Administrative Rules of the State of Montana

BEFORE THE BOARD OF ENVIRONMENTAL REVIEW

OF THE STATE OF MONTANA

In the matter of the amendment of ARM 17.24.902 and 17.24.903 pertaining to general performance standards and adoption of New Rule I pertaining to rules not applicable to in situ coal operations

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NOTICE OF PROPOSED AMENDMENT AND ADOPTION

(RECLAMATION)

(NO PUBLIC HEARING CONTEMPLATED)

TO: All Concerned Persons

1. On June 25, 2012, the Board of Environmental Review proposes to amend and adopt the above-stated rules.

2. The board will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice. If you require an accommodation, contact Elois Johnson, Paralegal, no later than 5:00 p.m., June 11, 2012, to advise us of the nature of the accommodation that you need. Please contact Elois Johnson at Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-2630; fax (406) 444-4386; or e-mail ejohnson@mt.gov.

3. The rules proposed to be amended provide as follows, stricken matter interlined, new matter underlined:

17.24.902 APPLICATION REQUIREMENTS FOR IN SITU COAL PROCESSING OPERATIONS (1) Except as provided in [NEW RULE I], Aan application for a permit for in situ coal processing operations must be made according to all requirements of ARM 17.24.901. In addition, the mining and reclamation operations plan for operations involving in situ processing operations must contain information establishing how those operations will be conducted in compliance with the requirements of ARM 17.24.907, including:

(a) through (2) remain the same.

AUTH: 82-4-204, 82-4-205, 82-4-207, MCA

IMP: 82-4-222, MCA

17.24.903 GENERAL PERFORMANCE STANDARDS (1) In addition to all appropriate requirements of subchapters 4 through 8, and 10 through 13, except ARM 17.24.519 and as provided in [NEW RULE I], the following requirements apply to underground mining operations:

(a) through (2) remain the same.

AUTH: 82-4-204, 82-4-207, MCA

IMP: 82-4-227, 82-4-231, 82-4-232, 82-4-233, 82-4-243, 82-4-253, MCA

4. The proposed new rule provides as follows:

NEW RULE I RULES NOT APPLICABLE TO IN SITU COAL OPERATIONS

(1) The following rules are not applicable to in situ coal gasification:

(a) ARM 17.24.311 (Air Pollution Control Plan);

(b) ARM 17.24.320 (Plans for Disposal of Excess Spoil);

(d) ARM 17.24.831 through 17.24.837 (auger mining and remining rules).

(2) All other rules may apply on a mine-specific basis.

AUTH: 82-4-207, MCA

IMP: 82-4-221, 82-4-222, 82-4-223, 82-4-225, 82-4-227, 82-4-228, 82-4-231, 82-4-232, 82-4-233, 82-4-237, 82-4-238, 82-4-240, 82-4-243, MCA

REASON: Chapter 398, Laws of 2011, (SB 292) requires the board to adopt rules necessary to regulate underground mining using in situ coal gasification by October 1, 2012. That requirement is codified in 82-4-207, MCA. That statute also provides that those rules may not be more stringent than the comparable federal regulations or guidelines. Prior to the passage of 82-4-207, MCA, the board adopted two rules specifically regulating in situ coal gasification. ARM 17.24.902 provides permit application requirements and ARM 17.24.903 provides performance standards for in situ coal gasification. Both of those rules provide that appropriate provisions of subchapters 3 through 8 and 10 through 13 are applicable to in situ coal permit applications and operations. ARM 17.24.902 and 17.24.903 are substantially similar to the comparable federal regulations, which are contained in 30 CFR 785.22 and 30 CFR Part 828. Following passage of 82-4-207, MCA, the Department of Environmental Quality reviewed subchapter 3 through 8 and 10 through 13 to identify which rules within those subchapters apply to in situ operations. The department determined that most rules would apply to those operations. Rather than adopting rules that duplicate existing rules, the board is proposing to adopt a rule that lists those rules that would never apply to in situ operations. By adoption of New Rule I, the board would identify those rules that do not apply to in situ coal mining operations and thereby also identify the rules that do apply.

5. Concerned persons may submit their data, views, or arguments concerning the proposed action in writing to Elois Johnson at Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-2630; fax (406) 444-4386; or e-mail ejohnson@mt.gov, no later than June 21, 2012. To be guaranteed consideration, mailed comments must be postmarked on or before that date.

6. If persons who are directly affected by the proposed action wish to express their data, views, or arguments orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments they have to Elois Johnson at Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-2630; fax (406) 444-4386; or e-mail ejohnson@mt.gov, no later than June 21, 2012.

7. If the department receives requests for a public hearing on the proposed action from either 10% or 25, whichever is less, of the persons who are directly affected by the proposed action; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date. Notice of the hearing will be published in the Montana Administrative Register. Ten percent of those persons directly affected has been determined to be 1 based on the fewer than 20 regulated mines in Montana.

8. The board maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies that the person wishes to receive notices regarding: air quality; hazardous waste/waste oil; asbestos control; water/wastewater treatment plant operator certification; solid waste; junk vehicles; infectious waste; public water supply; public sewage systems regulation; hard rock (metal) mine reclamation; major facility siting; opencut mine reclamation; strip mine reclamation; subdivisions; renewable energy grants/loans; wastewater treatment or safe drinking water revolving grants and loans; water quality; CECRA; underground/above ground storage tanks; MEPA; or general procedural rules other than MEPA. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to Elois Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Ave., P.O. Box 200901, Helena, Montana 59620-0901, faxed to the office at (406) 444-4386, e-mailed to Elois Johnson at ejohnson@mt.gov, or may be made by completing a request form at any rules hearing held by the board.

9. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The sponsor was notified by letter sent by U.S. mail dated January 4, 2012.

Reviewed by: BOARD OF ENVIRONMENTAL REVIEW

/s/ John F. North BY: /s/ Joseph W. Russell

JOHN F. NORTH JOSEPH W. RUSSELL, M.P.H.,

Rule Reviewer Chairman

Certified to the Secretary of State, May 14, 2012.