BEFORE THE Department oF ENVIRONMENTAL QUALITY

OF THE STATE OF MONTANA

 

In the matter of the adoption of NEW RULE I, the amendment of ARM 17.24.102, 17.24.107, 17.24.116, 17.24.118, 17.24.128, 17.24.132, 17.24.141, 17.24.144, 17.24.145, 17.24.146, 17.24.150, 17.24.159, 17.24.166, and 17.24.171, and the repeal of ARM 17.24.165 and 17.24.170 pertaining to regulation of hard rock mining and exploration

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NOTICE OF ADOPTION, AMENDMENT, AND REPEAL   (MINING BUREAU)

 

TO: All Concerned Persons

 

1. On January 12, 2024, the Department of Environmental Quality published MAR Notice No. 17-437 pertaining to the public hearing on the proposed adoption, amendment, and repeal of the above-stated rules at page 4 of the 2024 Montana Administrative Register, Issue Number 1.

 

2. The department has adopted the above-stated rule as proposed: NEW RULE I (17.24.109).

 

3. The department has amended the above-stated rules as proposed.

 

4. The department has repealed the above-stated rules as proposed.

 

5. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:

 

COMMENT 1: The proposed definition of "permit area" in ARM 17.24.102(16) should not be amended from the "disturbed land" as defined in 82-4-303(9), MCA, to include all additional areas extending to the "permit boundary." Such an expansion in the defined area would have an adverse effect upon private property interests because it would preclude areas within a permit boundary from being mined under the authorization of a small miner exclusion statement. Because the proposed change in this definition could result in a "regulatory taking" under the 5th amendment of the United States Constitution, permits existing prior to this proposed rule change should be grandfathered to utilize the prior definition.

 

RESPONSE 1: The department appreciates the comment. First, it should be noted that pursuant to 82-4-305(10), MCA, an "area under permit" does not qualify for a small miner exemption from the operating permit requirements of the Metal Mine Reclamation Act, 82-4-301, et seq., MCA. Second, the department specifically conducted a legal review of all the proposed rule changes and concluded that no regulatory takings would result from the proposed change in this definition. Third, any applicant who has the legal right to mine on the land covered by an operating permit, pursuant to 82-4-335(4)(h), MCA, must submit a map with the application to define the area the applicant is requesting that the department include in the permit area. The department does not mandate the size of the permit area, but rather it verifies that the applicant's requested permit area is commensurate with the requirements of the Act. Therefore, no regulatory taking is possible because any operating permit area is established at the request of the applicant and the permit is established through a process that includes public notice and provides opportunity for public participation and judicial review. The amended definition of "permit area" is logical, coherent with existing regulatory procedures, and consistent with the provisions of the Metal Mine Reclamation Act, 82-4-301, et seq., MCA. No "grandfathering" of definitions is necessary.

 

 

           

Certified to the Secretary of State April 30, 2024.