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| Montana Administrative Register Notice 17-432E | No. 21 11/03/2023 | |
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BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On February 9, 2024, the Department of Environmental Quality (department) proposes to amend the above-stated rules. The department will be submitting a total of five notices for this rulemaking under MAR Notice No. 17-432; this is the fifth of the five.
2. The Department of Environmental Quality will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Environmental Quality no later than 5:00 p.m. on November 27, 2023, to advise us of the nature of the accommodation that you need. Please contact the Department of Environmental Quality at P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-1388; fax (406) 444-4386; or e-mail DEQMAR17-432rulemaking@mt.gov.
3. General Reason Statement: During the 2021 legislative session, the legislature passed Senate Bill 233. Senate Bill 233 reassigned and transferred the rulemaking duties and powers of the Board of Environmental Review to the department. In addition, Senate Bill 233 repealed 75-6-103, 75-10- 106, 82-4-111, and 82-4-204, MCA. Through this rulemaking, the department will be implementing the 2021 changes to rulemaking authority by striking "board" and changing it to "department." The department will also update the citations to the MCA sections that have been repealed by Senate Bill 233. The department is making these changes to implement the 2021 statute and to clarify the change of authority to make it easier for the general public and the regulated community to determine the appropriate process and entity for future rulemakings.
4. The department proposes to amend the following rules, new matter underlined, deleted matter interlined. Please refer to the General Reason Statement above.
17.24.1112 BONDING: ADVERTISEMENT OF RELEASE APPLICATIONS AND RECEIPT OF OBJECTIONS (1) and (2) remain the same.
IMP: 82-4-223, 82-4-232, 82-4-235, MCA
17.24.1113 BONDING: INSPECTION OF SITE AND PUBLIC HEARING OR INFORMAL CONFERENCE (1) and (2) remain the same.
IMP: 82-4-223, 82-4-232, 82-4-235, MCA
17.24.1114 BONDING: DEPARTMENTAL REVIEW AND DECISION ON BOND RELEASE APPLICATION (1) through (5) remain the same.
IMP: 82-4-223, 82-4-232, 82-4-235, MCA
17.24.1115 BONDING: HEARING ON BOND RELEASE DECISION (1) and (2) remain the same.
IMP: 82-4-223, 82-4-232, 82-4-235, MCA
17.24.1116 BONDING: CRITERIA AND SCHEDULE FOR RELEASE OF BOND (1) though (8) remain the same.
IMP: 82-4-223, 82-4-232, 82-4-235, MCA
17.24.1117 BONDING: PROCEDURE FOR FORFEITURE In the event forfeiture of the bond is necessary, the department shall: (1) through (3) remain the same.
IMP: 82-4-223, 82-4-232, 82-4-235, MCA
17.24.1118 BONDING: EFFECT OF FORFEITURE (1) through (3) remain the same.
IMP: 82-4-223, 82-4-232, 82-4-235, MCA
17.24.1119 BONDING: CRITERIA FOR FORFEITURE (1) and (2) remain the same.
IMP: 82-4-223, 82-4-232, 82-4-235, MCA
17.24.1120 BONDING: DETERMINATION OF FORFEITURE AMOUNT The department shall either: (1) and (2) remain the same.
IMP: 82-4-223, 82-4-232, 82-4-235, MCA
17.24.1121 BONDING: STATE AGENCIES AND POLITICAL SUBDIVISIONS (1) and (2) remain the same.
IMP: 82-4-223, MCA
17.24.1125 LIABILITY INSURANCE (1) through (3) remain the same.
IMP: 82-4-231, MCA
17.24.1129 ANNUAL REPORT (1) through (3) remain the same.
IMP: 82-4-237, MCA
17.24.1131 PROTECTION OF PARKS, HISTORIC SITES, AND OTHER LANDS (1) remains the same.
IMP: 82-4-227, MCA
17.24.1132 AREAS UPON WHICH COAL MINING IS PROHIBITED: DEFINITIONS AND STANDARD FOR MEASUREMENT OF DISTANCES (1) and (2) remain the same.
IMP: 82-4-227, MCA
17.24.1133 AREAS UPON WHICH COAL MINING IS PROHIBITED: PROCEDURES FOR DETERMINATION (1) through (4) remain the same.
IMP: 82-4-227, MCA
17.24.1134 AREAS UPON WHICH COAL MINING IS PROHIBITED: PERMISSION TO MINE NEAR PUBLIC ROAD Whenever a proposed mining operation is to be conducted within 100 feet measured horizontally to the outside right-of-way line of any public road (except where mine access roads or haul roads join such right-of-way line), the department may permit mining to occur within 100 feet of the road if: (1) through (4) remain the same.
IMP: 82-4-227, MCA
17.24.1135 AREAS UPON WHICH COAL MINING IS PROHIBITED: RELOCATION OR CLOSURE OF PUBLIC ROAD Whenever an applicant proposes to relocate or close a public road to facilitate strip or underground mining operations, the road may not be relocated or closed until: (1) through (5) remain the same.
IMP: 82-4-227, MCA
17.24.1136 AREAS UPON WHICH COAL MINING IS PROHIBITED: WAIVER TO MINE NEAR DWELLING (1) and (2) remain the same.
IMP: 82-4-227, MCA
17.24.1137 AREAS UPON WHICH COAL MINING IS PROHIBITED: CONSULTATION WITH OTHER AGENCIES (1) remains the same.
IMP: 82-4-227, MCA
17.24.1138 AREAS UPON WHICH COAL MINING IS PROHIBITED: DESIGNATION PROCESS NOT AFFECTED (1) remains the same.
17.24.1141 DESIGNATION OF LANDS UNSUITABLE: DEFINITION For purposes of 82-4-228, MCA, the following definitions apply: (1) through (4) remain the same.
IMP: 82-4-227, MCA
17.24.1142 DESIGNATION OF LANDS UNSUITABLE: EXEMPTIONS The requirements of ARM 17.24.1141update through 17.24.1148 do not apply to: (1) through (3) remain the same.
IMP: 82-4-227, MCA
17.24.1143 DESIGNATION OF LANDS UNSUITABLE: PROSPECTING ON DESIGNATED LANDS (1) remains the same.
IMP: 82-4-227, MCA
17.24.1144 DESIGNATION OF LANDS UNSUITABLE: PETITION FOR DESIGNATION OR TERMINATION OF DESIGNATION (1) through (4) remain the same.
IMP: 82-4-227, MCA
17.24.1145 DESIGNATION OF LANDS UNSUITABLE: NOTICE AND ACTION ON PETITION (1) through (4) remain the same.
IMP: 82-4-227, MCA
17.24.1146 DESIGNATION OF LANDS UNSUITABLE: HEARINGS ON PETITION (1) through (5) remain the same.
IMP: 82-4-227, MCA
17.24.1147 DESIGNATION OF LANDS UNSUITABLE: DECISION ON PETITION (1) and (2) remain the same.
IMP: 82-4-227, MCA
17.24.1148 DESIGNATION OF LANDS UNSUITABLE: DATA BASE AND INVENTORY SYSTEM (1) through (6) remain the same.
IMP: 82-4-227, MCA
17.24.1201 FREQUENCY AND METHODS OF INSPECTIONS (1) through (4) remain the same.
IMP: 82-4-205, 82-4-235, 82-4-237, 82-4-251, MCA
17.24.1202 CONSEQUENCES OF INSPECTIONS AND COMPLIANCE REVIEWS (1) through (4) remain the same.
IMP: 82-4-205, 82-4-231, 82-4-233, 82-4-235, 82-4-237, 82-4-251, 82-4-254, MCA
17.24.1206 NOTICES, ORDERS OF ABATEMENT, AND CESSATION ORDERS: ISSUANCE AND SERVICE (1) through (5) remain the same.
IMP, 82-4-251, MCA
17.24.1207 NOTICES OF NONCOMPLIANCE AND CESSATION ORDERS: INFORMAL HEARINGS (1) through (7) remain the same.
IMP: 82-4-251, MCA
17.24.1208 NOTICES OF NONCOMPLIANCE AND CESSATION ORDERS: EFFECT OF INABILITY TO COMPLY (1) remains the same.
IMP: 82-4-251, MCA
17.24.1209 NOTICES OF NONCOMPLIANCE AND CESSATION ORDERS: CONTINUATION OF HEALTH AND SAFETY RELATED ACTIVITIES (1) remains the same.
IMP: 82-4-251, MCA
17.24.1210 CESSATION ORDERS: ADDITIONAL AFFIRMATIVE OBLIGATIONS (1) remains the same.
IMP: 82-4-251, MCA
17.24.1211 PROCEDURE FOR ASSESSMENT AND WAIVER OF CIVIL PENALTIES (1) through (4) remain the same.
AUTH: IMP: 82-4-254, MCA
17.24.1213 SUSPENSION AND REVOCATION OF PERMITS: DETERMINATION OF PATTERN OF VIOLATIONS (1) through (3) remain the same.
IMP: 82-4-251, MCA
17.24.1214 SUSPENSION AND REVOCATION OF PERMITS: PUBLIC NOTICE OF SHOW CAUSE ORDER (1) and (2) remain the same.
IMP: 82-4-251, MCA
17.24.1215 SUSPENSION AND REVOCATION OF PERMITS: SERVICE OF PROCESS (1) remains the same.
IMP: 82-4-251, MCA
17.24.1216 SUSPENSION AND REVOCATION OF PERMITS: EFFECT OF SUSPENSION OR REVOCATION If a permit has been suspended or revoked, the permittee may not conduct any operations or prospecting on the permit area and shall: (1) and (2) remain the same.
IMP: 82-4-251, MCA
17.24.1219 INDIVIDUAL CIVIL PENALTIES: PROCEDURE FOR ASSESSMENT (1) through (4) remain the same.
IMP: 82-4-254, MCA
17.24.1220 INDIVIDUAL CIVIL PENALTIES: PAYMENT (1) through (8) remain the same.
IMP: 82-4-254, MCA
17.24.1221 SMALL OPERATOR ASSISTANCE PROGRAM: PROGRAM SERVICES (1) remains the same.
IMP: 82-4-221, MCA
17.24.1222 SMALL OPERATOR ASSISTANCE PROGRAM: ELIGIBILITY FOR ASSISTANCE An applicant is eligible for assistance if he or she: (1) through (3) remain the same.
IMP: 82-4-221, MCA
17.24.1223 SMALL OPERATOR ASSISTANCE PROGRAM: FILING FOR ASSISTANCE Each applicant shall submit the following information to the department: (1) through (6) remain the same.
IMP: 82-4-221, MCA
17.24.1224 SMALL OPERATOR ASSISTANCE PROGRAM: APPLICATION APPROVAL AND NOTICE (1) through (3) remain the same.
IMP: 82-4-221, MCA
17.24.1225 SMALL OPERATOR ASSISTANCE PROGRAM: DATA REQUIREMENTS (1) through (4) remain the same.
IMP: 82-4-221, MCA
17.24.1226 SMALL OPERATOR ASSISTANCE PROGRAM: QUALIFICATION OF LABORATORIES, CONSULTANTS, AND CONTRACTORS (1) and (2) remain the same.
IMP: 82-4-221, MCA
17.24.1227 SMALL OPERATOR ASSISTANCE PROGRAM: ASSISTANCE FUNDING (1) through (3) remain the same.
IMP: 82-4-221, MCA
17.24.1228 SMALL OPERATOR ASSISTANCE PROGRAM: APPLICANT LIABILITY (1) and (2) remain the same.
IMP: 82-4-221, MCA
17.24.1246 RESTRICTIONS ON EMPLOYEE FINANCIAL INTERESTS: RESPONSIBILITIES OF THE DIRECTOR The director shall: (1) through (9) remain the same.
IMP: 82-4-254, MCA
17.24.1247 RESTRICTIONS ON EMPLOYEE FINANCIAL INTERESTS: RESPONSIBILITIES OF EMPLOYEES State employees performing any duties or functions under the Act shall: (1) through (3) remain the same.
IMP: 82-4-254, MCA
17.24.1248 RESTRICTIONS ON EMPLOYEE FINANCIAL INTERESTS: DEFINITIONS For purposes of ARM 17.24.1246 through 17.24.1254, the following definitions apply: (1) through (4) remain the same.
IMP: 82-4-254, MCA
17.24.1249 RESTRICTIONS ON EMPLOYEE FINANCIAL INTERESTS: FILING OF STATEMENT (1) through (3) remain the same.
IMP: 82-4-254, MCA
17.24.1250 RESTRICTIONS ON EMPLOYEE FINANCIAL INTERESTS: CONTENTS OF STATEMENT (1) through (4) remain the same.
IMP: 82-4-254, MCA
17.24.1251 RESTRICTIONS ON EMPLOYEE FINANCIAL INTERESTS: EFFECT OF FAILURE TO FILE STATEMENT (1) remains the same.
IMP: 82-4-254, MCA
17.24.1252 RESTRICTIONS ON EMPLOYEE FINANCIAL INTERESTS: GIFTS AND GRATUITIES (1) through (3) remain the same.
IMP: 82-4-254, MCA
17.24.1253 RESTRICTIONS ON EMPLOYEE FINANCIAL INTERESTS: RESOLUTION OF PROHIBITED INTERESTS OF EMPLOYEES (1) through (3) remain the same.
IMP: 82-4-254, MCA
17.24.1254 RESTRICTIONS ON EMPLOYEE FINANCIAL INTERESTS: RESOLUTION OF PROHIBITED FINANCIAL INTERESTS OF THE DIRECTOR (1) and (2) remain the same.
IMP: 82-4-254, MCA
17.24.1255 RESTRICTIONS ON FINANCIAL INTERESTS: MULTIPLE INTEREST ADVISORY BOARDS (1) remains the same.
IMP: 82-4-254, MCA
17.24.1260 REQUIREMENTS FOR THE CONDUCT OF BLASTING OPERATIONS (1) through (5) remain the same.
AUTH: IMP: 82-4-231(10)(e), MCA
17.24.1261 CERTIFICATION OF BLASTERS (1) through (5) remain the same.
AUTH: IMP: 82-4-231(10)(e), MCA
17.24.1262 BLASTER TRAINING COURSES (1) remains the same.
AUTH: IMP: 82-4-231(10)(e), MCA
17.24.1263 SUSPENSION OR REVOCATION OF BLASTER CERTIFICATION (1) through (3) remain the same.
AUTH: IMP: 82-4-231, MCA
17.24.1264 THE DEPARTMENT'S OBLIGATIONS REGARDING THE APPLICANT/VIOLATOR SYSTEM (1) through (7) remain the same.
IMP: 82-4-227, MCA
17.24.1265 DEPARTMENT ELIGIBILITY REVIEW (1) through (6) remain the same.
IMP: 82-4-227, MCA
17.24.1266 QUESTIONS ABOUT AND CHALLENGES TO OWNERSHIP OR CONTROL FINDINGS (1) through (9) remain the same.
IMP: 82-4-227, MCA
17.24.1267 INFORMATION REQUIREMENTS FOR PERMITTEES (1) through (3) remain the same.
IMP: 82-4-227, MCA
17.24.1301 MODIFICATION OF EXISTING PERMITS: ISSUANCE OF REVISIONS AND PERMITS (1) through (3) remain the same.
17.24.1302 NONCONFORMING STRUCTURE (1) through (3) remain the same.
IMP: 82-4-231, MCA
17.24.1303 RULES APPLICABLE TO COAL OPERATIONS ONLY (1) remains the same.
IMP: 82-4-227, 82-4-228, 82-4-231, 82-4-232, 82-4-233, 82-4-235, MCA
17.24.1304 APPLICABILITY OF FEDERAL LAW (1) remains the same.
IMP: 82-4-202, MCA
17.24.1307 LITIGATION EXPENSES: WHEN DEPARTMENT MAY AWARD (1) through (4) remain the same.
IMP: 82-4-251, MCA
17.24.1308 LITIGATION EXPENSES: FILING OF PETITION (1) remains the same.
IMP: 82-4-251, MCA
17.24.1309 LITIGATION EXPENSES: CONTENTS OF PETITION AND ANSWER (1) and (2) remain the same.
IMP: 82-4-251, MCA
17.24.1801 DEFINITIONS (1) and (2) remain the same.
IMP: 82-4-122, MCA
17.24.1802 APPLICABILITY DETERMINATION (1) through (4) remain the same.
IMP: 82-4-122, MCA
17.24.1803 APPLICATION FOR PERMIT: GENERAL REQUIREMENTS AND PROCEDURES (1) through (6) remain the same.
IMP: 82-4-122, MCA
17.24.1804 CONTENTS OF APPLICATION: MAP A current 7.5 minute USGS "topographic" map shall be submitted in all cases where a map depicting surface conditions is required. If a USGS topographic map is unavailable an equivalent will be acceptable. The map or maps submitted shall clearly: (1) through (10) remain the same.
IMP: 82-4-122, MCA
17.24.1805 CONTENTS OF APPLICATION: COMPLIANCE INFORMATION Each application shall contain the following information: (1) through (10) remain the same.
IMP: 82-4-122, MCA
17.24.1806 CONTENTS OF APPLICATION: MINERAL AND OVERBURDEN INFORMATION (1) and (2) remain the same.
IMP: 82-4-122, MCA
17.24.1807 CONTENTS OF APPLICATION: STUDIES AND INVENTORIES The applicant shall submit, as a minimum: (1) through (10) remain the same.
IMP: 82-4-112, MCA
17.24.1808 CONTENTS OF APPLICATION: BLASTING INFORMATION (1) remains the same.
IMP: 82-4-122, MCA
17.24.1809 CONTENTS OF APPLICATION: MINING AND RECLAMATION PLANS The applicant shall also provide to the department a general mining and reclamation plan for the proposed mining operation. These plans shall, as a minimum, include the following topical discussions: (1) and (2) remain the same.
IMP: 82-4-122, MCA
17.24.1810 CONTENTS OF APPLICATION: MINE SITE LOCATION INFORMATION (1) remains the same.
IMP: 82-4-122, MCA
17.24.1815 PERFORMANCE STANDARDS The operator shall: (1) through (12) remain the same.
IMP: 82-4-125, MCA
17.24.1816 RECLAMATION PLAN: ADDITIONAL SPECIFIC REQUIREMENTS The applicant shall submit construction and reclamation plans for all intended preparatory work. Such plans shall be capable of meeting all applicable requirements which would be included in an application for permit under Title 82, chapter 4, part 2, MCA. Such plans shall include: (1) through (7) remain the same.
IMP: 82-4-122, MCA
17.24.1817 WATER QUALITY: OTHER LAWS, NONDEGRADATION (1) and (2) remain the same.
IMP: 82-4-125, MCA
17.24.1818 WATER QUALITY: IMPOUNDMENT (1) through (5) remain the same.
IMP: 82-4-125, MCA
17.24.1819 WATER QUALITY: TREATMENT (1) and (2) remain the same.
IMP: 82-4-125, MCA
17.24.1820 WATER QUALITY: DRAINAGE (1) through (4) remain the same.
IMP: 82-4-125, MCA
17.24.1824 TOPSOILING (1) through (5) remain the same.
IMP: 82-4-125, MCA
17.24.1825 PLANTING AND REVEGETATION (1) through (12) remain the same.
IMP: 82-4-125, MCA
5. Concerned persons may submit their data, views, or arguments concerning the proposed action in writing to the department, at 1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana 59620-0901; telephone (406) 444-1388; fax (406) 444-4386; or e-mail DEQMAR17-432rulemaking @mt.gov, and must be received no later than 11:59 p.m., December 1, 2023.
6. If persons who are directly affected by the proposed actions wish to express their data, views, or arguments orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments to the department at the above address no later than 5:00 p.m., November 23, 2023.
7. If the department receives requests for a public hearing on the proposed action from either 10 percent or 25, whichever is less, of the persons directly affected by the proposed action; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date. Notice of the hearing will be published in the Montana Administrative Register. Ten percent of those directly affected has been determined to be 259 persons based on the interested parties list of 2,591 individuals.
8. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. 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 the contact person in paragraph 5 or may be made by completing a request form at any rules hearing held by the department.
9. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sosmt.gov/ARM/Register.
10. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor was contacted by mail on July 5, 2023.
11. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rules will not significantly and directly impact small businesses.
/s/ Angela Colamaria /s/ Christopher Dorrington ANGELA COLAMARIA CHRISTOPHER DORRINGTON Rule Reviewer Director Department of Environmental Quality
Certified to the Secretary of State October 24, 2023.
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A directory of state agencies is available online at http://www.mt.gov/govt/agencylisting.asp.
For questions about the organization of the ARM or this web site, contact sosarm@mt.gov.
