleted as it becomes redundant to include the county if the proposed modification to include "or county" is approved.
17.24.1116  BONDING:  CRITERIA AND SCHEDULE FOR RELEASE OF BOND  (1) through (5) remain the same.
(6)  For the purposes of these rules, reclamation phases are as follows:
(a) through (b)(vi) remain the same.
(c)  reclamation phase III is deemed to have been completed when:
(i) through (iv) remain the same.
(v)  the lands meet the special conditions provided in 82-4-235(3)(4)(a), MCA;
(d) through (8) remain the same.
IMP:  82-4-223, 82-4-232, 82-4-235, MCA
REASON:  The proposed amendment to ARM 17.24.1116 corrects a reference cite that reflects the enactment of HB 278 by the 2009 Legislature adding 82-4-235(3), MCA, and renumbering the formerly described 82-4-235(3) to (4).
17.24.1201  FREQUENCY AND METHODS OF INSPECTIONS  (1) remains the same.
(2)  A partial inspection is an on-site or aerial observation of the operator's compliance with some of the mining or prospecting permit conditions and requirements.  Aerial inspections shall be conducted in a manner and at a time that reasonably ensure the identification and documentation of conditions at each operation in relation to permit conditions and requirements.  Any potential violation observed during an aerial inspection shall be investigated on site within three days, provided that any indication of a violation, condition, or practice that creates an imminent danger to the health or safety of the public or is causing or can reasonably be expected to cause significant and imminent environmental harm to land, air, or water resources shall be investigated on site immediately.  On-site investigations of potential violations observed during an aerial inspection must not be considered to be an additional partial or complete inspection for the purposes of ARM 17.24.1201.
(3) and (4) remain the same.
IMP:  82-4-205, 82-4-235, 82-4-237, 82-4-251, MCA
REASON:  The proposed amendment to ARM 17.24.1201 is necessary for Montana's permanent program to remain as stringent as the corresponding federal requirements located at 30 CFR 840.11(d)(2).  The proposed addition of this language provides clear requirements for further on-site investigation, to be conducted by the department, upon identification of a potential violation.  Without the addition of this language, Montana's program is less stringent than the federal program.
4.  The proposed new rules provide as follows:
NEW RULE I  THE DEPARTMENT'S OBLIGATIONS REGARDING THE APPLICANT/VIOLATOR SYSTEM  (1)  The department shall enter into the applicant/violator system (AVS) the following data:
(a)  information that the applicant is required to submit under ARM 17.24.303(1)(f), (g), and (h);
(b)  information submitted by the applicant pursuant to ARM 17.24.303(1)(l) and (m) [amended as (1)(m) and (n) above] pertaining to violations which are unabated or uncorrected after the abatement or correction period has expired; and
(c)  any additional information of the kind described in (1)(a) or (b) submitted or discovered during the department's permit application review, upon verification by the department of that additional information.
(2)  If, at any time, the department discovers that any person owns or controls an operation with an unabated or uncorrected violation, the department shall take appropriate enforcement action.  The department shall enter the results of each enforcement action, including administrative and judicial decisions, into AVS.
(3)  The information provided to or obtained by the department must be entered into AVS pursuant to the following table:
The department shall enter into AVS all:
Within 30 days after:
the permit is issued or subsequent changes are made
2.  unabated or uncorrected violations
the abatement or correction period for a violation expires
3.  changes to information initially required to be provided by an applicant under ARM 17.24.303(1)(g)(i) through (iv) and (h)
receiving notice of a change
4.  changes in violation status
abatement, correction, or termination of a violation, or a decision from an administrative or judicial tribunal
5.  additional information submitted or discovered during the department's permit application, permit renewal application, or permit amendment application review
verification by the department of the additional information
(4)  If, at any time, the department identifies a person who owns or controls an entire coal mining operation or any relevant portion or aspect of a coal mining operation, the department shall issue a written preliminary finding to the person and the applicant or permittee describing the nature and extent of ownership or control.  The preliminary finding must be based on evidence sufficient to establish a prima facie case of ownership or control.
(5)  A person subject to a preliminary finding under (4) has 30 days in which to submit to the department information tending to demonstrate that person's lack of ownership and control.  If, after reviewing the submitted information, the department determines the person is not an owner or controller, the department shall serve written notice of that determination on that person.  If, after reviewing the submitted information, the department determines the person is an owner or controller or if no information is submitted during the 30-day period, the department shall issue its finding in writing and shall enter that finding into AVS.
(6)  A person identified as an owner or controller under (5) may challenge the finding using the provisions of [NEW RULE III].
(7)  Whenever a court of competent jurisdiction enters a judgment against a person under 82-4-254(4) or convicts a person of under 82-4-254(6) or (7), MCA, the department shall update the AVS.
REASON:  The reason for adopting New Rule I is the same as that stated in the first paragraph for the proposed amendment to ARM 17.24.303.
NEW RULE II  DEPARTMENT ELIGIBILITY REVIEW  (1)  In making a permit eligibility determination, the department shall rely upon the information supplied by the applicant pursuant to [NEW RULE I(1)], information from AVS, and any other available information to review.  The department shall review:
(a)  the organizational structure and ownership or control relationships of the applicant and the operator;
(b)  the permit histories of applicant and the operator;
(c)  the previous mining experience of the applicant and the operator; and
(d)  the history of compliance with Surface Mining Control and Reclamation Act  and the Montana Strip and Underground Mine Reclamation Act (the Act), implementing rules, any permits issued thereunder, and any other applicable air or water quality laws, by the applicant, the operator, operations the applicant owns or controls, and operations the operator owns or controls.
(2)  If the applicant and the operator have no previous mining experience, the department may conduct an additional review to determine if someone else with mining experience controls the mining operation.
(3)  Based on the reviews pursuant to (1) and (2), the department shall determine whether the applicant is eligible for a permit under (4).
(4)  Except as provided in ARM 17.24.405(6)(h), the applicant is not eligible for a permit if approval is prohibited by 82-5-227(11) or (12), MCA.
(5)  After approving a permit under ARM 17.24.405, the department may not issue the permit until:
(a)  the applicant updates and certifies all information required by ARM 17.24.303(1)(g), (h), and (i) and [NEW RULE I(1)]; and
(b)  the department obtains and reviews an updated compliance history report from AVS to determine if there are any unabated or uncorrected violations which affect permit eligibility under (5) and (6).  The department shall request this report no more than five business days before issuance under ARM 17.24.405.
(6)  If the applicant is ineligible for a permit under this rule, the department shall send written notification of the decision to the applicant, stating the reason for the finding of ineligibility and giving notice of the applicant's right to challenge the decision under [NEW RULE III].
REASON:  The department regulates coal mining under a delegation of authority by the federal Office of Surface Mining (OSM).  That delegation is subject to the department adopting rules consistent with the federal regulations that govern surface and underground coal mining.  The OSM maintains an automated information system of applicant, permittee, operator, violation, and related data to assist in implementing the Surface Mining Control and Reclamation Act of 1977.  That is known as the applicant/violator system, or AVS.  Previously, the department's obligations to input data and utilize data from the AVS was regulated by a memorandum of understanding between the OSM and the department.  However, in 2009, the OSM directed the department to adopt rules to govern the state's obligations related to the AVS.  This proposed New Rule II is intended to comply with the OSM's directive.  It is necessary to ensure the department submits to the AVS, has access to, and reviews, all information necessary to ensure that permits are not issued to persons or entities that are not entitled to obtain them.
NEW RULE III  QUESTIONS ABOUT AND CHALLENGES TO OWNERSHIP OR CONTROL FINDINGS  (1)  At any time a person listed in AVS as an owner or controller of a surface coal mining operation in Montana may request an informal explanation from the department as to the reason that person is shown in AVS in an ownership or control capacity.  Within 14 days of the request, the department shall provide a response describing why the person is listed in AVS.
(2)  An applicant or permittee affected by an ownership or control listing or finding, a person listed in a permit application or AVS as an owner or controller of an entire surface coal mining operation or any portion or aspect thereof, or person found to be an owner or controller of an entire surface coal mining operation or any portion or aspect thereof, may challenge an ownership or control listing or finding to:
(a)  the board if the challenge concerns a pending permit application; or
(b)  the department if the challenge concerns the challenger's ownership or control of a surface coal mining operation, and the challenger is not currently seeking a permit.
(3)  Challenges to an ownership or control listing or finding may be made as follows:
(a)  when the challenge is made in connection with the approval or denial of a permit application, permit amendment application, or permit renewal application, by submitting a request for a hearing to the board pursuant to 82-4-206, MCA; or
(b)  when the challenge is not made in connection with the approval or denial of a permit application, permit amendment application, or permit renewal application, by submitting to the department a challenge, including written explanation of the basis for the challenge, along with evidence and explanatory materials.
(4)  A person who challenges a finding of ownership or control under [NEW RULE I(5)] or a listing or finding of ownership or control bears the burden of proving by a preponderance of the evidence that the person either:
(a)  does not own or control the entire surface coal mining operation or relevant portion or aspect thereof; or
(b)  did not own or control the entire surface coal mining operation or relevant portion or aspect thereof during the relevant time period.
(5)  In meeting that burden of proof, the challenger must present reliable, credible, and substantial evidence and any explanatory materials to the board or department.  The materials presented in connection with the challenge must become part of the permit file, an investigation file, or another public file.  The challenger may request that information be kept confidential.  The board or department shall determine whether the information may be kept confidential under Montana law.  If the board or department determines that the information may not be kept confidential, the board or department shall notify the challenger and shall hold the documents confidential for ten days in order to allow the challenger to obtain a court order requiring the board or department to keep the documents confidential.
(6)  Materials that may be submitted in response to the requirements of (8) include, but are not limited to:
(a)  notarized affidavits containing specific facts concerning the specific duties the challenger performed for the relevant operation, the beginning and ending dates of the challenger's ownership or control of the operation, and the nature and details of any transaction creating or severing the challenger's ownership or control of the operation;
(b)  certified copies of corporate minutes, stock ledgers, contracts, purchase and sale agreements, leases, correspondence, or other relevant company records;
(c)  certified copies of documents filed with or issued by any state, municipal, or federal governmental agency; and
(d)  an opinion of counsel, when supported by:
(ii)  a statement by counsel that he or she is qualified to render the opinion; and
(iii)  a statement that counsel has personally and diligently investigated the facts of the matter.
(7)  When the department receives a written challenge to an ownership or control listing pursuant to (2)(b), the department shall review and investigate the evidence and explanatory materials submitted with the challenge and any other reasonably available information that has bearing on the challenge, and shall issue a written decision within 60 days of receipt of the challenge, stating whether the department finds that the person who submitted the challenge owns or controls the relevant surface coal mining operation, or owned or controlled the operation during the relevant time period.  The department shall send its decision to the challenger by certified mail or by any means consistent with the rules governing service of a summons and complaint under the Montana Rules of Civil Procedure.  Service of the decision is complete upon delivery and is not incomplete if the challenger refuses to accept delivery.
(8)  The department shall post all decisions made under this rule on AVS.
(9)  Following the department's written decision or any decision by the board or a court, the department shall review the information in AVS to determine if it is consistent with the decision.  If it is not, the department shall promptly revise the information in AVS to reflect the decision.
REASON:  The department regulates coal mining under a delegation of authority by the federal Office of Surface Mining (OSM).  That delegation is subject to the department adopting rules consistent with the federal regulations that govern surface and underground coal mining.  The OSM maintains an automated information system of applicant, permittee, operator, violation, and related data to assist in implementing the Surface Mining Control and Reclamation Act of 1977.  That is known as the applicant/violator system, or AVS.  Previously, the department's obligations to input data and utilize data from the AVS was regulated by a memorandum of understanding between the OSM and the department.  However, in 2009, the OSM directed the department to adopt rules to govern the state's obligations related to the AVS.  This proposed New Rule II is intended to comply with the OSM's directive.  Due process requires that persons affected by department decisions have a process to challenge those decisions.  New Rule III provides such a process.
NEW RULE IV  INFORMATION REQUIREMENTS FOR PERMITTEES
(1)  Except as provided in (2), within 30 days after the issuance of a cessation order under 82-4-251, MCA, the permittee of the operation subject to the cessation order shall provide or update the following information:
(a)  a statement indicating whether the permittee and any operator are corporations, partnerships, associations, sole proprietorships, or other business entities;
(b)  taxpayer identification numbers for the permittee and any operator;
(c)  the name, address, and telephone number for:
(ii)  the permittee's resident agent who will accept service of process; and
(d)  each business entity in the applicant's and any operator's organizational structures, up to and including the ultimate parent entity of the applicant and any operator and, for every such business entity, the required information for every president, chief executive officer, and director (or persons in similar positions), and every person who owns, of record, ten percent or more of the entity;
(e)  for the permittee and any operator, the information required by (f) of this section for every:
(v)  person performing a function similar to a director; and
(vi)  person who owns, of record, ten percent or more of the permittee or operator; and
(f)  the following information for each person listed in (e):
(i)  the person's name, address, and telephone number;
(ii)  the person's position title and relationship to the permittee or operator, including percentage of ownership and location in the organizational structure; and
(iii)  the date the person began functioning in that position.
(2)  The permittee is not required to submit the information required in (1) if a court of competent jurisdiction grants a stay of the cessation order and the stay remains in effect.
(3)  Within 60 days of any addition, departure, or change in position of any person identified in (1)(e), the permittee must notify the department in writing of the addition, departure, or change.  The notice must include:
(a)  the information required in (1)(f); and
(b)  the date of any departure.
REASON:  The department regulates coal mining under a delegation of authority by the federal Office of Surface Mining.  That delegation is subject to the department adopting rules consistent with the federal regulations that govern surface and underground coal mining.  New Rule IV provides requirements that are the equivalent of 30 CFR 774.12.
NEW RULE V  PERMIT REQUIREMENT - SHORT FORM  (1)  This rule applies to a prospecting operation that is outside an area designated unsuitable and conducted to determine the location, quality, or quantity of a coal deposit pursuant to 82-4-226(7), MCA, that does not remove more than 250 tons of coal and that does not substantially disturb the natural land surface.
(2)  A person who conducts a coal prospecting operation pursuant to (1) must, before conducting the prospecting operations, file with the department a prospecting permit application on a form provided by the department.  Prospecting operations must not be conducted until the department has reviewed the application pursuant to 82-1-226(8), MCA, and issued a permit.
(3)  All provisions of this subchapter, except ARM 17.24.1001, 17.24.1006(2), (3)(b) and (c), 17.24.1007, 17.24.1009, 17.24.1014, and 17.24.1018 apply to a prospecting operation permitted pursuant to 82-4-226(8), MCA.
REASON:  Senate Bill 286, passed by the 2011 Legislature, amended 82-4-226, MCA, and modified certain coal prospecting procedures.  (See Chapter 407, Laws of 2011.)  This rule is needed to ensure that the new coal prospecting permit provisions in 82-4-226(8), MCA, are reflected in the rules.  In (3), ARM 17.24.1001 is listed because 82-4-226(8) MCA, contains the application requirements for these permits.  ARM 17.24.1007, 17.24.1009, and portions of 17.24.1006 are listed because those provisions address substantial disturbance of the land surface, which is not allowed under this type of permit.  ARM 17.24.1014 is listed because that rule applies to test pits, which cannot be permitted under 82-4-226(8), MCA.  ARM 17.24.1018 is listed because it applies to statements of intent to prospect.
5.  The rule proposed to be repealed is as follows:
17.24.763  COAL CONSERVATION  (AUTH:  82-4-204, MCA; IMP:  82-4-231, MCA), located at page 17-2180, Administrative Rules of Montana.  The proposed repeal of ARM 17.24.763 is necessary to remove a repetitive rule.  ARM 17.24.523(2) contains nearly identical language as ARM 17.24.763.  Repeal of this rule will provide a single location in the ARM that describes the requirements for coal conservation.
6.  Concerned persons may submit their data, views, or arguments, either orally or in writing, at the hearing.  Written data, views, or arguments may also be submitted to Elois Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana 59620-0901; faxed to (406) 444-4386; or e-mailed to ejohnson@mt.gov, no later than 5:00 p.m., January 23, 2012.  To be guaranteed consideration, mailed comments must be postmarked on or before that date.
7.  Katherine Orr, attorney for the board, or another attorney for the Agency Legal Services Bureau, has been designated to preside over and conduct the hearing.
8.  The board 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 that the person wishes to receive notices regarding:  air quality; hazardous waste/waste oil; asbestos control; water/wastewater treatment plant operator certification; solid waste; junk vehicles; infectious waste; public water supply; public sewage systems regulation; hard rock (metal) mine reclamation; major facility siting; opencut mine reclamation; strip mine reclamation; subdivisions; renewable energy grants/loans; wastewater treatment or safe drinking water revolving grants and loans; water quality; CECRA; underground/above ground storage tanks; MEPA; or general procedural rules other than MEPA.  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 Elois Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Ave., P.O. Box 200901, Helena, Montana 59620-0901, faxed to the office at (406) 444-4386, e-mailed to Elois Johnson at ejohnson@mt.gov, or may be made by completing a request form at any rules hearing held by the board.
9.  The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled.  The sponsors were notified by letter sent by U.S. mail dated January 22, 2010.
Reviewed by:                                                BOARD OF ENVIRONMENTAL REVIEW
/s/ John F. North                                  BY:  /s/ Joseph W. Russell
JOHN F. NORTH                                         JOSEPH W. RUSSELL, M.P.H.,
Certified to the Secretary of State, December 12, 2011.
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