Montana Regulatory Program, 3673-3687 [2025-00333]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement

[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 [www.gpo.gov]
[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: 
[email protected].

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 https://www.regulations.gov/.
    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