Rule2025-00333
Montana Regulatory Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 15, 2025
Effective
February 14, 2025
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving, in part, and denying, in part, an amendment to the Montana regulatory program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). Montana submitted this proposed amendment to OSMRE on its own initiative in response to a State law passed by the Montana Legislature (House Bill (HB) 576). The proposed amendment generally concerns proposed changes to the definition of material damage and changes to permit requirements related to hydrologic information.
Full Text
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<title>Federal Register, Volume 90 Issue 9 (Wednesday, January 15, 2025)</title>
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[Federal Register Volume 90, Number 9 (Wednesday, January 15, 2025)]
[Rules and Regulations]
[Pages 3673-3687]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-00333]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 926
[SATS No. MT-042-FOR; Docket No. OSM-2023-0007; S1D1S SS08011000
SX064A000 231S180110; S2D2S SS08011000 SX064A000 23XS501520]
Montana Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approving, in part.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE), are approving, in part, and denying, in part, an amendment to
the Montana regulatory program under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA). Montana submitted this proposed
amendment to OSMRE on its own initiative in response to a State law
passed by the Montana Legislature (House Bill (HB) 576). The proposed
amendment generally concerns proposed changes to the definition of
material damage and changes to permit requirements related to
hydrologic information.
DATES: The effective date is February 14, 2025.
FOR FURTHER INFORMATION CONTACT: Jeffrey Fleischman, Field Office
Director, Office of Surface Mining Reclamation and Enforcement, 100
East B Street, Casper, Wyoming 82602, Telephone: (307) 261-6550, Email:
<a href="/cdn-cgi/l/email-protection#9df7fbf1f8f4eefef5f0fcf3ddf2eef0eff8b3faf2eb"><span class="__cf_email__" data-cfemail="214b474d44485242494c404f614e524c53440f464e57">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background on the Montana Program
II. Submission of the Amendment
III. OSMRE's Findings
A. Montana Code Annotated (MCA) 82-4-203(32)(a)
B. MCA 82-4-203(32)(b)
C. MCA 82-4-203(32)(c)
D. MCA 82-4-222(1)(m)
E. Sections 4, 5, 6, and 7 of House Bill 576
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Procedural Determinations
I. Background on the Montana Program
Section 503(a) of SMCRA permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its program includes, among other things, State laws and regulations
that govern surface coal mining and reclamation operations in
accordance with SMCRA and consistent with the Federal implementing
regulations. See 30 U.S.C. 1253(a)(1) and (7); 30 CFR 730.5 and
732.15(a). On the basis of these criteria, the Secretary of the
Interior conditionally approved the Montana program on April 1, 1980.
You can find background information on the Montana program, including
the Secretary's findings, the disposition of comments, and conditions
of approval of the Montana program in the April 1, 1980, Federal
Register (45 FR 21560). You can also find later actions concerning the
Montana program and program amendments at 30 CFR 926.15.
II. Submission of the Amendment
By letter dated June 1, 2023 (Administrative Record No. MT-042-01),
Montana sent us an amendment to its program under SMCRA (30 U.S.C. 1201
et seq.). We found Montana's proposed amendment to be administratively
complete on June 5, 2023. Montana submitted the proposed amendment to
us, on its own volition, after the Montana legislature passed HB 576
during the 2023 legislative session. HB 576 amends the Montana Strip
and Underground Mine Reclamation Act (MSUMRA) as well as sections 82-4-
203 and 82-4-222 of the Montana Code Annotated (MCA). Among other
things, HB 576 also directed the Montana Department of Environmental
Quality (MDEQ) to amend the Administrative Rules of Montana (ARM) to
``remove the two subsections defining `material damage' and the
subsection defining `material damage to the quantity or quality of
water'.''
Specifically, Montana proposes several changes to MCA sec. 82-4-
203(32), which defines and describes ``material damage'' for both
underground and surface coal mining operations (referred to herein as
``coal mining and reclamation operations''). As currently approved by
OSMRE, this section dictates how ``material damage'' applies to the
protection of the hydrologic balance. Montana now proposes to create
three subsections under section 82-4-203(32) to define how ``material
damage'' is defined with respect to: (a) protection of the hydrologic
balance; (b) an alluvial valley floor; and (c) subsidence caused by an
underground coal mining operation.
Proposed section 82-4-203(32)(a) would create two requirements for
an action or inaction to be considered ``material damage'' to the
hydrologic balance. The first requirement is that the coal mining
operation would cause significant, lasting, or permanent adverse
changes to water quality or quantity that affect the beneficial uses
of, or rights to, the water outside the permit area. This requirement
incorporates the current language of section 82-4-203(32) but modifies
it to replace the phrase ``degradation or reduction'' with
``significant long term or permanent adverse change.'' The second
requirement for an action or inaction to be considered ``material
damage'' to the hydrologic balance is that a coal mining or reclamation
operation would cause a lasting or permanent exceedance of a water
quality standard (WQS) outside a permit area. There is an exception to
this second requirement for water bodies for which the WQSs are
stricter than the baseline conditions as determined by MDEQ's
assessment of the cumulative hydrologic impact findings conducted
pursuant to section 82-4-222. For those water bodies, this second
requirement is met if the coal mining and reclamation operation causes
an adverse effect to land use, beneficial uses of water, or water
rights.
Proposed section 82-4-203(32)(b) would apply when determining if an
alluvial valley floor is ``materially damaged.'' Montana proposes to
modify the definition of ``material damage'' by adding language that
accounts for the degradation or a reduction of water quality or
quantity supplied to an alluvial valley floor by a coal mining and
reclamation operation, but only if those actions or inactions
significantly decrease the alluvial valley floor's ability to support
agricultural activities.
Proposed section 82-4-203(32)(c) would apply when determining if
subsidence caused by underground coal mining operation is ``material
damage.'' Subsidence caused by underground coal mines would constitute
``material damage'' when there are (1) significant impairments to
surface lands, features, and structures; (2) physical changes that have
significant adverse effects on a lands current and reasonably
foreseeable uses, production, or income; or (3) when there is any
significant change to a structure's pre-subsidence condition,
appearance, or utility.
[[Page 3674]]
Next, Montana proposes to amend its coal mine operation permit
requirements related to hydrologic information by removing two
sentences from section 82-4-222(1)(m). The first sentence Montana
proposes to remove states that the applicant's determination of the
probable hydrologic consequences of a coal mining and reclamation
operation is not required until the necessary hydrologic information is
made available from an appropriate Federal or State agency. The second
sentence that Montana proposes to remove prohibits the MDEQ from
approving a coal mining permit application until the necessary
hydrologic information is incorporated into the application.
Lastly, HB 576 adds four contingencies to the proposed amendments
of sections 82-4-203(32) and 82-4-222(1)(m) that are not codified into
the MCA but apply to the sections amended by the legislation. Section 4
of HB 576 states that if any or all parts of HB 576 is found invalid,
any parts found valid will remain in effect. Section 5 of HB 576 states
that if the Secretary of the Interior disapproves any provision of the
HB 576, then that portion is void. Section 6 of HB 576 states that HB
576 is effective upon passage and approval. Last, Section 7 of HB 576
states that HB 576 applies retroactively to actions for judicial review
or other actions challenging permits, amendments, license, arbitration,
action, certificate, or inspection that are pending on or after the
effective date.
We announced receipt of the proposed amendment in the August 7,
2023, Federal Register (88 FR 52084). In the same document, we opened
the public comment period and provided an opportunity for a public
hearing or meeting on the adequacy of the amendment. After a request
from several public interest groups, we announced a 60-day extension of
the comment period until November 6, 2024, in the September 20, 2023,
Federal Register (88 FR 64853). We also held a Public Hearing on
November 1, 2023, in Billings, MT, where we received testimony from 23
individuals. (Administrative Record No. MT-042-23). We also received
232 written comments on the proposed rule. On March 28, 2024, OSMRE
sent a letter to MDEQ detailing concerns that OSMRE had with the
proposed amendment (Administrative Record No. MT-042-34). The letter
offered two options for MDEQ: suspend the amendment to allow MDEQ to
make necessary changes or proceed to the Final Rule stage with no
changes. MDEQ responded on April 26, 2024, that, because the proposed
amendments were the result of legislative action, MDEQ is unable to
submit further modifications to address OSMRE's concerns. While OSMRE's
letter only solicited a response from MDEQ, several individuals and
organizations sent OSMRE responses to the letter as well. Due to the
increased interest generated by OSMRE's March 28, 2024, letter to MDEQ,
and, in the interest of fairness for public participation, OSMRE
announced the re-opening of the public comment period for 15 days,
ending August 14, 2024. (Administrative Record No. MT-042-39).
III. OSMRE's Findings
OSMRE reviewed Montana's submittal according to the requirements of
SMCRA and the Federal regulations at 30 CFR 730.5, 732.15, and 732.17.
As described below, we are approving Montana's submittal in part and
disapproving it in part. The severability clause in section 4 of HB 576
indicates that it was the legislature's intent for any parts of the law
that are not disapproved by OSMRE to remain in effect. The legislature
did not define ``part,'' but in analyzing this proposed amendment,
OSMRE analyzed the smallest reasonable elements of the proposed
amendment, usually a section, and treated those as individual parts for
purposes of severability.
For each part, OSMRE evaluated the cumulative effect of the changes
to determine whether each part is in accordance with SMCRA and
consistent with the Federal implementing regulations. The individual
parts evaluated by OSMRE were MCA sections 82-4-203(32)(a), (b), and
(c), and MCA 82-4-222(1)(m). We are approving only those parts of the
amendment determined to be in accordance with SMCRA and consistent with
the requirements of the Federal regulations, and we are disapproving
those sections of the amendment that are not in accordance with SMCRA
or are not consistent with the requirements of the Federal regulations.
Specifically, we are: (1) approving Montana's decision to move the
currently approved definition of material damage ``with respect to
protection of the hydrologic balance'' to subsection (a) of 84-4-
203(32) but disapproving any proposed changes to that definition; (2)
approving the addition of the proposed definition of material damage
``with respect to an alluvial valley floor'' at section 84-4-
203(32)(b); and (3) disapproving the proposed definition of material
damage ``with respect to subsidence caused by underground coal mining
operation'' at proposed section 84-4-203(23)(c). We are also
disapproving the proposed changes to section 82-4-222(1)(m).
A. Montana Code Annotated (MCA) 82-4-203(32)(a)
For section 82-4-203(32)(a), Montana proposes several changes to
its definition of ``material damage'' as it relates to impacts to the
hydrologic balance from surface and underground coal mining operations.
Existing section 82-4-203(32) of the MCA defines ``material damage''
with respect to protection of the hydrologic balance as the
``degradation or reduction by coal mining and reclamation operations of
the quality or quantity of water outside of the permit area in a manner
or to an extent that land uses or beneficial uses of water are
adversely affected, water quality standards are violated, or water
rights are impacted. Violation of a water quality standard, whether or
not an existing water use is affected, is material damage.'' This
definition was previously determined by OSMRE to be in accordance with
SMCRA and consistent with the Federal implementing regulations when
OSMRE conditionally approved Montana's Permanent coal program. 45 FR
21560.
Montana's proposed revision would define ``material damage'' with
respect to protection of the hydrologic balance as: ``(i) significant
long-term or permanent adverse change by coal mining and reclamation
operations to the quality or quantity of water outside of the permit
area in a manner or to an extent that land uses or beneficial uses of
water are adversely affected or water rights are impacts; and (ii)
long-term or permanent exceedances of a water quality standard outside
a permit area if caused by coal mining or reclamation operations,
except that in water bodies for which the water quality standard is
more stringent than baseline conditions as determined by the
department's assessment of the cumulative hydrologic impact findings
conducted pursuant to 82-4-222.'' In addition, the definition would
specify that ``[f]or those water bodies, a significant, long-term
adverse change to the baseline condition of water quality outside of a
permit area is material damage if coal mining or reclamation operations
cause adverse effects to and use, beneficial uses of water, or water
rights.''
Under this proposed revision, for an event or condition to be
considered ``material damage to the hydrologic balance'' there must be
significant and adverse change to the quality and quantity of water
outside the permit area caused by a coal mining and
[[Page 3675]]
reclamation operation; the change must be long-term or permanent; and
there must be a long-term or permanent exceedance of a WQS outside the
permit area. The proposed revision would provide an exception for long-
term or permanent exceedance of a WQS for water bodies where WQSs are
more stringent than baseline conditions. Those areas instead must show
long-term adverse change to the baseline condition of water where coal
mining and reclamation operations cause adverse effects to land use,
beneficial uses of water, or water rights.
The phrase ``material damage to the hydrologic balance outside the
permit area'' appears in SMCRA and within the Federal regulations (30
CFR 816.41) and these references, and other elements of SMCRA and the
Federal regulations, provide parameters for interpreting this phase. As
a threshold matter, SMCRA's performance standards require that all
surface coal mining and reclamation operations ``minimize the
disturbances to the prevailing hydrologic balance at the mine-site and
in associated offsite areas and to the quality and quantity of water in
surface and ground water systems both during and after surface coal
mining operations and during reclamation.'' 30 U.S.C. 1265(b)(10). This
standard is accomplished by avoiding acid forming materials, preventing
``to the extent possible using the best technology currently
available'' contributions of material to streams but under no
circumstances allowing violations of any State or Federal water quality
laws, and other practices designed to protect the existing hydrologic
systems. Id. Similarly, SMCRA requires that underground coal mining
operations ``minimize the disturbances to the prevailing hydrologic
balance at the minesite and in associated offsite areas and to the
quantity of water in surface ground water systems both during and after
surface coal mining operations and during reclamation.'' 30 U.S.C.
1266(b)(9).
Section 510(b)(3) of SMCRA also states that no application for
surface coal mining operations, defined at 30 U.S.C. 1291(28) as
including activities related to surface coal mining and reclamation
operations and surface effects from underground coal mining and
reclamation operations, can be approved unless the application
affirmatively demonstrates, and the regulatory authority finds in
writing based on the application and available information, that ``the
assessment of the probable cumulative impact of all anticipated mining
in the area on the hydrologic balance specified in Section 507(b) has
been made by the regulatory authority and the proposed operation
thereof has been designed to prevent material damage to the hydrologic
balance outside the permit area.'' 30 U.S.C. 1260(b)(3). Section
507(b)(11) requires that an applicant submit ``a determination of the
probable hydrologic consequences of the mining and reclamation
operations, both on and off the mine site, with respect to the
hydrologic regime, quantity and quality of water in surface and ground
water systems including the dissolved and suspended solids under
seasonal flow conditions and the collection of sufficient data for the
mine site and surrounding areas so that an assessment can be made by
the regulatory authority of the probable cumulative impacts of all
anticipated mining in the area upon the hydrology of the area and
particularly upon water availability.'' 30 U.S.C. 1257(b)(11).
In addition to the statutory standards, the Federal regulations add
additional contours to the meaning of ``material damage to the
hydrologic balance outside the permit area.'' First, the regulations at
30 CFR 773.15(e) require the regulatory authority to perform an
assessment to determine if ``the proposed operation has been designed
to prevent material damage to the hydrologic balance outside the permit
area.'' Second, the regulations at 30 CFR 780.21(g) and 784.14(f)
require a finding that the Cumulative Hydrologic Impact Assessment
(CHIA) is ``sufficient to determine, for the purposes of permit
approval, whether the proposed operation has been designed to prevent
material damage to the hydrologic balance outside the permit area.''
Third, the regulations at 30 CFR 780.21(h) and 784.14(g) require a
permit applicant to provide a Hydrologic Reclamation Plan. These
sections state, in relevant part, that the plan must ``contain the
steps to be taken during mining and reclamation through bond release to
minimize disturbance to the hydrologic balance within the permit and
adjacent areas; to prevent material damage outside the permit area;
[and] to meet applicable Federal and State water quality laws and
regulations.'' Id. The fact that the Hydrologic Reclamation Plan must
outline how an operation will (1) minimize disturbance to the
hydrologic balance within the permit area and the adjacent areas, (2)
prevent material damage outside the permit area, and (3) meet all
applicable Federal and State water quality laws indicates that each
element provides a distinct protective benefit and that merely
satisfying one element is not sufficient.
Fourth, the regulations at 30 CFR 816.41(a) and 817.41(a) require
that all surface and underground mining and reclamation activities must
be conducted ``to minimize disturbance to the hydrologic balance within
the permit and adjacent areas [and] . . . prevent material damage to
the hydrologic balance outside the permit area,'' and that the
``regulatory authority may require additional preventative, remedial or
monitoring measures to assure that material damage to the hydrologic
balance outside the permit area is prevented.'' Last, the regulations
at 30 CFR 816.41(c) and (e), as well as section 817.41(c) and (e),
authorize the regulatory authority to modify the monitoring
requirements, including parameters and frequency, if the monitoring
data demonstrate that the operation has ``minimized disturbance to the
hydrologic balance in the permit and adjacent area and prevented
material damage to the hydrologic balance outside the permit area.''
While neither SMCRA nor the current Federal regulations define
``material damage to the hydrologic balance outside a permit area,''
for the Federal and Indian lands programs, OSMRE has defined the
phrase, as recently as 2024 in various CHIAs as meaning ``any
quantifiable adverse impact from surface coal mining and reclamation
operations on the quality or quantity of surface water or groundwater
that would preclude any existing or reasonably foreseeable use of
surface water or groundwater outside the permit area.'' See Cumulative
Hydrologic Impact Assessment for the Pacific Coast Coal Company John
Henry No. 1 Mine, p. 2 (Jan. 2014); Cumulative Hydrologic Impact
Assessment of the Navajo Mine and Pinabete Permit Areas, p. 14 (Mar.
2015); Cumulative Hydrologic Impact Assessment of the Peabody Western
Coal Company Kayenta Mine Complex, App. A (Sept. 2016); Review and
Analysis of Navajo Aquifer Material Damage Criteria for Peabody Western
Coal Company's Kayenta Mine Complex, p. 14 (Aug. 2024). These documents
recognize that surface coal mining operations will cause hydrologic
impacts but indicate OSMRE's interpretation that disturbances to the
hydrologic balance within the permit area should be minimized and
material damage outside the permit area should be prevented. Id. The
CHIAs also direct that material damage criteria for both groundwater
and surface water quality should be related to existing standards that
generally are based on the maintenance and protection of specified
water uses such as public and domestic
[[Page 3676]]
water supply, agriculture, industry, aquatic life, recreation, and
other parameters of local significance to water use. OSMRE also
provided a definition of material damage to the hydrologic balance in a
2016 rule (81 FR 93066); however, that rule was disapproved under the
Congressional Review Act in 2017 and is no longer in effect.
SMCRA and the Federal program, thus, require that: (1) the
regulatory authority must make a written finding that the operation is
designed to prevent material damage to the hydrologic balance outside
the permit area before the permit can be issued; (2) a permit
application must include a plan that shows the operation has been
designed to prevent such damage; (3) the operation must be conducted in
a manner to prevent such damage; (4) the water monitoring requirements
can be modified if warranted to determine whether or not such damage is
occurring; and (5) applicable Federal and State water quality laws and
regulations must be followed.
With this background in mind, we have evaluated the proposed
amendment to the Montana program in relation to Federal statutory and
regulatory requirements for preventing ``material damage to the
hydrologic balance outside the permit area'' and determined that
Montana's proposed changes to section 82-4-203(32)(a) are not in
accordance with SMCRA and not consistent with the Federal regulations.
First, Montana's proposed requirement that an impact must be a
``significant long-term or permanent adverse change . . . to the
quality of water outside of the permit area'' to be considered material
damage is not in accordance with the requirements of SMCRA and not
consistent with the Federal regulations. The phrase ``long-term or
permanent'' is not defined in the Montana code or regulations. Without
a definition or guidance on what constitutes a ``long-term or
permanent'' adverse change, it would be very difficult to establish a
metric for what constitutes a long-term impact, and such a metric would
likely exclude significant short-term impacts to the quality or
quantity of water outside the permit area from ever being considered
material damage to the hydrologic balance. As a result, this proposed
change to the definition would appear to explicitly authorize minor,
short-term adverse changes caused by coal mining and reclamation
operations to the quality or quantity of water outside the permit area,
which is contrary to SMCRA's requirement that all surface coal mining
and reclamation operations must de designed to ``minimize the
disturbance to the prevailing hydrologic balance . . . both during and
after'' mining, without limit to duration. 30 U.S.C. 1265(b)(10). Thus,
this proposed change renders the definition of material damage to the
hydrologic balance less stringent than SMCRA and less effective than
the Federal regulations.
Second, the requirement that material damage to the hydrologic
balance can only be found where there are also ``long-term or permanent
exceedances of a water quality standard outside a permit area'' caused
by coal mining or reclamation operation is not in accordance with SMCRA
or consistent with the Federal regulations. A violation of a State or
Federal WQS as a result of a surface coal mining and reclamation
operation is not allowed under SMCRA and would constitute material
damage to the hydrologic balance. However, material damage to the
hydrologic balance could also occur without a long-term or permanent
exceedance of a WQS outside the permit area. Requiring that an impact
be a ``significant long-term or permanent adverse change'' and also a
long-term or permanent exceedance of a WQS would significantly weaken
the standard for material damage to the hydrologic balance. Therefore,
this change would make Montana's program neither in accordance with
SMCRA nor consistent with the Federal regulations.
A regulatory authority will set and monitor WQSs to ensure that
surface coal mining operations are preventing ``material damage to the
hydrologic balance.'' These standards are underpinned by a combination
of State and Federal water quality laws and regulations. General
effluent limitations for coal mining are promulgated by the U.S.
Environmental Protection Agency (EPA) as set forth in 40 CFR part 434,
and the individualized standards for an operation are determined by the
regulatory authority based on the information provided in a permit
application. As required in 30 CFR 780.21(i) and (j), a surface coal
mining operation permit application must include both a groundwater
monitoring plan and surface water monitoring plan. These plans identify
the water quality and quantity parameters to be monitored, how often
they are to be sampled, and where they are to be sampled. The sampling
data are then used to assess the suitability of the water for current
and approved postmining land uses and to meet the objectives for
protection of the hydrologic balance, as described in 30 CFR 780.21(h),
which includes preventing ``material damage to the hydrologic balance
outside the permit area.''
In a 1983 rulemaking, commenters urged OSMRE to define ``material
damage to the hydrologic balance'' or establish guidelines to evaluate
whether material damage would occur from a proposed operation. In
response, OSMRE stated that it agreed that a regulatory authority
should establish guidelines, but, ``because the gauges for measuring
material damage may vary from area to area and from operation to
operation, [OSMRE] has not established fixed criteria, except for those
established under Sec. Sec. 816.42 and 817.42 related to compliance
with water-quality standards and effluent limitations.'' 48 FR 43973
(emphasis added). Thus, OSMRE intended the WQSs set by 30 CFR 816.42
and 817.42 to be used as criteria for determining ``material damage to
the hydrologic balance,'' and an exceedance of those WQSs is inherently
``material damage to the hydrologic balance.''
Because a violation of a WQS is an established criterion for
determining if ``material damage to the hydrologic balance'' has
occurred, any regulations proposed by Montana must be in accordance
with and consistent with this Federal standard. In Montana's proposal,
it moves its requirement that violations of WQSs are ``material damage
to the hydrologic balance'' to the newly created section 82-4-
203(32)(a)(ii). The structure of the proposed new section makes the
rule less effective than the Federal regulations because, for something
to constitute ``material damage to the hydrologic balance,'' it would
need to be both (1) a significant, long-term or permanent, adverse
change to water quality or quantity, and (2) a long-term of permanent
exceedance of a WQS (emphasis added). While, as discussed above, a
violation of a WQS is an established criteria to categorize an event as
causing ``material damage to the hydrologic balance'' in the Federal
regulations, it is incorrect to assume that ``material damage to the
hydrologic balance'' will always include an exceedance of a WQS. The
determinations of Probable Hydrologic Consequences (PHC) and CHIA both
require information on water quantity as well as water quality. 30 CFR
780.21. The CHIA and PHC are used to determine if a proposed operation
is designed to prevent ``material damage to the hydrologic balance,''
and the permittee is required to operate the mine in such a way that
prevents ``material damage to the hydrologic balance.'' Under the
Federal regulations, both water quality and quantity issues
[[Page 3677]]
can be used to determine if material damage to the hydrologic balance
has occurred. There is nothing in the Federal regulations that suggests
a water quantity violation on its own would not be considered
``material damage to the hydrologic balance'' or that some additional
``significant, long-term or permanent, adverse change to water quality
or quantity'' must also be present to find that material damage has
occurred. Thus, Montana's assertion that there must always be a
violation of a WQS for an event or condition to be considered
``material damage to the hydrologic balance'' is inconsistent with the
Federal regulations.
Finally, Montana's proposed changes would also add a requirement
that an exceedance of a WQS must be ``long-term or permanent'' to be
considered ``material damage to the hydrologic balance.'' As discussed
above, any exceedance of a WQS caused by a surface coal mining and
reclamation operation is a violation of SMCRA. Requiring that a water
quality exceedance be ``long-term or permanent'' ignores the
destructive capabilities of a single short-term disturbance event. For
example, a large amount of a regulated pollutant could be accidently
discharged into a river and cause a WQS exceedance. The pollutant could
then quickly move downstream with the flow of water and adversely
affect the water quality at the mine site and adjacent area; while of
short duration, the event could negatively impact aquatic life,
drinking water, or recreational uses. If this disturbance was instead
an unintended groundwater capture leading to de-watering of local wells
or increased sedimentation into a nearby creek causing channel
diversions, the vagueness of the term ``long-term'' makes it unclear
whether it would rise to the level of material damage to the hydrologic
balance. Under no circumstances should a WQS violation caused by a
mining or reclamation operation be ``long-term,'' and Montana's
proposal to require that a water quality exceedance must be ``long-term
or permanent'' to be considered material damage to the hydrologic
balance would make the Montana program less effective than SMCRA and
the Federal regulations. As an example, under this proposed amendment,
an operator could repeatedly exceed WQSs outside of the permit area but
attempt to avoid a determination that the impact was material damage to
the hydrologic balance by MDEQ by starting and stopping pollution
events before meeting the vague ``long-term or permanent'' threshold.
For the reasons above, we are disapproving the proposed changes to
subsection (a) of Montana's new definition to material damage with
respect to protection of the hydrologic balance. We are, however,
approving the non-substantive restructuring of this section so that the
prior definition of material damage to the hydrologic balance is
included in subsection (a). All other proposed changes to section 82-4-
203 (32)(a) are denied. Approved subsection (a) now states: ``with
respect to protection of the hydrologic balance, degradation or
reduction-by coal mining and reclamation operations of the quality or
quantity of water outside of the permit area in a manner or to an
extent that land uses or beneficial uses of water are adversely
affected, water quality standards are violated, or water rights are
impacted. Violation of a water quality standard, whether or not an
existing water use is affected, is material damage.''
B. MCA 82-4-203(32)(b)
We are approving the proposed changes to MCA section 82-4-
203(32)(b) because we find that the changes to section 82-4-203(32)(b)
are in accordance with SMCRA and consistent with the Federal
regulations.
Section 82-4-203(32)(b) proposed to define ``material damage'' with
respect to alluvial valley floors as ``degradation or reduction by coal
mining and reclamation operations of the water quality or quantity
supplied to the alluvial valley floor that significantly decreases the
capability of the alluvial valley floor to support agricultural
activities[.]''
This proposed definition is nearly identical to the Federal
definition of ``materially damage the quantity or quality of water'' in
30 CFR 701.5, which provides that, ``with respect to alluvial valley
floors, [material damage the quantity or quality of water is] to
degrade or reduce by surface coal mining and reclamation operations the
water quantity or quality supplied to the alluvial valley floor to the
extent that resulting changes would significantly decrease the
capability of the alluvial valley floor to support farming.'' The
biggest difference between the proposed State definition and the
Federal regulation is that the Federal definition limits the definition
to how the water supplied to the alluvial valley floor affects
``farming,'' while Montana's definition expands this to ``agricultural
activities.'' Farming, with respect to alluvial valley floors, is
defined in 30 CFR 701.5 and means ``the primary use of those areas for
the cultivation, cropping or harvesting of plants which benefit from
irrigation, or natural subirrigation, that results from the increased
moisture content in the alluvium of the valley floors. For purposes of
this definition, harvesting does not include the grazing of
livestock.'' The term ``Agricultural activities'' is defined in 30 CFR
701.5 as, with respect to alluvial valley floors, ``the use of any
tract of land for production of animal or vegetable life based on
regional agricultural practices, where the use is enhanced or
facilitated by subirrigation or flood irrigation. These uses include,
but are not limited to, farming and the pasturing or grazing of
livestock. These uses do not include agricultural activities which have
no relationship to the availability of water from subirrigation or
flood irrigation practices.'' Thus, under the Federal regulations, the
term ``agricultural activities'' is broader than the term ``farming''
because it includes animal production in addition to cultivating crops.
Montana's approved program does not include a definition of farming
or agricultural activities, making it difficult to understand the exact
scope of activities included in Montana's definition. However, despite
the lack of definition, the similarity in the language and common
understanding that agricultural activities would at a minimum include
farming lead OSMRE to determine that Montana's definition of material
damage with respect to alluvial valley floors at section 82-4-
203(32)(b) is in accordance with SMCRA and consistent with the Federal
regulations.
C. MCA 82-4-203(32)(c)
We are denying the proposed addition of MCA section 82-4-
203(32)(c). This proposed change would add paragraph (c) to section 82-
4-203(32) to provide a definition of ``material damage'' resulting from
subsidence caused by an underground coal mining operation. As proposed,
this definition would mean: ``any functional impairment of surface
lands, features, or structures; (ii) any physical change that has a
significant adverse impact on the affected land's capability to support
any current or reasonably foreseeable uses or causes significant loss
in production or income; or (iii) any significant change in the
condition, appearance, or utility of any structure or facility from its
presubsidence condition.'' Following our review, we find that proposed
section 82-4-203(32)(c) is inconsistent with the Federal regulations
and are not approving this proposed change.
[[Page 3678]]
Montana's proposed definition of ``material damage'' caused by
subsidence is nearly identical to the Federal definition of ``material
damage'' as it relates to subsidence at 30 CFR 701.5. However, unlike
the Federal regulations, Montana's definition does not include
``facilities'' in its list of features that can be considered
functionally impaired by subsidence in proposed section 82-4-
203(32)(c)(i). Montana has not provided clarification as to why
``facilities'' was omitted from this proposed paragraph. In deciding
whether this proposed regulation can be approved, we must determine if
grouping the term ``facilities'' within the term ``structure'' would
make this paragraph as effective as the Federal regulations.
Neither the Federal nor the Montana regulations formally define
``facility'' or ``structure,'' so we use the plain language definition
of both terms, as well as how they are used throughout the Federal
regulations to determine their meanings. ``Structure'' generally is
used to refer to a standalone, human-made formation that performs an
intended job, such as a diversion, sediment pond, refuse pile, or road.
Defined terms in Sec. 701.5 of the Federal regulations that use the
term ``structure'' in their definitions but not the term ``facility''
include: ``head-of-hollow fill,'' ``impoundments,'' and ``valley
fill.'' ``Facility,'' on the other hand, generally is used to describe
a place, or collection of structures that performs a more complex task.
Defined terms in Sec. 701.5 of the Federal regulations that use the
term ``facility'' in their definitions but not ``structure'' include:
``public office'' and ``coal preparation plant.'' The two terms have
distinct and separate meanings, and the plain language definition of
``structure'' does not fully encapsulate the meaning of ``facilities''
as there are facilities that do not contain structures. Furthermore,
Montana uses the phrase ``structure or facility'' in proposed section
82-4-203(32)(c)(iii). Listing both terms here, and using ``or'' to
connect them, indicates that Montana understands the two terms have
distinct and separate meanings. Thus, omitting ``facilities'' from the
list of features that can be considered functionally impaired by
subsidence in proposed section 82-4-203(32)(c)(i) would not be in
accordance with SMCRA or consistent with the requirements of the
Federal regulations.
D. MCA 82-4-222(1)(m)
We are denying all proposed changes to MCA section 82-4-222(1)(m).
HB 576, in part, modified MCA sec. 82-4-222(1)(m) to delete the
following two sentences: ``However, this determination is not required
until hydrologic information on the general area prior to mining is
made available from an appropriate Federal or State agency. The permit
may not be approved until the information is available and is
incorporated into the application.'' Section 82-4-222 pertains to
permit applications for the Montana program, and paragraph (1)(m)
discusses the determination of the probable hydrologic consequences of
coal mining and reclamation operations. By this change, Montana
proposes to remove two requirements from section 82-4-222(1)(m). First,
Montana proposes to remove the requirement that the permit applicant's
determination of probable hydrologic consequences is not required until
hydrologic information of the pre-mining area is made available from an
appropriate Federal or State agency. Second, Montana proposes to remove
the requirement that the relevant permit may not be approved until the
hydrologic information is available and incorporated into the
application.
The Federal counterparts to this requirement are found in 30 U.S.C.
1257(b)(11) and 30 CFR 780.21(c)(1), (c)(2), (f)(1), and (f)(2). The
statutory provisions at 30 U.S.C. 1257(b)(11) require that a
determination of probable hydrologic consequences of a mining operation
``shall not be determined until hydrologic information on the general
area prior to mining is made available from an appropriate Federal or
State agency . . . .'' The regulations at 30 CFR 780.21(c)(1) state
that hydrologic and geologic information are necessary to assess
probable cumulative hydrologic impacts and that, if the necessary
hydrologic and geologic information is available from an appropriate
Federal or State agency, then that information must be provided to the
regulatory authority in order for it to assess probable cumulative
hydrologic impacts. The regulations at 30 CFR 780.21(c)(2) state that,
if the necessary hydrologic and geologic information is not available
from a Federal or State agency, the operator may submit hydrologic and
geologic information that it has collected on its own. The regulations
at 30 CFR 780.21(f)(1) state that an application must have a PHC
determination, and paragraph (f)(2) continues by providing that the PHC
must be determined using hydrologic and geologic information that is
collected for the permit application.
The removal of the two requirements from section 82-4-222(1)(m), as
described above, would mean that the MDEQ's hydrological determination
is not required until hydrologic information is available from an
appropriate Federal or State agency and would also mean that the
Montana program would no longer meet all of the requirements set forth
in 30 U.S.C. 1257(b)(11) and would make the Montana program less
effective than 30 CFR 780.21(f)(2). The regulations at 30 CFR
780.21(f)(2) require a determination of PHC to be made using the
baseline hydrologic information that was collected for the permit
application. By proposing to remove the provision that permit
applicant's PHC determination is not required until hydrologic
information of the pre-mining area is made available from an
appropriate Federal or State agency, Montana's program would allow an
applicant to make a PHC determination before all of the necessary
hydrologic information is gathered, which could limit the quality of
the PHC.
The regulations at 30 CFR 780.21(c)(3) state that a permit must not
be approved until the necessary hydrologic and geologic information is
available to the regulatory authority. Because this Federal regulation
requires hydrologic and geographic information to be provided to a
regulatory authority before an application is approved, Montana's
proposed removal of the same requirement in section 82-4-222(1)(m)
would make it inconsistent with the Federal regulations. Thus, we are
denying all of Montana's proposed changes to section 82-4-222(1)(m) of
the MCA.
E. Section 4, 5, 6, & 7 of House Bill 576
During the 2023 legislative session, Montana passed HB 576, which
modified sections 82-4-203(32) and 82-4-222(1)(m). HB 576 also added
contingencies that are not codified into the MCA but that affect the
amended parts of the MCA.
1. Section 4. Severability
Section 4 of HB 576 states that if any part of HB 576 is found
invalid, the remainder of the bill that is found valid will be
severable from the invalid part and remain in effect. While this is
legislative language and not part of Montana's surface mining program,
we note that the Federal regulations at 30 CFR 732.17(h)(7) require the
Director to consider all relevant information, using the criteria set
forth in 30 CFR 732.15, to approve or disapprove the amendment. The
Director may approve all or parts of an amendment that are in
accordance with SMCRA and consistent with the Federal regulations.
Here, notwithstanding section 4 of HB 576, OSMRE has identified the
sections that
[[Page 3679]]
are approved and the sections that are disapproved.
2. Section 5. Contingent Voidness
Section 5 of HB 576 states that, if the Secretary of the Interior
disapproves of any provision of HB 576 under 30 CFR part 732, then that
portion of the bill is void. Furthermore, MDEQ is required to notify
the code commissioner of a disapproval within 15 days of the effective
date of disapproval. Notwithstanding HB 576, the Federal regulations
give the Director the authority to approve or disapprove all or part of
a proposed amendment to a State program. 30 CFR 732.17(h)(7). Any
program amendment or part of a program amendment disapproved by the
Director would be void and would not become part of Montana's approved
program.
3. Section 5: Immediate Effectiveness
Section 6 of HB 576 states that its provisions are effective on
passage and approval of the bill. This provision is contrary to SMCRA
and the Federal regulations that state that no change to law or
programs can take effect for purposes of a State program until the
amendment is approved by the Director. 30 CFR 732.17(g).
4. Section 7: Retroactive Applicability
Section 7 of HB 576 states that amendments to the MCA apply
retroactively to actions for judicial review, amendment, license,
arbitration, action, certificate, or inspection that are pending but
not yet decided on or after the effective date of HB 576. Section 7 of
HB 576 attempts to make the proposed changes to sections 82-4-203(32)
and 82-4-222(1)(m) apply retroactively to pending issues that have not
been decided on or after the effective date of HB 576. As with the
attempt to make the changes in HB 576 effective immediately, this
section is contrary to SMCRA and the Federal regulations. Specifically,
the Federal regulations at 30 CFR 732.17(g) mandate that no changes to
laws will take effect until OSMRE approves the amendment, and section
723.17(i)(12) states that all decisions of the Secretary to approve or
disapprove program amendments must be published in the Federal
Register. The Administrative Procedure Act generally requires a 30-day
delay before a rule becomes effective. 5 U.S.C. 553(d).
IV. Summary and Disposition of Comments
We asked for initial public comments on the amendment during a
public comment period that ended on November 6, 2023. We received 232
written comments during our initial comment period, and we received
testimony from 23 individuals at a public hearing held in Billings, MT
on November 1, 2023. (Administrative Record No. MT-042-23). As
mentioned above, on March 28, 2024, OSMRE sent a letter to MDEQ.
(Administrative Record No. MT-042-34). The letter detailed concerns
that OSMRE had with the proposed amendment, all of which is described
in Section III above. While the letter only solicited a response from
MDEQ, OSMRE received several unsolicited responses for other parties.
Due to the increased interest in the proposed amendment generated by
that letter, and, in the interest of fairness for public participation,
OSMRE announced the re-opening of the public comment period for 15 days
on July 30, 2024. (Administrative Record No. MT-042-39).
Due to the large number of comments, substantially similar comments
and points have been consolidated to avoid redundancy. Over 190
commenters were opposed to the approval of this amendment and raised
similar concerns, discussed below. Comments expressing generalized
support for or opposition to the proposed amendment, generalized
concerns about environmental impacts from mining operations, concerns
about the mining industry, fossil fuel use, and the need for the United
States to transition to renewable energy, general statements about the
public's opposition to HB 576 and prior legislative efforts, comments
about SB 392 and the topic of litigation and attorney's fees (which
will be discussed in a separate Final Rule Notice (MT-043-FOR)), and
other non-responsive comments are beyond the scope of this amendment
and no response is necessary. To view comments in full, visit <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>.
Comment 1: There was consensus among the group of 190 commenters in
opposition to the proposed amendment that the use of ``significant
long-term or permanent,'' as applied to the definition of ``material
damage to the hydrologic balance,'' was too ambiguous. They expressed
concern that because these terms are not defined, MDEQ or a judge could
interpret these terms too subjectively, and that the ambiguity of this
language ``all but guarantee[s] some degree of damage outside of a
permit boundary.''
OSMRE Response: OSMRE agrees with commenters' concerns that,
without a definition or guidance on what constitutes a ``long-term or
permanent'' adverse change, it would be very difficult to establish a
metric for what constitutes a long-term impact and that this proposed
change renders the definition of material damage to the hydrologic
balance not in accordance with SMCRA and inconsistent with the Federal
regulations. Please see Section III(A) to see OSMRE's full discussion
about the proposed definition of ``material damage to the hydrologic
balance.''
Comment 2: Similarly, commenters opposed to this proposed amendment
repeatedly considered Montana's proposed changes to baseline condition
requirements to be inadequate because the proposed amendment removes
the requirement that an operation submit baseline water information
while also having a determination of ``material damage to the
hydrologic balance'' rely on baseline water information.
OSMRE Response: OSMRE agrees that Montana's proposed edits to
section 82-4-222(1)(m) would make Montana's program not in accordance
with SMCRA and inconsistent with the Federal regulations. Please see
Section III(D) for OSMRE's discussion on the proposed changes to
baseline hydrologic information.
Comment 3: Several commenters stated that the immediate effective
date and retroactive applicability of the bill are inconsistent with
Federal regulations, citing 30 CFR 732.17(g), which requires that no
State coal regulations go into effect until approved by OSMRE, and 30
U.S.C. 1202(i), which requires all appropriate procedures are followed
for public participation in the revision of a State's program.
OSMRE Response: We agree with these commenters on the proposed
immediate effective date and retroactive applicability provisions;
please see OSMRE's full discussion in Section III(E).
Comment 4: Some commenters opined that the proposed change of
definition for ``material damage to the hydrologic balance'' is
inadequate and pointed to Ohio River Valley Envtl. Coalition, Inc. v.
Norton, 2005 WL 2428159 (S.D.W. Va. Sept. 30, 2005), a case where a
court found similar language in a West Virginia Amendment to be less
effective than the Federal regulations. They noted that the court found
that West Virginia's amendment to its definition of ``material damage''
failed because it did not provide a reasoned analysis to explain how a
subjective standard with vague terms (``long-term or permanent
change'') can ensure that the State program amendment was not less
effective than the Federal regulations. Commenters stated that HB 576
fails on the same
[[Page 3680]]
grounds, as the proposed definition of ``material damage to the
hydrologic balance'' and its use of the terms ``long-term or
permanent'' does not give MDEQ clear standards when applying the
definition. They stated that, as written, the Montana amendment would
allow an operator to violate WQSs so long as they are not ``long-term
or permanent'' violations.
OSMRE Response: OSMRE has disapproved this portion of Montana's
proposed amendment. Please see OSMRE's discussion of the definition of
``material damage to the hydrologic balance'' and its effects on WQSs
in Section III(A). Additionally, OSMRE notes that the West Virginia
definition of ``material damage to the hydrologic balance'' that was
discussed in Ohio River Valley Envtl. Coalition, Inc. v. Norton, 2005
WL 2428159 (S.D.W. Va. Sept. 30, 2005), was later approved by OSMRE in
2008, 73 FR 78979, and OSMRE's approval of the definition was upheld by
the Fourth Circuit in Ohio River Valley Envtl. Coalition, Inc. v.
Salazar, 466 Fed. Appx. 161, 167 (4th Cir. 2012). While OSMRE approved
West Virginia's definition of ``material damage of the hydrologic
balance,'' the definition was applied only in the context of a CHIA
and, thus, is different from Montana's proposed definition in this
amendment.
Comment 5: Commenters stated that, as proposed, the Montana
amendment conflicts with 30 U.S.C. 1292(a)(4), a provision of SMCRA
that prevents the law from altering the Clean Water Act (CWA). The
preamble to the Federal rulemaking stated that there are no fixed
criteria for ``material damage'' except for compliance with WQSs, and,
as proposed, Montana would allow long term or permanent violations of
water quality; thus, the commenters concluded that Montana would be
violating the protections of the CWA.
OSMRE Response: OSMRE disagrees with the comment that the proposed
change to ``material damage to the hydrologic balance'' would violate
the CWA. As discussed in more detail below, the EPA submitted a comment
on this amendment stating that the proposed amendment would not impact
or alter MDEQ's obligations under the CWA. (Administrative Record No.
MT-042-07). OSMRE does agree that requiring a ``long-term or
permanent'' violation of WQSs in order to trigger ``material damage to
the hydrologic balance'' would not be in accordance with SMCRA and
would not be consistent with the Federal regulations, and we have
denied this portion of Montana's proposal. Please see Section III(A)
for our full discussion on this topic.
Comment 6: Commenters contended that the proposed changes to
section 82-4-222(1)(m) conflict with SMCRA and that the proposed
deletions violate 30 CFR 780.21(c)(1), (f), and (g)(1), and 30 U.S.C.
1257(b)(11).
OSMRE Response: We agree that Montana's proposed changes to section
82-4-222(1)(m) are inconsistent with the Federal regulations and have
denied the portion of Montana's proposal. Please see our full
discussion in Section III(D).
Public Comment 7: A commenter stated that HB 576 will further
deepen ongoing issues around water quality and quantity for cattle and
subsidence cracks.
OSMRE Response: OSMRE determined that the proposed definition for
``material damage to the hydrologic balance'' was neither in accordance
with SMCRA nor consistent with the Federal regulations and denied
substantive changes to the amendment. Please see Section III(A) and
III(C) for OSMRE's discussion on Montana's proposed changes.
Public Comment 8: Commenters agreed with OSMRE's preliminary
findings in its OSMRE's March 28, 2024, letter to MDEQ that the use of
``significant'' and ``permanent or long-term'' in the proposed
definition of ``material damage to the hydrologic balance'' is less
stringent and effective than SMCRA and the Federal regulations. They
disagreed with industry comments to the effect that Montana's
definition of ``material damage to the hydrologic balance'' cannot
``run afoul'' of Federal law because there is no Federal definition of
the term. The commenters stated that this argument has been rejected by
Federal courts, citing Ohio River Valley Envt'l Coal., Inc. v.
Kempthorne, 473 F.3d 94, 103 (4th Cir. 2006).
OSMRE Response: Consistent with our preliminary findings in our
March 28, 2024, letter to MDEQ, we have denied the proposed changes to
the definition of ``material damage to the hydrologic balance.'' For
further information, please see OSMRE's discussion of the use of
``significant'' and ``long-term or permanent'' within this definition
in Section III(A), as well as our response to industry commenters
below.
Public Comment 9: Commenters expressed concern that a requirement
that harm to the hydrologic balance must be ``permanent or long-term''
to rise to the level of ``material damage'' and asserted that such an
interpretation would contradict SMCRA requirements at 30 U.S.C.
1202(b), 1259, and 1307(b). Commenters raised concerns that HB 576
would allow short- or medium-term impacts of high magnitude to water
quality and quantity, contrary to comments submitted by industry.
OSMRE Response: We are denying Montana's proposed definition of
material damage with respect to protection of the hydrologic balance
because it not in accordance with SMCRA and is inconsistent with the
Federal regulations. Please see Section III(A) for the discussion of
our decision.
Public Comment 10: Commenters expressed concern that HB 576 is
inconsistent with the Montana Water Quality Act and the CWA because the
proposal would allow pollution events that violate WQSs in short- and
medium-term timeframes. Thus, commenters argue that HB 576 also
violates SMCRA by superseding provisions of the CWA.
OSMRE Response: We note that the EPA found that the proposed
changes would not violate the CWA because the statute could not
supersede the EPA's regulations regarding WQSs. Nevertheless, for the
reasons set forth in Section III(A) above, we are denying the portion
of Montana's proposal that would change the current definition of
material damage to the hydrologic balance because it is not in
accordance with SMCRA and not consistent with the Federal regulations.
Further discussion of EPA's comment can be found below.
Public Comment 11: Commenters stated that Montana's proposed
definition is distinguishable from the Wyoming and West Virginia
definitions. They allege that OSMRE's decision for Wyoming shows the
agency's long-standing position that ``material damage'' cannot be
``time limited'' and that, unlike West Virginia, Montana's proposed
definition of ``material damage'' is a performance standard as well as
a reclamation standard and would have much broader applicability than
the West Virginia definition.
OSMRE Response: Please see OSMRE's response to Industry Comment 2
below.
Public Comment 12: Commenters agreed with OSMRE's preliminary
findings in our March 28, 2024, letter to MDEQ, that Montana's proposed
requirement that water quality violations be ``long-term or permanent''
to be considered ``material damage to the hydrologic balance'' is
inconsistent with SMCRA and the Federal regulations. The commenters
noted that the proposed change to the definition of ``material damage
to the hydrologic balance'' was not necessary to enable
[[Page 3681]]
strip-mining adjacent to water bodies that had failed water quality
standards prior to the permittee's mining, as long as the mine does not
cause additional harms to water quality. The Montana Supreme Court in
Montana Env't Info. Ctr. v. Westmoreland Rosebud Mining, LLC, 2023 MT
224, 68-70, 414 Mont. 80. 545 P.3d 623, held that under Montana's
current definition of ``material damage,'' an existing impairment to a
water body does not prevent additional mining unless the mining
threatens to cause additional harm to water quality.
OSMRE Response: OSMRE is disapproving Montana's proposed definition
of ``material damage'' with respect to protection of the hydrologic
balance. Because other non-segregable elements of this definition
rendered the proposed definition not in accordance with SMCRA and not
consistent with the Federal regulations, we did not reach a
determination of appropriateness about this provision. Please see
OSMRE's discussion of the topic in Section III(A), as well as our
response to Industry Comment 10.
Public Comment 13: Commenters concurred with OSMRE's preliminary
finding in the March 28, 2024, letter that we sent to MDEQ that stated
that the omission of ``facilities'' from the proposed definition of
``material damage'' in relation to subsidence is less stringent than
SMCRA and less effective than the Federal regulations. Commenters noted
that even if the omission of ``facilities'' was a mistake, the
definition should not be approved because the provision, as written, is
less protective than the Federal standards and courts and regulators
are supposed to apply statutes as written, without adding or
subtracting language.
OSMRE Response: OSMRE agrees. Please see OSMRE's discussion of
``material damage'' regarding subsidence in Section III(C).
Public Comment 14: Commenters supported OSMRE's preliminary finding
in the March 28, 2024, letter that we sent to MDEQ that stated that
Montana's proposed deletion of the requirement to obtain and submit
baseline information from State and Federal agencies, and the
prohibition on permit issuance until such information is available, is
inconsistent with and less stringent than SMCRA. The commenters stated
that industry comments indicating that the amendment would not allow
permit issuance without the necessary information baseline information
is without support.
OSMRE Response: Please see OSMRE's discussion of Montana's proposed
changes to baseline hydrologic information in Section III(D), as well
as our response to industry comments, below.
Public Comment 15: Commenters expressed support for OSMRE's
preliminary finding in the March 28, 2024, letter that we sent to MDEQ
that stated that State program amendments cannot be made immediately
effective by an act of a State legislature because it is inconsistent
with SMCRA. Commenters noted that section 505(a) of SMCRA is not a
declaration of State law supremacy but is instead a clarification that
State law may not be superseded by SMCRA, except when it is
inconsistent with SMCRA or its regulations. Commenters added that W.
Virginia Highlands Conservancy v. Norton, 137 F. Supp.2d 687, 697
(S.D.W. Va. 2001), supports their position that SMCRA does not violate
the Tenth Amendment of the constitution and Federal law is not
supplanted when a State gains primacy over its own coal program.
Commenters argued that OSMRE possesses the statutory authority to
determine whether sections 6 and 7 of HB 576 are inconsistent with the
Federal regulations.
OSMRE Response: Please see OSMRE's discussion of the topic in
Section III(E), as well as our response to Industry Comment 13, below.
Public Comment 16: Commenters stated that the fact that there is
not a Federal definition of ``material damage to the hydrologic
balance'' does not give states the ability to establish definitions of
``material damage to the hydrologic balance'' that conflict with other
provisions of SMCRA or the Federal regulations. Citing 30 CFR 730.5,
commenters stated that if a term is found to be less stringent or less
effective than SMCRA or the Federal implementing regulations, then it
may not be approved.
OSMRE Response: OSMRE agrees that any definition of ``material
damage to the hydrologic balance'' must be in accordance with all
provisions of SMCRA and consistent with all provision of the Federal
regulations as those terms are defined in 30 CFR 730.5. The absence of
a Federal definition of a term does not allow a State program to create
definition that is in conflict with any provision in SMCRA or the
Federal implementing regulations.
Public Comment 17: Commenters stated that every part of HB 576 is
inconsistent with SMCRA, except Section 4, Severability, and Section 5,
Contingent Voidness, and that, because all substantive portions of the
bill should be disapproved by OSMRE, the entire amendment should be
disapproved.
OSMRE Response: OSMRE, when processing program amendments, has the
discretion to approve, disapprove, or approve portions of an amendment
while disapproving other portions of an amendment. Here, OSMRE reviewed
each proposed provision to determine if it was in accordance with SMCRA
and consistent with the Federal regulations. After this analysis, OSMRE
is disapproving the proposed changes to MCA 82-4-203(32)(a) and (c) and
MCA 82-4-222(32)(1)(m) but approving the proposed definition at 82-4-
203(32)(b) and approving the renumbering of the existing definition of
material damage ``with respect to protection of the hydrologic
balance'' from section 82-4-203(32) to section 82-4-203(32)(a).
Public Comment 18: Commenters stated that the proposed revisions to
the requirements for hydrologic information for permit applications
would allow mining to begin before necessary data collection and risk
analyses are finished. They state that the requirements for hydrologic
information are supposed to prevent unforeseen circumstances and dire
effects to water quality and quantity, as most mining is detrimental to
water pre-existing on the land before the mine is permitted. They
stated that they were opposed to any changes that would allow for
permit approval before hydrologic information is assessed.
OSMRE Response: We are denying the proposed changes to MCA 82-4-
222(1)(m). Please see our full discussion in Section III(D).
Industry Comment 1: Industry commenters stated that the proposed
definition of ``material damage to the hydrologic balance'' is more
consistent with the plain meaning of ``material damage'' than the
current definition. They alleged that removing the requirement that any
water quality exceedance is per se ``material damage'' prevents a
company from being accused of having caused ``material damage'' simply
because they remain consistent with pre-existing exceedances of WQSs
that are caused by factors other than coal mining. Commenters
maintained that Montana's addition of ``significant'' to its definition
of ``material damage to the hydrologic balance'' is consistent with
SMCRA and the Federal regulations. Commenters pointed to the Federal
definitions of ``material damage'' with respect to subsidence and
alluvial valley floors, both of which use ``significant'' in their
definitions.
OSMRE Response: OSMRE does not agree that the proposed definition
of ``material damage to the hydrologic balance'' or that the addition
of ``significant'' to the definition is in
[[Page 3682]]
accordance with SMCRA or consistent with the Federal regulations, and
we have disapproved the proposed change to that definition. For a
complete discussion of OSMRE's analysis of the proposed definition,
please look to Section III(A).
Industry Comment 2: Commenters noted that Montana's proposed
definition of ``material damage to the hydrologic balance'' is very
similar to the definitions used in Wyoming (WCWR 020-0006-1 (cf)) and
West Virginia (W.Va. CSR 38-2-3(3.22.e)). Both definitions require that
``material damage to the hydrologic balance'' must be ``significant''
and ``long-term.'' Commenters stated that, like West Virginia,
Montana's definition of ``Material damage to the hydrologic balance,''
is limited to CHIAs and the assessment of Probable Cumulative Impact
(PCI). For Wyoming, commenters alleged that OSMRE erred in relying on
an ``informal clarification'' provided by the Wyoming State program to
approve the Wyoming definition. They claim that this extra-statutory
evidence overrules the plain text of the State law, and that the plain
language of Wyoming's definition encompassed both short and long-term
events just as the plain language of Montana's proposed amendment would
cover both short-term and long-term events.
OSMRE Response: We acknowledge that Montana's proposed definition
of ``material damage the hydrologic balance'' is superficially similar
to that of Wyoming and West Virginia, but upon closer examination,
Montana's proposed use of ``long-term or permanent'' in its definition
of ``material damage of the hydrologic balance'' is distinguishable.
Wyoming, for instance, defines ``material damage to the hydrologic
balance'' as ``a significant long-term or permanent adverse change to
the hydrologic regime.'' WCWR 020-0006-1 (cf). Our approval of the
Wyoming definition, however, was informed by Wyoming's clarification
that this definition was not time-restricted and that ``its regulations
and statutes require, by common usage and definition, prevention of
long- and short-term adverse changes and uses.'' 45 FR 20940 (Mar. 31,
1980). Montana, to the contrary, has provided no similar clarity for
its definition, so we interpreted the proposed change based on the
plain meaning of the language provided to mean that it has a time-based
restriction.
Similarly, West Virginia defines ``material damage to the
hydrologic balance'' within its regulations on CHIAs to mean ``any long
term or permanent change in the hydrologic balance caused by surface
mining operation(s), which has a significant adverse impact on the
capability of the affected water resource(s) to support existing
conditions and uses.'' W.Va. CSR 38-2-3(3.22.e); see also 73 FR 78970,
78974 (Dec. 24, 2008). This definition of ``material damage to the
hydrologic balance'' is limited to CHIAs and does not apply more
broadly to the West Virginia program, such as determining whether a
violation of the material damage to the hydrologic balance standard
exists. This is an important distinction because CHIAs are cumulative
assessments performed before issuing any coal mining permit, and thus
it is reasonable that they would look to ``long term or permanent''
effects on the hydrologic balance. West Virginia's definition of
``material damage to the hydrologic balance,'' however, does not apply
in other places within the regulations. Conversely, contrary to the
assertions of this commenter, the way this proposal is drafted, the
requirement that impacts must be ``long-term or permanent'' would be
applied for all iterations of ``material damage to the hydrologic
balance.'' Therefore, as discussed above, this would make Montana's
regulations inconsistent with the Federal regulations.
Industry Comment 3: Commenters stated that the removal of language
from section 82-4-222(1)(m) removes an implication that the issuance of
a permit under MSUMRA requires input from some agency other than the
MDEQ and, they opined that, as proposed, this section closely tracks
the Federal regulations at 30 CFR 780.21(f). They also added that
nothing in the proposed language compels MDEQ to issue permits absent
the required information.
OSMRE Response: Please see Section III(D) to see OSMRE's findings
about baseline hydrologic information. OSMRE disagrees with this
commenter's statement that Montana's proposed changes to section 82-4-
222(1)(m) remove an implication that the appropriate hydrologic
information must be provided by an agency other than MDEQ. No such
implication exists. Montana's current language requires that hydrologic
information be ``made available from an appropriate federal or state
agency.'' MDEQ is an appropriate State agency.
Industry Comment 4: Commenters stated that, because there is no
Federal definition of ``material damage to the hydrologic balance,''
Montana has broad discretion to define the term. A member of the
Montana Legislature made a similar comment.
OSMRE Response: We acknowledge that there is no Federal definition
for this term, but any definition proposed by Montana must be in
accordance with SMCRA and consistent with the Federal regulations. We
have determined that Montana's proposed definition does not meet that
standard, even though there is no definition of that term in the
Federal regulations. Please see Section III(A) for a more thorough
discussion of our analysis on this topic.
Industry Comment 5: Commenters stated that the proposed amendment
clarifies the distinction between SMCRA's protection of the hydrologic
balance and the CWA's application to point source pollution. They note
that, on one hand, the NPDES program is a regulatory scheme that
regulates the discharge of surface and stormwater that interacts with
areas of mining activity and protects acute water quality issues,
whether temporary or permanent, within the permit area. According to
the commenters, SMCRA, on the other hand, protects the hydrologic
balance of the area, which is an assessment of cumulative impacts from
coal mining and its impact outside the permit area. Commenters state
that by removing the current language in section 82-4-203(32), which
provides that a WQS violation is considered material damage to the
hydrologic balance, the proposed Montana regulations will better
distinguish the separate roles of SMCRA and the CWA.
OSMRE Response: We are disapproving the proposed section of
amendment. Please see Section III(A) for our discussion on the
relationship between EPA WQSs and the definition of ``material damage
of the hydrologic balance.''
Industry Comment 6: Commenters opined that OSMRE should not dictate
how a State implements SMCRA in its own program. They stated that
OSMRE's role is to determine if a State's regulations are in accordance
with and consistent with the provisions of SMCRA and that a State is
consistent with SMCRA when it is no less stringent than, meets the
requirements of, and include all applicable provisions of SMCRA.
OSMRE Response: This particular proposed amendment was submitted
voluntarily by Montana. Under 30 CFR 732.17(b), a State with primacy
over its coal regulatory program is required to submit any proposed
amendments to its approved State program to OSMRE. OSMRE's role is then
to determine, for regulatory program amendments, whether the proposed
changes are in accordance with SMCRA and consistent with the Federal
regulations as those
[[Page 3683]]
terms are defined in 30 CFR 730.5. For more information on a State's
and OSMRE's procedures and criteria for approving amendments, please
refer to 30 CFR 732.17.
Industry Comment 7: After OSMRE sent a letter to MDEQ on March 28,
2024, an industry commenter noted that it disagreed with OSMRE's
preliminary finding that Montana's proposed use of ``long-term or
permanent adverse impacts'' did not meet the Federal standards. The
commenter explained that, because there is no definition of the term in
Federal regulations, Montana's definition cannot ``run afoul'' of
Federal law and that OSMRE should not evaluate Montana's definition of
``material damage to the hydrologic balance'' until OSMRE either
promulgates a definition of the term in the Federal regulations or
Congress defines it. Further, the industry commenter alleged that OSMRE
is using an improvised definition in its evaluation of Montana's
proposed definition of ``material damage to the hydrologic balance.''
OSMRE Response: As explained in Section III(A) and in response to
Industry Comment 4, we do not agree with the contention that, because
there is no current definition of ``material damage to the hydrologic
balance'' in the Federal regulations, Montana's definition cannot ``run
afoul'' Federal standards.
Industry Comment 8: The same industry commenter stated that the
proposed amendment's use of the word ``significant'' is in line with
the use of ``significant'' for the Federal definitions of material
damage in the context of alluvial valley floors and subsidence.
OSMRE Response: Please see the response to State Representative
Comment 2.
Industry Comment 9: The same industry commenter did not agree with
OSMRE's concern that a ``short-term high pollution event'' could evade
enforcement because of Montana's proposed definition. The commenter
stated that a ``short-term high pollution event'' would still meet
Montana's proposed definition of ``material damage to the hydrologic
balance'' because it would cause long-term or permanent damage and that
such events would be subject to enforcement under Montana's coal
regulations and other Montana laws.
OSMRE Response: We disagree with the contention that a short-term
pollution event like the one mentioned in our May 28, 2024, letter to
MDEQ would necessarily be considered ``long-term or permanent'' damage
under the plain language of the proposed definition of ``material
damage to the hydrologic balance'' or that the fact that the proposed
definition omits a less-than-long term or permanent event should not
matter because it would be covered under other Montana coal regulations
and laws. Please see Section III(A) for our discussion as to why the
proposed definition is not in accordance with SMCRA or consistent with
the Federal regulations.
Industry Comment 10: Industry commenters disagreed with OSMRE's
preliminary finding in its March 28, 2024, letter to MDEQ, that
Montana's use of ``long-term or permanent'' is too vague. The
commenters stated that Montana's definition provides more context than
the Federal regulations, which are ``silent'' on the issue, and that
Montana added the requirement of ``long-term or permanent exceedance of
water quality standards'' to its definition of ``material damage to the
hydrologic balance'' to account for situations where water exceeded
water quality standards due to historic mining or environmental
conditions not caused by the permittee.
OSMRE Response: As stated above, the Federal regulations are not
``silent'' on the issue of ``material damage to the hydrologic
balance.'' While there is no single, consolidated Federal definition of
the term, the Federal regulations, and decades of experience, provide
sufficient context into what the minimum standard for ``material damage
to the hydrologic balance'' should be. For further discussion of this
issue, please see Section III(A).
Industry Comment 11: Industry commenters stated that Montana's
omission of the term ``facilities'' from its definition of ``material
damage'' with respect to subsidence seems to be a mistake and that
there is no basis to deny the entire section due to the omission of a
single word. They suggested that the severability clause was a reason
not to deny the entire section for the omission of this one word.
OSMRE Response: Please see our discussion of the omission of the
word ``facilities'' in the proposed definition of ``material damage''
with respect to subsidence in Section III(C). We cannot verify that the
omission of this term was a mistake as Montana had not provided any
clarification about the omission, and we disagree that the omission of
a single word cannot be a basis to deny an entire section. As discussed
in Section III(C), the omission of ``facilities'' from the definition
makes the entire definition inconsistent with the Federal regulations,
which means that this section cannot be approved, in whole or in part,
because of the missing critical term.
Industry Comment 12: Commenters stated that Montana's proposed
changes to the hydrologic information section was intended to clarify
who can submit the hydrologic information for the permit application. A
commenter clarified their understanding that, unlike the Federal
regulations at 30 CFR 780.21(c)(2), Montana's current regulations do
not allow the permittee to submit the hydrologic information
themselves; thus, Montana's proposal deletes the hydrologic information
submittal language to align itself with the Federal regulations. The
commenter explained that the changes cannot be reasonably construed to
allow permit issuance without the gathering of hydrologic information;
thus, OSMRE has no basis to disapprove of the proposed changes in this
section.
OSMRE Response: We disagree with the commenter's assessment that
the changes cannot be reasonably construed to allow permit issuances
without gathering hydrologic information. As discussed in Section
III(D), we found that the plain meaning of the provision after deletion
did effectually allow permit issuance without hydrologic information
being submitted to the regulatory authority. We agree that under
Montana's current regulations a permittee is not able to submit
hydrologic information collected by themselves to MDEQ, which is a
standard more stringent than the Federal regulations at 30 CFR
780.21(c)(2).
Industry Comment 13: This commenter stated that the immediate
effective date in House Bill 576 was a valid exercise of the State's
sovereignty. The commenter stated that OSMRE's regulations at 30 CFR
732.17(g) are contrary to the principles of federalism and violate
SMCRA. They also maintain that 30 U.S.C. 1255(a), which states that
``no State law or regulation . . . shall be superseded by any provision
of' SMCRA or its implementing regulations . . . except insofar as such
State law or regulation is inconsistent with the provisions of this
act[,]'' supports their position. The commenter argues that under
SMCRA, a State coal regulation may remain in place until it is found to
be inconsistent with SMCRA. In support of this comment, the commenter
cites to Bragg v. W.VA. Coal Ass'n, 248 F.3d 275, 295 (4th Cir. 2001),
and the Tenth Amendment to the U.S. Constitution.
OSMRE Response: Please see Section III(E) for our discussion on
this topic. We do not agree that OSMRE's regulations at 30 CFR
732.17(g) violate SMCRA or that 30 CFR 732.17(g) goes
[[Page 3684]]
against the principles of federalism. The Supreme Court of the United
States found that SMCRA does not violate the Tenth Amendment. Hodel v.
Va. Surface Mining and Reclamation Ass'n, 452 U.S. 264 (1981). And 30
U.S.C. 1255 does not allow proposed changes to an approved State
program to go into effect before OSMRE reviews those changes to
determine whether a State law or regulation is consistent with the
provisions of SMCRA. That statute confirms that ``[n]o State law or
regulation . . . which may become effective thereafter, shall be
superseded by any provision of this Act or any regulation issued
pursuant thereto, except insofar as such State law or regulation is
inconsistent with the provisions of this act.'' 30 U.S.C. 1255(a)
(emphasis added). The use of ``may'' in combination with the exception
that changes to a State program must meet SMCRA and Federal regulation
requirements demonstrates that SMCRA requires amendments to be approved
before being effective.
State Representative Comment 1: A member of the Montana State
Legislature commented that that the proposed exception to the ``long-
term or permanent exceedance of a water quality standard outside a
permit area'' was intended to protect downstream users, as it would
require an applicant to demonstrate that there would be no change to
the water quality classification for groundwater or beneficial use.
OSMRE Response: We appreciate being informed of at least one member
of the legislature's intent for the change to material damage as it
relates to the hydrologic balance; however, we must first review the
plain language of the proposed amendment and, as described in Section
III(A) above, the language of this portion of the proposed amendment is
not in accordance with SMCRA or consistent with the Federal
regulations. As such, we have denied the portion of the proposed
amendment that would have included this phrase.
State Representative Comment 2: The commenter indicated that the
definitions for ``material damage with respect to the alluvial valley
floor'' and ``material damage with respect to subsidence'' mirror the
Federal definitions at 30 CFR 701.5.
OSMRE Response: We agree with the comment that the proposed changes
to ``material damage'' in the context of alluvial valley floors
substantively mirrors the Federal definition at 30 CFR 701.5; thus, we
have approved that portion of the proposed amendment. Please see
Section III(B) for OSMRE's discussion on the topic. We disagree with
the commenter that the proposed changes to ``material damage'' in the
context of subsidence mirror the Federal definition at Sec. 701.5
because it does not include the ``facilities.'' Therefore, we have
disapproved that definition. Please see Section III(C) for OSMRE's
discussion on this topic.
State Representative Comment 3: Similar to Industry Comment 3, the
commenter explains that the current language from section 82-4-
222(1)(m) that Montana proposes to remove had incorrectly implied that
MDEQ must rely on baseline hydrologic information from another State or
Federal agency. The commenter notes that, in practice, MDEQ is solely
responsible for gathering such information and including it in its
analysis. The commenter considered this change to be entirely clerical
and not altering MDEQ's current or future practice.
OSMRE Response: The commenter is incorrect that MDEQ is the only
agency responsible for gathering hydrologic information for a permit.
Current, section 82-4-222(1)(m) requires that hydrologic information be
``made available from an appropriate federal or state agency.'' This
language is substantively identical to the Federal requirements at 30
CFR 780.21(c). While we recognize that MDEQ is an appropriate State
agency to gather baseline hydrologic information and may be the primary
agency to do so, there is nothing in SMCRA or the Federal agency to
suggest that MDEQ is the only appropriate State or Federal agency to do
so.
State Representative Comment 4: The commenter quoted a portion of
the EPA's comment (Administrative Record No. MT-042-07) stating that HB
576 does not appear to impact or alter MDEQ's obligations under the CWA
to illustrate that the proposed changes to ``material damage to the
hydrologic balance'' would still maintain water quality at the same
level as pre-mining conditions.
OSMRE Response: OSMRE notes that the commenter misinterprets the
EPA's comment. As explained below in the discussion of EPA's comments,
while the EPA did find that the proposed amendment would not impact or
alter MDEQ's obligations under the CWA, the EPA also stated that ``[the
revisions] likely alter substantive compliance requirements for surface
and underground mines in the context of mine permitting in a way that
could result in negative impacts on water quality.'' (Administrative
Record No. MT-042-07). The EPA's comments only offer confirmation that
MDEQ's CWA obligations would still be required to be met under the
proposed revisions, but that is not dispositive when determining
whether the proposed revisions are in accordance with SMCRA and
consistent with the Federal SMCRA implementing regulations.
State Representative Comment 5: The commenter expressed concern
that OSMRE held a public hearing on the proposed amendment. The
commenter asserted that, in the spirit of SMCRA's cooperative
federalism principles, OSMRE should have instead relied on the public
record created during the legislative session to pass HB 576.
OSMRE Response: OSMRE disagrees with this comment. The Federal
regulations at 30 CFR 732.17(h)(5) specify that OSMRE may hold public
hearings for State program amendments and states that comments provided
at a public hearing will be considered in OSMRE's decision on a program
amendment. Thus, OSMRE's actions were consistent with Federal law.
MDEQ Comments. On April 26, 2024, MDEQ sent us a response to our
March 28, 2024, letter. (Administrative Record No. MT-042-35). MDEQ
stated that because the proposed amendment was the result of
legislative action, MDEQ is unable to submit any revision to address
the concerns OSMRE identified and that MDEQ understood that OSMRE
intends to proceed, as necessary, with the publication of its decision
in the Federal Register.
MDEQ commented that it found OSMRE's proposed finding about
Montana's proposed definition of ``material damage to the hydrologic
balance'' to be inconsistent with OSMRE's application of the term in
the Federal program. MDEQ specifically points to a 2016 CHIA for the
Peabody Western Coal Company--Kayenta Mining Complex, and OSMRE's
statement within the CHIA that ``[t]he term `material damage to the
hydrologic balance' may have various interpretations'' and that ``[t]he
Permanent Program Regulations do not define `material damage' but do
define `hydrologic balance' as `the relationship between the * * *
water inflow to, water outflow from, and water storage in a hydrologic
unit, such as a drainage basin, aquifer, soil zone, lake, or reservoir'
(30 CFR 701.5).''
MDEQ states that OSMRE has not produced additional national
guidance on CHIAs and the definition of ``material damage to the
hydrologic balance'' since this draft document. They state that the
definition of ``material damage to the hydrologic balance'' remains at
the discretion of the regulatory authority, and OSMRE has
[[Page 3685]]
created site specific criteria in their CHIAs.
Finally, MDEQ states that ``material damage to the hydrologic
balance'' remains undefined in SMCRA since the Congressional
disapproval of the Stream Protection Rule in 2017. MDEQ states further
that, because of that lack of a definition, OSMRE's rejection of a more
stringent program amendment request from MDEQ is contrary to OSMRE's
actual implementation of this issue.
OSMRE Response: OSMRE disagrees with MDEQ's assertion that our
findings on the proposed definition of ``material damage to the
hydrologic balance'' are inconsistent with our use of the term in the
Federal program. MDEQ is correct that OSMRE has not published a
definition of the term in the Federal regulations and that OSMRE has
stated that the term does not have fixed criteria since ``material
damage will vary from area to area and operation to operation,'' (see
48 FR 43973, Sept. 26, 1983). The lack of a definition for ``material
damage to the hydrologic balance'' in the Federal regulations, however,
does not mean that any definition will be acceptable. SMCRA and the
Federal regulations require that a State program must have rules and
regulations that are in accordance with SMCRA and consistent with the
Federal regulations. 30 CFR 730.5. This analysis requires a
comprehensive comparison between the entire State and Federal programs.
While the Federal regulations do not have an official definition for
``material damage to the hydrologic balance,'' that term is used
multiple times throughout the Federal regulations. Where the term
appears in the Federal regulations and how it affects operations are
guidelines for our assessment of the Montana program's proposed
definition. Please see Section III(A) to see our detailed assessment of
this issue.
Montana Department of Justice (MDOJ). On May 10, 2024, MDOJ sent a
letter to OSMRE in response to our March 28, 2024, letter to MDEQ. MDOJ
offered their support for comments provided by MDEQ and industry in
response to our March 28, 2024, letter. (Administrative No. MT-042-35
and MT-042-36.). Next, MDOJ urged OSMRE to reconsider its preliminary
analysis and to promptly approve the MT-042-FOR. MDOJ pointed
specifically to the discussion in comments submitted by industry that
alleged that OSMRE's concerns with the Montana amendment ignore the
text of governing Federal statutory and regulatory provisions and that
OSMRE's decision deviates from prior OSMRE decisions. Finally, MDOJ
commented that OSMRE must give effect to the bill's severability clause
by approving the remaining sections with which OSMRE did not find any
issues.
OSMRE Response: For our discussion on the MDEQ letter and industry
comments, please see our respective responses above. As for the
severability clause, OSMRE structured its approval and disapproval of
the provisions in the proposed amendment to accommodate the
severability clause and allow individual sections that are found to be
consistent with SMCRA and as effective as the Federal regulations to be
effective despite the disapproval of other proposed sections.
Federal Agency Comments
On June 6, 2023, under 30 CFR 732.17(h)(11)(i) and section 503(b)
of SMCRA, we requested comments on the amendment from various Federal
agencies that have an actual or potential interest in the Montana
program (Administrative Record No. MT-042-05). On August 28, 2023,
following the extension of the comment period for a further 60 days, we
sent an additional request for comments on the amendment
(Administrative Record No. MT-042-13). We did not receive any comments.
EPA Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written
concurrence from EPA for those provisions of the program amendment that
relate to air or water quality standards issued under the authority of
the CWA (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401
et seq.). On June 6, 2023, under 30 CFR 732.17(h)(11)(i), we requested
comments from the EPA on the amendment (Administrative Record No. MT-
042-05). The EPA submitted its comment to us on August 1, 2023.
(Administrative Record No. MT-042-07). On August 28, 2023, following
the extension of the comment period for a further 60 days, we sent
another request for comments on the Amendment (Administrative Record
No. MT-042-13). No additional EPA comments were submitted in response
to the extended comment period.
In its comment, the EPA interpreted Montana's proposed changes to
MCA sec. 82-4-203(32)(a)(ii), ``material damage to the hydrologic
balance,'' to mean a violation of a WQS alone is no longer ``material
damage.'' Instead, any material damage would only be a long-term or
permanent exceedances of a WQS.
Despite the change in definition, the EPA found that they did not
have the authority and duty to approve or disapprove the change, as it
is not deemed a new or revised WQS under section 303(c)(3) of the CWA.
But the EPA did comment that, while the proposed changes are likely not
WQS, they do likely alter substantive compliance requirements for coal
mines in a way that could result in negative impacts on water quality.
The EPA ended its comment by stating that the proposed changes
would likely not impact or alter MDEQ's obligations under the CWA. EPA-
approved WQS would remain in effect in Montana, despite the language
deletion here, and MDEQ must continue to implement those WQS programs
despite the deletion.
OSMRE Response: We appreciate EPAs comments and agree that the
proposed changes would likely substantively and negatively alter
compliance requirements and water quality, but that MDEQ would still be
obliged to comply with all CWA requirements because section 702 of
SMCRA provides that nothing in SMCRA can be construed as superseding,
amending, modifying, or repealing Federal laws related to water
quality. 30 U.S.C. 1292(3). For the reasons explained in our response
in Section III(A), we are denying Montana's proposed change to its
current definition of ``material damage to the hydrologic balance.''
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
the SHPO and ACHP on amendments that may have an effect on historic
properties. On June 6, 2023, we requested comments on the amendment
(Administrative Record No. MT-042-03, and MT-042-04). On August 28,
2023, following the extension of the comment period for a further 60
days, we sent another request for comments on the amendment
(Administrative Record No. MT-042-11, and MT-042-12). The Montana SHPO
responded on June 15, 2023, to say they have no comment and the ACHP
did not comment (Administrative Record No. MT-042-06).
V. OSMRE's Decision
Based on the above findings, we are approving in part and
disapproving in part Montana's proposed amendment (MT-042-FOR) sent to
us on June 1, 2023 (Administrative Record No. MT-042-01).
To implement this decision, we are amending the Federal
regulations, at 30 CFR part 926, that codify decisions concerning the
Montana program. In
[[Page 3686]]
accordance with the Administrative Procedure Act, this rule will take
effect 30 days after the date of publication. Section 503(a) of SMCRA
requires that the State's program demonstrate that the State has the
capability of carrying out the provisions of the Act and meeting its
purposes. SMCRA requires that a State program must have rules and
regulations that are in accordance with SMCRA and consistent with
Federal regulations.
VI. Procedural Determinations
Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
This rule would not effect a taking of private property or
otherwise have taking implications that would result in public property
being taken for government use without just compensation under the law.
Therefore, a takings implication assessment is not required. This
determination is based on an analysis of the corresponding Federal
regulations.
Executive Orders 12866--Regulatory Planning and Review and 13563--
Improving Regulation and Regulatory Review
Executive Order 12866, as amended by Executive Order 14094,
provides that the Office of Information and Regulatory Affairs in the
Office of Management and Budget (OMB) will review all significant
rules. Pursuant to OMB guidance, dated October 12, 1993 (OMB Memo M-94-
3), the approval of State program and/or plan amendments is exempted
from OMB review under Executive Order 12866. Executive Order 13563,
which reaffirms and supplements Executive Order 12866, retains this
exemption.
Executive Order 13771--Reducing Regulation and Controlling Regulatory
Costs
State program and/or plan amendments are not regulatory actions
under Executive Order 13771 because they are exempt from review under
Executive Order 12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has reviewed this rule as required
by Section 3 of Executive Order 12988. The Department determined that
this Federal Register document meets the criteria of section 3 of
Executive Order 12988, which is intended to ensure that the agency
review proposed regulations to eliminate drafting errors and ambiguity;
that the agency write its regulations to minimize litigation; and that
the agency's regulations provide a clear legal standard for affected
conduct rather than a general standard, and promote simplification and
burden reduction. Because Section 3 focuses on the quality of Federal
regulations, the Department limited its review under this Executive
Order to the quality of this Federal Register document and to changes
to the Federal regulations. The review under this Executive Order did
not extend to the language of the State regulatory program amendment
that Montana drafted.
Executive Order 13132--Federalism
This rule has potential Federalism implications, as defined under
section 1(a) of Executive Order 13132. Executive Order 13132 directs
agencies to ``grant the States the maximum administrative discretion
possible'' with respect to Federal statutes and regulations
administered by the States. Montana, through its approved regulatory
program, implements and administers SMCRA and its implementing
regulations at the State level. This rule approves an amendment to the
Montana program submitted and drafted by the State, and thus is
consistent with the direction to provide maximum administrative
discretion to States.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
The Department of the Interior strives to strengthen its
government-to-government relationship with Tribes through a commitment
to consultation with Tribes and recognition of their right to self-
governance and tribal sovereignty. We have evaluated this rule under
the Department's consultation policy and under the criteria in
Executive Order 13175 and have determined that it has no substantial
direct effects on federally recognized Tribes or on the distribution of
power and responsibilities between the Federal government and Tribes.
Therefore, consultation under the Department's tribal consultation
policy is not required. The basis for this determination is that our
decision is on the Montana State program that does not include the
regulation of Indian lands or regulation of activities on Indian lands
as that term is defined in 30 U.S.C. 1291(9). Indian lands are
regulated independently under the applicable, approved Federal Indian
lands program, with the exception of the Crow Tribe's ``Ceded Strip''
in Montana, which represents a unique and special situation because
under the terms of the MOU, the Department of the Interior and Montana
agreed to coordinate the administration of applicable surface mining
requirements in the Crow Ceded Strip. However, as we are disapproving
the majority of the substantive changes made by this proposed
amendment, our action will not have any significant effects on the
regulation of surface coal mining operations within the Crow Ceded
Strip. The Department's consultation policy also acknowledges that our
rules may have Tribal implications where the State proposing the
amendment encompasses ancestral lands in areas with mineable coal. We
are currently working to identify and engage appropriate Tribal
stakeholders to devise a constructive approach for consulting on these
amendments.
Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Executive Order 13211 requires agencies to prepare a Statement of
Energy Effects for a rulemaking that is (1) considered significant
under Executive Order 12866, and (2) likely to have a significant
adverse effect on the supply, distribution, or use of energy. Because
this rule is exempt from review under Executive Order 12866 and is not
a significant energy action under the definition in Executive Order
13211, a statement of energy effects is not required.
Executive Order 13045--Protection of Children From Environmental Health
Risks and Safety Risks
This rule is not subject to Executive Order 13045 because this is
not an economically significant regulatory action as defined by
Executive Order 12866, and this action does not address environmental
health or safety risks disproportionately affecting children.
National Environmental Policy Act
Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C.
1251(a) and 1292(d), respectively) and the U.S. Department of the
Interior Departmental Manual, part 516, section 13.5(A), a State
program amendment is a not major Federal action within the meaning of
section 102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C).
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary consensus
standards in its regulatory activities unless to do so would be
inconsistent
[[Page 3687]]
with applicable law or otherwise impractical. (OMB Circular A-119 at p.
14). This action is not subject to the requirements of section 12(d) of
the NTTAA because application of those requirements would be
inconsistent with SMCRA.
Paperwork Reduction Act
This rule does not include requests and requirements of an
individual, partnership, or corporation to obtain information and
report it to a Federal agency. As this rule does not contain
information collection requirements, a submission to OMB under the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) is not required.
Regulatory Flexibility Act
This rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). The State submittal, which is the subject
of this rule, is based on corresponding Federal regulations for which
an economic analysis was prepared, and certification made that such
regulations would not have a significant economic effect upon a
substantial number of small entities. In making the determination as to
whether this rule would have a significant economic impact, the
Department relied upon the data and assumptions for the corresponding
Federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: (a) does not
have an annual effect on the economy of $100 million; (b) will not
cause a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and (c) does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. This determination is based on an analysis of the
corresponding Federal regulations, which were determined not to
constitute a major rule.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
Tribal governments, or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or Tribal governments or the private sector. This determination
is based on an analysis of the corresponding Federal regulations, which
were determined not to impose an unfunded mandate. Therefore, a
statement containing the information required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not required.
List of Subjects in 30 CFR Part 926
State regulatory program approval, State program provisions and
amendments not approved, Approval of Montana program amendments, and
State-federal cooperative agreement.
David A. Berry,
Regional Director, Unified Regions, 5, 7-11.
For the reasons set out in the preamble, 30 CFR part 926 is amended
as set forth below:
PART 926--Montana
0
1. The authority citation for part 926 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Amend Sec. 926.12 by adding paragraph (c) to read as follows:
Sec. 926.12 State program provisions and amendments not approved.
* * * * *
(c) The following portions of the amendment submitted by letter
dated June 1, 2023, Administrative Record No. MT-042-01, which proposed
changes to the Montana approved program as a result of the Montana
Legislature's 2023 passage of a House Bill (HB 576) are not approved:
MCA 82-4-203(32)(a) to the extent that it changed the prior definition
of material damage as it relates to the hydrologic balance; MCA 82-4-
203(32)(c) definition of material damage as it relates to subsidence;
MCA 82-4-222(1)(m) hydrologic information requirements.
0
3. Amend Sec. 926.15 in the table by adding a new entry in
chronological order by ``Date of final publication'' to read as
follows:
Sec. 926.15 Approval of Montana regulatory program amendments.
* * * * *
----------------------------------------------------------------------------------------------------------------
Date of final
Original amendment submission date publication Citation/description
----------------------------------------------------------------------------------------------------------------
June 1, 2023......................... January 15, 2025....... MCA 82-4-203(32)(a) existing definition of
material damage with respect to protection of
the hydrologic balance recodified; MCA 82-4-
203(32)(b) adding a definition of material
damage with respect to an alluvial valley
floor.
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2025-00333 Filed 1-14-25; 8:45 am]
BILLING CODE 4310-05-P
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