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1 SENATE BILL NO. 365
2 INTRODUCED BY B. USHER, V. RICCI, W. GALT, T. MANZELLA, D. ZOLNIKOV, S. GIST, G. LAMMERS, S.
3 VINTON, R. MINER, J. SCHILLINGER, G. OBLANDER, J. FITZPATRICK, G. KMETZ, G. PARRY, K.
4 BOGNER, T. TEZAK
5
6 A BILL FOR AN ACT ENTITLED: “AN ACT REVISING CAPACITY REQUIREMENTS FOR SILTATION
7 STRUCTURES AT A STRIP MINE OR UNDERGROUND MINE; PROVIDING RULEMAKING AUTHORITY;
8 AMENDING SECTION 82-4-231, MCA; PROVIDING FOR CONTINGENT VOIDNESS; AND PROVIDING AN
9 IMMEDIATE EFFECTIVE DATE.”
10
11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
12
13 Section 82-4-231, MCA, is amended to read:
14 "82-4-231. (1) As rapidly, completely, and
15 effectively as the most modern technology and the most advanced state of the art will allow, each operator
16 granted a permit under this part shall reclaim and revegetate the land affected by the operation, except that
17 underground tunnels, shafts, or other subsurface excavations need not be revegetated. Under the provisions of
18 this part and rules adopted by the department, an operator shall prepare and carry out a method of operation, a
19 plan of grading, backfilling, highwall reduction, subsidence stabilization, water control, and topsoiling and a
20 reclamation plan for the area of land affected by the operation. In developing a method of operation and plans
21 of grading, backfilling, highwall reduction, subsidence stabilization, water control, topsoiling, and reclamation, all
22 measures must be taken to eliminate damages to landowners and members of the public, their real and
23 personal property, public roads, streams, and all other public property from soil erosion, subsidence, landslides,
24 water pollution, and hazards dangerous to life and property.
25 (2) The reclamation plan must set forth in detail the manner in which the applicant intends to
26 comply with 82-4-232 through 82-4-234 and this section and the steps to be taken to comply with applicable air
27 and water quality laws and rules and any applicable health and safety standards.
28 (3) The application for a permit or major revision of a permit, which must contain the reclamation ****
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1 plan, must be submitted to the department.
2 (4) The department shall determine whether the application is administratively complete. An
3 application is administratively complete if it contains information addressing each application requirement in 82-
4 4-222 and the rules implementing that section and all information necessary to initiate processing and public
5 review. The department shall notify the applicant in writing of its determination no later than 90 days after
6 submittal of the application. If the department determines that the application is not administratively complete, it
7 shall specify in the notice those items that the application must address. The application is presumed
8 administratively complete as to those requirements not specified in the notice.
9 (5) If the department determines that an environmental impact statement on the application is
10 required, it shall notify the applicant in writing at the same time it gives the applicant notice pursuant to
11 subsection (4).
12 (6) After the applicant receives notice that the application is administratively complete, the
13 applicant shall publish notice of filing of the application once a week for 4 consecutive weeks in a newspaper of
14 general circulation in the locality of the proposed operation. The department shall notify various local
15 governmental bodies, planning agencies, sewage and water treatment authorities, and water companies in the
16 locality in which the proposed mining will take place of the application and provide a reasonable time for them
17 to submit written comments. Any person having an interest that is or may be adversely affected or the officer or
18 head of any federal, state, or local governmental agency or authority may file written objections to the proposed
19 initial or revised application for permit or major revision within 30 days of the applicant's published notice. If
20 written objections are filed and an objector requests an informal conference, the department shall hold an
21 informal conference in the locality of the proposed operation within 30 days of receipt of the request. The
22 department shall notify the applicant and all parties to the informal conference of its decision and the reasons
23 for its decision within 60 days of the informal conference. The department may arrange with the applicant upon
24 request by any party to the administrative proceeding for access to the proposed mining area for the purpose of
25 gathering information relevant to the proceeding.
26 (7) The filing of written objections or a request for an informal conference may not preclude the
27 department from proceeding with its review of the application as specified in subsection (8).
28 (8) (a) The department shall review each administratively complete application and determine the ****
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1 acceptability of the application. During the review, the department may propose modifications to the application
2 or delete areas from the application in accordance with the requirements of 82-4-227. A complete application is
3 considered acceptable when the application is in compliance with all of the applicable requirements of this part
4 and the regulatory program pursuant to this part.
5 (b) If the applicant significantly modifies the application after the application has been determined
6 administratively complete in accordance with subsection (4), the department shall under this section either deny
7 the application or conduct a new review, including an administrative completeness determination, public notice,
8 and objection period.
9 (c) If an environmental impact statement is determined to be necessary prior to making a permit
10 decision, the department shall complete and publish the final environmental impact statement at least 15 days
11 prior to the date of issuance of the written findings pursuant to subsection (8)(f).
12 (d) Except as provided in 75-1-205(4) and 75-1-208(4)(b), within 120 days after it determines that
13 an application is administratively complete, the department shall notify the applicant in writing whether the
14 application is or is not acceptable. If the application is not acceptable, the department shall set forth the reasons
15 why it is not acceptable, and it may propose modifications, delete areas, or reject the entire application. All
16 items not specified as unacceptable in the department's notification are presumed to be acceptable. Except as
17 provided in 75-1-208(4)(b), if the applicant revises the application in response to a notice of unacceptability, the
18 department shall review the revised application and notify the applicant in writing within 120 days of the date of
19 receipt whether the revised application is acceptable. If the revision constitutes a significant modification under
20 subsection (8)(b), the department shall conduct a new review, beginning with an administrative completeness
21 determination.
22 (e) When the application is determined to be acceptable, the department shall publish notice of its
23 determination once a week for 2 consecutive weeks in a newspaper of general circulation in the locality of the
24 proposed operation. Any person having an interest that is or may be adversely affected may file a written
25 objection to the determination within 10 days of the department's last published notice. If a written objection is
26 filed and an objector requests an informal conference, the department shall hold an informal conference in the
27 locality of the proposed operation within 20 days of receipt of the request. The department shall notify the
28 applicant and all parties to the informal conference of its decision and the reasons for the decision within 10 ****
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1 days of the informal conference.
2 (f) Except as provided in 75-1-205(4) and 75-1-208(4)(b), the department shall prepare written
3 findings granting or denying the permit or major revision application in whole or in part not later than 45 days
4 from the date the application is determined acceptable. However, if lands subject to the federal lands program
5 are included in the application for permit or major revision, the department shall prepare and submit written
6 findings to the federal regulatory authority. If the department's decision is to grant the permit, the department
7 shall issue the permit on the date of its written finding or, if any federal concurrence is necessary, on the date
8 when the concurrence is obtained. If the application is denied, specific reasons for the denial must be set forth
9 in the written notification to the applicant.
10 (g) If the department fails to act within the times specified in this subsection (8), it shall immediately
11 notify the board in writing of its failure to comply and the reasons for the failure to comply.
12 (9) The applicant, a landowner, or any person with an interest that is or may be adversely affected
13 by the department's permit decision may within 30 days of that decision submit a written notice requesting a
14 hearing. The notice must contain the grounds upon which the requester contends that the decision is in error.
15 The hearing must be started within 30 days of the request. For purposes of a hearing, the board or its hearings
16 officer may order site inspections of the area pertinent to the application. The board shall within 20 days of the
17 hearing notify the person who requested the hearing, by certified mail, and all other persons, by regular mail, of
18 the findings and decisions. A person who presided at the informal conference may not preside at the hearing or
19 participate in the decision.
20 (10) In addition to the method of operation, grading, backfilling, highwall reduction, subsidence
21 stabilization, water control, topsoiling, and reclamation requirements of this part and rules adopted under this
22 part, the operator, consistent with the directives of subsection (1), shall:
23 (a) bury under adequate fill all toxic materials, shale, mineral, or any other material determined by
24 the department to be acid-producing, toxic, undesirable, or creating a hazard;
25 (b) as directed by rules, seal off tunnels, shafts, or other openings or any breakthrough of water
26 creating a hazard;
27 (c) impound, drain, or treat all runoff or underground mine waters so as to reduce soil erosion,
28 damage to grazing and agricultural lands, and pollution of surface and subsurface waters; ****
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1 (d) remove or bury all metal, lumber, and other refuse resulting from the operation;
2 (e) use explosives in connection with the operation only in accordance with department regulations
3 designed to minimize noise, damage to adjacent lands, and water pollution and ensure public safety and for
4 other purposes;
5 (f) adopt measures to prevent land subsidence unless the department approves a plan for
6 inducing subsidence into an abandoned operation in a predictable and controlled manner, with measures for
7 grading, topsoiling, and revegetating the subsided land surface. In order for a controlled subsidence plan to be
8 approved, the applicant is required to show that subsidence will not cause a direct or indirect hazard to any
9 public or private buildings, roads, facilities, or use areas, constitute a hazard to human life or health or to
10 domestic livestock or a viable agricultural operation, or violate any other restrictions the department may
11 consider necessary.
12 (g) stockpile and protect from erosion all mining and processing wastes until these wastes can be
13 disposed of according to the provisions of this part;
14 (h) deposit as much stockpiled waste material as possible back into the mine voids upon
15 abandonment in a manner that will prevent or minimize land subsidence. The remaining waste material must be
16 disposed of as provided by this part and the rules of the department.
17 (i) seal all portals, entryways, drifts, shafts, or other openings between the surface and
18 underground mine workings when no longer needed;
19 (j) to the extent possible using the best technology currently available, minimize disturbances and
20 adverse impacts of the operation on fish, wildlife, and related environmental values and achieve enhancement
21 of those resources when practicable;
22 (k) minimize the disturbances to the prevailing hydrologic balance at the mine site and in adjacent
23 areas and to the quality and quantity of water in surface water and ground water systems both during and after
24 strip- or underground-coal-mining operations and during reclamation by:
25 (i) avoiding acid or other toxic mine drainage by measures including but not limited to:
26 (A) preventing or removing water from contact with toxic-producing deposits;
27 (B) treating drainage to reduce toxic content that adversely affects downstream water upon being
28 released to watercourses; ****
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1 (C) casing, sealing, or otherwise managing boreholes, shafts, and wells and keeping acid or other
2 toxic drainage from entering ground and surface waters;
3 (ii) (A) conducting strip- or underground-mining operations so as to prevent, to the extent possible
4 using the best technology currently available, additional contributions of suspended solids to streamflow or
5 runoff outside the permit area, but the contributions may not be in excess of requirements set by applicable
6 state or federal law;
7 (B) constructing any siltation structures pursuant to subsection (10)(k)(ii)(A) prior to
8 commencement of strip- or underground-mining operations, with the structures to be certified by a qualified
9 registered engineer and to be constructed as designed and as approved in the reclamation plan;. The siltation
10 structures must each be constructed with the design capacity specified in administrative rule to detain the water
11 inflow or runoff entering the pond from an anticipated precipitation event plus the average inflow from the
12 underground mine, if applicable. Operation of a siltation structure with this design capacity requirement is
13 compliant with this part even if the pond capacity is exceeded as a result of water inflow or runoff entering the
14 pond from a multistorm event consisting of a series of small, consecutive storm events that cumulatively exceed
15 the anticipated precipitation event.
16 (iii) cleaning out and removing temporary or large settling ponds or other siltation structures from
17 drainways after disturbed areas are revegetated and stabilized and depositing the silt and debris at a site and in
18 a manner approved by the department;
19 (iv) restoring recharge capacity of the mined area to approximate premining conditions;
20 (v) avoiding channel deepening or enlargement in operations that requires the discharge of water
21 from mines;
22 (vi) preserving throughout the mining and reclamation process the essential hydrologic functions of
23 alluvial valley floors in the arid and semiarid areas of the country;
24 (vii) designing and constructing reclaimed channels of intermittent streams and perennial streams
25 to ensure long-term stability; and
26 (viii) any other actions that the department may prescribe;
27 (l) conduct strip- or underground-mine operations in accordance with the approved coal
28 conservation plan; ****
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1 (m) stabilize and protect all surface areas, including spoil piles, to effectively control air pollution;
2 (n) seal all auger holes with an impervious and noncombustible material in order to prevent
3 drainage except when the department determines that the resulting impoundment of water in the auger holes
4 may create a hazard to the environment or the public health and safety;
5 (o) develop contingency plans to prevent sustained combustion;
6 (p) refrain from construction of roads or other access ways up a streambed or drainage channel or
7 in proximity to the channel so as to seriously alter the normal flow of water;
8 (q) meet other criteria that are necessary to achieve reclamation in accordance with the purposes
9 of this part, taking into consideration the physical, climatological, and other characteristics of the site;
10 (r) with regard to underground mines, eliminate fire hazards and otherwise eliminate conditions
11 that constitute a hazard to health and safety of the public;
12 (s) locate openings for all new drift mines working acid-producing or iron-producing coal seams in
13 a manner that prevents a gravity discharge of water from the mine.
14 (11) An operator may not throw, dump, pile, or permit the throwing, dumping, or piling or otherwise
15 placing of any overburden, stones, rocks, mineral, earth, soil, dirt, debris, trees, wood, logs, or any other
16 materials or substances of any kind or nature beyond or outside of the area of land that is under permit and for
17 which a bond has been posted under 82-4-223 or place the materials described in this section in a way that
18 normal erosion or slides brought about by natural physical causes will permit the materials to go beyond or
19 outside of that area of land. An operator shall conduct the strip- or underground-mining operation in a manner
20 that protects areas outside the permit area."
21
22 NEW SECTION. Section 2. If a part of [this act] is invalid, all valid parts that are
23 severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications,
24 the part remains in effect in all valid applications that are severable from the invalid applications.
25
26 NEW SECTION. Section 3. (1) If any provision of [this act] is disapproved by
27 the United States secretary of the interior pursuant to 30 CFR 732, then that portion of [this act] is void.
28 (2) Within 15 days of the effective date of the disapproval under subsection (1), the department of ****
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1 environmental quality shall notify the code commissioner, certifying that the disapproval under subsection (1)
2 has occurred.
3
4 NEW SECTION. Section 4. [This act] is effective on passage and approval.
5 - END -