Bill Summary – FastDemocracy

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68th Legislature 2023                                                                                              HB 576.1
                                                 HOUSE BILL NO. 576
       INTRODUCED BY R. KNUDSEN, J. HINKLE, S. GUNDERSON, S. VINTON, S. GIST, K. WALSH, M.
                                                 BINKLEY, G. PARRY
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  A BILL FOR AN ACT ENTITLED: “AN ACT REVISING LAWS RELATED TO WATER AND COAL MINING;
  PROVIDING THAT NONSIGNIFICANT CHANGES IN WATER QUALITY INCLUDE COAL OPERATIONS
  ADJACENT TO EPHEMERAL DRAINAGEWAYS AND INTERMITTENT STREAMS UNDER CERTAIN
  CONDITIONS; REVISING THE DEFINITION OF "MATERIAL DAMAGE" TO INCLUDE THE EFFECT OF
  COAL MINING ON THE HYDROLOGIC BALANCE; PROVIDING RULEMAKING AUTHORITY; DIRECTING
  AN AMENDMENT TO 17.24.301 TO REMOVE CERTAIN DEFINITIONS; AMENDING SECTIONS 75-5-317
  AND 82-4-203, MCA; PROVIDING FOR CONTINGENT VOIDNESS; AND PROVIDING AN IMMEDIATE
  EFFECTIVE DATE AND A RETROACTIVE APPLICABILITY DATE.”
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  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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          NEW SECTION. Section 1.         Department to amend rule. The department of environmental quality
  shall amend ARM 17.24.301 to remove the two subsections defining "material damage" and the subsection
  defining "materially damage the quantity or quality of water".
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          Section 2. Section 75-5-317, MCA, is amended to read:
          "75-5-317.   Nonsignificant activities. (1) The categories or classes of activities identified in
  subsection (2) cause changes in water quality that are nonsignificant because of their low potential for harm to
  human health or the environment and their conformance with the guidance found in 75-5-301(5)(c).
          (2)      The following categories or classes of activities are not subject to the provisions of 75-5-303:
          (a)      existing activities that are nonpoint sources of pollution as of April 29, 1993;
          (b)      activities that are nonpoint sources of pollution initiated after April 29, 1993, when reasonable
  land, soil, and water conservation practices are applied and existing and anticipated beneficial uses will be fully
  protected;
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68th Legislature 2023                                                                                               HB 576.1
          (c)      use of agricultural chemicals in accordance with a specific agricultural chemical ground water
  management plan promulgated under 80-15-212, if applicable, or in accordance with an environmental
  protection agency-approved label and when existing and anticipated uses will be fully protected;
          (d)      changes in existing water quality resulting from an emergency or remedial activity that is
  designed to protect public health or the environment and is approved, authorized, or required by the
  department;
          (e)      changes in existing ground water quality resulting from treatment of a public water supply
  system, as defined in 75-6-102, or a public sewage system, as defined in 75-6-102, by chlorination or other
  similar means that is designed to protect the public health or the environment and that is approved, authorized,
  or required by the department;
          (f)      the use of drilling fluids, sealants, additives, disinfectants, and rehabilitation chemicals in water
  well or monitoring well drilling, development, or abandonment, if used according to department-approved water
  quality protection practices and if no discharge to surface water will occur;
          (g)      short-term changes in existing water quality resulting from activities authorized by the
  department pursuant to 75-5-308;
          (h)      land application of animal waste, domestic septage, or waste from public sewage treatment
  systems containing nutrients when the wastes are applied to the land in a beneficial manner, application rates
  are based on agronomic uptake of applied nutrients, and other parameters will not cause degradation;
          (i)      use of gray water, as defined in 75-5-325, from nonpublic gray water reuse systems for
  irrigation during the growing season in accordance with gray water reuse rules adopted pursuant to 75-5-305;
          (j)      incidental leakage of water from a public water supply system, as defined in 75-6-102, or from
  a public sewage system, as defined in 75-6-102, utilizing best practicable control technology designed and
  constructed in accordance with Title 75, chapter 6;
          (k)      discharges of water to ground water from water well or monitoring well tests, hydrostatic
  pressure and leakage tests, or wastewater from the disinfection or flushing of water mains and storage
  reservoirs, conducted in accordance with department-approved water quality protection practices;
          (l)      oil and gas drilling, production, abandonment, plugging, and restoration activities that do not
  result in discharges to surface water and that are performed in accordance with Title 82, chapter 10, or Title 82,
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68th Legislature 2023                                                                                              HB 576.1
  chapter 11;
          (m)      short-term changes in existing water quality resulting from ordinary and everyday activities of
  humans or domesticated animals, including but not limited to:
          (i)      such recreational activities as boating, hiking, hunting, fishing, wading, swimming, and
  camping;
          (ii)     fording of streams or other bodies of water by vehicular or other means; and
          (iii)    drinking from or fording of streams or other bodies of water by livestock and other domesticated
  animals;
          (n)      coal and uranium prospecting that does not result in a discharge to surface water, that does not
  involve a test pit located in surface water or that may affect surface water, and that is performed in accordance
  with Title 82, chapter 4;
          (o)      solid waste management systems, motor vehicle wrecking facilities, and county motor vehicle
  graveyards licensed and operating in accordance with Title 75, chapter 10, part 2, or Title 75, chapter 10, part
  5;
          (p)      hazardous waste management facilities permitted and operated in accordance with Title 75,
  chapter 10, part 4;
          (q)      metallic and nonmetallic mineral exploration that does not result in a discharge to surface water
  and that is permitted under and performed in accordance with Title 82, chapter 4, parts 3 and 4;
          (r)      stream-related construction projects or stream enhancement projects that result in temporary
  changes to water quality but do not result in long-term detrimental effects and that have been authorized
  pursuant to 75-5-318;
          (s)      diversions or withdrawals of water established and recognized under Title 85, chapter 2;
          (t)      the maintenance, repair, or replacement of dams, diversions, weirs, or other constructed works
  that are related to existing water rights and that are within wilderness areas so long as existing and anticipated
  beneficial uses are protected and as long as the changes in existing water quality relative to the project are
  short term;
          (u)      discharges of total phosphorus or total nitrogen that do not:
          (i)      create conditions that are toxic or harmful to human, animal, plant, and aquatic life;
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68th Legislature 2023                                                                                                HB 576.1
           (ii)     create conditions that produce undesirable aquatic life; or
           (iii)    cause measurable changes in aquatic life; and
           (v)      coal mining and reclamation activities that may affect the water quality of an adjacent
  ephemeral drainageway or intermittent stream for which the nonanthropogenic condition of the drainageway or
  stream exceeds the water quality standard and for which an applicant has prepared an acceptable hydrologic
  reclamation plan developed under Title 82, chapter 4, part 2, that demonstrates no change in the water quality
  classification for the affected drainageway or stream. For the purposes of this subsection (2)(v), "ephemeral
  drainageway" and "intermittent stream" have the meanings provided in 82-4-203.
           (v)(w)   any other activity that is nonsignficant nonsignificant because of its low potential for harm to
  human health or to the environment and its conformance with the guidance found in 75-5-301(5)(c)."
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           Section 3. Section 82-4-203, MCA, is amended to read:
           "82-4-203.    Definitions. Unless the context requires otherwise, in this part, the following definitions
  apply:
           (1)      "Abandoned" means an operation in which a mineral is not being produced and that the
  department determines will not continue or resume operation.
           (2)      "Adjacent area" means the area outside the permit area where a resource or resources,
  determined in the context in which the term is used, are or could reasonably be expected to be adversely
  affected by proposed mining operations, including probable impacts from underground workings.
           (3)      "Affected drainage basin" means an area of land where surface water and ground water quality
  and quantity are affected by mining activities and where they drain to a common point.
           (4)      (a) "Alluvial valley floor" means the unconsolidated stream-laid deposits holding streams where
  water availability is sufficient for subirrigation or flood irrigation agricultural activities.
           (b)      The term does not include upland areas that are generally overlain by a thin veneer of colluvial
  deposits composed chiefly of debris from sheet erosion and deposits by unconcentrated runoff or slope wash,
  together with talus, other mass movement accumulation, and windblown deposits.
           (5)      "Approximate original contour" means that surface configuration achieved by backfilling and
  grading of the mined area so that the reclaimed area, including any terracing or access roads, closely
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68th Legislature 2023                                                                                               HB 576.1
  resembles the general surface configuration of the land prior to mining and blends into and complements the
  drainage pattern of the surrounding terrain, with all highwalls, spoil piles, and coal refuse piles eliminated, so
  that:
          (a)      the reclaimed terrain closely resembles the general surface configuration if it is comparable to
  the premine terrain. For example, if the area was basically level or gently rolling before mining, it should retain
  these features after mining, recognizing that rolls and dips need not be restored to their original locations and
  that level areas may be increased.
          (b)      the reclaimed area blends with and complements the drainage pattern of the surrounding area
  so that water intercepted within or from the surrounding terrain flows through and from the reclaimed area in an
  unobstructed and controlled manner;
          (c)      postmining drainage basins may differ in size, location, configuration, orientation, and density
  of ephemeral drainageways compared to the premining topography if they are hydrologically stable, soil erosion
  is controlled to the extent appropriate for the postmining land use, and the hydrologic balance is protected; and
          (d)      the reclaimed surface configuration is appropriate for the postmining land use.
          (6)      "Aquifer" means any geologic formation or natural zone beneath the earth's surface that
  contains or stores water and transmits it from one point to another in quantities that permit or have the potential
  to permit economic development as a water source.
          (7)      (a) "Area of land affected" means the area of land from which overburden is to be or has been
  removed and upon which the overburden is to be or has been deposited.
          (b)      The term includes:
          (i)      all land overlying any tunnels, shafts, or other excavations used to extract the mineral;
          (ii)     lands affected by the construction of new railroad loops and roads or the improvement or use
  of existing railroad loops and roads to gain access and to haul the mineral;
          (iii)    processing facilities at or near the mine site or other mine-associated facilities, waste
  deposition areas, treatment ponds, and any other surface or subsurface disturbance associated with strip
  mining or underground mining; and
          (iv)     all activities necessary and incident to the reclamation of the mining operations.
          (8)      "Bench" means the ledge, shelf, table, or terrace formed in the contour method of strip mining.
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68th Legislature 2023                                                                                            HB 576.1
          (9)      "Board" means the board of environmental review provided for in 2-15-3502.
          (10)     "Coal conservation plan" means the planned course of conduct of a strip- or underground-
  mining operation and includes plans for the removal and use of minable and marketable coal located within the
  area planned to be mined.
          (11)     (a) "Coal preparation" means the chemical or physical processing of coal and its cleaning,
  concentrating, or other processing or preparation.
          (b)      The term does not mean the conversion of coal to another energy form or to a gaseous or
  liquid hydrocarbon, except for incidental amounts that do not leave the plant, nor does the term mean
  processing for other than commercial purposes.
          (12)     "Coal preparation plant" means a commercial facility where coal is subject to coal preparation.
  The term includes commercial facilities associated with coal preparation activities but is not limited to loading
  buildings, water treatment facilities, water storage facilities, settling basins and impoundments, and coal
  processing and other waste disposal areas.
          (13)     "Contour strip mining" means that strip-mining method commonly carried out in areas of rough
  and hilly topography in which the coal or mineral seam outcrops along the side of the slope and entrance are
  made to the seam by excavating a bench or table cut at and along the site of the seam outcropping, with the
  excavated overburden commonly being cast down the slope below the mineral seam and the operating bench.
          (14)     "Cropland" means land used for the production of adapted crops for harvest, alone or in
  rotation with grasses and legumes, that include row crops, small grain crops, hay crops, nursery crops, orchard
  crops, and other similar crops.
          (15)     "Degree" means a measurement from the horizontal. In each case, the measurement is subject
  to a tolerance of 5% error.
          (16)     "Department" means the department of environmental quality provided for in 2-15-3501.
          (17)     "Developed water resources" means land used for storing water for beneficial uses, such as
  stockponds, irrigation, fire protection, flood control, and water supply.
          (18)     "Ephemeral drainageway" means a drainageway that flows only in response to precipitation in
  the immediate watershed or in response to the melting of snow or ice and is always above the local water table.
          (19)     "Failure to conserve coal" means the nonremoval or nonuse of minable and marketable coal by
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68th Legislature 2023                                                                                             HB 576.1
  an operation. However, the nonremoval or nonuse of minable and marketable coal that occurs because of
  compliance with reclamation standards established by the department is not considered failure to conserve
  coal.
          (20)     "Fill bench" means that portion of a bench or table that is formed by depositing overburden
  beyond or downslope from the cut section as formed in the contour method of strip mining.
          (21)     "Fish and wildlife habitat" means land dedicated wholly or partially to the production, protection,
  or management of species of fish or wildlife.
          (22)     "Forestry" means land used or managed for the long-term production of wood, wood fiber, or
  wood-derived products.
          (23)     "Grazing land" means land used for grasslands and forest lands where the indigenous
  vegetation is actively managed for livestock grazing or browsing or occasional hay production.
          (24)     "Higher or better uses" means postmining land uses that have a higher economic value or
  noneconomic benefit to the landowner or the community than the premining land uses.
          (25)     "Hydrologic balance" means the relationship between the quality and quantity of water inflow
  to, water outflow from, and water storage in a hydrologic unit, such as a drainage basin, aquifer, soil zone, lake,
  or re